Briley v. State of Cal.

Citation564 F.2d 849
Decision Date19 October 1977
Docket NumberNo. 75-2753,75-2753
PartiesRonald Warren BRILEY, Plaintiff-Appellant, v. STATE OF CALIFORNIA, County of San Diego, Ronald Abernathy, Charles M. Snell, Jr., Earl B. Gilliam, Claude B. Brown, T. Bruce Iredale, Robert J. Stahl, Gerald F. Banks, Harry W. Depew, Doctors Hospital, et al., Defendants- Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Hugh B. Fielder, Fielder & Fielder, North Hollywood, Cal., argued for plaintiff-appellant.

Gregg C. Sindici, Reeve J. Jacques, San Diego, Cal., argued for defendants-appellees.

Appeal from the United States District Court for the Southern District of California.

Before CHOY and SNEED, Circuit Judges, and CRARY, * District Judge.

CHOY, Circuit Judge:

Ronald Warren Briley appeals from the dismissal of his action for damages brought under 42 U.S.C. §§ 1983 and 1985(3). For the reasons stated below, we affirm in part, and vacate and remand in part.

Facts and Proceedings Below

In 1960, Briley, a first offender, was arrested and charged in a California grand jury indictment with child molestation. He alleges that, pursuant to a "plea bargain" entered into with the district attorney's office, he was allowed to plead guilty to a lesser charge with sentence suspended, provided that he consent to a castration for which he would bear all costs. Although this "plea bargain" was never recorded and a court order was never entered approving it, Briley voluntarily submitted to the surgery on March 16, 1961. Thereafter, he was released on probation.

On or about February 11, 1974, almost thirteen years later, Briley claims he sought medical attention for manifestations of sexual dysfunction and other secondary symptoms, including loss of body hair, softening of body shape, irritability, lethargy, and hot flashes. He alleges that he was informed at that time that these disorders stemmed from the 1961 surgery and that he would have to maintain medical treatment for the remainder of his life as a result thereof.

On November 19, 1974, Briley initiated the instant action, alleging, inter alia, that the "plea bargain" deprived him of his civil rights in violation of the fourth, fifth, seventh, eighth, and fourteenth amendments of the Constitution. He also alleged professional malpractice on the part of his privately-retained counsel at the criminal proceedings and on the part of the doctors and the hospital participating in the surgical procedure. Named as defendants were the State of California, the County of San Diego, the judge at the criminal proceedings, the district attorneys involved in the "plea bargain," his privately-retained counsel, two private physicians (one who acted as a medical examiner for the county jail and who assisted in the surgery, and another who actually performed the surgery), and the hospital at which the operation took place.

On June 6, 1975, the district court dismissed the complaint as to all defendants. The § 1983 claim was dismissed on the following grounds: improper service with respect to the judge and one of the four district attorneys; immunity with respect to the remaining district attorneys; and the statute of limitations with respect to Briley's counsel, the doctors, and the hospital. 1 Briley's § 1985(3) claim was dismissed for failure to state a cause of action. After disposing of the federal claims, the district court also dismissed the pendent legal and medical malpractice claims which Briley had brought against his privately-retained counsel at trial, the doctors, and the hospital.

On appeal, Briley challenges only the dismissals of seven of the original defendants: the three district attorneys who were properly served; the physicians and the hospital; and his former counsel. 2 The applicability of 42 U.S.C. §§ 1983 and 1985(3) is therefore at issue here.

Civil Rights Act Claims
A. Section 1983

To state a claim under 42 U.S.C. § 1983, 3 a plaintiff must allege that (1) the defendant was acting under color of state law at the time the acts complained of were committed, and that (2) the defendant deprived plaintiff of a right, privilege, or immunity secured by the Constitution or laws of the United States. See Williams v. Gorton, 529 F.2d 668, 670 (9th Cir. 1976); Ouzts v. Maryland Nat'l Ins. Co., 505 F.2d 547, 550 (9th Cir. 1974), cert. denied, 421 U.S. 949, 95 S.Ct. 1681, 44 L.Ed.2d 103 (1975); Sykes v. State of California, 497 F.2d 197, 200 (9th Cir. 1974); Cohen v. Norris, 300 F.2d 24, 30 (9th Cir. 1962). See also District of Columbia v. Carter, 409 U.S. 418, 423-25, 93 S.Ct. 602, 34 L.Ed.2d 613 (1973). Briley asserts that he was deprived of his civil rights in the following manner. First, he argues that he was fraudulently deprived of his civil rights by being castrated in return for a suspended sentence. Secondly, he contends that he was coerced into the agreement by virtue of a conspiracy among the Government defendants and the medical examiner to harass and misinform him as to the side effects of the surgery. 4 In rebuttal, the defendants argue either that they were not acting under the requisite "color of state law" or that they are immune from liability under the Civil Rights Act. Moreover, they claim that the instant action is barred by the applicable statute of limitations. We deal with the statute of limitations issue first.

1. Statute of limitations. Since § 1983 does not itself contain a limitations period, the federal courts look to the state statute of limitations applicable to the most similar state cause of action. See Smith v. Cremins,308 F.2d 187, 189 (9th Cir. 1962); Hoffman v. Halden, 268 F.2d 280, 305 (9th Cir. 1959); Cox v. Stanton, 529 F.2d 47, 50 (4th Cir. 1975). Cf. Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 462, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975) (42 U.S.C. § 1981); O'Sullivan v. Felix, 233 U.S. 318, 322, 34 S.Ct. 596, 58 L.Ed. 980 (1914) (§§ 1979-1981). This court has held that the applicable statute of limitations for actions brought in California under the Civil Rights Act is California Code of Civil Procedure § 338(1), providing a three-year limitation period "upon a liability created by statute." See Ney v. State of California, 439 F.2d 1285, 1287 (9th Cir. 1970); Smith,supra, 308 F.2d at 189-90. The appellant's complaint can be read to allege two counts of fraud or deceit. He first claims that he was assured that castration was commonly ordered by the courts and that if he failed to submit voluntarily to the procedure he would be both sentenced to the maximum term of ten years and castrated anyway. He next alleges that the defendants misinformed him about the possible deleterious side effects of the operation. He asserts that because of these fraudulent misrepresentations the statute of limitations should have been tolled until such time that he discovered, or should have reasonably discovered, the various instances of fraud. 5

California Code of Civil Procedure § 338(1) does not contain any specific tolling provision and, hence, at first glance, Briley's claim would seem barred as untimely. 6 But, while state law controls in determining the applicable limitations period, federal law determines when the limitations period begins to run. Cox, supra, 529 F.2d at 50; Martin v. Merola, 532 F.2d 191, 195 n. 7 (2d Cir. 1976); Kaiser v. Cahn, 510 F.2d 282, 285 (2d Cir. 1974). See Rawlings v. Ray, 312 U.S. 96, 98, 61 S.Ct. 473, 85 L.Ed. 605 (1941); Hilton v. Mumaw, 522 F.2d 588, 601-02 (9th Cir. 1975); United California Bank v. Salik, 481 F.2d 1012, 1014 n. 7 (9th Cir.), cert. denied, 414 U.S. 1004, 94 S.Ct. 361, 38 L.Ed.2d 240 (1973); Moviecolor Ltd. v. Eastman Kodak Co., 288 F.2d 80, 83-84 (2d Cir.), cert. denied, 368 U.S. 821, 82 S.Ct. 39, 7 L.Ed.2d 26 (1961). "Thus a borrowed state statute of limitations may be tolled in conformity with federal doctrine where the right (sought to be vindicated) is the creature of federal statute . . . ." Kaiser, supra, 510 F.2d at 287. See Holmberg v. Armbrecht, 327 U.S. 392, 395-98, 66 S.Ct. 582, 90 L.Ed. 743 (1946); Moviecolor Ltd., supra, 288 F.2d at 82-83.

The established rule, which we apply in this case, is that, where a plaintiff has been injured by fraud or concealment and remains in ignorance of it without any fault or want of diligence on his part, the statutory period does not begin to run until discovery of the injury. Holmberg, supra, 327 U.S. at 397, 66 S.Ct. 582; Hilton, supra 522 F.2d at 602; Kaiser, supra 510 F.2d at 287; United California Bank, supra 481 F.2d at 1014 n. 7. Here, Briley alleges that he was induced into submitting to the castration in reliance upon the defendants' representations that he could be forced to submit to a castration, that such procedure was common practice, and that he would suffer no adverse effects other than permanent sterility. In light of the prevailing federal doctrine as to fraud and concealment, we feel that the broad remedial policies of the Civil Rights Act are best served by holding that the California limitations period did not commence until Briley discovered the fraud, or could have done so in the exercise of reasonable diligence. 7 This is the proper test for the district court to apply.

2. "Under color of state law" requirement. This requirement of § 1983 is the equivalent of the "state action" element of the fourteenth amendment, Green v. Dumke, 480 F.2d 624, 628 (9th Cir. 1973), and, accordingly, § 1983 is not invoked by "purely private conduct," District of Columbia v. Carter, 409 U.S. 418, 424, 93 S.Ct. 602, 34 L.Ed.2d 613 (1973). See Phillips v. Int'l Ass'n of Bridge, S. & O. Iron Wkrs., 556 F.2d 939, 940 (9th Cir. 1977). It would appear that Briley's privately-retained counsel, the physician who did not also serve as medical examiner, and the hospital are not susceptible to suit under this section.

We have repeatedly held that a privately-retained attorney does not act under color of state law for purposes of actions brought under the Civil Rights Act...

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