Unpublished Disposition, 902 F.2d 1580 (9th Cir. 1986)

MEMORANDUM^** 

OVERVIEW

Abe Williams, an incarcerated pro se brought this 42 U.S.C. § 1983 civil rights action against his public defender, his parole officers, and various state agencies. The district court dismissed Williams' complaint because the statute of limitations had run and the defendants were immune from suit. Williams appeals. We affirm the decision of the district court.

STANDARD OF REVIEW

We review de novo a district court's dismissal for failure to state a claim pursuant to Fed. R. Civ. P. 12(b) (6). Kruso v. International Tel. & Tel. Corp., 872 F.2d 1416, 1421 (9th Cir. 1989); Hartford Accident & Indemnity Co. v. Continental Nat'l Am. Ins. Cos., 861 F.2d 1184, 1185 (9th Cir. 1988). We review de novo a district court's ruling on the appropriate statute of limitations. In re Hawaii Federal Asbestos Cases, 871 F.2d 891, 893 (9th Cir. 1989); Edwards v. Teamsters Local Union No. 36, 719 F.2d 1036, 1039 (9th Cir. 1983), cert. denied, 465 U.S. 1102 (1984).

BACKGROUND

In 1979, Williams pled guilty to forgery charges and received a sentence of 24 months. He was released on parole on January 3, 1981. On February 13, 1982, Williams was arrested on an outstanding parole warrant for absconding from parole and for a separate criminal charge. Williams pled guilty to the new criminal charge and received a sentence of nine months. Williams also was found guilty of a parole violation and received a sentence of one year. On March 13, 1983, Williams was released and his parole was continued. On July 21, 1983, Williams was arrested for a parole violation and for a separate criminal charge. The criminal charge was dropped and Williams received a sentence of six months for the parole violation. On January 21, 1984, Williams was released. On June 1, 1984, Williams was arrested for a parole violation and subsequently was charged with a separate felony. On June 1, 1986, Williams was discharged from parole. He remains incarcerated after his conviction and sentence on the felony charge.

Williams' 42 U.S.C. § 1983 suit alleged that his public defender did not advise him properly in 1979 of all of the consequences of his guilty plea. Williams also claims that his parole officers and various state correction agencies violated his constitutional rights by requiring him to undergo a period of parole following his release from prison. The district court dismissed these claims. On appeal, Williams argues that the district court erred (1) when it ruled that the statute of limitations had run on his claims, and (2) when it ruled that the defendants were immune from liability under 42 U.S.C. § 1983.

DISCUSSION

42 U.S.C. § 1983 actions based upon state law are governed by the corresponding state statute of limitations. Board of Regents of the Univ. of the State of N.Y. v. Tomanio, 446 U.S. 478, 483-84 (1980) (citing Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 462 (1975)). The applicable statute of limitations is one year. Wilson v. Garcia, 471 U.S. 261, 279-80 (1985); Harding v. Galceran, 889 F.2d 906 (9th Cir. 1989); Cal.Civ.Proc.Code Sec. 340 (West 1982). Williams argues that this court should look to the three year statute of limitations established in Cal.Civ.Proc.Code Sec. 338. However, it is clear from reading both statutes that Sec. 340 applies to the kind of personal torts of which Williams complains and that Sec. 338 applies to property and contract claims. Williams also argues that the statute of limitations should be tolled because of his imprisonment. However, the statute of limitations is tolled only if a plaintiff is in prison at the time that the cause of action arose. Bledstein v. Superior Court, 162 Cal. App. 3d 152, 166, 208 Cal. Rptr. 428, 437 (1984); Cal.Civ.Proc.Code Sec. 357 (West 1982). The statute was not tolled during the period when Williams was on parole. Deutch v. Hoffman, 165 Cal. App. 3d 152, 156, 211 Cal. Rptr. 319, 321 (1985). Therefore, Williams' claims are barred by the statute of limitations.

In this case, the public defender, the parole officials, and the state agencies are immune from Sec. 1983 liability. Tower v. Glover, 467 U.S. 914, 920 (1984) (public defenders immune); Sellars v. Procunier, 641 F.2d 1295, 1303 (9th Cir.), cert. denied, 454 U.S. 1102, (1981) (parole officials immune); Almond Hill School v. United States Dept. of Agriculture, 768 F.2d 1030, 1034-35 (9th Cir. 1985) (state agencies immune). Therefore, the named defendants are immune.

CONCLUSION

We affirm the decision of the district court.

AFFIRMED.