Kevin JONES, Plaintiff-Appellant v. Mark FROST; Gary Dunn; James Bacon; City of Russellville, Arkansas, Defendants-Appellees.
No. 13-3094.
United States Court of Appeals, Eighth Circuit.
Submitted: Sept. 10, 2014. Filed: Oct. 30, 2014.
Rehearing and Rehearing En Banc Denied Dec. 5, 2014.
1183
Jeffrey M. Rosenzweig, argued, Little Rock, AR (William O. James, Jr., on the brief, Little Rock, AR), appellee Mr. Gary Dunn.
John Lennon Wilkerson, argued, North Little Rock, AR, for appellees City of Russellville, Mark Frost and Mr. James Bacоn.
Before WOLLMAN, LOKEN, and MURPHY, Circuit Judges.
MURPHY, Circuit Judge.
Kevin Jones filed this action four years after an Arkansas jury acquitted him of murdering Nona Dirksmeyer. Jones alleges that the City of Russellvillе, two
Nona Dirksmeyer, a nineteen year old student at Arkansas Tech University, was murdered in her Russellville, Arkansas apartment on December 15, 2005. She died after someone bludgeoned the back of her head with a lamp. Working under poliсe chief James Bacon, officer Mark Frost investigated her murder and suspected that the crime was committed by either Kеvin Jones, Dirksmeyer‘s boyfriend, or Gary Dunn, a parolee who lived across the street from her. After investigating both Jones and Dunn, Frost presented his findings in a report to the state prosecutor. His report stated that Jones had failed a polygraph exam аnd had given conflicting accounts about where he was at the time of the murder. According to the report, Dunn had passed his polygraph exam and claimed he had been shopping with his mother at the time Dirksmeyer was killed. Frost examined bank records thаt apparently confirmed where Dunn‘s mother had been on December 15, but a bank employee later told him that the reсords might not be accurate. As a result Frost decided not to include the bank records in his report to the prosecutor.
Bаsed in part on Frost‘s report, the state charged Jones with murder. He went to trial, and a jury acquitted him in July 2007. A few months later, the state linked DNA evidence found in Dirksmeyer‘s apartment to Dunn. The state then prosecuted Dunn, who argued that Jones had committed the murder. Twо different juries deadlocked over Dunn‘s guilt, and the charges against him were dropped after the second mistrial.
Over four years after his acquittal, Jones brought the present action alleging that Frost, Bacon, Dunn, and the City of Russellville had conspired to conceal evidence and deprive him of his constitutional right to a fair trial. He seeks relief under
We review the district court‘s grant of summary judgment de novo, viewing all evidence and drawing all reasonable inferences in favor of the nonmoving party. Baye v. Diocese of Rapid City, 630 F.3d 757, 759 (8th Cir.2011). Summary judgment is proper when there is no genuine dispute of material fact and the prevailing party is entitled to judgment as a matter of law. Id.
The Arkansas personal injury statute of limitations applies to Jones’ claims under
To establish equitable tolling, a party must show “some positive act of fraud, something so furtively planned and secretly executed as to keep the plaintiff‘s cause of aсtion concealed.” Varner v. Peterson Farms, 371 F.3d 1011, 1016 (8th Cir.2004). Even viewing the evidence here in the light most favorable to Jones, Frost‘s field notes cannot reasonably be read to contradict the report that he provided to the state prosecutor. The notes indicate that bank records could not confirm the location of Dunn‘s mother on the day of the murder. Frost‘s report to the proseсutor said that Dunn had passed a polygraph test and given a statement that he was with his mother on the day of Dirksmeyer‘s death. These documents do not conflict with one another. Frost‘s decision not to pass along notes regarding inconclusive bank reсords does not show that he conspired with Dunn and the Russellville city government to commit a “positive act of fraud.” Id. at 1017.
Furthermore, еven if Frost had fraudulently attempted to conceal his field notes, that action would not have tolled the statutes of limitations if Jones “could have discovered the fraud or sufficient other facts on which to bring [a] lawsuit, through a reasonable effort.” Varner, 371 F.3d at 1017. Jоnes’ investigator testified that in February or March of 2008 he had access to a typed copy of Frost‘s field notes. The investigаtor also testified that around the same time he conducted an independent investigation of the transactions mentionеd in Frost‘s notes. This testimony shows that Jones could have discovered the contents of Frost‘s notes more than three years befоre he filed his complaint in December 2011.
Jones offers additional evidence to support his conspiracy claims, but this evidence was similarly available to him more than three years before he filed his complaint. Jones’ counsel knew that the police had investigated Dunn as a potential suspect in Dirksmeyer‘s murder before Jones was acquitted of the crime. DNA evidence found in Dirksmeyer‘s apartment that indicated Dunn had been at the scene of the crime was available to Jones in December 2007. Even if the statutes of limitations were tolled until Jones’ investigator undertook an independent examination of Dunn‘s аlibi in March 2008, Jones still failed to file his complaint within the applicable three year time period. His claims are time barred.
For these reasons we affirm the judgment of the district court.