Filed: Apr. 20, 2009
Latest Update: Mar. 02, 2020
Summary: RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 File Name: 09a0153p.06 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT _ X - SHA’REWA BONNER, - Plaintiff-Appellant, - - No. 08-5562 v. , > DAVID PERRY, individually and in his official - capacity as an employee of the Department of - - - Probation and Parole, Defendant, - - - - COMMONWEALTH OF KENTUCKY - DEPARTMENT OF CORRECTIONS, Defendant-Appellee. N Appeal from the United States District Court for the Western Distr
Summary: RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 File Name: 09a0153p.06 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT _ X - SHA’REWA BONNER, - Plaintiff-Appellant, - - No. 08-5562 v. , > DAVID PERRY, individually and in his official - capacity as an employee of the Department of - - - Probation and Parole, Defendant, - - - - COMMONWEALTH OF KENTUCKY - DEPARTMENT OF CORRECTIONS, Defendant-Appellee. N Appeal from the United States District Court for the Western Distri..
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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 09a0153p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
X
-
SHA’REWA BONNER,
-
Plaintiff-Appellant,
-
-
No. 08-5562
v.
,
>
DAVID PERRY, individually and in his official -
capacity as an employee of the Department of -
-
-
Probation and Parole,
Defendant, -
-
-
-
COMMONWEALTH OF KENTUCKY
-
DEPARTMENT OF CORRECTIONS,
Defendant-Appellee. N
Appeal from the United States District Court
for the Western District of Kentucky at Louisville.
No. 07-00666—Charles R. Simpson III, District Judge.
Argued: March 12, 2009
Decided and Filed: April 20, 2009
*
Before: MOORE and WHITE, Circuit Judges; OLIVER, District Judge.
_________________
COUNSEL
ARGUED: Kirsten R. Daniel, OLDFATHER LAW FIRM, Louisville, Kentucky, for
Appellant. Brenn Oliver Combs, JUSTICE AND PUBLIC SAFETY CABINET,
Frankfort, Kentucky, for Appellee. ON BRIEF: Ann B. Oldfather, Vicki Lynn Buba,
OLDFATHER LAW FIRM, Louisville, Kentucky, for Appellant. Brenn Oliver Combs,
JUSTICE AND PUBLIC SAFETY CABINET, Frankfort, Kentucky, for Appellee.
*
The Honorable Solomon Oliver, Jr., United States District Judge for the Northern District of
Ohio, sitting by designation.
1
No. 08-5562 Bonner v. Perry, et al. Page 2
_________________
OPINION
_________________
KAREN NELSON MOORE, Circuit Judge. Plaintiff-Appellant Sha’rewa
Bonner (“Bonner”) appeals the district court’s dismissal of her claim, brought under 42
U.S.C. § 1983, against the Commonwealth of Kentucky Department of Corrections
(“DOC”).1 Citing our decision in Collard v. Kentucky Board of Nursing, 896 F.2d 179
(6th Cir. 1990), the district court applied a one-year statute of limitations to Bonner’s
claim and concluded that the claim was filed outside the limitations period. Bonner’s
sole contention on appeal is that Collard was wrongly decided, and thus that we should
overrule the decision. Because we do not have the power to overrule an earlier
published Sixth Circuit decision under the instant circumstances, we AFFIRM the
district court’s dismissal.
I. FACTS AND PROCEDURE
The facts of this case are undisputed for the purposes of this stage of the
litigation. David Perry (“Perry”) was a probation officer for DOC who supervised
Bonner’s probation from 1999 until at least May 2004. From December 2003 until May
2004, “Perry routinely forced Bonner to engage in sexual acts with him,” Record on
Appeal (“ROA”) at 9 (Compl. ¶ 26), and threatened Bonner that he would have her
probation revoked if Bonner did not comply with Perry’s demands. Eventually, Bonner
reported the abuse to the police, who investigated and “discovered that Perry had
similarly sexually abused, intimidated and threatened at least six women under his
supervision from 1999 until June 2004, in his capacity as a probation officer working for
[] DOC.” ROA at 10 (Compl. ¶ 33). Perry admitted the alleged abuse, pleaded guilty
to criminal charges stemming from these incidents, and received a prison term of five
years.
1
As explained below, this appeal concerns only DOC’s motion to dismiss. David Perry (“Perry”)
filed a motion to dismiss that was granted on May 19, 2008; however, Bonner did not file a notice of
appeal from that order, nor did she file an amended notice of appeal from the final judgment in the case.
No. 08-5562 Bonner v. Perry, et al. Page 3
Bonner filed this action against both Perry and DOC in the United States District
Court for the Western District of Kentucky on December 3, 2007, asserting that the
defendants violated 42 U.S.C. § 1983 and various state laws. DOC filed a motion to
dismiss on December 20, 2007, alleging that a one-year statute of limitations applied to
§ 1983 actions arising in Kentucky, and that Bonner had filed her action outside the
limitations period. The district court concluded that our decision in Collard mandated
that a one-year statute of limitations applied in this case. Because Bonner alleged that
DOC “violated her civil rights from December 2003 to May 2004,” the district court
concluded that Bonner’s action was filed “well outside the one-year limitation period,”
and granted DOC’s motion to dismiss. ROA at 47 (03/20/08 Dist. Ct. Op. and Order)
(entered on district court docket sheet 03/24/08). Bonner filed a notice of appeal
regarding this grant of summary judgment to DOC on April 21, 2008. This is the only
notice of appeal that Bonner has filed in this action. Perry subsequently filed a motion
to dismiss, which the district court granted on May 16, 2008. This order was entered on
the district court docket sheet on May 19, 2008; however, a separate entry of judgment
was never filed.
II. ANALYSIS
A. Appellate Jurisdiction
Although the parties did not raise the issue of appellate jurisdiction in their briefs,
“we are under an independent obligation to police our own jurisdiction,” and thus we can
raise the issue of jurisdiction sua sponte. S.E.C. v. Basic Energy & Affiliated Res., Inc.,
273 F.3d 657, 665 (6th Cir. 2001).2 With certain limited exceptions not applicable here,
we have jurisdiction only over appeals from final decisions of a district court. 28 U.S.C.
§ 1291. Moreover, “[a]n appeal permitted by law as of right from a district court to a
2
We provided the parties with an opportunity to brief the issue of appellate jurisdiction in letter
briefs. DOC, in addition to filing a letter brief regarding appellate jurisdiction, filed several other motions,
including a motion to dismiss for lack of jurisdiction, a motion to set aside oral argument, and a motion
to allow counsel to withdraw. We denied DOC’s motion to set aside oral argument on March 6, 2009.
Bonner v. Perry, No. 08-5562 (6th Cir. Mar. 6, 2009). Because we conclude that we do have jurisdiction
to the hear the appeal, as explained below, we deny DOC’s motion to dismiss for lack of jurisdiction.
Additionally, because we hold that the district court correctly dismissed the action against DOC as time-
barred, DOC’s motion to allow counsel to withdraw is moot.
No. 08-5562 Bonner v. Perry, et al. Page 4
court of appeals may be taken only by filing a notice of appeal with the district clerk
within the time allowed by Rule 4” of the Federal Rules of Appellate Procedure. Fed.
R. App. P. 3(a)(1).
A notice of appeal must be filed “within 30 days after the judgment or order
appealed from is entered.” Fed. R. App. P. 4(a)(1)(A). A judgment not based on Federal
Rules of Civil Procedure 50(b), 52(b), 54, 59, or 60 is not entered until either (1) the
judgment “is set out in a separate document” that is entered on the district court docket
sheet; or (2) “150 days have run from the entry [of the judgment or order] in the civil
docket.” Fed. R. Civ. P. 58(c)(2); see also Fed. R. App. P. 4(a)(7) (defining entry of
judgment for Fed. R. App. P. 4(a) purposes). However, “[a] notice of appeal filed after
the court announces a decision or order—but before the entry of the judgment or
order—is treated as filed on the date of and after the entry.” Fed. R. App. P. 4(a)(2).
A grant of partial summary judgment that does not dispose of all parties and all
claims is generally not immediately appealable unless the district court issues a Fed. R.
Civ. P. 54(b) certificate. See Akers v. Alvey, 338 F.3d 491, 495 (6th Cir. 2003) (noting
that “a partial grant of summary judgment is not ordinarily appealable” absent Rule
54(b) certification); Levy v. Yenkin-Majestic Paint Corp.,
893 F.2d 1334 (6th Cir. 1990)
(unpublished order) (“In the absence of certification as a final judgment under Fed. R.
Civ. P. 54(b), an order disposing of fewer than all parties or claims in an action is not a
final, appealable order.” (citing William B. Tanner Co. v. United States,
575 F.2d 101,
102 (6th Cir. 1978))); see also EEOC v. Nw. Airlines, Inc.,
188 F.3d 695, 700 (6th Cir.
1999) (noting that “[t]he district court must certify that a partial summary judgment may
be appealed immediately”). A grant of partial summary judgment merges into a final
judgment and can be reviewed upon appeal of the final judgment. 15B CHARLES ALAN
WRIGHT, ARTHUR R. MILLER, & EDWARD H. COOPER, FEDERAL PRACTICE AND
PROCEDURE: JURISDICTION 2d § 3914.28 (2d ed. 1991 & 2008 Supp.). Moreover, a
grant of partial summary judgment becomes a final judgment when a district court
thereafter disposes of all remaining claims and parties. Porter v. Williams,
436 F.3d 917,
920 (8th Cir. 2006) (“[A grant of] partial summary judgment becomes a final judgment
No. 08-5562 Bonner v. Perry, et al. Page 5
once the remaining parts of the case are dismissed or otherwise resolved.”); J.D. Pharm.
Distribs., Inc. v. Save-On Drugs & Cosmetics Corp.,
893 F.2d 1201, 1208 (11th Cir.
1990) (concluding that a grant of partial summary judgment became reviewable as a
final order because the one named defendant that was not affected by the grant was later
dismissed).
The instant appeal raises several jurisdictional issues. At the time that Bonner
filed her notice of appeal regarding DOC, the grant of partial summary judgment in favor
of DOC was not immediately appealable; Perry was still a party to the action at that time,
there was no final judgment in the action, and no Fed. R. Civ. P. 54(b) order existed.
Therefore, the notice of appeal filed on April 21, 2008 was premature. However, the
district court entered an order dismissing the remaining party (Perry) on May 19, 2008.
The initial grant of partial summary judgment in favor of DOC became reviewable as
a final judgment at that time. Porter, 436 F.3d at 920. Nevertheless, the district court
docket sheet reveals that the district court never complied with the separate-document
requirement of Fed. R. Civ. P. 58(a) by entering a final judgment in the action. Thus,
for purposes of appeal, the final judgment was not entered until 150 days after the entry
of the order dismissing Perry—October 16, 2008. See Fed. R. Civ. P. 58(c). The notice
of appeal from the final judgment was then required to be filed not more than 30 days
later. Therefore, it is clear that the window in which Bonner could file a notice of appeal
from the final judgment is now closed. Bonner has not filed a new notice of appeal from
the final judgment. Thus, we have jurisdiction to hear this appeal only if Bonner’s
premature notice of appeal regarding the order of partial summary judgment for DOC
can be given effect. See Fed. R. App. P. 3(a)(1), 4(a).
We were faced with this exact issue in Gillis v. United States Department of
Health and Human Services, 759 F.2d 565 (6th Cir. 1985). In that case, the district court
dismissed one of several defendants from a lawsuit. The plaintiffs filed a notice of
appeal from that dismissal; subsequently, the district court dismissed all the other
defendants from the case. However, the plaintiffs did not file a new notice of appeal
after the dismissal of the remaining defendants. We were thus “presented with the
No. 08-5562 Bonner v. Perry, et al. Page 6
question of whether a premature notice of appeal is effective to vest this Court with
jurisdiction where the remaining elements of the case have been finally disposed of but
no new notice of appeal has been filed.”
Id. at 569. Citing numerous cases from other
circuits, we concluded that we had jurisdiction to hear the appeal regarding the first
dismissed defendant.
However, Gillis’s scope must be evaluated in light of a subsequent Supreme
Court decision—FirsTier Mortgage Co. v. Investors Mortgage Insurance Co., 498 U.S.
269 (1991). In that case, the Supreme Court was confronted with a premature notice of
appeal, filed after a district judge made an oral decision regarding all claims and parties,
but before the district judge entered a final judgment. The Court interpreted Federal
Rule of Appellate Procedure 4(a)(2) and “conclude[d] that Rule 4(a)(2) permits a notice
of appeal filed from certain nonfinal decisions to serve as an effective notice from a
subsequently entered final judgment.”
Id. at 274. The Court noted that “Rule 4(a)(2)
was intended to protect the unskilled litigant who files a notice of appeal from a decision
that he reasonably but mistakenly believes to be a final judgment, while failing to file
a notice of appeal from the actual final judgment.”
Id. at 276. The Court stressed that
Fed. R. App. P. 4(a)(2) does not “permit[] a notice of appeal from a clearly interlocutory
decision—such as a discovery ruling or a sanction order under Rule 11 of the Federal
Rules of Civil Procedure—to serve as a notice of appeal from the final judgment,” but
instead “Rule 4(a)(2) permits a notice of appeal from a nonfinal decision to operate as
a notice of appeal from the final judgment only when a district court announces a
decision that would be appealable if immediately followed by the entry of judgment.”
Id. at 276.
We are not the first panel of our circuit to consider the effect of FirsTier on
Gillis. In Good v. Ohio Edison Co., 104 F.3d 93 (6th Cir. 1997), a panel of this court
was confronted with a notice of appeal filed after a district court granted partial summary
judgment dismissing one party, but before the aggrieved party obtained a Fed. R. Civ.
P. 54(b) certification. In “hold[ing] that a premature notice of appeal ripens upon the
entry of a proper Rule 54(b) certification,” the panel analogized the situation to Fed. R.
No. 08-5562 Bonner v. Perry, et al. Page 7
App. P. 4(a)(2).
Id. at 95. Good cited both FirsTier and Gillis, noting that each
supported the panel’s holding. During its analysis, the Good panel gave no indication
that it believed FirsTier limited Gillis in any respect.
We agree with Good and conclude that FirsTier does not limit Gillis’s
applicability. Our conclusion is supported by the numerous cases decided in several
circuits that have held, post-FirsTier, that “when the court announces the disposition of
fewer than all claims and a notice of appeal is filed referencing that disposition, the
notice can relate forward to effect an appeal from that disposition as encompassed in a
subsequent final judgment disposing of all claims against all parties.” 16A CHARLES
ALAN WRIGHT, ARTHUR R. MILLER, EDWARD H. COOPER, & CATHERINE T. STRUVE,
FEDERAL PRACTICE AND PROCEDURE: JURISDICTION 4th § 3950.5 (4th ed. 2008) (citing
cases from the First, Second, Fifth, Ninth, and D.C. Circuits to support this proposition).
Moreover, applying Gillis to the instant case, we believe that Bonner’s premature notice
of appeal regarding the grant to DOC of partial summary judgment is sufficient to vest
us with jurisdiction to hear this appeal from the summary judgment granted in favor of
DOC.
We stress, however, that our appellate jurisdiction encompasses only the appeal
of the district court’s dismissal of DOC, not the later dismissal of Perry. “[A] court of
appeals has jurisdiction only over the areas of a judgment specified in the notice of
appeal as being appealed.” JGR, Inc. v. Thomasville Furniture Indus., Inc., 550 F.3d
529, 532 (6th Cir. 2008). Bonner’s notice of appeal specifically stated that she appeals
“the Western District of Kentucky’s Memorandum Opinion and Order entered March
20, 2008.” Notice of Appeal. The district court’s March 20 order addressed only the
dismissal of DOC, not Perry. Moreover, Perry is not named anywhere in the notice of
appeal; to the contrary, the notice of appeal states that “[t]he name of the party against
whom this appeal is taken is Defendant, Commonwealth of Kentucky, Department of
Corrections.”
Id. Thus, Bonner filed a limited notice of appeal, which vests us with
jurisdiction over only the dismissal of DOC. Although the later dismissal of Perry
altered the effectiveness of the premature notice of appeal, it did not and could not
No. 08-5562 Bonner v. Perry, et al. Page 8
change the scope of the notice. Therefore, Bonner is completely incorrect in her
repeated assertions, in her letter brief and at oral argument, that we have jurisdiction to
review the district court’s dismissal of Perry. In order for this court to have such
appellate jurisdiction, Bonner would have had to file a new notice of appeal after Perry
was dismissed, specifying that she appealed from the final judgment in the action. 16A
CHARLES ALAN WRIGHT, ARTHUR R. MILLER, EDWARD H. COOPER, & CATHERINE T.
STRUVE, FEDERAL PRACTICE AND PROCEDURE: JURISDICTION 4th § 3950.5 (4th ed.
2008) (“[T]o the extent [that an appellant such as Bonner] wishes to challenge the
disposition of claims that were not disposed of until the final judgment, it must make
sure to file a notice of appeal, or amended notice of appeal, that encompasses that
disposition.”). Bonner filed no such general notice of appeal from the final judgment,
nor did she amend her notice of appeal from the dismissal of DOC to include Perry.
Therefore, our review is limited to the partial summary judgment in favor of DOC.
B. Standard of Review
We review de novo “a district court’s determination that a complaint was filed
outside of the statute of limitations.” Wolfe v. Perry, 412 F.3d 707, 713 (6th Cir. 2005).
Furthermore, “[a] panel of this Court cannot overrule the decision of another panel. The
prior decision remains controlling authority unless an inconsistent decision of the United
States Supreme Court requires modification of the decision or this Court sitting en banc
overrules the prior decision.” Darrah v. City of Oak Park,
255 F.3d 301, 309 (6th Cir.
2001) (alteration in original) (internal quotation marks omitted).
C. Applicable Statute of Limitations
Congress has failed to legislate a statute of limitations for § 1983 claims, and thus
42 U.S.C. § 1988 mandates that federal courts borrow state-law limitations periods.
Owens v. Okure, 488 U.S. 235, 236, 239 (1989). The Supreme Court, in a series of
cases, has determined that federal courts should “borrow and apply to all § 1983 claims
the one most analogous state statute of limitations.”
Id. at 240. Moreover, the Court has
held that “‘§ 1983 claims are best characterized as personal injury actions,’ [and thus a]
No. 08-5562 Bonner v. Perry, et al. Page 9
State’s personal injury statute of limitations should be applied to all § 1983 claims.”
Id.
at 240-41 (quoting Wilson v. Garcia,
471 U.S. 261, 280 (1985)). However, “where state
law provides multiple statutes of limitations for personal injury actions, courts
considering § 1983 claims should borrow the general or residual statute for personal
injury actions.”
Id. at 249-50.
In Collard, we interpreted and applied Owens to a § 1983 action arising out of
Kentucky. In that case, the plaintiff claimed that the language in Owens that instructs
courts to “borrow the ‘general or residual statute for personal injury actions,’” allowed
a court, in § 1983 cases arising in Kentucky, to apply either the one-year limitations
period found in § 413.140(1)(a)3 of the Kentucky Revised Statutes, what plaintiff
asserted was “the ‘general’ personal injury statute,” or the five-year limitations period
found in § 413.120(6),4 what plaintiff contended was “the ‘residual’ statute.” Collard,
896 F.2d at 181 (quoting
Owens, 488 U.S. at 250). The plaintiff further argued that
“since she sustained no ‘injury to the person’ but, rather, an injury to ‘[her] rights,’”
§ 413.120(6)’s five-year statute of limitations should apply.
Collard, 896 F.2d at 181
(alteration in original). The panel rejected this reading of Owens and, after reviewing
the entirety of §§ 413.120 and 413.140, the panel determined that “Kentucky does not
have ‘multiple’ statutes of limitations for personal injury actions.”
Id. at 181. Rather,
“[§] 413.140(1)(a) is appropriately referenced as the general personal injury limitations
statute.”
Id. at 182. Thus, the panel held that “[§] 1983 actions in Kentucky are limited
by the one-year statute of limitations found in [§] 413.140(1)(a).”
Id.
3
Section 413.140(1)(a) provides:
(1) The following actions shall be commenced within one (1) year after the cause of
action accrued:
(a) An action for an injury to the person of the plaintiff, or of her husband,
his wife, child, ward, apprentice, or servant[.]
Ky. Rev. Stat. Ann. § 413.140(1)(a).
4
This subsection has since been renumbered as § 413.120(7), which provides:
The following actions shall be commenced within five (5) years after the cause of action
accrued:
(7) An action for an injury to the rights of the plaintiff, not
arising on contract and not otherwise enumerated.
Ky. Rev. Stat. Ann. § 413.120(7).
No. 08-5562 Bonner v. Perry, et al. Page 10
Bonner argues that Collard should be overruled. However, Bonner does not cite
any intervening Supreme Court decision that would allow us to reconsider the issue, nor
are we sitting en banc. Therefore, we do not have the power to overrule Collard.
Darrah, 255 F.3d at 309. Thus, Bonner’s argument must fail, and a one-year statute of
limitations must be applied to Bonner’s claim. Applying this one-year statute of
limitations, we conclude that it is clear that Bonner’s claim was filed outside the
limitations period. The district court found that Bonner’s claim accrued in 2004 and that
she did not file this action until 2007. Bonner does not challenge these findings.
Therefore, we hold that the district court correctly dismissed Bonner’s claim as time-
barred.
III. CONCLUSION
Because Bonner filed her action outside the applicable limitations period, we
AFFIRM the district court’s dismissal of Bonner’s claims against DOC.
