Opinion
No. 95-0435-E
January 30, 1996
MEMORANDUM OF DECISION ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
Plaintiff, Warren Durham ("Durham"), a former Massachusetts state prisoner and parolee, brought this action seeking damages and declaratory relief against the Commonwealth of Massachusetts ("Commonwealth") and John Doe for negligently or intentionally executing a parole violation warrant, thereby causing Durham to be held in penal custody beyond the expiration of his sentence. Count I of the amended complaint seeks damages against the Commonwealth pursuant to G.L.c. 258, the Massachusetts Tort Claims Act. Count II seeks damages under 42 U.S.C. § 1983 against John Doe, the unnamed Commonwealth employee who caused Durham to be arrested on a parole violation warrant. Count III requests declaratory relief. The Commonwealth and John Doe now move for dismissal or summary judgment on all counts. For the reasons set forth below, the defendants' motion for summary judgment is allowed.
BACKGROUND
The facts, considered in the light most favorable to the plaintiff, are as follows:
Durham was sentenced to two concurrent terms of 3-10 years at MCI Walpole for two counts of assault and battery by means of dangerous weapon. While on parole from these sentences, he committed further crimes, and, following his return to prison for violation of parole, Durham was sentenced to 2 1/2 to 3 years, concurrent with his original sentences, for deriving support from the earning of a prostitute and also to two concurrent terms of 6 to 10 years for two counts of assault and battery by means of a dangerous weapon. The 6 to 10 year concurrent sentences were to take effect from and after the expiration of Durham's original sentences.
Durham began serving the concurrent 6 to 10 year sentences on May 6, 1978, and he was paroled on June 15, 1982, from those sentences. His parole discharge date was August 19, 1986. Soon after being paroled, Durham moved to Ohio and the Commonwealth transferred Durham's parole supervision to the State of Ohio pursuant to the terms of the Compact for Interstate Supervision of Probationers and Parolees.
On October 28, 1985, the Massachusetts Parole Board revoked Durham's parole and issued a parole violation warrant for Durham's apprehension and return to custody. This action was based on a communication by an Ohio Parole Officer that Durham had told the Parole Officer that he "will not report to any parole officer because he . . . knows the laws and that he is not supposed to be on parole"; the Parole Officer also told Massachusetts parole officials that Durham had left his approved residence with his parents and that his whereabouts were unknown.
Durham assumes that the Commonwealth listed the warrant on the NCIC computer. In addition, Parole Board records submitted by Durham indicate that parole authorities in Ohio were asked to notify Massachusetts at once if any information surfaced concerning Durham. Durham was arrested pursuant to the Massachusetts parole violation warrant on November 27, 1987 and held in custody in Cuyahoga County, Ohio as a fugitive from justice. At the time of his arrest, Durham resided on Leeila Avenue in Cleveland under his own name. It was not the residence at which he had been approved to reside by his parole officer. Durham refused to waive extradition so the Parole Board sought a Governor's Warrant of Rendition. Massachusetts was unable to successfully complete the rendition process within the ninety day time limit for confinement of interstate fugitives because the original mittimus from Suffolk Superior Count on Durham's sentences could not be located. Durham was released from custody in Ohio on February 22, 1988. Durham knew that his transfer to Massachusetts was delayed due to the inability of Massachusetts officials to complete the paperwork needed to obtain a judicial order for his return. He believed that the Commonwealth's inability to complete his rendition was because he owed Massachusetts no more time. There is nothing in the record, however, from which an inference can be drawn that the Commonwealth ever affirmatively represented to Durham that his sentences had expired.
After his release from custody on February 22, 1988, Durham continued to reside at the same address on Leeila Avenue until sometime in 1991, when he moved to a nearby street within a few blocks of his parents' home. Durham had a license to operate a motor vehicle and was employed or collecting public assistance in his own name. At no time did Durham attempt to conceal his identity or his whereabouts. The records of the Parole Board do not indicate that any action was taken by the Commonwealth to attempt to locate Durham from his February, 1988 release until the spring of 1991.
In April of 1991, the Massachusetts Parole Board received information that Durham had been convicted in Cuyahoga County on November 21, 1990 of possession of drugs and possession of criminal tools and that he had received a suspended sentence and had been placed on probation for two years. The Parole Board renewed extradition proceedings, and Durham was taken into custody in Ohio as a fugitive from justice on May 14, 1991.
Durham was released on bond on the fugitive charge on June 28, 1991. On October 30, 1991, Ohio ordered Durham to be rendited to Massachusetts as a fugitive from justice, and ordered him held in custody for that purpose. On November 6, 1991, Durham was returned to confinement in Massachusetts as a parole violator.
At no time did the Parole Board ever withdraw or rescind its parole revocation warrant. Once the parole violation warrant issued, the Parole Board stopped the running of Durham's sentences pursuant to G.L.c. 127, § 149. Thus, it did not credit him with the time he was at liberty after issuance of the parole violation warrant. At no time prior to Durham's return to penal confinement in Massachusetts in 1991 did any court ever invalidate Durham's parole violation warrant, nullify the Parole Board's action in revoking his parole, or declare his sentences to have expired.
Chapter 127, § 149 provides, in relevant part, as follows:
If a permit to be at liberty has been revoked, the parole board may order the arrest of the holder of such permit . . . and order the return of such holder to the prison or jail to which he was originally sentenced. A prisoner who has been so returned to prison or jail shall be detained therein according to the terms of his original sentence. In computing the period of his confinement, the time between the day of his release upon a parole permit and the day of issuance of a parole violation warrant shall be considered as part of the term of his original sentence. The time between the day after the issuance of the parole violator warrant until the service of said warrant shall not be considered as any part of the term of his original sentence. . . .
Upon his return to the Commonwealth, plaintiff advised the Massachusetts Parole Board and the Department of Correction that he believed there was a serious question as to how much time he actually owed on his sentences. He was told on November 12, 1991, that, as far as the Commonwealth was concerned, he had not wrapped up his sentences and was entitled to credit from his 1985 parole until his violation. In response, on November 22, 1991, Durham filed a habeas corpus petition challenging the legality of his confinement on the dual basis that his sentence had expired and that the Department of Correction had had several opportunities to return him into custody during his release on parole and did not do so.
The Parole Board credited Durham's sentences with the number of days Durham was held in custody in Ohio in 1987, 1988 and 1991 while he was contesting extradition. On January 27, 1992, the Massachusetts Parole Board discharged Durham from custody and parole supervision, effective January 24, 1992.
Durham forwarded a written notice of claim under G.L.c. 258, § 4 on November 2, 1993, which was received by the Attorney General on November 3, 1993. That notice claimed that, in addition to the time Durham spent in custody, he should be credited with the time that he was at liberty after his release on February 22, 1988. This action was filed on January 23, 1995, more than three years after his loss of liberty as a fugitive from justice on October 30, 1991 and more than three years after his return to incarceration in Massachusetts on November 6, 1991. The crux of the complaint is that Durham was placed in custody after his term of incarceration had expired and after the Parole Board had lost jurisdiction over him.
DISCUSSION
Count I: G.L.c. 258
Count I of Durham's amended complaint alleges that the Commonwealth acted negligently in failing timely to execute the warrant it had issued for plaintiff, by failing to grant credit to the plaintiff toward the completion of his sentence following his February, 1988 release, and by executing the warrant in May, 1991 after it had waived jurisdiction over plaintiff and after his sentence had been completed. Durham maintains that his sentence had expired no later than July 24, 1988. He derives this date by applying a credit to his sentences for all the days he was at liberty after being released on February 22, 1988. Durham also contends that the Commonwealth lost jurisdiction over him because his whereabouts were either known or could be known with reasonable diligence, and he was available to be returned to custody. In re Zullo, 420 Mass. 872, 876-877 (1995) (reasonableness of executing parole revocation warrant to be decided on case-by-case basis taking into account the extent to which the parolee reasonably relied on the inaction of the enforcing authorities and the prejudice that delay in the attempted enforcement may have caused to parolee).
The Commonwealth contends that, even if it acted negligently, which it denies, Durham's claim is barred by the statutory requirement that any action be brought within three years after the date upon which such a cause of action accrued. G.L.c. 258, § 4. The Commonwealth maintains that the limitations period started to run, at the latest, on November 6, 1991, when Durham was returned to Massachusetts, and not on his release date as Durham contends. By that date, the Commonwealth had asserted jurisdiction over Durham. Durham filed this complaint on January 23, 1995, more than three years after his return to Massachusetts. If the rendition date controls, the action is time-barred. If the release date controls, it is not.
The Commonwealth alternatively argues that the limitation period began on October 30, 1991, when Durham was ordered by an Ohio court to be returned to Massachusetts. If the earlier date controls, the action would, in addition, be barred for failure to make presentment within two years. G.L.c. 258, § 4.
Assuming that, on these facts, a cause of action for negligent imprisonment may be maintained, Durham's claim is time-barred because the cause of action accrued when the allegedly negligent actions were committed and Durham was injured by being returned to custody in Massachusetts. "It is a well-settled rule that causes of action in tort generally accrue under G.L.c. 260, § 2A, at the time that the plaintiff is injured." Dinsky v. Framingham, 386 Mass. 801, 803 (1982). This same rule of accrual applies to causes of action brought under G.L.c. 258. Id.
Massachusetts has recognized a cause of action for negligent record keeping that leads to improper arrest and imprisonment. Ortiz v. County of Hampden, 16 Mass. App. Ct. 138 (1983).
The continuing effect of a one-time invasion of plaintiff's rights does not give rise to a continuing tort. Carpenter v. Texaco, Inc., 419 Mass. 581, 583 (1995). Applying that standard, a claim brought under the Federal Tort Claims Act — the statute which c. 258 tracks — was found time-barred on the grounds that when negligence results in imprisonment, that imprisonment is not ordinarily a continuing tort. Maslauskas v. United States, 583 F. Supp. 349, 351 (D. Mass. 1984). Continuing wrongful acts are required in order to find a continuing tort. Id. Imprisonment after allegedly tortious conduct is the continuing ill effect, albeit a particularly harsh one, of a tortious act, analogous to an injury that persists after an accident. Buvens v. Buvens, 286 So.2d 144, 147 (La.Ct.App. 1973).
Federal court decisions construing provisions of the Federal Tort Claims Act are "helpful" when applying the analogous Massachusetts statute. Sena v. Commonwealth, 417 Mass. 250, 255 (1994).
In the present case, the injury continued. The tort did not. After the Commonwealth negligently renewed extradition proceedings in 1991 (assuming that it, indeed, acted negligently), Durham was rendited to Massachusetts pursuant to a properly completed rendition proceeding. Durham has no reasonable expectation of proving that any further tort was committed. Kourovacilis v. General Motors Corp., 410 Mass. 706, 716 (1991). The "mistake" in calculating the expiration date, if there was one, was not a clerical or mathematical error; it did not involve a mistake in counting the actual number of days Durham had been in custody either in Ohio or in the Commonwealth. Maslauskas, 583 F. Supp. at 352. Rather, Durham complains that the Parole Board misapplied c. 127, § 149 to a situation where principles of fairness require that credit be given for the time he was at liberty after the Commonwealth unsuccessfully sought to rendite him because Massachusetts did not, thereafter, vigorously or expeditiously act to complete rendition.
The continuing tort cases relied upon by the plaintiff are inapposite because they concern conduct that was repeated over a long period of time. See, e.g., Sixty-Eight Devonshire, Inc. v. Shapiro, 348 Mass. 177, 183-184 (1964) (continuing nuisance and trespass where water flowed onto the plaintiff's property for two years); Ahern v. Warner, 16 Mass. App. Ct. 223, 226 (1983) (duty to provide lateral support breached each time a substantial subsidence occurs).
Durham compares his situation to those of prisoners erroneously released from custody. E.g., Green v. Christiansen, 732 F.2d 1397, 1400 (9th Cir. 1984) (prisoner erroneously discharged from custody entitled to credit for the time spent at liberty through the inadvertence of the government and through no fault of his own). Compare Beauchamp v. Murphy, 37 F.3d 700, 705 (1st Cir. 1994) (Commonwealth is not constitutionally obligated to credit escaped convict with time spent in out-of-state custody while contesting extradition to Massachusetts; "Massachusetts is entitled to shape its own sentences and, within very broad limits, is entitled to insist that a sentence of so many years means years served in a Massachusetts prison.") (emphasis in original).
Just as the Commonwealth "does not owe prisoners a continuing duty to review and re-review, in search of possible legal errors, its decisions to issue parole violator warrants," id. at 351 (emphasis in original), so too the Commonwealth does not owe prisoners a continuing duty to review and re-review its decisions to pursue extradition proceedings in order to uncover possible failures to properly apply principles of fairness in determining whether a sentence has expired or whether the Commonwealth has acted in such a way as to result in waiver of jurisdiction.
In sum, Durham's cause of action under the Massachusetts Torts Claims Act accrued, at the latest, when he was returned to custody in Massachusetts. He was required to file his action for damages within three years of that date. By the time Durham was returned to Massachusetts in 1991, he clearly knew or reasonably should have known that he had been harmed by the Commonwealth's conduct. He knew or reasonably should have known that the Commonwealth did not believe either that it had waived jurisdiction over him or that his sentences had expired in July of 1988. Indeed, he filed a habeas corpus petition challenging the legality of his confinement. Durham chose not to pursue a civil action for damages or declaratory relief at the same time and may not now revisit that choice.
That action was dismissed as moot on February 14, 1992.
Count II: 42 U.S.C. § 1983
Count II of the amended complaint alleges that John Doe, acting under color of law, intentionally caused a warrant to issue for plaintiff's arrest despite knowing that plaintiff's sentence of incarceration had been fully served, that the Commonwealth had waived jurisdiction over him, and that there was no probable cause for Durham's arrest. Durham alleges that John Doe was under a duty to calculate accurately the days plaintiff served, either in custody or on parole, and to credit him for this time against his sentence of incarceration, and that John Doe intentionally failed to do so. According to the amended complaint, John Doe caused plaintiff to be arrested on a warrant that he had no objectively reasonable good faith belief was valid because he knew or acted with deliberate indifference to the fact that the Parole Board had failed to credit plaintiff's sentence following plaintiff's February 22, 1988 release and had waived jurisdiction over plaintiff. Durham alleges that, as a result of these intentional acts and omissions, he was unlawfully arrested and held in custody both in Ohio and in Massachusetts. Once again, the predicate for the proposition that Durham had fully served his time is the assumption that the Commonwealth was obligated, as a matter of fundamental fairness, to credit him with the days he was at liberty while it made no diligent efforts to locate him.
John Doe argues that this claim is also barred by the statute of limitations. Because there is no federal state of limitations applicable to § 1983 actions, state law provides the limitation period. The statute of limitations that applies is the general statute of limitations governing personal injury actions. Owens v. Okure, 488 U.S. 235, 236 (1989); Wilson v. Garcia, 471 U.S. 261 (1985). The statute of limitations applied to § 1983 actions in Massachusetts is G.L.c. 260, § 2A, which requires an action to be commenced within three years of the date upon which the cause of action accrued.
Plaintiff moves, pursuant to M.R.Civ.P. 56(f), for leave to oppose summary judgment on Count II only to enable Durham to ascertain, through discovery, the identity of John Doe. That motion has been denied. Rule 56 (f) provides that "[s]hould it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just." Durham's motion fails to set forth any reasons why the identity of John Doe is relevant at this time. Commonwealth v. Fall River Motor Sales, Inc., 409 Mass. 302, 307-308 (1991). The identity of John Doe is not essential for Durham to justify his opposition to the statute of limitations argument raised by John Doe and, even if were essential to the other defenses asserted by John Doe — qualified immunity and no reasonable expectation that Durham will prove knowledge or deliberate indifference — those additional grounds have not been reached by the court. Furthermore, the defendants served their motion to dismiss or for summary judgment and supporting memorandum of law on May 15, 1995, subject to Superior Court Rule 9 opposition procedure. Durham served his opposition on July 5, 1995. The Commonwealth filed a supplemental memorandum on August 8, 1995. Not until October 11, 1995, on the day of hearing, did Durham orally request that a decision not be rendered with respect to summary judgment on the § 1983 count until the plaintiff was able to ascertain, through discovery, the identity of "John Doe." A written motion followed the next day. It was not accompanied by an affidavit. Durham had available to him records of the Massachusetts Parole Board and the Department of Correction. Portions of such records filed herein contain the names of Durham's parole officers, the out of state coordinator, the legal assistant who was asked to begin the governor's warrant process, the chairman and executive director of the Parole Board as well as the initials of the individual who requested the legal department to secure the paperwork for the governor's warrant in 1991. Attached to a June, 1991 letter from the chairman of the Parole Board to the Governor requesting issuance of a requisition upon the Governor of the State of Ohio for the rendition of Warren Durham is a statement signed by two employees of the Massachusetts Parole Board and Special State Police Officers stating that Durham had broken the terms and condition of his parole and was a fugitive from justice. Durham had access to all these documents and ample time to conduct formal or informal discovery before and after the filing of the defendants' motion, and to move to compel responses to discovery if the Commonwealth had failed to respond or had objected to discovery requests pertaining to the identity and actions of John Doe. He did not do so and offers no reasons, persuasive or otherwise, for his failure to obtain what he now maintains is information "essential to justify his opposition." Under these circumstances, a continuance or denial of John Doe's summary judgment motion is inappropriate. See First National Bank of Boston v. Slade, 379 Mass. 243, 244-245 (1979); Atlas Tack Corp. v. DiMasi, 37 Mass. App. Ct. 66, 67 n. 2 (1994).
Even though a state statute of limitations is borrowed for determining the period of limitations, when a cause of action accrues under § 1983 is determined by federal, not state, law. Rodriguez Narvaez v. Nazario, 895 F.2d 38, 41 n. 5 (1st Cir. 1990). A cause of action under § 1983 accrues when the plaintiff's interests are invaded, Altair Corp. v. Pesquera De Busquets, 769 F.2d 30, 32 (1st Cir. 1985), and the plaintiff knows or has reason to know of the injury which is the basis of the action. Torres v. Superintendent of Police, 893 F.2d 404, 407 (1st Cir. 1990). Continuing unlawful acts are required to find a continuing violation of § 1983 rights. Altair Corp., supra at 32-33. Cf. Delaware State College v. Ricks, 449 U.S. 250, 257-259 (1980) (employment discrimination accrues on date of the challenged conduct even if it precedes the date of discharge).
In a civil rights action alleging an unconstitutional act resulting in the plaintiff's imprisonment, a § 1983 action based upon that act accrues when the plaintiff is arrested and convicted and not when the incarceration ends. Sandutch v. Muroski, 684 F.2d 252, 254 (3d Cir. 1982). See also McCune v. Grand Rapids, 842 F.2d 903, 906 (6th Cir. 1988) (§ 1983 suit based on wrongful arrest and wrongful continued incarceration accrues at time of arrest); Moore, supra at 843 (§ 1983 claim based upon acts amounting to false arrest and false imprisonment accrues upon arrest). When, as here, the violation of constitutional rights that is alleged results in "continuing ill effects from pre-conviction acts," and not unlawful acts within the limitation period, the violation of constitutional rights is not a continuing tort. Sandutch, supra at 254; McCune, supra at 907. Cf. Maslauskas, supra at 351-352.
State courts are divided as to when the tort of false imprisonment accrues. Some hold that the statute of limitations for false imprisonment commences to run from the termination of the plaintiff's incarceration. E.g., O'Fallon v. Pollard, 427 N.W.2d 809, 811 (N.D. 1988); Reese v. Clayton County, 363 S.E.2d 618, 619-620 (Ga.Ct.App. 1987). See generally Restatement of Torts (Second) § 899, comment c. Other courts hold that the common law tort of false imprisonment accrues upon the commission of the wrongful act. E.g., Buvens v. Buvens, 286 So.2d 144, 147 (La.Ct.App. 1973); Moore v. McComsey, 459 A.2d 841, 843 (Pa.Super.Ct. 1983). See also Whitsell v. Rodrigues, 351 F. Supp. 1042, 1045 (E.D. La. 1972) (construing Louisiana law as holding that cause of action for false imprisonment is complete once the act leading to the harm is accomplished, but limitations period does not run until release from incarceration, and plaintiff's recovery is limited to those damages, if any, incurred during the limitations period preceding the commencement of the action).
Nothing in Heck v. Humphrey, 512 ___ U.S. ___, 114 S. Ct. 2364 (1994), requires a different result. The closest analogy to the § 1983 claim in Heck was the common law tort of malicious prosecution. Id. at 2371. As an essential element of his § 1983 cause of action, the plaintiff was required to plead and prove that his criminal conviction or sentence had been reversed, expunged, invalidated, or impugned by the grant of a writ of habeas corpus. Id. at 2372. In that context, the Court held that the § 1983 claim, just as a cause of action for malicious prosecution, would not accrue while the state challenges were being pursued. Id. at 2372, 2374. Here, by contrast, Durham's asserted cause of action was ripe as soon as he was injured by being returned to Massachusetts on the basis of his parole revocation warrant. The record demonstrates that Durham either knew of the injury which is the basis of his action or had reason to know of that injury. Accordingly, Durham's § 1983 claim is time-barred.
Indeed, Durham concedes that construing Heck to mean that, unless and until plaintiff's claim for declaratory relief is allowed, his § 1983 cause of action has not arisen could postpone the running of the statute of limitations indefinitely. Nothing in Heck provides any basis for this court to select, instead, plaintiff's release from custody as the "logical" date to begin the running of the limitation period.
Count III: Declaratory Relief
Count III seeks a declaration either that plaintiff's sentence expired as of July 24, 1988 due to his being entitled to credit for the period of time he was "constructively restored to parole" upon being released from custody on February 22, 1988, or that defendant waived jurisdiction over plaintiff prior to May 14, 1991 by failing to take reasonable steps to execute the parole violation warrant and violated his Fourth and Fourteenth Amendment rights in causing him to be taken into custody on May 14, 1991. Declaratory relief is not available unless there is an actual controversy. G.L.c. 231A, § 1. Durham has been released from custody. This matter is now moot. In re Zullo, supra at 878.
ORDER
For the foregoing reasons, it is hereby ORDERED that the motion for summary judgment of defendants the Commonwealth of Massachusetts and John Doe be, and hereby is, ALLOWED.
E. Susan Garsh Justice of the Superior Court
Dated: January, 1996