FILED NOT FOR PUBLICATION JUL 21 2021 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SHAUN BEVERIDGE; REED No. 20-35848 ALEFTERAS; ROBERT ELDER, D.C. No. 2:20-cv-00098-RMP Plaintiffs-Appellants,
v. MEMORANDUM*
CITY OF SPOKANE; CITY OF SPOKANE POLICE DEPARTMENT; CRAIG MEIDL, Chief of Police; LONNY TOFSRUD, Detective; DEAN SPRAGUE, Lieutenant; JOHN AND JANE DOES, 1-10,
Defendants-Appellees.
Appeal from the United States District Court for the Eastern District of Washington Rosanna Malouf Peterson, District Judge, Presiding
Argued and Submitted July 7, 2021 Seattle, Washington
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Before: CLIFTON and IKUTA, Circuit Judges, and CALDWELL,** District Judge.
Plaintiffs Shaun Beveridge, Reed Alefteras, and Robert Elder appeal from
the district court’s order: (1) granting in part Defendants’ Motion for Judgment on
the Pleadings and dismissing their claims brought under 42 U.S.C. § 1983; (2)
striking extrinsic evidence that Plaintiffs offered in opposition to Defendants’
motion; and (3) dismissing rather than remanding Plaintiffs’ state law claims to
Washington Superior Court. We affirm.
Neither party has challenged our jurisdiction in this case. Nevertheless, as
we must, we raise the threshold jurisdictional question sua sponte. See WMX
Technologies, Inc. v. Miller, 104 F.3d 1133, 1135 (9th Cir. 1997) (en banc).
Although the district court dismissed some of Plaintiffs’ claims without prejudice
on September 1, 2020, it entered judgment the same day. The fact that the district
court in its order directed the clerk to enter judgment and close the case, a direction
that was followed on the same day as the entry of the order, indicates to us that the
district court intended its order to be final and resolve the case completely. See
Montes v. United States, 37 F.3d 1347, 1350 (9th Cir. 1994). The entry of
** The Honorable Karen K. Caldwell, United States District Judge for the Eastern District of Kentucky, sitting by designation.
20-35848 2 judgment rendered the district court’s decision a final, appealable order. Thus, we
have jurisdiction under 28 U.S.C. § 1291.
We review the district court’s decision granting Defendants’ Motion for
Judgment on the Pleadings and dismissing Plaintiffs’ § 1983 claims de novo. See
Daewoo Elecs. Am. Inc. v. Opta Corp., 875 F.3d 1241, 1246 (9th Cir. 2017).
As an initial matter, Plaintiffs have abandoned any appeal of the dismissal of
their § 1983 Fourth Amendment claims by failing to substantively discuss the
claims on appeal. See Fed. R. App. P. 28(a)(8)(A).
The district court did not err in dismissing Plaintiffs’ claims against the
Spokane Police Department. The Spokane Police Department is not a proper
defendant in this case. See Wash. Rev. Code § 4.96.010. Dismissal of the Spokane
Police Department did not eliminate any of Plaintiffs’ substantive claims. The City
of Spokane remained a party and was a proper defendant for all of Plaintiffs’
§ 1983 claims.
The district court did not err in dismissing Plaintiffs’ standalone § 1983
claim with prejudice. “[Section] 1983 ‘is not itself a source of substantive rights,’
but merely provides ‘a method for vindicating federal rights elsewhere conferred.’”
20-35848 3 Graham v. Connor, 490 U.S. 386, 393–94 (1989) (quoting Baker v. McCollan, 443
U.S. 137, 144 n.3 (1979)).
The district court did not err in dismissing Plaintiffs’ § 1983 Eighth
Amendment claims with prejudice. Plaintiffs concede that Beveridge’s Eighth
Amendment rights were not violated. The district court correctly concluded that
Elder and Alefteras cannot state cognizable § 1983 Eighth Amendment claims. A
§ 1983 claim that implies the invalidity of a conviction or sentence is not
cognizable unless the plaintiff can demonstrate that the conviction or sentence has
already been invalidated. Heck v. Humphrey, 512 U.S. 477, 486–87 (9th Cir.
1994). Plaintiffs contend that Elder’s and Alefteras’s pleas are “awaiting hearing
pursuan[t] to . . . Motion[s] to Set Aside the plea[s] as illegally entered.” At the
time of the filing of the complaint and of the dismissal by the district court, the
convictions remained valid. Moreover, we were informed that the motions to set
aside the pleas were denied.1 Plaintiffs thus concede that the convictions stand.
The district court did not err in dismissing Plaintiffs’ Fourteenth
Amendment Brady claims without prejudice. With respect to Elder’s and
1 We grant Defendants’ Motion to Take Judicial Notice (Docket Entry 14) of two Spokane Superior Court orders denying Elder’s and Alefteras’s motions to set aside their guilty pleas. The court orders are judicially noticeable public records. See Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001).
20-35848 4 Alefteras’s claims, the district court properly concluded the United States
Constitution does not require disclosure of impeachment evidence prior to entry of
guilty pleas. See United States v. Ruiz, 536 U.S. 622, 633 (2002) (reasoning that
impeachment evidence is “more closely related to the fairness of a trial than to the
voluntariness of the plea”) (emphasis in original). Plaintiffs do not challenge the
district court’s determination that the allegedly undisclosed evidence was
impeachment evidence. As for Beveridge’s Brady claim, although we disagree
with the district court’s conclusion that Beveridge cannot show prejudice merely
because he was acquitted, we conclude that Plaintiffs have failed to allege
sufficient facts to support an inference that the failure to disclose the allegedly
omitted evidence deprived Beveridge of a fair trial. See Soo Park v. Thompson, 851
F.3d 910, 924–27 (9th Cir. 2017) (distinguishing due process materiality in the
criminal context from materiality under § 1983 and explaining that undisclosed
evidence is material under § 1983 “only if it affected the question whether the
defendant was deprived of a fair trial”).
The district court did not abuse its discretion in dismissing Plaintiffs’ § 1983
Fourteenth Amendment malicious prosecution claims without prejudice. To state a
claim for malicious prosecution under § 1983, Plaintiffs must allege the elements
20-35848 5 of a state law malicious prosecution claim, as well as that “the [D]efendants
prosecuted [them] with malice and without probable cause, and that they did so for
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FILED NOT FOR PUBLICATION JUL 21 2021 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SHAUN BEVERIDGE; REED No. 20-35848 ALEFTERAS; ROBERT ELDER, D.C. No. 2:20-cv-00098-RMP Plaintiffs-Appellants,
v. MEMORANDUM*
CITY OF SPOKANE; CITY OF SPOKANE POLICE DEPARTMENT; CRAIG MEIDL, Chief of Police; LONNY TOFSRUD, Detective; DEAN SPRAGUE, Lieutenant; JOHN AND JANE DOES, 1-10,
Defendants-Appellees.
Appeal from the United States District Court for the Eastern District of Washington Rosanna Malouf Peterson, District Judge, Presiding
Argued and Submitted July 7, 2021 Seattle, Washington
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Before: CLIFTON and IKUTA, Circuit Judges, and CALDWELL,** District Judge.
Plaintiffs Shaun Beveridge, Reed Alefteras, and Robert Elder appeal from
the district court’s order: (1) granting in part Defendants’ Motion for Judgment on
the Pleadings and dismissing their claims brought under 42 U.S.C. § 1983; (2)
striking extrinsic evidence that Plaintiffs offered in opposition to Defendants’
motion; and (3) dismissing rather than remanding Plaintiffs’ state law claims to
Washington Superior Court. We affirm.
Neither party has challenged our jurisdiction in this case. Nevertheless, as
we must, we raise the threshold jurisdictional question sua sponte. See WMX
Technologies, Inc. v. Miller, 104 F.3d 1133, 1135 (9th Cir. 1997) (en banc).
Although the district court dismissed some of Plaintiffs’ claims without prejudice
on September 1, 2020, it entered judgment the same day. The fact that the district
court in its order directed the clerk to enter judgment and close the case, a direction
that was followed on the same day as the entry of the order, indicates to us that the
district court intended its order to be final and resolve the case completely. See
Montes v. United States, 37 F.3d 1347, 1350 (9th Cir. 1994). The entry of
** The Honorable Karen K. Caldwell, United States District Judge for the Eastern District of Kentucky, sitting by designation.
20-35848 2 judgment rendered the district court’s decision a final, appealable order. Thus, we
have jurisdiction under 28 U.S.C. § 1291.
We review the district court’s decision granting Defendants’ Motion for
Judgment on the Pleadings and dismissing Plaintiffs’ § 1983 claims de novo. See
Daewoo Elecs. Am. Inc. v. Opta Corp., 875 F.3d 1241, 1246 (9th Cir. 2017).
As an initial matter, Plaintiffs have abandoned any appeal of the dismissal of
their § 1983 Fourth Amendment claims by failing to substantively discuss the
claims on appeal. See Fed. R. App. P. 28(a)(8)(A).
The district court did not err in dismissing Plaintiffs’ claims against the
Spokane Police Department. The Spokane Police Department is not a proper
defendant in this case. See Wash. Rev. Code § 4.96.010. Dismissal of the Spokane
Police Department did not eliminate any of Plaintiffs’ substantive claims. The City
of Spokane remained a party and was a proper defendant for all of Plaintiffs’
§ 1983 claims.
The district court did not err in dismissing Plaintiffs’ standalone § 1983
claim with prejudice. “[Section] 1983 ‘is not itself a source of substantive rights,’
but merely provides ‘a method for vindicating federal rights elsewhere conferred.’”
20-35848 3 Graham v. Connor, 490 U.S. 386, 393–94 (1989) (quoting Baker v. McCollan, 443
U.S. 137, 144 n.3 (1979)).
The district court did not err in dismissing Plaintiffs’ § 1983 Eighth
Amendment claims with prejudice. Plaintiffs concede that Beveridge’s Eighth
Amendment rights were not violated. The district court correctly concluded that
Elder and Alefteras cannot state cognizable § 1983 Eighth Amendment claims. A
§ 1983 claim that implies the invalidity of a conviction or sentence is not
cognizable unless the plaintiff can demonstrate that the conviction or sentence has
already been invalidated. Heck v. Humphrey, 512 U.S. 477, 486–87 (9th Cir.
1994). Plaintiffs contend that Elder’s and Alefteras’s pleas are “awaiting hearing
pursuan[t] to . . . Motion[s] to Set Aside the plea[s] as illegally entered.” At the
time of the filing of the complaint and of the dismissal by the district court, the
convictions remained valid. Moreover, we were informed that the motions to set
aside the pleas were denied.1 Plaintiffs thus concede that the convictions stand.
The district court did not err in dismissing Plaintiffs’ Fourteenth
Amendment Brady claims without prejudice. With respect to Elder’s and
1 We grant Defendants’ Motion to Take Judicial Notice (Docket Entry 14) of two Spokane Superior Court orders denying Elder’s and Alefteras’s motions to set aside their guilty pleas. The court orders are judicially noticeable public records. See Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001).
20-35848 4 Alefteras’s claims, the district court properly concluded the United States
Constitution does not require disclosure of impeachment evidence prior to entry of
guilty pleas. See United States v. Ruiz, 536 U.S. 622, 633 (2002) (reasoning that
impeachment evidence is “more closely related to the fairness of a trial than to the
voluntariness of the plea”) (emphasis in original). Plaintiffs do not challenge the
district court’s determination that the allegedly undisclosed evidence was
impeachment evidence. As for Beveridge’s Brady claim, although we disagree
with the district court’s conclusion that Beveridge cannot show prejudice merely
because he was acquitted, we conclude that Plaintiffs have failed to allege
sufficient facts to support an inference that the failure to disclose the allegedly
omitted evidence deprived Beveridge of a fair trial. See Soo Park v. Thompson, 851
F.3d 910, 924–27 (9th Cir. 2017) (distinguishing due process materiality in the
criminal context from materiality under § 1983 and explaining that undisclosed
evidence is material under § 1983 “only if it affected the question whether the
defendant was deprived of a fair trial”).
The district court did not abuse its discretion in dismissing Plaintiffs’ § 1983
Fourteenth Amendment malicious prosecution claims without prejudice. To state a
claim for malicious prosecution under § 1983, Plaintiffs must allege the elements
20-35848 5 of a state law malicious prosecution claim, as well as that “the [D]efendants
prosecuted [them] with malice and without probable cause, and that they did so for
the purpose of denying [them] equal protection or another specific constitutional
right.” Awabdy v. City of Adelanto, 368 F.3d 1062, 1066 (9th Cir. 2004). Plaintiffs
failed to allege facts to support an inference that any of the necessary elements
were satisfied apart from the injury requirement. See Youker v. Douglas Cty., 258
P.3d 60, 66–67 (Wash. Ct. App. 2011) (setting forth Washington state law
requirements for a malicious prosecution claim).
The district court did not abuse its discretion in excluding the extrinsic
evidence that Plaintiffs offered in opposition to Defendants’ motion. In deciding
motions for judgment on the pleadings, courts are limited to the four corners of the
complaint. See Fed. R. Civ. P. 12(c), (d). The district court explicitly declined to
convert Defendants’ motion into a motion for summary judgment, stating that it
would “abide by the standard under Rule 12(c)” and “take all of Plaintiffs’ factual
allegations as true.” Plaintiffs do not contend that the district court improperly
considered external matters. See Fed. R. Civ. P. 12(d) (explaining that conversion
is required if the court considers matters outside the complaint). Moreover,
Plaintiffs’ argument regarding incorporation by reference lacks merit. The doctrine
20-35848 6 is intended to prevent plaintiffs from surviving a motion to dismiss by “selecting
only portions of documents that support their claims.” Khoja v. Orexigen
Therapeutics, Inc., 899 F.3d 988, 1002 (9th Cir. 2018). It does not apply here. As
noted, the district court properly took all the complaint’s plausible allegations as
true.
The district court did not abuse its discretion in dismissing rather than
remanding Plaintiffs’ state law claims. Plaintiffs do not contend that they asked the
district court to remand their state law claims and cite no authority to support the
proposition that remand was required in this case. Plaintiffs’ argument that the
statute of limitations on their state law claims ran while the case was being litigated
in the district court lacks merit. The tolling provision in 28 U.S.C. § 1367(d) has
suspended the statute of limitations during the federal litigation and for thirty days
thereafter. See Artis v. District of Columbia, 138 S. Ct. 594, 598 (2018).
AFFIRMED.
20-35848 7