V. Howell v. Jimmy Farris, et al

Filing

OPINION filed : AFFIRMED. Decision not for publication. Danny J. Boggs (AUTHORING), Eric L. Clay, and Ronald Lee Gilman, Circuit Judges.

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 16a0381n.06
Case No. 15-6254
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

FILED
V. CALVIN HOWELL,
Plaintiff-Appellant,
v.
JIMMY FARRIS, individually and in his
capacity as Building and Code Enforcement
Officer; SHEILA DELLINGER, in her official
capacity as City Administrator; CITY OF
BOLIVAR, a municipal corporation of the
State of Tennessee in its own capacity;
BARRETT STEVENS, in his official capacity
as Mayor of Bolivar; TRACY BYRUM,
JAMES FUTRELL, TERESA GOLDEN,
RANDY HILL, TODD LOWE, LARRY
ALLEN MCKINNIE, WILLIE MCKINNIE,
and DAVID RHEA, in their official capacities
as members of the City Council,
Defendants-Appellees.

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Jul 07, 2016
DEBORAH S. HUNT, Clerk

ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR
THE WESTERN DISTRICT OF
TENNESSEE

BEFORE: BOGGS, CLAY, and GILMAN, Circuit Judges.
BOGGS, Circuit Judge. In 2011, V. Calvin Howell sought building permits from the
City of Bolivar to make improvements to three properties he owned. Howell’s requests were
denied, and he sued various city officials under 42 U.S.C. § 1983 for violations of the First
Amendment, the Fourteenth Amendment, and the Tennessee Open Meetings Act. The district
court dismissed the suit because Howell’s federal claims were barred by the statute of

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limitations, which left the court without supplemental jurisdiction to hear his state-law claims.
We affirm.
Howell’s first argument is that a district court may not grant a motion to dismiss based on
the statute of limitations. Howell cites the magistrate judge’s report in Sanders v. Williams
Equipment & Supply Co., which stated that “the statute of limitations issue in most cases cannot
be decided on a motion to dismiss or from the face of a plaintiff’s complaint.” No. 09–02281–
A/P, 2010 WL 5575483, at *4 (W.D. Tenn. Dec. 29, 2010) (quoting United States v. Carrell, 681
F. Supp. 2d 874, 888 (M.D. Tenn. 2009)), adopted by, No. 09–2281–STA–tmp, 2011 WL
111713, at *1 (W.D. Tenn. Jan. 13, 2011). The magistrate judge in that case made that statement
in the context of explaining that, as “a general rule, a plaintiff is not required to plead facts
placing a claim within the limitations period ‘because the statute of limitations is an affirmative
defense for which the defendant bears the burden of proof.’” Ibid. (quoting Carrell, 681 F.
Supp. 2d at 888). However, the magistrate judge went on to note that the “Sixth Circuit has held
. . . that a plaintiff may have an obligation to plead facts in avoidance of the statute of limitations
defense if ‘it is apparent from the face of the complaint that the time limit for bringing the
claim[s] has passed.’” Ibid. (alteration in original) (quoting Carrell, 681 F. Supp. 2d at 888).
The magistrate judge then concluded that the documents in the record “clearly demonstrate[d]
that Sanders filed his discrimination charge long after the statute of limitations had run,” and
concluded that “his Title VII and THRA claims are time-barred.” Ibid.
Having put Sanders in context, it is clear that we must decide whether “it is apparent
from the face of the complaint that the limit for bringing the claim[s] has passed.” Bishop v.
Lucent Technologies, Inc., 520 F.3d 516, 520 (6th Cir. 2008) (alteration in original) (quoting
Hoover v. Langston Equip. Assocs., Inc., 958 F.2d 742, 744 (6th Cir. 1992)). We review the

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district court’s decision on that question de novo. See Cooey v. Strickland, 479 F.3d 412, 415
(6th Cir. 2007).
“The statute of limitations applicable to a § 1983 action is the state statute of limitations
applicable to personal injury actions under the law of the state in which the § 1983 claim arises.”
Eidson v. Tenn. Dep’t of Children’s Servs., 510 F.3d 631, 634 (6th Cir. 2007). Our court has
previously held that the applicable limitations period in Tennessee is one year, based on Tenn.
Code Ann. § 28–3–104(a). Hughes v. Vanderbilt Univ., 215 F.3d 543, 547 (6th Cir. 2000);
Berndt v. Tennessee, 796 F.2d 879, 883 (6th Cir. 1986). Although the applicable time period is
borrowed from state law, the “date on which the statute of limitations begins to run in a § 1983
action is a question of federal law.” Eidson, 510 F.3d at 635. “Ordinarily, the limitation period
starts to run when the plaintiff knows or has reason to know of the injury which is the basis of his
action.” Ibid. “[I]n determining when the cause of action accrues in section 1983 actions, we
have looked to what event should have alerted the typical lay person to protect his or her right.”
Ibid. (alteration in original) (quoting Kuhnle Bros., Inc. v. County of Geauga, 103 F.3d 516, 520
(6th Cir. 1997)).
According to Howell’s complaint, his first request for building permits was denied on
June 6, 2011, by the City of Bolivar’s Building and Code Enforcement Officer, Jimmy Farris.
Farris later denied Howell’s requests on several other occasions, leading Howell to seek recourse
from the Mayor, and subsequently, the City Council. Howell went to the City Council on
January 8, 2013, and on February 12, 2013, and each time the City Council refused to consider
Howell’s request. These denials and refusals are the injuries that form the basis of his federal
constitutional claims, and as such, he should have known of their existence by February 12,
2013, at the latest. That Howell sought the assistance of an attorney, who drafted a letter to

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Mayor Barrett Stevens dated February 26, 2013, further bolsters this conclusion. In that letter,
Howell’s attorney stated: “It is my opinion that the City of Bolivar . . . has wrongfully and
unlawfully refused Mr. Howell his requested building permits. . . . For reasons I can not
understand, the City singled Mr. Howell out for treatment in this regard different than other
similarly situated residents.” This letter suggests that, as of February 26, 2013, Howell was well
aware of the injuries underlying his claims. Howell filed his suit on February 10, 2015, nearly
two years after that date, which means that his suit is barred by the one-year statute of
limitations.
To rebut this conclusion, Howell argues that he discovered the basis of his claims during
depositions taken in state-court litigation that occurred within one year of the date on which he
filed his suit. That argument is unpersuasive.
Howell’s First Amendment claims are based on an alleged deprivation of his rights to
“protes[t] Defendants’ unlawful treatment of him” and “appeal . . . to the Bolivar City Council.”
Howell alleges that the defendants took “adverse action . . . that would be likely to chill a person
of ordinary fitness when continuing to engage in that activity.” Even if we assume that the
defendants’ actions did in fact violate Howell’s free-speech rights, Howell would surely have
known of the injuries when the speech-chilling conduct took place and not at a subsequent
deposition.
A similar problem afflicts Howell’s due-process claims. Those claims are based on the
defendants’ allegedly “arbitrar[y] and capriciou[s] deni[al]” of the building permits, and their
“refus[al] to hear Plaintiff’s appeal of the denial of the building permits.” Again, Howell should
have known of the existence of these injuries at the time they occurred, i.e., when his building

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permits were allegedly denied without a reasonable basis and when the City Council refused to
hear his requests.
As for his equal-protection claims, Howell alleges that the defendants “engaged in a
policy, pattern and practice of selectively and vindictively enforcing unlawful decisions against
Plaintiff,” and “segregated Plaintiff from other citizens of the City of Bolivar since they refused
to allow the Plaintiff to appeal the refusal of the issuance of the building permits on two separate
occasions at the City Council meeting.” Howell argues on appeal that it was only during
subsequent state-court depositions that he “learned for the first time” that “he had been treated
differently from all other citizens of Hardeman County, Tennessee.” This argument is undercut
by the fact that Howell’s attorney sent a letter to Mayor Stevens on February 26, 2013, arguing
that “the City has singled Mr. Howell out for treatment in this regard different than other
similarly situated residents.” Given that Howell’s attorney spelled out the terms of his equalprotection claim in this letter, Howell clearly had enough information on February 26, 2013, to
know about the injury forming the basis of his equal-protection claim.
Because Howell did not bring his federal § 1983 claims within the one-year time period
set forth in Tennessee’s statute of limitations, the district court was correct to dismiss those
claims.

Furthermore, because Howell’s federal claims were dismissed, the district court

correctly dismissed his state-law claims as well. See 28 U.S.C. § 1367(c)(3). The decision of the
district court is therefore AFFIRMED.

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