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Evans v. Chipps

Filed: March 2, 1982.

GEORGE REYNOLDS EVANS, SR.
v.
WILLIAM CHIPPS; CARNEY JAMES; DARRYL BRUESTLE AND THE CITY OF WILMINGTON



Appeal by plaintiff from Rouse, Judge. Order entered 20 January 1981 in Superior Court, New Hanover County. Heard in the Court of Appeals 9 February 1982.

Hedrick, Judge. Judges Hill and Becton concur.

Hedrick

"[I]n determining the applicable statute of limitations, the focus should be upon the nature of the right which has been injured. . . . ." Holley v. Coggin Pontiac, Inc., 43 N.C. App. 229, 241, 259 S.E.2d 1, 9, disc. rev. denied, 298 N.C. 806, 261 S.E.2d 919 (1979). In the present case, plaintiff's complaint, when considered in a light most favorable to him, alleges injuries to rights which

arguably would produce the following causes of action: an action under 42 U.S.C. § 1983 for deprivation of civil rights under color of state law; an action under 42 U.S.C. § 1985(3) for conspiracy to deprive another of his civil rights; false imprisonment; malicious prosecution; and trespass. For the actions brought under 42 U.S.C. §§ 1983, 85(3), the applicable limitations period is determined by reference to state law, Cox v. Stanton, 529 F.2d 47 (4th Cir. 1975); that limitations period is three years, which is the time limitation prescribed by G.S. § 1-52(2) for actions founded on "a liability created by statute, either state or federal." See Bireline v. Seagondollar, 567 F.2d 260 (4th Cir. 1977), cert. denied, 444 U.S. 842, 62 L. Ed. 2d 54, 100 S. Ct. 83 (1979). Plaintiff's other causes of action, assuming they were adequately alleged, are subject to the following limitations periods: for false imprisonment, one year, G.S. § 1-54(3); for trespass by a public officer under color of his office, three years, G.S. § 1-52(13); and for malicious prosecution, three years, G.S. § 1-52(5).

"Ordinarily, the period of the statute of limitations begins to run when the plaintiff's right to maintain an action for the wrong alleged accrues. The cause of action accrues when the wrong is complete, even though the injured party did not then know the wrong had been committed." Wilson v. Crab Orchard Development Co., 276 N.C. 198, 214, 171 S.E.2d 873, 884 (1970). Bireline v. Seagondollar, supra, however, states that the federal rule fixes the time of accrual of a right of action under the federal civil rights statutes, and that such time of accrual is the point in time when the plaintiff knows or has reason to know of the injury which is the basis of the action. Assuming arguendo that all of plaintiff's claims arose on the very late date of 8 August 1977, the date on which he was sentenced to prison and a date on which he would necessarily have to have known of the injuries forming the basis of his action, all of plaintiff's possible causes of action would still be barred by the statute of limitations, since his complaint was not filed until 27 October 1980.

Plaintiff argues, however, that the facts that he was in prison and that he needed time to prepare his suit prevented the statute of limitations from running against his action. This argument is without merit. G.S. § 1-17, which enumerates the disabilities which delay the running of a limitations period, does not include imprisonment; in fact, 1975 N.C. Sess. Laws Ch. 252, effective 1

January 1976, is entitled "An Act to Amend G.S. 1-17 so as to Eliminate imprisonment as a Disability Under the Statute of Limitations. . . ." Plaintiff's imprisonment therefore did not prevent the running of the statute of limitations. Similarly, plaintiff cannot avoid the statute of limitations bar by the mere fact that he needed more time to investigate and prepare his case. See Wheeless v. St. Paul Fire and Marine Insurance Co., 11 N.C. App. 348, 181 S.E.2d 144 (1971).

Plaintiff also undertakes to make the argument that his filing of a complaint in United States District Court for the Eastern District of North Carolina on 15 September 1978 and G.S. § 1A-1, Rule 41 prevent a statute of limitations bar to his action. Of the alleged factual grounds for recovery contained in plaintiff's complaint in the present action, only two were contained in plaintiff's federal complaint. Those two pertained to defendants' alleged improper detention of plaintiff without his having been identified by the victim and their alleged deprivation of his right to counsel. With respect to the other claims not mentioned in the federal complaint, but raised in the present case, the federal complaint is wholly irrelevant. With respect to the two claims which were raised in the federal complaint, plaintiff would have us construe G.S. § 1A-1, Rule 41 to save plaintiff from a statute of limitations bar. G.S. § 1A-1, Rule 41(a) provides a plaintiff an additional year to file a new action after a timely action on that same claim is voluntarily dismissed. G.S. § 1A-1, Rule 41(b) likewise provides that a new action may be filed within a year of an involuntary dismissal on a timely first action, if the court so specifies and if the court specifies that the dismissal of the first action was without prejudice. In the present case, there is nothing in the record to show that the two claims which first appeared in plaintiff's federal complaint were subject to either a voluntary or involuntary dismissal; in fact, plaintiff's claim for deprivation of counsel is still pending in federal court; plaintiff's federal court claim of improper detention was subject to a summary judgment in favor of defendants on 23 January 1979, and the court did not specify that plaintiff would have any additional time to file a new action thereon; finally, plaintiff's complaint in the present action was filed more than one year after the federal district court entered summary judgment against plaintiff. Plaintiff's "Rule 41"

argument is without merit. In addition, it should be noted that a civil action is commenced, in such a manner as to avoid a statute of limitations bar, if, within the period of limitations prescribed, a plaintiff files "a complaint with the court," G.S. § 1A-1, Rule 3 [Emphasis added.]; plaintiff's filing of a complaint in federal district court was unavailing to prevent a statute of limitations bar in this action.

When the record discloses that a plaintiff's claims against the defendant are barred by the statute of limitations, the defendant is entitled to judgment as a matter of law and summary judgment is appropriate. Jarrell v. Samsonite Corp., 12 N.C. App. 673, 184 S.E.2d 376 (1971), cert. denied, 280 N.C. ...


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