Joseph Rollin v. Christine Cook

FILED
NOT FOR PUBLICATION JAN 23 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JOSEPH PIERRE ROLLIN, No. 10-16783
Plaintiff - Appellant, D.C. No. 3:09-cv-03579-SI
v.
MEMORANDUM *
CHRISTINE COOK; MICHAEL
FINAMORE; CHESTER JARBOE; ROY
HORTON; BETTY HENDERSON;
KENNETH HENDERSON,
Defendants - Appellees.
Appeal from the United States District Court
for the Northern District of California
Susan Illston, District Judge, Presiding
Argued and Submitted October 13, 2011
San Francisco, California
Before: HUG, KLEINFELD, and W. FLETCHER, Circuit Judges.
In various orders, the district court dismissed all but one of Plaintiff-
Appellant Joseph Pierre Rollin’s § 1983 claims as untimely, granted Defendant-
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Appellee Christine Cook qualified immunity on Rollin’s sole remaining § 1983
claim, and denied Rollin attorney’s fees for Defendants-Appellees Betty and
Kenneth Henderson’s refusal to waive service of process. Rollin appeals all the
district court’s orders. We review a dismissal based on the statute of limitations de
novo. See Ventura Mobilehome Cmty. Owners Ass’n v. City of San Buenaventura,
371 F.3d 1046, 1050 (9th Cir. 2004). We review a grant of summary judgment
based on qualified immunity de novo. See Stoot v. City of Everett, 582 F.3d 910,
918 (9th Cir. 2009). We review the denial of costs for a defendant’s failure to
waive service for abuse of discretion. See Estate of Darulis v. Garate, 401 F.3d
1060, 1063 (9th Cir. 2005).
1. Dismissal Orders
The statute of limitations is two years for claims accruing after January 1,
2003, and one year for claims accruing prior to that date. See Cal. Code Civ. Proc.
§ 335.1; see also Maldonado v. Harris, 370 F.3d 945, 954-55 (9th Cir. 2004),
Wilson v. Garcia, 471 U.S. 261, 275 (1985) (requiring application of single statute
of limitations for all § 1983 claims).
We agree with the district court on the accrual date of Counts II-V. The
claims related to Rollin’s false arrest (Counts II and IV) accrued on May 19, 2003,
the date Rollin was arraigned and bound over for trial. See Wallace v. Kato, 549
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U.S. 384, 391-92 (2007). Cal. Code Civ. Proc. § 352.1 tolled the statute of
limitations for a maximum of two years, i.e., until May 19, 2005. The statute ran
until the appellate court reversed Rollin’s judgment on December 13, 2006, almost
one year and seven months later. After a jury acquitted Rollin on January 15,
2008, he did not file his complaint until almost one year and seven months later, on
August 5, 2009. Count III, the count alleging illegal search and seizure, accrued on
the search date, March 21, 2002, so the one-year statute of limitation applies. See
Venegas v. Wagner, 704 F.2d 1144, 1146 (9th Cir. 1983). Counts II, III, and IV
are thus untimely. Rollin’s contention that § 352.1 tolled the limitations period
while he was incarcerated after entry of judgment contradicts the text of the statute
and well-settled precedents of California law. See Cal. Code. Civ. Proc. § 352.1
(requiring person to be incarcerated “at the time the cause of action accrued” for
tolling to apply); Cal. Savings & Loan Soc. v. Culver, 127 Cal. 107, 110-11 (1899).
Count V relating to the seizure of Rollin’s property on March 25, 2002 is
also untimely. Rollin knew or should have known of the seizure by the preliminary
hearing on November 23, 2003, at the latest. See Maldonado, 370 F.3d at 955.
After accounting for tolling, we agree with the district court’s calculation and so
affirm dismissal of Count V as untimely.
2. Summary Judgment
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With respect to Count I, we agree with the district court that Cook’s conduct
“[did] not violate clearly established statutory or constitutional rights of which a
reasonable person would have known.” Pearson v. Callahan, 555 U.S. 223, 231
(2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). We conclude
that at the time of Cook’s alleged violation of Rollin’s Fifth Amendment rights in
April 2003, it would not have been clear to a reasonable police officer that Cook’s
conduct was unlawful. See Shedelbower v. Estelle, 885 F.2d 570, 574 (9th Cir.
1989), cert. denied, 498 U.S. 1092 (1991); Missouri v. Seibert, 542 U.S. 600
(2004) .
3. Attorney’s Fees
Rule 4 requires a defendant to pay reasonable attorney’s fees if the
defendant refuses to sign and return a waiver of service requested by plaintiff
without good cause and the plaintiff files a motion to collect any service-related
expenses. See Fed. R. Civ. P. 4(d)(2). The district court erred in holding that the
Hendersons’ payment of service expenses after Rollin’s filing of the motion
rendered the motion moot, and that Rollin’s attorney could have taken “additional
steps” to avoid having to effect formal service of process.
Once a plaintiff has sent a valid request for a waiver of service of process,
the burden shifts to the defendant to avoid imposing unnecessary costs on the
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plaintiff. Fed. R. Civ. P. 4(d)(1). Absent a showing of good cause, a defendant
who fails to execute a valid waiver “must” pay the costs of formal service and any
costs, including reasonable attorney’s fees, of any motion “required” to collect
service expenses. Fed. R. Civ. P. 4(d)(2). Because the Hendersons failed to waive
service and also failed to pay the service expenses until after Rollin had filed a
motion to collect them, they also must, absent a showing of good cause, pay
Rollin’s reasonable attorney’s fees associated with these failures. The district court
made no finding of good cause, which, in any case, should be “rare.” See Estate of
Darulis, 401 F.3d at 1064. Accordingly, we vacate the district court’s order
denying Rollin attorney’s fees and remand for additional proceedings consistent
with this disposition.
For the foregoing reasons, dismissal and summary judgment are
AFFIRMED, but the order denying attorney’s fees is VACATED AND
REMANDED.
Each party shall bear its own costs on appeal.
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