Ball v. Carroll ( 1997 )

USCA1 Opinion

                                [NOT FOR PUBLICATION]

                            United States Court of Appeals

                                For the First Circuit

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        No. 96-1980



                                    JONATHAN BALL,



                                Plaintiff - Appellant,



                                          v.



                       ROGER CARROLL AND CHARLES F. HENDERSON,



                               Defendants - Appellees.



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                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                          FOR THE DISTRICT OF MASSACHUSETTS



                   [Hon. Nathaniel M. Gorton, U.S. District Judge]
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                                        Before



                                Boudin, Circuit Judge,
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                            Bownes, Senior Circuit Judge,
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                              and Stahl, Circuit Judge.
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            John A. Bosk on brief for appellant.
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            Christine E. McGinn with whom Brian Rogan and Law Offices of
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        Timothy M. Burke were on brief for appellee Roger Carroll.
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            Edward M. Pikula with whom Cohen, Rosenthal, P.C. was on brief
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        for appellee Charles F. Henderson.



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                                  FEBRUARY 19, 1997

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                      Per Curiam.  This appeal raises the specter of
Per Curiam.
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            affirming the dismissal of a potentially viable claim for the



            violation of federally protected rights under 42 U.S.C.



            1983.  Having analyzed the district court's memorandum



            accompanying its order of dismissal, we agree that the



            statute of limitations has run.  Accordingly, plaintiff-



            appellant Jonathan Ball has no basis for relief and we



            affirm.1



                      We briefly state the relevant facts.  On December



            3, 1992, defendant-appellee Roger Carroll, a Massachusetts



            state trooper, pulled Ball over for speeding on Interstate 93



            in Massachusetts.  According to Ball and the report from a



            subsequent investigation by the Massachusetts Attorney



            General, Carroll next ordered Ball out of his car and then,



            when Ball did not respond quickly enough, dragged him out of



            the vehicle and allowed his head to hit the pavement.



            Carroll then struck Ball in the face and kneed him in the



            back for no apparent reason.  Adding insult to injury,



            Carroll arrested Ball and charged him with (1) assault and



            battery on a police officer, (2) refusing to obey a police






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            1.  We voted  to  consider this  appeal as  submitted and  to

            dispense with  oral argument.  The shortness  of time between

            our decision  and oral  argument, however, prevented  us from

            formally removing the case from  the February docket.  Ball's

            counsel's  scheduling conflict  had  nothing to  do with  our

            decision that oral argument would not be helpful in resolving

            this appeal.





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            officer, (3) driving without a license, and (4) speeding.



            All counts were subsequently nol prosed by the state



            prosecutor.



                      We look to state law for the statute of limitations



            applicable to   1983 actions.  See Wilson v. Garcia, 471 U.S.
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            261, 276-80 (1985) (indicating that state personal injury



            statute of limitations governs   1983 actions).



            Massachusetts imposes a three-year statute of limitations for



            personal injury claims, see Mass. Gen. Laws ch. 260   2A, and
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            thus Ball had three years from the date of the incident to



            file suit.  Ball filed his complaint on December 29, 1995.



            The district court, noting that Ball filed his complaint 26



            days too late, granted Carroll's motion to dismiss.



                      On appeal, Ball primarily reasserts arguments that



            failed in the district court.  We affirm for essentially the



            same reasons set forth in that court's memorandum of August



            8, 1996, adding only a brief response to Ball's request that



            we consider an equitable tolling of the statute of



            limitations.



                      Ball contends that the district court should have



            tolled the statute of limitations during the pendency of the



            original criminal charges against him.  He argues that his



            tardiness in no way prejudices Carroll and the other



            defendants, and that the egregious facts, largely supported











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            by the investigatory report of the Massachusetts Attorney



            General, warrant such a tolling.



                      For this argument, Ball relies on the Ninth



            Circuit's decision in Harding v. Galceran, 889 F.2d 906 (9th
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            Cir. 1989).  Harding involved an altercation between an
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            individual, Harding, and sheriff's deputies in Los Angeles,



            California.  See id. at 907.  Following the altercation, the
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            deputies filed criminal charges against Harding.  A jury



            acquitted him of the charges.  Subsequently, and more than



            one year after the incident and after the pertinent



            limitations period had expired, Harding commenced a   1983



            action against the deputies involved.  The district court



            dismissed Harding's complaint as time barred.  See id.
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                      On appeal, the Ninth Circuit reinstated Harding's



            action.  The court noted that by statute, California



            prevented plaintiffs from filing civil actions against police



            officers during the pendency of criminal charges.  See id. at
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            907 n.2.  The court found this provision inconsistent with



            the purposes of   1983.  It announced that henceforth the



            statute would be interpreted either not to prevent   1983



            actions from being filed while criminal charges were pending,



            or to toll the California statute of limitations until the



            final disposition of the criminal charges.  See id. at 908.
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            The Ninth Circuit then concluded that Harding's action was











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            timely because his claim was filed within one year of the



            disposition of the criminal charges against him.  See id.
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                      We decline to accede to Ball's request that we



            adopt the Ninth Circuit rule.  First, unlike the one-year



            limit in California, Massachusetts allows plaintiffs a more



            generous three years within which to file a   1983 action.



            See Mass. Gen. Laws ch. 260   2A.  Second, Massachusetts has
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            not enacted a statute prohibiting plaintiffs from filing



            actions against police officers during the pendency of



            criminal charges against those plaintiffs.  Ball thus was



            free to present his claim any time after the incident, see
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            Mass. Gen. Laws ch. 258   4 (requiring presentation of claims



            to executive officer of agency prior to filing suit), and to



            commence this action six months later.  See id. (indicating
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            that if executive officer of agency takes no action on claim



            within six months, claimant may file suit).  Third, neither



            the year-long criminal action nor the six-month presentment



            period explains Ball's failure to timely file this suit.



            Ball presented his claim on November 30, 1994.  By statute



            the presentment period expired by May 30, 1995.  The three-



            year statute of limitations did not run until December 3,



            1995.  Despite Ball's delay in presenting his claim, he still



            had over six months after his claim was effectively denied to



            commence suit.











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                      Although we are not unmindful of the injuries



            Carroll gratuitously inflicted on Ball, we conclude that the



            statute of limitations has expired and we find no basis to



            grant him a judicial exception to the operation of



            Massachusetts law.



                      Affirmed.  See 1st Cir. R. 27.1.  No costs.
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