Unpublished Disposition, 861 F.2d 268 (9th Cir. 1986)

MEMORANDUM^** 

Alvin R. Clark filed an action under 42 U.S.C. § 1983 alleging that the State of California, Fresno County, the Firebaugh Joint School District, and various state, county and school district employees violated Clark's civil rights during two 1970 administrative hearings that led to the loss of his probationary teaching position. Clark appeals pro se the district court's dismissal of his suit as barred by the statute of limitations. We affirm.

On March 4, 1970, the Firebaugh Joint School District of Fresno and Madera Counties placed Alvin R. Clark on compulsory leave of absence because he had been criminally charged with sexually molesting two students. Following administrative hearings on May 26 and June 18, 1970, the school district decided not to re-employ Clark as a probationary teacher.

On December 29, 1986, Clark filed this pro se 42 U.S.C. § 1983 complaint, apparently alleging that the State of California, Fresno County, the Firebaugh Joint School District, and various state, county and school district employees violated his civil rights by (1) holding the 1970 administrative hearings under "repealed" and "altered" state statutes (Cal.Educ.Code Secs. 13409 and 13443), (2) holding the hearings after he had been arraigned on criminal charges, (3) using the hearings to illegally take away his teaching job, and (4) denying him counsel at the hearings.¹  Clark also alleged that he "discovered" these civil rights violations while doing legal research on another case in February 1986. He sought $30 million in general damages for emotional distress, damage to reputation, and loss of wages, and $30,000 in special damages for "loss of teacher's wages".

Fresno County and the Firebaugh Joint School District filed motions to dismiss pursuant to Fed. R. Civ. P. 12(b) (6) on the ground that Clark's claims were barred by the statute of limitations. The district court granted these motions, ruling that Clark's claims accrued in 1970 and that, in the absence of any allegation of fraudulent concealment, the claims were time-barred. The State of California then filed a Rule 12(b) (6) dismissal motion that raised the statute of limitations defense. In opposing the motion, Clark contended that the defendants had fraudulently concealed his causes of action and that the statute of limitations should therefore be tolled. In ruling that Clark's claims against California were also time-barred, the district court held that even if Clark could sufficiently allege fraudulent concealment, he had failed to assert any facts showing that he had exercised due diligence in discovering the existence of his claims. Clark timely appeals claiming that the district court erred in dismissing Clark's action as barred by the statute of limitations.² 

This court reviews de novo the district court's dismissal of an action for failure to state a claim under Fed. R. Civ. P. 12(b) (6). Mir v. Little Company of Mary Hospital, 844 F.2d 646, 649 (9th Cir. 1988). A court should liberally construe pro se civil rights pleadings, affording the plaintiff the benefit of any doubt. King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n. 1 (9th Cir. 1985) (en banc)).

A district court may grant a Rule 12(b) (6) dismissal motion "only if it appears beyond doubt that the plaintiff can prove no set of facts in support of his or her claim." Jablon v. Dean Witter & Co., 614 F.2d 677, 682 (9th Cir. 1980) (citation omitted). When the motion is based on the running of the statute of limitations, "it can be granted only if the assertions of the complaint, read with the required liberality, would not permit the plaintiff to prove that the statute was tolled." Id. (citation omitted).

Federal courts apply the statute of limitations of the state in which the claim arises for 42 U.S.C. § 1983 claims. See Board of Regents v. Tomanio, 446 U.S. 478, 483-84 (1980). Federal law determines when a cause of action accrues, Venegas v. Wagner, 704 F.2d 1144, 1145 (9th Cir. 1983), and when the applicable limitation period begins to run, Briley v. State of California, 564 F.2d 849, 855 (9th Cir. 1977). A cause of action generally accrues when a plaintiff knows or has reason to know of the injury that is the basis of his action. See Alexopulos by Alexopulos v. Riles, 784 F.2d 1408, 1411 (9th Cir. 1986); Briley, 564 F.2d at 855. Therefore, Clark's causes of action accrued in 1970-71 when the administrative proceedings were held and he lost his job.³ 

Because section 1983 claims are characterized as personal injury actions for purposes of identifying the appropriate state statute of limitations, Wilson v. Garcia, 471 U.S. 261, 276 (1985), the appropriate limitation period under California law is the one-year period provided by Cal.Civ.Proc.Code Sec. 340(3). Before Wilson, however, the three-year limitation period applicable to actions created by statute, Cal.Civ.Pro.Code Sec. 338(1), governed all section 1983 claims brought in California. Gibson v. United States, 781 F.2d 1334, 1338-39 (9th Cir. 1985), cert. denied, 107 S. Ct. 928 (1987). In cases such as this, where the action accrued before Wilson but the complaint was filed afterwards, the limitation period is either three years from the accrual of the claim or one year from Wilson, whichever expires first. Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987). Under Usher, the statute of limitations on Clark's claims ran in 1974, three years from their accrual.

Clark contends that the limitation period was tolled until February 1986 because the defendants fraudulently concealed the facts of his injury. This contention lacks merit.

To avoid the limitation bar on the basis of fraudulent concealment, the plaintiff must plead facts showing that the defendant actively misled him, and that he had neither actual nor constructive knowledge of the facts constituting his cause of action despite his due diligence in trying to uncover those facts. Rutledge v. Boston Woven Hose & Rubber Co., 576 F.2d 248, 249-50 (9th Cir. 1978). To invoke the doctrine of fraudulent concealment in his complaint, the plaintiff "must plead with particularity the facts giving rise to the fraudulent concealment claim and must establish that [he] used due diligence in trying to uncover the facts." Volk v. D.A. Davidson & Co., 816 F.2d 1406, 1415-16 (9th Cir. 1987) (citation omitted) (emphasis added). Mere silence or passive conduct by the defendant does not constitute fraudulent concealment, and the plaintiff's ignorance of his cause of action does not by itself toll the statute of limitations. Id. at 1416.

Clark asserted to the district court that "by continuous lies" the defendants "fraudulent [sic] concealed the facts of the nature of Plaintiff's injury in the 1970's" and "fraudulent [sic] concealed, mislead, deceived and conspired against Plaintiff, so that Plaintiff was not aware of the nature of his injury until on or about February 15, 1986". Clark cannot rely on conclusory statements to invoke the doctrine of fraudulent concealment. See Rutledge, 576 F.2d at 250.

The only concrete allegations of fraudulent concealment appear to be Clark's assertions he "was mislead [sic] to believe a person was only allowed counsel by law in felony cases" and that defendant Dorinson "conspired with the other defendants to make Plaintiff think the May 26, 1970 hearing and other related activities were within the law". Hence, Clark's fraudulent concealment allegations at most amount to the contention that the defendants denied doing anything wrong.

"The affirmative act of denying wrongdoing may constitute fraudulent concealment where the circumstances make the plaintiff's reliance upon the denial reasonable ..." Rutledge, 576 F.2d at 250. Clark's purported 15-year reliance on the defendants' assurances that their activities were proper was clearly unreasonable because Clark was suspicious of the legitimacy of the administrative proceedings as early as 1971. In July 1971, Clark filed a state court action, claiming that the Firebaugh Joint School District had wrongfully and illegally terminated his employment contract; in March 1972, his amended complaint specifically alleged that the June 30 hearing was "null, void, without jurisdiction, and without legal effect". In January 1972, Clark wrote letters to the California Attorney General and to a Congressman, complaining that the Firebaugh Joint School District, Fresno County and the State of California had no "right to alter or antedate Section 13409 of the Education Code" and illegally held the administrative hearing before the dismissal of his criminal case. That same month, an assistant attorney general informed Clark that the actions of the school district appeared to be proper under the Education Code, and advised him to seek clarification from the county counsel or to consider engaging private counsel.

Clark did not exercise reasonable diligence in determining the validity of an administrative process that resulted in the loss of his job. See, Rutledge, 576 F.2d at 250 (plaintiff's litigation of similar issues and efforts to pursue suspicions of other wrongdoing demonstrated he would not be misled by simple denial of wrongdoing). A reasonable person would have sought immediate legal advice and would not have waited for 15 years until he accidentally stumbled across a legal theory on which to base a section 1983 claim.⁴ 

Clark was sufficiently aware of his injury to have taken steps to discover the existence of his causes of action; he knew the relationship between the administrative hearings and the criminal charges, and he knew he had been told that he was not entitled to counsel at the hearings. Clark offers no excuse for his failure to investigate possible legal claims in a timely manner, and it appears there is no valid excuse that he could offer. See Conerly v. Westinghouse Electric Corp., 623 F.2d, 117, 120-21 (9th Cir. 1980) (Rule 12 dismissal affirmed because plaintiff failed to allege facts excusing 24-year delay in discovering defendant's alleged concealment); cf. Briley, 564 F.2d at 853-55 (statute tolled because defendants misinformed plaintiff as to legal rights and side effects of castration, where plaintiff first suffered adverse side effects 13 years later).

Therefore, it appears that in 1970-71, Clark had at least constructive knowledge of all the facts on which his claims were based, that he was only ignorant of the legal significance of those facts, and that this ignorance was not the result of the defendants' fraud or misrepresentation.⁵  Moreover, it is clear that Clark did not exercise reasonable diligence in trying to discover the existence of his claims. The defendants' conduct would not have led a reasonable person to believe that he did not have a claim for relief in the circumstances of this case. See Rutledge, 576 F.2d at 250. Hence, the district court properly dismissed all of Clark's claims as barred by the statute of limitations. See Jablon, 614 F.2d at 682.⁶ 

We therefore, AFFIRM.