Christopher Alexander v. City of Mesa

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NOT FOR PUBLICATION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.

2
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.