NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
SEP 08 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
CARL WEST, No. 15-17316
Plaintiff-Appellant, D.C. Nos. 2:12-cv-00657-DGC
2:14-cv-00254-DGC
v.
CITY OF MESA; et al., MEMORANDUM*
Defendants-Appellees.
Appeal from the United States District Court
for the District of Arizona
David G. Campbell, 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.
Carl West (“West”) appeals multiple district court orders either dismissing
his claims with prejudice or entering judgment against him. We have jurisdiction
pursuant to 28 U.S.C. § 1291, and we affirm.1
1. To the extent West argues that the district court erred in dismissing his
Bivens (Count II) and state-law malicious prosecution (Count IV) claims against
Joe Gordwin (“Gordwin”), that argument is waived. Friends of Yosemite Valley v.
Kempthorne, 520 F.3d 1024, 1033 (9th Cir. 2008) (issues not raised in opening
brief are waived); Am. Bankers Mortg. Corp. v. Fed. Home Loan Mortg. Corp., 75
F.3d 1401, 1413 (9th Cir. 1996) (issues dismissed by stipulation of parties are
waived).
2. The district court correctly found that West failed to rebut the Scope
Certification that certified that Jeffrey Jacobs (“Jacobs”) was a federal actor for
purposes of West’s claims of malicious prosecution under state law (Count IV) and
abuse of process under state law (Count VI). The Federal Tort Claims Act
(“FTCA”), 28 U.S.C. § 1346(b), provides that an individual suit against the United
States is the exclusive remedy for persons with claims for damages resulting from
the tortious conduct of federal employees acting within the scope of their
1
Defendants-Appelles’ Motion to Strike Plaintiff-Appellant’s Supplemental
Excerpt of Record (Volume 6) is granted.
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employment. 28 U.S.C. § 2679(b)(1). Upon certification by the Attorney General
that the federal employee was acting within the scope of his employment at the
time of the alleged tortious conduct, any civil action based upon such conduct is
considered an action against the United States, and the United States must be
substituted as the sole party defendant. Id.. Though Jacobs was an employee of
the City of Mesa (the “City”), United States Attorney John S. Leonardo certified
that he was acting as an employee of the Federal Bureau of Investigation (“FBI”),
and acting within the scope of that employment, at the time of the alleged tortious
acts. A person “acting on behalf of a federal agency” is deemed a federal
employee under the FTCA. 28 U.S.C. § 2671. West did not dispute that Jacobs
was assigned to the FBI’s Joint Terrorism Task Force. Indeed, West alleged that
Jacobs was acting as a federal agent “under color of federal authority based on the
task force.” Accordingly, the district court appropriately substituted the United
States for Jacobs on West’s state-law tort claims.
3. The district court properly dismissed West’s claims against the FBI
for malicious prosecution, abuse of process, fraud, negligent misrepresentation,
and negligent supervision (Counts IV, VI, VII, VII, and IX). “The FTCA . . . only
allows claims against the United States” and not its agencies. F.D.I.C. v. Craft,
157 F.3d 697, 706 (9th Cir. 1998). Accordingly, West’s claims against the FBI are
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barred by the doctrine of sovereign immunity. Given that every tort claim West
asserted against the FBI was also asserted against the United States, the district
court did not abuse its discretion in declining to grant leave to amend.
4. The district court properly dismissed West’s claims against the United
States for fraud and negligent misrepresentation (Counts VII and VIII). The
United States has not waived its sovereign immunity with respect to fraud and
negligent misrepresentation claims, Pauly v. USDA, 348 F.3d 1143, 1151–52 (9th
Cir. 2003), and “[i]t is not our right to extend the waiver of sovereign immunity
more broadly than has been directed by . . . Congress,” United States v. Shaw, 309
U.S. 495, 502 (1940). Accordingly, the United States is entitled to sovereign
immunity on these claims.
5. The district court properly dismissed West’s claims against the United
States and the FBI for violations of West’s constitutional rights under Bivens v. Six
Unknown Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971) (Count
II). Federal agencies may not be sued in Bivens actions, F.D.I.C. v. Meyer, 510
U.S. 471, 484–86 (1994), nor may the United States itself, Cato v. United States,
70 F.3d 1103, 1110–11 (9th Cir. 1995). While West argues that the United States
implicitly waived its sovereign immunity through its employees’ conduct, a waiver
of sovereign immunity must be express and “cannot be implied.” United States v.
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King, 395 U.S. 1, 4 (1969).
6. The district court properly determined that the doctrine of res judicata
barred West’s claims against the City for abuse of process under 42 U.S.C. § 1983,
abuse of process under state law, fraud, and negligent representation (Counts I, VI,
VII, and VIII). In an earlier disposition, the district court had dismissed these
claims as time-barred. We affirmed this dismissal in West’s prior appeal, because
these claims “were not subject to a favorable termination requirement, and accrued
at least by the time West was convicted.” West v. City of Mesa, No. 12-16811,
2014 WL 7228962, at *1 (9th Cir. Dec. 18, 2014). When West re-alleged these
claims in his amended complaint, the district court held that they were barred by
the doctrine of res judicata. See 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.”); Classic Auto Refinishing, Inc. v. Marino, 181 F.3d 1142, 1144 (9th Cir.
1999) (“[F]or res judicata purposes a dismissal on statute of limitations grounds
can be treated as a dismissal on the merits.”).
7. The district court did not abuse its discretion in denying West leave to
amend his complaint to add claims for fraud and negligent representation against
Gordwin and Jacobs, and a claim for negligent supervision against the United
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States. The district court had previously dismissed those claims as time-barred.
We previously affirmed that dismissal. West, 2014 WL 7228962. Accordingly,
those claims are barred by the doctrine of res judicata.
8. The district court properly dismissed West’s § 1983 claim for abuse of
process (Count I) against Jacobs and Brian Truchon (“Truchon”) as time-barred.
This claim was based on the presentation of allegedly false testimony and evidence
to procure West’s 2003 conviction. The district court did not plainly err in finding
that West knew of the facts giving rise to the abuse of process claim more than two
years before he filed his complaint. He alleged the key facts in his 2008 petition
for post-conviction relief, but did not file his complaint until 2012. Accordingly,
those claims are time-barred. TwoRivers v. Lewis, 174 F.3d 987, 991 (9th Cir.
1999) (“In Arizona, the courts apply a two-year statute of limitations to § 1983
claims.”).
9. The district court properly dismissed West’s claim for state-law abuse
of process (Count VI) against Gordwin and the United States as time-barred. As
with his § 1983 claim against Jacobs and Truchon, West’s claim for abuse of
process under state law was based on the presentation of allegedly false testimony
and evidence to procure his 2003 conviction. Accordingly, these claims are time-
barred as well. Hatch v. Reliance Ins. Co., 758 F.2d 409, 414–15 (9th Cir. 1985)
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(applying two-year statute of limitations under Arizona Revised Statute § 12-542
to a state law abuse of process claim).
10. The district court properly dismissed West’s § 1983 claim for abuse of
process (Count I) for failure to state a claim against Gordwin. Even assuming an
abuse of process claim is cognizable under § 1983 in our circuit, West failed to
plead sufficient facts to establish the elements of such a claim. Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 555 (2007) (“[A] plaintiff’s obligation to provide the
grounds of his entitle[ment] to relief requires more than labels and conclusions,
and a formulaic recitation of the elements of a cause of action will not do.”
(alteration in original)(citations and internal quotation marks omitted)). West
failed to allege facts which, if taken as true, would establish that Gordwin was
“acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988). He
alleged that Gordwin was the lead FBI investigator for the Lonely Heights
Investigation. Even when read in the light most favorable to West, the complaint
alleged that Gordwin was a federal actor. See Dist. of Columbia v. Carter, 409
U.S. 418, 424–25 (1973) (“[A]ctions of the Federal Government and its officers
are at least facially exempt from [§ 1983’s] proscriptions.”).
11. Nor did the district court err in dismissing West’s § 1983 claim for
abuse of process, his Bivens malicious prosecution claim, and his § 1983 malicious
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prosecution claim (Counts I, II, and III) against Duane Van Norman (“Van
Norman”) and Kelvin Smith (“Smith”). West failed to plead that either Van
Norman or Smith had any personal involvement in or took any direct action to aid
the investigation. They “may not be held accountable for the misdeeds of their
agents.” Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009). With respect to the abuse-
of-process claim, West also failed to plead facts supporting the elements of his
claim that Van Norman and Smith abused process, because he did not allege that
Smith or Van Norman willfully used the judicial process. See Crackel v. Allstate
Ins. Co., 92 P.3d 882, 887 (Ariz. Ct. App. 2004). With respect to the Bivens
claims, West failed to allege that Van Norman and Smith were federal actors.
Martin v. Sias, 88 F.3d 774, 775 (9th Cir. 1996).
12. Nor did the district court err in dismissing West’s Bivens claim
against Truchon. As with Van Norman and Smith, West failed to plead that
Truchon had any personal involvement in or took any direct action to aid the
investigation. See Iqbal, 556 U.S. at 683.
13. The district court properly dismissed West’s § 1983 malicious
prosecution claim (Count III) against Gordwin, Jacobs, and Truchon. The facts as
alleged failed to give rise to a plausible inference that Gordwin, Jacobs, and
Truchon were acting under color of state law. Twombly, 550 U.S. at 556. The
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district court did not err in finding that Jacobs was a federal actor. Though Jacobs
was an employee of the City, he was certified as a federal actor at the time of the
alleged constitutional violation against West. Truchon was an FBI field
supervisor. Gordwin was an FBI special agent. Accordingly, West failed to state a
§ 1983 claim against these defendants.
14. The district court properly dismissed West’s § 1983 malicious
prosecution claim (Count III) against the City for failure to state a claim. To
establish municipal liability in § 1983 actions, the alleged violation of a plaintiff’s
federally protected right(s) must be attributable to either the enforcement of a
municipal policy or practice or the decision of a final municipal policy maker.
Monell v. Dep’t of Social Servs. of New York, 436 U.S. 658, 694 (1978). But West
failed to plead any facts alleging that the City adopted or implemented a policy or
custom that deprived him of a constitutional right. While West alleged a practice
of rewarding informants for cooperating with police officers, a city may lawfully
provide payment and benefits to cooperating witnesses, see 18 U.S.C. § 201(d);
United States v. Cuellar, 96 F.3d 1179, 1188 (9th Cir. 1996), and may allow one of
its police officers to work with the FBI, see 5 U.S.C. § 3374(a), (c).
15. The district court properly dismissed West’s state law malicious
prosecution claim (Count IV) against the City. West did not allege that the City
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was the “prosecutor or complaining witness” in his case. Bearup v. Bearup, 596
P.2d 35, 36 (Ariz. Ct. App. 1979). Instead, he alleges that he was charged by the
Maricopa County Attorney’s Office, and that Gordwin, a federal actor,
manufactured evidence and submitted false reports. Thus, he failed to state a
claim.
16. The district court properly granted summary judgment in favor of
Jacobs on West’s Bivens claim for malicious prosecution (Count II), and in favor
of the United States on West’s state law malicious prosecution claim (Count IV).
West challenges the district court’s determination that he “failed to demonstrate a
genuine issue of material fact,” Walton v. U.S. Marshals Serv., 492 F.3d 998, 1003
(9th Cir. 2007), on the existence of probable cause. The existence of probable
cause to prosecute is a complete defense to both state and federal claims of
malicious prosecution. Awabdy v. City of Adelanto, 368 F.3d 1062, 1066 (9th Cir.
2004); Hockett v. City of Tuscon, 678 P.2d 502, 505 (Ariz. Ct. App. 1983). West
argues that there was no probable cause because the statements of the confidential
informant and the cooperating witness were later discredited. However, even
setting aside these statements, we find that, “under the totality of the circumstances
known to the arresting officers, a prudent person would have concluded that there
was a fair probability” that West was involved in the attempted warehouse robbery.
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Gasho v. United States, 39 F.3d 1420, 1428 (9th Cir. 1994). The prosecution
based its case not only on the confidential informant’s and cooperating witness’s
statements, but also on police reports, the identification of West by a Weiss Guy
car wash employee, surveillance evidence, and wiretap recordings which suggested
that the alleged conspirators’ intention was to rob the warehouse. West was
mentioned by name in the recorded calls, and the calls suggested that he was
armed. Although West disputes these facts, claiming that he had no knowledge of
or involvement in the planned robbery, he does not identify any record evidence
that would create a genuine dispute of material fact as to probable cause.
17. The district court did not err in dismissing West’s § 1985 conspiracy
claim (Count V) against Gordwin, Jacobs, and Truchon for failure to state a claim.
“[A]n indispensable element of a claim under 42 U.S.C. § 1985(3) is some . . .
invidiously discriminatory animus behind the conspirator's action. . . .” Sprewell v.
Golden State Warriors, 266 F.3d 979, 989 (9th Cir. 2001). West alleges only
generally that the defendants sought to punish him for his racial background,
without alleging what his background or any other party’s is. Thus, he has failed
to allege facts that give rise to a plausible inference that Gordwin, Jacobs, and
Truchon discriminated against him because of his race. Twombly, 550 U.S. at 556.
AFFIRMED.
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