Michael Sain Ryan White Lori J. Sain, Personally and as Next Friend for Crystal Sain v. City of Bend Buck Church Tom Pine Al Campbell

Opinion by Judge WILLIAM A. FLETCHER; Concurrence by Judge KING.

Plaintiffs filed an action under 42 U.S.C. § 1983 in federal district court, and the court dismissed on the ground that plaintiffs’ complaint was barred by the two-year statute of limitations under Or.Rev.Stat. § 30.275. We reverse on two independently sufficient grounds. First, we hold that plaintiffs’ complaint was timely filed be *1136 cause we look to Federal Rules of Civil Procedure 3 and 6(a) to compute time for the purposes of the statute of limitations when the underlying cause of action is federal rather than state. Second, even if we were to look to Oregon law for computation of time, we would find that plaintiffs’ complaint was timely under Or.Rev.Stat. § 12.110, to which we look for the limitation period in § 1983 suits in Oregon.

I. Facts and Prior Proceedings

On August 14, 2000, plaintiffs filed an action under 42 U.S.C. § 1983 . Plaintiffs allege that on August 14, 1998, the individual defendants, police officers of the City of Bend, violated their civil rights under the Fourth and Fourteenth Amendments. Defendants filed a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), contending…

concurring:

I join Parts I and III of the majority’s opinion and concur in the result of Part II. However, I write separately to express that, in my view, we need not delve into the implications of Hanna or Walker because this appeal involves a federal § 1983 claim, not a state claim based on diversity jurisdiction. 1 Consequently, the inquiry should begin with West v. Conrail, 481 U.S. 35 , 107 S.Ct. 1538 , 95 L.Ed.2d 32 (1987), a case requiring the court to borrow the statute of limitations for a federal claim, as is the case here.

Admittedly, West involved the borrowing of the statute of limitations from another federal law, while Wilson v. Garcia, 471 U.S. 261 , 105 S.Ct. 1938 , 85 L.Ed.2d 254 (1985), mandates that we borrow the statute of limitations for the § 1983 claim at issue in this case from state law. However, this difference is inconsequential for our purposes because when we borrow state law for a federal claim, we are applying federal, not state, law and do not undermine the federal nature of the claim. See Jutzi-Johnson v. United States, 263 F.3d 753, 760 (7th Cir.2001)(“When a federal court borrows a state statute of limitations, the court is not applying state…

309 F.3d 1134 Michael SAIN; Ryan White; Lori J. Sain, personally and as next friend for Crystal Sain, Plaintiffs-Appellants, v. CITY OF BEND; Buck Church; Tom Pine; Al Campbell, Defendants-Appellees. No. 00-36033. United States Court of Appeals, Ninth Circuit. Submitted July 8, 2002. * Filed October 29, 2002. Mikel R. Miller, Bend, OR, for the plaintiffs-appellants. Robert E. Franz, Jr., Springfield, OR, for defendants-appellees City of Bend, Buck Church, and Tom Pine. Robert S. Wagner, Miller & Wagner LLP, Portland, OR, for defendant-appellee Al Campbell. Appeal from the United States District Court for the District of Oregon; Michael R. Hogan, Chief Judge, Presiding. D.C. No. CV-00-06247-HO. Before: FERGUSON, W. FLETCHER, Circuit Judges, and KING, ** District Judge. Opinion by Judge WILLIAM A. FLETCHER; Concurrence by Judge KING. WILLIAM A. FLETCHER, Circuit Judge. 1 Plaintiffs filed an action under 42 U.S.C. § 1983 in federal district court, and the court dismissed on the ground that plaintiffs' complaint was barred by the two-year statute of limitations under Or.Rev.Stat. § 30.275. We reverse on two independently sufficient grounds. First, we hold that…