Unpublished Disposition, 881 F.2d 1084 (9th Cir. 1986)

MEMORANDUM^** 

Appellant, Roy Masters, filed a complaint in district court pursuant to 42 U.S.C. §§ 1983, 1985, 1986 and 1988 alleging that defendants violated his constitutional rights to equal protection and due process by revoking and subsequently refusing to reissue to him, a license to carry a concealed weapon. Upon defendants' motion for summary judgment, a Magistrate heard oral argument and concluded that appellant's claims were time-barred under the applicable two-year Oregon statute of limitations, ORS Sec. 12.110. See Wilson v. Garcia, 471 U.S. 261 (1985) (limitations period for an action under 42 U.S.C. § 1983 is determined by state statute of limitations for personal injury action). The district court adopted the Magistrate's findings and recommendation and granted summary judgment. We affirm.

The facts are not complex. In March 1983, appellant applied to the Office of the Josephine County Sheriff's Department for a license to carry a concealed weapon. His application falsely stated that he had never been arrested. In fact, the record indicates that appellant had suffered as many as three prior arrests.¹  Upon learning of the false answer, the then Sheriff, Fanning, revoked appellant's license on December 13, 1983. The Sheriff also referred the matter to the District Attorney who filed a criminal charge of unsworn falsification (ORS Sec. 162.085) to which appellant entered a plea of "no contest," and of which charge he was convicted. Appellant was then sentenced to serve a one year sentence on probation and to pay a fine of $750 of which $500 was suspended.

In his deposition given in these proceedings, appellant was questioned concerning his understanding of the basis for the revocation of his license. Masters stated that he believed that the ostensible reason asserted by defendants (i.e., providing a false answer on his application) was merely a pretext. The real reason, as perceived by Masters at the time of the revocation, was that the Sheriff harbored intense personal dislike for appellant. Appellant claims that only later did he learn from a newspaper investigative report that there was a policy in the Sheriff's department of denying licenses or revoking those granted in the case of persons whom Sheriff Fanning did not like. No evidence in support of this alleged recent expose was introduced in this case. The Magistrate concluded, based upon appellant's own deposition concessions made under oath, that appellant knew in December 1983 that the alleged violation had occurred and that his revocation was related to Sheriff Fanning's alleged personal dislike of him. Since Masters did not file this action until October 27, 1986, his challenge to the revocation of his license is barred by the statute of limitations.

After the Magistrate issued his report, but before the district court ruled on it, Masters filed an amended complaint challenging not only the revocation of his license, but also the failure to grant a subsequent application for a license. It is undisputed that the second application was made within two years prior to the filing of the amended complaint. Masters therefore argues on appeal that his challenge to Sheriff Carlton's refusal to grant his second application is timely and that the district court therefore erred in dismissing the cause of action in its entirety.

We affirm the district court's decision. Appellant's prior arrests and his conviction for unsworn falsification provided adequate legal cause for the decision not to grant his application. Furthermore, appellant has not come forward with evidence or affidavits that would permit a trier of fact to find in his favor on his claims.

Inasmuch as we find that appellant's claims against defendants Fanning and Carlton must fail, Masters' claims against defendant Josephine County must also fail.

AFFIRMED.