Radomysl Twardowski v. Bismarck Police Department ( 2019 )

United States Court of Appeals
For the Eighth Circuit
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No. 18-1027
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Radomysl Twardowski
lllllllllllllllllllllPlaintiff - Appellant
v.
Bismarck Police Department; Lt. Glen Ternes; Sgt. Lyle Sinclair; Det. Brandon
Rask
lllllllllllllllllllllDefendants - Appellees
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Appeal from United States District Court
for the District of North Dakota - Fargo
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Submitted: February 19, 2019
Filed: February 27, 2019
[Unpublished]
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Before GRUENDER, BOWMAN, and STRAS, Circuit Judges.
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PER CURIAM.
In May 2017, Radomysl Twardowski filed an action under 42 U.S.C. § 1983seeking damages for injuries he allegedly suffered in January 2007. The district
court1 granted summary judgment to the Bismarck Police Department and several
of its officers because Twardowski filed his lawsuit after the statute of limitations
had expired.
We agree with the district court that Twardowski filed his lawsuit too late.
See Spradling v. Hastings, 912 F.3d 1114, 1119 (8th Cir. 2019) (reviewing a grant
of summary judgment on a section 1983 claim “based upon the statute of limitations
de novo” (citation omitted)). There is no dispute that he filed it more than ten years
after the allegedly wrongful act occurred—long after the six-year statute of
limitations for his excessive-force claim had expired. See Owens v. Okure, 488 U.S.
235, 249–50 (1989) (explaining that section 1983 actions “borrow” the “general or
residual” statute of limitations “for personal injury actions”); N.D. Cent. Code § 28-
01-16(5) (providing a six-year statute of limitations for personal-injury actions).
The claim accrued when the wrongful act allegedly occurred in January 2007,
not sometime later. See Johnson v. Precythe, 901 F.3d 973, 980 (8th Cir. 2018)
(stating that, as a matter of federal law, a section 1983 action accrues “when [the
plaintiff] discovers, or with due diligence should have discovered, the injury that is
the basis of litigation” (citation omitted)). And equitable tolling does not apply
because North Dakota law does not recognize it. See Oakland v. Bowman, 840
N.W.2d 88, 91–92 (N.D. 2013); see also Montin v. Estate of Johnson, 636 F.3d 409,
413 (8th Cir. 2011) (“For a § 1983 action, . . . the issue of equitable tolling, like the
underlying statute of limitations, is determined by reference to state law.”).
Accordingly, we affirm the judgment of the district court. See 8th Cir. R. 47B.
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1
The Honorable Daniel L. Hovland, Chief Judge, United States District Court
for the District of North Dakota.
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