Opinion
21-16051
10-21-2022
NALEEN ANDRADE, Plaintiff-Appellant, v. DARREN CHO; COUNTY OF HAWAII; BOBBY L. MACOMBER; THELMA MACOMBER; DARRYL GRACE, Sr.; LEONA GRACE; TRAVIS LEINONAN, Defendants-Appellees.
NOT FOR PUBLICATION
Argued and Submitted October 12, 2022 Honolulu, Hawaii
Appeal from the United States District Court No. 1:16-cv-00684-DKW-KJM for the District of Hawaii Derrick Kahala Watson, District Judge, Presiding
Before: SCHROEDER, RAWLINSON, and BRESS, Circuit Judges.
MEMORANDUM
Dr. Naleen Andrade appeals the district court's dismissal of her civil rights claims under 42 U.S.C. §§ 1983 and 1985 against Officer Darren Cho, the County of Hawaii, and various private defendants. We review de novo the district court's grant of a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). Nguyen v. Endologix, Inc., 962 F.3d 405, 413 (9th Cir. 2020). We have jurisdiction under 28 U.S.C. § 1291 and affirm.
1. Most of Dr. Andrade's claims are untimely. Section 1983 does not have its own statute of limitations and so here borrows from Hawaii's two-year statute of limitations for personal-injury torts. See Bird v. Dep't of Hum. Servs., 935 F.3d 738, 743 (9th Cir. 2019) (per curiam); Haw. Rev. Stat. § 657-7. Under federal law, which governs the accrual of a § 1983 claim, a cause of action generally accrues when the plaintiff "knows or has reason to know of the injury that is the basis of the action." Belanus v. Clark, 796 F.3d 1021, 1025 (9th Cir. 2015).
With the potential exception of claims sounding in malicious prosecution, which we address next, Dr. Andrade's claims are out of time. Dr. Andrade filed her complaint on December 30, 2016, but challenges allegedly unconstitutional conduct that took place in the fall of 2013, when Cho and others allegedly harassed and intimidated Dr. Andrade in trying to prevent her from attending church meetings. To the extent Dr. Andrade alleges continuing effects from these events, that is insufficient to extend the statute of limitations. See Bird, 935 F.3d at 748.
2. The district court treated Dr. Andrade's claims sounding in malicious prosecution as timely but determined that Dr. Andrade had failed sufficiently to allege a malicious prosecution theory. We agree. "There are three essential elements in a claim for malicious prosecution: (1) that the prior proceedings were terminated in the plaintiffs' favor, (2) that the prior proceedings were initiated without probable cause, and (3) that the prior proceedings were initiated with malice." Myers v. Cohen, 688 P.2d 1145, 1148 (Haw. 1984) (citation omitted). Even assuming Cho's filing of an allegedly false police report can provide the basis for a claim of malicious prosecution, and further assuming that such a claim is cognizable under § 1983, Dr. Andrade failed to plead that Cho lacked probable cause or acted with malice.
Cho had received a report of a person trespassing on church property, and Dr. Andrade herself alleges that she had climbed over a wall to enter church property. This provided a sufficient basis for Cho to file his police report about Dr. Andrade's unauthorized entry onto church property. Although Dr. Andrade argues that the "Evidence of Authority" documents confirmed that Cho knew Dr. Andrade had the right to be on church property, these documents do not concern Dr. Andrade or establish that she was permitted to be on church property in the fall of 2013.
3. Dr. Andrade also alleges a municipal liability claim against the county and a § 1985 conspiracy claim against all defendants. Because these claims turn on the violation of an underlying constitutional right, they too fail. See Jackson v. City of Bremerton, 268 F.3d 646, 653 (9th Cir. 2001) ("Neither a municipality nor a supervisor, however, can be held liable under § 1983 where no injury or constitutional violation has occurred."); Caldeira v. Cnty. of Kauai, 866 F.2d 1175, 1882 (9th Cir. 1989) ("[T]he absence of a section 1983 deprivation of rights precludes a section 1985 conspiracy claim predicated on the same allegations.").
4. Dr. Andrade's arguments that the district court committed various procedural errors are unavailing. The district court did not err in failing to convert defendants' motion to dismiss to a motion for summary judgment. There is no indication that the district court relied on the outside materials attached to the private defendants' initial motion to dismiss. See N. Star Int'l v. Arizona Corp. Comm'n, 720 F.2d 578, 582 (9th Cir. 1983) ("[A] motion to dismiss is not automatically converted into a motion for summary judgment whenever matters outside the pleading happen to be filed with the court and not expressly rejected by the court.").
Dr. Andrade's challenge to the district court's stay of proceedings fails. It is not apparent that Dr. Andrade challenged the stay below, and so this argument is forfeited. See, e.g., United States v. Buck, 23 F.4th 919, 930 n.3 (9th Cir. 2022). Regardless, Dr. Andrade has not demonstrated how the district court erred in staying proceedings to allow for settlement discussions.
Finally, any violation of local rules in allowing the private defendants' "substantive joinder" to the county defendants' motion to dismiss was harmless. All. of Nonprofits for Ins., Risk Retention Grp. v. Kipper, 712 F.3d 1316, 1327 (9th Cir. 2013) (departures from local rules warrant reversal only if they affect "substantial rights"). Dr. Andrade's claims against the private defendants hinged on the success of her claims against the county defendants, which fail for the reasons discussed
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.