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Thompson v. Duffy

filed*fn*: July 3, 1991.

MANCY N. THOMPSON, JR., PLAINTIFF-APPELLANT,
v.
JOHN F. DUFFY, ET AL., DEFENDANTS-APPELLEES



Appeal from the United States District Court for the Southern District of California; William B. Enright, District Judge, Presiding; D.C. No. CV-89-0736-E(IEG).

Schroeder, Fletcher, and Leavy, Circuit Judges.

MEMORANDUM

Mancy N. Thompson, Jr., a California state prisoner, appeals pro se the district court's dismissal of his 42 U.S.C. §§ 1983, 1985, and 1986 action as time barred. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we vacate and remand.

I

FACTS

On May 16, 1989, Thompson filed a 42 U.S.C. § 1983 civil rights complaint against the San Diego county sheriff, John F. Duffy, and five deputy sheriffs. Thompson alleged that he had been assaulted by several deputy sheriffs in the San Diego county jail while awaiting transport to the county courthouse. Thompson stated that this assault occurred on November 22, 1989. This date was clearly incorrect given that the complaint was filed in May of 1989.

The defendants responded with a motion to dismiss for failure to state a claim or, in the alternative, to obtain a more definitive statement. Thompson filed an opposition to the defendant's motion in which he stated both in his memorandum and in an accompanying declaration that the assault occurred on November 22, 1988.

Thompson then filed a motion for leave to amend his complaint, which the district court granted. In the amended complaint, Thompson reiterated his section 1983 claim and added claims under 42 U.S.C. §§ 1985 and 1986. In his amended statement of facts, Thompson recounted essentially the same facts contained in his original complaint except that he alleged that the assault occurred on November 22, 1987.

The defendants responded with another motion to dismiss. The defendants argued that based on Wilson v. Garcia, 471 U.S. 261 (1985), the applicable statute of limitation period was one year under California's residual statute of limitations for personal injury actions, codified as Cal. Civ. Proc. Code § 340(3). Thus, based on Thompson's allegation in his amended complaint that the assault occurred on November 22, 1987, the defendants contended that the action was time barred. Thompson filed an opposition to the defendants' motion in which he alleged that the applicable statute of limitation was three years and that the action was timely because it was filed "1 year 5 months and 9 days after the incident."

On April 25, 1990, the district court entered an order dismissing Thompson's action with prejudice as time barred under Cal. Civ. Proc. Code § 340(3)'s one-year limitation period.

On April 30, 1990, Thompson filed a motion, dated April 20, 1990, requesting that he be allowed to correct his complaint to indicate that the date of the alleged assault was November 22, 1988, not November 22, 1987. Included with this motion was a reporter's transcript from a sentencing hearing in California v. Thompson, No. CRN-12469, held on November 22, 1988 in the superior court of the state of California for the county of San Diego. In the November 22, 1988 transcript, Thompson told the judge:

I [want] . . . it on the record that I was attacked by jail deputies this morning until my head was busted and that I was already physically subdued and placed in leg irons and hand irons when this incident occurred.

The superior court judge noted for the record that Thompson had "suffered some type of laceration over [his] forehead and that dried blood is evident on both sides of [his] face." These statements are consistent with the allegations contained in both Thompson's original and amended complaints. The district court took no action on this motion.

On May 15, 1990, Thompson filed a Fed. R. Civ. P. 60(b) motion with the district court seeking to vacate the dismissal based on Thompson's allegation that the assault occurred on November 22, 1988, not November 22, 1987. The district court denied ...


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