Unpublished Disposition, 925 F.2d 1470 (9th Cir. 1989)

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US Court of Appeals for the Ninth Circuit - 925 F.2d 1470 (9th Cir. 1989)

Charles REED, Plaintiff-Appellant,v.MARICOPA COUNTY, et al. Defendants-Appellees.

No. 90-15343.

United States Court of Appeals, Ninth Circuit.

Submitted Feb. 20, 1991.* Decided Feb. 22, 1991.

Before O'SCANNLAIN, LEAVY and TROTT, Circuit Judges.


MEMORANDUM** 

Charles Reed appeals pro se the district court's summary judgment in favor of Maricopa County in his inverse condemnation action and denial of his motion to amend.1  Reed contends the district court erred in finding that his action was barred by res judicata, and that his proposed amendment was barred by the statute of limitations. We review de novo, Kruso v. International Tel. & Tel. Corp., 872 F.2d 1416, 1421 (9th Cir. 1989), cert. denied, 110 S. Ct. 3217 (1990), and affirm.

In 1984, Maricopa County filed an action in Arizona Superior Court against Reed for placing fill in a delineated floodway in violation of Arizona Floodplain Regulations, Ariz.Rev.Stat.Ann. Sec. 45-2354. Reed filed a counter claim alleging a taking without just compensation under the Arizona Constitution and the United States Constitution. The Superior Court found there was no taking without just compensation under either the Arizona or the United States Constitution. The Arizona Court of Appeals affirmed, and the Arizona Supreme Court denied review.

Under res judicata, a final judgment on the merits bars further claims by parties based on the same cause of action.... Under collateral estoppel, once an issue is actually and necessarily determined by a court of competent jurisdiction, that determination is conclusive in subsequent suits based on a different cause of action involving a party to the prior litigation.

Montana v. United States, 440 U.S. 147, 153 (1979) (citations omitted). Federal courts are required to give "full faith and credit" to state judicial proceedings. 28 U.S.C. § 1738 (1982); Gilbert v. Ben-Asher, 900 F.2d 1407, 1410 (9th Cir. 1990), cert. denied, 111 S. Ct. 177 (1990). Thus, we look to Arizona law of res judicata and give the state court judgment the same preclusive effect as would state courts. Gilbert, 900 F.2d at 1410; Matter of Lockard, 884 F.2d 1171, 1174 (9th Cir. 1989).

The Arizona Supreme Court has stated: "Under the doctrine of res judicata, a judgment 'on the merits' in a prior suit involving the same parties or their privies bars a second suit based on the same cause of action." Chaney Bldg. Co. v. City of Tucson, 148 Ariz. 571, 573, 716 P.2d 28, 30 (S. Ct. 1986). Further, this court has made it clear that:

where the federal constitutional claim is based on the same asserted wrong as was the subject of a state action, and where the parties are the same, res judicata will bar the federal constitutional claim whether it was asserted in state court or not, for the reason that the state judgment on the merits serves not only to bar every claim that was raised in state court but also to preclude the assertion of every legal theory or ground for recovery that might have been raised in support of the granting of the desired relief.

Scoggin v. Schrunk, 522 F.2d 436, 437 (9th Cir. 1975), cert. denied, 423 U.S. 1066 (1976).

In state court, Reed alleged that the enforcement of the Floodplain Regulation constituted a taking of his property without just compensation under the Arizona Constitution.2  The Arizona state court decided this issue on the merits against Reed. Because his claim for unconstitutional taking under the Fourteenth Amendment arises out of the same operative facts, and merely alleges another legal theory for the same relief, Reed could have asserted it in state court. This claim is therefore barred by res judicata. See id.

Reed also contends the district court erred in not permitting him the opportunity to amend his complaint to include a claim for relief under 42 U.S.C. § 1983. The court found that amendment was futile because the section 1983 claim was barred by the statute of limitations. In Wilson v. Garcia, 471 U.S. 261 (1985), the Supreme Court held that the statute of limitations for section 1983 actions would be the state statute of limitations for personal injury actions. Id. at 279. In Arizona, the statute of limitations for personal injuries is two years. Ariz.Rev.Stat.Ann. Sec. 12-542; Marks v. Parra, 785 F.2d 1419, 1420 (9th Cir. 1986). Federal law, however, determines when the cause of action accrues. Compton v. Ide, 732 F.2d 1429, 1432 (9th Cir. 1984). A federal claim is generally considered to accrue when the plaintiff "knows or has reason to know of the injury which is the basis of the action." Norco Construction, Inc. v. King County, 801 F.2d 1143, 1145 (9th Cir. 1986).

In his complaint, Reed acknowledges that the taking of his property occurred on August 15, 1984. Yet Reed first attempted to assert a claim under section 1983 in his proposed amended complaint on November 27, 1989, more than five years after the cause of action accrued.3  Thus, because the section 1983 claim was barred by the Arizona two-year statute of limitations, see Marks, 785 F.2d at 1420, the district court was correct in denying the proposed amendment.

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

 1

After the district court granted summary judgment, Reed timely filed a Fed. R. Civ. P. 59 motion for rehearing or alternatively for new trial. A timely Rule 59 motion suspends the time for appeal. Taylor v. Knapp, 871 F.2d 803, 805 (9th Cir. 1989). After the district court denied the Rule 59 motion, Reed timely appealed. Thus, we have jurisdiction to consider the merits of the summary judgment as well as the denial of the Rule 59 motion

 2

Although Reed filed an amended complaint alleging a taking under the United States Constitution, that amended complaint is not part of the record on appeal. However, because we decide the case on res judicata grounds, we need not reach the issue of whether the Fourteenth Amendment claim was actually litigated in the state proceedings

 3

Reed fails to address the issue of the statute of limitations in his brief. He argues that his Fourteenth Amendment claim did not accrue until after he exhausted state remedies. However, even liberally construed, this does not save his section 1983 action from the statute of limitations, for there is no requirement that a plaintiff must exhaust state remedies before bringing either a Fourteenth Amendment or a section 1983 claim. He argued below that the ten year statute of limitations for real property actions applies to his action. However, it is clear that because he seeks relief under section 1983, the Arizona two year statute of limitations for personal injuries applied. Further, Reed has not shown that the statute of limitations was tolled for any reason