Unpublished Disposition, 899 F.2d 1225 (9th Cir. 1988)

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US Court of Appeals for the Ninth Circuit - 899 F.2d 1225 (9th Cir. 1988)

Edward LAREZ, Plaintiff-Appellant,v.CITY OF LOS ANGELES, et al., Defendants-Appellees.

No. 89-55421.

United States Court of Appeals, Ninth Circuit.

Submitted March 26, 1990.* Decided April 3, 1990.

Before FLETCHER, LEAVY and FERNANDEZ, Circuit Judges.


MEMORANDUM** 

Edward Larez appeals the district court's order dismissing his 42 U.S.C. § 1983 civil rights action against the City of Los Angeles because the statute of limitations had run. Larez contends that the district court erred in determining that (1) the California statute of limitations applicable in section 1983 actions is one year; and (2) the statute of limitations was not re-tolled upon his re-incarceration after release on parole. We have jurisdiction under 28 U.S.C. § 1291. We review de novo, Berg v. Kincheloe, 794 F.2d 457, 459 (9th Cir. 1986), and we affirm.

* Applicable Statute of Limitations

Larez contends that the one-year statute of limitations held applicable to civil rights actions in California, Usher v. City of Los Angeles, 828 F.2d 556, 558 (9th Cir. 1987), no longer applies in light of the Supreme Court's recent decision in Owens v. Okure, 109 S. Ct. 573 (1989). He suggests the applicable statute of limitations is the four-year period as set forth in Cal.Civ.Proc.Code Sec. 343.

The Ninth Circuit has resolved this issue in holding that Owens did not undermine the Usher decision, and that there is no question that the California statute of limitations for section 1983 actions is the one-year period as set forth in Cal.Civ.Proc.Code Sec. 340(3). Del Percio v. Thornsley, 877 F.2d 785, 786 (9th Cir. 1989). Therefore, the district court did not err in determining that the applicable California statute of limitations period governing section 1983 actions is one year. See id.

II

Tolling of Limitations Period

Larez also contends that the statute of limitations was retolled when he was reincarcerated after release on parole. On June 13, 1986, Larez was taken into custody after he was allegedly subjected to an illegal search and seizure on the same date. On April 14, 1987, Larez was released from custody and paroled. On October 14, 1987, Larez was again incarcerated. Larez filed this civil action on November 2, 1988.

We look to state law to determine the application of tolling provisions. Harding v. Galceran, 889 F.2d 906, 907 (9th Cir. 1989) (citation omitted). Under Cal.Civ.Proc.Code Sec. 352, California's tolling provision, the statute of limitations is tolled only when a person is under a disability at the time the cause of action accrues. See Bledstein v. Superior Court, 162 Cal. App. 3d 152, 170 (1984); see also Gowin v. Altimer, 663 F.2d 820, 823 (9th Cir. 1981). Unlawful search and seizure claims accrue when the alleged illegal acts occur. Cooper v. Franchise Tax Bd., 661 F. Supp. 60, 61 (N.Cal.1987) (citation omitted).

In a civil rights action involving an imprisoned person, the statute of limitations is tolled from the date the cause of action accrues up to and including the date of release from incarceration. May v. Enomoto, 663 F.2d 164, 166 (9th Cir. 1980). Upon the prisoner's release the limitations period begins to run. See Deutsch v. Hoffman, 165 Cal.App.3d, 152, 154 (1985). The plaintiff's subsequent reincarceration does not interrupt the running of the limitations period. Cf. Boag v. Chief of Police, City of Portland, 669 F.2d 587, 589 (9th Cir. 1982), cert. denied, 459 U.S. 849 (1982) (construing a similar Oregon statute, this court held disability of imprisonment "ceased" upon parole, and subsequent reincarceration did not reinstate the tolling statute).

The cause of action upon which Larez bases his civil rights action accrued on June 13, 1986. See Cooper, 661 F. Supp. at 60. Upon Larez's release from prison on parole on April 14, 1986, the one-year limitations period began to run. See Deutsch v. Hoffman, 165 Cal. App. 3d 152, 154 (1984). The statute of limitations was not retolled when he was reincarcerated on October 14, 1987 because the cause of action had accrued before this time. See Bledstein, 162 Cal. App. 3d at 170; see also Gowin, 663 F.2d at 823 (9th Cir. 1981).

Because Larez's reincarceration did not retoll the limitations period, the one-year limitations period ran uninterrupted from April 14, 1986 to April 14, 1987. Cf. Boag, 669 F.2d at 589. Therefore, the district court did not err in finding that Larez's civil rights action was time barred.

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