Unpublished Disposition, 899 F.2d 1225 (9th Cir. 1987)

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US Court of Appeals for the Ninth Circuit - 899 F.2d 1225 (9th Cir. 1987)

George HUGHES; Priscilla Hughes, Plaintiffs-Appellants,v.Ronald ALLEN; Jack Terry; Fire Captain Williams,Defendants-Appellees.

No. 88-6735.

United States Court of Appeals, Ninth Circuit.

Submitted March 8, 1990.* Decided April 10, 1990.

Before DAVID R. THOMPSON and TROTT, Circuit Judges, and FRANK G. THEIS, District Judge*** 

MEMORANDUM** 

George and Priscilla Hughes ("appellants") appeal the district court's dismissal of their claims against California Highway Patrol ("CHP") Sergeant Jack Terry and El Monte Fire Department Captain Larry Williams for failure to file a complaint naming them as defendants within the applicable statute of limitations. The appellants also appeal the district court's decision granting summary judgment in favor of CHP Officer Ronald Allen. We affirm.

FACTS

On November 1, 1984, at approximately 3 AM, George Hughes suffered a stroke while driving alone on a Los Angeles freeway. Hughes drove onto the freeway's center divider and stopped. Smoke was coming from the car. Fire Captain Williams arrived at the scene. Williams formed the opinion that Hughes was intoxicated and called the CHP.

CHP Officers Allen and Person responded to Williams' call. Hughes told the officers that he had not consumed any alcohol or drugs, except for medication prescribed for his heart condition. Hughes did not tell the officers that he was ill, or that he suspected he was ill. However, Hughes was unable to get out of his car or stand without assistance. Officers Allen and Person formed the opinion that Hughes was intoxicated.

CHP Sergeant Terry arrived at the scene in response to a call from Officers Allen and Person. Sergeant Terry authorized the two officers to take Hughes to the Los Angeles County Sheriff's substation in Temple City to have Hughes examined by a drug recognition expert. At the substation, Deputy Sheriff Donald Neilsen examined Hughes. Deputy Neilsen told Officers Allen and Person that Hughes appeared to be under the influence of an opiate and recommended that Hughes be tested for opiate usage. Officers Allen and Person obtained a urine sample from Hughes. Officers Allen and Person then took Hughes to the Los Angeles County main jail where he was booked on a charge of public intoxication. Approximately one week later, Hughes' urine sample was found to be negative for opiates.

DISCUSSION

George Hughes and his wife Priscilla brought this suit against numerous defendants, including Officer Allen, Fire Captain Williams and Sergeant Terry, pursuant to 42 U.S.C. §§ 1983 and 1985.1  The district court had jurisdiction under 28 U.S.C. §§ 1331 and 1343. We have appellate jurisdiction under 28 U.S.C. § 1291.

A. Statute of Limitations

We review de novo the district court's decision to grant Captain Williams' and Sergeant Terry's Rule 12(c) motions for judgment on the pleadings and to dismiss the claims against them for failure to file a complaint naming them as defendants within the applicable statute of limitations. Dworkin v. Hustler Magazine, Inc., 867 F.2d 1188, 1192 (9th Cir.), cert. denied, 110 S. Ct. 59 (1989).

The appellants filed their original complaint on October 31, 1985, naming as defendants Officer Allen and Does 1-20. Thereafter, the appellants filed four amended complaints. Only the third and fourth amended complaints named Captain Williams and Sergeant Terry as defendants. The appellants make no argument that the amendments naming Captain Williams and Sergeant Terry relate back to either the original complaint or the first two amended complaints under Rule 15(c). Cf. Korn v. Royal Caribbean Cruise Line, Inc., 724 F.2d 1397, 1399 (9th Cir. 1984) (Rule 15(c) is "the only vehicle through which a plaintiff may amend his complaint, after a statute of limitation period has run, to accurately name a defendant who was not correctly named in the pleading before the limitation period had run"). Instead, the appellants argue that the third amended complaint, filed on June 23, 1986, was filed within the applicable statute of limitations period.

State law determines the statute of limitations for actions brought under 42 U.S.C. § 1983. Usher v. City of Los Angeles, 828 F.2d 556, 558 (9th Cir. 1987). Prior to the Supreme Court's decision in Wilson v. Garcia, 471 U.S. 261 (1985), we had held that the statute of limitations for all section 1983 suits in California was three years, applying the limitations period of Cal.Civ.Proc.Code Sec. 338(1), which governs causes of action created by statute. Usher, 828 F.2d at 558-59. The appellants' third and fourth amended complaints, filed June 23 and November 13, 1986, respectively, fall within the three-year period following the arrest of George Hughes.

The Supreme Court in Wilson held the statute of limitations for all section 1983 claims is the forum state's statute of limitations for personal injury torts. Wilson, 471 U.S. at 275-76. In California, this limitations period is one year. Cal.Civ.Proc.Code Sec. 340(3). The Court decided Wilson after the appellants' cause of action arose but before they filed their original complaint.

In Usher, we rejected a "wholly retroactive application of Wilson" to causes of action arising before Wilson was decided. Usher, 828 F.2d at 560. We concluded that such an application would conflict with criteria laid down by the Supreme Court in Chevron Oil Co. v. Huson, 404 U.S. 97 (1971), governing whether to apply a newly formulated rule of law retroactively.2  Id. Instead, we held:

that in states such as California, where the effect of Wilson v. Garcia is to shorten the limitation period for 42 U.S.C. § 1983 actions, 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 Wilson decision, whichever expires first. Thus, in California, the applicable statute of limitations is either three years from the time the cause of action arises or one year from Wilson, depending on which period expires first.

Id. at 561. Wilson was decided on April 17, 1985. The appellants did not file their third amended complaint, the first complaint naming Captain Williams and Sergeant Terry as defendants, until June 23, 1986, more than one year after Wilson was decided. Under our holding in Usher, then, the third amended complaint was not timely filed as to the claims against Williams and Terry.

The appellants argue that we should not apply Usher, decided on September 21, 1987, retroactively so as to bar a complaint already filed by that date. However, Usher represents our resolution of the question of whether to apply Wilson retroactively. The rule we adopted in Usher was first enunciated by the Seventh Circuit in Anton v. Lehpamer, 787 F.2d 1141 (7th Cir. 1986). In Anton, the Seventh Circuit stated,

[W]e do not believe that complete retroactive effect of [Wilson ] is appropriate in the circumstances presented here. On the other hand, the Supreme Court in Wilson explicitly directed the federal courts to apply the state's personal injury statute of limitations to all section 1983 suits. We must implement that decision in this circuit as quickly as justice permits.


Anton, 787 F.2d at 1146 (footnote omitted).

We adopted the rule announced in Usher after a careful consideration of the Chevron factors. We rejected both a completely retroactive and a completely prospective application of Wilson, deciding instead to adopt a rule "safeguarding the rights of federal civil rights litigants while still providing individual state uniformity for section 1983 actions." Usher, 828 F.2d at 561. Following Usher, we conclude that the district court did not err in dismissing the claims against Captain Williams and Sergeant Terry.

B. Summary Judgment in Favor of Officer Allen

We review de novo the district court's grant of summary judgment to Officer Allen, viewing the evidence in the manner most favorable to the appellants. Franklin v. Murphy, 745 F.2d 1221, 1235 (9th Cir. 1984). Summary judgment is proper if "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c).

To avoid a grant of summary judgment to Officer Allen, the appellants cannot rely solely on the allegations in their pleadings. Mosher v. Saalfeld, 589 F.2d 438, 442 (9th Cir. 1978) (per curiam), cert. denied, 442 U.S. 941 (1979). Rather, they must present some "significant probative evidence tending to support the complaint." First National Bank v. Cities Serv. Co., 391 U.S. 253, 290 (1968).

The appellants contend that summary judgment in favor of Officer Allen was improper because a reasonable jury could conclude that "Officer Allen used excessive force in removing ... George Hughes from his vehicle" and that "Officer Allen was deliberately indifferent to the medical needs of ... George Hughes." Appellants' Brief at 5.

Supporting their contention that Officer Allen used excessive force in arresting George Hughes and retaining him in custody, the appellants allege that Officer Allen forcibly removed Hughes from his car and stood him up, and that Hughes fell to the ground. Id. at 7. They allege that Officer Allen stated, " [H]e's so drunk he can't stand up." Id. They further allege that Officers Allen and Person handcuffed Hughes and forced him into the police car. Id. at 8.

The use of excessive force in an arrest violates the arrestee's fourth amendment right to be free from an unreasonable seizure. Graham v. Connor, 109 S. Ct. 1865, 1871 (1989) (all claims that police officers have used excessive force should be analyzed under the fourth amendment's "reasonableness" standard, not under a substantive due process approach). "The 'reasonableness' of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." Id. at 1872. The inquiry must focus on "whether the officers' actions are 'objectively reasonable' in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation." Id.

Government officials performing discretionary functions have a qualified immunity that shields them from civil damages liability as long as their actions could reasonably have been thought consistent with the rights they are alleged to have violated. Anderson v. Creighton, 483 U.S. 635, 638 (1987). Qualified immunity is a defense to a claim of excessive force. White by White v. Pierce County, 797 F.2d 812, 816 (9th Cir. 1986). Thus, the question in this case is whether Officer Allen could have reasonably believed that he was using a reasonable amount of force under the circumstances.

On this record, there is no genuine issue as to whether Officer Allen could have reasonably believed he and Officer Person were using a reasonable amount of force. Based on Hughes' actions and physical condition, and on Officer Allen's experience as a police officer, Officer Allen believed that Hughes was intoxicated and could not move by himself. The appellants admit that Hughes was unable to get out of his car when told to do so by Officer Allen. See Appellants' Brief at 7. A reasonable police officer could believe that carrying Hughes from his car to the police car was a reasonable use of force to effect an arrest. Summary judgment on this claim was appropriate.

Appellants also contend that Officer Allen was deliberately indifferent to Hughes' medical needs. This claim arises under the due process clause of the fourteenth amendment. See Ingraham v. Wright, 430 U.S. 651, 671 n. 40 (1977); Cabrales v. County of Los Angeles, 864 F.2d 1454, 1461 n. 2 (9th Cir. 1988), vacated on other grounds, 109 S. Ct. 2425, reinstated, 886 F.2d 235 (1989).

On the record in this case, there is no genuine issue as to whether Officer Allen was deliberately indifferent to Hughes' medical condition. Officer Allen believed Hughes to be intoxicated, not ill. Acting on this belief, Officer Allen took Hughes to a drug recognition expert, and this person also was of the opinion that Hughes was intoxicated.

The appellants allege in their complaint that Hughes' medical condition was "obvious." Fourth Amended Complaint, Excerpts of Record at 25. However, they admit that even Hughes did not know at the time that he had suffered a stroke or paralysis. See Appellants' Brief at 6. The appellants further allege that Officer Allen ignored Hughes' attempt to tell him about his chronic heart trouble. See Fourth Amended Complaint, Excerpts of Record at 22. Given Hughes' apparent, although not actual, intoxication, Officer Allen's conduct in not listening to Hughes' complaints of heart trouble (assuming these allegations of the complaint to be true), did not rise, or sink, to the level of deliberate indifference. See Cabrales, 864 F.2d at 1461.

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

 ***

Honorable Frank G. Theis, Senior United States District Judge for the District of Kansas, sitting by designation

 1

The appellants do not challenge on appeal the district court's dismissal of their section 1985 claims against Officer Allen, Captain Williams, and Sergeant Terry

 2

The Chevron factors are (1) whether the decision establishes a new principle of law; (2) whether retroactive application will further or retard the purposes of the rule in question; and (3) whether applying the new decision will produce substantial inequitable results. 404 U.S. at 106-07