655 S.E.2d 199
Charles E. Canterbury, appellant (hereinafter Mr. Canterbury), appeals an order of the Circuit Court of Fayette County granting summary judgment in favor of the appellees, Sheriff William R. Laird, Deputy Sheriff J.E. Sizemore, former prosecutor Paul Blake, (See footnote 1) and the Fayette County Commission. (See footnote 2) Here, Mr. Canterbury contends that the circuit court committed error in granting summary judgment on his liability theories of false arrest and malicious prosecution. After a careful review of the briefs and record on appeal, and listening to the arguments of the parties, we affirm.
On June 23, 2003, this Court issued an opinion granting Mr. Canterbury the
writ of prohibition. See State ex rel. Canterbury v. Blake, 213 W. Va. 656, 584 S.E.2d 512
(2003). In that opinion, this Court held that under the doctrine of desuetude, W. Va. Code
§ 61-3-51 could not be enforced against Mr. Canterbury. In fact, the statute had never been
enforced since its enactment in 1981.
On August 16, 2004, Mr. Canterbury instituted the instant civil action against the appellees. The complaint alleged the following causes of action: (1) false arrest, (2) conspiracy, (3) malicious prosecution and/or retaliation, (4) selective prosecution, (5) failure to intercede, (6) supervisory and/or municipal liability, and (7) negligence. After a period of discovery, the appellees moved for summary judgment on all liability theories. (See footnote 5) On December 30, 2005, the circuit court entered an order granting summary judgment in favor of the appellees on all liability theories. Mr. Canterbury filed a petition for appeal with this Court assigning error only to the dismissal of the false arrest and conspiracy liability theories. This Court granted the petition. Subsequently, Mr. Canterbury filed a brief seeking reversal of summary judgment on the false arrest and malicious prosecution liability theories.
The circuit court's order indicated that Mr. Canterbury's claim of false arrest
would have accrued on June 14, 2001, the day he was arrested, processed, arraigned, and
released on bond. Further, the circuit court found that Mr. Canterbury did not file his
complaint until August 11, 2004, more than two years after the expiration of the applicable
statute of limitations. Mr. Canterbury concedes that the one year statute of limitations found
in W. Va. Code § 55-2-12(c) (2000) controls a claim for false arrest. However, Mr.
Canterbury contends that his false arrest claim should have been tolled until the conclusion
of the two criminal actions brought against him. Thus, insofar as the order dismissing the
second prosecution against Mr. Canterbury was filed on August 11, 2003, he contends that
his complaint was timely filed within one year from that date.
This Court has previously noted in passing that torts such as . . . false arrest . . . take the one-year statute of limitations set forth in West Virginia Code § 55-2-12(c). Wilt v. State Auto. Mut. Ins. Co., 203 W. Va. 165, 170, 506 S.E.2d 608, 613 (1998). See Courtney v. Courtney, 190 W. Va. 126, 132, 437 S.E.2d 436, 442 (1993) ('[P]ersonal tort actions such as . . . false arrest . . . take the one-year statute of limitations[.]') (quoting, and overruling on other grounds Rodgers v. Corporation of Harpers Ferry, 179 W. Va. 637, 371 S.E.2d 358 (1988)); Ricottilli v. Summersville Mem'l Hosp., 188 W. Va. 674, 677, 425 S.E.2d 629, 632 (1992) (same). This Court has never squarely addressed the issue of whether or not the statute of limitations for a false arrest claim is tolled until the conclusion of the criminal prosecution. Mr. Canterbury relies upon the dissenting opinion in Wallace v. City of Chicago, 440 F.3d 421 (7th Cir. 2006) (Posner, J., dissenting), for the proposition that the statute of limitation for a false arrest claim should be tolled pending the final outcome of a criminal prosecution.
In Wallace, the plaintiff was arrested, without a warrant, in 1994 by the Chicago police for his role in a murder. The plaintiff was eventually tried and convicted. However, in 2002 the conviction was reversed, and the plaintiff was granted a new trial on the grounds that his arrest was unlawful and therefore it was error to admit his confession into evidence. The prosecutor subsequently decided not to retry the plaintiff. In 2003, the plaintiff filed an action in federal court against the City of Chicago and two police officers. The civil complaint alleged several causes of action, one of which was a claim for false arrest. The federal district court eventually granted summary judgment in favor of the defendants. The plaintiff appealed. However, the Seventh Circuit Court of Appeals affirmed. In doing so, the Seventh Circuit addressed the issue of whether or not the statute of limitations for the false arrest claim was tolled until the defendant's criminal conviction was reversed.
Wallace made clear that federal courts were divided on the issue of whether or not the statute of limitations is tolled on a claim for false arrest. Wallace stated that the Second, Fourth, Fifth, Sixth, and Ninth Circuits have held that false arrest claims that would undermine the defendant's conviction cannot be brought until the conviction is nullified.
Wallace, 440 F.3d at 428 (citations omitted). On the other hand, [t]he First, Third, Eighth,
Tenth, and Eleventh Circuits have held that false arrest claims accrue at the time of the
arrest. Wallace, 440 F.3d at 428 (citations omitted). The Seventh Circuit decided to align
itself with the appellate courts that did not allow the statute of limitations to be tolled on a
false arrest claim:
Individuals and attorneys who wish to preserve a claim for false arrest or similar Fourth Amendment violations should file their civil rights action at the time of arrest. It will still be possible, of course, for a district court to stay any such action until the criminal proceedings are concluded, should it conclude in its discretion that a stay would be useful.
Wallace, 440 F.3d at 427. The dissenting opinion, on which Mr. Canterbury relies, disagreed with the majority opinion. The dissent argued that the better approach would be to allow the statute of limitations for a false arrest claim to be tolled when the claim's validity would cause a conviction to be overturned.
The opinion in Wallace was appealed to the United States Supreme Court. Subsequent to Mr. Canterbury filing his brief, the Supreme Court issued an opinion in Wallace affirming the decision of the Seventh Circuit. In doing so, the Supreme Court held:
We hold that the statute of limitations upon a § 1983
claim seeking damages for a false arrest in violation of the
Fourth Amendment, where the arrest is followed by criminal
proceedings, begins to run at the time the claimant becomes
detained pursuant to legal process. Since in the present case this
occurred . . . more than two years before the complaint was
filed, the suit was out of time. The judgment of the Court of
Appeals is affirmed. Wallace v. Kato, ___ U.S. ___, ___, 127 S. Ct. 1091, 1100, 166 L. Ed.2d 973, 986 (2007). See Dailey v. Smiley, 410 N.Y.S.2d 468, 469 (N.Y.S.2d 1978) (The statute of limitations
began to run on the false arrest . . . claim . . . on . . . the date that plaintiff . . . was arrested
and released on bail.).
Assuming, for the sake of argument, that this Court adopted the position advocated by the dissenting appellate judge in Wallace, the dissent would not help Mr. Canterbury. A central requirement for tolling the statute of limitations on a claim for false arrest is that proof of the validity of the claim must undermine a conviction. For example, in Wallace the police obtained crucial evidence against the plaintiff, a confession, as a direct result of the illegal arrest. In that situation the validity of the claim for false arrest undermined the conviction and resulted in the conviction being reversed.
In the instant case the record is clear. Proof of the validity of Mr. Canterbury's false arrest claim would have had no impact on a possible conviction in his criminal case. (See footnote 7) Therefore, even if this Court adopted the tolling exception, the facts in Mr. Canterbury's case would not have triggered that exception. Consequently, we must affirm the circuit court's ruling finding the false arrest claim was not timely filed. (See footnote 8)