Unpublished Disposition, 914 F.2d 263 (9th Cir. 1989)

MEMORANDUM

Pina, a California state prisoner, appeals pro se from the dismissal of his 42 U.S.C. § 1983 civil rights action. He alleged that prison officials had acted with deliberate indifference to his serious medical needs, depriving him of his rights under the eighth and fourteenth amendments of the United States Constitution. The district court ruled that his in forma pauperis complaint was frivolous because it was barred by the applicable statute of limitations, and therefore dismissed it under 28 U.S.C. § 1915(d). We have jurisdiction over this timely appeal under 28 U.S.C. § 1291. We reverse and remand.

We review de novo the district court's dismissal of a complaint as frivolous under section 1915(d). Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989).

In actions arising out of 42 U.S.C. § 1983, federal courts apply the forum state's statute of limitations for personal injury torts. See Wilson v. Garcia, 471 U.S. 261, 279-80 (1985); Harding v. Galceran, 889 F.2d 906, 907 (9th Cir. 1989) (Harding) . In California, the state applicable to Pina's action, the applicable period is one year. Cal.Civ.Proc.Code Sec. 340(3) (West Supp.1990); Harding, 889 F.2d at 907. Pina has admitted that his claims arose prior to the end of February 1988. He failed to file his complaint until August 2, 1989. Because Pina waited more than a year to file his section 1983 claim, the district court dismissed his action as time-barred and frivolous under 28 U.S.C. § 1915(d).

When deciding section 1983 cases, however, federal courts must apply state tolling provisions if they are not inconsistent with the Constitution or other federal law. Harding, 889 F.2d at 909. In California, if the plaintiff is in prison at the time a claim accrues, the applicable statute of limitations is tolled until his release. See Cal.Civ.Proc.Code Sec. 352(a) (3) (West Supp.1990); Venegas v. Wagner, 704 F.2d 1144, 1146 (9th Cir. 1983); Bledstein v. Superior Court, 162 Cal. App. 3d 152, 166, 208 Cal. Rptr. 428, 437 (1984). This tolling provision is not inconsistent with the policies embodied in section 1983, and should therefore be applicable in federal court. Harding, 889 F.2d at 909.

Because Pina's claim arises from injuries suffered while in prison, Cal.Civ.Proc.Code Sec. 352(a) (3) operates to toll the one-year statute of limitations throughout his incarceration. The limitations period will not begin to run until his release from prison. See Harding, 889 F.2d at 909. Therefore, Pina's section 1983 action was timely filed.

REVERSED AND REMANDED.