
USCA1 Opinion

	




          December 11, 1992                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ___________________          No. 92-1498                                              DON J. GONSALVES,                                Plaintiff, Appellant,                                          v.                                 PETER FLYNN, ET AL.,                                Defendants, Appellees.                                  __________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. Joseph L. Tauro, U.S. District Judge]                                            ___________________                                 ___________________                                        Before                                Selya, Cyr and Boudin,                                   Circuit Judges.                                   ______________                                 ___________________               Don J. Gonsalves on brief pro se.               ________________               Robert E. McCarthy on brief for appellees.               __________________                                  __________________                                  __________________                 Per Curiam.  Plaintiff Don J. Gonsalves, a Massachusetts                 __________            inmate, appeals the  dismissal of his complaint as  barred by            the statute of limitations.  We affirm.                                          I.                 The relevant dates of the events which gave rise to this            action are  not in dispute.   Gonsalves entered  the Plymouth            County  House  of Correction  on January  12,  1985.   He was            placed in an isolation  cell on January 25.  He was allegedly            assaulted  by  five  of the  seven  defendants  on  March 16,            1985.1    On April  30, 1985,  Gonsalves escaped  while being            transported  for  medical  treatment.   He  was  arrested  in            Washington on  April 12,  1986, where  he remained  in prison            until June 4, 1988.   He was then returned  to Massachusetts.            On July 9, 1988, Gonsalves was reincarcerated at the Plymouth            County  House of Correction.  He  filed the instant complaint            on October 25, 1988.  The district court appointed counsel to            represent Gonsalves  and two amended  complaints were  filed.            The last  of these  raised claims  for  assault and  battery,            intentional  infliction of emotional distress, and violations            of Gonsalves'  state and federal civil  rights resulting from                                            ____________________            1.  These five are Plymouth corrections officers Paul Gavoni,            Robert  Rosetti, John  Cardinal, Frank  Vernazzaro and  Chris            Wallace.   The remaining  defendants - Ronald  Kumm and Peter            Flynn - are sued in their supervisory capacities.                                         -2-            his  wrongful  detention in  isolation  and  the March,  1985            beating.                 Each defendant  raised the statute of  limitations as an            affirmative  defense.   On  February 24,  1992, the  district            court  ordered the  parties  to brief  the  issue of  whether            Gonsalves' claims  were barred by the  statute of limitations            and the effect of Gonsalves' escape on any applicable tolling            provision.    When Gonsalves'  claims accrued  in March-April            1985,   Massachusetts  law   recognized  imprisonment   as  a            condition  that   would  toll  the   three-year  statute   of            limitations  that  generally applied  to  tort actions  under            M.G.L. c.  260,  2A.2   After  Gonsalves' claims  accrued and            before he  filed suit, the Massachusetts  legislature amended            M.G.L. c.  260,  7  by deleting  imprisonment as  a disabling            condition  that  would prevent  the  limitations  period from            running.  See St. 1987, c.  198.  That amendment took  effect                      ___            on  September 30, 1987,  ninety days after  the amendment was            passed.                   Mindful  of  this  history, the  defendants  argued that            Gonsalves'  suit was  time-barred because  it was  filed more                                            ____________________            2.  The tolling provision then in  effect, M.G.L. c. 260,  7,            provided:                      If  the  person  entitled  thereto  is  a                      minor, or  is insane or imprisoned when a                      right to bring  an action first  accrues,                      the  action may  be commenced  within the                      time   hereinbefore  limited   after  the                      disability is removed.                                         -3-            than   three  years   after  his   claims  accrued   and  his            imprisonment did  not toll  the limitations period  under the            amended tolling statute.  In  support of this contention, the            defendants relied on  Street v.  Vose, 936 F.2d  38, 39  (1st                                  ______     ____            Cir.  1991) (per  curiam)(upholding sua  sponte  dismissal of                                                ___  ______            complaint as frivolous under  28 U.S.C.  1915(d), where claim            was  barred by the statute of limitations and tolling did not            apply).   In Street,  we rejected the  plaintiff's contention                         ______            that  the  amendment  deleting  imprisonment  as   a  tolling            condition was  unconstitutional and/or did not  apply to him,            reasoning that Massachusetts law compelled a contrary result.                 The  district  court  dismissed   Gonsalves'  complaint.            After   expressing   uncertainty   as   to   whether   Street                                                                   ______            "established  a bright line rule applicable  to all suits" or            was  limited   to  its  facts,  the   court  determined  that            Gonsalves' claims were time-barred even if the former tolling            statute  applied,  because   Gonsalves'  escape  started  the            limitations period running and his subsequent reincarceration            did  not stop it.   Gonsalves  appeals from  this order.   We            affirm on an  alternative ground;  in our view  this case  is            controlled by Street.   Consequently,  Gonsalves' claims  are                          ______            time-barred.                                               II.                                         -4-                 On appeal,  Gonsalves, now  pro se, reiterates  the same            arguments  raised by his  counsel below.   First, he contends            that the tolling statute  in effect when his cause  of action            accrued  applies  to this  case  and  that the  Massachusetts            legislature's subsequent  repeal of imprisonment as a tolling            condition does not operate "retroactively" to bar his claims.            Citing such  cases as  Carter v. Supermarkets  General Corp.,                                   ______    ___________________________            684 F.2d 187, 191 n.10 (1st Cir. 1982); Kadar v. Milbury, 549                                                    _____    _______            F.2d  230, 234  (1st Cir.  1977); and  Image &  Sound Service                                                   ______________________            Corp. v. Altec Service Corp., 148 F. Supp. 237, 240 (D. Mass.            _____    ___________________            1956), Gonsalves asserts that  "[i]t is black-letter law that            the timeliness of a cause of action is ordinarily governed by            the  limitations period,  along with  any applicable  tolling            provisions, which  existed at the time  the Plaintiff's cause            of action  accrued."  Second,  Gonsalves argues that  even if            the amendment repealing imprisonment as a disability applies,            it did not trigger the three-year limitations period until it            took  effect  on  September 30,  1987.    Under  this theory,            Gonsalves had until September  30, 1990 to file suit  and his            October  1988 complaint would be timely.  A contrary holding,            Gonsalves says, would violate  federal law.  Both contentions            overlook the fundamental principle that it is state law,  not            federal  law,  which  determines  the  applicable limitations            period  and coordinate  tolling rules.  See, e.g.,  Hardin v.                                                    ___  ____   ______            Straub, 490 U.S. 536, 539 (1989).            ______                                         -5-                 "In  a   1983   action,...  Congress  has   specifically            directed the  courts, in  the absence of  controlling federal            law, to apply state statutes of limitations and state tolling            rules unless they are 'inconsistent with the Constitution and            laws of the United States.'" Chardon v. Fumero Soto, 461 U.S.                                         _______    ___________            650,  661  (1983)(quoting  42   U.S.C.   1988).    The  cases            Gonsalves cites  turned on applicable state  law, rather than                                                  _____            the  abstract  principles Gonsalves  posits  as  a matter  of            federal law.3   Thus, in  Kadar, we upheld  the dismissal  of            _______                   _____            part of a  1983 complaint as to four defendants on timeliness            grounds.   In so  doing, we applied  the two-year limitations            period in effect  when the plaintiff's cause  of action arose            in 1971-72 because state law expressly provided that the new,            three-year limitations period embodied  in M.G.L. c. 260,  2A            applied to causes of  action arising on and after  January 1,            1974.  As Kadar's claims largely arose before then, they were            time-barred.  See Kadar, 549 F.2d at 234 n. 3.  Similarly, in                          ___ _____            Carter,  684   F.2d  at   190-91,  we  applied   a  six-month            ______                                            ____________________            3.  Cases such as  C.P.I. Crude,  Inc. v.  Coffman, 776  F.2d                               ___________________     _______            1546, 1551 (Temp. Emerg. Ct. App. 1985), suggest that federal            courts borrowing  state statutes of limitations  should, as a            matter of federal law,  use the state statute in  effect when            the federal cause  of action accrued.   A corollary principle            would  look to  the state  tolling  law then  in effect.   We            decline to fashion  such a  federal common law  rule in  this            case.  We  have  found  no  authority  for  applying  such  a            principle in  a section 1983 case.  To do so runs  counter to            the  Supreme Court's  direction  to apply  state statutes  of            limitations  and tolling  rules  in civil  rights actions  as            "binding rules of  law."   Board of Regents  v. Tomanio,  446                                       ________________     _______            U.S. 478, 484 (1979).                                         -6-            limitations  period  embodied in  M.G.L. c.  151B,  5  to the            plaintiff's  employment  discrimination   claim  because   we            determined it  to be the "most  analogous" state law.   To be            sure,  this   six-month  period   was  in  effect   when  the            plaintiff's  cause of  action accrued  and we  applied it  in            preference to  a limitations  period subsequently  enacted in            M.G.L. c. 151B,   9, although we  assumed that this  two-year            period could  be  applied retroactively  under  Massachusetts                   _____            law.   See Carter, 684 F.2d at 191 n.9.   We applied the six-                   ___ ______            month period  over the two-year period  because we determined            the  former was the  most analogous,4 not  because it existed            when the plaintiff's claims accrued.                  Gonsalves asserts that courts which have considered the            effect of a  repeal of a tolling  provision for imprisonment,            e.g.,  Vaughan v. Grijalva, 927 F.2d 476 (9th Cir. 1991), and            ____   _______    ________            Henson-El v.  Rogers,  923  F.2d 51  (5th  Cir.  1991),  have            _________     ______            "uniformly  held  that  such   repeal  does  not  affect  the            applicability of  the tolling  provision between the  date of            accrual of the cause  of action and the effective date of the            repeal."     But,  these cases  also  turn on  borrowed state            tolling rules.  The  result in Vaughan was compelled  by Zuck                                           _______                   ____            v. Arizona, 764 P.2d 772 (Ariz. 1988).  See Vaughan, 927 F.2d               _______                              ___ _______                                            ____________________            4.  This  holding was  overruled by  Burnett v.  Gratton, 468                                                 _______     _______            U.S.  42, 50-55  (1984)(holding six-month  limitations period            for state  administrative proceedings to be  an inappropriate            period for  civil rights  actions). See Rowlett  v. Anheuser-                                                ___ _______     _________            Busch, Inc., 832 F.2d 194, 198 (1st Cir. 1987).            ___________                                         -7-            at 479.    Similarly,  in Henson-El, 923  F.2d at  52-53, the                                      _________            Fifth  Circuit affirmed  the dismissal  of an  inmate's  1983            suit  as  time-barred  even  though,  under  Texas  law,  the            plaintiff's  imprisonment tolled the limitations period up to            the effective date of an amendment deleting imprisonment as a            tolling condition.  That amendment expressly provided that "a            period of disability  before the effective  date of this  Act            during which a person was under a legal disability because of            imprisonment is not affected by this Act."  Id. at 52.                                                        ___            No  such savings  clause  attended the  Massachusetts statute            deleting imprisonment as a tolling condition.                  To  sum  up,  then,  imprisonment no  longer  tolls  the            statute of  limitations with respect to  federal civil rights            actions filed  in Massachusetts  after the effective  date of            the tolling  amendment (September 30,  1987).5   That is  the            teaching of Street, plain  and simple.  The principle  may be                        ______            applied as  a  bright line  rule  in those  prisoners'  civil            rights  cases filed  after  September, 1987  with respect  to            claims that accrued  earlier.   This result  is compelled  by            Massachusetts  law, which  generally  holds  that, "[i]f  the                                            ____________________            5.  This does  not foreclose prisoners from  arguing that the            tolling amendment  is unconstitutional  as  applied to  them.            Where  such an argument is made, the plaintiff must show that            the  ninety-day  window  left  by the  amendment,  under  the            circumstances of  the  prisoner's case,  was "'manifestly  so            insufficient that the statute becomes a denial of justice .'"            Cioffi  v.  Guenther, 374  Mass. 1,  370  N.E. 2d  1003, 1005            ______      ________            (1977) (citation omitted).                                           -8-            point in the  proceedings to  which the  statutory change  is            applicable  has  already  passed,  the  proceedings  are  not            subject to that  change.  If ... that point  has not yet been            reached,  the  new provisions  apply."   Porter  v.  Clerk of                                                     ______      ________            Superior Court,  368 Mass. 116,  330 N.E.2d 206,  208 (1975).            ______________            Gonsalves  did not  file his  complaint until  October, 1988,            approximately thirteen months after the tolling amendment was            passed.   Therefore, the amendment  applies to his  case.  As            Gonsalves'  suit was  filed more  than three years  after his            claims  accrued  and  he  is  not entitled  to  tolling,  his            complaint  is time-barred.   Compare  Riley v.  Presnell, 409                                         _______  _____     ________            Mass.  239, 565 N.E.2d 780,  788 n. 3  (1991) (holding former                                                                   ______            tolling statute  applied to malpractice action  filed in 1985            because complaint and answer  had been filed before amendment            became law).6                   Gonsalves   contends  that  federal  law  prohibits  the            "retroactive" application of this amendment to extinguish his            previously accrued  causes of action.   Specifically, he says            that  under federal  law a  statute is  applied prospectively            unless  a contrary  intent  is clearly  stated. The  argument                                            ____________________            6.  In Riley, the Massachusetts Supreme Judicial Court held a                   _____            second 1987 amendment to the  tolling statute, (St. 1987,  c.            522,   19), which  substituted incapacitating  mental illness            for insanity  in enumerating the tolling  conditions, did not            apply.   Rather,  the court  applied the  tolling statute  in            effect when the plaintiff brought suit.  That is the relevant            time  by  which  to   determine  the  applicable  statute  of            limitations  and  coordinate tolling  law,  not  the time  of            accrual.                                           -9-            again   mischaracterizes   the   applicable   law.      Under            Massachusetts law,  the  opposite principle  obtains.    See,                                                                     ___            e.g., Anderson v. Phoenix Investment Counsel of Boston, Inc.,            ____  ________    __________________________________________            387  Mass.  444, 440  N.E. 2d  1164,  1170 (1982);  Mulvey v.                                                                ______            Boston, 197 Mass.  178, 83 N.E. 402  (1908) (applying general            ______            rule  that statutes  of limitation  control future  procedure            with regard  to previously  existing causes of  action unless            specific language clearly limits their  application to causes            of action arising in the  future).  We applied this tenet  to            the  tolling  amendment  in  Street,  seeing  "no  principled                                         ______            distinction between shortening  a statute of  limitations ...            [and] deleting a particular class of persons from the tolling            statute."  Messere v. Murphy, 32 Mass. App. Ct. 917, 585 N.E.                       _______    ______            2d 350, 352 (1992) (holding prisoner's civil rights complaint            was time-barred where claims accrued before tolling amendment            and  suit was filed  after amendment's  "ninety-day 'window'"            had expired).                   Federal  law  does   not  dictate  a   contrary  result.            Gonsalves overlooks  the fact  that the tolling  amendment is            being  applied  prospectively  to  a  suit  filed  after  its                            _____________            enactment.    Gonsalves  further contends  that  the  tolling            amendment  may  not  be   applied  unless  it  satisfies  the            retroactivity  test of  Chevron  Oil v.  Huson,  404 U.S.  97                                    ____________     _____            (1971). Chevron  Oil speaks  to the retroactivity  of federal                    ____________            decisional law.   It does not  apply to the issues  raised by                                         -10-            this appeal.  Rather, absent a showing that it  would lead to            a  result inconsistent  with  the policies  behind 42  U.S.C.             1983  - which  has  not been  made  here- Massachusetts  law            controls.                 Gonsalves'  one-sentence  argument   that  the   amended            tolling statute was unconstitutional as applied to him is not            sufficient  to preserve  this issue  on appeal.    See, e.g.,                                                               ___  ____            United States v. Zannino, 895 F.2d 1, 17 (1st Cir.), 494 U.S.            _____________    _______            1082  (1990).  This is  especially so because  any such claim            depends on the application of general standards to particular            facts and a showing how, on the particular facts, the tolling            amendment  has  operated  unconstitutionally.    We  note  in            passing, however,  that the ninety-day window  allowed by the            Massachusetts amendment  did not  govern Gonsalves'  claim in            this  instance for his claim did not expire until some months            after the amendment became effective in September 1987.                        Judgment affirmed.                             __________________                                         -11-
