Jeffrey Faulkner v. David Shinn

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 18, 2024
• Docket: 22-16841
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 18 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JEFFREY JAMES FAULKNER, No. 22-16841

Plaintiff-Appellant, D.C. No. 2:22-cv-01734-DLR-ESW v.

DAVID SHINN, Director, ADOC; MEMORANDUM* CHARLES L. RYAN, named as Charles Ryan, retired Director of ADOC,

Defendants-Appellees.

Appeal from the United States District Court for the District of Arizona Douglas L. Rayes, District Judge, Presiding

Argued and Submitted April 2, 2024 San Francisco, California

Before: HURWITZ and JOHNSTONE, Circuit Judges, and MORRIS,** District Judge.

As mandated by then-existing Arizona law, Jeffrey Faulkner’s 1996

conviction, entered after a plea agreement, required the Arizona Department of

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Brian M. Morris, Chief Judge for the District of Montana, sitting by designation. Corrections, Rehabilitation and Reentry (“ADOC”) to deduct thirty percent of his

prison work wages to satisfy a restitution judgment. A 2007 amendment to the

governing statute, however, subjected all money in a prisoner’s account to

withdrawal to pay restitution, including not only prison work wages but also money

received from other sources, including family and friends. 2007 Ariz. Sess. Laws,

ch. 140, § 1 (1st Reg. Sess.) (codified at A.R.S. § 31-230). ADOC withdrew funds

from Faulkner’s account in accordance with its interpretation of the amended statute

after it became effective in 2008.

On October 12, 2022, Faulkner filed a pro se 42 U.S.C. § 1983 action alleging

that ADOC violated the terms of his plea agreement, the Ex Post Facto clause, and

the Eighth and Fourteenth Amendments by withdrawing funds under the new statute.

Screening under the Prison Litigation Reform Act, 28 U.S.C. § 1915A(a), the district

court dismissed the complaint, finding that Faulker’s claims accrued when the

amended statute became effective in 2008 and thus were barred by the applicable

two-year statute of limitations.

We have jurisdiction of Faulkner’s timely appeal under 28 U.S.C. § 1291. We

vacate the judgment of the district court and remand.

1. The parties now agree that each deduction from Faulkner’s account was a

discrete act, see Pouncil v. Tilton, 704 F.3d 568, 579 (9th Cir. 2012), and that claims

concerning deductions made on or after October 12, 2020, are therefore timely.

2 Following the general rule that “a federal appellate court does not consider an issue

not passed upon below,” Singleton v. Wulff, 428 U.S. 106, 120 (1976), we decline

ADOC’s invitation to address the merits of Faulkner’s claims in the first instance.

Rather, we vacate the judgment below and remand to allow the district court to do

so.

2. Faulkner made conflicting statements in his filings for injunctive relief

about when he first discovered or should have discovered deductions made before

October 12, 2020, under the amended statute. Because this case was resolved at

screening based on the district court’s conclusion that all claims asserted were

untimely, that court did not address the discovery issue, and can do so on remand.

See Gregg v. Hawaii, Dep’t of Pub. Safety, 870 F.3d 883, 889 (9th Cir. 2017)

(finding district court erred in denying leave to amend because date plaintiff learned

of injury was fact intensive inquiry).

VACATED and REMANDED.