Kino Bonelli v. Grand Canyon University ( 2022 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KINO BONELLI, No. 20-17415
Plaintiff-Appellant,
D.C. No.
v. 2:20-cv-00143-
SMB
GRAND CANYON UNIVERSITY; GRAND
CANYON EDUCATION INCORPORATED;
GRAND CANYON UNIVERSITY CAMPUS OPINION
POLICE AND PUBLIC SAFETY; BRIAN
MUELLER,
Defendants-Appellees,
and
JOE YAHNER; KENNY BYERS;
MICHAEL MARTINEZ; ROBINSON,
Officer; WASHINGTON, Officer;
BRISTLE, Sergeant; WILEY, Sergeant;
M. GRUPE, Officer; STEVE YOUNG,
Individually, and in their capacity as
officers and agents for Grand Canyon
University and Grand Canyon
University, Inc.,
Defendants.
Appeal from the United States District Court
for the District of Arizona
Susan M. Brnovich, District Judge, Presiding
2 BONELLI V. GRAND CANYON UNIVERSITY
Argued and Submitted November 16, 2021
Phoenix, Arizona
Filed March 11, 2022
Before: Ronald Lee Gilman, * Daniel A. Bress, and
Lawrence VanDyke, Circuit Judges.
Opinion by Judge Bress
SUMMARY **
Civil Rights
The panel affirmed the district court’s dismissal, as time-
barred, of a complaint brought by a former university student
arising from a pair of on-campus incidents for which he was
issued a disciplinary warning.
The panel held that plaintiff’s claims were time-barred.
Plaintiff brought his claims more than two years after he was
injured, and there was no delayed accrual here based on the
university’s later review and retraction of plaintiff’s
disciplinary warning.
The panel rejected plaintiff’s argument that under Heck
v. Humphrey, 512 U.S. 477 (1994), his claims did not accrue
*
The Honorable Ronald Lee Gilman, United States Circuit Judge
for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
BONELLI V. GRAND CANYON UNIVERSITY 3
until the university rescinded his disciplinary warning. The
panel concluded that Heck did not apply to plaintiff’s claims.
Heck relied on the principle that civil tort actions are not
appropriate vehicles for challenging the validity of
outstanding criminal judgments, a principle that applies to
§ 1983 damages actions that necessarily require the plaintiff
to prove the unlawfulness of his conviction or confinement.
Here, however, there was no conviction or confinement.
To the extent that plaintiff sought not the application of
Heck, but a Heck-like rule of delayed accrual, his argument
fared no better. His claims were not properly analogized to
the tort of malicious prosecution, either factually or legally.
Plaintiff knew or had reason to know of his claimed
injuries—alleged seizures of his person and property,
curbing of his First Amendment rights and related
retaliation, and discrimination—when those acts occurred.
Based on the allegations of his complaint, the disciplinary
warning was perhaps an outgrowth of these same incidents.
Whatever facial similarities that might exist between a
university disciplinary process and a state criminal
prosecution, plaintiff had not explained how the core
principles reinforcing the malicious prosecution analogy—
federalism, comity, consistency, and judicial economy—
supported extending this analogy to the collegiate code-of-
conduct inquiry alleged in his complaint.
COUNSEL
Krista R. Hemming (argued), The Hemming Firm, San
Pedro, California, for Plaintiff-Appellant.
Nishan Wilde (argued) and Robert B. Zelms, Zelms Erlich
LLP, Phoenix, Arizona, for Defendants-Appellees.
4 BONELLI V. GRAND CANYON UNIVERSITY
OPINION
BRESS, Circuit Judge:
The plaintiff in this case brought federal civil rights
claims against his former university and its officials
stemming from a pair of on-campus incidents. The question
we consider is whether the plaintiff’s claims were timely. If
the claims accrued when the plaintiff knew or had reason to
know of his alleged injuries, then his claims are untimely
under the applicable two-year statute of limitations. Citing
Heck v. Humphrey, 512 U.S. 477 (1994), however, the
plaintiff argues that his claims did not accrue until the
university withdrew its disciplinary warning against him.
We hold that neither Heck nor a Heck-like rule of delayed
accrual applies here. We therefore affirm the district court’s
dismissal of the plaintiff’s complaint.
I
We recite the facts as alleged in the complaint, which in
some respects provides only limited details. In August 2013,
Kino Bonelli, a Black student, transferred to Grand Canyon
University, or “GCU.” On February 19, 2017, Bonelli
attempted to enter GCU through its main entrance on the day
of a campus event. When a campus public safety officer
asked Bonelli for his student ID, Bonelli held up his ID card
and indicated that he would present the ID to officers
standing up ahead. After a series of heated interactions in
which Bonelli alleges campus police officers acted
belligerently, an officer took Bonelli’s student ID and denied
him entry onto the campus.
About a week later, Alan Boelter, GCU’s Student
Conduct Coordinator, informed Bonelli that he was being
investigated for violating GCU’s code of conduct because he
BONELLI V. GRAND CANYON UNIVERSITY 5
failed to comply with a request for identification. Bonelli
explained that he had shown the officers his ID and that they
had confiscated it. Boelter retrieved Bonelli’s ID from
campus police and returned it to him. There was no further
discussion between Bonelli and GCU about the February 19
incident. Two months later, Bonelli completed his
undergraduate degree and began a graduate program at
GCU.
On July 25, 2017, in the early morning hours, Bonelli
was studying on campus. A GCU public safety officer asked
Bonelli for his ID. Bonelli complied with the request. After
searching Bonelli’s name in a database, the officer
determined Bonelli was enrolled at the school but not living
on campus. The officer informed Bonelli that GCU policy
did not permit commuter students on campus at certain
hours. Bonelli alleges GCU had no such policy, and that he
told the officer he was unaware of the policy. Bonelli
offered to leave, but the officer told Bonelli he could stay.
Bonelli left anyway.
Five days later, GCU’s Campus Safety Supervisor,
Michael Martinez, issued a campus-wide “BOLO,” or “Be
On The Lookout,” for Bonelli. The BOLO stated that, in
February, Bonelli tried to enter GCU despite not being
enrolled there, and that after refusing to show his ID, he
became disorderly and remained on campus without
permission. The BOLO described Bonelli as a former
student who had graduated in 2016 and was known to use
his old student ID to access the school. Bonelli alleges that
the information in the BOLO was false. Bonelli contacted
GCU to get the BOLO lifted so he could attend class, and it
was withdrawn about a week after it was issued.
Several days later, GCU contacted Bonelli and notified
him that he had been reported for violations of the student
6 BONELLI V. GRAND CANYON UNIVERSITY
code of conduct for hostile and disruptive behavior and
failure to comply with a directive from a school official.
Bonelli disputed the allegations and submitted his version of
the February and July 2017 incidents. During the
investigation, Campus Safety Manager Steve Young stood
by the allegations, despite knowing that they were
fabricated.
On August 24, 2017, GCU issued Bonelli an “Official
Disciplinary Warning.” The warning specified that it was
Bonelli’s “first and only warning” and that, “if additional
incidents occur, you are subject to additional measures
including, but not limited to, removal from a course, removal
from your program of study, failing grades, suspension and
expulsion.”
Bonelli was not involved in any further incidents. He
eventually convinced GCU’s Vice President and Dean of
Institutional Effectiveness, Dr. Antoinette Farmer-
Thompson, to investigate his disciplinary warning.
According to Bonelli, Dr. Farmer-Thompson found that
Bonelli was credible and that he had suffered civil rights
violations and racial discrimination. On August 29, 2018,
the disciplinary warning was removed.
Bonelli filed this lawsuit on January 20, 2020. He
alleged that because of the 2017 incidents, he suffered
distress, switched to online classes, was unable to use on-
campus resources, and struggled to find a job after
graduating. Bonelli asserted five causes of action. He
brought the first three under 42 U.S.C. § 1983 for
(1) unreasonable seizure of his person and property in
February 2017, in violation of the Fourth Amendment;
(2) unreasonable detention in July 2017; and (3) violation of
his First Amendment rights stemming from the February
2017 incident, based on the officers allegedly retaliating
BONELLI V. GRAND CANYON UNIVERSITY 7
against Bonelli for his speech and preventing him from
complaining about them by seizing his ID. 1 Bonelli also
alleged racial discrimination under 42 U.S.C. §§ 1981 and
2000d (Counts 4 and 5).
The district court found Bonelli’s claims untimely and
dismissed his complaint with prejudice under Rule 12(b)(6)
of the Federal Rules of Civil Procedure. Bonelli’s appeal is
timely because it was noticed within 180 days of the district
court’s order, and no separate judgment was entered. See
Fed. R. App. P. 4(a)(7)(A); Stephanie-Cardona LLC v.
Smith’s Food & Drug Ctrs., Inc., 476 F.3d 701, 703–05 (9th
Cir. 2007).
II
Reviewing de novo, Curry v. Yelp Inc., 875 F.3d 1219,
1224 (9th Cir. 2017), we hold that Bonelli’s claims were
time-barred. Bonelli brought his claims more than two years
after he was injured, and there is no delayed accrual here
based on the university’s later review and retraction of
Bonelli’s disciplinary warning.
1
Claims under § 1983 can be brought only against state actors. West
v. Atkins, 487 U.S. 42, 48 (1988). GCU is a private university, but
Bonelli alleges that defendants acted under color of state law. Although
defendants argued otherwise below, Bonelli responded, inter alia, that
GCU campus police act under color of state law because they are
certified under Arizona law. The district court did not reach the state
action question, and defendants have not argued on appeal that Bonelli’s
§ 1983 claims fail for this additional reason. We thus assume for
purposes of this appeal that Bonelli has plausibly alleged that defendants
acted under color of state law. See, e.g., Chavez v. Robinson, 12 F.4th
978, 996 n.9 (9th Cir. 2021); Park v. City & County of Honolulu, 952
F.3d 1136, 1141 n.1 (9th Cir. 2020).
8 BONELLI V. GRAND CANYON UNIVERSITY
A
The statute of limitations for federal civil rights claims
under sections 1981, 1983, and 2000(d) is “governed by the
forum state’s statute of limitations for personal injury
actions.” Bird v. Dep’t of Human Servs., 935 F.3d 738, 743
(9th Cir. 2019) (per curiam) (quotation marks and alterations
omitted); see also Cholla Ready Mix, Inc. v. Civish, 382 F.3d
969, 974 (9th Cir. 2004). The parties agree that, under
Arizona law, the limitations period for each of Bonelli’s
claims is two years. See Ariz. Rev. Stat. § 12-542.
Although “state law determines the length of the
limitations period, federal law determines when a civil rights
claim accrues.” Bird, 935 F.3d at 743 (quotation marks
omitted); see also Wallace v. Kato, 549 U.S. 384, 388 (2007)
(“[T]he accrual date of a § 1983 cause of action is a question
of federal law that is not resolved by reference to state law.”).
The general rule is that a civil rights claim accrues under
federal law “when the plaintiff knows or has reason to know
of the injury which is the basis of the action.” Lukovsky v.
City & County of San Francisco, 535 F.3d 1044, 1048 (9th
Cir. 2008) (quotation marks omitted); see also Bonneau v.
Centennial Sch. Dist. No. 28J, 666 F.3d 577, 581 (9th Cir.
2012) (describing this as the “general common law
principle”).
We have held that this traditional accrual rule applies to
the constitutional and statutory violations that Bonelli asserts
here. For Fourth Amendment violations, “federal law holds
that a cause of action for illegal search and seizure accrues
when the wrongful act occurs . . . even if the person does not
know at the time that the search was warrantless.” Belanus
v. Clark, 796 F.3d 1021, 1026 (9th Cir. 2015) (citation
omitted); see also Klein v. City of Beverly Hills, 865 F.3d
1276, 1279 (9th Cir. 2017) (“In a traditional Fourth
BONELLI V. GRAND CANYON UNIVERSITY 9
Amendment case, the plaintiff is placed on constructive
notice of the illegal conduct when the search and seizure
takes place.”). By his allegations, Bonelli knew that he was
wrongfully detained, and his student ID wrongfully seized,
on the days that each incident occurred. The statute of
limitations on Counts 1 and 2, both § 1983 claims premised
on Fourth Amendment violations, thus began to run on
February 19, 2017 and July 25, 2017, respectively.
We have likewise applied the traditional accrual rule to
§ 1983 claims alleging First Amendment violations,
including First Amendment retaliation. See, e.g., Canatella
v. Van De Kamp, 486 F.3d 1128, 1133–34 (9th Cir. 2007)
(explaining that a First Amendment claim accrued at the
time of the alleged injury); Maldonado v. Harris, 370 F.3d
945, 954–56 (9th Cir. 2004); Western Ctr. for Journalism v.
Cederquist, 235 F.3d 1153, 1156–57 (9th Cir. 2000). Thus,
Bonelli’s Count 3 § 1983 claim alleging First Amendment
violations also accrued on February 19, 2017.
Counts 4 and 5, respectively, allege racial discrimination
under § 1981, which forbids racial discrimination in
contractual relationships, and § 2000d, which forbids such
discrimination “under any program or activity receiving
Federal financial assistance.” 2 We have explained that the
usual accrual rule—that a claim “accrues under federal law
when the plaintiff knows or has reason to know of the actual
injury”—governs § 1981 claims alleging racial
2
Defendants argue that Bonelli forfeited any challenge to the
dismissal of his § 1981 and § 2000d claims because he did not
specifically discuss them in his opening brief. But Bonelli’s arguments
apply equally across all his claims, and his race-discrimination claims
arise out of the same February and July 2017 incidents. There is no
prejudice to the defendants in treating these claims as preserved, see Lott
v. Mueller, 304 F.3d 918, 925 (9th Cir. 2002), and we thus address them.
10 BONELLI V. GRAND CANYON UNIVERSITY
discrimination, as well as federal civil rights claims
generally. Lukovsky, 535 F.3d at 1048. Lukovsky thus
confirms that Bonelli’s § 1981 and § 2000d claims also
accrued at the time of his alleged injury. Although Bonelli
is not specific as to GCU’s allegedly discriminatory actions,
he does not claim that GCU engaged in discriminatory acts
beyond August 24, 2017. And there is no dispute that
Bonelli was aware of his alleged injuries by that date.
We thus conclude that Bonelli had “complete and present
cause[s] of action” by August 24, 2017, at the latest. Pouncil
v. Tilton, 704 F.3d 568, 574 (9th Cir. 2012). But Bonelli did
not file his complaint until January 20, 2020, more than two
years later. Under traditional accrual principles, his action
is untimely.
B
Resisting this, Bonelli invokes Heck to argue that his
claims did not accrue until August 29, 2018, when GCU
rescinded Bonelli’s disciplinary warning. But we conclude
that Heck does not apply to Bonelli’s claims.
In Heck, the Supreme Court held that “when a state
prisoner seeks damages in a § 1983 suit, the district court
must consider whether a judgment in favor of the plaintiff
would necessarily imply the invalidity of his conviction or
sentence; if it would, the complaint must be dismissed unless
the plaintiff can demonstrate that the conviction or sentence
has already been invalidated.” Heck, 512 U.S. at 487. In
other words, unless its conditions are satisfied, the “Heck
bar” prevents a prisoner from bringing a § 1983 claim at all.
See id.
Heck further explained, as a corollary, that “a § 1983
cause of action for damages attributable to an
BONELLI V. GRAND CANYON UNIVERSITY 11
unconstitutional conviction or sentence does not accrue until
the conviction or sentence has been invalidated.” Id. at 489–
90. Here Heck analogized to the common law tort of
malicious prosecution, one element of which “is termination
of the prior criminal proceeding in favor of the accused.” Id.
at 484. It is this aspect of Heck that Bonelli latches onto. He
argues we should apply Heck’s deferred accrual rule so that
his claims did not accrue until GCU rescinded his
disciplinary warning, which was less than two years before
he filed suit.
Bonelli’s reliance on Heck is misplaced. Heck relied on
“the hoary principle that civil tort actions are not appropriate
vehicles for challenging the validity of outstanding criminal
judgments,” a principle that “applies to § 1983 damages
actions that necessarily require the plaintiff to prove the
unlawfulness of his conviction or confinement.” Id. at 486.
Here, however, there was no conviction or confinement. As
we have explained, “[w]here there is no ‘conviction or
sentence’ that may be undermined by a grant of relief to the
plaintiffs, the Heck doctrine has no application.” Martin v.
City of Boise, 920 F.3d 584, 613 (9th Cir. 2019); see also
Roberts v. City of Fairbanks, 947 F.3d 1191, 1198 (9th Cir.
2020) (“The absence of a criminal judgment here renders the
Heck bar inapplicable; the plain language of the decision
requires the existence of a conviction in order for a § 1983
suit to be barred.”).
The Supreme Court’s decision in Muhammad v. Close,
540 U.S. 749 (2004) (per curiam), is instructive. In that case,
the Court considered whether Heck applied to a challenge to
an inmate’s prison disciplinary proceedings “that
threaten[ed] no consequence for his conviction or the
duration of his sentence.” Id. at 751. Muhammad held that
Heck did not apply in those circumstances. Because the
12 BONELLI V. GRAND CANYON UNIVERSITY
prisoner was not challenging “the fact or duration of [his]
underlying sentence,” “[h]is § 1983 suit challenging [the
disciplinary proceedings] could not therefore be construed
as seeking a judgment at odds with his conviction or with the
State’s calculation of time to be served in accordance with
the underlying sentence.” Id. at 754–55.
Bonelli cannot show how his § 1983 claims would be at
odds with any conviction or sentence. By its terms, Heck
does not apply here. Cf. Wilson v. Ill. Dep’t of Fin. & Pro.
Regul., 871 F.3d 509, 512 (7th Cir. 2017) (holding that Heck
does not extend to professional disciplinary proceedings).
C
To the extent that Bonelli seeks not the direct application
of Heck, but a Heck-like rule of delayed accrual, his
argument fares no better. If a plaintiff has a “complete and
present cause of action,” his claim accrues under federal law.
Pouncil, 704 F.3d at 574. We cannot brush off that basic
precept and elongate the limitations period on our own.
Bonelli does not advocate that we do so, at least not directly.
Instead, Bonelli’s more subtle reliance on Heck consists of
attempting to analogize his claims to the tort of malicious
prosecution, which Heck also invoked by way of analogy.
See 512 U.S. at 484–85. Malicious prosecution has a
favorable-termination requirement, id. at 485–86, and
Bonelli suggests that his claims likewise required the
favorable termination of his university disciplinary warning.
The problem for Bonelli is that his claims are not
properly analogized to the tort of malicious prosecution,
either factually or legally. Sections 1981 and 2000d protect
against racial discrimination; neither of these claims sounds
in malicious prosecution. The same is true with Bonelli’s
§ 1983 claims. None of Bonelli’s claims depended on GCU
BONELLI V. GRAND CANYON UNIVERSITY 13
rescinding the disciplinary warning. Bonelli knew or had
reason to know of his claimed injuries—alleged seizures of
his person and property, curbing of his First Amendment
rights and related retaliation, and discrimination—when
those acts occurred. Based on the allegations of his
complaint, the disciplinary warning was perhaps an
outgrowth of these same incidents. But the tort of malicious
prosecution “challenge[s] the integrity of criminal
prosecutions undertaken ‘pursuant to legal process.’”
McDonough v. Smith, 139 S. Ct. 2149, 2156 (2019) (quoting
Heck, 512 U.S. at 484). And that is not the nature of
Bonelli’s claims.
Setting aside that this lawsuit is not about criminal
prosecutions, Bonelli challenges not the process that was
brought to bear against him through the disciplinary
warning, but discrete incidents that allegedly produced
immediate injuries. It is not apparent that any of his claims
would necessarily imply the invalidity of his disciplinary
warning, either. See Heck, 512 U.S. at 487; see also Eidson
v. State of Tenn. Dep’t of Children’s Servs., 510 F.3d 631,
639–40 (6th Cir. 2007) (holding that an analogy to Heck and
malicious prosecution was inapt because plaintiff’s claims
were “not dependent on a determination” that the findings in
a juvenile-court proceeding were wrong). Bonelli thus
invokes GCU’s disciplinary warning process not as a legal
impediment that prevented him from bringing suit, but as a
fortuity that should allow him to delay bringing his claims.
We do not think the analogy to malicious prosecution can be
deployed in that manner. “Were it otherwise, the statute
would begin to run only after a plaintiff became satisfied that
he had been harmed enough, placing the supposed statute of
repose in the sole hands of the party seeking relief.”
Wallace, 549 U.S. at 391.
14 BONELLI V. GRAND CANYON UNIVERSITY
Of course, even in a “classic malicious prosecution”
situation, the injury “first occurs as soon as legal process is
brought to bear on a defendant.” McDonough, 139 S. Ct. at
2160. And in that context the law steps in and does provide
for a later accrual only upon the favorable termination of the
prosecution. Id. at 2156. But the reason for that customized
accrual rule is important, and it shows why Bonelli’s
attempted analogy to malicious prosecution is unpersuasive.
As the Supreme Court explained in McDonough, we
impose a favorable-termination requirement for malicious
prosecution based on “pragmatic concerns with avoiding
parallel criminal and civil litigation over the same subject
matter and the related possibility of conflicting civil and
criminal judgments.” Id. at 2157; see also W. Keeton, D.
Dobbs, R. Keeton & D. Owen, Prosser & Keeton on Law of
Torts § 119, p. 874 (5th ed. 1984). Those “concerns track
[the] ‘similar concerns for finality and inconsistency that
have motivated th[e] Court to refrain from multiplying
avenues for collateral attack on criminal judgments through
civil tort vehicles such as § 1983.’” McDonough, 139 S. Ct.
at 2157 (quoting Heck, 512 U.S. at 484).
Whatever facial similarities that might exist between a
university disciplinary process and a state criminal
prosecution, Bonelli has not explained how the “core
principles” reinforcing the malicious prosecution analogy—
“federalism, comity, consistency, and judicial economy,” id.at 2158—support extending this analogy to the collegiate
code-of-conduct inquiry alleged in his complaint. Bonelli
cites no case taking that approach. Cf. Manuel v. City of
Joliet, Ill., 137 S. Ct. 911, 920–21 (2017) (explaining that
courts will not always “adopt wholesale the rules that would
apply in a suit involving the most analogous tort” because
“[c]ommon-law principles are meant to guide rather than
BONELLI V. GRAND CANYON UNIVERSITY 15
control the definition of § 1983 claims, serving ‘more as a
source of inspired examples than of prefabricated
components’” (quoting Hartman v. Moore, 547 U.S. 250,
258 (2006))). If anything, Bonelli effectively suggests that
he was required to exhaust GCU’s internal processes before
pursuing his § 1983 claim. But it is “the settled rule” that
“exhaustion of state remedies is not a prerequisite to an
action under . . . § 1983.” Pakdel v. City & County of S.F.,
141 S. Ct. 2226, 2230 (2021) (quoting Knick v. Township of
Scott, 139 S. Ct. 2162, 2167 (2019)).
If Bonelli had filed suit during the pendency of GCU’s
review of his disciplinary warning, the district court could
have considered whether to stay the case pending completion
of that process. See, e.g., Doe v. Univ. of Ky., 860 F.3d 365,
367–68 (6th Cir. 2017); see also Wallace, 549 U.S. at 393–
94. But Bonelli’s position on appeal would mean he would
have no cognizable § 1983 claim at all, unless and until that
process terminated in his favor. See McDonough, 139 S. Ct.
at 2158 & n.7; Heck, 512 U.S. at 486–87. Although that
would conveniently prevent Bonelli’s own claims from now
being untimely, it would likely forestall many other § 1983
claims, without adequate legal justification. And it would
do so in a context much different than Heck or McDonough.
Here, the implication of Bonelli’s argument is that if his
university disciplinary warning had not been rescinded (i.e.,
favorably terminated), he might have no further recourse at
all. We do not think the malicious prosecution analogy can
be stretched to impose such a hard bargain in the context
before us.
* * *
16 BONELLI V. GRAND CANYON UNIVERSITY
Because plaintiff’s suit was untimely, the judgment of
the district court is
AFFIRMED.