[NOT FOR PUBLICATION]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.
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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
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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
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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.
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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.
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