Gerald Glen Boyden, Plaintiff-appellant, v. Barry Rubin; Working Alternatives, Inc., Defendants-appellees, 46 F.3d 1138 (9th Cir. 1995)

MEMORANDUM^** 

Gerald Glen Boyden, a former federal prisoner, appeals pro se the district court's summary judgment in favor of Working Alternatives, Inc., the owner and operator of a halfway house under contract to the federal government, and its employee Barry Rubin. Boyden alleged that the defendants violated his constitutional rights by delaying the approval and submission of his parole release plan and thereby delaying his parole from October 25, 1991 to November 25, 1991. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

In determining whether a complaint states a claim, all allegations of material fact are taken as true and construed in the light most favorable to the nonmoving party. Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1989). Here, Boyden's action alleges a constitutional deprivation by private actors affiliated with the federal government. Accordingly, we may construe his action as alleging a Bivens claim.¹  See Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971).

Although the district court dismissed the action on summary judgment grounds finding no genuine material issue of fact, we may affirm a district court's decision on any grounds supported by the record. Gemtel Corp. v. Community Redevelopment Agency of Los Angeles, 23 F.3d 1542, 1546 (9th Cir. 1994).

In determining the statute of limitations for a Bivens action, federal courts use the state statute of limitations for personal injury claims in the state where the district court is located. Van Strum v. Lawn, 940 F.2d 406, 410 (9th Cir. 1991). In California, the applicable statute is Cal.Civ.P.Code Sec. 340(3), which provides for a limitations period of one year from the date the cause of action accrues. McDougal v. County of Imperial, 942 F.2d 668, 672 (9th Cir. 1991). "A federal claim is generally considered to accrue when the plaintiff knows or has reason to know of the injury which is the basis of the action." Norco Constr., Inc. v. King County, 801 F.2d 1143, 1145 (9th Cir. 1986) (quotation omitted). "If the running of the statute is apparent on the face of the complaint, the defense may be raised by a motion to dismiss." Jablon v. Dean Witter & Co., 614 F.2d 677, 682 (1980).

Here, it is clear from the face of Boyden's complaint that the action is barred by the statute of limitations. See id. All of the complained of activities occurred in the fall of 1991, at which time Boyden knew or should have known of the injury giving rise to his cause of action. See Norco Constr., 801 F.2d at 1145. Boyden, however, did not file this action until January 1993, more than two years later. Accordingly, the action is time-barred. See Van Strum, 940 F.2d at 410; McDougal, 942 F.2d at 672; Norco Constr., 801 F.2d at 1145.² 

AFFIRMED.