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446 F.2d 249

Docket No. 71-1511.

Elizabeth Mills v. L. K. Small, M.D.

Ninth Circuit Court of Appeals

August 3, 1971.

Rehearing Denied August 30, 1971.

Ninth Circuit Court of Appeals · decided 1971-08-03

2 counsel of record

Key passage — most relied on by later courts

“8 (Emphasis added.) 4 Defendants moved to dismiss the complaint as amended, again insisting that it failed to state a claim upon which relief can be granted, 5 but this time claiming (1) that the plaintiff's action was barred by the statute of limitations, and (2) that the defendants acted in a quasi-judicial capacity and hence are immune from liability for damages. The district court granted the defendants' motion and dismissed the amended complaint, this time with prejudice. In its order the district court stated that: 9”

quoted by 1 later decision, including Earl White v. Dr. Glen E. Padgett

Relies on Russell M. Smith v. John J. Cremins, Jr., John F. Mahon, Jr. · Michael Arthur Donovan v. Earl Reinbold and Harley Askew, Michael Arthur Donovan v. Earl Reinbold and Harley Askew · Burkes v. Callion

Good law ✅— No negative treatment on recordhow we know

Opinion by Per Curiam · Decided 1971-08-03

How this case has been cited

Cited by 16 later decisions — most recently December 2014

7 federal appellate · 5 state decisions

9019711980199020002010decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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Elizabeth Mills, in pro. per.

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

Before MERRILL, HUFSTEDLER and TRASK, Circuit Judges.

PER CURIAM:

¶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.

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