FILED
NOT FOR PUBLICATION
SEP 07 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHRISTOPHER ALEXANDER, No. 15-17461
Plaintiff-Appellant, D.C. No. 2:14-cv-00754-SPL
v.
MEMORANDUM*
CITY OF MESA, a political subdivision of
the State of Arizona; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Arizona
Steven Paul Logan, District Judge, Presiding
Submitted August 28, 2017**
Pasadena, California
Before: WARDLAW and BYBEE, Circuit Judges, and ILLSTON,*** District
Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
**
The Honorable Susan Illston, United States District Judge for the
Northern District of California, sitting by designation.
Christopher Alexander (“Alexander”) appeals the district court’s dismissal
of his claims against the City of Mesa (the “City”), Brian Truchon (“Truchon”),
Jeffrey Jacobs (“Jacobs”), and the United States. We have jurisdiction pursuant to
28 U.S.C. § 1291, and we affirm.
1. The district court properly dismissed Alexander’s claims against the
City under 42 U.S.C. § 1983. The district court had dismissed these claims with
prejudice in an earlier order. Accordingly, Alexander was barred by the doctrine
of res judicata from raising them again. Federated Dep’t Stores, Inc. v. Moitie,
452 U.S. 394, 398 (1981) (“A final judgment on the merits of an action precludes
the parties or their privies from relitigating issues that were or could have been
raised in that action.”).
2. The district court properly dismissed Alexander’s claim of intentional
infliction of emotional distress against the City and the United States as time-
barred. See Ariz. Rev. Stat. § 12-542(1) (two-year statute of limitations for
personal injuries); Ariz. Rev. Stat. § 12-821 (one-year statute of limitations for
actions against public entities). At the latest, Alexander learned of the conduct that
gave rise to his IIED claim when his conviction was overturned on December 21,
2010. But he did not commence this action until 2012; he voluntarily dismissed it
in 2012; and he did not refile until 2014.
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3. The district court properly dismissed Alexander’s claim against
Truchon for malicious prosecution under Bivens v. Six Unknown Agents of the
Federal Bureau of Narcotics, 403 U.S. 388 (1971). Alexander failed to plead that
Truchon had any personal involvement in or took any direct action to aid the
investigation. Truchon “may not be held accountable for the misdeeds of [his]
agents.” Ashcroft v. Iqbal, 556 U.S. 662, 667 (2009).
4. The district court properly dismissed Alexander’s claim against
Jacobs for malicious prosecution under 42 U.S.C. § 1983. Though Jacobs was an
employee of the City, United States Attorney John S. Leonardo certified that he
was acting as an employee of the Federal Bureau of Investigation, and acting
within the scope of that employment, at the time of the alleged misconduct, which
creates a rebuttable presumption that he was a federal employee at the relevant
time. Alexander has failed to allege facts that would rebut the presumption that
Jacobs was not acting as a federal employee under color of state law. Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 556 (2007).
AFFIRMED.
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