Hutcherson, pro se appellant.
Rutledge, Att'y Gen., by: Jennifer L. Merritt, Sr.
Ass't Att'y Gen., for appellee.
PRO SE APPEAL FROM THE LEE COUNTY CIRCUIT COURT [NO.
39CV-16-34] HONORABLE RICHARD L. PROCTOR, JUDGE
COURTNEY HUDSON GOODSON, Associate Justice
Willie Hutcherson, appeals the dismissal of a pro se civil
complaint and amended complaint, which alleged that the
appellees, acting under color of state law, had engaged in
discrimination in violation of the Arkansas Civil Rights Act
of 1993 (ACRA), codified as Arkansas Code Annotated sections
16-123-101 to -108 (Repl. 2016), had also engaged in a civil
conspiracy, and committed the tort of outrage. Appellees
filed a motion to dismiss the appeal based on, among other
things, the fact that the claims were barred by the statute
of limitations. The circuit court granted the motion and
dismissed the complaint without prejudice based on the
grounds set forth in appellees' motion to dismiss. We
review a circuit court's decision on a motion to dismiss
a complaint by treating the facts alleged in the complaint as
true and by viewing them in the light most favorable to the
plaintiff. Biedenharn v. Thicksten, 361 Ark. 438,
206 S.W.3d 837 (2005). In order to prevail on a motion to
dismiss a complaint on the basis of a statute-of-limitations
defense, it must be barred on its face. Dunlap v.
McCarty, 284 Ark. 5, 678 S.W.2d 361 (1984). Viewing the
facts alleged in Hutcherson's complaint as true, it is
clear from the face of the complaint that his claims were
barred by the statute of limitations. Therefore, we affirm
without reaching the other grounds on which Hutcherson's
complaint was dismissed.
2000, Hutcherson was found guilty by a jury of four counts of
aggravated robbery, three counts of misdemeanor theft of
property, and one count of felony theft of property.
Hutcherson was sentenced as a habitual offender to an
aggregate term of 2880 months' imprisonment.
Hutcherson's convictions and sentences were affirmed by
the Arkansas Court of Appeals. Hutcherson v. State,
74 Ark.App. 72, 47 S.W.3d 267 (2001).
support of the claims set forth in the civil complaint,
Hutcherson alleged that the statements of two investigating
officers had been disclosed to the defense by the prosecution
during discovery; that his original public defender, Steven
Abed, had not read those statements until Hutcherson gave him
copies of those statements during the course of a pretrial
hearing; that Abed disregarded Hutcherson's request to
turn the statements over to the trial judge; and that
Hutcherson subsequently observed Abed hand over the two
statements to the prosecutor, Terry Bell, outside the
courtroom. Hutcherson alleged that this conduct showed that
Abed and Bell engaged in a civil conspiracy and committed the
tort of outrage by covering up the ethical violations
committed by Abed and by obtaining a conviction despite
apparent flaws in the investigation of the
crimes. Although Abed withdrew as Hutcherson's
counsel prior to trial, Hutcherson further alleged that
prosecutor Bell wrongfully influenced his second public
defender such that mistakes were made that led to his
conviction and the waiver of issues that should have been
preserved on direct appeal. Finally, Hutcherson asserted that
the appellees had acted under color of state law when they
violated his civil rights and engaged in tortious conduct.
For the reasons explained below, Hutcherson's tort claims
and civil rights claims are barred by the statute of
defendant has affirmatively raised a statute-of-limitations
defense, and it is clear from the face of the complaint that
the action is barred by the applicable limitations period,
the burden shifts to the plaintiff to prove by a
preponderance of the evidence that the statute of limitations
was in fact tolled. Chalmers v. Toyota Motor Sales, USA,
Inc., 326 Ark. 895, 935 S.W.2d 258 (1996). The statute
of limitations begins to run when the injury occurs, not when
it is discovered. Dye v. Diamante, 2017 Ark. 42, 510
S.W.3d 759. Affirmative actions of concealment of a cause of
action will toll the statute of limitations.
Chalmers, 326 Ark. 895, 935 S.W.2d 258. Ignorance of
a right to pursue a cause of action, however, does not
prevent the operation of the statute of limitations.
First Pyramid Life Ins. Co. of Am. v. Stoltz, 311
Ark. 313, 843 S.W.2d 842 (1992). The statute is tolled only
when the ignorance is produced by affirmative and fraudulent
acts of concealment. Id. Therefore, to rebut a
limitations defense, a plaintiff must describe specific
fraudulent acts committed for the purpose of concealing a
cause of action. See id. (holding that mere
allegations of fraud are not enough to create an issue of
material fact that would avoid summary judgment on a
traditionally applied a three-year statute of limitations to
actions arising under a liability that is imposed by statute.
Douglas v. First Student, Inc., 2011 Ark. 463, 385
S.W.3d 225. Moreover, Arkansas Code Annotated section
16-123-105(c) states in pertinent part that, in construing
the ACRA, courts must look for guidance to state and federal
decisions pertaining to actions filed pursuant to the federal
civil rights act, 42 U.S.C. § 1983. Federal courts have
typically applied the three-year statute of limitations to
§ 1983 actions. Jones v. Frost, 770 F.3d 1183
(8th Cir. 2014); Miller v. Norris, 247 F.3d 736 (8th
long been the law in this state that a three-year statute of
limitations applies to all tort actions not otherwise limited
by law. O'Mara v. Dykema, 328 Ark. 310, 942
S.W.2d 854 (1997). A civil conspiracy is an intentional tort.
Faulkner v. Ark. Children's Hosp., 347 Ark. 941,
69 S.W.3d 393 (2002). We have held that the tort of outrage
is governed by the three-year statute of limitations.
McQuay v. Guntharp, 331 Ark. 466, 963 S.W.2d 583
(1998). Based on the above, all of Hutcherson's claims
are subject to the three-year statute of limitations found in
Arkansas Code Annotated section 16-56-105(3).
the facts alleged in the complaint and amended complaint as
true, Hutcherson alleged that the actions that gave rise to
the claims set forth in his complaint took place in 1999,
before and during the timeframe of his trial and conviction.
Hutcherson's allegations further demonstrated that he was
aware of the alleged discriminatory and tortious conduct at
the time it occurred. Hutcherson filed his civil action in
2016-over ten years after the three-year statute of
limitations had expired. In view of the above, it is clear
from the face of Hutcherson's complaint that his claims
were barred by the statute of limitations, and Hutcherson
failed to rebut this defense by providing sufficient
non-conclusory allegations of fraudulent concealment.
Chalmers, 326 Ark. 895, 935 S.W.2d 258.
Appellees also moved to dismiss the
complaint as barred by res judicata, sovereign immunity,
qualified immunity, and absolute prosecutorial immunity, and
because Hutcherson had failed to state claims against the
named defendants and was otherwise barred from collaterally