Gonsalves v. Flynn

• Decision Date: 11 December 1992
• Docket Number: No. 92-1498,92-1498
• Parties: Don J. GONSALVES, Plaintiff, Appellant, v. Peter FLYNN, et al., Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

Page 45

981 F.2d 45

Don J. GONSALVES, Plaintiff, Appellant, v. Peter FLYNN, et al., Defendants, Appellees.

No. 92-1498.

United States Court of Appeals First Circuit.

Submitted July 14, 1992.

Decided Dec. 11, 1992.

Don J. Gonsalves on brief, pro se.

Robert E. McCarthy, East Bridgewater, on brief, for defendants, appellees.

Before SELYA, CYR and BOUDIN, Circuit Judges.

PER CURIAM.

Plaintiff Don J. Gonsalves, a Massachusetts inmate, appeals the dismissal of his complaint as barred by the statute of limitations. We affirm.

I.

The relevant dates of the events which gave rise to this action are not in dispute. Gonsalves entered the Plymouth County House of Correction on January 12, 1985. He was placed in an isolation cell on January 25. He was allegedly assaulted by five of the seven defendants on March 16, 1985. ¹ On April 30, 1985, Gonsalves escaped while being transported for medical treatment. He was arrested in Washington on April 12, 1986, where he remained in prison until June 4, 1988. He was then returned to Massachusetts. On July 9, 1988, Gonsalves was reincarcerated at the Plymouth County House of Correction. He filed the instant complaint on October 25, 1988. The district court appointed counsel to represent Gonsalves and two amended complaints were filed. The last of these raised claims for assault and battery, intentional infliction of emotional distress, and violations of Gonsalves' state and federal civil rights resulting from his wrongful detention in isolation and the March, 1985 beating.

Each defendant raised the statute of limitations as an affirmative defense. On February 24, 1992, the district court ordered the parties to brief the issue of whether Gonsalves' claims were barred by the statute of limitations and the effect of Gonsalves' escape on any applicable tolling provision. When Gonsalves' claims accrued in March-April 1985, Massachusetts law recognized imprisonment as a condition that would toll the three-year statute of limitations that generally applied to tort actions under M.G.L. c. 260, § 2A. ² After Gonsalves' claims accrued and before he filed suit, the Massachusetts legislature amended M.G.L. c. 260, § 7 by deleting imprisonment as a disabling condition that would prevent the limitations period from running. See St.1987, c. 198. That amendment took effect on September 30, 1987, ninety days after the amendment was passed.

Mindful of this history, the defendants argued that Gonsalves' suit was time-barred because it was filed more than three years after his claims accrued and his imprisonment did not toll the limitations period under the amended tolling statute. In support of this contention, the defendants relied on Street v. Vose, 936 F.2d 38, 39 (1st Cir.1991) (per curiam) (upholding sua sponte dismissal of complaint as frivolous under 28 U.S.C. § 1915(d), where claim was barred by the statute of limitations and tolling did not apply). In Street, we rejected the plaintiff's contention that the amendment deleting imprisonment as a tolling condition was unconstitutional and/or did not apply to him, reasoning that Massachusetts law compelled a contrary result.

The district court dismissed Gonsalves' complaint. After expressing uncertainty as to whether Street "established a bright line rule applicable to all suits" or was limited to its facts, the court determined that Gonsalves' claims were time-barred even if the former tolling statute applied, because Gonsalves' escape started the limitations period running and his subsequent reincarceration did not stop it. Gonsalves appeals from this order. We affirm on an alternative ground; in our view this case is controlled by Street. Consequently, Gonsalves' claims are time-barred.

II.

On appeal, Gonsalves, now pro se, reiterates the same arguments raised by his counsel below. First, he contends that the tolling statute in effect when his cause of action accrued applies to this case and that the Massachusetts legislature's subsequent repeal of imprisonment as a tolling condition does not operate "retroactively" to bar his claims. Citing such cases as Carter v. Supermarkets General Corp., 684 F.2d 187, 191 n. 10 (1st Cir.1982); Kadar v. Milbury, 549 F.2d 230, 234 (1st Cir.1977); and Image & Sound Service Corp. v. Altec Service Corp., 148 F.Supp. 237, 240 (D.Mass.1956), Gonsalves asserts that "[i]t is black-letter law that the timeliness of a cause of action is ordinarily governed by the limitations period, along with any applicable tolling provisions, which existed at the time the Plaintiff's cause of action accrued." Second, Gonsalves argues that even if the amendment repealing imprisonment as a disability applies, it did not trigger the three-year limitations period until it took effect on September 30, 1987. Under this theory, Gonsalves had until September 30, 1990 to file suit and his October 1988 complaint would be timely. A contrary holding, Gonsalves says, would violate federal law. Both contentions overlook the fundamental principle that it is state law, not federal law, which determines the applicable limitations period and coordinate tolling rules. See, e.g., Hardin v. Straub, 490 U.S. 536, 539, 109 S.Ct. 1998, 2000-01, 104 L.Ed.2d 582 (1989).

"In a § 1983 action, ... Congress has specifically directed the courts, in the absence of controlling federal law, to apply state statutes of limitations and state tolling rules unless they are 'inconsistent with the Constitution and laws of the United States.' " Chardon v. Fumero Soto, 462 U.S. 650, 661, 103 S.Ct. 2611, 2618, 77 L.Ed.2d 74 (1983) (quoting 42 U.S.C. § 1988). The cases Gonsalves cites turned on applicable state law, rather than the abstract principles Gonsalves posits as a matter of federal law. ³ Thus, in Kadar we upheld the dismissal of part of a § 1983 complaint as to four defendants on timeliness grounds. In so doing, we applied the two-year limitations period in effect when the plaintiff's cause of action arose in 1971-72 because state law expressly provided that the new, three-year limitations period embodied in M.G.L. c. 260, § 2A applied to causes of action arising on and after January 1, 1974. As Kadar's claims largely arose before then, they were time-barred. See Kadar, 549 F.2d at 234 n. 3. Similarly, in Carter, 684 F.2d at 190-91, we applied a six-month limitations period embodied in M.G.L. c. 151B, § 5 to the plaintiff's employment discrimination claim because we determined it to be the "most analogous" state law. To be sure, this six-month period was in effect when the plaintiff's cause of action accrued and we applied it in preference to a limitations period subsequently enacted in M.G.L. c. 151B, § 9, although we assumed that this two-year period could be applied retroactively under Massachusetts law. See Carter, 684 F.2d at 191 n. 9. We applied the six-month period over the two-year period because we determined the former was the most analogous, ⁴ not because it existed when the plaintiff's claims accrued.

Gonsalves asserts that courts which have considered the effect of a repeal of a tolling provision for imprisonment, e.g., Vaughan v. Grijalva, 927 F.2d 476 (9th Cir.1991), and Henson-El v. Rogers, 923 F.2d 51 (5th Cir.1991), have "uniformly held that such repeal does not affect the applicability of the tolling provision between the date of accrual of the cause of action and the effective date of the repeal." But, these cases also turn on borrowed state tolling rules. The result in Vaughan was compelled by Zuck v. Arizona, 159 Ariz. 37, 764 P.2d 772 (App.1988). See Vaughan, 927 F.2d at 479. Similarly, in Henson-El, 923 F.2d at 52-53, the Fifth Circuit affirmed the dismissal of an inmate's § 1983 suit as time-barred even though, under Texas law, the plaintiff's imprisonment tolled the limitations period up to the effective date of an amendment deleting imprisonment as a tolling condition. That amendment expressly provided that "a period of disability before the effective date of this Act during which a person was under a legal disability because of imprisonment is not affected by this Act." Id. at 52. No such savings clause attended the Massachusetts statute deleting imprisonment as a tolling condition.

To sum up, then, imprisonment no longer tolls the statute of limitations with respect to federal civil rights actions filed in Massachusetts after the effective date of the tolling amendment (September 30, 1987). ⁵ That is the teaching of Street, plain and simple. The principle may be applied as a bright line rule in those prisoners' civil rights cases filed after September, 1987 with respect to claims that accrued earlier. This result is compelled by Massachusetts law, which generally holds that, "[i]f the point in the proceedings to which the statutory change is applicable has already passed, the proceedings are not subject to that change. If ... that point has not yet been reached, the new provisions apply." Porter v. Clerk of Superior Court, 368 Mass. 116, 330 N.E.2d 206, 208 (1975). Gonsalves did not file his complaint until October, 1988, approximately thirteen months after the tolling amendment was passed. Therefore, the amendment applies to his case. As Gonsalves' suit was filed more than three years after his claims accrued and he is not entitled to tolling, his complaint is time-barred. Compare Riley v. Presnell, 409 Mass. 239, 565 N.E.2d 780, 788 n. 3 (1991) (holding former tolling statute applied to malpractice action filed in 1985 because complaint and answer had been filed before amendment became law). ⁶

Gonsalves contends that federal law prohibits the "retroactive" application of this amendment to extinguish his previously accrued causes of action. Specifical...