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Crawford v. Goldberg

filed*fn*: April 13, 1994.

DAVID CRAWFORD, PLAINTIFF-APPELLANT,
v.
GERALD GOLDBERG; ROBERT BONNICI; JOHN AKIN; JAMES STEVENS, DEFENDANTS-APPELLEES.



Appeal from the United States District Court for the Southern District of California. D.C. No. CV-91-1357-JNK. Judith N. Keep, Chief District Judge, Presiding

Before: Poole, Beezer, and T.g. Nelson, Circuit Judges.

MEMORANDUM

David Crawford, appeals pro se the district court's order granting the defendants' motion to dismiss in his 42 U.S.C. § 1983 action. Additionally, Crawford contends that the district court erred in denying him leave to file an amended complaint and that the district court erred in dismissing rather than staying an earlier civil rights action. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

I. Dismissal of Prior Civil Rights Action

We are required to raise issues concerning our jurisdiction sua sponte. McGuckin v. Smith, 974 F.2d 1050, 1052 (9th Cir. 1992). A notice of appeal must be filed within thirty days of the date of entry of the judgment or order appealed from. Fed. R. App. P. 4(a)(1). The procedures set forth in Rule 4 are strictly construed with no exceptions for pro se litigants. See Malone v. Avenenti, 850 F.2d 569, 572 (9th Cir. 1988).

Prior to commencing this federal action, Crawford had attempted to file another federal action raising similar claims. On June 14, 1989, Crawford filed his first federal civil rights action with the district court (Case No. 89-0883-G(M)). On January 8, 1991, the district court dismissed these claims without prejudice and ordered Crawford to exhaust state remedies before filing a new federal action. Crawford now contends that the district court erred in dismissing this first action because the district court had a duty to retain jurisdiction. Crawford did not appeal the dismissal of this first action.

A dismissal of claims without prejudice is deemed final for purposes of appeal unless the court intends to permit the amendment of the complaint in the same action. McGuckin, 974 at 1052-53. Here, the district court indicated that it intended to end the litigation so that Crawford could pursue his state remedies. See id. Crawford did not file a notice of appeal from the dismissal of the claims in his first federal action. See Fed. R. App. P. 4(a)(1). Accordingly, we lack jurisdiction to consider the dismissal of Crawford's first federal action. See id.

II. Statute of Limitations

Crawford contends that the district court erred in granting the defendants' motion to dismiss under Fed. R. Civ. P. 12(b)(6).*fn1 Specifically, Crawford argues that the court erred in holding that the statute of limitations barred three of his claims. This contention lacks merit.

We review de novo the district court's dismissal of a complaint on statute of limitations grounds. Donoghue v. Orange County, 848 F.2d 926, 929 (9th Cir. 1987). "When a motion to dismiss is based on the running of the statute of limitations, it can be granted only if the assertions of the complaint, read with the required liberality, would not permit the plaintiff to prove that the statute was tolled." Cervantes v. City of San Diego, 5 F.3d 1273, 1275 (9th Cir. 1993). In California, § 1983 claims are subject to the one-year limitations period for personal injury actions. Id. at 1275; Cal. Code Civ. Proc. § 340(3) (West 1994). Although state law prescribes the statute of limitations applicable to § 1983 claims, federal law governs the time of accrual. Gibson v. United States, 781 F.2d 1334, 1340 (9th Cir. 1986), cert. denied, 479 U.S. 1054, 93 L. Ed. 2d 979, 107 S. Ct. 928 (1987). Thus, for § 1983 claims, a cause of action accrues and the statute of limitations begins to run when a party knows or has reason to know of the injury which is the basis for the action. Vaughan v. Grijalva, 927 F.2d 476, 480 (9th Cir. 1991).

As with the limitations period itself, state tolling doctrines apply to the extent that they are consistent with federal policy. Cervantes, 5 F.3d at 1275; Donoghue, 848 F.2d at 930. The statute of limitations is tolled under the California doctrine of equitable tolling*fn2 if the plaintiff pursues his remedy in another forum and the actions satisfy three factors: (1) timely notice to the defendants in filing the first claim; (2) lack of prejudice to the defendants in gathering evidence for the second claim; and (3) good faith and reasonable conduct in filing the second claim. Cervantes, 5 F.3d at 1275.

Application of this three-part test is mandatory prior to dismissal of an action under Fed. R. Civ. P. 12(b)(6). Id. at 1275-76. The issue of equitable tolling is fact-intensive and generally more appropriately applied at the summary judgment or trial stages of litigation rather than the pleading stage. Id. at 1276. However, the district court may grant a motion to dismiss if it is clear from the face of the complaint and the judicially noticed documents that the plaintiff can not prevail as a matter of law, on the equitable tolling issue. Id. ; Emrich v. Touche Ross & Co., 846 F.2d 1190, 1198 (9th Cir. 1988); see Del Percio v. Thornsley, 877 F.2d 785, 786 n.1 (9th Cir. 1989) (defendants in second claim entirely unrelated to parties in first claim); Ervin v. County of Los Angeles, 848 F.2d 1018, 1020 (9th Cir. 1988) (year and a half wait to file second claim unreasonable and not in good faith), cert. denied, 489 U.S. 1014, 103 L. Ed. 2d 187, 109 S. Ct. 1125 (1989).

A. Alteration of Hearing Officer's Decision (1981)

In his second cause of action, Crawford alleges that the defendants removed a hearing officer's recommendation to withdraw charges of incompetence against Crawford, leading to Crawford's first demotion in 1981. Thus, the cause of action accrued in December 1981 with Crawford's demotion which formed the basis for this claim. See Vaughan, 927 F.2d at 480.*fn3 Since Crawford filed this action in 1991, Crawford ...


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