Jong Hee Small, Personal Representative of the Estate Ofdelbert Small, Plaintiff, Appellant, v. the Inhabitants of the City of Belfast and James Murphy,etc., Defendants, Appellees, 796 F.2d 544 (1st Cir. 1986)

Since the Legislature never enacted a specific limitations statute respecting actions for damages on account of legal malpractice as it did in the case of medical malpractice, causes of action based on the wrongful conduct of attorneys, whether in contract or tort, must be commenced, as mandated by 14 M.R.S.A., Sec. 752, within 6 years after the cause of action accrues and not afterwards, since this general provision requires that "all civil actions," except as otherwise provided, be so commenced.

We believe that this rationale is generally applicable so that most "personal injury" actions, whether intentional or not, would be covered by section 752, rather than section 753.

Our conclusion is further buttressed by the legislative history of the Maine statutes of limitations. The predecessor statute to section 752 was R.S. 1954, c. 112 Sec. 90. This provision stated, in relevant part, that all actions of trespass, except those for assault and battery and false imprisonment, and all actions on the case, except for slander and libel, were governed by a six-year limitations period. Thus, the preceding statutory scheme for limitations periods designated a six-year period for all tort actions, including personal injury actions both intentional and unintentional, except for assault and battery, false imprisonment, slander, and libel. The superceding and current provisions, sections 752 and 753, did not alter this scheme, but merely were part of an effort to secure one form of civil action and procedure. The Maine legislature intended section 752 to apply to all civil actions, and consequently to all torts, whether originally sounding in trespass or trespass on the case, unless a separate statutory provision was to the contrary. See P.L. 1959, c. 317; Field, McKusick and Wroth, Memorandum to the Judiciary Committee of the 99th Legislature on Redraft of L.D. 1198, Chap. 112, Secs. 90-99 (April 16, 1959).

Finally, we find support for our adoption of the six-year limitations period in the decisions of other federal courts selecting an appropriate statute of limitations for section 1983 actions. These courts have consistently adopted a more general statutory provision over statutes covering only assault and battery, false imprisonment, or libel and slander. See, e.g., Hamilton v. City of Overland Park, 730 F.2d 613, 614 (10th Cir. 1984) (proper statute is Kan.Stat.Anno. Sec. 60-513(a) (4), "an action for the injury to the rights of another, not arising on contract, and not herein enumerated," rather than Sec. 60-514(2), "an action for assault, battery, malicious prosecution, or false imprisonment"), cert. denied, --- U.S. ----, 105 S. Ct. 2111, 85 L. Ed. 2d 476 (1985); Mishmash v. Murray City, 730 F.2d 1366, 1367 (10th Cir. 1984) (proper statute is Utah Code Ann. Sec. 78-12-25(2), "an action for relief not otherwise provided by law," rather than Sec. 78-12-29(4) governing "an action for libel, slander, assault, battery, false imprisonment or seduction"), cert. denied, --- U.S. ----, 105 S. Ct. 2111, 85 L. Ed. 2d 476 (1985);⁴  Rodriguez v. Village of Larchmont, 608 F. Supp. 467, 476-77 (S.D.N.Y. 1985) proper statute is N.Y.Civ.Prac. Law Sec. 214, "an action to recover damages for a personal injury," rather than Sec. 215(3), "an action to recover damages for assault, battery, false imprisonment, malicious prosecution, libel, slander...."); Ohio Civil Service Employees Association v. Seiter, No. C-1-85-530 (S.D. Ohio 1985) (proper statute is Ohio Rev. Code Sec. 2305.10, "bodily injury or injury to personal property", rather than Sec. 2305.11, "libel, slander, assault, battery, malicious prosecution, false imprisonment, or malpractice").

The decision relied on by the district court, Jones v. Preuit & Mauldin, is not to the contrary. In Jones, the Eleventh Circuit adopted the six-year Alabama statute of limitations governing all actions "for any trespass to person or liberty, such as false imprisonment or assault and battery," Ala.Code Sec. 6-2-34(1), rather than the one-year statute of limitations applicable to actions "for any injury to the person or rights of another not arising from contract and not specifically enumerated in this section," Ala.Code Sec. 6-2-39(a) (5). Because the Alabama provisions governing personal injury actions differentiated between all actions of trespass and all actions of trespass on the case, the court was forced to make a similar analysis of section 1983 cases. It decided that, given the choice, section 1983 cases were more analogous to intentional torts, rather than unintentional torts, because of the historical context of lynchings, whippings, and kidnappings in which the section 1983 statute was originally passed.⁵ 

Unlike the Alabama statute in Jones, the Maine statutes do not clearly separate all intentional from all unintentional torts. Instead, section 753 only singles out a few specific intentional torts for different treatment from a much larger universe of all torts, including those involving personal injury, treated under section 752. To the extent the Jones case goes beyond this reasoning and suggests that the statute of limitations applying to select torts such as assault and battery, false imprisonment, and slander and libel should be adopted for section 1983 purposes, we reject such analysis as against the weight of authority and inconsistent with Wilson v. Garcia.

Accordingly, we conclude that the Maine six-year limitations period, 14 M.R.S.A. Sec. 752, is the statute applicable generally to "personal injury" actions. As directed in Wilson v. Garcia, section 752 is, therefore, to be employed in suits brought pursuant to section 1983 and should have been applied in Small's suit.⁶  We remand for the district court's consideration the merits of Small's liberty interest claim as that has not yet been addressed below. We will go on, however, to consider the merits of his property interest claim as that issue has been raised on this appeal.

Property Interest Claim

Small claims he had a property interest in his public employment as a "special police officer" created by various state and municipal statutes and ordinances restricting the grounds upon which certain employees may be discharged. Alternatively, he claims his property interest was created by implied contract, mutually explicit understandings, or common practice and agreements. He then asserts that he was deprived of this property interest without due process because the defendants revoked his appointment without the required notice or hearing.

A property interest in public employment can be created by state statute or municipal ordinance that restricts the grounds upon which an employee may be discharged. See, e.g., Bishop v. Wood, 426 U.S. 341, 344-45, 96 S. Ct. 2074, 2077, 42 L. Ed. 2d 684 (1976); Cleveland Board of Education v. Laudermill, 470 U.S. 532, 105 S. Ct. 1487, 1491, 84 L. Ed. 2d 494 (1985). On appeal, the plaintiff points to three specific state statutes and municipal ordinances as the basis for his property interest in his employment as a special police officer.⁷  First, he looks to 30 M.R.S.A. Sec. 2361(1) in conjunction with 30 M.R.S.A. Sec. 2362 which provide as follows:

Sec. 2361(1)

Appointment. Except as provided in municipal charter or section 3217, subsection 1, paragraph F. the municipal officers may appoint for a definite term, control and fix the compensation of police officers. Unless the municipality has provided otherwise under section 2152, subsection 2, police officers may be removed for cause after notice and hearing.

Sec. 2362

Special police officers of limited jurisdiction may be appointed for a term of not more than one year and as provided in section 2361, subsection 1 and shall have all powers of a police officer, except as specifically provided by municipal ordinance or the certificate of appointment.

A plain reading of section 2362 incorporates section 2361(1) in its entirety so that its terms are applicable to special police officers of limited jurisdiction, including the provision requiring removal for cause, after notice and hearing.

The district court concluded, however, that the removal provision of section 2361(1) did not apply to Small's special officer appointment so as to confer a constitutionally protected property interest in that office. He reasoned that the cross-reference only incorporates the first sentence of section 2361(1) which specifically deals with appointment, but does not incorporate the second sentence dealing solely with removal. He further reasoned that "the nature of the position of 'special officer of limited jurisdiction' which permits employees of private parties to exercise police powers within the scope of their private employment, suggests that their 'removal' is a matter for the private employer and that such removals are not constrained by the second sentence of section 2361(1) limiting the power of municipal officers to 'remove' officers." 617 F. Supp. at 1579. The contention of the plaintiff here dealt with revocation, rather than removal, thus making the second sentence inapplicable.

We reject this reasoning and hold that these two Maine statutes created a property interest in the plaintiff's position as a special police officer of limited jurisdiction. We see no reason for denying the plain reading of the statute; section 2362 refers to section 2361(1) in its entirety, not simply to the first sentence. Additionally, the entire subsection appears under the heading "appointment." While a cause removal provision normally might not be deemed an aspect of appointment, the legislature in this instance determined that it was, and we will not quibble with this legislative classification. Contrary to the district court, we do not believe that because a special police officer of limited jurisdiction may be "removed" by his private employer, he cannot also lose his position by virtue of action taken on the part of the municipality. Whether such action is called "removal" or "revocation" we believe that this issue is more one of semantics than anything else, a result of cross-referencing a provision which covers employees in a slightly different posture than is a special police officer of limited jurisdiction. In Barber v. Inhabitants of Town of Fairfield, 460 A.2d 1001, 1005 (Me.1983) the Maine Supreme Judicial Court held that section 2361(1) restricted the grounds upon which a police chief can be discharged and gave him a property interest in public employment; we find that section 2362, applicable to special police officers of limited jurisdiction, but incorporating the same section 2361(1), creates a similar property interest for Small in this case.

As this set of statutes creates a property interest, we need not address the other arguments plaintiff makes about the source of his property right.⁸  We next address the district court's alternative ground for granting summary judgment to defendants on this issue: that defendants never revoked Small's "special" officer appointment and therefore never acted to deprive him of a property right. We do not believe that this issue can be resolved appropriately by means of summary judgment given the current state of the record.

There is some confusion in the record about exactly what positions Small held with the City of Belfast and exactly how he was terminated from those positions. In Small's deposition and the exhibits pertaining to Small's application and appointment, references were made to both a "special" officer position, the loss of which is the focus of the complaint and the district court opinion, as well as a "reserve" officer position. Small clearly thought of the two positions as distinct jobs with distinct duties. As a "reserve" police officer, Small claimed he had all the duties of a regular patrolman, throughout the city, but only on a call-up basis; as a "special" police officer, Small believed he had the powers of an officer, but only on particular premises, those of Waldo County General Hospital. The Maine statutes and the City of Belfast departmental rules and regulations, however, refer only to the former job.

The city manager seems to have ordered the chief of police to have Small resign from his "reserve" officer position, or so Small understood. Small believed that he retained his "special" officer position and did not resign from that job at the same time. Thus, in his pleadings, Small does not allege that he was forced out of his special officer job by virtue of his resignation; instead, he alleges that the defendants indirectly caused the loss of that position by notifying the hospital that Small's special officer appointment was being revoked, thereby causing the hospital to fire Small. But there are indications in the record that the City Manager believed that Small, by resigning, ceased all relationship with the city, whether involving the "reserve" or "special" officer duties. For example, the record evidence of the office as to which Small took an oath describes it simply as "Special Police Officer." (R.A. 236) Given this unsatisfactory state of the record and our inability to sort out Small's employment with the city, we cannot be sure that the city may not have directly forced Small to give up the only position he held when it demanded his resignation, in addition to any problems relating to his job loss by virtue of the communications to the hospital.

Further, as to Small's "special officer" appointment with the Waldo County General Hospital, we have serious reservation about allowing, on summary judgment, the city manager to accomplish indirectly something he would be liable for under section 1983 if done directly. Based on the affidavits and depositions submitted below, it is undisputed that the defendants technically took no formal action to revoke Small's "special" officer appointment, but at most notified the hospital administrator that the city would be revoking Small's appointment and that the hospital should submit a letter requesting that Small be relieved of his appointment. The hospital, clearly influenced by the communication from the city manager to the effect that Small was no longer fit to be a "special" police officer, never waited for the formal revocation of Small's appointment, but instead discharged Small from his position at the hospital and then submitted the requested letter. The city or city manager never acted upon the letter. Small's appointment as a "special" officer simply expired as a matter of law once he was discharged by the hospital since the appointment was of "limited" jurisdiction, i.e., limited to his status as a security guard for Waldo County General Hospital.

On summary judgment we must view the evidence in the light most favorable to the plaintiff, the party opposing the motion. Hahn v. Sargent, 523 F.2d 461, 464 (1st Cir. 1975), cert. denied, 425 U.S. 904, 96 S. Ct. 1495, 47 L. Ed. 2d 754 (1976). From the affidavit submitted by the hospital administrator responsible for firing Small from Waldo County General Hospital, as well as from similar indications elsewhere in the record, it is clear that it was a communication or action by the city manager that resulted in the loss of Small's job and, consequently, his "special" officer appointment:

The reason for Mr. Small's termination was the representation to me by Mr. Murphy that Mr. Small's appointment was being terminated.

Upton Affidavit, p 4 (Record Appendix at 481).

Although Small's appointment expired as a matter of law once he was discharged, the real cause of his discharge was the statement by Murphy that Small's special police officer appointment was going to be revoked. Accordingly, we reverse the district court's grant of summary judgment on the property interest claim as well and remand that issue for trial.

Liability of City of Belfast

Small also claims error in the district court's alternative ground for ruling that the City of Belfast be dismissed from the action. The court reasoned that the plaintiffs had made no allegations that the allegedly unconstitutional actions of the city manager were undertaken pursuant to any official policy; consequently, under the decision of Monell v. Department of Social Services, 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978), the city could not be held liable solely on a theory of respondeat superior and had to be dismissed from the action.

The Eighth Circuit has recently discussed the meaning of Monell with respect to facts similar to those presented here. In Williams v. Butler, 746 F.2d 431 (8th Cir. 1984),⁹  a municipal judge fired two employees in violation of their First Amendment rights. Based on evidence that the city had given municipal judges final authority to make their own personnel decisions, the court followed decisions of the Second, Third, Fourth, Fifth, Ninth, and Eleventh Circuits¹⁰  concluding that in areas where a local governmental official alone is the " 'final authority or ultimate repository of ... power', that official's 'conduct and decisions must necessarily be considered those of one "whose edicts or acts may fairly be said to represent official policy" ' for purposes of Sec. 1983." Id. at 436 (quoting Familias Unidas v. Briscoe, 619 F.2d 391, 404 (5th Cir. 1980)) . Consequently the court upheld the district court's entry of judgment against the city, based solely on the actions taken by the municipal judge.

As discussed in Williams v. Butler, 746 F.2d at 437, the Fifth Circuit in Bennett v. Slidell, 728 F.2d 762 (5th Cir. 1984) (en banc), cert. denied, --- U.S. ----, 105 S. Ct. 3476, 87 L. Ed. 2d 612 (1985) seems to have reversed its earlier position, at least as applied to non-personnel situations or third parties, and held that in order to impose municipal liability under section 1983

the local governing body itself must have acted unconstitutionally, or must have been directly responsible for the formal policy or custom pursuant to which the unconstitutional act was taken. Id. at 767. Further, unless a local governing body has expressly or impliedly appointed an official to act in its place, that body cannot be held responsible for the acts of that official. Id. at 769. Thus, even though, in Bennett, the acts taken by the city officials may have been unconstitutional, and even though those authorities were final authorities on the decisions in question, the city was not liable for those acts. See id. at 770.

The implications of these statements with respect to the case at bar, however, are unclear. The Fifth Circuit panel did not expressly overrule its earlier rulings in Familias Unidas v. Briscoe, 619 F.2d 391 (5th Cir. 1980), Schneider v. City of Atlanta, 628 F.2d 915 (5th Cir. 1980), and Bowen v. Watkins, 669 F.2d 979 (5th Cir. 1982) which adopted the "final authority" approach. In addition, the court expressly distinguished the Familias case on the grounds that the county judge obtained his policymaking authority by virtue of the office to which he was elected, rather than from the governing local authority. On that basis, the "final authority" approach would still be applicable to this case because by statute the city manager has been given authority to remove all persons he is authorized to appoint. 30 M.R.S.A. Sec. 2317(1) (A), (C), (E), (F), (N). Consequently, we do not believe the new Fifth Circuit reasoning warrants a different conclusion here than would Williams v. Butler. In any event, we find the Eighth Circuit approach more persuasive.

In addition, the recent Supreme Court decision in Pembaur v. City of Cincinnati, --- U.S. ----, 106 S. Ct. 1292, 89 L. Ed. 2d 452 (1986) is supportive of our position on this issue. In that case, the court ruled that a municipality may be held liable under section 1983 for a single decision by municipal policymakers under appropriate circumstances. Thus, a county prosecutor made official policy and exposed his municipal employer to liability, by instructing law enforcement officers to make a forcible entry without a search warrant, where Ohio law authorized the county sheriff to obtain instructions from the county prosecutor and the sheriff followed the practice of delegating certain decisions to the prosecutor where appropriate. While there was no majority opinion as to what constitutes a municipal policy, a plurality of the court indicated that "[m]unicipal liability attaches only where the decisionmaker possesses final authority to establish municipal policy with respect to the action ordered." Id. at 1299. Additionally, Justice Stevens separately indicated that in his view municipal liability attaches to those acts performed by government agents in the course of their employment. Id. at 1303.

Accordingly, we believe it is in conformity with the Pembaur decision and the reasoning of Williams v. Butler that liability could attach to the City of Belfast by virtue of unconstitutional action taken on the part of the city manager, if he indeed had the final authority to revoke Small's appointment as a special police officer. We, therefore, also reverse the district court's decision on that issue and remand for a determination of the city's liability on that basis.

LEVIN H. CAMPBELL, Chief Judge (concurring and dissenting).

Whether Mr. Small had a protected property interest in his public employment as a "special police officer," and whether there is evidence of an actionable infringement of any such interest, are close and difficult questions. While I respect this court's well-stated position, I find that I am in substantial agreement with the district court's disposition of these matters. In all other respects I join fully in this court's opinion.