                     FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT

 ERIC BOSTON, individually,                     No. 15-35296
               Plaintiff-Appellee,
                                                 D.C. No.
                   v.                       3:14-cv-05205-RBL

 KITSAP COUNTY, a Municipal
 Corporation organized under the                  OPINION
 laws of the State of Washington;
 CONMED, INC., a foreign
 corporation doing business in
 Kitsap County,
           Defendants-Appellants.


        Appeal from the United States District Court
          for the Western District of Washington
        Ronald B. Leighton, District Judge, Presiding

          Argued and Submitted December 9, 2016
                   Seattle, Washington

                        Filed April 7, 2017

Before: Richard C. Tallman and Morgan Christen, Circuit
  Judges, and Morrison C. England, Jr.,* District Judge.

                   Opinion by Judge England

    *
      The Honorable Morrison C. England, Jr., United States District
Judge for the Eastern District of California, sitting by designation.
2                   BOSTON V. KITSAP COUNTY

                            SUMMARY**


                             Civil Rights

    The panel reversed the district court’s order denying
defendants’ motion to dismiss and remanded with instructions
to dismiss plaintiff’s 42 U.S.C. § 1983 claims as time barred.

    Plaintiff’s substantive claims arose out of injuries he
sustained between January 3, 2011, and February 14, 2011,
while housed at the Kitsap County Jail. On January 3, 2014,
plaintiff submitted a tort claim to Kitsap County pursuant to
Washington’s presentment statute, RCW 4.96.020. After
receiving no response from the County, plaintiff filed a
federal lawsuit on March 10, 2014. The magistrate judge
determined that because plaintiff had filed a claim prior to
expiration of the statute of limitations, under the tolling
provision set forth in RCW 4.96.020, he was entitled to 60
additional days in which to file his § 1983 action.

    The panel held that RCW 4.96.020 does not operate to toll
the state’s general residual limitations period applicable to
§ 1983 actions because RCW 4.96.020 is a special statute of
limitations as opposed to a typical tolling provision. As a
result, the panel held that plaintiff filed his federal complaint
after the applicable three-year statute of limitations had
expired, and that his § 1983 claims were thus time barred and
consequently should be dismissed.




    **
       This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                BOSTON V. KITSAP COUNTY                      3

                         COUNSEL

Marc Rosenberg (argued), Lee Smart P.S. Inc., Seattle,
Washington, for Defendants-Appellants.

Anthony Clarence Otto (argued), Law Office of Anthony C.
Otto, Port Orchard, Washington, for Plaintiff-Appellee.


                         OPINION

ENGLAND, District Judge:

    Appellants Kitsap County (“Kitsap”) and Conmed, Inc.
(“Conmed”) (collectively, “Appellants”) appeal from the
district court’s denial of their motion to dismiss as time
barred Appellee Eric Boston’s (“Appellee” or “Plaintiff”)
claims brought under 42 U.S.C. § 1983. Appellee contends
that the applicable statute of limitations was tolled under
RCW 4.96.020. We hold, however, that because RCW
4.96.020 is a special statute of limitations as opposed to a
typical tolling provision, it is not applicable to claims filed
under § 1983. As a result, we find that Appellee filed his
federal complaint after the applicable three-year statute of
limitations had expired, and that his § 1983 claims are thus
time barred and consequently should be dismissed. We
reverse the district court’s order denying Appellants’ motion
to dismiss and remand with instructions to dismiss Plaintiff’s
§ 1983 claims as time barred.

                              I

    Appellee’s substantive claims arise out of injuries he
sustained between January 3, 2011, and February 14, 2011,
4               BOSTON V. KITSAP COUNTY

while he was housed at the Kitsap County Jail. Given those
injuries, Appellee submitted a tort claim on January 3, 2014,
to Kitsap County. Washington’s claims presentment statute,
RCW 4.96.020, provides:

       No action subject to the claim filing
       requirements of this section shall be
       commenced against any local government
       entity, or against any local government
       entity’s officers, employees, or volunteers,
       acting in such capacity, for damages arising
       out of tortious conduct until sixty calendar
       days have elapsed after the claim has first
       been presented to the agent of the governing
       body thereof. The applicable period of
       limitations within which an action must be
       commenced shall be tolled during the sixty
       calendar day period. For the purposes of the
       applicable period of limitations, an action
       commenced within five court days after the
       sixty calendar day period has elapsed is
       deemed to have been presented on the first
       day after the sixty calendar day period
       elapsed.

RCW 4.96.020(4).

    After receiving no response from Kitsap, Appellee filed
a federal district court lawsuit on March 10, 2014, in the
Western District of Washington alleging causes of action for
violation of 42 U.S.C. § 1983 and negligence against Kitsap
and Conmed, a private entity that contracted with Kitsap to
provide inmate healthcare services. Subsequently, on March
11, 2014, Appellee filed a materially identical state court
                 BOSTON V. KITSAP COUNTY                      5

action in Pierce County Superior Court. The state court
action has been stayed pending resolution of this federal case.

    Appellants thereafter moved in this federal action to,
among other things, dismiss Appellee’s § 1983 claims as time
barred.     The magistrate judge issued a Report and
Recommendation, which recommended rejecting Appellants’
arguments on the ground that, although “[t]here has been
some dispute as to whether the tolling provision in RCW
§ 4.96.020(4) applies to 42 U.S.C. § 1983 actions . . . ,
whether or not plaintiff actually filed a claim appears to be
central to the district courts’ analysis.” Since Appellee had
filed a claim prior to expiration of the statute of limitations,
the magistrate judge determined that Appellee was entitled to
60 additional days in which to file his instant § 1983 action.
The district court adopted the Report and Recommendation
and denied Appellants’ motion to dismiss.

    Appellants subsequently moved for a “stay of proceedings
and certification of issue to the Ninth Circuit,” which the
district court construed as a motion for interlocutory appeal.
The court granted the motion, and this appeal followed.

                              II

    We have jurisdiction under 28 U.S.C. § 1292, and “[w]e
review a district court’s decision to grant or deny a motion to
dismiss pursuant to Rule 12(b)(6) de novo.” Camacho v.
Bridgeport Fin. Inc., 430 F.3d 1078, 1079 (9th Cir. 2005).
Questions of statutory interpretation are also subject to de
novo review. Id.
6                BOSTON V. KITSAP COUNTY

                               III

    It is undisputed that “[t]he Civil Rights Act of 1871 does
not contain a provision limiting the time within which a claim
under the Act may be brought.” Rose v. Rinaldi, 654 F.2d
546, 547 (9th Cir. 1981). “Thus, the federal courts will apply
the applicable period of limitations under state law for the
jurisdiction in which the claim arose.” Id. In Washington,
“[t]he catch-all three-year limitations period ‘for any other
injury to the person or rights of another’ contained in R.C.W.
4.16.080(2)” applies to § 1983 claims like Appellee’s. Id.
Washington’s related tolling provisions apply as well. See
Hardin v. Straub, 490 U.S. 536, 539 (1998). It is also well
settled that state notice of claim provisions are inapplicable
to § 1983 actions. See Felder v. Casey, 487 U.S. 131, 133
(1988); Joshua v. Newell, 871 F.2d 884, 886 (9th Cir. 1989).
The question, then, is whether the 60-day extension in RCW
4.96.020(4) is a true tolling provision that would apply to
Appellee’s § 1983 action, or whether it is a special statute of
limitations contained in a basic notice of claim provision,
which is inapplicable to Appellee’s action. To answer this
question, we must first examine two related cases previously
before this court: Harding v. Galceran, 889 F.2d 906 (9th Cir.
1989), and Silva v. Crain, 169 F.3d 608 (9th Cir. 1999).

    In Harding, we addressed the question whether § 1983
claims were tolled pursuant to California Government Code
§ 945.3. 889 F.2d at 907–08. Section 945.3 “prevents civil
actions against peace officers from being filed while criminal
charges are pending against the potential plaintiff,” and “tolls
the statute of limitations on the civil actions until the criminal
charges are resolved.” Id. Harding determined that
“although section 945.3 may not prohibit a potential plaintiff
from bringing a section 1983 claim against a peace officer
                 BOSTON V. KITSAP COUNTY                       7

while criminal actions are pending, section 945.3’s tolling
provision may still apply to toll the limitations period while
criminal actions are pending against the potential plaintiff.”
Id. at 908. Because state tolling provisions must be applied
unless they are inconsistent with the federal law at issue, and
because there was no inconsistency between § 945.3’s tolling
provision and the purposes of § 1983, tolling in that instance
was proper. Id. at 909.

     Ten years later, we considered a related but distinct
question in Silva, 169 F.3d at 609. There, plaintiff analogized
his situation to Harding and argued that California’s notice of
claim provision at California Government Code § 945.6
operated to change the one-year statute of limitations of his
§ 1983 claim to either six months after delivery of the written
notice or, if no written notice was provided, two years after
accrual of the cause of action, depending on the public
entity’s response to the claim presented. See id. at 609–10.
We rejected plaintiff’s argument, reasoning that the Harding
panel had “simply followed the general rule that [the court]
appl[ies] the state’s general residual statute of limitations and
state rules which toll the running of that statute.” Id. at 610
(emphasis original). The statute at issue in Silva was not a
state tolling provision like the provision addressed in
Harding, but instead was a “separate freestanding special
statute of limitations which appl[ied] when claims [were]
presented to public agencies.” Id. at 611. We therefore held
that California’s general residual tort statute of
limitations—and not the special statute of limitations set forth
in its claims presentment statute—applied to § 1983 claims
arising in California. Id.

     Indeed, the statute at issue in Harding contained a classic
tolling provision—it established a plaintiff-specific hurdle to
8               BOSTON V. KITSAP COUNTY

filing suit, and then provided that the duration of that
impediment would not be counted toward the running of the
statute of limitations. On the other end of the spectrum, the
provision at issue in Silva provided a classic “special statute
of limitations.” Rather than pausing the applicable statute of
limitations (or “stopping the clock”), that provision entirely
changed the statute of limitations based on the filing of a
claim. Accordingly, Harding stands for the unremarkable
proposition that state tolling provisions apply to § 1983
claims (so long as they are not preempted by federal law), and
Silva stands for the equally unremarkable proposition that
special statutes of limitations have no bearing on those
federal causes of action.

    Against that backdrop we turn now to RCW 4.96.020,
which is both similar to and yet unlike either provision
discussed above. For the reasons set forth below, we find
RCW 4.96.020 to be more akin to the special statute of
limitations addressed in Silva than the standard tolling
provision of Harding. We therefore hold that RCW 4.96.020
has no bearing on § 1983 actions, and as a result Appellee’s
claims in this case are time barred.

                              A

    First, though RCW 4.96.020(4) provides that the
applicable limitations period “shall be tolled,” the use of the
word “tolled” is not dispositive. Rather, we consider the
operation of the provision—which automatically extends the
applicable statute of limitations by a set number of days. The
automatic extension of a statute by a uniform amount of time
effectively creates an entirely new statute of limitations for
any claim subject to the presentment rules. And because
there can be no civil case unless a claim is presented, the
                 BOSTON V. KITSAP COUNTY                      9

“extended” statute of limitations becomes the true limitations
period in all such cases.

     Appellee argues that RCW 4.96.020 is a tolling provision
because it stops the clock upon the filing of a claim and starts
it again once the 60-day period expires. The problem with
that approach on closer inspection, however, is that there is
no reason to “stop” the clock when we know exactly when it
will “start” again. Instead, we simply add 60 days to the
underlying limitations period to calculate the new limitations
period. Despite use of the word “tolling,” in application
RCW 4.96.020(4) changes the statute of limitations based on
the claims presentment statute and establishes a new statute
of limitations applicable to all similarly situated plaintiffs
(i.e., plaintiffs suing defendants entitled to presentment)
across the board. See Castro v. Stanwood Sch. Dist. No. 401,
151 Wash. 2d 221, 226 (2004) (describing RCW 4.96.020(4)
as a “tolling provision” but noting that “[e]ssentially, the
provision adds 60 days to the end of the otherwise applicable
statute of limiations”). Because the statute creates the same
new limitations period for every similarly situated litigant,
use of the word “tolled” is imprecise.

                               B

    Second, true “tolling provisions” are commonly put in
place to address a recognized impediment to filing suit.
Typically, this impediment is outside of the plaintiff’s
control, and the respective tolling period differs from person
to person depending on the duration of the particular
10                  BOSTON V. KITSAP COUNTY

impediment.1 An ordinary plaintiff does not control the
factors giving rise to the need for tolling and thus cannot
unilaterally stop the limitations clock. Tolling provisions
provide for an unknown tolling period because the duration
of the underlying impediment is unknown and unknowable.
RCW 4.96.020 does none of that.

                                     1

     In the context of § 1983 actions, RCW 4.96.020 permits
a plaintiff to unilaterally extend the limitations period by
filing a claim. Because § 1983 plaintiffs are not required to
present their federal claims pursuant to state notice of claims
statutes, see Felder v. Casey, 487 U.S. 131 (1988); Joshua v.
Newell, 871 F.2d 884, 886 (9th Cir. 1989), a choice to do so
is a unilateral decision on the part of a plaintiff. The
opportunity to exercise that option is much different than the
circumstances that traditionally give rise to tolling in other
cases.

    This is important because allowing a plaintiff to
unilaterally modify an existing statute of limitations,
especially when it can be done on the last day of the
limitations period as is permissible under RCW 4.96.020, is
inconsistent with the policies underlying the longstanding use


     1
       See, e.g., RCW 4.16.170 (Tolling of statute—Actions, when deemed
commenced or not commenced); RCW 4.16.180 (Statute tolled by absence
from state, concealment, etc.); RCW 4.16.200 (Statute tolled by death);
RCW 4.16.210 (Statute tolled—by war as to enemy alien); RCW 4.16.220
(Statute tolled—As to person in military service of United States);
RCW 4.16.230 (Statute tolled by judicial proceedings ); RCW 7.75.080
(Statutes of limitations tolled until dispute resolution process concluded);
RCW 19.120.100 (Limitation period tolled); RCW 19.86.120 (Limitation
of actions—Tolling).
                 BOSTON V. KITSAP COUNTY                       11

of statutes of limitations in our judicial system. “Statutes of
limitations serve the policies of ‘repose, elimination of stale
claims, and certainty about a plaintiff’s opportunity for
recovery and a defendant’s potential liabilities.’” In re Neff,
824 F.3d 1181, 1185 (9th Cir. 2016) (quoting Young v. United
States, 535 U.S. 43, 47 (2002)). “By setting a deadline for
bringing a claim, statutes of limitations encourage plaintiffs
to pursue diligent prosecution of known claims [] and thereby
protect defendants against stale or unduly delayed claims.”
Id. (internal quotation marks and citations omitted). If a
plaintiff can wait until the last minute, file an optional state
claim, and thereby extend the statute of limitations applicable
to a § 1983 action, the plaintiff is able to sit on his rights (as
in this case), instead of diligently pursuing his available
causes of action. More importantly, it undermines the
protection defendants count on to avoid “stale or unduly
delayed claims.”

    The import of these limitations periods to potential
defendants is all the more evident if we consider the impact
Appellee’s interpretation of RCW 4.96.020(4) would have on
a public servant. “[S]tatutes of limitation are among the
universally familiar aspects of litigation considered
indispensable to any scheme of justice,” Felder, 487 U.S. at
140, and civil defendants thus depend on knowing there is
some determinable limit on their potential liability. In
Washington, § 1983 actions are subject to a three-year statute
of limitations period. As a result, a public servant (e.g., a
peace officer) would typically be able to determine the point
at which a claim would be so stale that he or she could no
longer be forced to defend against it. That is not the case if
a plaintiff may decide on the last day of the applicable
limitations period to file a claim pursuant to RCW 4.96.020,
thereby garnering for himself 60 more days to pursue a civil
12                   BOSTON V. KITSAP COUNTY

action. Indeed, under such a circumstance, the plaintiff
would be put in the position to unfairly control the course of
litigation.2

    A plaintiff’s ability to unilaterally control the statute of
limitations therefore cuts against the interpretation that RCW
4.96.020(4) is a tolling provision. Our analysis is also
consistent with the decision in Harding. In that case, the
plaintiff was involuntarily prevented from pursuing a suit as
to his state claims because the state made the decision to
prosecute him. Whether the plaintiff was subject to criminal
prosecution was outside of his control and no action was
required by plaintiff to trigger the right to tolling.
Importantly, the impediment was known to all and could not
be used to blindside a potential defendant. Under those
circumstances, applying a rule that extended the tolling
provision to § 1983 actions, even if a plaintiff was not
prohibited from bringing the action itself, did not operate to
allow one party to gain an unfair advantage over another.3


     2
       This is much different from the compulsory application of the statute
to state claims where a claimant must file a claim or lose a cause of action.
When a claim is mandatory, circumstances outside of the plaintiff’s
control warrant an extension of time to accommodate a state-imposed
obligation. Because the plaintiff is at an unavoidable disadvantage, the
system acts to equalize the playing field by extending the time during
which a defendant remains subject to liability.
     3
       The interests at stake in the instant case are much different than
those discussed in Harding. Here, a plaintiff may simply be required to
initiate a judicial § 1983 action prior to having a local entity review and
dispose of his claim. He is nonetheless pursuing the same claims against
the same parties, whose interests in each proceeding align. Such is not the
case when a criminal defendant is simultaneously defending against
criminal charges and pursuing civil relief. In the latter case, aside from
the potential conflicts identified in Harding, the litigant could find that his
                    BOSTON V. KITSAP COUNTY                              13

    Accordingly, given the fact that under Appellee’s
argument, RCW 4.96.020(4) would permit him to unilaterally
extend the statute of limitations applicable to his § 1983
claim, it differs from traditional tolling provisions and is
more akin to a special statute of limitations.

                                     2

    As mentioned above, RCW 4.96.020 also differs from a
typical tolling provision in that it extends the relevant statute
of limitations by the same amount of time—60 days—for
every plaintiff and in every case. Generally, when it comes
to tolling provisions, the legislature is unable to predict how
much time any particular statute will need to be extended in
an individual case, and so it provides that a statute is tolled
until the relevant impediment comes to an end. For example,
although the age of majority will typically be the same in any
particular state, how long it takes a plaintiff to reach that age
will differ in each case. Similarly, the amount of time a
potential defendant may be serving in the military or at war,
or the length of a criminal prosecution, will vary.

    A special statute of limitations, on the other hand, is
triggered when a plaintiff makes a conscious decision to file
a claim and, as in Silva, an entirely new limitations period
becomes applicable. That is precisely the case here.


Fifth Amendment right against self-incrimination acts as a bar to
adequately pursuing his civil claims or, conversely, that attempting to fully
prosecute a civil action could jeopardize his Fifth Amendment rights. This
type of conflict is much more fundamental to our basic system of rights
than anything arguably associated with pursuing a § 1983 action prior to
resolution of a plaintiff’s presented claims and is more akin to the
traditional “impediments” that statutes of limitation are intended to
address.
14              BOSTON V. KITSAP COUNTY

Appellee decided to file a claim, and, at least as to his
negligence cause of action, his statute of limitations became
three years plus 60 days. The limitations period would be the
same for any litigant pursuing a negligence claim against
Kitsap because filing a claim is a mandatory condition
precedent to filing suit. Stated another way, there is only one
statute of limitations applicable to a claim like Appellee’s
negligence cause of action, and that is the one set forth in
RCW 4.96.020(4). A plaintiff in Appellee’s shoes would
never be subjected to a three-year statute of limitations
because he must timely submit a claim in order to litigate his
case at all. If he timely submits a claim, his statute of
limitations is automatically three years and 60 days.
Accordingly, despite use of the word tolling, and despite any
language indicating that a clock starts or stops,
RCW 4.96.020(4) is, at base, a special statute of limitations.

                              C

    Finally, although not controlling in this court, it is
significant that the only Washington state appellate court to
address the issue so far has agreed that the 60-day extension
of time under RCW 4.96.020(4) should not apply to § 1983
actions. See Southwick v. Seattle Police Officer John Doe #s
1–5, 186 P.3d 1089, 1090 (2008). The Southwick court
reasoned that:

       As in Silva, the relevant law is a notice of
       claims statute containing a tolling provision.
       The tolling provision of RCW 4.96.020(4) is
       not a general tolling provision applicable to
       all personal injury actions. It is contained in
       the same statute requiring a delay of 60 days
       following the mandatory filing of a state claim
                    BOSTON V. KITSAP COUNTY                             15

         with a local government agency before the
         commencement of suit and is inextricably
         intertwined with this claim-filing requirement.
         It has no application generally to personal
         injury actions where no claim is required, and
         no applicability to § 1983.

Id. at 1093. Although the Southwick panel refers to RCW
496.020(4) as a “tolling provision,” it then goes on to state,
“[a]s the Silva court noted, state notice of claims statutes and
their special statutes of limitations have no application to
§ 1983 claims.” Id.4 We agree with Southwick’s ultimate
conclusion that RCW 4.96.020(4) is not a “general tolling
provision” that needs to be incorporated into the statute of
limitations for § 1983 claims. The fact that the State of
Washington itself has determined that its own statute was
intended as a special statute of limitations that should not be
imported federally as a tolling provision is, at the very least,
persuasive support for holding the same.

                                    D

    We also note that even if RCW 496.020 acted to toll the
statute of limitations on Appellee’s § 1983 action, it would
nonetheless not act to toll that limitations period as to
Conmed. Conmed is a private entity, separate and distinct
from Kitsap, and Conmed was not entitled to receive—and
did not in fact receive—notice of the claim. Appellee has
cited no authority indicating that such a defendant, even if its


    4
      The internally conflicting statements in Southwick regarding whether
RCW 4.96.020(4) is a tolling provision or special statute of limitations are
indicative of the loose manner in which federal and state courts across the
board use those terms.
16              BOSTON V. KITSAP COUNTY

operations are intertwined with that of a public entity, should
be bound by an extension of a statute of limitations period
derived from a notice of claim statute, especially when that
defendant was not entitled to a claim and was never presented
with one.

                              IV

    RCW 4.96.020 contains a special statute of limitations.
It does not operate to toll the state’s general residual
limitations period applicable to § 1983 actions, and
Appellee’s § 1983 claims should thus have been dismissed.
We therefore REVERSE and REMAND, with instructions
to the district court to dismiss Plaintiff’s § 1983 claims as
time barred.
