Kenneth A. Bianchi v. Bellingham Police Department Terry Wight Terry Mangan David McEachran

909 F.2d 1316 Kenneth A. BIANCHI, Plaintiff-Appellant, v. BELLINGHAM POLICE DEPARTMENT; Terry Wight; Terry Mangan; David McEachran, Defendants-Appellees. No. 89-35053. United States Court of Appeals, Ninth Circuit. Submitted March 9, 1990 * . Decided July 26, 1990. Robert L. Christie and Scott Stewart, Waitt, Johnson & Martens, Seattle, Wash., for defendants-appellees Terry Wight and Terry Mangan. Randall J. Watts, Chief Deputy Pros. Atty., Bellingham, Wash., for defendant-appellee David McEachran. Kenneth A. Bianchi, Walla Walla, Wash., pro se. Before WRIGHT, REINHARDT and O'SCANNLAIN, Circuit Judges. EUGENE A. WRIGHT, Circuit Judge: 1 This is a Sec. 1983 action. Kenneth Bianchi appeals the dismissal of complaint on statute of limitation grounds. He argues that his continuous incarceration from the time of his arrest tolls the running of the limitation period. We agree, reverse and remand. BACKGROUND 2 Bianchi is a convicted mass murderer 1 serving two consecutive life sentences in the state of Washington. When those sentences are completed, he will be returned to California to serve life sentences for five counts of murder and for conspiracy to commit murder. 3 He was…

This is a § 1983 action. Kenneth Bianchi appeals the dismissal of complaint on statute of limitation grounds. He argues that his continuous incarceration from the time of his arrest tolls the running of the limitation period. We agree, reverse and remand.

BACKGROUND

Bianchi is a convicted mass murderer 1 serving two consecutive life sentences in the state of Washington. When those sentences are completed, he will be returned to California to serve life sentences for five counts of murder and for conspiracy to commit murder.

He was arrested on suspicion of murder on January 12, 1979, by the Bellingham, Washington Police Department. Three days later, on January 15, he was charged with possession of stolen property. Although the record does not indicate when he was charged with murder, at some point he was booked for investigation of homicide. On October 19, 1979, he pleaded guilty to two counts of murder in Washington and agreed to plead guilty to five counts of murder in California.

He was transported to California to serve as a material witness in investigation of the California murders. He remained in custody there until January 1984, when he was returned to Washington to…

dissenting:

I do not agree with the court that Bian-chi’s claims for unlawful arrest and detention are saved by the Washington Code’s tolling provision. In my view, the statute of limitations has run on these claims and we must affirm the district court’s order of dismissal. I therefore respectfully dissent.

The court notes that Bianchi has been continuously imprisoned since his arrest in 1979 and then “hold[s] that actual, uninterrupted incarceration is the touchstone for determining disability by incarceration.” Ante at 1318. If Washington law provided for a general disability by incarceration, I would agree with this holding. The Washington legislature, however, has not so provided.

The Washington tolling statute teaches that if one entitled to bring an action is, “at the time the cause of action accrues either *1320 under the age of eighteen years, or incompetent or disabled [to a particular degree], or imprisoned on a criminal charge, or in execution under the sentence of a court for a term less than his natural life, the time of such disability” shall not be included for statute-of-limitations purposes. Wash.Rev. Code § 4.16.190 (West 1988). I agree with the court that…