Slade

MEMORANDUM **

Appellant M. Slade (“Slade”) filed this 42 U.S.C. § 1983 action against Sheriff Leroy Baca (“Baca”) on September 24, 2001, alleging that while detained in the Los Angeles County Sheriffs detention facility in March 2000, he was beaten by fellow inmates and subsequently not given adequate medical treatment. Slade appeals the district court’s order granting summary judgment in favor of Baca on the basis that the action was filed outside the applicable one-year statute of limitations period and was, therefore, untimely. The parties are familiar with the facts such that we need not repeat them. We have jurisdiction under 28 U.S.C. § 1291 and we reverse.

The statute of limitations period for actions brought under 42 U.S.C. § 1983 is determined by the state’s law for personal injury claims. Azer v. Connell, 306 F.3d 930, 935 (9th Cir.2002). When this lawsuit was filed, California had a one-year statute of limitations period for such actions. Cal. Civ.Proc.Code § 340. Because we also borrow California’s tolling rules for § 1983 actions, Azer, 306 F.3d at 936 , we apply California’s provision that tolls the limitations period for prisoners until the date they are released…

dissenting.

I respectfully dissent. Given the state of the record before us, I cannot conclude that the petitioner has demonstrated a triable issue of fact. Therefore, I would affirm the district court.

Faced with a motion for summary judgment, the non-moving party “may not rest upon mere allegations or denials” but must “set forth specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56(e). The mere presence of a specific fact does not transform a conelusory statement into this sort of evidence. Rather, the evidence must be “such that a reasonable jury could return a verdict for the non-moving party.” Anderson v. Liberty Lobby, 477 U.S. 242, 248 , 106 S.Ct. 2505 , 91 L.Ed.2d 202 (1986). If the evidence is “merely colorable,” or is not “significantly probative,” summary judgment may be granted. Id. at 249-50 . In other words, the non-moving party must produce “sufficient evidence supporting the claimed factual dispute ... to require a jury or judge to resolve the parties’ differing versions of the truth at trial.” First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89 , 88 S.Ct. 1575 , 20 L.Ed.2d 569 (1968).

Here, the critical question is…