City of Mound Bayou v. Johnson

For the Court:

I.

This case presents important questions concerning the period of time within which one charging police brutality must bring his action against the offending officer and the municipality whom he serves. Related are the questions of the limitations period governing actions for false arrest and malicious prosecution against a municipality.

II.

We begin with a brief chronology of the events necessary to an understanding of the issues tendered on this appeal.

August 6, 1983 Plain tiff/Appellee, Eddie Johnson, Jr. arrested

Johnson Convicted in Mound Bayou Municipal Court on Charges of Resisting Arrest and Disturbing the Peace

January 31, 1984 County Court Verdict overturning Municipal Court and acquitting Johnson

August 6, 1984 Expiration of one year period from date of arrest and assault and battery

January 31, 1985 Expiration of one year period from date of Johnson’s acquittal in County Court

June 7, 1985 Plaintiff /Appellee files complaint in Circuit Court of Bolivar County alleging police brutality, false arrest and malicious prosecution

July 2, 1985 Removal to U.S. District Court

July 9, 1985 Defendants/Appellants file Answer and Defenses in U.S. District Court

July 23,1986 U.S. District Court dismisses Count III (Section 1983 claim) with prejudice, remands Counts I and II (state law claims) to Circuit Court o'f Bolivar County

July 7, 1988 Circuit Court Order Overruling Defendant’s Motion to Dismiss, Certifying Question, and Staying Further Proceedings

September 7, 1988 Interlocutory Appeal granted by Supreme Court of Mississippi

Fleshing out the facts, we find that on June 7, 1985, Eddie Johnson, Jr. commenced the present civil action by filing his complaint in the Circuit Court of the Second Judicial District of Bolivar County, Mississippi. Johnson named as Defendants the City of Mound Bayou, Mississippi, a municipal corporation, and Alfred Thompson, individually, and as a police officer of the City of Mound Bayou. By reason of the present procedural posture of the case, we take the allegations of Johnson’s complaint as true. Cain v. McKinnon, 552 So.2d 91 (Miss.1989); Wilkinson v. Mercantile National Bank, 529 So.2d 616, 618 (Miss.1988).

Johnson alleges that on Saturday morning, August 6, 1983, at approximately 3:00 a.m. he arrived at the home of his parents in Mound Bayou at which time he was unlawfully arrested by Officer Alfred Thompson who was at the time acting in his capacity as a police officer of the City of Mound Bayou. The complaint continues:

After falsely placing the Plaintiff under arrest, Defendant Alfred Thompson proceeded to wantonly and negligently beat upon the Plaintiff with his hands, fists, pistol and blackjack far more than necessary to take the Plaintiff into custody and was carried out in such negligent fashion as to demonstrate a lack of regard of the right of the Plaintiff to be free from unnecessary and unlawful bodily harm or the threat thereof. Such actions were without the due care and diligence which a reasonable and prudent individual, particularly a police officer, should have displayed under the same or similar circumstances. Defendant Alfred Thompson inflicted serious bodily injury upon Plaintiff, causing severe cuts, abrasions, bruises and sprains to left ear, upper lip, top of the head, right ankle sprain, left wrist and hand, right shoulder, and the loss of three teeth and other parts of the body of the Plaintiff, all of which caused severe and excruciating pain to the Plaintiff for a considerable period of time thereafter, all of which was done with a reckless and wanton disregard of and callous indifference of the rights of the Plaintiff and for the purpose of inflicting serious bodily injury upon him, all of which was totally unnecessary for the purpose of arrest or apprehending the said Plaintiff.

Johnson’s complaint continues:

After the beating of the Plaintiff as aforesaid, Defendant Alfred Thompson placed handcuffs upon the Plaintiff in a rough and brutal manner and threw the Plaintiff inside his police vehicle, which proceeded to the Police Station in Mound Bayou, Mississippi. While in route and at the City Hall in Mound Bayou, Mississippi, Defendant Alfred Thompson again administered acts of brutality upon the Plaintiff while handcuffed and powerless to defend himself. Defendant Alfred Thompson apparently realizing at last what he had done to the Plaintiff, then proceeded to charge the Plaintiff with resisting arrest, hoping in some way that this would seem a justification for his conduct. Defendant Alfred Thompson further falsely charged Plaintiff with disturbing the peace in order to justify the false arrest of Plaintiff. The charges of resisting arrest and disturbing the peace were clearly without probable cause and were made against the Plaintiff out of anger and malice toward him, and were known by Defendant Alfred Thompson to be false.

In due course, Johnson was brought to trial in the Municipal Court of the City of Mound Bayou, on the charges of resisting arrest and disturbing the peace, whereupon Johnson was found guilty. Johnson subsequently perfected an appeal to the County Court of the Second Judicial District of Bolivar County, Mississippi, where, after trial by jury, the County Court on January 31, 1984, reversed each conviction, ordered the charges dismissed and Johnson finally discharged.

Johnson’s complaint presents three claims. First, he asserts an action of assault and battery against Officer Thompson and the City of Mound Bayou. Second, he charges Thompson with false arrest, and Thompson and the City with malicious prosecution. Third, invoking the concurrent jurisdiction of this Court, Johnson states a claim for violation of his civil rights under 42 U.S.C. § 1983.

In lieu of immediate answer, Defendants Thompson and the City of Mound Bayou seized upon the fact that Johnson had asserted a federal claim under Section 1983 and petitioned the United States District Court for the Northern District of Mississippi that the action be removed to that court. On July 23, 1986, the United States District Court held the federal claim time barred and dismissed that claim “with prejudice”. The Court ordered the remainder of the action, Johnson’s claims for assault and battery, false arrest and malicious prosecution, remanded to the Circuit Court of Bolivar County. The City of Mound Bayou and Thompson then answered, asserting numerous defenses, including sovereign and qualified official immunity.

Of concern today is the defense that Johnson’s claims are barred by Mississippi's one-year statute of limitations. Miss. Code Ann. § 15-1-35 (1972). When the matter came on for hearing before the Circuit Court on Defendants’ motion to dismiss by reason of the statute of limitations, that Court denied the motion, holding that it was bound to do so under the authority of State For the Use of Smith v. Smith, 156 Miss. 288, 125 So. 825 (1930), inter alia, but in doing so, certified the question to this Court via interlocutory appeal, see Rule 5(a), Miss.Sup.Ct. Rules, expressing its belief

that a substantial basis exists for a difference of opinion on the question of law as to which appellate resolution may materially advance a termination of the litigation herein, avoid exceptional expense to the parties herein, and resolve an issue of general importance in the administration of justice.

Specifically this Court feels that the Mississippi Supreme Court may wish to revisit and reconsider the rationale of State v. Smith, 156 Miss. 288, 125 So. 825 (1930) wherein the Supreme Court held that intentional torts committed by police officers were controlled by the six year general statute of limitations, rather than the one year limitation. Further, the Court is of the opinion that the Supreme Court may consider that State v. Smith, supra, has never been interpreted to apply the six year statute of limitations to a municipal, corporate defendant.

The Circuit Court’s order of July 6, 1988, then stayed all proceedings in this action pending the interlocutory appeal.

This Court has heretofore held that substantial questions regarding whether an action should be dismissed as time barred by reason of a statute of limitations often meet the criteria of our Rule 5(a), making them appropriate for consideration via interlocutory appeal. American Electric v. Singarayar, 530 So.2d 1319, 1323 (Miss.1988); Kilgore v. Barnes, 490 So.2d 895, 896 (Miss.1986); Cf. Missouri Pacific Railroad Co. v. Tircuit, 554 So.2d 878 (Miss.1989). By order entered September 7, 1988, this Court granted Defendants’ petition for interlocutory appeal to consider the important limitations questions presented.

III.

Count I of Johnson’s complaint states a claim generically akin to a common law assault and battery. See Williams v. Clark, 236 Miss. 423, 427, 110 So.2d 365, 367 (1959); Morgan v. Loyacomo, 190 Miss. 656, 663, 1 So.2d 510, 511 (1941); see also State For the Use of Smith v. Smith, 156 Miss. 288, 292, 125 So. 825, 826 (1930). If defendants were private parties, we are confident all would agree that Johnson’s action is barred by Miss. Code Ann. § 15-1-35 (Supp.1989), which in relevant part reads:

All actions for assault, assault and battery, maiming, false imprisonment, malicious arrest, or menace, ... shall be commenced within one year next after the cause of such action accrued, and not thereafter.

It is true that there is a certain amount of negligence language trailing along in Johnson’s complaint. This is of no moment, as

[tjhere can be no escape from the bar of the statute of limitations applicable to intentional torts by the mere refusal to style the cause brought in a recognized statutory category and thereby circumvent prohibition of the statute.

Dennis v. Travelers Insurance Co., 234 So.2d 624, 626 (Miss.1970).

In fact, Alfred Thompson was not a private citizen on August 6, 1983, but was acting as a police officer of the City of Mound Bayou, and the Circuit Court felt that our case law thus removed the action from the one-year limitation for assault and battery actions, citing State For the Use of Smith v. Smith, 156 Miss. 288, 125 So. 825 (1930). Smith considered the predecessor of today’s Section 15-1-35. Plaintiff had sued a sheriff and the surety on his official bond, charging that a deputy, while in the course of arresting plaintiff, had shot plaintiff in the leg, causing the leg to be amputated. The Court held the action without the one-year limitations statute. Alexander v. Carsley, 199 Miss. 881, 25 So.2d 709 (1946) is to like effect.

Upon reading Smith we are .not at all sure it even addresses the question what limitations period governs the suit against the sheriff. The opinion’s focus is upon the suit on the bond, reciting

The appellant’s contention is that the statute does not apply to suits on an official bond for malfeasance in office, and this is the sole question argued in the briefs of counsel.

Smith, 156 Miss. at 292, 125 So. at 826. [Emphasis supplied] On the other hand, the action in Smith was “against Arthur J. Smith, a sheriff, and the surety on his official bond.” The trial court had dismissed the entire action, on grounds it had been brought more than a year after it accrued. This Court reversed and remanded, which could only have had the effect of reinstating the action against the sheriff as well as his surety. Besides, the Court below is not the first to think Smith holds an action against a law enforcement officer not subject to the one year statute of limitations. See Morrell v. City of Picayune, 690 F.2d 469, 470 (5th Cir.1982); Shaw v. McCorkle, 537 F.2d 1289, 1295 (5th Cir.1976); Simons v. City of Columbus, 593 F.Supp. 876, 878 (N.D.Miss.1984); and Mathis v. Indemnity Insurance Company of North America, 588 F.Supp. 489, 493 (S.D.Miss.1983); Harvey v. Dunaway, 461 F.Supp. 758, 759-60 (N.D.Miss.1978).

Treating Smith as addressing today’s issue, we find a fundamental confusion in the Court’s reasoning. Smith states:

The declaration sets forth not a mere assault and battery, or maiming, but a breach of the sheriff’s official duty, the assault and battery or maiming, being the particular breach thereof; and the cause of action is this breach of the deputy sheriff’s official duties. The statute, therefore, does not apply.

156 Miss. at 292, 125 So. at 826. Smith appears to proceed on the assumption that the source of “the sheriff’s official duty” is his official bond and the statute requiring such as an incident of his office. This is simply wrong.

In the course of an arrest and taking into custody, the duties of a law enforcement officer toward a suspect arise and have their existence under other provisions of the positive law. See, e.g., Holland v. Martin, 214 Miss. 1, 9, 58 So.2d 62, 63 (1952); Moore v. Foster, 182 Miss. 15, 19, 180 So. 73 (1938); State To the Use of Johnson v. Cunningham, 107 Miss. 140, 149, 65 So. 115, 117 (1914). The condition of the official bond is that the officer will perform faithfully those duties. The bond serves to secure to the public rights against the officer, rights pre-existing the bond and wholly independent of it. The bond assures the existence of a limited fund out of which recovery can be had if a citizen shows that the officer has otherwise breached his duty, see Western Surety Co. v. State For the Use of Seals, 330 So.2d 573, 576 (Miss.1976), but the liability of the surety is wholly derivative from and a function of the defaults of the officer who is principal on the bond and whose conduct is measured by other law. That law proscribes an officer’s use of excessive force and provides a civil remedy. On principle, Johnson’s action against Officer Thompson is subject to the one year statute of limitations the same as any other action for assault and battery.

We consider it settled beyond dispute that the assault and battery limitations statute is available defensively to private parties sought to be held via respondeat superior, see Sears, Roebuck & Co. v. Ingram, 206 So.2d 204, 205-06 (Miss.1968); Cf. Illinois Central Railroad v. Wales, 177 Miss. 875, 171 So. 536 (1937). A municipal corporation such as the City of Mound Bayou is not circumstanced so differently that it ought be deprived of the benefit of a like limitation where sued for the assault and battery of one of its police officers. The bar that protects Thompson protects the City as well.

Notwithstanding, Johnson argues strenuously that there are strong policy reasons why we should not hold actions such as this to the one-year limitations statute. Upon examination, those reasons have only to do with the concededly legitimate policy reasons for holding public officers liable under limited circumstances for injuries they may cause citizens. See, e.g., McFadden v. State of Mississippi, 542 So.2d 871, 879-81 (Miss.1989); Grantham v. Mississippi Dept. of Corrections, 522 So.2d 219, 223-26 (Miss.1988). Those reasons have nothing to do with the limitations question presented today. Indeed, it would seem intuitively plausible that the limitations period within which suits may be brought against public officials should be relatively short, to the end that the officials may be about the business of performing their official duties and serving the public without the burden of worries of whether they will be sued for deeds long past.

All of this we consider against the backdrop of the legislative declaration that actions for assault and battery must be brought within one year or be forever time barred. We accept this statute and enforce its hard-edged rule of law and, as well, the public policy expression embedded in it. While the law well recognizes and declares legally enforceable a person’s moral right to redress on the occasion of a physical assault, there is an equally strong policy that such claims can and should be asserted promptly. There is no danger of a would-be plaintiff being unaware that his claim has accrued. He will certainly know if he has been beaten. Moreover, cases of this sort frequently involve substantial disputes of fact. Because memories dim or become exaggerated with time, particularly when colored by passion or prejudice, common sense suggests assault and battery actions be brought and tried promptly. In any event, the public policy considerations implicit in Section 15-1-35 apply where the offender is a police officer and the corporation sought to be held is a municipal corporation, as well as in the case of private parties. In today’s limited limitations context, we see nothing in the action Johnson asserts that suggests he ought have a longer time to sue than one charging a common law assault and battery. To the extent Smith and Alexander hold to the contrary, they stand modified.

These things said, we find Johnson’s action against Thompson accrued on August 6, 1983, the date he alleges Thompson assaulted him. That action is subject to Section 15-1-35 which required it be commenced, if at all, “within one year next after the cause.of such action accrued, and not thereafter.” Johnson did not file his suit before August 6,1984, nor did he file it until June 7, 1985 — some 305 days late! The Circuit Court erred when it denied Defendants’ motion to dismiss Count I of Johnson’s complaint.

IV.

We next turn to the question whether the one-year limitations period prescribed in Section 15-1-35 applies as well to Johnson’s action against Thompson for false arrest and against Mound Bayou and Thompson for malicious prosecution. Again we recall that the torts specifically named are (1) assault, (2) assault and battery, (3) maiming, (4) false imprisonment, (5) malicious arrest, (6) menace, (7) libel, and (8) all actions for slanderous words, and the question is whether we may find embedded within the statute’s text the torts of false arrest and malicious prosecution.

Thompson’s action for false arrest accrued the day it occurred — August 6, 1983. His action for malicious prosecution did not accrue until January 31, 1984, the date of the two judgments in the County Court dismissing Mound Bayou’s two misdemeanor prosecutions. See Parker v. Mississippi Game and Fish Commission, 555 So.2d 725, 728 (Miss.1989); Pugh v. Easterling, 367 So.2d 935, 937 (Miss.1979); Grenada Bank v. Petty, 174 Miss. 415, 425, 164 So. 316, 318 (1935). Because Johnson’s present civil action was not filed until June 7, 1985, he is still 127 days late if the one-year period of limitations applies.

Section 15-1-35 enumerates eight tort labels, among them “malicious arrest”. Neither false arrest nor malicious prosecution is enumerated as such. Our cases suggest the statute’s force is not limited to the eight torts labeled therein. Bush v. City of Laurel, 234 Miss. 93, 103, 105 So.2d 562, 566 (1958) says the statute includes torts “of the type enumerated” in the statute. Dennis v. Travelers Insurance Co., 234 So.2d 624, 626 (Miss.1970) is more expansive, holding that the statute “provides an inclusive listing of the recognized intentional torts.” Southern Land & Resources Co., Inc. v. Dobbs, 467 So.2d 652, 654 (Miss.1985) repeats the point. If this be so, the proscription of the statute necessarily extends beyond the tort labels specifically appearing, for but a moment’s reflection calls to mind any number of intentional tort actions recognized in Mississippi law which are not enumerated as such in Section 15-1-35. Consider, for example, abuse of process, Mangum v. Jones, 236 So.2d 741, 743 (Miss.1970), and invasion of privacy, Deaton v. Delta Democrat Publishing Co., 326 So.2d 471, 473 (Miss.1976); Cf. In re Brown, 478 So.2d 1033, 1039-40 (Miss.1985). The better view is that statute extends to all actions substantially like unto the enumerated eight and for which no specific statute has been provided.

All of this advances the ball but does not wholly overcome the fact that Section 15-1-35 does not employ either the term “false arrest” or the term “malicious prosecution,” although it is difficult to resist the intuitive impulse that “malicious arrest” includes them both.

The false arrest issue is easy. We perceive no difference between the tort of malicious arrest, as enumerated in the statute, and false arrest as we know it today. False arrest is an intentional tort, arising when one causes another to be arrested falsely, unlawfully, maliciously and without probable cause. It is similar to false imprisonment, a tort appearing by name in Section 15-1-35. Claims of false arrest frequently ripen into false imprisonment and plaintiffs often bring the two together. See, e.g., Godines v. First Guaranty Savings & Loan Association, 525 So.2d 1321, 1322 (Miss.1988); Fuller v. Sloan, 230 So.2d 574, 575 (Miss.1970). There is a sense in which false arrest may appear a “lesser included offense” to false imprisonment. See Godines, supra, 525 So.2d at 1324 (causing false imprisonment through false arrest), quoted in Sunshine Jr. Food Stores, Inc. v. Aultman, 546 So.2d 659, 662 (Miss.1989). If false imprisonment is subject to a one year limitations period, it makes no sense that false arrest not be similarly proscribed.

Parker v. Mississippi Game and Fish Commission, 555 So.2d 725 (Miss.1989) implicitly recognizes an action for false arrest subject to Section 15-1-35’s one year time bar. In King v. Otasco, Inc., 861 F.2d 438, 442 (5th Cir.1988), the Court of Appeals “guessed” we would hold an action for the intentional tort of false arrest (among others) governed by the one year statute. Today we squarely so hold.

We have on several occasions placed malicious prosecution within the generic category of intentional tort, albeit in other contexts, Royal Oil Co., Inc. v. Wells, 500 So.2d 439, 442 (Miss.1986); Allstate Insurance Co. v. Moulton, 464 So.2d 507, 510 (Miss.1985), although we have never directly considered today’s point. Kitchens v. Barlow, 250 Miss. 121, 164 So.2d 745 (1964) implicitly recognizes that the one year statute governs actions for malicious prosecution, but in the end pretermits the point because “the record before us does not show the date of the filing of the plaintiff’s declaration.” 250 Miss. at 138, 164 So.2d at 752.

The elements of the tort of malicious prosecution are familiar and well settled. See, e.g., Parker v. Mississippi Game and Fish Commission, supra; Royal Oil Co., Inc. v. Wells, 500 So.2d at 442; Owens v. Kroger Co., 430 So.2d 843, 846 (Miss.1983). The essence of the action is the defendant’s malicious institution of criminal proceedings against plaintiff, absent probable cause therefor. Such an action is quite like unto at least three torts expressly enumerated in the statute: false imprisonment, see Thornhill v. Wilson, 504 So.2d 1205, 1208 (Miss.1987), menace, Dennis v. Travelers Insurance Co., 234 So.2d at 626, and malicious arrest. If these three are subject to a one year limitations bar, what reason on principle may be offered for excluding malicious prosecution?

Inclusion of the phrase “malicious arrest” in Section 15-1-35 takes on particular importance. In a sense that phrase as a label for a type of tort action that has fallen into disuse. We now use “false arrest”. It is helpful to recall that malicious arrest imports a tort quite similar to malicious prosecution, the only difference of consequence being that the tort of malicious arrest is complete once the plaintiff is legally under arrest, while malicious prosecution does not technically require an arrest, only a prosecution of the plaintiff.

What is important is that the tort of malicious prosecution has evolved to the point where full prosecution of the plaintiff through trial is no longer required. Plaintiff must prove only “institution of a criminal proceeding” by or at the insistence of the defendant. Royal Oil Co., Inc. v. Wells, 500 So.2d at 442; Woolfolk v. Tucker, 485 So.2d 1039, 1042-43 (Miss.1986); Owens v. Kroger Co., 430 So.2d at 846; State for Use and Benefit of Foster v. Turner, 319 So.2d 233, 235 (Miss. 1975). In practical effect, criminal proceedings are instituted when a person is formally arrested and charged with an offense. Cf. Miss. Code Ann. § 99-1-7 (1972); Jimpson v. State, 532 So.2d 985, 988 (Miss.1988); Page v. State, 495 So.2d 436, 440 and n. 5 (Miss. 1986). Among our reports are any number of cases where viable action for malicious prosecution was recognized, although the defendant did little to the plaintiff beyond having him or her arrested. See, e.g., Wutzke v. Wayne Lee’s Grocery and Market, Inc., 199 So.2d 438, 440 (Miss.1967); Fowler v. King, 254 Miss. 61, 63-65, 179 So.2d 800, 801-02 (1965); Gandy v. Palmer, 251 Miss. 398, 405-08, 169 So.2d 819, 821-22 (1964); Pulliam v. Ott, 246 Miss. 739, 743-44, 150 So.2d 143, 145 (1963); Harvill v. Tabor, 240 Miss. 750, 753, 128 So.2d 863, 864 (1961).

We perceive no reason on principle why a different — and longer — period of limitations should apply to an action for malicious prosecution than is enforced in the case of the closely related actions of false imprisonment, malicious arrest or menace. We note the prescience of the United States District Court for the Northern District of Mississippi which in Childers v. Beaver Dam Plantation, Inc., 360 F.Supp. 331, 333 (N.D.Miss.1973) and Harvey v. Dunaway, 461 F.Supp. 758, 759 (N.D.Miss. 1978), held it was “Erie bound” to enforce the one-year statute to an action for mali- ■ cious prosecution.

We hold that a civil action for false arrest or for malicious prosecution is subject to the limitations proscription of Section 15-1-35. From this it is but a short step to hold that the Circuit Court erred when it denied Defendants’ motion to dismiss Count II of Johnson’s complaint.

Y.

Count III of Johnson’s complaint is his claim for violation of his federally secured civil rights brought under 42 U.S.C. § 1983. The courts of this state have subject matter jurisdiction of such claims, concurrent with the courts of the United States. Burrell v. Mississippi State Tax Commission, 536 So.2d 848, 863-64 (Miss. 1988); Marx v. Truck Renting & Leasing Association, Inc., 520 So.2d 1333, 1346 (Miss. 1987). When adjudging such claims, however, we respect and enforce the statute of limitations prescribed by federal law which in turn directs reference to state limitations law. 42 U.S.C. § 1988. In Owens v. Okure, 488 U.S. 235, 109 S.Ct. 573, 102 L.Ed.2d 594 (1989), the Supreme Court held that courts considering Section 1983 claims should borrow from the state whose period of limitations would otherwise apply “the general residual statute for personal injury actions.” 109 S.Ct. at 582, 102 L.Ed.2d at 606. In this state, that statute would be Miss.Code § 15-1-49 (1972) which at the time provided a six-year period of limitations long held applicable to general non-intentional tort actions. The earliest Johnson’s actions could have accrued was August 6, 1983, the date of the incident at his parent’s home. Under federal law, as declared in Owens, his action would ordinarily have been timely.

A funny thing happened on the way to the courthouse. After Defendants had removed the action to the United States District Court for the Northern District of Mississippi, the United States Court of Appeals for the Fifth Circuit decided Gates v. Spinks, 771 F.2d 916 (5th Cir.1985). Gates held Section 1983 actions subject to the one year statute, of limitations considered in Parts III and IY above. On the authority of Gates, the District Court then held that Johnson’s Section 1983 claim was barred by the one-year statute of limitations. Indeed, as indicated above, Johnson acquiesced in the point. Johnson took no appeal from the dismissal of his Section 1983 claim.

Be all of this as it may, the U.S. District Court’s order of dismissal of Johnson’s Section 1983 claim has long since become final and we inquire not into the merits of whether he may have successfully appealed or otherwise obtained relief. See Federated Department Stores, Inc. v. Moitie, 452 U.S. 394, 398-99, 101 S.Ct. 2424, 2428, 69 L.Ed.2d 103, 108 (1981); Cunningham v. Mitchell, 535 So.2d 589, 591-92 (Miss.1988). To be sure, the present action is a continuation of the same .action in which the District Court has dismissed Johnson’s Section 1983 claim. Johnson has not here questioned the finality of that order nor suggested that we have authority to reopen the question and, accordingly, we express no opinion on the point.

The bottom line is that Johnson here affords us no grounds for treating the dismissal of his Section 1983 claim as other than final.

VI.

In summary, we hold Johnson’s claim for assault and battery, asserted in Count I of his complaint, is barred by Section 15-1-35’s one-year statute of limitations and, in . connection therewith, State For the Use of Smith v. Smith, 156 Miss. 288, 125 So. 825 (1930) and progeny stand modified to the extent articulated herein above. We further hold an action for false arrest or malicious prosecution such as those asserted by Johnson in Count II of his complaint is subject to Section 15-1-35’s one-year period of limitations and is also barred. Johnson has presented no arguments or authority why we should reopen Count III of his complaint wherein he asserted a claim under 42 U.S.C. § 1983.

Accordingly, the order of the Circuit Court entered July 7, 1988, is vacated, reversed and held for naught and judgment is rendered here finally dismissing Johnson’s complaint against Defendants Thompson and the City of Mound Bayou.

REVERSED AND RENDERED.

ROY NOBLE LEE, C.J., and PRATHER, ANDERSON and PITTMAN, JJ., concur.

HAWKINS, P.J., dissents by written opinion joined by DAN M. LEE, P.J.

SULLIVAN, J., dissents by separate written opinion joined in part by BLASS, J.

BLASS, J., dissents by separate written opinion.

. Apparently the dismissal of the Section 1983 claim and remand to state court were with the acquiescence of both plaintiff and defendants. The District Court's order recites

Plaintiff subsequently filed his motion to dismiss his § 1983 claim and to remand the state law claims to state court. As grounds therefor, plaintiff agreed with defendants that Count III, the § 1983 claim, is time-barred by Gates v. Spinks [771 F.2d 916 (5th Cir.1985)] and Mississippi’s one-year statute of limitations. Plaintiff further contends that since only state law claims remain, then this action should be remanded to state court. Defendants do not oppose plaintiff's motion upon the condition that the § 1983 claim is dismissed with prejudice.

Johnson took no appeal from that order to the United States Court of Appeals for the Fifth Circuit. In view of his "acquiescence" in the dismissal of his Section 1983 claim, it is unlikely any such appeal would have been successful. But see Owens v. Okure, 488 U.S. 235, 109 S.Ct. 573, 102 L.Ed.2d 594 (1989), discussed in Part V, infra.

. Nothing said in this opinion should be taken as expressing any view on the merits of Defendants’ various immunity defenses.

. Smith and Alexander also involve suits against the surety on an official bond. Each holds that the action on such a bond is in effect a suit on a contract and for that reason outside the one-year assault and battery statute of limitations. Nothing in today’s case affords us an occasion to reconsider or question the limitations period affecting an action against a surety upon an official bond.

. For an all inclusive listing of recognized intentional torts, see Restatement (Second) of Torts, Division One (1964).

. The legalistic distinction between the two torts is noted in Parker v. Mississippi Game and Fish Commission, 555 So.2d at 728-29. Though those distinctions obtain, factually the two torts are becoming quite similar.

. Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938).

.In King v. Otasco, Inc., 861 F.2d 438, 442 (5th Cir.1988), the Court of Appeals "guessed” that we would hold an action for intentional infliction of emotional distress subject to Section 15-1-35. In Andrews v. GAB Business Services, Inc., 443 F.Supp. 510, 513 (N.D.Miss.1977), the District Court held an invasion of privacy action similarly limited. But see Blackwell v. Hustler Magazine, Inc., 633 F.Supp. 870 (S.D.Miss.1986).

. Effective July 1, 1989, the limitations period of Section 15-1-49 was reduced to three years. Miss.Laws Ch. 311, § 3 (1989).

. See note 1, supra. In his brief before this Court, Johnson states:

In light of Gates v. Spinks, 771 F.2d 916 (C.A.5th Cir.Miss.1985), the Plaintiff filed and the Court granted Plaintiffs Motion to Withdraw Count III of the Complaint, a claim brought under 42 USCA Section 1983, which motion was granted on July 23, 1986, and remanded Counts I and II of the Complaint to the State Court from which removed.

.Contrast Kozam v. Emerson Electric Co., 711 F.Supp. 313 (N.D.Miss.1989) with Johnson v. Madison County, Mississippi, 714 F.Supp. 805 (S.D.Miss.1989).