FILED
NOT FOR PUBLICATION
JUN 21 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
STEVEN L. FAGER; et al., No. 15-35133
Plaintiffs-Appellants, D.C. No. 3:14-cv-05940-RJB
v.
MEMORANDUM*
OLYMPIC PENINSULA NARCOTICS
ENFORCEMENT TEAM,
Defendant,
and
CLALLAM COUNTY; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Washington
Robert J. Bryan, District Judge, Presiding
Argued and Submitted June 12, 2017
Seattle, Washington
Before: D.W. NELSON, M. SMITH, and CHRISTEN, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Plaintiffs-Appellants Steven Fager, Timothy Fager, Cynthia Fager, Kathleen
Wheller, Gary Corman, and Ted DeBray appeal from the district court’s order
dismissing their 42 U.S.C. § 1983 claims under Federal Rule of Civil Procedure
12(b)(6) and declining to exercise supplemental jurisdiction over their remaining
state law claims. We have jurisdiction pursuant to 28 U.S.C. § 1291 and review de
novo a dismissal for failure to state a claim under Rule 12(b)(6). Odom v.
Microsoft Corp., 486 F.3d 541, 545 (9th Cir. 2007). We also review de novo
whether a claim is barred by the statute of limitations, but “[t]he question of when
a claim accrues is a fact intensive inquiry, and we have held that a district court’s
factual finding concerning when a claim accrues is entitled to deferential review.”
Pouncil v. Tilton, 704 F.3d 568, 574 (9th Cir. 2012) (quoting Hells Canyon Pres.
Council v. U.S. Forest Serv., 403 F.3d 683, 691 (9th Cir. 2005)). For the following
reasons, we affirm.
1. The district court correctly concluded that the Plaintiffs-Appellants’ Fourth
Amendment, due process, and wrongful discharge claims were barred by
Washington’s three-year statute of limitations for personal injury claims. See
RCW 4.16.080; Morales v. City of Los Angeles, 214 F.3d 1151, 1153 (9th Cir.
2000) (“Actions brought pursuant to 42 U.S.C. § 1983 are governed by the state
statutes of limitations for personal injury actions.”). Even assuming equitable
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tolling applies, it cannot save these claims. The November 2011 motion to
suppress filed in state court alleged the same facts as the federal complaint,
showing the claims accrued outside of the three-year limitations period. See
Wallace v. Kato, 549 U.S. 384, 388 (2007) (holding that federal law determines
when a cause of action under § 1983 accrues and the statute of limitations begins to
run); Knox v. Davis, 260 F.3d 1009, 1013 (9th Cir. 2001) (“Under federal law, ‘a
claim accrues when the plaintiff knows or has reason to know of the injury which
is the basis of the action.’” (quoting TwoRivers v. Lewis, 174 F.3d 987, 992 (9th
Cir. 1999))); see also Boston v. Kitsap Cty., 852 F.3d 1182, 1184 (9th Cir. 2017)
(concluding that Washington’s claims presentment statute does not toll the statute
of limitations for § 1983 claims). Similarly, the continuing violations doctrine
cannot make these claims timely, even if it applies.1 See Douglas v. Cal. Dep’t of
Youth Auth., 271 F.3d 812, 823–24 (9th Cir. 2001) (concluding the continuing
violations doctrine requires that a plaintiff be exposed to an allegedly wrongful
1
The district court also correctly concluded that Plaintiffs-Appellants’
due process claims are barred by the Supreme Court’s holding in Graham v.
Connor, 490 U.S. 386 (1989). See Action Apartment Ass’n, Inc. v. Santa Monica
Rent Control Bd., 509 F.3d 1020, 1025 (9th Cir. 2007) (“[U]nder the Graham rule,
a substantive due process claim will be preempted if the asserted substantive right
can be vindicated under a different—and more precise— constitutional rubric.”).
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policy during the limitations period for a claim to be timely), amended, 271 F.3d
910 (9th Cir. 2001).
2. The district court correctly dismissed the Plaintiffs-Appellants’ federal
malicious prosecution claims for failure to state a claim. See Imbler v. Pachtman,
424 U.S. 409, 430 (1976) (holding that prosecutors have absolute immunity for
decisions “intimately associated with the judicial phase of the criminal process”).
The Plaintiffs-Appellants do not challenge the district court’s dismissal of their
malicious prosecution claims against the prosecutor-defendants, and their
complaint did not allege malicious prosecution claims against the non-prosecutor
defendants.2
3. Because Plaintiffs-Appellants agree that their appeal from the district court’s
dismissal of their state law claims is dependent upon their argument that the district
court erred by dismissing their federal claims, we affirm the dismissal of the state
law claims as well. See Acri v. Varian Assocs., Inc., 114 F.3d 999, 1001 (9th Cir.
1997) (en banc) (“[I]n the usual case in which all federal-law claims are eliminated
before trial, the balance of factors . . . will point toward declining to exercise
2
Corman’s malicious prosecution claim is also barred by the statute of
limitations. See Cline v. Brusett, 661 F.2d 108, 110 (9th Cir. 1981) (stating that a
malicious prosecution claim accrues when “the case has been terminated in favor
of the accused”).
4
jurisdiction over the remaining state-law claims.” (alteration in original) (quoting
Carnegie–Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988))).
AFFIRMED.
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