Lown v. Brimeyer, 91-1257

• Decision Date: 19 March 1992
• Docket Number: No. 91-1257,91-1257
• Citation: 956 F.2d 780
• Parties: Jerry L. LOWN, Appellant, v. Larry BRIMEYER, John Sissel, Charles Lee, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 780

956 F.2d 780

Jerry L. LOWN, Appellant, v. Larry BRIMEYER, John Sissel, Charles Lee, Appellees.

No. 91-1257.

United States Court of Appeals Eighth Circuit.

Submitted Oct. 18, 1991.

Decided Feb. 7, 1992.

Rehearing Denied March 19, 1992.

Philip Mears, Iowa City, Iowa, argued, for appellant.

Kristin Wright Ensign, Des Moines, Iowa, argued, for appellees.

Before WOLLMAN, Circuit Judge, ROSS, Senior Circuit Judge, and LOKEN, Circuit Judge.

LOKEN, Circuit Judge.

In Offet v. Solem, 823 F.2d 1256 (8th Cir.1987), we held that a state inmate with a § 1983 claim for the unconstitutional deprivation of good time credits must exhaust his state remedies. We suggested that the federal suit should be filed and stayed to avoid statute of limitations problems. In this case, ignoring that advice, Jerry L. Lown waited until he had successfully completed his exhaustion proceedings in state court before filing his § 1983 suit against Iowa prison officials. The district court ¹ dismissed his suit as time-barred, and Lown appeals. Not surprisingly, we affirm.

In February 1988, when Lown was an inmate in the Iowa prison system, prison officials disciplined him after finding an unopened letter containing sexual propositions from another inmate in his cell. Lown's administrative appeals were unsuccessful, and his punishment became final on March 24, 1988. He then sought review of this discipline in state court under Iowa's post-conviction relief statute. See Iowa Code Ch. 663A. The state district court ruled in his favor on March 26, 1990.

Lown filed this § 1983 damage action in June 1990 against Larry Brimeyer, chairman of the Adjustment Committee that imposed the discipline, and John Sissel and Charles Lee, the Acting Warden and Acting Deputy Director who affirmed the discipline on appeal. Lown alleged that defendants' actions deprived him of due process. On the state's motion, the district court dismissed the complaint as time-barred under the two year statute of limitations that governs § 1983 suits in Iowa. See Wycoff v. Menke, 773 F.2d 983, 984 (8th Cir.1985), cert. denied, 475 U.S. 1028, 106 S.Ct. 1230, 89 L.Ed.2d 339 (1986).

On appeal, Lown argues that the § 1983 statute of limitations should be tolled while a prisoner exhausts his state remedies as required by Offet. First, he argues that, because of Offet, his § 1983 claim is governed by the provision in Iowa law ² that allows tolling "[w]hen the commencement of an action shall be stayed by injunction or statutory prohibition." Iowa Code § 614.13. Alternatively, Lown argues that, as a matter of federal law under Offet, the limitations period was equitably tolled, or did not begin to run, while he was exhausting his state remedies. We reject both contentions.

Lown's state law argument is contrary to the plain meaning of Iowa Code § 614.13, and Lown cites no Iowa case to support his position. Offet did not affect Lown's right to commence a § 1983 action in federal court before he exhausted his state remedies. Rather, as we expressly noted in Offet, if he had sued immediately after being disciplined, his federal action would have been stayed, rather than dismissed, "to avoid the possibility that dismissal would allow the statute of limitations to run before the plaintiff exhausts his state remedies." 823 F.2d at 1258 n. 2. As the district court noted, if we had held in Offet that the inmate must exhaust state remedies before commencing a § 1983 suit, we would have dismissed, rather than stayed, Offet's claim.

Moreover, in construing § 614.13, a provision of state law, it is important to recall that § 1983 actions may also be brought in state court. Offet is based upon comity considerations and therefore does not apply to § 1983 claims in state court. Thus, the real question under state law is whether Lown's § 1983 state court action was "stayed by injunction or statutory prohibition" for purposes of § 614.13. Lown does not argue that Iowa law prevented him from joining his § 1983 claim in his Ch. 663A post-conviction proceeding, or commencing a separate but parallel § 1983 damage suit in state court. In the absence of proof that these procedures were unavailable, the district court was clearly correct in ruling that Lown's § 1983 claim was not tolled under § 614.13.

Turning to Lown's federal law contentions, he first argues that principles of equitable tolling require that the § 1983 statute of limitations be tolled when an inmate must exhaust state remedies under Offet. "Equitable tolling is appropriate only when the circumstances that cause a plaintiff to miss a filing deadline are out of his hands." Heideman v. PFL, Inc., 904 F.2d 1262, 1266 (8th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 676, 112 L.Ed.2d 668 (1991). Offet did not require Lown to exhaust his state remedies before he filed his § 1983 claim. It simply provided that a timely § 1983 suit filed in federal court would have been stayed until his Ch. 663A proceeding in state court was concluded. Thus, Lown retained full control over when his § 1983 claim would be filed, and his equitable tolling argument is without merit.

Likewise, we find no merit in Lown's argument that his § 1983 cause of action did not accrue until the conclusion of his state court action. Lown argues that his cause of action did not accrue until it could be "maintained and pursued"...