Hamilton v. Dineen ( 2001 )

[NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]
United States Court of Appeals
For the First Circuit
No. 01-1069
MICHAEL A. HAMILTON,
Plaintiff, Appellant,
v.
CHERYL D. DINEEN; DENISE CARTER; GAIL SARGRUS; MARK
JOUKNINVIRAN; DIANE CARLOZZI, ESQ.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Mark L. Wolf, U.S. District Judge]
Before
Boudin, Chief Judge,
Torruella and Lynch, Circuit Judges.
Michael A. Hamilton on brief pro se.
August 27, 2001
Per Curiam. Appellant Michael A. Hamilton filed a
complaint in the Massachusetts federal district court and
asked to proceed in forma pauperis. His complaint attacked
state court proceedings which had resulted in the loss of
custody of his three children. After granting IFP status,
the district court dismissed the complaint on the ground
that it lacked an arguable basis in law. See 28 U.S.C. §
1915(e)(2)(B)(i) ("the court shall dismiss the case at any
time if the court determines that . . . the action or appeal
. . . is frivolous"). In particular, the court determined
that the complaint was barred by the Massachusetts three-
year statute of limitations applicable to civil rights
actions brought under 42 U.S.C. § 1983.
We note, first, that appellant does not address,
on appeal, the merits of the district court's determination
regarding the statute of limitations. Of course, failure to
argue an issue on appeal waives that issue. Ortega Cabrera
v. Municipality of Bayamon, 562 F.2d 91, 102 n.10 (1st Cir.
1977). This alone, then, would be reason to affirm the
district court judgment.
In any event, there was no error in the district
court's decision. Appellant argued below that a state
statute of limitations has nothing to do with a federal
civil rights action and that the district court had erred in
applying any limitations period to his complaint.
This assertion is palpably
incorrect. At all times
material hereto, the law was
clear that, when Congress had
not established a time
limitation for a federal cause
of action, a local limitations
period was to be adopted as
federal law so long as it was
not inconsistent with federal
law or policy to do so.
[This] practice demand[s] the
application of state personal
injury statutes of limitations
in section [1983] suits.
Johnson v. Rodriguez, 943 F.2d 104, 107 (1st Cir. 1991)
(citations omitted). As a result, the Massachusetts three-
year statute of limitations for personal injury actions
applies to this case. See Nieves v. McSweeney, 241 F.3d 46,
51 (1st Cir. 2001) (citing M.G.L.c. 260, § 2A). Appellant's
reliance on Bivens v. Six Unknown Named Agents, 403 U.S. 388(1971), is misplaced as that case did not involve the
question of the statute of limitations applicable to a civil
rights action.
Appellant does not dispute the district court's
determination that his cause of action accrued, at the
latest, on May 12, 1997, when Cheryl Dineen was awarded
custody of Hunter, the last of appellant's children. The
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probate proceedings which resulted in appellant's loss of
custody plainly are the basis of appellant's complaint and
the complaint focuses on the alleged actions the defendants
took during these proceedings. Thus, the complaint, filed
on September 5, 2000, was over three months late.
The judgment of the district court is affirmed.
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