Bilal Yasin v. Chad Coulter

FILED
NOT FOR PUBLICATION SEP 12 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BILAL ABDUL YASIN, No. 10-15093
Plaintiff - Appellant, D.C. No. 2:08-cv-02299-FCD-
GGH
v.
CHAD COULTER; ALBA ESPINOZA; MEMORANDUM*
JOE GALVAN; ROMAN ALVAREZ; and
DOES 1 THROUGH 20, INCLUSIVE,
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Frank C. Damrell, Senior District Judge, Presiding
Argued and Submitted August 11, 2011
San Francisco, California
Before: O’SCANNLAIN, GRABER, and BEA, Circuit Judges.
Plaintiff Bilal Abdul Yasin appeals the district court’s grant of summary
judgment on his claims against Defendant Chad Coulter, an agent of the Federal
Bureau of Investigation ("FBI"). Plaintiff also appeals the district court’s
dismissal—for failure to serve process—of his claims against Defendants Roman
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Alvarez, Alba Espinoza, and Joe Galvan ("ABC Defendants"), all of whom are
agents of the California Department of Alcoholic Beverage Control ("ABC").
Reviewing the grant of summary judgment de novo, Alexander Mfg. Emp. Stock
Ownership Plan & Trust v. Ill. Union Ins. Co., 560 F.3d 984, 986 (9th Cir. 2009),
and the dismissal for abuse of discretion, Oyama v. Sheehan (In re Sheehan), 253
F.3d 507, 511 (9th Cir. 2001), we affirm.
A. Plaintiff’s Claims Against Defendant Coulter
With regard to his Fifth Amendment due process claim, Plaintiff argues for
the first time on appeal that Defendant Coulter withheld material, exculpatory
evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963). Although the
complaint refers to "due process," it makes no mention of Defendant’s allegedly
withholding exculpatory evidence. Generic references to "due process" do not
place a defendant sufficiently on notice of a Brady claim, especially when the facts
that were alleged point only to discriminatory treatment. See Ashcroft v. Iqbal,
129 S. Ct. 1937, 1949 (2009) ("A pleading that offers labels and conclusions . . .
will not do. Nor does a complaint suffice if it tenders naked assertions devoid of
further factual enhancement." (internal quotation marks, citation, and brackets
omitted)). Because Plaintiff failed to raise his due process claim in the district
court, we dismiss it as waived. See, e.g., Costanich v. Dep’t of Soc. & Health
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Servs., 627 F.3d 1101, 1117 (9th Cir. 2010) (holding that the plaintiff waived her
claim by failing to raise it below).
Plaintiff’s other claims against Defendant Coulter are time-barred. Because
Defendant Coulter is a federal agent, Plaintiff brings his constitutional claims
pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics,
403 U.S. 388 (1971). The statute of limitations for a Bivens action is defined by
the relevant state’s personal injury statute. Van Strum v. Lawn, 940 F.2d 406, 410
(9th Cir. 1991). In California, the applicable statute of limitations is two years.
Cal. Civ. Proc. Code § 335.1. "‘Although state law determines the length of the
limitations period, federal law determines when a civil rights claim accrues.’"
Olsen v. Idaho State Bd. of Med., 363 F.3d 916, 926 (9th Cir. 2004) (quoting
Morales v. City of Los Angeles, 214 F.3d 1151, 1153–54 (9th Cir. 2000)). Under
federal law, a claim accrues "‘when the plaintiff knows or has reason to know of
the injury which is the basis of the action.’" Id. (quoting TwoRivers v. Lewis, 174
F.3d 987, 991 (9th Cir. 1999)).
Plaintiff’s Fourth Amendment claims are barred by the statute of limitations
because they accrued on the date of the searches and the arrest in 2005, all of
which occurred more than two years before Plaintiff filed his complaint on
September 29, 2008. Plaintiff does not dispute that, on the day of the searches and
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his arrest, he had reason to know of his purported injuries, even if he had yet to
learn of Defendant’s allegedly discriminatory motives. See Whren v. United
States, 517 U.S. 806, 813 (1996) ("Subjective intentions play no role in ordinary,
probable-cause Fourth Amendment analysis."). We therefore affirm the district
court’s grant of summary judgment on those claims.
Also time-barred is Plaintiff’s equal protection claim premised on his
allegation that Defendant Coulter caused the criminal prosecution by pursuing a
discriminatory investigation. In Awabdy v. City of Adelanto, 368 F.3d 1062,
1071–72 (9th Cir. 2004), we held that a plaintiff may prevail on a "direct" equal
protection claim against non-prosecutors by proving that "[the defendant]
purposefully caused the state to institute proceedings against [the plaintiff] because
of his race or ethnicity." Here, Plaintiff knew that Defendant caused the
prosecution when it was initiated in 2005, more than two years before he filed his
complaint.
In arguing that his claim accrued only when the prosecution was terminated
in 2007, Plaintiff mistakenly relies on our decisions governing the accrual of
malicious prosecution claims. Unlike a claim for malicious prosecution, an equal
protection claim does not require, as an essential element, the termination of the
criminal proceedings in the accused’s favor. Compare id. (stating the elements of
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an equal protection claim), with Heck v. Humphrey, 512 U.S. 477, 484 (1994)
(addressing the favorable termination element of a malicious prosecution claim).
Further, we can discern no principled reason why Plaintiff’s claim should have
accrued at the termination of the criminal proceedings given that he knew
Defendant’s investigation caused the prosecution when it was initiated.
Moreover, even if we assume, without deciding, that Plaintiff’s equal
protection claim did not accrue until he had reason to know of Defendant’s
allegedly discriminatory purpose, it would still be time-barred. During the
criminal proceedings, Plaintiff joined a motion seeking to dismiss the prosecution
as discriminatory. Presumably, when joining that motion on January 17, 2006,
Plaintiff had a good faith belief that the prosecution was motivated by his race and
nationality. Thus, Plaintiff had reason to know of Defendant’s allegedly improper
motives more than two years before he filed his complaint. We therefore affirm
the district court’s grant of summary judgment on Plaintiff’s equal protection
claim.
Plaintiff’s conspiracy claim is also time-barred. Although Plaintiff argues
that his conspiracy claim did not accrue until he learned, during the limitations
period, of the Department of Homeland Security’s involvement in the
investigation, that information is irrelevant to whether there was a conspiracy
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between Defendant Coulter, who is an FBI agent, and the ABC Defendants.
Further, Plaintiff knew that both the FBI and the ABC were involved in his
investigation and arrest no later than July 11, 2006, when Defendant Espinoza
testified in Superior Court regarding the FBI’s participation. Thus, Plaintiff’s
conspiracy claim accrued more than two years before he filed his complaint, and
we therefore affirm the grant of summary judgment on that claim.
B. Plaintiff’s Claims Against the ABC Defendants
Reviewing for abuse of discretion, In re Sheehan, 253 F.3d at 511, we affirm
the district court’s dismissal of Plaintiff’s claims against the ABC Defendants. In
its order dated September 9, 2009, the district court granted Plaintiff a 90-day
extension to serve the ABC Defendants. That order clearly stated that, if Plaintiff
failed to effect service within that time, the court would dismiss the action.
Plaintiff failed to meet the deadline, and he filed no requests for an additional
extension. As a result, the district court properly enforced its order by dismissing
Plaintiff’s claims.
C. Plaintiff’s Motion for a Continuance
Reviewing for abuse of discretion, Visa Int’l Serv. Ass’n v. Bankcard
Holders of Am., 784 F.2d 1472, 1475–76 (9th Cir. 1986), we hold that the district
court properly denied Plaintiff’s motion for a continuance pursuant to Federal Rule
6
of Civil Procedure 56(f).1 At the time the district court ruled on Plaintiff’s motion,
Rule 56(f) provided, in pertinent part:
If a party opposing the motion shows by affidavit that, for
specified reasons, it cannot present facts essential to justify its
opposition, the court may:
(1) deny the motion;
(2) order a continuance to enable affidavits to be obtained,
depositions to be taken, or other discovery to be undertaken; or
(3) issue any other just order.
"A party requesting a continuance pursuant to Rule 56(f) must identify by affidavit
the specific facts that further discovery would reveal, and explain why those facts
would preclude summary judgment." Tatum v. City of San Francisco, 441 F.3d
1090, 1100 (9th Cir. 2006).
Plaintiff requested the continuance so that he might depose Defendant
Coulter to discover why and when the investigation was initiated. Defendant
Coulter’s motives, however, are immaterial to whether Plaintiff’s claims are time-
1
Rule 56 has been amended since the district court rendered its decision in
2009. The text of Rule 56(f) was simplified and now appears as Rule 56(d). See
Fed. R. Civ. P. 56, advisory committee’s notes (2010 amends.) ("Subdivision (d)
carries forward without substantial change the provisions of former subdivision
(f).").
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barred. Also, because the investigation necessarily preceded Plaintiff’s arrest in
2005, the precise date of its initiation is likewise immaterial. See id. (holding that
the specific facts to be obtained through discovery must be material). Accordingly,
the district court did not abuse its discretion by denying Plaintiff’s request for a
continuance.
AFFIRMED.
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