OpenJurist

876 F2d 896 Gorenc v. Futch

876 F.2d 896

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Donna GORENC, individually and as wife, Plaintiff,
and
Louis Gorenc, individually and as husband, Plaintiff-Appellant,
v.
Jan FUTCH; Lucy (Maun) Garcia; Pablo (Sheriff) Lopez;
Frank McGill; John Doe Oltman, County of Pinal; Pinal
County Sheriff's Office; Frank Rayes; Robert Shouster;
Craig Stange; Jane Doe Rayes, wife; Jane Doe Lopez, wife;
John Doe Garcia, husband; Jane Doe Stange, wife John Doe
Futch; Jane Doe Shouster, wife; Jane Doe McGill, wife;
Jane Doe Oltman, wife, Defendants-Appellees.

No. 87-2634.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 14, 1989.
Decided June 5, 1989.

Before HUG, CYNTHIA HOLCOMB HALL and O'SCANNLAIN, Circuit Judges.

1

MEMORANDUM*

2

Louis and Donna Gorenc appeal the district court's dismissal of their civil rights action, 42 U.S.C. Sec. 1983 (1982), on statute of limitations grounds. We affirm.

3

We review de novo the dismissal, Donoghue v. County of Orange, 848 F.2d 926, 929 (9th Cir.1987), and the district court's interpretation of state law, In re McLinn, 739 F.2d 1395, 1397 (9th Cir.1984) (en banc).

4

Although the Gorencs filed their action under a federal statute, state law defines the statute of limitations period and resolves questions of tolling and application. Wilson v. Garcia, 471 U.S. 261, 269 (1985). Civil rights claims are characterized as personal injuries for purposes of determining the appropriate state limitations period. Owens v. Okure, 109 S.Ct. 573, 576-77 (1989).

5

The district court properly held that the Gorencs missed their chance to sue. In Arizona, a personal injury cause of action runs under a two-year time limit. Ariz.Rev.Stat.Ann. Sec. 12-542 (West 1982 & Supp.1988). The events about which the Gorencs complained occurred in 1982. They did not file suit until 1985.

6

The Gorencs' contention that the County of Pinal is estopped from asserting the limitations defense is unpersuasive. The Gorencs contend that there was an agreement between them and the deputy sheriff that the officers would not harass the couple if the Gorencs promised not to sue. Even assuming that the deputy sheriff made such a representation, this would be unavailing to the Gorencs. The duties and powers of sheriff officers are defined by statute. Ariz. Const. art. 12 Sec. 4; Merrill v. Phelps, 52 Ariz. 526, 530-31, 84 P.2d 74, 76 (1938). Nothing in the statute setting out the sheriff's powers and duties authorizes the deputy sheriff to negotiate no-suit deals with potential litigants against the county. Ariz.Rev.Stat.Ann. Sec. 11-441 (West 1977 & Supp.1988). Authority to conduct the county's legal business is, in fact, reserved for the board of supervisors. Ariz.Rev.Stat.Ann. 11-251(14) (West 1977 & Supp.1988). The Gorencs were bound to know, at their peril, the limits of the deputy sheriff's authority; a deputy sheriff's unauthorized act cannot form the basis of a right or action against the county. Bigler v. Graham County, 128 Ariz. 474, 477, 626 P.2d 1106, 1109 (Ariz.App.1981); Pinal County v. Pomeroy, 60 Ariz. 448, 455, 139 P.2d 451, 454-55 (Ariz.App.1943). These principles forestall an estoppel argument against the county based on the alleged deal between the Gorencs and the sheriff.

7

The district court's decision is AFFIRMED.

*

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3