Brian S. Faile, Petitioner-appellant, v. Michael Geary, et al., Respondent-appellee, 958 F.2d 376 (9th Cir. 1992)Annotate this Case
Before BROWNING, POOLE and WIGGINS, Circuit Judges.
Brian S. Faile, a Nevada 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 review de novo, Donoghue v. County of Orange, 848 F.2d 926, 929 (9th Cir. 1987), and we affirm.
Federal courts apply the statute of limitations of the state in which the claim arises for 42 U.S.C. § 1983 claims. Id. Section 1983 claims are characterized as personal injury actions for purposes of identifying the applicable statute of limitations. Wilson v. Garcia, 471 U.S. 261, 276 (1985). If there are multiple personal injury statutes of limitations, the residual statute of limitations for personal injury actions applies. Perez v. Seever, 869 F.2d 425, 426 (9th Cir.) (per curiam) (citing Owens v. Okure, 488 U.S. 235 (1989)), cert. denied, 110 S. Ct. 172 (1989). In Nevada, the residual statute of limitations for personal injury actions is Nev.Rev.Stat. § 11.190(4) (e), which provides for a limitations period of two years from the date the cause of action accrues. Id.
Here, Faile's cause of action arose out of an allegedly illegal search conducted in September 1988. He did not file his complaint until December 17, 1990. The state of Nevada has not enacted a tolling statute that suspends the running of section 11.190(4) (e) for prisoners. See Nev.Rev.Stat. § 11.250. Accordingly, the district court properly granted the defendants' motion to dismiss Faile's claim as time-barred. See Perez, 869 F.2d at 426.