Gonsalves v. Flynn

• Court: Court of Appeals for the First Circuit
• Decided: December 11, 1992
• Docket: 92-1498
• Status: Published

Opinion

USCA1 Opinion

December 11, 1992
                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

___________________

No. 92-1498

DON J. GONSALVES,

                                Plaintiff, Appellant,

                                          v.

                                 PETER FLYNN, ET AL.,

                                Defendants, Appellees.

                                  __________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                     [Hon. Joseph L. Tauro, U.S. District Judge]
                                            ___________________

                                 ___________________

                                        Before

                                Selya, Cyr and Boudin,
                                   Circuit Judges.
                                   ______________

                                 ___________________

               Don J. Gonsalves on brief pro se.
               ________________
               Robert E. McCarthy on brief for appellees.
               __________________

__________________

                                  __________________

Per Curiam.  Plaintiff Don J. Gonsalves, a Massachusetts
                 __________

            inmate, appeals the  dismissal of his complaint as  barred by

            the statute of limitations.  We affirm.

                                          I.

                 The relevant dates of the events which gave rise to this

            action are  not in dispute.   Gonsalves entered  the Plymouth

            County  House  of Correction  on January  12,  1985.   He was

            placed in an isolation  cell on January 25.  He was allegedly

            assaulted  by  five  of the  seven  defendants  on  March 16,

            1985.1    On April  30, 1985,  Gonsalves escaped  while being

            transported  for  medical  treatment.   He  was  arrested  in

            Washington on  April 12,  1986, where  he remained  in prison

            until June 4, 1988.   He was then returned  to Massachusetts.

            On July 9, 1988, Gonsalves was reincarcerated at the Plymouth

            County  House of Correction.  He  filed the instant complaint

            on October 25, 1988.  The district court appointed counsel to

            represent Gonsalves  and two amended  complaints were  filed.

            The last  of these  raised claims  for  assault and  battery,

            intentional  infliction of emotional distress, and violations

            of Gonsalves'  state and federal civil  rights resulting from

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            1.  These five are Plymouth corrections officers Paul Gavoni,
            Robert  Rosetti, John  Cardinal, Frank  Vernazzaro and  Chris
            Wallace.   The remaining  defendants - Ronald  Kumm and Peter
            Flynn - are sued in their supervisory capacities.

                                         -2-

his  wrongful  detention in  isolation  and  the March,  1985

            beating.

                 Each defendant  raised the statute of  limitations as an

            affirmative  defense.   On  February 24,  1992, the  district

            court  ordered the  parties  to brief  the  issue of  whether

            Gonsalves' claims  were barred by the  statute of limitations

            and the effect of Gonsalves' escape on any applicable tolling

            provision.    When Gonsalves'  claims accrued  in March-April

            1985,   Massachusetts  law   recognized  imprisonment   as  a

            condition  that   would  toll  the   three-year  statute   of

            limitations  that  generally applied  to  tort actions  under

            M.G.L. c.  260,  2A.2   After  Gonsalves' claims  accrued and

            before he  filed suit, the Massachusetts  legislature amended

            M.G.L. c.  260,  7  by deleting  imprisonment as  a disabling

            condition  that  would prevent  the  limitations  period from

            running.  See St. 1987, c.  198.  That amendment took  effect
                      ___

            on  September 30, 1987,  ninety days after  the amendment was

            passed.  

                 Mindful  of  this  history, the  defendants  argued that

            Gonsalves'  suit was  time-barred because  it was  filed more

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            2.  The tolling provision then in  effect, M.G.L. c. 260,  7,
            provided:

                      If  the  person  entitled  thereto  is  a
                      minor, or  is insane or imprisoned when a
                      right to bring  an action first  accrues,
                      the  action may  be commenced  within the
                      time   hereinbefore  limited   after  the
                      disability is removed.

                                         -3-

than   three  years   after  his   claims  accrued   and  his

            imprisonment did  not toll  the limitations period  under the

            amended tolling statute.  In  support of this contention, the

            defendants relied on  Street v.  Vose, 936 F.2d  38, 39  (1st
                                  ______     ____

            Cir.  1991) (per  curiam)(upholding sua  sponte  dismissal of
                                                ___  ______

            complaint as frivolous under  28 U.S.C.  1915(d), where claim

            was  barred by the statute of limitations and tolling did not

            apply).   In Street,  we rejected the  plaintiff's contention
                         ______

            that  the  amendment  deleting  imprisonment  as   a  tolling

            condition was  unconstitutional and/or did not  apply to him,

            reasoning that Massachusetts law compelled a contrary result.

The  district  court  dismissed   Gonsalves'  complaint.

            After   expressing   uncertainty   as   to   whether   Street
                                                                   ______

            "established  a bright line rule applicable  to all suits" or

            was  limited   to  its  facts,  the   court  determined  that

            Gonsalves' claims were time-barred even if the former tolling

            statute  applied,  because   Gonsalves'  escape  started  the

            limitations period running and his subsequent reincarceration

            did  not stop it.   Gonsalves  appeals from  this order.   We

            affirm on an  alternative ground;  in our view  this case  is

            controlled by Street.   Consequently,  Gonsalves' claims  are
                          ______

            time-barred.      

                                         II.

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On appeal,  Gonsalves, now  pro se, reiterates  the same

            arguments  raised by his  counsel below.   First, he contends

            that the tolling statute  in effect when his cause  of action

            accrued  applies  to this  case  and  that the  Massachusetts

            legislature's subsequent  repeal of imprisonment as a tolling

            condition does not operate "retroactively" to bar his claims.

            Citing such  cases as  Carter v. Supermarkets  General Corp.,
                                   ______    ___________________________

            684 F.2d 187, 191 n.10 (1st Cir. 1982); Kadar v. Milbury, 549
                                                    _____    _______

            F.2d  230, 234  (1st Cir.  1977); and  Image &  Sound Service
                                                   ______________________

            Corp. v. Altec Service Corp., 148 F. Supp. 237, 240 (D. Mass.
            _____    ___________________

            1956), Gonsalves asserts that  "[i]t is black-letter law that

            the timeliness of a cause of action is ordinarily governed by

            the  limitations period,  along with  any applicable  tolling

            provisions, which  existed at the time  the Plaintiff's cause

            of action  accrued."  Second,  Gonsalves argues that  even if

            the amendment repealing imprisonment as a disability applies,

            it did not trigger the three-year limitations period until it

            took  effect  on  September 30,  1987.    Under  this theory,

            Gonsalves had until September  30, 1990 to file suit  and his

            October  1988 complaint would be timely.  A contrary holding,

            Gonsalves says, would violate  federal law.  Both contentions

            overlook the fundamental principle that it is state law,  not

            federal  law,  which  determines  the  applicable limitations

            period  and coordinate  tolling rules.  See, e.g.,  Hardin v.
                                                    ___  ____   ______

            Straub, 490 U.S. 536, 539 (1989).
            ______

-5-

"In  a   1983   action,...  Congress  has   specifically

            directed the  courts, in  the absence of  controlling federal

            law, to apply state statutes of limitations and state tolling

            rules unless they are 'inconsistent with the Constitution and

            laws of the United States.'" Chardon v. Fumero Soto, 461 U.S.
                                         _______    ___________

            650,  661  (1983)(quoting  42   U.S.C.   1988).    The  cases

            Gonsalves cites  turned on applicable state  law, rather than
                                                  _____

            the  abstract  principles Gonsalves  posits  as  a matter  of

            federal law.3   Thus, in  Kadar, we upheld  the dismissal  of
            _______                   _____

            part of a  1983 complaint as to four defendants on timeliness

            grounds.   In so  doing, we applied  the two-year limitations

            period in effect  when the plaintiff's cause  of action arose

            in 1971-72 because state law expressly provided that the new,

            three-year limitations period embodied  in M.G.L. c. 260,  2A

            applied to causes of  action arising on and after  January 1,

            1974.  As Kadar's claims largely arose before then, they were

            time-barred.  See Kadar, 549 F.2d at 234 n. 3.  Similarly, in
                          ___ _____

            Carter,  684   F.2d  at   190-91,  we  applied   a  six-month
            ______

____________________

            3.  Cases such as  C.P.I. Crude,  Inc. v.  Coffman, 776  F.2d
                               ___________________     _______
            1546, 1551 (Temp. Emerg. Ct. App. 1985), suggest that federal
            courts borrowing  state statutes of limitations  should, as a
            matter of federal law,  use the state statute in  effect when
            the federal cause  of action accrued.   A corollary principle
            would  look to  the state  tolling  law then  in effect.   We
            decline to fashion  such a  federal common law  rule in  this
            case.  We  have  found  no  authority  for  applying  such  a
            principle in  a section 1983 case.  To do so runs  counter to
            the  Supreme Court's  direction  to apply  state statutes  of
            limitations  and tolling  rules  in civil  rights actions  as
            "binding rules of  law."   Board of Regents  v. Tomanio,  446
                                       ________________     _______
            U.S. 478, 484 (1979).

                                         -6-

limitations  period  embodied in  M.G.L. c.  151B,  5  to the

            plaintiff's  employment  discrimination   claim  because   we

            determined it  to be the "most  analogous" state law.   To be

            sure,  this   six-month  period   was  in  effect   when  the

            plaintiff's  cause of  action accrued  and we  applied it  in

            preference to  a limitations  period subsequently  enacted in

            M.G.L. c. 151B,   9, although we  assumed that this  two-year

            period could  be  applied retroactively  under  Massachusetts
                   _____

            law.   See Carter, 684 F.2d at 191 n.9.   We applied the six-
                   ___ ______

            month period  over the two-year period  because we determined

            the  former was the  most analogous,4 not  because it existed

            when the plaintiff's claims accrued.

                  Gonsalves asserts that courts which have considered the

            effect of a  repeal of a tolling  provision for imprisonment,

            e.g.,  Vaughan v. Grijalva, 927 F.2d 476 (9th Cir. 1991), and
            ____   _______    ________

            Henson-El v.  Rogers,  923  F.2d 51  (5th  Cir.  1991),  have
            _________     ______

            "uniformly  held  that  such   repeal  does  not  affect  the

            applicability of  the tolling  provision between the  date of

            accrual of the cause  of action and the effective date of the

            repeal."     But,  these cases  also  turn on  borrowed state

            tolling rules.  The  result in Vaughan was compelled  by Zuck
                                           _______                   ____

            v. Arizona, 764 P.2d 772 (Ariz. 1988).  See Vaughan, 927 F.2d
               _______                              ___ _______

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            4.  This  holding was  overruled by  Burnett v.  Gratton, 468
                                                 _______     _______
            U.S.  42, 50-55  (1984)(holding six-month  limitations period
            for state  administrative proceedings to be  an inappropriate
            period for  civil rights  actions). See Rowlett  v. Anheuser-
                                                ___ _______     _________
            Busch, Inc., 832 F.2d 194, 198 (1st Cir. 1987).
            ___________

                                         -7-

at 479.    Similarly,  in Henson-El, 923  F.2d at  52-53, the
                                      _________

            Fifth  Circuit affirmed  the dismissal  of an  inmate's  1983

            suit  as  time-barred  even  though,  under  Texas  law,  the

            plaintiff's  imprisonment tolled the limitations period up to

            the effective date of an amendment deleting imprisonment as a

            tolling condition.  That amendment expressly provided that "a

            period of disability  before the effective  date of this  Act

            during which a person was under a legal disability because of

            imprisonment is not affected by this Act."  Id. at 52.
                                                        ___

            No  such savings  clause  attended the  Massachusetts statute

            deleting imprisonment as a tolling condition. 

                 To  sum  up,  then,  imprisonment no  longer  tolls  the

            statute of  limitations with respect to  federal civil rights

            actions filed  in Massachusetts  after the effective  date of

            the tolling  amendment (September 30,  1987).5   That is  the

            teaching of Street, plain  and simple.  The principle  may be
                        ______

            applied as  a  bright line  rule  in those  prisoners'  civil

            rights  cases filed  after  September, 1987  with respect  to

            claims that accrued  earlier.   This result  is compelled  by

            Massachusetts  law, which  generally  holds  that, "[i]f  the

____________________

            5.  This does  not foreclose prisoners from  arguing that the
            tolling amendment  is unconstitutional  as  applied to  them.
            Where  such an argument is made, the plaintiff must show that
            the  ninety-day  window  left  by the  amendment,  under  the
            circumstances of  the  prisoner's case,  was "'manifestly  so
            insufficient that the statute becomes a denial of justice .'"
            Cioffi  v.  Guenther, 374  Mass. 1,  370  N.E. 2d  1003, 1005
            ______      ________
            (1977) (citation omitted).  

                                         -8-

point in the  proceedings to  which the  statutory change  is

            applicable  has  already  passed,  the  proceedings  are  not

            subject to that  change.  If ... that point  has not yet been

            reached,  the  new provisions  apply."   Porter  v.  Clerk of
                                                     ______      ________

            Superior Court,  368 Mass. 116,  330 N.E.2d 206,  208 (1975).
            ______________

            Gonsalves  did not  file his  complaint until  October, 1988,

            approximately thirteen months after the tolling amendment was

            passed.   Therefore, the amendment  applies to his  case.  As

            Gonsalves'  suit was  filed more  than three years  after his

            claims  accrued  and  he  is  not entitled  to  tolling,  his

            complaint  is time-barred.   Compare  Riley v.  Presnell, 409
                                         _______  _____     ________

            Mass.  239, 565 N.E.2d 780,  788 n. 3  (1991) (holding former
                                                                   ______

            tolling statute  applied to malpractice action  filed in 1985

            because complaint and answer  had been filed before amendment

            became law).6  

                 Gonsalves   contends  that  federal  law  prohibits  the

            "retroactive" application of this amendment to extinguish his

            previously accrued  causes of action.   Specifically, he says

            that  under federal  law a  statute is  applied prospectively

            unless  a contrary  intent  is clearly  stated. The  argument

____________________

            6.  In Riley, the Massachusetts Supreme Judicial Court held a
                   _____
            second 1987 amendment to the  tolling statute, (St. 1987,  c.
            522,   19), which  substituted incapacitating  mental illness
            for insanity  in enumerating the tolling  conditions, did not
            apply.   Rather,  the court  applied the  tolling statute  in
            effect when the plaintiff brought suit.  That is the relevant
            time  by  which  to   determine  the  applicable  statute  of
            limitations  and  coordinate tolling  law,  not  the time  of
            accrual.  

                                         -9-

again   mischaracterizes   the   applicable   law.      Under

            Massachusetts law,  the  opposite principle  obtains.    See,
                                                                     ___

            e.g., Anderson v. Phoenix Investment Counsel of Boston, Inc.,
            ____  ________    __________________________________________

            387  Mass.  444, 440  N.E. 2d  1164,  1170 (1982);  Mulvey v.
                                                                ______

            Boston, 197 Mass.  178, 83 N.E. 402  (1908) (applying general
            ______

            rule  that statutes  of limitation  control future  procedure

            with regard  to previously  existing causes of  action unless

            specific language clearly limits their  application to causes

            of action arising in the  future).  We applied this tenet  to

            the  tolling  amendment  in  Street,  seeing  "no  principled
                                         ______

            distinction between shortening  a statute of  limitations ...

            [and] deleting a particular class of persons from the tolling

            statute."  Messere v. Murphy, 32 Mass. App. Ct. 917, 585 N.E.
                       _______    ______

            2d 350, 352 (1992) (holding prisoner's civil rights complaint

            was time-barred where claims accrued before tolling amendment

            and  suit was filed  after amendment's  "ninety-day 'window'"

            had expired).  

                 Federal  law  does   not  dictate  a   contrary  result.

            Gonsalves overlooks  the fact  that the tolling  amendment is

            being  applied  prospectively  to  a  suit  filed  after  its
                            _____________

            enactment.    Gonsalves  further contends  that  the  tolling

            amendment  may  not  be   applied  unless  it  satisfies  the

            retroactivity  test of  Chevron  Oil v.  Huson,  404 U.S.  97
                                    ____________     _____

            (1971). Chevron  Oil speaks  to the retroactivity  of federal
                    ____________

            decisional law.   It does not  apply to the issues  raised by

-10-

this appeal.  Rather, absent a showing that it  would lead to

            a  result inconsistent  with  the policies  behind 42  U.S.C.

             1983  - which  has  not been  made  here- Massachusetts  law

            controls.

                 Gonsalves'  one-sentence  argument   that  the   amended

            tolling statute was unconstitutional as applied to him is not

            sufficient  to preserve  this issue  on appeal.    See, e.g.,
                                                               ___  ____

            United States v. Zannino, 895 F.2d 1, 17 (1st Cir.), 494 U.S.
            _____________    _______

            1082  (1990).  This is  especially so because  any such claim

            depends on the application of general standards to particular

            facts and a showing how, on the particular facts, the tolling

            amendment  has  operated  unconstitutionally.    We  note  in

            passing, however,  that the ninety-day window  allowed by the

            Massachusetts amendment  did not  govern Gonsalves'  claim in

            this  instance for his claim did not expire until some months

            after the amendment became effective in September 1987.  

                      Judgment affirmed.       
                      __________________

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