Gonsalves v. Flynn
U.S. Court of Appeals for the First Circuit
Gonsalves v. Flynn
Opinion
USCA1 Opinion
December 11, 1992
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 92-1498
DON J. GONSALVES,
Plaintiff, Appellant,
v.
PETER FLYNN, ET AL.,
Defendants, Appellees.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Joseph L. Tauro, U.S. District Judge]
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Before
Selya, Cyr and Boudin,
Circuit Judges.
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Don J. Gonsalves on brief pro se.
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Robert E. McCarthy on brief for appellees.
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Per Curiam. Plaintiff Don J. Gonsalves, a Massachusetts
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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
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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.
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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
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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
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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.
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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
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Cir. 1991) (per curiam)(upholding sua sponte dismissal of
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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
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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
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"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
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time-barred.
II.
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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.,
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684 F.2d 187, 191 n.10 (1st Cir. 1982); Kadar v. Milbury, 549
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F.2d 230, 234 (1st Cir. 1977); and Image & Sound Service
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Corp. v. Altec Service Corp., 148 F. Supp. 237, 240 (D. Mass.
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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.
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Straub, 490 U.S. 536, 539 (1989).
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"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.
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650, 661 (1983)(quoting 42 U.S.C. 1988). The cases
Gonsalves cites turned on applicable state law, rather than
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the abstract principles Gonsalves posits as a matter of
federal law.3 Thus, in Kadar, we upheld the dismissal of
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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
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Carter, 684 F.2d at 190-91, we applied a six-month
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3. Cases such as C.P.I. Crude, Inc. v. Coffman, 776 F.2d
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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
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U.S. 478, 484 (1979).
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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
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law. See Carter, 684 F.2d at 191 n.9. We applied the six-
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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
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Henson-El v. Rogers, 923 F.2d 51 (5th Cir. 1991), have
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"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
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v. Arizona, 764 P.2d 772 (Ariz. 1988). See Vaughan, 927 F.2d
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4. This holding was overruled by Burnett v. Gratton, 468
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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-
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Busch, Inc., 832 F.2d 194, 198 (1st Cir. 1987).
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at 479. Similarly, in Henson-El, 923 F.2d at 52-53, the
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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.
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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
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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
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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
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(1977) (citation omitted).
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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
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Superior Court, 368 Mass. 116, 330 N.E.2d 206, 208 (1975).
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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
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Mass. 239, 565 N.E.2d 780, 788 n. 3 (1991) (holding former
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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
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6. In Riley, the Massachusetts Supreme Judicial Court held a
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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.
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again mischaracterizes the applicable law. Under
Massachusetts law, the opposite principle obtains. See,
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e.g., Anderson v. Phoenix Investment Counsel of Boston, Inc.,
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387 Mass. 444, 440 N.E. 2d 1164, 1170 (1982); Mulvey v.
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Boston, 197 Mass. 178, 83 N.E. 402 (1908) (applying general
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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
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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.
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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
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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
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(1971). Chevron Oil speaks to the retroactivity of federal
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decisional law. It does not apply to the issues raised by
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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.,
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United States v. Zannino, 895 F.2d 1, 17 (1st Cir.), 494 U.S.
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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.
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Reference
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