Unpublished Disposition, 927 F.2d 609 (9th Cir. 1988)

MEMORANDUM^**

Stoney Austin Hobson, a California state prisoner, appeals pro se the district court's dismissal of his 42 U.S.C. § 1983 action. Hobson alleges that defendants violated his Eighth and Fourteenth Amendment rights by failing to protect him from other inmates. The district court found the action barred by the statute of limitations. We affirm.

The statute of limitations period applicable to a section 1983 claim is defined by the local limitations period for a general personal injury action. See Wilson v. Garcia, 471 U.S. 261, 276-80 (1985). In this case we look to California law.

Section 340(3) of the California Code of Civil Procedure provides a one year limitations period for personal injury actions. Hobson alleges that defendants failed to protect him from an assault that occurred on March 2, 1987. His complaint was filed in district court on July 11, 1988, four months past the limitations period.

Hobson contends, however, that the limitations period was tolled pursuant to section 352 of the California Code of Civil Procedure. Section 352 states:

(a) If a person entitled to bring an action ... be, at the time the action accrued ...:

.............................................................

...................

* * *

3. Imprisoned on a criminal charge, or in execution under the sentence of a criminal court for a term less than for life;

the time of such disability is not part of the time limited for the commencement of the action.

Cal.Code Civ.P. Sec. 352. Hobson was imprisoned in the San Diego County Detention Facility at the time his action accrued. He was, however, released on March 4, 1987, two days after the assault. Hobson remained free until he was subsequently sentenced in the state of Indiana on June 15, 1987. Consequently, Hobson's action was tolled pursuant to section 352 for only two days. The subsequent term of incarceration, beginning on June 15, does not toll the limitation period. The second period of incarceration was not a term of imprisonment "at the time the action accrued" in accordance with section 352.

Allowing a two day tolling pursuant to section 352(3), the action remained barred by the limitations period set forth in section 340(3). Dismissal of the action was proper.

AFFIRMED.