Unpublished Disposition, 861 F.2d 268 (9th Cir. 1970)

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U.S. Court of Appeals for the Ninth Circuit - 861 F.2d 268 (9th Cir. 1970)

Alvin R. CLARK, Plaintiff-Appellant,v.FRESNO COUNTY, et al., Defendants-Appellees.

Nos. 87-2034, 87-2199, 87-2494, 87-15066 and 87-15092.

United States Court of Appeals, Ninth Circuit.

Submitted*  May 26, 1988.Decided Oct. 19, 1988.

Before FERGUSON, WILLIAM A. NORRIS and WIGGINS, Circuit Judges.


MEMORANDUM** 

Alvin R. Clark appeals pro se the district court's dismissal of his four 42 U.S.C. § 1983 actions as barred by the statute of limitations and res judicata.1  The complaints alleged that Fresno County and various judges, district attorneys and public defenders violated Clark's civil rights by their involvement in 1970-71 in various criminal cases in which Clark was charged with child molesting.

The district court's dismissed Clark's actions for being barred by res judicata or the statute of limitations and Clark timely appealed. Clark argues that the statute of limitations was tolled because of the defendants' fraudulent concealment. We affirm the judgments of the district court.

In 1970, Alvin R. Clark worked as a probationary teacher in the Firebaugh Joint School District of Fresno and Madera Counties. The state brought various criminal charges against Clark arising from his alleged sexual molestation of two students on February 24, 1970. All of these charges were eventually dismissed.

In 1986 and 1987, Clark filed four civil rights complaints in the district court, each complaint alleging that the particular named defendants' involvement with one of the 1970-71 criminal filings subjected Clark to double jeopardy and other violations of his rights.2  Each complaint (1) sought tens of millions of dollars in damages for emotional distress and damage to reputation, and (2) alleged that Clark "discovered" these civil rights violations at various times in 1986 when he first learned that the different criminal filings all concerned the same case. The district court dismissed two of the actions as time barred and two as barred by res judicata. Clark subsequently filed five appeals,3  arising from the dismissals, two of which were consolidated.4 

This court reviews de novo a district court's dismissal of an action for failure to state a claim under Fed. R. Civ. P. 12(b) (6). Mir v. Little Company of Mary Hospital, 844 F.2d 646, 649 (9th Cir. 1988). This court also reviews de novo a district court's dismissal on the basis of res judicata. Blasi v. Williams, 775 F.2d 1017, 1018 (9th Cir. 1985). A court should liberally construe pro se civil rights pleadings, affording the plaintiff the benefit of any doubt. King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n. 1 (9th Cir. 1985) (en banc)).

A district court may grant a Rule 12(b) (6) dismissal motion "only if it appears beyond doubt that the plaintiff can prove no set of facts in support of his or her claim." Jablon v. Dean Witter & Co., 614 F.2d 677, 682 (9th Cir. 1980) (citation omitted). When the motion to dismiss is based on the running of the statute of limitations, "it can be granted only if the assertions of the complaint, read with the required liability, would not permit the plaintiff to prove that the statute was tolled." Id. (citation omitted).

Federal courts apply the statute of limitations of the state in which the claim arises for 42 U.S.C. § 1983 claims. See Board of Regents v. Tomanio, 446 U.S. 478, 483-84 (1980). Federal law determines when a cause of action accrues, Venegas v. Wagner, 704 F.2d 1144, 1145 (9th Cir. 1983), and when the applicable limitation period begins to run, Briley v. State of California, 564 F.2d 849, 855 (9th Cir. 1977). A cause of action generally accrues when a plaintiff knows or has reason to know of the injury that is the basis of his action. Alexopulos by Alexopulos v. Riles, 784 F.2d 1408, 1411 (9th Cir. 1986); Briley, 564 F.2d at 855. Therefore, Clark's double jeopardy and related claims accrued, at the latest, in 1971 when the last criminal charges were dismissed.

Because section 1983 claims are characterized as personal injury actions for purposes of identifying the appropriate state statute of limitations, Wilson v. Garcia, 471 U.S. 261, 276 (1985), the appropriate period under California law is the one-year period provided by Cal.Civ.Proc.Code Sec. 340(3). Before Wilson, however, the three-year limitation period applicable to actions created by statute, Cal.Civ.Pro.Code Sec. 338(1), governed all section 1983 claims brought in California. Gibson v. United States, 781 F.2d 1334, 1338-39 (9th Cir. 1986), cert. denied, 107 S. Ct. 928 (1987). In cases such as this, where the actions accrued before Wilson but the complaints were filed afterwards, the limitation period is either three years from the accrual of the claim or one year from Wilson, whichever expires first. Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987). Under Usher, the statute of limitations on Clark's claims ran in 1974, three years from their accrual.

Clark contends that the limitation period was tolled in these actions because the defendants fraudulently concealed the facts constituting his causes of action. This contention lacks merit.

To avoid the limitation bar on the basis of fraudulent concealment, the plaintiff must plead facts showing that the defendant actively misled him, and that he had neither actual nor constructive knowledge of the facts constituting his cause of action despite his due diligence in trying to uncover those facts. Rutledge v. Boston Woven Hose & Rubber Co., 576 F.2d 248, 249-50 (9th Cir. 1978). To invoke the doctrine of fraudulent concealment in his complaint, the plaintiff "must plead with particularity the facts giving rise to the fraudulent concealment claim and must establish that [he] used due diligence in trying to uncover the facts." Volk v. D.A. Davidson & Co., 816 F.2d 1406, 1415-16 (9th Cir. 1987) (citation omitted) (emphasis added). The defendant's mere silence or passive conduct does not constitute fraudulent concealment, and the plaintiff's ignorance of his cause of action does not by itself toll the statute of limitations. Id. at 1416.

In the actions at bar, Clark has variously asserted that he first discovered the existence of his civil rights claims after he received a letter in February 1986 that "showed separate criminal charges, same offense in 1970, which was repeated prosecution for the same criminal offense", in August 1986 when he first examined the criminal files themselves, and in December 1986 after receiving some papers in August 1986.

The basis of all these alleged discovery dates is that, until those times, Clark believed that all the different criminal filings arising out of the alleged 1970 child molestings constituted a single criminal case; what he allegedly discovered in each instance was that these filings were really separate criminal cases, and that the filing of each separate case subjected him to double jeopardy.

Almost all of Clark's allegations of fraudulent concealment are entirely conclusory. He alleges, for example, that he was misled "by continuous lies", that "everything was suppressed and concealed from plaintiff in the 1970's", and that the facts "had been fraudulent [sic] concealed with misrepresentation, lies and suppression". Clark cannot rely on conclusory statements to invoke the doctrine of fraudulent concealment. See Rutledge, 576 F.2d at 250.

The only concrete allegations of fraudulent concealment appear to be Clark's assertions that the defendants did not advise him that the repeated criminal filings in 1970-71 were not all the "same case", and that the public defender did not advise him either that he was being subjected to multiple punishment or that the statute of limitations had run (presumably on Firebaugh Justice Court Case No. 28977). These allegations are not adequate to establish fraudulent concealment because they amount to no more than mere silence or passive conduct by the defendants. See Volk, 816 F.2d at 1416 (no fraudulent concealment tolling where defendants passively concealed geological reports from investors and no facts indicated an affirmative effort to mislead).

Even if the defendants' conduct did constitute fraudulent concealment, Clark would not be entitled to have the statute of limitations tolled because all the facts on which Clark's claims are based were either constructively known to him in 1970-715  or have been completely available to him since that time. See Rutledge, 576 F.2d at 249-50 (to invoke fraudulent concealment doctrine plaintiff must plead facts showing he had neither actual nor constructive knowledge of the facts constituting his claim). The alleged civil rights violations arose and ended in 1970-71 when the felony charges were dismissed following a hung jury and the misdemeanor charges were dismissed as barred by the statute of limitations. The information that two criminal complaints and two felony informations had been filed in 1970, that one information had been dismissed as untimely filed, and that a misdemeanor complaint had been filed the day the felony charges were dismissed, has been available to Clark since 1971 and was a matter of public record. Thus, we consider Clark as having constructive knowledge of the information.6 

Moreover, it is clear that Clark did not exercise reasonable diligence in trying to discover these facts. See Rutledge, 576 F.2d at 250 (plaintiff must show he was ignorant of his claim "despite his diligence in trying to discover the pertinent facts"). Clark apparently tried to demonstrate his due diligence by pointing to his correspondence with the California Attorney General, the United States Justice Department, Congressman B.F. Sisk and several law firms. The letters to Congressman Sisk and the California Attorney General, however, concerned Clark's losing a teaching position as a result of the criminal charges, not his claim that the criminal charges subjected him to double jeopardy.7  The law firm correspondence concerns apparently unrelated civil litigation.8  Clark's letter to the U.S. Department of Justice was apparently written in 1985, long after the statute of limitations had run, and as Clark produced only the government's reply, it is unclear what civil rights violation he had written about.

None of this activity demonstrates that Clark exercised due diligence in discovering his claims, nor does it appear that Clark would be able to offer any valid excuse for his 15-year delay in discovering that more than one criminal complaint and information had been filed in 1970-71. See Conerly v. Westinghouse Electric Corporation, 623 F.2d 117, 120-21 (9th Cir. 1980) (Rule 12 statute of limitations dismissal affirmed because plaintiff failed to allege facts excusing 24-year delay in discovering that whites with less seniority had not been laid off, where plaintiff subsequently worked at same place for 20 years); Jablon, 614 F.2d at 682 (Rule 12 statute of limitations dismissal affirmed because plaintiff was on notice of alleged securities fraud once she knew prices of her stock were falling precipitously).

Therefore, all of Clark's actions were barred by the statute of limitations, and the district court properly dismissed them.9 10 

In Case Nos. 87-15066 and 87-15092, District Judge Price dismissed Clark's actions on the ground of res judicata based on Judge Coyle's dismissal of Clark's action in Case No. 87-2494. Dismissal on this ground was improper.

Under the doctrine of res judicata, a final judgment bars further litigation by the same parties based on the same cause of action. Montana v. United States, 440 U.S. 147, 153 (1979); American Triticale, Inc. v. Nytco Services, Inc., 664 F.2d 1136, 1146-47 (9th Cir. 1982) ("A judgment in a previous suit is conclusive in a second suit between the same parties or their privies on the same cause of action....").

In Case No. 87-2494, Clark sued Fresno County, Judge Howard, Constable Traylor, and Public Defender Goodwin. In Case No. 87-15066, Clark sued Fresno County, Justice Preston, District Attorney Deal and Public Defender Goodwin. In Case No. 87-15092, Clark sued Fresno County, Judge Thompson, District Attorneys Deal and Pitts, and Public Defender Goodwin. The only defendants sued in both sets of actions were Fresno County and Public Defender Goodwin. None of the other defendants named in Case Nos. 87-15066 and 87-15092 were sued in Case No. 87-2494. Therefore, Case Nos. 87-15066 and 87-15092 should not have been dismissed on the basis of res judicata. See American Triticale, 664 F.2d at 1147 (no res judicata bar where plaintiff and defendant were both named defendants in earlier action, but had not filed cross-claims against each other).11 

Nevertheless, because this court may affirm the district court's judgment on any ground supported by the record, Vernon v. Heckler, 811 F.2d 1274, 1277 (9th Cir. 1987), we affirm the dismissal of Case Nos. 87-15066 and 87-15092 because the actions were barred by the statute of limitations.

The judgments of the district court are AFFIRMED.

 *

This panel unanimously agrees that this case is appropriate for submission without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

 1

The five appeals arising from these four actions are being presented in one memorandum because they are so interrelated. The five appeals have been consolidated

 2

Clark's claims are not stated with particular clarity, but can be read to allege that he was subjected to double jeopardy and was denied a speedy trial, the right to counsel, due process and equal protection

 3

Those appeals are case nos. 87-2034, 87-2199, 87-2494, 87-15066, and 87-15092

 4

Clark appealed from both the orders granting the defendants' dismissal motion and from the final judgment, and, accordingly, this court opened two appeals--Case No. 87-2034 and No. 87-2199--which were subsequently consolidated

 5

Because Clark made multiple court appearances on the various criminal filings, he could be charged with constructive knowledge that these were allegedly "different cases."

 6

Clark alleged that he was told in 1986 "that the files were destroyed. Firebaugh Justice Court claims the records were destroyed years ago in a flood. Fresno Municipal Court claims the records were destroyed years ago". Clark also alleged that he "didn't have the files in the 1970's, the Fresno County Public Defender Office had the files." These unsubstantiated allegations should be disregarded because Clark apparently never sought to examine the files until 1986 and he has managed to provide this court with enough portions of the state court case files to demonstrate the nature of his claim

 7

Clark refers to Ninth Circuit Case Nos. 87-1812 and 87-2025, which are his appeals from the dismissal of a civil rights action concerning the loss of his teaching job after he was charged with child molesting

 8

There is correspondence relating to two California civil actions: Clark v. Firestone Tire and Rubber Co., and Clark v. Fresno Teachers Credit Union

 9

For two of the actions (Case Nos. 87-15066 & 87-15092), the district court's primary basis for dismissal was res judicata--an improper basis because there was not an identity of parties. See Montana v. United States, 440 U.S. 147, 153 (1979); American Triticale, Inc. v. Nytco Services, Inc., 664 F.2d 1136, 1146-47 (9th Cir. 1981). The dismissal order, however, stated an alternative holding: "Were the Court to reach the issue of the statute of limitations, the Court concurs with Judge Coyle's findings, namely that there are no allegations indicating a fraudulent concealment of his cause of action by the defendant authorities". We thus affirm the judgments of the district court, see Vernon v. Heckler, 811 F.2d 1274, 1277 (9th Cir. 1987) (court may affirm on any ground supported by the record), as we find that Clark's actions were barred by the statute of limitations

 10

The appellees contend that the district court properly dismissed Clark's actions even if the statute of limitations was tolled, because his complaints failed to state claims upon which relief could be granted. We need not reach this issue, however, because we affirm the district court's dismissal on other grounds

 11

Moreover, the district court's sua sponte raising of the res judicata issue may have been improper if Clark was not afforded an opportunity to oppose it. See McClain v. Apodaca, 793 F.2d 1031, 1033 (9th Cir. 1986)

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