Unpublished Disposition, 895 F.2d 1417 (9th Cir. 1988)

Annotate this Case
U.S. Court of Appeals for the Ninth Circuit - 895 F.2d 1417 (9th Cir. 1988)

Robert E. JENNISON, Plaintiff-Appellant,v.Sam LEWIS, et al., Defendants-Appellees,

No. 89-15793.

United States Court of Appeals, Ninth Circuit.

Submitted Feb. 7, 1990.* Decided Feb. 9, 1990.As Amended April 11, 1990.

Before CANBY, BRUNETTI and FERNANDEZ, Circuit Judges.


Robert E. Jennison, an Arizona state prisoner, appeals pro se the district court's dismissal of his 42 U.S.C. § 1983 action as barred by the statute of limitations. We have jurisdiction prusuant to 28 U.S.C. § 1291. We affirm.

We review de novo the district court's dismissal on statute of limitations grounds, Donoghue v. County of Orange, 848 F.2d 926, 929 (9th Cir. 1987), and its interpretation of state law, In re McLinn, 739 F.2d 1395, 1397 (9th Cir. 1984).

Jennison's alleged injuries resulted from television broadcasts occurring on May 19, 1982 and February 3, 1988. Jennison alleges that he did not discover that he had a cause of action until late in 1987. Further, he argues that because of his incarceration he was under a "disability" which tolled the statute of limitations even after he discovered that he had a cause of action.

The statute of limitations for civil rights actions under 42 U.S.C. § 1983 is defined by state law. Wilson v. Garcia, 471 U.S. 261, 280 (1985). State law also governs questions of tolling and application of the statute of limitations. Id. at 269. Civil rights claims are characterized as actions for personal injuries for purposes of determining the appropriate state limitations period. Owens v. Okure, 109 S. Ct. 573, 576-77 (1989).

Under Arizona law, an action for personal injuries must be brought within two years after the cause of action accrues. Ariz. Rev. Stat. Ann. Sec. 12-542 (West Supp. 1988). The state tolling provision, Ariz. Rev. Stat. Ann. Sec. 12-502(B), once provided that a prisoner's incarceration would toll the limitations period until his release from prison. Ariz. Rev. Stat. Ann. Sec. 12-502 (West 1982). Effective in August, 1984, section 12-502(B) was amended and now provides that any disability arising from a person's imprisonment exists "only until such time as the person imprisoned discovers the right to bring the action or with the exercise of reasonable diligence should have discovered the right to bring the action." Ariz. Rev. Stat. Ann. Sec. 12-502(B) (West Supp. 1988). The amendment, however, does not operate retroactively. See Zuck v. State, 159 Ariz. 37, 41, 764 P.2d 772, 776 (Ct. App. 1988).

Jennison knew of his injury by February, 1983. He knew that his picture had been broadcast both locally and nationally along with disparaging remarks about his character. He knew that these broadcasts resulted in the firebombing of his cell and his harassment by other inmates. Jennison even admits knowing that he had been injured.

Even though Jennison should have discovered his cause of action in February, 1983, the statute of limitations was tolled under the old section 12-502 because jennison was incarcerated at the time. See Zuck, 159 Ariz. at 41, 764 P.2d at 776. However, the tolling lasted only until the amended section 12-502 became effective. See id. Thus, the two-year limitations period began running in August, 1984 and expired in August, 1986. See id.

Jennison's contention that he thought the news media had a constitutional right to obtain his picture and that he did not discover his cause of action until reading Jersawitz v. Hanberry, 783 F.2d 1532 (11th Cir. 1986) in 1987 is of no avail. The right to privacy principle for which Jennison cites Jersawitz, however, was laid down by the Supreme Court long before 1986. See Pell v. Procunier, 417 U.S. 817, 834 (1974); Saxbe v. Washington Post Co., 417 U.S. 843, 850 (1974). The statute of limitations is not tolled by a plaintiff's ignorance of the precise boundaries of a legal right. See Sevier v. Turner, 742 F.2d 262, 273 (6th Cir. 1984).

The district court's judgment is AFFIRMED.


The panel unanimously finds this case suitable for disposition without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3