Chandan Manansingh v. USA

Opinion

UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT NOV 6 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS CHANDAN MANANSINGH; ANGELA No. 21-16192 NAIRNS, D.C. No. 2:20-cv-01139-DWM Plaintiffs-Appellants, District of Nevada, Las Vegas v. ORDER UNITED STATES OF AMERICA; SHAWN MUMMEY; ROBERT AGUINO; TODD FREDLUND; STEVE GOLDNER; CHAD BOARDMAN,

Defendants-Appellees.

Before: GRABER, CLIFTON, and BENNETT, Circuit Judges.

The panel has unanimously voted to deny Appellants’ petition for rehearing.

Judge Bennett votes to deny the petition for rehearing en banc, and Judge Clifton

and Judge Graber so recommend. The full court has been advised of the petition

for rehearing en banc, and no judge of the court has requested a vote on it. Fed. R.

App. P. 35. Appellants’ petition for rehearing and rehearing en banc (Docket Entry

No. 53) is DENIED.

The government’s petition for panel rehearing (Docket No. 60) is DENIED.

The memorandum disposition filed on March 28, 2023, is hereby amended

as follows:

Page 5, lines 9-10: Replace the first sentence of the paragraph “5” with: <5. We reverse the dismissal of Plaintiffs’ IIED and abuse of process claims against the United States based on conduct that occurred before June 24, 2017.>

Page 7, line 4: Delete the words

Page 8, lines 11-12: Delete the words

The amended memorandum disposition will be filed concurrently with this order.

No further petition for rehearing or rehearing en banc may be filed.

2 NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 6 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT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. AMENDED MEMORANDUM*

UNITED STATES OF AMERICA; et al.,

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

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 the United States 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

6 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. 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.

7 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. 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).