Donald Emery Major v. Arizona State Prison, John Moran, H. J. Cardwell, Capt. Houlihan

Donald Emery Major, a state prisoner confined to the Arizona State Penitentiary, initiated this civil rights action against various prison officials pursuant to 42 U.S.C. § 1983 . His pro se complaint, filed some twenty-two months after the acts complained of, alleged that the defendants, in response to his participation in an inmate work strike, denied him due process and subjected him to cruel and unusual punishment. 1 The district court authorized Major to proceed in forma pauperis. 28 U.S.C. § 1915 (a). Finding that the action was barred by Arizona’s one-year statute of limitations, the case was summarily dismissed as being frivolous. 28 U.S.C. § 1915 (d). We granted Major’s motion to appeal in forma pauperis to review the application of the statutory bar.

Since § 1983 does not itself contain a limitations period, the federal courts look to the state statute of limitations that applies to the most similar state cause of action. Board of Regents of the University of the State of New York v. Tomanio, 446 U.S. 478, 483-484 , 100 S.Ct. 1790, 1795-1796 , 64 L.Ed.2d 440, 447-448 (1980); Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 462 , 95 S.Ct. 1716, 1721 , 44 L.Ed.2d…

dissenting:

I would vacate the order of dismissal and remand this matter to the district court for a hearing on the merits of appellant’s complaint.

As pointed out by the majority, the district court dismissed appellant’s claim filed pursuant to 42 U.S.C. § 1983 as frivolous in that it was barred by Arizona’s one-year statute of limitations. Appellant, an Arizona state prisoner, filed his complaint more than one year after he was allegedly denied due process and subjected to cruel and unusual punishment by prison officials.

I agree with the majority that appellant’s claim is controlled by the requirement of Arizona law that actions “upon a liability created by statute” (Ariz.Rev.Stat. § 12-541(3)) must be filed within one year unless such time limitation is tolled under an applicable statute.

The Arizona Legislature has specifically provided for the tolling of the statute of limitations, “If a person entitled to bring an action ... is at the time of the cause of action . .. imprisoned. . . . ” As noted by my colleagues, in Board of Regents of the University of the State of New York v. Tomanio, 446 U.S. 478 , 100 S.Ct. 1790 , 64 L.Ed.2d 440 (1980), the United States Supreme…

642 F.2d 311 Donald Emery MAJOR, Plaintiff-Appellant, v. ARIZONA STATE PRISON, John Moran, H. J. Cardwell, Capt. Houlihan et al., Defendants-Appellees. No. 79-3287. United States Court of Appeals, Ninth Circuit. Submitted Aug. 14, 1980. Decided April 16, 1981. Donald Emery Major, pro per. Thomas A. Jacobs, Phoenix, Ariz., on briefs for defendants-appellees. Appeal from the United States District Court for the District of Arizona. Before ANDERSON and ALARCON, Circuit Judges, and WILLIAMS, * District Judge. J. BLAINE ANDERSON, Circuit Judge: 1 Donald Emery Major, a state prisoner confined to the Arizona State Penitentiary, initiated this civil rights action against various prison officials pursuant to 42 U.S.C. § 1983 . His pro se complaint, filed some twenty-two months after the acts complained of, alleged that the defendants, in response to his participation in an inmate work strike, denied him due process and subjected him to cruel and unusual punishment. 1 The district court authorized Major to proceed in forma pauperis. 28 U.S.C. § 1915 (a). Finding that the action was barred by Arizona's one-year statute of limitations, the case was summarily dismissed as being…