Summary
holding that continuing violation doctrine did not apply to toll false arrest claim, where plaintiff remained incarcerated following arrest
Summary of this case from Robinson v. PurkeyOpinion
CIVIL ACTION NO. 06-109.
March 16, 2007
MEMORANDUM OPINION AND ORDER
This matter is before the court on defendants' motion to dismiss (Doc. #8).
The court heard oral argument on this motion on Wednesday, March 14, 2007. Gary Tabler represented the plaintiffs, and Mary Ann Stewart represented the defendants. Court reporter Lisa Wiesman recorded the proceedings.
Having heard the parties, the court now issues the following memorandum opinion and order.
Factual and Procedural Background
On November 15, 2002, plaintiffs, Mark E. Mann, Sr., Mark E. Mann, Jr., Nolan E. Mann, and Grace Mann resided at 3459 Idlewild Road in Burlington, Kentucky. On that date, defendants arrived at the residence to investigate plaintiffs for engaging in the possession, cultivation, or trafficking in controlled substances.
Plaintiffs allege that, during this investigation, they were restrained, threatened and physically abused by defendants, who were attired in military dress and armed with deadly weapons. Plaintiffs Mark Mann, Sr. and Mark Mann, Jr. allege that they were coerced into signing statements confessing their guilt. Plaintiff Nolan Mann, another son of Mark Mann, Sr., alleges that he was kicked in the head by an unknown defendant. Plaintiff Grace Mann, who was then 17 years old, alleges that she was restrained and threatened with being taken to the Juvenile Detention Center and was not allowed to call her mother during this incident.
Plaintiffs allege that as a result of this incident, plaintiff Nolan Mann was wrongfully convicted of a felony and is now incarcerated; plaintiff Mark Mann, Jr. was also convicted of a felony and is on pretrial diversion; and plaintiff Mark Mann, Sr. was convicted of a felony and is on criminal probation.
Plaintiffs filed this action on May 30, 2006. (Doc. #1) Defendants thereafter filed a motion to dismiss, which was fully briefed. On September 11, 2006, plaintiffs filed an amended complaint which expounds on the RICO claims but is otherwise substantively the same as the original complaint. (Doc. #16) The claims asserted in the amended complaint are: (1) RICO, 18 U.S.C. § 1961; (2) RICO conspiracy; (3) 42 U.S.C. § 1983; (4) "Civil Rights Conspiracy"; (5) "Official Misconduct" in violation of KRS 522.010; and (6) "Organized Crime" under KRS 506.120.
Analysis
A. 42 U.S.C. § 1983 Claims (Counts III and IV)A section 1983 claim alleging a violation of civil rights or personal injuries is governed by the applicable state's statute of limitations. Wallace v. Kato, 127 S. Ct. 1091, 1094 (2007) (citations omitted). Here, the parties agree that the applicable limitations period in Kentucky is one year.
The single incident giving rise to plaintiffs' § 1983 claims is the raid on their residence on November 15, 2002 and the ensuing arrest that same day of the three male plaintiffs. This action was not filed until May 30, 2006, more than three years later. On their face, then, these claims are time-barred.
While plaintiff Grace Mann was a minor on November 15, 2002, it is undisputed that she turned 18 years old on July 13, 2003. Thus, even applying the tolling provision of KRS 413.170, Grace Mann's claim would still have had to be brought on or befoe July 13, 2004.
Apparently recognizing this point, plaintiffs argue that their § 1983 claims are timely by application of the "continuing violation" doctrine. Plaintiffs cite to Kuhnle Brothers, Inc. v. County of Geauga, 103 F.3d 516 (6th Cir. 1997), as support for this argument.
In Kuhnle, the Sixth Circuit held that the continuing violation doctrine applied to a substantive due process claim for deprivation of liberty based on a county's continued enforcement against the plaintiff trucking company of an ordinance restricting the company from using certain roads. Id. at 521-22. The court held that the ordinance actively deprived the company of its asserted constitutional right every day that it remained in effect and thus worked an ongoing violation of constitutional rights. Id. at 522.
Plaintiffs' claims here are distinguishable. Their sole predicate is the raid that occurred on plaintiffs' house on November 15, 2002, and their ensuing arrests. Plaintiffs' argument that the fact that they remain either incarcerated or on probation as a result of their subsequent convictions amounts to a continuing violation of their civil rights is misplaced.
Both the Supreme Court and Sixth Circuit have held that a civil rights claim accrues at the time that the plaintiff knows or should have known of the allegedly discriminatory or unlawful action upon which the claim is based, even though the ill effects of such action may continue — or not even be felt — until sometime thereafter. See Delaware State College v. Ricks, 449 U.S. 250, 258 (1980); Tolbert v. State of Ohio Dep't of Transp., 172 F.3d 934, 940 (6th Cir. 1999) (noting that a continuing violation is occasioned by continual unlawful acts, not continual ill effects from an original violation; distinguishing Kuhnle Brothers) (citation omitted).
Federal appellate courts thus have concluded that claims under § 1983 for false arrest that are otherwise time-barred are not saved by the continuing violation doctrine due to the plaintiff's continued incarceration following the arrest. See McCormick v. Farrar, 147 Fed. Appx. 716, 721-22 (10th Cir. 2005) (holding that arrestee's § 1983 claim for false arrest and false imprisonment involved a discrete act that began and ended on day of arrest, and thus, even if action had continuing impact on arrestee until he was released two days later, continuing violation doctrine did not apply to extend statute of limitations period until end of arrestee's period of confinement); Petaccio v. Davis, 76 Fed. Appx. 442, 444-45 (3d Cir. 2003) (holding that incarceration does not create a "continuing violation" for purposes of § 1983 false arrest and imprisonment claim).
Therefore, even if plaintiffs remain incarcerated or on probation as a result of their allegedly unlawful arrest, this fact does not bring their claims within the "continuing violation" doctrine. The § 1983 claims, which may otherwise have stated a claim based on allegations of excessive force, are thus time-barred and must be dismissed.
B. RICO Claims (Counts I and II)
In a civil RICO cause of action, any person who suffers injury to business or property caused by a violation of 18 U.S.C. § 1962 can sue for treble damages and attorney's fees. See 18 U.S.C. § 1964(c). To prove that the defendant violated one of the provisions of § 1962, the plaintiff must demonstrate a "pattern of racketeering activity." See 18 U.S.C. § 1962(a). "Racketeering activity" is defined as any violation of a series of federal statutes listed in § 1961. See 18 U.S.C. § 1961(1).
Plaintiffs' amended complaint alleges the predicate acts of "mail fraud" (¶ 46) and "extortion" (¶ 48). However, plaintiffs make no factual allegations to support these legal conclusions, and such conclusory legal assertions do not adequately plead a RICO claim. See Jennings v. Emry, 910 F.2d 1434, 1438 (7th Cir. 1990) ("[I]n pleading predicate acts conclusory allegations that various statutory provisions have been breached are of no consequence if unsupported by proper factual allegations.").
An allegation of mail fraud, for example, requires showing a "scheme or artifice to defraud" combined with a mailing for the purpose of executing the scheme. VanDenBroeck v. Commonpoint Mortgage Co., 210 F.3d 696, 701 (6th Cir. 2000). Where mail fraud is an alleged RICO predicate act, the circumstances constituting such fraud must be stated with particularity pursuant to Rule 9(b). Id. Plaintiffs' amended complaint alleges no facts stating how defendants engaged in mail fraud or what the alleged fraud was. Such bare legal conclusions, unsupported by factual detail, do not adequately plead a RICO predicate act. Id. at 702.
Similarly, plaintiffs provide no factual support for their allegation of "extortion." Extortion means "the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, fear, or under color of official right." 18 U.S.C. § 1951(b)(2). Plaintiffs do not allege that defendants obtained any property from them, only that they unlawfully interrogated and arrested them. The amended complaint thus fails adequately to plead the predicate act of extortion. See Stanson v. Calligan, Nos. 91-16028, 91-16217, 1993 WL 17014, at *3 (9th Cir. Jan. 26, 1993) (allegation that defendants sought to destroy plaintiff financially fails to allege extortion in absence of factual allegation that defendants obtained property from plaintiff).
As the Seventh Circuit recently noted, "RICO is not a substitute for every time-barred tort or civil rights action." Gamboa v. Velez, 457 F.3d 703, 710 (7th Cir. 2006). For the reasons stated, the RICO allegations are insufficient to state a claim upon which relief may be granted.
C. State Law Claims (Counts V and VI)
Given that plaintiffs' federal causes of action fail to state a claim, the court will decline to exercise its supplemental jurisdiction over plaintiffs' state law claims, pursuant to 28 U.S.C. § 1967.
Therefore, having heard the parties, and the court being otherwise sufficiently advised,
IT IS ORDERED that defendants' motion to dismiss (Doc. #8) be, and is hereby, GRANTED. Plaintiffs' federal claims are DISMISSED WITH PREJUDICE, and plaintiffs' state law claims are DISMISSED WITHOUT PREJUDICE. A separate judgment shall enter concurrently herewith.