TwoRivers v. Lewis

• Citation: 174 F.3d 987
• Decision Date: 08 December 1998
• Docket Number: No. 97-15844,97-15844
• Parties: 99 Cal. Daily Op. Serv. 2515, 1999 Daily Journal D.A.R. 3282 Christian Weaver TWORIVERS, Plaintiff-Appellant, v. Samuel A. LEWIS; Velasquez, Lt.; Fernandez, Sgt.; CSO Kern; Kevin Scott Lewis; Ratliff, RN; Raul Rodriguez-Bores, Dr.; Barbara Major, Nurse; B. Goodman, RN; S. Walters, NA, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 987

174 F.3d 987

99 Cal. Daily Op. Serv. 2515, 1999 Daily

Journal D.A.R. 3282

Christian Weaver TWORIVERS, Plaintiff-Appellant, v. Samuel A. LEWIS; Velasquez, Lt.; Fernandez, Sgt.; CSO

Kern; Kevin Scott Lewis; Ratliff, RN; Raul

Rodriguez-Bores, Dr.; Barbara Major, Nurse; B. Goodman,

RN; S. Walters, NA, Defendants-Appellees.

No. 97-15844.

United States Court of Appeals, Ninth Circuit.

Submitted Dec. 8, 1998. ^*

Decided April 6, 1999.

Christian Weaver TwoRivers, Winslow, Arizona, in pro se for plaintiff-appellant.

Wanda E. Hofmann and Bruce E. Skolnik, Assistant Attorneys General, Tucson, Arizona, for defendants-appellees.

Appeal from the United States District Court for the District of Arizona; Richard M. Bilby, Chief District Judge, Presiding. D.C. No. CV-96-00598-RMB.

Before: BRIGHT, ^** FLETCHER and THOMPSON, Circuit Judges.

BRIGHT, Circuit Judge:

Plaintiff Appellant Christian Weaver TwoRivers, an Arizona prisoner, appeals the district court's dismissal of his 42 U.S.C. § 1983 claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure, on grounds that he failed to file suit within the applicable two year statute of limitations. TwoRivers' claim is time barred unless he can obtain the benefit of a provision under Arizona law which tolled the two year limitations for Arizona prisoners until after discovery of the prisoner's right to sue. Such statutory grace existed at the time TwoRivers discovered his right to bring his § 1983 action. However, before TwoRivers filed suit, Arizona amended its law deleting this grace period and requiring prisoners to bring their action within two years from the date of accrual. We conclude that the amended statute does not apply retroactively to bar TwoRivers' suit, and, therefore, we reverse and remand.

I. FACTS AND PROCEDURAL BACKGROUND

TwoRivers' § 1983 claim arose from alleged deliberate indifference to his serious medical needs by Arizona Department of Corrections ("ADOC") employees after TwoRivers underwent a surgical procedure to remove a cancerous growth while incarcerated at the Tucson prison complex. We briefly review the factual background of TwoRivers' claim. ¹

On July 20, 1994, appellee Dr. Kevin Scott Lewis removed a cancerous growth from TwoRivers' back. Suffering from severe infection, ADOC transferred TwoRivers from the Tucson prison complex to St. Mary's Hospital where doctors treated his infection with intravenous antibiotics and bleach baths. ADOC subsequently transferred TwoRivers to another prison facility, the Central Unit at Florence, where he continued to undergo bleach baths, this time in bath tubs allegedly encrusted in fecal matter and what appeared to be scabs from other patients. These incidents form the basis for his claim. The incidents occurred prior to September 14, 1994, the date of TwoRivers' transfer back to the Tucson complex after he had received post-operative medical care. ²

At the time of these events, the former § 12-502 of the Arizona Revised Statutes (A.R.S.) tolled the statute of limitations for prisoners until a prisoner discovered the right to bring the action or should have discovered that right with the exercise of reasonable diligence. ³ See Vega v. Morris, 184 Ariz. 461, 464, 910 P.2d 6, 9 (1996) (en banc) (explaining that under former A.R.S. § 12-502, awareness of the legal right to assert a claim ends the disability provided to prisoners, not cognizance of the facts giving rise to the claim). Prior to the time TwoRivers filed suit but after he had discovered his right to bring a § 1983 claim, the Arizona legislature amended former A.R.S. § 12-502, deleting the special tolling provision for prisoners. The amended statute became effective on July 20, 1996. ⁴

On October 8, 1996, TwoRivers filed suit in federal district court asserting a claim under § 1983. ⁵ TwoRivers alleged that the named defendants had been deliberately indifferent to his serious medical needs in violation of the Eighth Amendment of the United States Constitution. TwoRivers further alleged that he had first learned of his right to file suit on October 26, 1994 (less than two years earlier), when his attorney at the time advised him of that right. The ADOC defendants challenged TwoRivers' claim on a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6). The district court granted the defendants' motion, dismissing TwoRivers' amended complaint with prejudice. It reasoned that under the amended A.R.S. § 12-502, TwoRivers had failed to file his § 1983 claim in a timely manner. TwoRivers had filed suit over two years and three weeks after September 14, 1994, the date of TwoRivers' transfer back to the Tucson complex after receiving the alleged improper medical care. TwoRivers now appeals this order of dismissal.

II. STANDARD OF REVIEW

We review de novo a dismissal under Fed.R.Civ.P. 12(b)(6) for failure to state a claim. Steckman v. Hart Brewing, Inc., 143 F.3d 1293, 1295 (9th Cir.1998). In such a case, we must accept all factual allegations of the complaint as true and draw all reasonable inferences in favor of the nonmoving party. See Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir.1987). Dismissal on statute of limitations grounds can be granted pursuant to Fed.R.Civ.P. 12(b)(6) "only if the assertions of the complaint, read with the required liberality, would not permit the plaintiff to prove that the statute was tolled." Vaughan v. Grijalva, 927 F.2d 476, 478 (9th Cir.1991) (quoting Jablon v. Dean Witter & Co., 614 F.2d 677, 682 (9th Cir.1980)).

III. DISCUSSION

On appeal, TwoRivers claims that the district court erred by applying the amended A.R.S. § 12-502 and dismissing his § 1983 claim. In support of this contention, TwoRivers asserts that his claim accrued prior to the amendment of that statute. Therefore, according to TwoRivers, the district court should have applied the former A.R.S. § 12-502 and tolled commencement of the statute of limitations until October 26, 1994, the date his attorney apprised TwoRivers of his right to file suit. TwoRivers further argues that since he filed suit on October 8, 1996, less than two years after he learned of that right on October 26, 1994, proper application of the former A.R.S. § 12-502 would have precluded the district court from dismissing his claim on statute of limitations grounds. Before examining TwoRivers' argument on its merits, the court first turns to the time limitations governing § 1983 claims. ⁶

A.

Section 1983 does not contain its own statute of limitations. Without a federal limitations period, the federal courts borrow the statute of limitations for § 1983 claims applicable to personal injury claims in the forum state. See Wilson v. Garcia, 471 U.S. 261, 279-80, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985). In Arizona, the courts apply a two-year statute of limitations to § 1983 claims. See Marks v. Parra, 785 F.2d 1419, 1420 (9th Cir.1986) (citing A.R.S. § 12-542). But in borrowing a state statute of limitations for a federal cause of action, "we borrow no more than necessary." West v. Conrail, 481 U.S. 35, 39-40, 107 S.Ct. 1538, 95 L.Ed.2d 32 (1987). Consistent with this maxim, federal, not state, law determines when a civil rights claim accrues. See Elliott v. City of Union City, 25 F.3d 800, 801-802 (9th Cir.1994). Under federal law, a claim accrues when the plaintiff knows or has reason to know of the injury which is the basis of the action. See Kimes v. Stone, 84 F.3d 1121, 1128 (9th Cir.1996). Here, TwoRivers knew or had reason to know of the ADOC employees' deliberate indifference to his medical needs by September 14, 1994, the date of TwoRivers' transfer back to the Tucson complex after receiving the alleged improper medical care. TwoRivers filed suit on October 8, 1996, more than two years after TwoRivers' § 1983 claim had accrued. Therefore, as we have observed, the two-year statute of limitations would bar the present action unless TwoRivers' incarceration tolled the limitations period sufficiently to permit him to proceed with this suit.

In actions like this one, where the federal courts borrow the state statute of limitations, we also borrow the forum state's tolling rules. See Hardin v. Straub, 490 U.S. 536, 539, 109 S.Ct. 1998, 104 L.Ed.2d 582 (1989); Board of Regents of the Univ. of New York v. Tomanio, 446 U.S. 478, 483-84, 100 S.Ct. 1790, 64 L.Ed.2d 440 (1980). Under former § 12-502, prisoners whose claims accrued while incarcerated were entitled to tolling until the prisoner knew or had reason to know that he or she had a right to file suit. By contrast, the amended § 12-502 deletes this provision for prisoners and subjects them to the same rules as most other § 1983 plaintiffs. Applying the tolling provision in the former A.R.S. § 12-502, TwoRivers filed suit within two years of October 26, 1994, the date that he learned of his right to bring suit, and thus within the statute of limitations for § 1983 actions filed in Arizona. But under the amended A.R.S. § 12-502, the clock began to run on September 14, 1994, the date of his transfer back to the Tucson complex after receiving post-operative care and when his cause of action accrued under the analysis of the district court. In short, the choice of the applicable limitations statute dictates the result in this case. The issue before us is whether the amended § 12-502 should be applied retroactively to bar this plaintiff's claim.

B.

At the outset, we observe that neither the district court, nor the parties on appeal, addressed the threshold issue of whether a federal court borrowing a state statute of limitations also borrows the state retroactivity law. The district court applied the current Arizona law in ascertaining the appropriate limitation period and the related tolling provisions. The district court, however, did not discuss its decision to apply Arizona retroactivity law. Generally, where Congress does not create a federal statute of limitations, we look to state law for limitations...