Unpublished Disposition, 895 F.2d 1417 (9th Cir. 1987)

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U.S. Court of Appeals for the Ninth Circuit - 895 F.2d 1417 (9th Cir. 1987)

Douglas MEASOR, Ancil Davis, James M. Sullivan, MarySullivan, Harry Davidson, dba Skate King,Plaintiffs-Appellants,v.PIERCE COUNTY PLANNING, Charles W. Talbot, Robert J. Sproul,Richard E. Charles, Defendants-Appellees.

No. 88-4443.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Jan. 12, 1990.Decided Feb. 5, 1990.

Before BROWNING, BEEZER and RYMER, Circuit Judges.


MEMORANDUM* 

Plaintiffs Douglas Measor, Ancil Davis, James M. Sullivan, Mary Sullivan, and Henry Davidson, d/b/a Skate King appeal the district court's denial of their motion for relief from judgment filed pursuant to Fed. R. Civ. P. 60(b) (5). They argue that the state superior court decision upon which the district court relied in dismissing their Sec. 1983 action based on claim preclusion has since been rendered void by a state appellate court decision. The defendants argue that the federal suit is still precluded by the state court decision, or, alternatively, by the reasonableness determination made by the Board of Pierce County Commissioners. They also argue that the suit is barred by the statute of limitations, and with respect to defendant Pierce County, by the plaintiffs' failure to properly serve Pierce county. We affirm.

* Skate King's suit is barred by the statute of limitations. The statute of limitations for actions brought under 42 U.S.C. § 1983 is the forum state's limitation period for a personal injury suit. Wilson v. Garcia, 471 U.S. 261, 105 S. Ct. 1938 (1985); Usher v. City of Los Angeles, 828 F.2d 556, 558 (9th Cir. 1987). In the state of Washington, the statute of limitations for personal injury is three years from the date the injury occurred. RCW 4.16.080. A claim under Sec. 1983 accrues on the date of the alleged wrongful conduct. See Chardon v. Fernandez, 454 U.S. 6, 7-8, 102 S. Ct. 28 (1981); Altair Corp. v. Pesquera de Busquets, 769 F.2d 30 (1st Cir. 1985).

In Chardon, the plaintiffs brought a Sec. 1983 action claiming that they had been denied tenure for political reasons in violation of their first amendment rights. On dates prior to June 18, 1977, each plaintiff had been notified that his appointment would terminate between June 30 and August 8, 1977. The Sec. 1983 action was filed on June 19, 1978. The Supreme Court held that the suit was time barred by the one year statute of limitations. The Court rejected the argument that the limitations period began to run on the date of their termination (the last day of employment). Instead, the Court held that the limitations period began to run when the plaintiffs were notified that a final decision had been made to terminate their appointments. 454 U.S. at 7-8.

In Altair, the plaintiff finance company brought a Sec. 1983 action against the former Acting Secretary and Secretary of the Puerto Rico Department of Consumer Affairs for depriving it of its property in the amount of $1,605,342.67 through an order lowering the maximum lawful interest rates on consumer loans for new and used cars. However, the First Circuit held that the suit was barred by Puerto Rico's one year statute of limitations. 769 F.2d at 32. The court rejected the argument that the Secretary's action was a continuing violation of plaintiff's civil rights and that the statute of limitations had, therefore, not expired. Id. The court held:

The statute of limitations begins to run upon the invasion of plaintiff's interest. Altair's argument concerning the continuing violation exception to the general rule confuses a continuing act with a single act that has continuing consequences. In a Sec. 1983 case concerning the unlawful taking of property, the statute of limitations begins to run on the date of the wrongful appropriation. Altair has alleged no subsequent acts beyond the Secretary's initial order lowering interest rates. On these facts, the limitations period began on the date of the Secretary's alleged wrongful conduct.

769 F.2d at 32-33 (citations omitted); cf. Lai v. City of Honolulu, 575 F. Supp. 1510 (D. Haw. 1983), rev'd on other grounds, 749 F.2d 588 (9th Cir. 1984) (limitations period for bringing suit alleging deprivation by zoning commission begins on the date of the commission's order denying a land use permit).

Skate King's unclassified use permit was approved based upon the disputed conditions on March 12, 1980. The permit and its conditions were affirmed by the Board of Pierce County Commissioners on September 2, 1980. Yet, Skate King did not file this suit until March 3, 1987. Skate King was well aware of the conditions of its unclassified use permit, having challenged them before the Hearing Examiner and appealed them to the Board of Pierce County Commissioners. It was represented by counsel throughout these proceedings and had vigorously argued that the conditions were unreasonable and not based on a legitimate state interest. It was very much aware of the alleged harm committed against it. It cannot sit back indefinitely and allow its damages to pile up before acting to protect its interests.

The cases cited by Skate King are clearly distinguishable. In Eldridge v. Bouchard, 620 F. Supp. 678, 682-83 (W.D. Va. 1985), the plaintiffs brought a Sec. 1983 action challenging the disparate salaries paid state troopers. The district court held that the conduct was repetitive and therefore the statute of limitations had not run. In Jackson v. Galen, 631 F. Supp. 409, 413-14 (E.D. La. 1986), the plaintiff brought a Sec. 1983 action challenging the garnishment of her wages. The court held that each garnishment constituted a distinct, continuing violation of her constitutional rights. Therefore, claims based on garnishments occurring within the year prior to the date the suit was filed were within the statute of limitations. However, claims based on garnishments occurring earlier than that were barred. Id. at 414.

There was no such repetitive conduct in this case. Skate King does not challenge the revocation of the permit. Instead it argues that the conditions upon which the permit was approved were unreasonable. The permit was approved upon those conditions in 1980. There is no evidence of further action by the County until 1984 when the permit was revoked due to Skate King's refusal to comply with its conditions. Like the plaintiff in Altair, Skate King "confuses a continuing act with a single act that has continuing consequences." 769 F.2d at 32.

AFFIRMED.

 *

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Cir.R. 36-3