Unpublished Disposition, 890 F.2d 420 (9th Cir. 1986)

MEMORANDUM^** 

John Edward Grimes appeals pro se a summary judgment in his 42 U.S.C. § 1983 (1982) action against the County of Clark for alleged deprivations of constitutional rights while he was incarcerated. Grimes claims that his rights were violated when the County, without notifying him, removed his daughter from the care and custody of her mother and made the child a ward of the Juvenile Court. The County moved for summary judgment based on the running of the statute of limitations, failure to state a claim and failure to exhaust state remedies. Grimes filed no opposition and the district court granted the County's motion. Because the complaint is barred by the statute of limitations, we affirm without considering the other questions tendered.

State law determines the statute of limitations for actions brought under section 1983. Usher v. City of Los Angeles, 828 F.2d 556, 558 (9th Cir. 1987). The applicable statute for section 1983 actions in Nevada was changed from three years, NRS Sec. 11.190(3) (a); Mason v. Schaub, 564 F.2d 308, 309 (9th Cir. 1977), to two years, NRS Sec. 11.190(4) (e); Perez v. Seevers, 869 F.2d 425, 426 (9th Cir. 1989), cert. denied, 58 U.S.L.W. 3217, U.S.Lexis 4619 (1989), when the Supreme Court decided Wilson v. Garcia, 471 U.S. 261 (1985). See also Owens v. Okure, 57 U.S.L.W. 4065, (1989).

In Usher, we addressed the retroactive effect of Wilson and held that "the limitation period for causes of action arising prior to Wilson shall be either (1) the pre-Wilson period, commencing at the time the cause of action arises, or (2) the post-Wilson period, commencing with the [date of the] Wilson decision [ (April 17, 1985) ], whichever expires first." 828 F.2d at 561. See also Green v. Los Angeles County Superintendent of Schools, 883 F.2d 1472, 1480 (9th Cir. 1989) (applying Usher) .

Grimes' cause of action arose on May 4, 1983 when his daughter was taken into custody. Applying Usher, we find that the applicable statute of limitations in this case is three years. Grimes filed his complaint on October 21, 1986. Accordingly, his complaint is time barred.

Grimes argues, however, that the statute of limitations did not begin to run until he became aware that the actions taken by the County could give rise to a civil rights violation. Grimes admits that he was immediately aware that his daughter had been taken into custody, but that because he is incarcerated he was unaware of a potential constitutional violation and therefore did not bring suit. Nevada law does not toll the statute of limitations for individuals in custody unless they are less than 18 years of age. NRS Sec. 11.250. Grimes does not meet these qualifications and, accordingly, he is not entitled to an extention of time.

The district court properly granted summary judgment; Grimes complaint is time barred. We have no need to consider the remainder of Grimes' contentions.

The County's request for fees and costs against Grimes for filing a frivolous appeal pursuant to 42 U.S.C. § 1988 is denied.

AFFIRMED.