Chandan Manansingh v. USA ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 28 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHANDAN MANANSINGH; ANGELA No. 21-16192
NAIRNS,
D.C. No. 2:20-cv-01139-DWM
Plaintiffs-Appellants,
v. MEMORANDUM*
UNITED STATES OF AMERICA; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Nevada
Donald W. Molloy, District Judge, Presiding
Argued and Submitted March 10, 2023
Las Vegas, Nevada
Before: GRABER, CLIFTON, and BENNETT, Circuit Judges.
Chandan Manansingh and Angela Nairns (together, “Plaintiffs”) appeal from
the district court’s judgment dismissing their constitutional claims against five
federal probation officers (“Probation Defendants”) under Bivens v. Six Unknown
Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), and tort
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
claims against the United States under the Federal Tort Claims Act (“FTCA”). 1
The district court dismissed most of Plaintiffs’ claims in their First and Second
Amended Complaint for untimeliness, lack of subject matter jurisdiction, and
failure to state a claim. We have jurisdiction under 28 U.S.C. § 1291. We review
de novo. See Lam v. United States, 979 F.3d 665, 670 (9th Cir. 2020) (dismissal
for lack of jurisdiction under Federal Rule of Civil Procedure 12(b)(1)); Redlin v.
United States, 921 F.3d 1133, 1138 (9th Cir. 2019) (dismissal for failure to state a
claim under Federal Rule of Civil Procedure 12(b)(6)); Pouncil v. Tilton, 704 F.3d
568, 574 (9th Cir. 2012) (dismissal based on the statute of limitations). We affirm
in part, reverse in part, and remand for further proceedings.
1. We affirm the dismissal of Plaintiffs’ Fourth and Fifth Amendment
claims because they are time-barred. For these Bivens claims, federal courts apply
the forum state’s personal injury statute of limitations. Wallace v. Kato, 549 U.S.
384, 387 (2007). The statute of limitations for personal injury claims in Nevada is
two years. Rosales-Martinez v. Palmer, 753 F.3d 890, 895 (9th Cir. 2014) (citing
Nev. Rev. Stat. § 11.190(4)(e)). Plaintiffs filed their complaint on June 19, 2020,
more than two years after April 1, 2016, the date of the alleged unlawful search of
their residence, the seizure of Manansingh, and the start of Manansingh’s
1
In their reply brief, Plaintiffs withdrew their Eighth Amendment, invasion
of privacy, false light invasion of privacy, and trespass claims.
2
detention. See Bonelli v. Grand Canyon Univ., 28 F.4th 948, 952 (9th Cir. 2022)
(concluding that illegal search, seizure, and detention claims accrue “when the
wrongful act occurs” (citation omitted)). Plaintiffs have not demonstrated that the
limitations period should be equitably tolled for these claims. No “extraordinary
circumstances” prevented them from timely filing their complaint. See Redlin, 921
F.3d at 1140 (citation omitted); Fausto v. Sanchez-Flores, 482 P.3d 677, 681–82
(Nev. 2021) (setting forth elements for equitable tolling of Nev. Rev. Stat.
§ 11.190(4)(e)).
2. We affirm the dismissal of Plaintiffs’ claim for failure to intercede
because it is not cognizable under Bivens. See Mejia v. Miller, 61 F.4th 663, 666–
68 (9th Cir. March 2, 2023) (setting forth requirements of a Bivens action).
Plaintiffs have not shown that Bivens should be extended to their claim. See Ting
v. United States, 927 F.2d 1504, 1511 (9th Cir. 1991) (rejecting a failure-to-
intervene claim as cognizable under Bivens where bystander officers failed to
prevent another officer from shooting the plaintiff); Egbert v. Boule, 142 S. Ct.
1793, 1803 (2022) (stating that recognizing a new Bivens action is “a disfavored
judicial activity” (citation omitted)).
3. We affirm the dismissal of Plaintiffs’ 42 U.S.C. § 1985(3) claim based on
qualified immunity. See Mullenix v. Luna, 577 U.S. 7, 11–12 (2015) (per curiam)
(setting forth elements for qualified immunity); Pasadena Republican Club v. W.
3
Just. Ctr., 985 F.3d 1161, 1171 (9th Cir. 2021) (setting forth elements of a
§ 1985(3) claim). Under the intracorporate-conspiracy doctrine, “an agreement
between or among agents of the same legal entity, when the agents act in their
official capacities, is not an unlawful conspiracy.” Ziglar v. Abbasi, 582 U.S. 120,
153 (2017). When Plaintiffs claimed that Probation Defendants conspired to
deprive them of constitutional rights, the question whether an intracorporate
agreement could subject federal officials (from the same or different agencies
within the Executive Branch) to liability under § 1985(3) was unsettled. See
Fazaga v. Fed. Bureau of Investigation, 965 F.3d 1015, 1059–60 & n.41 (9th Cir.
2020), reversed on other grounds by Fed. Bureau of Investigation v. Fazaga, 142
S. Ct. 1051 (2022).
4. We affirm the dismissal of Plaintiffs’ FTCA claims against the United
States on sovereign immunity grounds. Under 28 U.S.C. § 2680(h), the United
States is not liable for “[a]ny claim arising out of ... malicious prosecution, abuse
of process,” and certain other intentional torts, unless committed by “investigative
or law enforcement officers of the United States Government.” For purposes of
this provision, the term “investigative or law enforcement officer” means “any
officer of the United States who is empowered by law to execute searches, to seize
evidence, or to make arrests for violations of Federal law.” Id. Federal
prosecutors do not qualify as investigative or law enforcement officers here. See
4
Wright v. United States, 719 F.2d 1032, 1034 (9th Cir. 1983) abrogated on other
grounds as recognized by Snyder & Assocs. Acquisitions LLC v. United States, 859
F.3d 1152, 1157 (9th Cir. 2017); Snow-Erlin v. United States, 470 F.3d 804, 808
(9th Cir. 2006) (“If the gravamen of Plaintiff’s complaint is a claim for an
excluded tort under § 2680(h), then the claim is barred.”); Sheehan v. United
States, 896 F.2d 1168, 1172 (9th Cir. 1990) (barring an intentional infliction of
emotional distress (“IIED”) claim under § 2680(h) if “in substance the conduct
relied upon constituted a specifically excluded tort”).
5. We reverse the dismissal of Plaintiffs’ IIED and abuse of process claims
against Probation Defendants based on conduct that occurred before June 24, 2017.
The district court dismissed these claims on the ground that they were untimely.
See Wallace, 549 U.S. at 388 (requiring that the plaintiff have “a complete and
present cause of action” before accrual (citations omitted)); Bennett v. United
States, 44 F.4th 929, 933 (9th Cir. 2022) (citing 28 U.S.C. § 2401(b)) (noting that
the FTCA has a two-year limitations period). The district court held that these
claims were not subject to deferred accrual under Heck v. Humphrey, 512 U.S. 477(1994), which bars a 42 U.S.C. § 1983 claim when a favorable judgment for the
plaintiff would “necessarily imply the invalidity of [the plaintiff’s] conviction or
sentence.” Id. at 487.
5
Here, Plaintiffs allege that Probation Defendants caused “severe and
extremely emotionally distressing conduct” through June 21, 2018, by withholding
exculpatory information and planting evidence to prosecute Manansingh. See
Olivero v. Lowe, 995 P.2d 1023, 1025 (Nev. 2000) (setting forth elements of an
IIED claim in Nevada). They also allege that Probation Defendants’ “fabrication
of evidence” and “alleged planting of evidence” constitute an abuse of process
through “the present day.” See Land Baron Invs. Inc. v. Bonnie Springs Family
LP, 356 P.3d 511, 519 (Nev. 2015) (setting forth elements of an abuse of process
claim in Nevada). The IIED and abuse of process claims are akin to the tort of
malicious prosecution because they rely on alleged fabrication of evidence and
“challenge the validity of the criminal proceedings against [Manansingh].” See
McDonough v. Smith, 139 S. Ct. 2149, 2158 (2019). No conviction (or
invalidation of a conviction) was required to apply Heck and McDonough to these
claims. See Roberts v. City of Fairbanks, 947 F.3d 1191, 1201 n.11 (9th Cir. 2020)
(explaining that the favorable-termination rule and invalidation under Heck are not
“coterminous”).
Accordingly, Plaintiffs did not have a complete cause of action for the IIED
and abuse of process claims until the criminal case against Manansingh was
dismissed on June 21, 2018, whereupon his prosecution was terminated favorably.
See McDonough, 139 S. Ct. at 2156. These claims were therefore timely. The
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district court should determine on remand if Probation Defendants’ conduct prior
to June 24, 2017, establishes plausible claims for IIED and abuse of process.
6. We reverse the dismissal of Plaintiffs’ malicious prosecution claim
against Probation Defendants. The district court dismissed the claim because
Plaintiffs failed to allege that Manansingh was prosecuted in the absence of
probable cause. However, Plaintiffs alleged that Manansingh’s prosecution rested
on fabricated evidence and that the prosecution withheld exculpatory evidence,
which rebuts a finding of probable cause. See Awabdy v. City of Adelanto, 368
F.3d 1062, 1066–68 (9th Cir. 2004) (setting forth elements of a malicious
prosecution claim and stating that a finding of probable cause may be rebutted by
showing the “prosecution was induced by . . . fabricated evidence[ ] or other
wrongful conduct undertaken in bad faith”). The district court also held that the
voluntary dismissal of Manansingh’s indictment was not a favorable termination
sufficient for a malicious prosecution claim. But after the district court’s decision,
the Supreme Court held that a malicious prosecution claim requires a plaintiff
“need only show that the criminal prosecution ended without a conviction.”
Thompson v. Clark, 142 S. Ct. 1332, 1341 (2022) (examining a Fourth Amendment
claim under § 1983 for malicious prosecution). Given that the district court relied
in part on now-abrogated federal common law in forming its decision, the district
court should reconsider the issue in light of Thompson.
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7. We affirm the dismissal of Plaintiffs’ negligence claim based on
untimeliness and sovereign immunity. See Sanchez ex rel. Sanchez v. Wal-Mart
Stores, Inc., 221 P.3d 1276, 1280–81 (Nev. 2009) (setting forth elements of a
negligence claim in Nevada). Plaintiffs allege that Probation Defendants violated
their duty of care “through their use of force and making of arrests.” As previously
stated, accrual of these claims began on April 1, 2016, and are thus time-barred.
See Wallace, 549 U.S. at 391; Bonelli, 28 F.4th at 952. The remaining allegations
either accrued at the time of the negligent acts (rendering the claim untimely) or
are barred by sovereign immunity. See id.; Wright, 719 F.2d at 1034.
Based on the foregoing, we reverse in part the district court’s dismissal of
Plaintiffs’ IIED, abuse of process, and malicious prosecution claims against
Probation Defendants. We remand for limited fact-finding to determine whether
Probation Defendants’ conduct prior to June 24, 2017, establishes plausible claims
for IIED and abuse of process. The district court should also consider, in the first
instance, whether the malicious prosecution claim proceeds in light of Thompson v.
Clark, 142 S. Ct. 1332 (2022). On all other issues, we affirm.2
AFFIRMED in part, REVERSED in part, and REMANDED. Each party
shall bear its own costs on appeal.
2
We will not consider matters that are not “specifically and distinctly”
argued in Plaintiffs’ opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2
(9th Cir. 2009).
8