Major v. Arizona State Prison

• Decision Date: 16 April 1981
• Docket Number: No. 79-3287,79-3287
• Citation: 642 F.2d 311
• Parties: Donald Emery MAJOR, Plaintiff-Appellant, v. ARIZONA STATE PRISON, John Moran, H. J. Cardwell, Capt. Houlihan et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 311

642 F.2d 311

Donald Emery MAJOR, Plaintiff-Appellant, v. ARIZONA STATE PRISON, John Moran, H. J. Cardwell, Capt.

Houlihan et al., Defendants-Appellees.

No. 79-3287.

United States Court of Appeals, Ninth Circuit.

Submitted Aug. 14, 1980.

Decided April 16, 1981.

Donald Emery Major, pro per.

Thomas A. Jacobs, Phoenix, Ariz., on briefs for defendants-appellees.

Appeal from the United States District Court for the District of Arizona.

Before ANDERSON and ALARCON, Circuit Judges, and WILLIAMS, ^* District Judge.

J. BLAINE ANDERSON, Circuit Judge:

Donald Emery Major, a state prisoner confined to the Arizona State Penitentiary, initiated this civil rights action against various prison officials pursuant to 42 U.S.C. § 1983. His pro se complaint, filed some twenty-two months after the acts complained of, alleged that the defendants, in response to his participation in an inmate work strike, denied him due process and subjected him to cruel and unusual punishment. ¹ The district court authorized Major to proceed in forma pauperis. 28 U.S.C. § 1915(a). Finding that the action was barred by Arizona's one-year statute of limitations, the case was summarily dismissed as being frivolous. 28 U.S.C. § 1915(d). We granted Major's motion to appeal in forma pauperis to review the application of the statutory bar.

Since § 1983 does not itself contain a limitations period, the federal courts look to the state statute of limitations that applies to the most similar state cause of action. Board of Regents of the University of the State of New York v. Tomanio, 446 U.S. 478, 483-484, 100 S.Ct. 1790, 1795-1796, 64 L.Ed.2d 440, 447-448 (1980); Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 462, 95 S.Ct. 1716, 1721, 44 L.Ed.2d 295 (1975); Clark v. Musick, 623 F.2d 89, 90 (9th Cir. 1980); Jackson v. Hayakawa, 605 F.2d 1121, 1127 (9th Cir. 1979), cert. denied, 445 U.S. 952, 100 S.Ct. 1601, 63 L.Ed.2d 787 (1980). Briley v. State of California, 564 F.2d 849, 854 (9th Cir. 1977); Smith v. Cremins, 308 F.2d 187, 189 (9th Cir. 1962). The Act specifically provides for this borrowing procedure, ² and the Supreme Court has mandated its use. The applicable state rule of law may be disregarded "only if the state law is 'inconsistent with the Constitution and laws of the United States.' " Board of Regents, supra, 446 U.S. at 483-84, 100 S.Ct. at 1794-95, 64 L.Ed.2d at 447-48.

In this circuit, we have consistently characterized § 1983 claims as actions created by statute, and, wherever possible, the statute of limitations for actions founded on a liability created by statute has been borrowed. May v. Enomoto, 633 F.2d 164, 166 (9th Cir. 1980); Clark, supra, 623 F.2d at 92; Mason v. Schaub, 564 F.2d 308, 309 (9th Cir. 1977); Strung v. Anderson, 452 F.2d 632, 632-33 (9th Cir. 1971). The Arizona legislature has prescribed a one-year statute of limitations for actions "upon a liability created by statute, other than a penalty or forfeiture." Ariz.Rev.Stat. § 12-541(3). This is the applicable statutory period unless it is inconsistent with the Constitution and laws of the United States.

While Arizona's one-year statutory period is shorter than those adopted by other states in this circuit, we cannot say that it is inconsistent with the remedial policies behind the Civil Rights Act, the Constitution, or other federal laws. The Supreme Court upheld the application of Tennessee's one-year limitations period to bar a § 1981 action in Johnson, supra, 421 U.S. at 462-465, 100 S.Ct. at 1721-1722, 44 L.Ed.2d at 302-305. Moreover, this court recently applied the same Arizona statute to bar a § 1981 claim. Tyler v. Reynolds Metals Co., 600 F.2d 232, 234 (9th Cir. 1979). There is simply no reason to treat a § 1983 claim differently than one based on § 1981 and, therefore, we hold that Arizona's one-year statute of limitations, Ariz.Rev.Stat. § 12-541(3), is applicable in this case. This being so, the action is time barred unless the limitations period was tolled.

Arizona has enacted a tolling statute, Ariz.Rev.Stat. § 12-502, which operates to suspend the running of the statute of limitations in favor of persons under specifically enumerated disabilities. ³ Imprisonment at the time the cause of action accrued is one such disability. We must determine whether Arizona's tolling provision is applicable to § 1983 actions brought by state prisoners.

In the past there has been some confusion as to whether state or federal law determines the issue whether a borrowed state statute of limitations is to be tolled. Jackson, supra, 605 F.2d at 1127. The Supreme Court resolved that confusion in favor of the application of state tolling law where not inconsistent with the Constitution or other federal law. Board of Regents, supra, 446 U.S. 478, 100 S.Ct. 1790, 64 L.Ed.2d 440; Conerly v. Westinghouse Electric Corp., 623 F.2d 117, 119 (9th Cir. 1980).

It is true that this court has applied a similar tolling provision under California law to preserve the § 1983 actions of California state inmates. May, supra, 633 F.2d 164, at 166-67; Bergschneider v. Denver, 446 F.2d 569 (9th Cir. 1971); Ney v. State of California, 439 F.2d 1285 (9th Cir. 1971). However, to the extent that these cases rested on the application of California law, they cannot control the determination whether Arizona's tolling statute would be similarly applied. Each state's statutes must be considered separately. In this case, the Arizona law must be applied.

A state legislative enactment is not to be literally or mechanically applied by federal courts. Rather, a federal court charged with the application of a state law must enlist the aid and guidance provided by that state's courts whose responsibility it is, in the first instance, to interpret and construe the statute. See, May v. Enomoto, supra, 633 F.2d at 167; Clark, supra, 623 F.2d at 91; Williams v. Walsh, 558 F.2d 667, 674 (2d Cir. 1977). ⁴ This was the obligation placed on the district court below. On appeal, we recognize that interpretations by the district judge of state law from the state in which he sits are entitled to deference. The district court's determination will be accepted on review unless shown to be "clearly wrong." Clark, supra, 623 F.2d at 91; Pankow Construction Co. v. Advance Mortgage Corp., 618 F.2d 611 (9th Cir. 1980).

The appellees have argued that a state prisoner asserting a civil rights claim is not under a "disability" as contemplated by Arizona's tolling statute. They contend that the tolling provision was intended to apply only where the prisoner lacked capacity to prosecute the suit. Since Arizona's "civil death" statute ⁵ was never interpreted so as to prevent a state prisoner from bringing suit in state or federal court ⁶ to redress the violation of rights secured by the fourteenth amendment, the tolling provision should not be applied.

This argument was rejected in Ortiz v. LaVallee, 442 F.2d 912, 914 (2d Cir. 1971). In that case, however, the court examined the legislative history behind New York's tolling provision and discovered that the provision "was motivated at least in part by a recognition of the practical, as well as the legal, difficulties prisoners face in instituting and prosecuting suits." Id. at 914. Therefore, the court concluded that New York's tolling provision was intended to apply even where a prisoner has the legal capacity to sue. Id.

Our review of Arizona law, on the other hand, convinces us that questions of when a cause of action accrues and when a limitations period is tolled are dependent upon a determination of the plaintiff's legal capacity to sue. E. g., Griesmer v. Griesmer, 116 Ariz. 512, 570 P.2d 199 (Ariz.App.1977); Vana v. Elkins, 20 Ariz.App. 557, 514 P.2d 510 (1973).

In Western Coal & Mining Co. v. Hilvert, 63 Ariz. 171, 160 P.2d 331 (1945), the Arizona Supreme Court was called upon to decide whether a defendant's absence from the state could be considered a "disability" for purpose of the Arizona statute which precluded the tacking of successive disabilities. In holding that it was not, the court defined the term "disability" to mean the want of legal capacity to perform an act or the capacity to sue. Id. 160 P.2d at 336.

An analogous question to the one involved in this case was presented to the Arizona Supreme Court in Selby v. Karman, 110 Ariz. 522, 521 P.2d 609 (1974). The court was faced with the question whether to apply Ariz.Rev.Stat. § 12-501, which provides that a defendant's absence from the state shall not be counted as part of the statutory time limit, in light of the adoption of statutes and rules that provided easier service of process on out-of-state defendants. The court held that, "... the terms 'without the state' and 'absence' as used in A.R.S. § 12-501 mean out of the state in the sense that service of process in any method authorized by rule or statute cannot be made upon the defendant to secure personal jurisdiction by the trial court." Id., 521 P.2d at 611. The court went on to say that, "A literal interpretation of the provisions of the tolling statute may, not only defeat its purpose, but also defeat the purpose of the statute of limitation that actions be commenced within that period of time determined by the legislature to be reasonable." Id. This holding is entirely consistent with the interpretation of Arizona's tolling statutes as intended and designed to protect only those persons suffering under a genuine disability or incapacity.

Finally, we recognize that the Fifth Circuit has recently applied a nearly identical Texas tolling provision to a prisoner's § 1983 action. Miller v. Smith, 625 F.2d 43 (5th Cir. 1980). The court had earlier decided that the state tolling statute was inapplicable, holding that, "Even though Texas would honor the toll for prisoners in its own courts, there is no valid reason for honoring it in a federal court which at all pertinent times had been open to the prisoner." Miller v. Smith, 615...