446 F2d 249 Mills v. L K Small Md

446 F.2d 249

Elizabeth MILLS, Plaintiff-Appellant,
v.
L. K. SMALL, M.D., Defendant-Appellee.

No. 71-1511.

United States Court of Appeals, Ninth Circuit.

August 3, 1971.

Rehearing Denied August 30, 1971.

Elizabeth Mills, in pro. per.

Crosby, Heafey, Roach & May, Oakland, Cal., for defendant-appellee.

Before MERRILL, HUFSTEDLER and TRASK, Circuit Judges.

PER CURIAM:

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1

The plaintiff appeals from the district court's dismissal of her in propria persona action charging the defendant with certifying to the Superior Court of Alameda County on July 21, 1954, that he had examined the plaintiff when he had not. The defendant, Dr. Small, was at the time a medical examiner for the Superior Court and acting within the scope of his employment. Plaintiff sought general and exemplary damages.

2

The district court dismissed upon the grounds that the action was barred by the statute of limitations and that the appellee was immune from liability for the act charged. We affirm.

3

Although the complaint, filed in October 1970, does not state its basis for federal jurisdiction, we assume it charges a violation of her civil rights under 42 U.S.C. § 1983. That statute contains no limitation period but resort may be had to the California law. A liability "created by statute" must be brought within three years. Cal.Code Civ.P. § 338(1). As such her action is barred. Donovan v. Reinbold, 433 F.2d 738 (9th Cir. 1970); Smith v. Cremins, 308 F.2d 187 (9th Cir. 1962).

4

In addition, Dr. Small was acting in a quasi-judicial capacity and was immune from liability for damages under 42 U.S.C. § 1983. Burkes v. Callion, 433 F.2d 318 (9th Cir. 1970).

5

The judgment is affirmed.