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STONE v. CITY & CTY. OF SAN FRANCISCO

March 14, 1990

LESTER STONE, Plaintiff,
v.
CITY AND COUNTY OF SAN FRANCISCO, et al., Defendants



The opinion of the court was delivered by: PATEL

 Plaintiff, Lester Stone, filed an action against defendants, the City and County of San Francisco ("CCSF") alleging state tort claims and violations of his constitutional rights guaranteed under 42 U.S.C. § 1983. After removing this case to federal court, defendants moved for dismissal on the ground that plaintiff's claims were barred by the applicable statute of limitations. The court determined the applicable statute of limitations and denied the motion without prejudice, ordering further briefing on the issue of equitable tolling. Because both parties' supplemental briefs refer to matters outside the pleadings, the court will construe defendants' motion as one for summary judgment. Having considered the arguments contained in the supplemental briefs, the court now grants defendants' motion for summary judgment.

 BACKGROUND

 Plaintiff alleges that on March 22, 1985, he sustained personal injuries during the course of his booking and arrest by two San Francisco police officers. On March 27, 1985, Stone filed a complaint with the San Francisco Police Department's Office of Citizen's Complaints ("OCC"). On April 29, 1985, OCC Senior Investigator, Michelle Gilmer, sent Stone a letter indicating that the matter had been referred to the accused officers' commanding officer. Neither party has presented information concerning the resolution of the OCC complaint.

 On May 29, 1985, Stone, with the assistance of legal counsel, filed a claim against CCSF pursuant to the Tort Claims Act. *fn1" CCSF subsequently denied plaintiff's claim on October 21, 1985 and informed him that he had six months in which to file a court action. Apparently dissatisfied with counsel, Stone dismissed his attorney in December 1985 and filed a pro per complaint in state court on May 29, 1986 alleging various state tort claims and an action under 42 U.S.C. § 1983. Pursuant to 28 U.S.C. § 1441, CCSF removed the action to this court.

 Defendants originally moved for summary judgment on the ground that plaintiff's claims fell outside the applicable statute of limitations. Since it was then premature to decide the matter on summary judgment, the court instead treated defendants' motion as a motion to dismiss. See Harrison v. County of Alameda, 720 F. Supp. 783, (N.D.Cal. 1989). At the June 6 hearing, plaintiff, now represented by counsel, admitted that his claims were outside the statute of limitation but raised the possibility of an estoppel argument. The court construed plaintiff's argument as a request for application of equitable tolling principles to the statute of limitation at issue. Accordingly, the court denied defendants' motion without prejudice and ordered further briefing on that issue.

 Presently, plaintiff and defendants request in their supplemental papers that the court refer to matters outside the pleadings. Accordingly, defendants' motion shall now be treated as a motion for summary judgment.

 LEGAL STANDARD

 Under Federal Rule of Civil Procedure 56, a court may properly grant a motion for summary judgment if the pleadings and materials demonstrate that there is "no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). A dispute about a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).

 To withstand a motion for summary judgment, the non-movant must show that there are genuine factual issues which can only be resolved by the trier of fact. Id. The nonmoving party may not rely on the pleadings but must present specific facts creating a genuine issue of material fact. T.W. Elec. Serv. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987). The court's function, however, is not to make credibility determinations. Anderson, 477 U.S. at 249. The inferences to be drawn from the facts must be viewed in a light most favorable to the party opposing the motion. T.W. Elec. Serv., 809 F.2d at 631.

 DISCUSSION

 Both parties agree that Stone filed this action outside the applicable statute of limitations as determined by this court in its earlier order. Thus, the sole issue before the court is whether plaintiff's untimely federal and pendent state claims are saved under the doctrine of equitable tolling.

 I. Applicable Law

 Under California law, a statute of limitation is equitably tolled when the claimant has " several formal legal remedies and reasonably and in good faith pursues one." Donoghue v. County of Orange, 848 F.2d 926, 930 (9th Cir. 1987) (emphasis added) (citing Jones v. Tracy School Dist., 27 Cal. 3d 99, 108, 165 Cal. Rptr. 100, 611 P.2d 441 (1980)). Generally, in order to invoke this doctrine, the legal remedy initially sought must be one "designed to lessen the extent of [the ...


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