828 F.2d 556 (9th Cir. 1987), 86-6328, Usher v. City of Los Angeles

Docket Nº:86-6328.
Citation:828 F.2d 556
Party Name:Sterling USHER, Plaintiff-Appellant, v. CITY OF LOS ANGELES, Richard A. Gonzales, Michael E. Melton, Jose E. Ramirez, Joe Rios, and Robert L. Vann, Defendants-Appellees.
Case Date:September 21, 1987
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 556

828 F.2d 556 (9th Cir. 1987)

Sterling USHER, Plaintiff-Appellant,


CITY OF LOS ANGELES, Richard A. Gonzales, Michael E. Melton,

Jose E. Ramirez, Joe Rios, and Robert L. Vann,


No. 86-6328.

United States Court of Appeals, Ninth Circuit

September 21, 1987

Argued and Submitted April 9, 1987.

Page 557

Shirley A. Ostrow, Los Alamitos, Cal., for plaintiff-appellant.

Richard M. Melgeson, Asst. City Atty., Los Angeles, Cal., for defendants-appellees.

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

Before ANDERSON, SKOPIL and REINHARDT, Circuit Judges.

REINHARDT, Circuit Judge:

Sterling Usher brought suit against the City of Los Angeles and five police officers for violation of his civil rights under 42 U.S.C. Sec. 1983 (1982), and for conspiracy to violate his civil rights under 42 U.S.C. Sec. 1985(2) and (3) (1982). Usher's suit arises from the events surrounding an arrest that occurred one year and nineteen

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days prior to the filing of his complaint. Between the time of the arrest and the complaint, the Supreme Court decided Wilson v. Garcia, 471 U.S. 261, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985), which had the effect of shortening the statute of limitations for section 1983 actions in California from three years to one year. The district court, applying Wilson retroactively, dismissed Usher's section 1983 claim as time-barred. The court also dismissed, for failure to state a claim, his section 1985 claims and his section 1983 claim for malicious prosecution. We reverse.

I. Facts

Usher, a black male and a civilian employee of the Los Angeles Police Department, was arrested on November 1, 1984, by Los Angeles police officers who responded to a complaint that he had broken a window in his apartment. He was taken in handcuffs to a police station where he remained manacled for about two hours. He alleges that during these two hours he was denied toilet access and consequently urinated in his clothes. He alleges also that during the six hours of his arrest he was physically abused by the arresting officers without justification and was referred to by them as "nigger" and "coon." 1

Usher was charged with resisting police officers, malicious mischief, and disturbing the peace. He was tried and acquitted in March 1985. Subsequently, the Los Angeles Police Department, in its role as Usher's employer, conducted an investigation into the events surrounding his arrest. The department discharged Usher in April 1985 for misconduct; his appeals to the city's civil service commission were unsuccessful.

One year and nineteen days after his arrest, Usher filed this action against the City of Los Angeles, the four arresting police officers, and the officer who questioned him at the police station, claiming that his arrest violated his civil rights under 42 U.S.C. Sec. 1983. He alleged that he was arrested inside his home without a warrant or legal authority, that the defendant police officers contrived a story to justify their illegal conduct in arresting him, and that they submitted false police reports which resulted in a bad faith criminal prosecution and his dismissal from the police department. Usher later amended his complaint to include claims under 42 U.S.C. Sec. 1985(2) and (3) for conspiracy to deprive him of his civil rights and under 42 U.S.C. Sec. 1983 for malicious prosecution.

Defendants moved to dismiss the section 1983 claim arising from Usher's arrest, contending that it was time-barred by Wilson v. Garcia, 471 U.S. 261, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985). They moved to dismiss Usher's claims of conspiracy and malicious prosecution for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6). The district court granted the defendants' motions to dismiss. Usher appeals.

II. The Statute of Limitations for Section 1983 Claims

State law determines the statute of limitations for actions brought under 42 U.S.C. Sec. 1983. Strung v. Anderson, 452 F.2d 632 (9th Cir.1971). Prior to the Supreme Court's decision in Wilson v. Garcia, many states had more than one time limit for bringing section 1983 suits; the limit invoked in a particular case depended on the nature of the section 1983 claim. The Court in Wilson, seeking to achieve uniformity within each state, held the statute of limitations for all section 1983 claims to be the forum state's statute of limitations for personal injury torts. 471 U.S. at 279, 105 S.Ct. at 1949. In California this period is one year. Cal.Civ.Proc.Code Sec. 340(3) (West Supp.1987). Prior to Wilson, we had held that the statute of limitations for all section 1983 suits in California was three

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years. Smith v. Cremins, 308 F.2d 187 (9th Cir.1962) (applying the limitations period of California Civil Procedure Code Sec. 338(1) governing causes of action created by statute to section 1983 suits). The time between Usher's arrest and the filing of his complaint exceeds the one-year period allowed under Wilson but falls within the three-year period permitted under the former rule.

The question here is whether to apply the new rule of law enunciated in Wilson retroactively to a cause of action that arose prior to the date of that decision but was not filed until after that case was decided, where the effect of doing so would be to impose a shortened statute of limitations that would serve to bar the plaintiff's claim. We have previously held that Wilson will be given retroactive effect where it serves to lengthen rather than shorten the relevant statute of limitations. Rivera v. Green, 775 F.2d 1381, 1383-84 (9th Cir.1985), cert. denied, 475 U.S. 1128, 106 S.Ct. 1656, 90 L.Ed.2d 198 (1986). Further, where the result would be to shorten the statute of limitations, we have held that Wilson does not apply retroactively to a complaint filed prior to Wilson and within the applicable statute of limitations at the time it was filed. Gibson v. United States, 781 F.2d 1334, 1339-40 (9th Cir.1986), cert. denied, --- U.S. ----, 107 S.Ct. 928, 93 L.Ed.2d 979 (1987).

Two district courts in this circuit have considered the precise question presented here and have reached opposite results. In Gamel v. City of San Francisco, 633 F.Supp. 48 (N.D.Cal.1986), the court ruled that Wilson applied retroactively and barred plaintiff's subsequently filed claim on the basis of the shortened statute of limitations. By contrast, the court in Cabrales v. County of Los Angeles, 644 F.Supp. 1352 (C.D.Cal.1986), refused to apply the shorter limitations period to a claim filed after Wilson on the ground that it would lead to inequitable results. The Cabrales court expressly criticized Gamel and offered the example of a case in which a cause of action accrued almost a full year before Wilson; applying Wilson blindly to that case, the Cabrales court said, would leave the plaintiff with but a few days to become aware of the implications of the Supreme Court's ruling and file suit. 644 F.Supp. at 1356 n. 6. Because our circuit had not yet determined what constitutes an adequate period of time to react to the Wilson decision, Cabrales adopted the approach used by the Seventh Circuit in Anton v. Lehpamer, 787 F.2d 1141 (7th Cir.1986).

The facts of Anton are not the same as those we face here, the critical difference being that Anton's complaint was filed before the Court's decision in Wilson. This makes Anton factually akin to our earlier Gibson case. The Seventh Circuit, faced with the question whether to apply Wilson retroactively to an action filed before Wilson, fashioned a rule that would resolve the retroactivity question for cases filed after Wilson as well. The court held that in all cases the statute of limitations would be the earlier expiring of either the pre-Wilson period, commencing at the time the cause of action accrued, or the post-Wilson period, commencing at the time Wilson was decided. 2 787 F.2d at 1146. Under this rule, because Anton's injury occurred on December 21, 1978, when there was a five-year limitations period, and Wilson was decided April 17, 1985, and shortened the limit to two years, the statue of limitations ran until December 21, 1983.

In determining the retroactive application of Wilson, both the Anton and Gibson courts utilized the criteria enunciated in Chevron Oil Co. v. Huson, 404 U.S. 97, 106-07, 92 S.Ct. 349, 355-56, 30 L.Ed.2d 296 (1971). Anton, 787 F.2d at 1142; Gibson, 781 F.2d at 1339. The Chevron criteria are: (1) whether the new decision establishes a new...

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