Unpublished Disposition, 893 F.2d 1338 (9th Cir. 1988)

MEMORANDUM^** 

Gregory Allen Hedges appeals pro se from the district court's dismissal of a complaint he filed pursuant to 42 U.S.C. § 1983. The district court found that Hedges' claims were barred by the Arizona statute of limitations, and that Hedges' confinement in prison did not toll the statute under Arizona's tolling provision, A.R.S. Sec. 12-502. We affirm.

BACKGROUND

On March 22, 1988, appellant-plaintiff Hedges filed a Sec. 1983 action against the Arizona Department of Public Safety ("DPS") and seven DPS officials, claiming that his rights under the Fourth, Eighth and Fourteenth Amendments had been violated. Hedges alleges that on March 7, 1985, while travelling in Arizona, he was subjected to a random stop and frisk and vehicle registration check by DPS Officer David Denlinger. Plaintiff further alleges that during the stop Officer Denlinger determined that the North Carolina license plates on the vehicle plaintiff was driving were stolen and that Officer Denlinger then handcuffed plaintiff, placed him in the patrol car and, without a warrant, searched the vehicle and plaintiff's personal belongings. Plaintiff was arrested, transported to an Arizona detention center, and subsequently extradited to North Carolina, where he is currently incarcerated.

ANALYSIS

Whether Hedges' Sec. 1983 action is barred by the statute of limitations is a question of law which we review de novo. See In re Hawaii Federal Asbestos Cases, 871 F.2d 891, 893 (9th Cir. 1989).

Since Congress did not establish a limitations period applicable to actions brought under 42 U.S.C. § 1983, federal courts apply the state statute of limitations applicable to the most similar cause of action from the state in which the cause of action arose. De Luna v. Farris, 841 F.2d 312, 313 (9th Cir. 1988) (citing Board of Regents of the University of the State of New York v. Tomanio, 446 U.S. 478 (1980)). It is well established that " [t]he appropriate statute of limitations period for a 42 U.S.C. § 1983 action is that of the state's statute of limitations in personal injury cases." Id. (citing Wilson v. Garcia, 471 U.S. 261 (1985)). The Arizona statute of limitations for personal injuries provides a two-year limitations period. A.R.S. Sec. 12-542(1).

Plaintiff concedes that he filed his Sec. 1983 action more than three years after the activities complained of took place. Nevertheless, he argues that his action should not be considered time-barred for two reasons: (1) his cause of action did not accrue, and hence the statute of limitations did not commence to run, until August 14, 1987, when he received certain information from the DPS;¹  and (2) his confinement in prison served to toll the statute of limitations.

The date on which a cause of action accrues is determined by federal law even though a state statute of limitations is applied. Cline v. Brusett, 661 F.2d 108, 110 (9th Cir. 1981) (determining date of accrual in a Sec. 1983 action). Federal law holds that a cause of action generally accrues when a plaintiff knows or has reason to know of the injury which is the basis of his action. Id. (citing Lavelle v. Listi, 611 F.2d 1129 (5th Cir. 1980)). We agree with the district court that, given this standard, Hedges reasonably had knowledge of his alleged injury when he was handcuffed and escorted to the back seat of Officer Denlinger's patrol car.

Hedges contends, however, that the district court should have applied the diligence-discovery rule suggested in United States v. Kubrick, 444 U.S. 111 (1979). In Kubrick, the Court implicitly held that a medical malpractice claim brought under the FTCA accrues when the plaintiff discovers or should reasonably have discovered "the critical facts that he has been hurt and who has inflicted the injury." Id. at 122 (emphasis added). The Court noted that the traditional tort rule that a claim accrues at the time of injury has been supplanted in medical malpractice cases because "the nature of the tort itself and the character of the injury will frequently prevent knowledge of what is wrong, so that the plaintiff is forced to rely upon what he is told by the physician." Id. at 120 n. 7 (citation omitted).

The diligence-discovery rule is not often applied outside the medical malpractice area, but it has been recognized that a plaintiff who is "blamelessly ignorant of the existence or cause of his injury should be accorded the benefits of the more liberal accrual standard." In re Swine Flu Products Liability, Sanborn v. United States, 764 F.2d 637, 639 (9th Cir. 1985) (quoting Barrett v. United States, 689 F.2d 324, 327 (2d Cir. 1982), cert. denied Cattell v. Barrett, 465 U.S. 1131 (1983)); see also Urie v. Thompson, 337 U.S. 163, 169-170 (1949). For example, it would be appropriate to apply the diligence-discovery rule "where a plaintiff demonstrates that his injury was inherently unknowable at the time he was injured" or "where the Government conceals its negligent acts so that the plaintiff is unaware of their existence." Barrett, 689 F.2d at 327 (citations omitted).

The facts as alleged by the plaintiff here do not indicate that it would be appropriate to apply the diligence-discovery rule of accrual. In any event, Hedges admits that on March 7, 1985 he knew that Officer Denlinger had violated his constitutional rights and that Officer Denlinger was an employee of the DPS.²  Thus, on March 7, 1985, plaintiff was in possession of the critical facts that he had been injured and who had inflicted the injury.³  Kubrick, 444 U.S. at 122. Having determined that plaintiff's cause of action accrued on March 7, 1985, we next consider whether plaintiff's confinement in prison was a disability which tolled the statute of limitations.

It is "well established that federal courts must apply not only the appropriate state statute of limitations, but also the appropriate state rule for tolling that statute of limitations for actions brought under Sec. 1983." De Luna v. Farris, 841 F.2d 312, 314 (9th Cir. 1988) (citations omitted). The Arizona tolling provisions for prisoners' causes of action are contained in A.R.S. Sec. 12-502, which was amended on August 3, 1984.⁴  The amended Sec. 12-502 clearly controls since plaintiff's cause of action arose on a date after August 3, 1984. Id.

Under Sec. 12-502, imprisonment acts as a disability until the date the prisoner discovers or with reasonable diligence should have discovered his right to sue.⁵  Id. at 315. Given plaintiff's admission that he knew on March 7, 1985 that Officer Denlinger had violated his constitutional rights, we conclude that plaintiff either realized or should have realized, with the exercise of due diligence, his right to bring suit as of that date. Cf. Id. (finding no period of disability for imprisonment under Sec. 12-502 where the plaintiff should have realized, from the nature of the activities complained of, his right to bring suit as of the date of the alleged injury.) And, contrary to plaintiff's contention, that he may not have realized until much later that the DPS or its officials were potential defendants does not change whether he knew or should have known on March 7, 1985 that he had a cause of action. Id. Accordingly, plaintiff's period of confinement acts as no disability. Under the two-year personal injury limitations period set forth in A.R.S. Sec. 12-542(1), Hedges had until March 7, 1987 to file his complaint. He failed to do so, thus this action is time-barred.

The district court's grant of defendants' motion to dismiss under Fed. R. Civ. P. 12(b) (6) is AFFIRMED.