Emanuel Finch, Sr. v. K. Whitehead

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 30, 2020
• Docket: 19-35961
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 30 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

EMANUEL L. FINCH, Sr., No. 19-35961

Plaintiff-Appellant, D.C. No. 3:19-cv-05675-RBL

v. MEMORANDUM* K. RICHARD WHITEHEAD; DEPARTMENT OF ASSIGNED COUNSEL,

Defendants-Appellees.

Appeal from the United States District Court for the Western District of Washington Ronald B. Leighton, District Judge, Presiding

Submitted October 26, 2020**

Before: McKEOWN, RAWLINSON, and FRIEDLAND, Circuit Judges.

Washington state prisoner Emanuel L. Finch, Sr. appeals pro se from the

district court’s judgment dismissing his action alleging federal and state law

claims. We have jurisdiction under 28 U.S.C. § 1291. We review de novo a

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). dismissal under Federal Rule of Civil Procedure 12(b)(6). Lukovsky v. City &

County of San Francisco, 535 F.3d 1044, 1047 (9th Cir. 2008). We affirm.

The district court properly dismissed Finch’s federal claims under 42 U.S.C.

§§ 1981, 1985, and 1986, and state law claims, because Finch failed to file these

claims within the applicable statutes of limitations. See 42 U.S.C. § 1986 (one-

year statute of limitations); Wash. Rev. Code § 4.16.080 (three-year statute of

limitations for personal injury actions); Donoghue v. County of Orange, 848 F.2d

926, 930 (9th Cir. 1987) (absent a federal statute of limitations, Civil Rights Act

claims are governed by forum state’s statute of limitations for personal injury

actions); see also Bagley v. CMC Real Estate Corp., 923 F.2d 758, 761-62 (9th

Cir. 1991) (a claim accrues when the plaintiff first learns of the injury giving rise

to the claim).

The district court properly dismissed Finch’s 42 U.S.C. § 1983 claims as

barred by Heck v. Humphrey, 512 U.S. 477 (1994), because success on these

claims would necessarily imply the invalidity of his conviction or sentence, and

Finch failed to allege facts sufficient to show that his conviction had been

invalidated. See Wilkinson v. Dotson, 544 U.S. 74, 78 (2005) (a prisoner in state

custody cannot use a § 1983 action to challenge the fact or duration of his

2 19-35961 confinement but must instead seek federal habeas corpus relief). The dismissal of

these claims as Heck-barred should be without prejudice. See Trimble v. City of

Santa Rosa, 49 F.3d 583, 585 (9th Cir. 1995) (dismissals under Heck are without

prejudice). We affirm the district court’s dismissal of these claims, but remand to

the district court with instructions to amend the judgment to reflect that the

dismissal of these claims is without prejudice.

The district court did not abuse its discretion by dismissing Finch’s state law

claims rather than remanding his state law claims to state court. See Satey v.

JPMorgan Chase & Co., 521 F.3d 1087, 1090-91 (9th Cir. 2008) (setting forth

standard of review and explaining that the district court has discretion to retain

supplemental jurisdiction over state law claims even if the federal law claims are

dismissed).

We reject as unsupported by the record Finch’s contentions that the district

court was biased, deprived him of his constitutional rights, and conspired with

defendants.

Finch’s motion for dismissal (Docket Entry No. 19) is denied.

The Clerk will provide Finch with a courtesy copy of the Federal Rules of

Appellate Procedure.

3 19-35961 AFFIRMED; REMANDED with instructions to amend the judgment.

4 19-35961