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Elliott v. City of Union City

filed: June 1, 1994.

CHARLES LEONARD ELLIOTT, PLAINTIFF-APPELLANT,
v.
CITY OF UNION CITY, ET AL. DEFENDANTS-APPELLEES.



Appeal from the United States District Court for the Northern District of California. D.C. No. CV-87-4947 DLJ. D. Lowell Jensen, District Judge, Presiding.

Before: Stephen Reinhardt and Edward Leavy, Circuit Judges, and William D. Browning,*fn* District Judge. Opinion by Judge Reinhardt.

Author: Reinhardt

REINHARDT, Circuit Judge:

The issue before us is whether the California disability statute, Cal. Civ. Proc. Code § 352(a)(3), tolls the statute of limitations when a plaintiff, suing under 42 U.S.C. § 1983 to recover for injuries suffered during an arrest, is held in continuous custody from the time of that arrest through the period of his incarceration following his conviction. Plaintiff Charles Elliott appeals pro se the district court's judgment in favor of defendants Union City, the Union City Police Chief, and members of the Union City Police Department. The district court granted defendants' motion for judgment on the pleadings, finding that Elliott's claim that Union City police officers used excessive force in arresting him was barred by the applicable statute of limitations. Because we hold that § 352(a)(3) tolls the limitations period when the plaintiff has been in continuous custody, commencing at the time of his arrest, we reverse and remand to the district court for further proceedings.

FACTS AND PROCEDURAL HISTORY

In 1985, after a domestic dispute, Elliott was arrested and charged with two felony counts of battery on a police officer, and was held in continuous police custody until he was convicted on both counts and sent to prison. His imprisonment lasted from October 1985 to November 1990. On September 29, 1987, while in state prison, Elliott filed this § 1983 action in federal district court alleging that the defendant police officers used excessive force in subduing him with a taser "stun gun" during his arrest.

The district court granted defendants' Fed. R. Civ. P. 12(c) motion for judgment on the pleadings. The court found that the statute had not been tolled by Elliott's arrest and incarceration, and consequently held that the statute of limitations applicable to Elliott's claim expired on April 17, 1986, approximately 18 months prior to the date Elliott filed his federal complaint.*fn1

Discussion

I. The Statute of Limitations Does Not Bar

Elliott's Section 1983 Action

Federal law determines when a cause of action accrues and the statute of limitations begins to run for a § 1983 action. Bagley v. CMC Real Estate Corp., 923 F.2d 758, 760 (9th Cir. 1991), cert. denied, 117 L. Ed. 2d 409, 112 S. Ct. 1161 (1992). Specifically, in cases of the type before us, the claim accrues when the plaintiff "knows or has reason to know of the injury which is the basis of the action." Id. (quoting Norco Construction, Inc. v. King County, 801 F.2d 1143, 1145 (9th Cir. 1986)). Accordingly, Elliott's cause of action accrued with his arrest on March 17, 1985.

Section 1983 does not contain its own limitations period, but the Supreme Court has held that the appropriate period is that of the forum state's statute of limitations for personal injury torts. See Wilson v. Garcia, 471 U.S. 261, 276, 85 L. Ed. 2d 254, 105 S. Ct. 1938 (1985). In California this period is one year. Cal. Civ. Proc. Code § 340(3) (West Supp. 1992). Although Elliott's cause of action accrued prior to the Court's decision in Wilson, the one-year period is still relevant to this action. In Usher v. City of Los Angeles, 828 F.2d 556, 558 (9th Cir. 1987), we articulated a "uniform rule" governing Wilson 's retroactive effect, according to which the limitations period for Elliott's claim expired one year after Wilson was decided, that is, on April 17, 1986.

A. Tolling Under § 352(a)(3)

Elliott contends that the limitations period was tolled commencing with his arrest because from that moment on he was held in continuous custody awaiting trial. He also contends that the tolling continued both while he was awaiting trial and during the period he was serving his prison sentence. State tolling statutes apply to § 1983 claims. Hardin v. Straub, 490 U.S. 536, 543-44, 104 L. Ed. 2d 582, 109 S. Ct. 1998 (1989). Elliott therefore relies on Cal. Civ. Proc. Code § 352(a)(3), a disability provision that tolls the statute of limitations when a person is "imprisoned on a criminal charge, or in execution under sentence of a criminal court for a term of less than for life." However, § 352(a)(3) only tolls the statute of limitations if the disability existed at the time the claim accrued. See Cal. Civ. Proc. Code § 357 (West 1982). Because Elliott remained in police custody from the time of his arrest, when his excessive force claim ...


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