The opinion of the court was delivered by: HARRIS
Stanley S. Harris, United States District Judge.
This matter is before the Court on defendant District of Columbia's motion to dismiss the complaint or, in the alternative, for summary judgment, and on the motion of defendants Frederick Lewis and Joseph Harris to dismiss the complaint. Upon consideration of the parties' submissions and the entire record, the Court concludes that defendants' motions should be granted.
Plaintiff alleges that at approximately 1:00 a.m. on December 25, 1985, he was sleeping in a warehouse owned by C & S Paper Storage Company. Plaintiff had become intoxicated the previous afternoon. Plaintiff alleges that he was roused by various officers of the Metropolitan Police Department (MPD), including defendant officers Lewis, Harris, and Bryan Paige.
According to plaintiff's account, the officers drew their guns and ordered plaintiff to climb down from the roll of paper on which he had been sleeping. Plaintiff complied immediately, climbing down and standing in front of the officers. Officer Lewis then allegedly struck plaintiff without provocation. The trained police dog, which was under Officer Lewis' direction, attacked the plaintiff, inflicting severe bite wounds to the groin area. According to the complaint, defendants then agreed to cover up their unlawful activity. As a result of the incident, plaintiff sustained painful and permanent injuries to his penis and urinary tract. He has incurred medical expenses and is likely to incur additional medical expenses in the future. Plaintiff also claims mental distress, as well as the humiliation of having been subjected to manufactured criminal charges. As a result, plaintiff filed this complaint alleging violation of 42 U.S.C. §§ 1981, 1983, 1985, and 1986. Plaintiff also alleges common law negligence, assault and battery, and false arrest and imprisonment. He seeks a total of $ 4,000,000 in compensatory damages and $ 20,000,000 in punitive damages. Defendants move to dismiss on procedural grounds, arguing that all but the negligence claim are barred by the applicable statutes of limitations and that the negligence claim is barred by failure to comply with the District of Columbia's notice requirement.
In Wilson v. Garcia, 471 U.S. 261, 105 S. Ct. 1938, 85 L. Ed. 2d 254 (1985), the Supreme Court held that "the borrowing principle contained in § 1988 . . . is fairly construed as a directive to select, in each State, the one most appropriate statute of limitations for all § 1983 claims." Id. 105 S. Ct. at 1947. In so ruling, the Court was seeking to eliminate a practice in the circuits of applying multiple statutes of limitations to claims arising under § 1983. See id. at 1945-47. In resolving the question of which limitations period should apply to § 1983 actions, the Court adopted the reasoning of the Tenth Circuit, agreeing that "the tort action for the recovery of damages for personal injuries is the best alternative available." Id. at 1947.
In Garcia, the Supreme Court left one important question unanswered: In states that distinguish between intentional torts and other personal injury claims for statute of limitation purposes, which limitations period should apply? This is the issue presented here. If the one-year period of limitations for intentional torts is borrowed, plaintiff's claim is barred. See D.C. Code § 12-301(4) (1981).
Conversely, if the "catch-all" provision governs, D.C. Code § 12-301(8) (1981), plaintiff had three years in which to file his claim.
The issue has not been settled in this circuit. Although the Court of Appeals for the District of Columbia Circuit recently ruled that § 1981 actions are governed by the District's three-year personal injury statute of limitations, see Banks v. Chesapeake & Potomac Tel. Co., 256 U.S. App. D.C. 22, 802 F.2d 1416, 1424 (D.C. Cir. 1986), the issue with respect to § 1983 claims has never been squarely presented. See id. at 1427.
At least one District Court faced with this question held that § 12-301(8) applies to § 1983 actions brought in the District of Columbia. See Hobson v. Brennan, 625 F. Supp. 459, 466 (D.D.C. 1985). This Court respectfully declines to follow Hobson's lead, finding for the reasons set forth below that § 12-301(4) should govern.
As noted, §§ 12-301(4) and (8) distinguish between intentional and negligent personal injury. Since the Supreme Court's decision in Garcia, three circuits that have confronted this distinction have concluded that the limitations period for intentional, rather than negligent, personal injury should be applied to § 1983 causes of action. See Mulligan v. Hazard, 777 F.2d 340 (6th Cir. 1985), cert. denied, 476 U.S. 1174, 106 S. Ct. 2902, 90 L. Ed. 2d 988 (1986); Gates v. Spinks, 771 F.2d 916 (5th Cir. 1985), cert. denied, 475 U.S. 1065, 106 S. Ct. 1378, 89 L. Ed. 2d 603 (1986); Jones v. Preuit & Mauldin, 763 F.2d 1250 (11th Cir. 1985), cert. denied, 474 U.S. 1105, 106 S. Ct. 893, 88 L. Ed. 2d 926 (1986). In reaching their conclusions as to which limitations period should be applied, all three circuits emphasized the close relationship between causes of action under § 1983 and intentional torts. In Mulligan, the Sixth Circuit reasoned that given congressional interest in "perpetuators [ sic ] of intentional tortious conduct," Ohio's statute of limitations for intentional tort actions "more specifically encompasses the sorts of actions which concerned Congress when it enacted the civil rights statutes." Mulligan, 777 F.2d at 344. Similarly, the Eleventh Circuit found that the "essential nature" of § 1983 claims is more analogous to "trespass," which requires intentional causation of injury, than to "trespass on the case," which requires indirect harm. See Jones, 763 F.2d at 1254. Looking to legislative history, the Court stated: "The paradigmatic personal injuries covered by the statute, those that motivated the Congress to take action, were acts of intentional and direct violence on the part of the Ku Klux Klan." Id. at 1255. Finally, the Fifth Circuit reminds us that "most 1983 actions are predicated on intentional rather than negligent acts. Also, . . . 1983 was enacted for the purpose of redressing injuries from intentional misconduct. It follows that the 1983 action is more analogous to intentional torts . . . ." Gates, 771 F.2d at 920. This Court agrees with the Fifth, Sixth, and Eleventh Circuits that § 1983 claims, in the main, most closely resemble intentional torts. This conclusion is consistent with Judge Buckley's concurrence in Banks : "If Garcia governs this case, it requires us to borrow the local statute governing most intentional personal injury claims, D.C. Code § 12-301(4), rather than the catch-all statute of D.C. Code § 12-301(8)." Banks, 802 F.2d at 1416 (Buckley, J., concurring).
The alleged injury occurred on December 25, 1985, but plaintiff's complaint was not filed until March 24, 1987. Because this Court finds that the appropriate statute of limitations is D.C. Code § 12-301(4), which prescribes a one-year period, plaintiff's § 1983 claim is extinguished. Furthermore, as plaintiff has conceded that his other claims under Count One ...