Unpublished Dispositionvincent B. Caise, Plaintiff-appellant, v. John Mcfadden; City of Lexington; Dave Marye; Vanspeaker; Heather Hayes; Charles Tackett; Julius Berry;walter Webb; Robert Hutchinson; Derek Gordon; Mike Barry;robert Martindale; Harold Buchignani; Michael Wright,defendants-appellees, 889 F.2d 1086 (6th Cir. 1989)

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US Court of Appeals for the Sixth Circuit - 889 F.2d 1086 (6th Cir. 1989) Nov. 14, 1989

Before MERRITT and WELLFORD, Circuit Judges, and ROBERT E. DeMASCIO, Senior District Judge.* 

ORDER

This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the record and the plaintiff's brief, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

Vincent B. Caise appeals the dismissal of his prisoner civil rights action filed under 42 U.S.C. § 1983 and Sec. 1985 in which he alleged that certain criminal convictions for which he is currently incarcerated were obtained in violation of his constitutional and state law rights. The district court concluded that plaintiff's claims are barred by the statute of limitations and dismissed the complaint. Upon consideration, we shall vacate the district court's judgment.

Plaintiff's complaint is not barred by the statute of limitations. The district court properly relied upon this court's decision in Higley v. Michigan Dep't of Corr., 835 F.2d 623 (6th Cir. 1987), in concluding that the statutory period applicable to Sec. 1983 is not tolled by provisions of state law providing for tolling during incarceration. However, Higley was recently overruled by the Supreme Court in Hardin v. Straub, 109 S. Ct. 1998 (1989). Thus, the statutory period must be tolled during plaintiff's incarceration pursuant to Ky.Rev.Stat. Sec. 413.310. See Cunningham v. Jones, 567 F.2d 653, 654 n. 2 (6th Cir. 1977).

Accordingly, the judgment of the district court is hereby vacated pursuant to Rule 9(b) (6), Rules of the Sixth Circuit, and the case is remanded to the district court for further consideration of plaintiff's claims.

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The Honorable Robert E. DeMascio, Senior U.S. District Judge for the Eastern District of Michigan, sitting by designation