William Stewart Smith, Plaintiff-appellant, v. Alameda County Sheriff Dept.; Hayward Police Chief;hayward Police Dept.; Hoover; Charles B.plummer; Glenn Dyer, Defendants-appellees, 967 F.2d 591 (9th Cir. 1992)

MEMORANDUM^** 

William Stewart Smith, a California state prisoner, appeals pro se the district court's summary judgment dismissal of his 42 U.S.C. § 1983 action as barred by the statute of limitations. In his complaint, Smith alleged that the officer who arrested him used excessive force, which resulted in the breaking of his hand. He also alleged that prison officials were deliberately indifferent to his serious medical needs when they delayed treatment of his hand while he was in pre-trial custody. 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 actions. Id. State law also determines the application of tolling doctrines. Wilson v. Garcia, 471 U.S. 261, 269 (1985).

Section 1983 actions are characterized as personal injury actions for purposes of identifying the applicable statute of limitations. Id. at 276. In California, the applicable statute of limitations is Cal.Civ.P.Code § 340(3), which provides for a limitations period of one year from the date the cause of action accrues. McDougal v. County of Imperial, 942 F.2d 668, 672 (9th Cir. 1991); Gibson v. United States, 781 F.2d 1334, 1338 (9th Cir. 1986), cert. denied, 479 U.S. 1054 (1987). In civil rights actions 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 the prisoner's release from prison. See Cal.Civ.P.Code § 352(a) (3); May v. Enomoto, 633 F.2d 164, 166 (9th Cir. 1980).¹  The prisoner's subsequent reincarceration does not reinstate the tolling statute. See Boag v. Chief of Police, City of Portland, 669 F.2d 587, 589 (9th Cir.) (per curiam) (construing a similar Oregon statute, this court held that statute of limitations started running upon the prisoner's release on parole), cert. denied, 459 U.S. 849 (1982); Deutch v. Hoffman, 165 Cal. App. 3d 152, 166, 211 Cal. Rptr. 319, 321 (1984) (statute of limitations not tolled during period when prisoner was on parole).

Here, Smith's claim regarding medical treatment arose during the period February 1, 1986, the date he was arrested, to March 7, 1986, the date he was released on bail. His cause of action accrued on March 8, 1986, the day after he was released from prison on bail. See May, 663 F.2d at 166. His reincarceration for one week in June 1986 for violating the terms of his bail did not reinstate the tolling statute. See Boag, 669 F.2d at 589; Deutch, 165 Cal. App. 3d at 166, 211 Cal. Rptr. at 321. Smith filed his complaint on September 18, 1989, after the one-year statute of limitations had expired. See McDougal, 942 F.2d at 672. The district court properly dismissed the medical treatment claim as time-barred. See id.² 

The district court also properly dismissed Smith's excessive force claim as time-barred.

Smith's claim regarding excessive force arose out of his arrest on February 1, 1986. Cal.Gov't Code § 945.3 tolled the limitations period for the excessive force claim while the criminal action against Smith was pending in state court. See Harding v. Galceran, 889 F.2d 906, 908 (9th Cir. 1989), cert. denied, 111 S. Ct. 951 (1991).³  Smith's cause of action accrued when he was convicted in July 1987. See id. He filed his complaint on September 18, 1989, after the one-year statute of limitations had expired. See McDougal, 942 F.2d at 672. The district court properly dismissed the claim as time-barred. See id.

AFFIRMED.