Willbourn v. City of Tulsa

The issues presented are whether a demurrer to the petition of the appellant, Ray Perry Willbourn, Jr., for failure to comply with the Political Subdivision Tort Claims Act, 51 O.S.1981 § 156 (Act) should have been sustained; and whether the trial court was vested with jurisdiction to decide 42 U.S.C. § 1983 actions. We find that Willb-ourn did not substantially comply with the Act, and that the trial court erred in refusing to hear the § 1983 claim.

On May 6, 1981, Willbourn was arrested by officers of the Tulsa Police force under a valid felony warrant which contained allegations of first degree murder, shooting with intent to kill, illegally carrying a firearm where liquor was sold, and carrying a firearm after a previous conviction of a felony. During the course of his arrest, Willbourn was wounded severely.

On May 6, 1982, Willbourn filed suit in the district court of Tulsa County alleging that the Tulsa police were guilty of assault, battery and intentional infliction of emotional distress. He also alleged a violation of his civil rights under 42 U.S.C. § 1983. On June 30, 1982, the trial court finding that tort actions must be brought in compliance with the Political Subdivision Tort Claims Act, 51 O.S.1981 § 156, and that Willbourn had failed to do so, sustained the police officers’ demurrer to the tort claim with prejudice. The trial court also determined that it had no duty to exercise jurisdiction over the federal constitutional issues presented by Willbourn’s § 1983 claim because it found no nexus with Oklahoma law, and the 1983 action was dismissed without prejudice.

I

THE APPELLANT FAILED TO COMPLY SUBSTANTIALLY WITH THE POLITICAL SUBDIVISION TORT CLAIMS ACT, 51 O.S.1981 § 156

The issue of whether the trial court erred in the sustaining of the police officer’s demurrer to the petition was not briefed by Willbourn. However, the police officers do address it, arguing that Willbourn failed substantially to comply with 51 O.S.1981 § 156. 1 We agree.

*805 If recovery is sought under the Political Subdivision Tort Claims Act, the petition must factually allege either actual or substantial compliance with § 156 of the Act to withstand a demurrer. 2 Section 156(B), (C) provides that valid notice must be given and the action commenced within six months after the claim is denied. Because Willbourn failed to meet these requirements, his petition is facially flawed. Willbourn concedes that he did not comply with the notice provisions of the Act, and that he did not initiate his action until May 6, 1982. His suit was filed six months out of time, therefore, the court was correct in sustaining the demurrer to the petition.

II

STATE AND FEDERAL COURTS HAVE CONCURRENT JURISDICTION IN 1983 ACTIONS

If the same type of claim, if arising under state law, is enforceable in state court, state courts may not arbitrarily refuse to enforce the federal claim. 3 The United States Supreme Court held in Monroe v. Pape, 365 U.S. 167,183, 81 S.Ct. 473, 482, 5 L.Ed.2d 492, 503 (1961) and more recently in Wilson v. Garcia, — U.S.-, -, 105 S.Ct. 1938, 1949, 85 L.Ed.2d 254, 268 (1985) that the remedy provided by § 1983 must be independently enforceable even if a parallel state remedy is available. It was the ineffectiveness of state remedies which led Congress to enact the Civil Rights Act. Consistent with our system of judicial federalism, which provides litigants with a double-barreled system of judicial protection, 4 the remedy provided by § 1983 may be available even if the state remedy is barred by the statute of limitations under the Political Subdivision Tort Claims Act.

We express no opinion on the merits of Willboum’s civil rights action, however, it was error for the trial court to refuse to hear his § 1983 claim.

AFFIRMED IN PART; REVERSED IN PART.