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192 F. 3d 911 - David Fink v. L Shedler
192 F3d 911 David Fink v. L Shedler
DAVID M. FINK, PLAINTIFF-APPELLANT,
L. SHEDLER; SUSAN HUBBARD; J. VALEDEZ; M. JONES; T. ROSARIO; D. CHEFTHAW; THEO WHITE, DEFENDANTS-APPELLEES.
U.S. Court of Appeals, Ninth Circuit
Submitted April 12, 19991
David M. Fink, pro se, Anaheim, California, for the plaintiff-appellant.
James E. Flynn, Deputy Attorney General, Sacramento, California, for the defendants-appellees.
Appeal from the United States District Court for the Eastern District of California; David F. Levi, District Judge, Presiding D.C. No. CV-97-01317-DFL/PAN San Francisco, California
Before: Robert R. Beezer and Stephen S. Trott, Circuit Judges, and Samuel P. King,2 District Judge.
KING, District Judge
David M. Fink appeals pro se the dismissal of his action brought pursuant to 42 U.S.C. S 1983. We have jurisdiction under 28 U.S.C. S 1291, and we affirm.
Fink seeks damages for alleged Eighth Amendment violations, primarily for inadequate medical treatment while he was incarcerated. In his complaint, Fink alleges that his leg was injured on September 2, 1993, after a prison guard beat Fink while handcuffed. He walked on the leg for eight weeks without crutches. On November 9, 1993, a prison doctor allegedly refused to treat his leg or to issue crutches. Fink was released from prison on August 27, 1996 and commenced this action on May 29, 1997.
The district court dismissed Fink's complaint as timebarred, thus applying California Civil Procedure Code S 352.1 retroactively. As amended in 1994, section 352.1 limits tolling of limitations periods to two years for prisoners incarcer ated for less than life. Before the California Legislature passed section 352.1, imprisonment was a disability that tolled statutes of limitations for the entire prison term. See Cal. Civ. Proc. Code S 352(a)(3) (repealed effective January 1, 1995).3
The district court also refused to equitably toll the statute of limitations. Fink had at least one other prisoner section 1983 action pending in the district court while the statute of limitations for the instant claims was running. He initially sought to bring his Eighth Amendment claims by way of amendment to that pending action (Fink v. Gomez, No. Civ. S-94-1521 (E.D. Cal. Sept. 24, 1994) ("Gomez ")). After several failed attempts to amend Gomez, he filed this action.
The timing of events is critical. The following is the relevant time line:
Date             Events
11/9/1993        Prison doctor allegedly refuses proper medical treatment.
9/29/1994        California Legislature amends former Cal. Civ. Proc. Code S 352
(a)(3) to delete unlimited tolling for prisoners. Legislature
adds section 352.1.
1/1/1995         Section 352.1 takes effect.4
11/13/1995       Fink files motion for leave to amend complaint in Gomez.
4/10/1996        Motion to amend in Gomez denied without prejudice.
8/27/1996        Fink released from prison.
9/19/1996        Fink renews motion to amend in Gomez.
10/8/1996        Renewed motion to amend in Gomez denied.
11/5/1996        Fink files another motion to amend in Gomez.
11/9/1996        Statute of limitations expires (if California's
tolling statute applies retroactively).
1/2/1997         Motion to amend in Gomez again denied (by magistrate Judge).
3/18/1997        Order denying motion to amend affirmed by district Judge.
4/30/1997        Fink files another motion to amend in Gomez.
5/29/1997        Instant action commenced.
6/3/1997         Another proposed amended complaint in Gomez lodged.
7/16/1997        Motion to Amend again denied in Gomez.
3/25/1998        District Judge adopts Findings and Recommendations
of Magistrate Judge, dismissing action as timebarred.
4/6/1998         Fink timely appeals.
The district court's dismissal on statute of limitations grounds presents aquestion of law reviewed de novo. See Hernandez v. City of El Monte, 138 F.3d 393, 398 (9th Cir. 1998). Section 1983 does not contain a statute of limitations. Rather, federal courts apply the forum state's personal injury statute of limitations for section 1983 claims. See Wilson v. Garcia, 471 U.S. 261, 276 (1985). In California, the applicable statute of limitations is one year. See Elliott v. City of Union City, 25 F.3d 800, 802 (9th Cir. 1994). Federal courts also apply a forum state's law regarding tolling, including equitable tolling when not inconsistent with federal law. See Hardin v. Straub, 490 U.S. 536, 537-39 (1989); Bacon v. City of Los Angeles, 843 F.2d 372, 374 (9th Cir. 1988). Federal law, however, governs when a claim accrues. See Elliott, 25 F.3d at 801-02. A claim accrues when the plaintiff knows, or should know, of the injury which is the basis of the cause of action. See Kimes v. Stone, 84 F.3d 1121, 1128 (9th Cir. 1996).
According to Fink's complaint, he was denied proper medical treatment on November 9, 1993 when the prison doctor allegedly failed to treat (or improperly treated) his injured leg. The district court properly concluded that the Eighth Amendment claims accrued on this date (at the latest), when Fink knew, or should have known, of the injury which forms the basis of the cause of action. See id. Fink's complaint was not filed until May 29, 1997 -- over three and a half years after accrual. Thus, the one-year statute of limitations barred the action, unless the period was tolled for more than two and a half years.
A. Retroactivity of section 352.1
For a prisoner incarcerated for a term less than life, section 352.1 of the California Civil Procedure Code5 tolls the statute of limitations for two years.6 Section 352.1, however, only became effective on January 1, 1995. See Ellis, 176 F.3d at 1189. Before section 352.1 was passed, prisoners could toll claims for their entire sentence if less than life. See id. Therefore, the dispositive issue is whether application of section 352.1 retroactively to the posture of this case would impermissibly bar Fink's Eighth Amendment claims.
"[W]e apply federal law, not state law, in deciding whether to apply the amended [section 352.1] retroactively." TwoRivers v. Lewis, 174 F.3d 987, 993 (9th Cir. 1999) (citations omitted).7 In TwoRivers, we examined federal retroactivity law as applied to a change to an Arizona statute regarding tolling of claims while a person is incarcerated. TwoRivers applied the analysis set forth in Landgraf v. USI Film Products, 511 U.S. 244 (1994). The test begins with legislative intent. Absent clear evidence of such intent, courts next examine whether the new statute would have retroactive effect. "To assist us in this inquiry, Landgraf identified three types of laws which generally donot have retroactive effect: those authorizing prospective relief, those conferring or removing jurisdiction, and those statutes properly characterized as procedural." Two Rivers, 174 F.3d at 994. "[P]rocedural statutes generally may be applied retrospectively without giving rise to concerns about retroactivity." Id. However, although tolling statutes are "generally considered procedural, that label does not preclude us from examining whether [statutes have] retroactive effect. " Id. (citing Chenault v. U.S. Postal Serv., 37 F.3d 535, 539 (9th Cir. 1994)). Rather, we have "consistently rejected the retroactive application of procedural statutes which result in manifest injustice." Id.
Applying this analysis, TwoRivers held that retrospective application of the new Arizona statute to the plaintiff would indeed be "manifestly unjust." Id. at 995. Retrospective application would have left the plaintiff with less than three months from the new statute's effective date to file suit. TwoRivers held that "a time period of less than three months does not constitute a reasonable time for a prisoner to file suit." Id. at 996.
Here, the district court determined that Fink's claim expired on November 9, 1996. This date included two years of tolling under section 352.1 plus the one-year limitations period. The district court found that applying section 352.1 retroactively to Fink's action did not violate due process. Applying the TwoRivers analysis, we find that the district court was correct.
Initially, we note that the California Legislature did not specifically indicate that section 352.1 was to be applied prospectively only. "In repealing section 352(a)(3) and enacting section 352.1, the California Legislature manifestly intended to limit the ability of prisoners to bring lawsuits based on remote facts." Parker v. Marcotte, 975 F. Supp. 1266, 1270 (C.D. Cal. 1997). "By enacting this legislation, the Legislature intend[ed] to limit the ability to bring lawsuits by prisoners when the facts that give rise to the lawsuits are old, and difficult to prove or disprove." Id. (quoting 1994 Cal. Legis. Serv. Ch. 1083, S 1, S.B. No. 1445 (West)).
Therefore, we next examine whether retroactive application of section 352.1 to Fink's action results in "manifest injustice." It does not. Fink had ample time to bring suit; he simply waited too long. Fink's claim accrued on November 9, 1993, when the doctor allegedly mistreated him. He had at least three years to file this action.8 He also had a reasonable time to bring suit after section 352.1 became effective on January 1, 1995. Cf. TwoRivers, 174 F.3d at 996. Moreover, Fink had at least constructive notice of the new tolling provision in November of 1994, when the California Legislature passed section 352.1. He also had over two and a half months after his actual release from prison to bring this suit. Instead, he waited another six months, until May of 1997, to file this action. Retroactive operation of section 352.1, applied to the posture of this case, does not result in "manifest injustice." See id. at 995 ("We need not go so far as to hold that TwoRivers has a `vested right' in his tolled two-year statute of limitations. It is enough to conclude that retroactive operation of the new statute results in `manifest injustice' and therefore its application here is inappropriate") (citations omitted). Unlike the plaintiff in TwoRivers, who had less than three months to bring suit after the new statute became effective, Fink had almost two years (if the statute of limitations expired on November 9, 1996) to bring suit after section 352.1 took effect.
Under our application, section 352.1 applies retroactively as long as a plaintiff had a reasonable time after January 1, 1995 to bring suit. See Texaco, Inc. v. Short, 454 U.S. 516, 527 n.21 (1982) (reasoning that newstatutes of limitation must allow "a reasonable time after they take effect for the commencement of suits upon existing causes of action") (quoting Wilson v. Iseminger, 185 U.S. 55, 62 (1902)). This approach also makes sense when compared to other possibilities such as (1) applying section 352.1 to all claims regardless of when they accrued, or (2) only applying the section to claims accruing after January 1, 1995. As the court analyzed in Parker, barring per se all claims that accrued before 1995 would raise constitutional concerns. See Parker, 975 F. Supp. at 1270. On the other hand, only applying the section to claims accruing after January 1, 1995 would allow every prior claim, no matter how old, to survive as long as the prisoner lived and remained incarcerated.
Under our approach, claims such as Fink's that accrued before January 1, 1995 are tolled for two years from accrual, or until January 1, 1995, whichever occurs later, as long as such an application does not result in manifest injustice. See TwoRivers, 174 F.3d at 995-96; Parker, 975 F. Supp. at 1272. In addition to satisfying the constitutional concerns analyzed in TwoRivers, this interpretation implements the California Legislature's intent to "limit the ability to bring lawsuits by prisoners when the facts that give rise to the lawsuits are old, and difficult to prove or disprove," 1994 Cal. Legis. Serv. Ch. 1083, S 1, S.B. No. 1445 (West).
B. Equitable Tolling
Fink next argues that the district court should have equitably tolled the statute of limitations. Under California law, a plaintiff must meet three conditions to equitably toll a statute of limitations: "(1) defendant must have had timely notice of the claim; (2) defendant must not be prejudiced by being required to defend the otherwise barred claim; and (3) plaintiff's conduct must have been reasonable and in good faith." Bacon, 843 F.2d at 374.
The first two conditions are not at issue and appear to support the application of tolling. As for the third condition, Fink points out that he attempted (within the limitations period) to amend Gomez to add his Eighth Amendment claims. He argues that he acted "reasonably and in good faith" by filing the instant action only after he exhausted his attempts to bring the claims by way of amending Gomez. We reject this argument.
Gomez dealt with (1) allegedly improper classification and placement in a special holding unit, (2) an Eighth Amendment violation regarding improper use of electric shavers (passing of blood among prisoners by broken shaving heads), and (3) inadequate access to the prison law library. In contrast, the instant action involves inadequate medical care arising from a leg injury allegedly caused by a prison guard. This claim is completely unrelated and does not arise from the same transaction or occurrence as the Gomez claims. In his proposed amendments to Gomez, Fink sought to add seventeen new defendants and four new causes of action to Gomez (including some others that are not the subject of the instant action). He sought to do so in the midst of summary judgment proceedings in that case. Motions to amend were denied in Gomez at least twice before the statute of limitations ran on the instant Eighth Amendment claims, and at least twice after it ran. Moreover, Fink was still attempting to amend Gomez to add the same claims even after filing this case.9 In all, it appears Fink tried at least four times to amend Gomez.
Fink's actions were not a "reasonable and good faith" effort to pursue his claims in an alternate forum or case. See Bacon, 843 F.2d at 374. Rather, Fink unreasonably sought multiple times to amend anunrelated complaint to add different claims against different defendants. If anything, Fink's efforts demonstrate his subjective knowledge -- well within the statutory limitations period -- that he had possible section 1983 claims based upon the November 1993 medical care. The district court properly refused to equitably toll the statute of limitations.
Applying section 352.1 retroactively does not result in manifest inJustice to Fink. The circumstances do not justify equitable tolling.
The panel unanimously finds this case suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).
Honorable Samuel P. King, Senior United States District Judge for the District of Hawaii, sitting by designation.
Section 352(a)(3) provided in relevant part: "(a) If a person entitled to bring an action... be, at the time the cause of action accrued, either:" "(3) Imprisoned on a criminal charge, or in execution under the sentence of a criminal court for a term less than for life; the time of such disability is not a part of the time limited for the commencement of the action." Cal. Civ. Proc. Code S 352(a)(3) (1994).
See Ellis v. City of San Diego, 176 F.3d 1183 (9th Cir. 1999).
The section provides in pertinent part: "S 352.1 Disability of imprisonment" "(a) If a person entitled to bring an action... is, at the time the cause of action accrued, imprisoned on a criminal charge, or in execution under the sentence of a criminal court for a term less than for life, the time of that disability is not part of the time limited for the commencement of the action, not to exceed two years." Cal. Civ. Proc. Code S 352.1 (emphasis added).
Section 352.1(c) specifically excludes from tolling section 1983 actions relating to conditions of confinement, other than actions for damages. Because Fink sought damages, however, subsection 352.1(c) does not apply.
Under California law, "statutes of limitations... are normally retroactively applied to accrued causes of action[.] " Aronson v. Superior Court, 191 Cal. App. 3d 294, 297, 236 Cal. Rptr. 347, 349 (1987) (citations omitted). "[T]he court must inquire whether, in a given case, that retrospective application may violate due process by in effect eliminating the plaintiff's right. If the time left to file suit is reasonable no such constitutional violation occurs, and the statute is applied as enacted. " Id.
Even if Fink didn't know he had a claim in November of 1993, he certainly knew he had a potential claim before November 13, 1995, when he first attempted to amend Gomez.
This is at least some indication that Fink might have known his claims in this case were late, and was attempting to benefit from a "relation back" theory by amending. See Fed. R. Civ. P. 15(a).


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Business News›Opinion›ET Commentary›Drones are at vanguard of US mission goal to dismantle Al-Qaida in AfPak
Drones are at vanguard of US mission goal to dismantle Al-Qaida in AfPak
Today, Predator and Reaper drones fitted with high-precision missiles like Hellfire are the US military's weapon of choice in the AfPak theatre.
ET Bureau|
Updated: May 31, 2012, 05.33 PM IST
There is a scene in Charlie Wilson's War in which Pakistan President Ziaul Haq (portrayed by Om Puri) tells visiting US Congressman Wilson (Tom Hanks): "...That's been part of the problem. The arms and the funding should flow through us. We have experience with warfare of this kind and your CIA has an unimpressive track record." Apparently, the scene followed Zia's famous rejection as "peanuts" of the $400 million package to Pakistan announced by US President Jimmy Carter in 1980 for covert operations and to cope up with the Afghan refugee crisis.
In an interview to BBC World Service radio in 2006, Wilson, who died in 2010, described how, after his trip to Pakistan that included carefully-orchestrated visits to Afghan refugee camps in the North West Frontier Province, he could simply work the phones from his office in Washington and raise billions of dollars to arm the mujahideen as the US presidency passed to Ronald Reagan.
Among the weapon systems that the Americans supplied to the mujahideen, he singled out the shoulder-fired Stinger missiles for disrupting the Soviet troop movements, dismantling the supply lines and ultimately playing the vital role in giving the mighty Red Army a bloody nose in Afghanistan. All said, because Pakistan secured what it thought was its entitlement: the passage of arms and weapon systems channeled through the country.
Three decades later, we have another asymmetrical war in which the roles are reversed, and unmanned aerial vehicles or drones are at the vanguard of the US mission goal "to disrupt, dismantle and defeat Al-Qaida in Afghanistan and Pakistan," as President Barack Obama outlined in his 'AfPak' speech in March 2009. In other words, the focus is every bit as much on Pakistan as it is on Afghanistan. Today, Predator and Reaper drones fitted with high-precision missiles like Hellfire are the US military's weapon of choice in the AfPak theatre.
Such is the dependence that President Obama negated all what he said as Candidate Obama in 2008, and doubled the number of drone strikes in Federally Administered Tribal Areas (Fata) of Pakistan within one year of assuming office in 2009-10. The results are stunning: the stepped-up tempo of drone strikes since they began in 2004 has virtually decapitated Al-Qaeda and its Pakistani and Afghan allies in Fata and has spread panic in terrorist safe havens in Pakistan.
So, common sense dictates Pakistan should be happy, too, because many of these terrorist thugs massacre civilians and target the military there, right? Far from it. Last month, going a step ahead from chronic denunciations from its leaders, the Pakistan parliament passed a resolution calling for an immediate end to all drone attacks as part of list of demands for full normalisation of the country's ties with the US and reopening of Nato supply routes to Afghanistan. The US treated the resolution in the same way as it dealt with criticism from leaders like Prime Minister Gilani - with utter contempt.
As the CIA - which operates the drones - hunts down Islamic militants, the Obama administration should consider why, exactly, Pakistan is so reluctant to allow drone strikes. The usual answer is that CIA encroachments into its territory violate sovereignty, kill innocent civilians and fuel anti-American, anti-government sentiment in Pakistan. That's true as far as it gets.
In fact, hypocrisy permeates every aspect of Pakistan's attitude on this matter. US officials say the strikes come under an agreement with Islamabad that allows Pakistani leaders to criticise them in public. Pakistan denies this. What's even more ludicrous is that at times, drones were even launched from US bases on Pakistani soil. Pakistan's duality in its approach towards the policy of drone attacks simply creates propaganda fodder for terrorists. Moreover, tighter restrictions on "signature strikes" since 2010 have considerably reduced collateral damage. According to Long War Journal, for instance, just 2.2% of the 801 terrorists killed in 2010 were civilians.
Pakistan's full-throated resistance offers a reality check: first, the Pakistanis know that the American unilateral operation of drones insult their sense entitlement in anything concerning Afghanistan; and second, it's not necessarily the drones, but their targets (people like Illyas Kashmiri, killed by a drone missile last year) are the problem for the Pakistani military establishment. Since President Obama announced a timetable for withdrawal at the West Point speech in December 2009, the drones have kept up the heat on the Haqqani network, considered by Pakistan as strategic asset.
Indeed, it's the barefaced deniability about drone strikes that makes Pakistan, in the words of a respected columnist with Dawn, raise "the art of denial to new levels of dissimulation".
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