846 F.2d 1236 (9th Cir. 1988), 87-6231, Udom v. Fonseca

Docket Nº:87-6231.
Citation:846 F.2d 1236
Party Name:Bassey UDOM, Plaintiff-Appellant, v. Daniel FONSECA, et al., Defendants-Appellees.
Case Date:May 20, 1988
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 1236

846 F.2d 1236 (9th Cir. 1988)

Bassey UDOM, Plaintiff-Appellant,


Daniel FONSECA, et al., Defendants-Appellees.

No. 87-6231.

United States Court of Appeals, Ninth Circuit

May 20, 1988

Argued and Submitted May 2, 1988.

Page 1237

Thomas E. Beck, Los Angeles, Cal., for plaintiff-appellant.

Dennis I. Floyd, Burke, Williams & Sorensen, Los Angeles, Cal., for defendants-appellees.

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

Before HUG, KOZINSKI and THOMPSON, Circuit Judges.

KOZINSKI, Circuit Judge:

In this appeal we consider two questions: (1) what is the proper procedure for raising a claim that the applicable statute of limitations has been tolled; and (2) whether the district court abused its discretion in dismissing the case without prejudice because plaintiff did not file an amended complaint within the time allotted to him.


This appeal arises out of a civil rights suit brought by plaintiff against the City of Bell, the City of Cudahy, the council members of both cities, Bell-Cudahy's Chief of Police, and several individual police officers. Bassey Udom, an immigrant from Nigeria, claims that on December 17, 1984, he was accosted by three police officers while in the City of Bell. Plaintiff alleges that he was beaten by these three officers and shot with an electronic stun gun called a Tazer. Plaintiff also alleges a conspiracy to deprive him of his civil rights, claiming that each predicate act of this conspiracy was part of the policies, customs and practices of the Cities of Bell and Cudahy, and of the Bell-Cudahy police department.

Defendants did not file an answer to Udom's complaint; instead, they moved to dismiss, arguing that plaintiff's claim was time-barred under California's one-year statute of limitations. The district court granted the motion on June 1, 1987, and announced that it would dismiss plaintiff's claims without prejudice. The court gave plaintiff 30 days to amend his complaint to state any claims he might have that were not time-barred.

On June 11, 1987, plaintiff filed a motion for reconsideration of the district court's dismissal. Relying on Cal.Gov't Code Sec. 945.3 (West Supp.1988), Plaintiff asserted, for the first time, that the limitations period should have been tolled until the conclusion of the criminal proceedings against him. On June 30...

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