Street v. Vose

• Decision Date: 19 June 1991
• Docket Number: No. 90-2088,90-2088
• Citation: 936 F.2d 38
• Parties: Richard A. STREET, Plaintiff, Appellant, v. George VOSE, etc., et al., Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

Page 38

936 F.2d 38

Richard A. STREET, Plaintiff, Appellant, v. George VOSE, etc., et al., Defendants, Appellees.

No. 90-2088.

United States Court of Appeals, First Circuit.

Submitted March 25, 1991.

Decided June 19, 1991.

Richard A. Street, on brief pro se.

Robert G. Brown, counsel, Dept. of Correction on brief for defendants, appellees.

Before BREYER, Chief Judge, CAMPBELL and CYR, Circuit Judges.

PER CURIAM.

Pro se prisoner Richard Street appeals from the sua sponte dismissal of his civil rights complaint under 28 U.S.C. Sec. 1915(d). The district court ruled that the complaint was frivolous because Street's claims were barred by M.G.L. c. 260 Sec. 2A, the statute of limitations applicable to civil rights claims under Owens v. Okure, 488 U.S. 235, 109 S.Ct. 573, 102 L.Ed.2d 594 (1989) and Wilson v. Garcia, 471 U.S. 261, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985). For the reasons discussed below, we affirm.

The complaint named as defendants George Vose, former Commissioner of Corrections and Superintendent of the Massachusetts Correctional Institution (MCI) at Concord, and one Mrs. Mace, the mail room officer at MCI Concord. Street alleged that his Fourteenth Amendment right to due process was violated on July 7, 1981, when he was transferred from the Billerica House of Correction to the segregation unit at MCI Concord and thereafter unconstitutionally confined in segregation for eight months (July 1981 to March 1982) without the requisite approval of the Commissioner of the Department of Corrections (then, Michael Fair). Street further claimed that he was never given a hearing nor periodic review of his segregation status. In addition, Street alleged that while he was incarcerated at MCI Concord, Mrs. Mace, the mail officer, violated his First and Fourth Amendment rights by returning certain items of mail (i.e., underwear, Christmas cards, and books) to their respective senders in December 1981 and February 1982.

Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 1831, 104 L.Ed.2d 338 (1989), established that a court may dismiss a complaint as frivolous sua sponte only if the complaint lacks an arguable basis in law or fact. In elaborating on this standard, the Court held that a complaint is subject to dismissal where it presents a claim based on an "indisputably meritless legal theory," e.g., a claim to which the defendant is obviously immune, or claims for the infringement of a nonexistent legal interest. See 490 U.S. at 327, 109 S.Ct. at 1832. We have not heretofore considered whether a complaint which states a claim that appears to have expired under the applicable statute of limitations may be dismissed as frivolous under Neitzke. Authority indicates that such dismissals are acceptable. See Clark v. Georgia Pardons and Paroles Board, 915 F.2d 636, 640 n. 2 (11th Cir.1990) ("The expiration of the statute of limitations is an affirmative defense the existence of which warrants a dismissal as frivolous"). ¹ For the reasons discussed below, we hold dismissal under the statute of limitations was proper.

The Supreme Court directs federal courts adjudicating civil rights claims under 42 U.S.C. Sec. 1983 to borrow the statute of limitations applicable to personal injury actions under the law of the forum state. Wilson v. Garcia, 471 U.S. 261, 276-280, 105 S.Ct. 1938, 1947-1949, 85 L.Ed.2d 254 (1985). Where a state has more than one statute of limitations that applies to personal injury actions, a federal court should borrow the state's general or residual personal injury statute of limitations. Owens v. Okure, 488 U.S. at 249-250, 109 S.Ct. at 581-582. In Massachusetts, that statute is M.G.L. c. 260 Sec. 2A, which provides, in relevant part, as follows:

Except as otherwise provided, actions of tort, ... to recover for personal injuries, ... shall be commenced only within three years next after the cause of action accrues. ²

The question of when a cause of action accrued is a matter of federal law. Rodriguez Narvaez v. Nazario, 895 F.2d 38, 41 n. 5 (1st Cir.1990). "The accrual period for a Section 1983 action begins when the plaintiff knows or has reason to know of the injury which is the basis of the action." Torres v. Superintendent of Police, 893 F.2d 404, 407 (1st Cir.1990). As Street's transfer, detention in segregation, and mail losses were all completed by March 1982, all his claims accrued by then, and the limitation period expired in March 1985. Street filed his complaint in July 1990, more than five years after the statute of limitations expired. The complaint is time-barred unless, as Street argues, the limitations period is tolled by reason of Street's imprisonment or alleged mental incapacity.

Board of Regents v. Tomanio, 446 U.S. 478, 483-486, 100 S.Ct. 1790, 1794-1796, 64 L.Ed.2d 440 (1980), directs federal courts to borrow state tolling rules unless they are inconsistent with federal law. See also Hardin v. Straub, 490 U.S. 536, 109 S.Ct. 1998, 104 L.Ed.2d 582 (1989); Torres Ramirez v. Bermudez Garcia, 898 F.2d 224, 229 n. 2 (1st Cir.1990). Presently, (and when the complaint was filed in July 1990), the Massachusetts tolling statute, Mass.G.L. c. 260, Sec. 7, allows the limitations period to be tolled when a person is incapacitated by reason of mental illness when the right to bring an action first accrues. ³ In support of his tolling claim, Street relies on his history, which discloses that he has been described as suffering from schizophrenia, a sociopathic personality, and a severe character disorder. See Commonwealth v. Street, 388 Mass. 281, 446 N.E.2d 670, 671 (1983). Street also offers excerpts from recent (1990) Department of Correction classification and disciplinary reports which describe erratic behavior on his part in 1986 and an apparent suicide attempt in June 1990. At best, these documents show that Street has presented serious behavior management problems to the DOC. They do not, however, suggest an incapacitating mental condition during the time Street's cause of action accrued (1981-1982) or the three years thereafter. In addition, this court notes that Street's submissions in the instant appeal are logical, coherent and articulate. In no way do they suggest that Street lacked the capacity to pursue legal action to protect his legal rights. Accordingly, we discern no basis for tolling the statute of limitations due to Street's alleged mental incapacity.

Street also argues that the statute of limitations should be tolled because he is imprisoned and the former version of M.G.L. c. 260, Sec. 7 included imprisonment as a condition that would toll the limitations period. ⁴ He says the amendment deleting imprisonment as a tolling condition is unconstitutional and should not apply to him. Under Massachusetts law, "[t]he general rule is that if a statute of limitations...