*1 Code Washington Revised listed steps BELANUS, Ronald Duane whether NWM to determine 19.30.200 Plaintiff-Appellant, court awarded The district was licensed. mem- per class damages of $500
Plaintiffs worked, regard- year per per ber violation Potter; Cory CLARK; Raymond Phil immigration member’s less of class Platts; Hughes; Olson; Larry Allen $1,004,000. The dis- status, of total Dutton; Hurley; Leo Galla Leo Pat Plaintiffs were held that court further trict Defendants-Ap Broch, gher; Melissa FLCA, attorney fees under to entitled pellees. to the to “award court permits and in addition costs party, prevailing No. 12-35952. disbursements, attorney fees at reasonable n Appeals, of States Court United Rev.Code Wash. appeal.” trial and Ninth Circuit. 19.30.170(1). timely appeal- Defendants judgment entry of ed the district court’s 7, 2015. April and Submitted Argued damage award. 5, 2015. Aug.
Filed
Y. of these state complexity Because significant their law issues we believe implications, policy Court, which has Washington Supreme provisions relevant yet interpreted answer FLCA, qualified “is better in- first questions the certified Perez-Farias, stance.” See omitted). (alteration Additionally, the authoritative Supreme Court’s Washington ... in order “necessary are answers Rev. Wash. proceeding.” dispose [this] § 2.60.020. Code
VI. hereby direct- Court The Clerk to the Wash- immediately transmit ed Court, official seal ington Circuit, order copy this Ninth rele- and all for certification request pursu- of record excerpts vant briefs and Code Revised Washington ant 2.60.030. § 2.60.010 IT SO ORDERED. IS
OPINION
CALLAHAN, Judge: Circuit Duane Ronald state Montana asserting filed this *3 of his alleged violation based on the claims and Mon- the United States rights of searches as a result constitutions tana shed, workplace home, and storage his with 2008, made in connection that were The district prosecution. criminal his preju- with complaint court dismissed his held that screening stage and dice at a “strike” constituted complaint to 28 U.S.C. pursuant him against affirm, Bela- holding that 1915(g). We claim for cognizable a assert nus cannot of limita- tolling of the statute court could tions, and complaint constitutes that his determine “strike.” (argued) and Keller Christoph Thomas Background I. law stu- certified (argued), Stamps Britta 3, 2008, returned Belanus August On University of Arkan- representatives, dent searching his police to find his home Project, Litigation Appellate Federal sas and later detained Belanus was home. AR; Lindsey Lien and C. Fayetteville, kid- “with charged was Belanus arrested. repre- law student Seaborg, certified Colin her, inflict- raping girlfriend], napping [his Sisk, supervising sentatives, Gregory C. the course upon her in bodily injury School University of St. Thomas attorney, physi- with tampering unlawfully rape, MN, Clinic, Minneapolis, Appellate of Law burglarizing [the rape, cal evidence Plaintiff-Appellant. residence, committing and girlfriend’s] French, Special Assistant J. Rebekah Belanus, 357 State therein.” theft Helena, MT, General, for Amicus Attorney (2010). 1021, 463, 240 P.3d 1022-23 Mont. Curiae State Montana. convicted, 2009, in June was tried 2009, to life with-
and, sentenced August ap- parole. possibility out the Court, to the Montana pealed at 1025. conviction. affirmed his Belanus, proceeding June On F. FERDINAND Before: in the United se, complaint a civil filed pro FERNANDEZ, B. JOHNNIE District District Court States M. RAWLINSON, CONSUELO and police had that the alleged He Montana. CALLAHAN, Judges. Circuit of his searches warrantless сonducted shed, workplace between home, his CALLAHAN; Partial Judge Opinion in violation August August 3 Judge Partial Dissent Concurrence States the United rights under of his FERNANDEZ. Montana constitutions. He named as de- dismissed complaint Belanus’s. with preju- fendants officers with the Lewis and Clark dice, and held that the dismissal would County Department Sheriffs and attor- count as a pursuant to 28 U.S.C. neys County. with the paid He the filing § 1915(g). Belanus filed timely notice of fee. appeal. gist
The
of Belanus’s complaint is that
(1)
II.
Standard of Review
police:
searched his residence on
4, 2008,
August 3 and
prior to the issuance
We review de novo the district
(2)
5, 2008;
warrant on August
court’s dismissal of an action under 28
searched his shed on August
prior
Brown,
U.S.C.
1915A.
Hamilton
to the
issuance of a warrant on August
Cir.2011).
In determin
2008; and
August
between
3 and
*4
complaint
claim,
whether a
states
“a
2008, searched his workplace without a
accept
court must
allegations
true all
of
warrant.
material
and
fact
must construe those facts
Belanus alleged that
“illegally
the
ob-
in the light most favorable
the plaintiff.”
tained evidence was knowingly used
Id.
892-93 (quoting
Hayes,
Resnick v.
against me in court proceedings.
I was
443,
Cir.2000)).
Also,
convicted of a crime that I
profess
still
my questions of statutory interpretation, such
innocence.” Belanus sought “monetary
as the applicability of the
provision
damages
$75,000
in excess of
from each
of 28
1915(g),
U.S.C.
are reviewed de
just
defendant
physical,
causes of:
novo.
King,
1113,
Andrews v.
emotional, mental,
freedom,
loss of
and
(9th Cir.2005).
financial
anguish.”
and
stress
Belanus’s complaint was
by
reviewed
III. The Heck Bar
Magistrate Judge, who concluded that the
Because
pro
Belanus’s
complaint
se
al-
complaint' should be dismissed. He rea-
luded to his conviction and his assertion of
soned that if Belanus was challenging his
innocence, the district
properly
court
not-
conviction, his claim was
by
barred
Heck v.
ed that to the extent he asserted that the
Humphrey,
evidence collected during the searches
(1994),
where
the next
over
without
should
barred,
dismissal
home, shed,
workplace.
his
searched
may reas-
plaintiff]
that [the
“so
prejudice
knew of the
deny
he
does not
in invali-
if he ever succeeds
his claims
sert
he came
states that
He
searches.
Accordingly, we
conviction.”
dating his
poliсe
were
August
home on
of Be-
dismissal
district court
construe the
Furthermore,
documents
home.
as to
prejudice
to be without
lanus’s
that he
confirm
complaint
to his
attached
as-
might
he
claim
Heck-barred
any
possible
of the searches
aware
was
future.
in the
time
at some
sert
time
by the
warrants
timely
search
lack
on
Accordingly,
in June 2009.
his trial
Limitations
The Statute
IV.
complaint
face,
June
its
court and
As
untimely and barred
appears to be
of limitations
statute
applicable
agree, the
limita-
three-year
statute
Montana’s
limita
three-year statute
Montana’s
tions.
actions,
personal
governing
tions
*5
сom-
however,
that his
Belanus,
argues
27-2-204(1). See Wil
§Ann.
Mont.Code
he can assert
barred
is not
plaint
280,
261,
105 S.Ct.
Garcia, 471 U.S.
v.
son
tolling of
equitable
for
argument
a viable
(1985)
“that
(holding
1938,
254
L.Ed.2d
85
that
He notes
limitations.
of
the statute
as
characterized
are best
§ 1983 claims
the accru-
law determines
although federal
actions,”
the low
and that
injury
personal
action,
governs
law
state
of
al of his cause
three-
the state’s
correctly applied
er court
limitations
of
the statute
tolling
the
of
ac
governing
limitations
of
year statute
Wallace,
at
549 U.S.
cases. See
repu
or
person
injury
the
tions “for
(commenting “[w]e
127 S.Ct.
any person”).
tatiоn of
for
to state law
generally referred
have
a
when
law determines
Federal
length
for the
rules,
we
just as
have
tolling
the stat
when
accrues
cause of action
limitations”).
of
of statutes
for
begins to run
of limitations
ute
Nesbit,
Mont.
v.
Citing
Kato, 549 U.S.
v.
Schoof
§ 1983 claim. Wallace
that
(2014),
argues
Belanus
Montana law period of limitation does begin argues until he entitled to the claim been has equitable discovered should tolling because state and county have been discovered.2 Under Montana officials did not respond to his written law, “[t]he doctrine of equitable tolling ar requests all for covering warrants rests the running of the period limitations However, searches. it appears that at the accrued, after a claim has allowing limit trial, time of his criminal or sometime ed circumstances for an pur action to be thereafter, Belanus did copies receive despite sued the failure comply with the search warrants that issued on August relevant statutory filing deadlines.” Id. at 5 and alleges that he (quotation 839^40 marks and citation omit attorney asked the who was representing ted). The Montana Court favor him in his criminal proceedings to investi- ably compared perspective its to federal gate the search warrant issue. Belanus equitable rules, tolling citing cases that also court, asked the state trial early as held that: equitable tolling is limited to November provide him with rare and exceptional circumstances where the full record. responsible defendant is for concealing plea tolling plaintiffs action; existence of cause of because, fails taking his allegations as (2) equitable tolling require “does not true, must, Hamilton, as we 630 F.3d at the defendant’s conduct rise to the level of 892-93, Belanus knew of his cause of ac fraud, intentional, or even be only but tion well within the three-year statute of the nature of the defendant’s actions has *6 noted, limitations. As federal law deter concealed plaintiff from the the existence mines when his cause of action arose. claim”; and equitable relief is Bagley v. CMC Real Corp., Estate only when plaintiff available the actually Cir.1991). Moreover, prevented filing from on despite time exer federal law holds that a of cause action for cising diligence. Id. at 840. The court illegal search and seizure accrues when further the noted that statutes of limitations wrongful occurs, act “provide Venegas Wagner, a reasonable of means preventing Cir.1983), stale сlaims even ensuring and if that claims are person the filed does before not know essential at that disappears.” evidence time that (citation Id. at 841 the search quotation was warrantless. marks See Kuan v. omitted). Service, The Montana U.S. Supreme Court Customs No. CV 08-1980- concluded allegations (MAN), that Schoofs quali DDP 2009 WL at *5 fied for equitable tolling (C.D.Cal. because 16, 2009). “neither Dec.
2. The
(a)
Montana
Court noted that
the
constituting
facts
the
by
claim are
27-2-102(3)
§
Mont.Code
provides:
Ann.
their nature concealed
self-concealing;
or
period
The
of limitation
begin
does not
or
any
on
claim or cause
action
(b) bеfore,
of
for an
during, or
the act
after
caus-
injury
person
property
or
until the
injury,
the
the defendant has taken
constituting
facts
the
have
claim
been
prevents
action
injured
which
the
party
or, in the
discovered
exercise of due dili-
discovering
from
injury
the
or its cause.
gence, should have
been discovered
Schoof,
1029 who has prisoner The (9th language. tory Delatoore, v. lor appeals or that three suits brought sys clogs the Cir.2002). A frivolous the beyond get to merit lacked sufficient regardless resources drains tem (or outright an were that pleadings fee or filing the pays plaintiff the whether appealing not an is process) no abuse of seeWe pauperis. in forma proceeds filing in of the fee a waiver for candidate to wealthy prisoners allowing for reason cases, he even if nth through fees, fourth his filing the by paying courts clog the We there- suits. previous the paid for impecu an to be denied when access not, to need that a dismissal hold fore filing fees as particularly prisoner, nious strike, or of an action as a qualify to cost covering the to come close do not pauperis. in forma appeal filed Hy See frivolous action. the court (6th Clinton, Fed.Appx. the with Seventh v. agree land 490. We Id. at sanc Cir.2001) “imposition of that “serious- (noting purported Neither Circuit. it appropriate, specu- particularly filing, tions is nor Belanus’s paid ness” of a con funds to has Hyland paid § that to fil- 1915(g) appears applying that lation to regard filings, suits without are prosecute paid discourage tinue to ings would disregard 1915(g)”). § us to to allow sufficient of the statute. plain language (7th Miller, In Duvall similar to other considered Circuit references Cir.1997), the Seventh that to our exclu- to similar in the PLRA argument language rejected 1915(g) § from petitions It commented: by sion of habeas Belanus. advanced position. supportive of are not coverage think of we can оnly reason The reading of supports his Neither reference that is a limitation such interpolating The rea- 1915(g). §in appeal” “action previous for the paid who had provi- holding pre-screening that sons for doing so manifest- had appeal suit do not proceedings IFP only to apply sions who than one seriousness greater ed a ap- “action or interpreting resonate himself. We at no cost so had done not do 1915(g).4 § We used peal” reason speculative this think do not the PLRA provisions think that the statu- strong to override sufficiently 1999). provi- The Cir. 1016-17 as hold cited of the cases 4. None § entitled within is located sion apply provisions pre-screening it pauperis,’’ "Proceedings in applica directly forma are proceedings only to IFP applied 1915(d), only § which replaces Solcum, 98 F.3d Marks v. In to his case. ble Id. at 1016. pauperis claims. in forma Cir.1996), "[b]e- we determined ex- Further, interpretation contrary any 1915(e)(2) impair does cause section 1915(e)(2) all suits would § panding instead prisoners, but rights of substantive process of civil radically the alter both to main ability prisoners merely affects simi- and make courts litigation in federal we pauperis, conclude forma appeals in tain superfluous. the PLRA provisions of lаr 1915(e)(2) procedural rule ais section Indeed, previously we have Id. at retroactivity concerns.” no raises which PLRA, 804 of "Section stated relevance holding little has This at 496. rede- U.S.C. amends 1915(g). . obligations liti- rights and fines pauperis Hospital, 293 granted in Mayview State Grayson gants who are forma States, Cir.2002), (3d Third v. United Santana 109 n. status.” F.3d Cir.1996). (3d 752, 753-54 commented: Circuit 1915(e)(2) rights and obli- language of the redefinition But Although the pro- granted leave provision’s gations of individuals expressly limit does not reading the claims, with not inconsistent we IFP is ceed pauperis to in reach forma covering both 1915(g) *9 § as language in plain so lim- it to be Congress intended believe O’Brian, IFP actions. paid and 179 Benson ited. See setting forth the contours for proceeding could not state a cause of action. We in pauperis forma conflict in any way with affirm that decision. The materials sub- § allowing 1915(g) strikes to in paid issue mitted Belanus in support of his com- appeals. actions plaint show that Belanus knew of the in August searches 2008. Under federal Our conclusion supported is by four of law, his claims concerning our sister searches circuits that have held that accrued at that Pouncil, time. § See strikes under 1915(g) may be accrued F.3d at regardless 574. Under applicable whether Mon- the prisoner hаs law, tana paid filing claims could only or is proceeding equitably fee in be for- ma tolled if pauperis. Byrd Shannon, defendants had concealed the (3d Cir.2013) existence of his claim or (holding prevented him may “strikes be from accrued in filing timely actions or ap lawsuit. Schoof, 316 peals regardless of whether P.3d at prisoner 840-41. Taking filings has prepaid filing true, fee or not, proceeding he has cannot, make such IFP”); Duvall, 122 F.3d at (holding a showing. Accordingly, he has failed to “that a not, dismissal need to qualify as a allege a viable claim tolling strike, be of an action or appeal filed in and we affirm the district court’s dismissal рauperis”); forma Burghart v. Corr. Corp. of his action. Am., Fed.Appx. Cir. We also affirm the district court’s deci- 2009) (noting that purposes statute’s sion to count the dismissal as a strike “are achieved by preventing a prisoner against Belanus for purposes of 28 U.S.C. paid
who has filing fees in past frivolous § 1915(g). We conclude that applying a law suits from IFP, proceeding just, as paid to a case is consistent with the they are achieved preventing a prisoner plain language statute, furthers the from proceeding IFP for the fourth or fifth purposes behind the Prison Litigation Re- time”); Hyland, (not Fed.Appx. at 480 Act, form and accords with rulings ing that impositiоn “[t]he of sanctions is four of our sister circuits. particularly appropriate, ap because it The district court’s dismissal and award pears that Hyland has the to contin funds strike under 1915(g) AF- are prosecute ue to suits regard without FIRMED. § 1915(g)”). No court of appeal appears to have held that strikes may only be FERNANDEZ, Judge, Circuit in accrued IFP actions or appeals. The concurring in part and dissenting part: district court did not abuse its discretion I agree with much of what the majority assessing a strike against Belanus.
says. I specifically agree I, parts with II VI. Conclusion and III of majority opinion. parts The with which I do entirely agree IV, are Pursuant to the pre-screening proce- V and VI. dures set forth PLRA, in the court properly considered Belanus’s com- A. part IV, As to I think it is fair to plaint and summarily determined that he assume agree that we all that “[a] district O’Brian, In Benson v. would completely negate policy of this (6th Cir.1999), the Sixth pre- Circuit held that and several other plaintiff gen- circuits that a screening 1915(e)(2) applied only erally given should opportu- notice and an IFP cases pre-screening nity all com- respond prior to the district sua court's (a)
plaints: specific l'ender the sponte complaint.” dismissal of the Id. at complaint screening 1915A, provision, § Again provide these guid- reasons little largely superfluous; (b) holding "such ance reading 1915(g). our
1031
was, indeed, issued before the search took
pro
a
se com
not dismiss
court should
place.
early
‘it is
It was not until late 2009 or
to
unless
without leave
plaint
amend
(suspected)
the deficiencies of
2010 that he discovered
absolutely clear that
Allegations
amend
not be cured
there was no such warrant.
complaint could
”
Mesa,
1202,
might
spell
v.
698 F.3d
to
out
along
Akhtar
those lines
suffice
ment.’
(9th Cir.2012);
v.
tolling
see also Wilhelm
to
period
equitable
1212
a
sufficient
(9th
Rotman,
1113, 1121
Cir.
period
extend the statute of limitations
,Of
2012).
5,
course,
2012.
I
not
or after Junе
do
can,
to,
or will
able
so
know that he
diverge
my
I
from
col
where do
So
only say
giving
op-
I
him an
plead.
Well,
court did not
leagues?
the district
chimerizing
portunity so to do is not
—the
equi
that Montana allows
consider the fact
him that
given
district court should have
is substan
tolling
plaintiff
“where
table
opportunity.
by a
conceal
tially prejudiced
defendant’s
claim, despite
V,
the exercise of
ment of a
I
part
B. As to
while
do not dis
v. Nes
diligence by
plaintiff.”
majority’s
agree with the
discussion
Schoof
841,
226,
bit,
831,
239 merits,
373 Mont.
316 P.3d
I do not think that
Straub,
(2014);
v.
490
see also Hardin
unnecessary
court’s
order that the dismiss
2000-01,
536, 539,
104
109 S.Ct.
a strike”
U.S.
al of Belanus’ action “counts as
Kato,
(1989);
v.
uрon
upon
L.Ed.2d 582
Wallace
him or
any binding
has
effect
cf.
384, 391-95,
is,
1097- any
549 U.S.
future court. That
Belanus has not
(2007).
Belanus’
L.Ed.2d 973
in fact—an invasion of
“an
suffered
(a)
that he was unable
suggest
does
interest which is
pleading
legally protected
(b)
searches
illegality
of the
particularized,
to determine
actual
concrete and
testified that
police
imminent,
officers
conjectural
hypotheti
because
not
warrants,
his re
despite
Wildlife,
there were
Lujan
cal.”
Defenders
and refused
the defendants failed
quests,
555, 560,
S.Ct.
copies
alleged
him with
of the
supply
(footnote,
citations and
L.Ed.2d 351
that,
warrants,
light
omitted).
if
any existed.
If
marks
quotation
internаl
sufficiently plead
though
even
he did
case in
Belanus does file another
when
equitable
or his entitlement
his claims
for some as
seeking
court
redress
federal
say
I am unable to
tolling,
point1
at this
if and when he has
wrong, and
serted
that the deficien
absolutely
that it
clear
and files a motion
insufficient funds
by amendment.
cies cannot be cured
if and
pauperis,
proceed
forma
denies that motion
a district court
I
at all certain that Bela-
am not
While
that Be-
it has been demonstrated
spell out a basis for
nus can
accrued three strikes
previously
has
lanus
that he should have
tolling, I do believe
§ 1915(g), that re
pursuant
to 28 U.S.C.
For
opportunity
an
to do so.
given
been
An
appealable. See
jection order will be
have in the record
example, from what we
1113, 1118-19
King, 398 F.3d
drews v.
us,
copy
given
before
he was not
Cir.2005).
any sugges
point,
But at this
3, 2008, search of
receipt
August
from the
injury do not sat
future
possible
tions “of
while the
upon
home that he came
of Art. III.” Whit
isfy
requirements
there,
and at his trial
June
officers were
Arkansas,
495 U.S.
that a warrant more v.
the officers testified
complaint. See Gallardo
argues
amend the current
recognize
that Bela-
I
that Montana
States,
facts,
Cir.
allege
v. United
will
able to
sufficient
nus
not be
2014);
Early, 233 F.3d
by the district
is best considered
but
Whаlem/Hunt
curiam).
(en banc)
(9th Cir.2000)
(per
opportunity
court after Belanus has
*11
(1990).
1717, 1724,
S.Ct.
Thus, I would determine as to strikes controversy meaning
no case or within the of the Constitution exists this time. See Anchorage Equal Rights
Thomas v. Comm’n, Cir. 2000) (en banc).2 tempting It is to issue advisory opinion question on the strike might
for future courts that have to strug gle deciding previous piece with whether a strike, litigation did I result but temptation think should have been resisted the district court and should be Thomas, resisted us.3 See 220 F.3d at — 1138; Tollefson, Coleman v. cf. -, -, (the
L.Ed.2d 803 time to appeal “from a third-strike trial-court dismissal” occurs). it is when Therefore, I respectfully part concur in and dissent in part. Ameriсa,
UNITED STATES Plaintiff-Appellee, LEUNG, SHIU LUNG aka Steve Leung, Chao-Lung Liang,
Defendant-Appellant.
No. 13-10242. Appeals, United States Court of Ninth Circuit. Argued and Submitted Feb. 2015. Aug.
Filed
2015.
2.
It
appealable,
matters not whether we view
procedur-
the issue
will lead to a morass of
standing
ripeness.”
defendants,
"as one of
problems
plaintiffs,
al
may
courts. Problems
arise when
rul-
those
Moreover,
ings
holding,
pris-
I
are made and in the future
fear that our
when a
advisory rulings
advantage
provisions
makes district courts’
oner
about
seeks to take
Andrews,
1915(a).
binding
whether
dismissals are strikes
See