
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            United States Court of Appeals                                For the First Circuit                                 ____________________        No. 96-1980                                    JONATHAN BALL,                                Plaintiff - Appellant,                                          v.                       ROGER CARROLL AND CHARLES F. HENDERSON,                               Defendants - Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Nathaniel M. Gorton, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                                Boudin, Circuit Judge,                                        _____________                            Bownes, Senior Circuit Judge,                                    ____________________                              and Stahl, Circuit Judge.                                         _____________                                 ____________________            John A. Bosk on brief for appellant.            ____________            Christine E. McGinn with whom Brian Rogan and Law Offices of            ___________________           ___________     ______________        Timothy M. Burke were on brief for appellee Roger Carroll.        ________________            Edward M. Pikula with whom Cohen, Rosenthal, P.C. was on brief            ________________           ______________________        for appellee Charles F. Henderson.                                 ____________________                                  FEBRUARY 19, 1997                                 ____________________                      Per Curiam.  This appeal raises the specter of                      Per Curiam.                      __________            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                                            ____________________            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.                                           -2-                                          2            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.                                           ___ ______    ______            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                                    ___            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                                         -3-                                          3            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                                  _______    ________            Cir. 1989).  Harding involved an altercation between an                         _______            individual, Harding, and sheriff's deputies in Los Angeles,            California.  See id. at 907.  Following the altercation, the                         ___ ___            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.                                                           ___ ___                      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                                                               ___ ___            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.                                                         ___ ___            The Ninth Circuit then concluded that Harding's action was                                         -4-                                          4            timely because his claim was filed within one year of the            disposition of the criminal charges against him.  See id.                                                              ___ ___                      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            ___            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                                                                   ___            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                                                    ___ ___            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.                                          -5-                                          5                      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.                      ________   ___                    ________                                         -6-                                          6
