Unpublished Disposition, 872 F.2d 429 (9th Cir. 1989)

MEMORANDUM^** 

OVERVIEW

Appellant William Merritt sued appellees Armijo and Stinson under the Civil Rights Act, 42 U.S.C. § 1983, for conspiring to secure appellant's prosecution through false testimony and alteration of documents. The district court dismissed appellant's claim as barred by the statute of limitations. We reverse.

Factual and Procedural Background

Appellant was arrested on November 6, 1985. He was subsequently charged with and pled not guilty to murder. On February 18, 1986, he changed his plea to guilty to voluntary manslaughter and was sentenced to twelve years in prison on March 18, 1986. On March 4, 1987, appellant filed a pro se complaint against Robert Stinson, his parole agent, and police officer Theodore Armijo for violation of his civil rights. The court dismissed for failure to allege state action and to include a plain and concise statement of facts. Appellant timely filed a first amended complaint, claiming that defendants had "conspired to secure plaintiff's unlawful prosecution on an offense of murder which Plaintiff did not commit, by the joint unlawful acts of alteration of 'original Arrest Reports' and alteration of a warrantless search Report, unlawful suppression of exculpatory evidence, thereafter knowingly, wilfully and falsely testifying and committing perjury in furtherance of their unlawful conspiracy." The defendants moved to dismiss, claiming, inter alia, that the action was barred by the applicable statute of limitations. The court granted the motion and subsequently denied appellant's motion to set aside the order of dismissal. Merritt appeals.

Standard of Review

We review the denial of a motion under F.R.Civ.P. 60(b), which we construe plaintiff's motion for reconsideration to be, for abuse of discretion. McCarthy v. Mayo, 827 F.2d 1310, 1314 (9th Cir. 1987).

Discussion

Defendants argue that the order of dismissal was not appealable because the court allowed leave to amend. The motions panel rejected this argument in its order of November 23, 1989, and we agree. " 'If it appears that the district court intended the dismissal to dispose of the action, it may be considered final and appealable.' " Kilkenny v. Arco Marine, Inc., 800 F.2d 853, 855 (quoting Hoohuli v. Ariyoshi, 741 F.2d 1169, 1171 n. 1 (9th Cir. 1984) (citation omitted)). Because amendment to comply with an alleged statute of limitations bar would not have been possible, we will consider the order final and appealable.

Federal courts must apply the statute of limitations governing actions for personal injury of the state in which the claim arose to section 1983 actions. Wilson v. Garcia, 471 U.S. 261, 276 (1985). Because California law has a one-year statute of limitations for personal injury, Cal.Civ.Proc.Code Sec. 340 (West 1982), a section 1983 claim arising out of conduct in California must be brought within one year of accrual. Usher v. City of Los Angeles, 828 F.2d 556, 558 (9th Cir. 1987).

Although state law prescribes the statute of limitations applicable to claims under 42 U.S.C. § 1983, federal law governs time of accrual. Gibson v. United States, 781 F.2d 1334, 1340 (9th Cir. 1986). The Ninth Circuit determines the accrual of civil conspiracies for limitations purposes in accordance with the last overt act doctrine. Id. (citing Venegas v. Wagner, 704 F.2d 1144, 1146 (9th Cir. 1983)). The cause of action runs separately from each overt act that is alleged to have caused damage to the plaintiff. Id. The acts the plaintiff alleges defendants committed in furtherance of the conspiracy and that harmed him include alteration of arrest reports and of a warrantless search report, unlawful suppression of exculpatory evidence, knowing false testimony, and perjury. Plaintiff failed to allege the specific dates of these events. They must have occurred, however, between the time of plaintiff's arrest on November 6, 1985, and his ultimate plea of guilty and sentencing on March 18, 1986. If they occurred prior to March 4, 1986, Cal.Civ.Proc.Code Sec. 340(3), which imposes a one-year statute of limitations on personal injury actions, would appear to bar appellant's claim.

Regardless of when the alleged acts occurred, however, the statute of limitations was tolled because the plaintiff has been imprisoned without release since his arrest. Cal.Civ.Proc.Code Sec. 352(3) (West 1982) tolls the statute of limitations during the time a person is imprisoned on a criminal charge. See, e.g., Venegas v. Wagner, 704 F.2d 1144, 1145 (9th Cir. 1983).

This information was before the district court. It was clearly an abuse of discretion to dismiss the appellant's claim as barred by the statute of limitations. REVERSED.