De Luna v. Farris

841 F.2d 312, 1988 WL 19012
Court of Appeals for the Ninth Circuit·Decided March 9, 1988·No. No. 86-2750·Published·Cited by 14 cases

Opinions

J. BLAINE ANDERSON, Circuit Judge:

Pedro De Luna, Jr. (De Luna) appeals from the district court’s grant of Farris’s motion for summary judgment based upon a claim that De Luna’s 42 U.S.C. § 1983 action was barred by the statute of limitations. We affirm.

The essence of De Luna’s § 1983 action was that three Phoenix police officers (Far-ris) used unnecessary force (beat and hogtied him) in arresting him for armed robbery in Phoenix on June 7, 1983.1 As a result of this, a preexisting leg injury was aggravated and De Luna experienced several medical problems and operations on his leg.

Since 42 U.S.C. § 1983 does not contain a limitations period, federal courts apply the state statute of limitations applicable to the most similar cause of action from the state in which the cause of action arose. Board of Regents of the University of the State of New York v. Tomanio, 446 U.S. 478, 100 S.Ct. 1790, 64 L.Ed.2d 440 (1980). The appropriate statute of limitations period for a 42 U.S.C. § 1983 action is that of the state’s statute of limitations in personal injury cases. Wilson v. Garcia, 471 U.S. 261, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985). A.R.S. § 12-542(1) provides a two-year period for filing personal injury claims.

At the time De Luna was arrested, A.R.S. § 12-502 provided that imprisonment was a disability that would toll the statute of limitations. This statute, however, was amended on August 3, 1984. It now provides that the period for disability for imprisonment exists only until the person imprisoned discovers the right to bring the action, or with the exercise of reasonable diligence should have discovered the right to bring the action, whichever occurs first. The magistrate found that it was unclear whether the amended § 12-502 was applicable since the claim arose on June 7, 1983, prior to the effective date of the amendment. To support the view that the amended statute should not be applied, he pointed to Marks v. Parra, 785 F.2d 1419 (9th Cir.1986). In Marks, we held that the 1984 amendment was inapplicable since Marks filed his complaint in June 1983 and the district court dismissed the complaint on June 15, 1983. Thus we found that the disability of imprisonment tolled the statute of limitations and the claim was not barred. In the instant case, however, while De Luna was injured on June 7, 1983, he did not file his first complaint until September 20, 1984, after the amended statute had become effective. Thus we are not bound to follow Marks.

In Usher v. City of Los Angeles, 828 F.2d 556 (9th Cir.1987), this court considered the impact of Wilson v. Garcia, 471 U.S. 261, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985) upon Usher. In Wilson, the Supreme Court held that the statute of limitations in § 1983 actions is that of the state’s statute of limitations in personal injury [314]*314cases. Usher’s cause of action arose before the Wilson decision, but he did not file his complaint until after the decision. If the rule in Wilson was followed, it would result with the applicable statute of limitations being shortened from three years to one year. Usher filed his complaint one year and 19 days after the cause of action arose.

In determining whether Wilson should be retroactively applied, this court followed the criteria set forth in Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed. 2d 296 (1971). After deciding that a wholly retroactive application of Wilson would constitute a clear break with precedent, would retard one of the purposes of the new rule (i.e., safeguarding the rights of federal civil rights litigants), and would produce an inequitable result, this court ruled against a blanket retroactive application of Wilson.

Usher, which dealt only with the effect of Wilson on statutes of limitations in § 1983 actions that arose before the Wilson decision, is distinguishable from De Luna. While Usher dealt with the retroactive application of a judicial decision which had the effect of either lengthening or shortening a statute of limitations, De Luna deals with the retroactive application of an amended statute.

It is well established law that federal courts must apply not only the appropriate state statute of limitations, but also the applicable state rule for tolling that statute of limitations for actions brought under § 1983. See, e.g., Board of Regents v. Tomanio, 446 U.S. 478, 100 S.Ct. 1790, 64 L.Ed.2d 440 (1980), Stephan v. Dowdle, 733 F.2d 642 (9th Cir.1984), Maurer v. Ind. and as Members of Los Angeles City, 691 F.2d 434 (9th Cir.1982). We are, therefore, required to look to the state rules for tolling this action.

Prior to its amendment, the Arizona Court of Appeals determined that the tolling provision of A.R.S. § 12-502 acted to toll prisoners’ causes of action, at least until the filing date of the original complaint. Smith v. MacDougall, 139 Ariz. 22, 676 P.2d 656, 659 (App.1983). Following this decision, in Stephan v. Dowdle, 733 F.2d 642 (9th Cir.1984), the Ninth Circuit also applied Arizona’s tolling statute to a prisoner’s cause of action. In reaching its decision, this court overruled Major v. Arizona State Prison, 642 F.2d 311 (9th Cir.1981), which held that the Arizona tolling provision was not applicable to prisoners. Stephan, 733 F.2d at 642. This was the state of the law at the time of De Luna’s arrest and at the time his cause of action arose (as determined by the district court). At the time De Luna filed his complaint, however, the law had been amended. Consequently, the disability of imprisonment as a toll was limited to such time as when the prisoner either knows of his right to sue or with the exercise of reasonable diligence should have discovered his right to sue.

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De Luna v. Farris, 841 F.2d 312, 1988 WL 19012 (9th Cir. 1988).

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