John Henry Tomlin v. William McDaniel Kenneth Lucas, Frank Reyes

Appellant Tomlin seeks to revive his 42 U.S.C. § 1983 action against appellees which was decided against Tomlin finally on October 4, 1982, the date the Supreme Court denied Tomlin’s petition for certiorari which sought review of the dismissal of his action. Tomlin’s revival effort consists of a motion for relief from judgment under Fed.R.Civ.P. 60(b)(4), (5), and (6). The district court denied the motion and we affirm.

Tomlin’s Rule 60(b) motion rests on the following facts. The section 1983 action was dismissed as time barred on the basis of Major v. Arizona State Prison, 642 F.2d 311 (9th Cir.1981), which held that a one year statute of limitations applied to such actions and that imprisonment did not toll the statute. As indicated above, this judgment became final on October 4, 1982. The Arizona Court of Appeals held in 1983 that imprisonment did toll the statute. See Smith v. MacDougall, 139 Ariz. 22, 25 , 676 P.2d 656, 659 (Ct.App.1983). We accepted that view in Stephan v. Dowdle, 733 F.2d 642 (9th Cir.1984). The other leg upon which the dismissal of Tomlin’s section 1983 action stood was removed by the Supreme Court of the United States when it held in 1985 that the…