898 F. 2d 156 - Abernathy v. H Kingery
898 F2d 156 Abernathy v. H Kingery
898 F.2d 156
Unpublished Disposition
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
Donald Ray ABERNATHY, Plaintiff-Appellant,
v.
Michael H. KINGERY, et al., Defendants-Appellees.
No. 88-15031.
United States Court of Appeals, Ninth Circuit.
Submitted March 16, 1990.*
Decided March 23, 1990.
Before JAMES R. BROWNING, ALARCON and POOLE, Circuit Judges.
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MEMORANDUM**
Donald Ray Abernathy appeals pro se the district court's grant of summary judgment for the defendants, thereby dismissing as time-barred his action for damages brought under Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971). He alleges that Kingery and Zemblidge violated his constitutional rights by presenting perjured testimony to the grand jury in his prior criminal proceedings. We have jurisdiction under 28 U.S.C. Sec. 1291 and review de novo. Kruso v. International Tel. & Tel. Corp., 872 F.2d 1416, 1421 (9th Cir.1989); Donoghue v. County of Orange, 848 F.2d 926, 929 (9th Cir.1987). We affirm.
In Bivens actions, we borrow the state statute of limitations that applies to analogous state law causes of action. Johnston v. Horne, 875 F.2d 1415, 1424 (9th Cir.1989).1 The proper Arizona statute of limitations period to apply to Bivens actions appears to be a question of first impression in this circuit. We need not address this issue, however. Even if the defendants gave perjured testimony before the grand jury, they are absolutely immune from damages for their testimony. See Briscoe v. LaHue, 460 U.S. 325, 326 (1983); Little v. City of Seattle, 863 F.2d 681, 684 (9th Cir.1989).2
AFFIRMED.
The panel unanimously finds this case suitable for disposition without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4
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
Although Abernathy also brought this action under 42 U.S.C. Sec. 1983, he named only federal officers as defendants, and thus the district court properly construed it as brought under Bivens
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Abernathy contends that Briscoe does not bar his action for damages because the defendants fabricated evidence (which he alleges is a pre-perjury violation) and then presented it to the grand jury. Abernathy's attempt to distinguish between pre-perjury fabrication and perjury is unpersuasive. The "claims" are indivisible