Opinion
No. 05-16390. D.C. No. CV-04-00401-NVW.
Argued and Submitted March 7, 2007 Phoenix, Arizona.
April 12, 2007.
Appeal from the United States District Court for the District of Arizona Neil V. Wake, District Judge, Presiding.
Before: HAWKINS, THOMAS, and CLIFTON, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Plaintiff David T. Braunstein appeals from the district court's grant of summary judgment in favor of the defendants. We affirm.
Braunstein raises claims under the Federal Tort Claims Act ("FTCA") and Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). Two-year statutes of limitations govern the claims. See 28 U.S.C. § 2401(b) (FTCA claims); Cholla Ready Mix, Inc. v. Civish, 382 F.3d 969, 974 (9th Cir. 2004) ( Bivens claims in Arizona). FTCA claims accrue as a matter of federal law "when a plaintiff knows that he has been injured and who has inflicted the injury." Winter v. United States, 244 F.3d 1088, 1090 (9th Cir. 2001). Similarly, "[a] Bivens claim accrues when the plaintiff knows or has reason to know of the injury." W. Ctr. for Journalism v. Cederquist, 235 F.3d 1153, 1156 (9th Cir. 2000).
Braunstein's action is predicated on allegations of false arrest, malicious prosecution, and the intentional and negligent infliction of emotional distress. With regard to false arrest, the Supreme Court recently held that such claims require "detention without legal process" and accrue once legal process is initiated. Wallace v. Kato, 127 S. Ct. 1091, 1095, 1096 (2007). Braunstein was arrested only after indictment and was never detained without process. Therefore, he has no false arrest claim under either the FTCA or Bivens.
For the remaining legal theories, Braunstein was or should have been aware of his injuries once the allegedly wrongful prosecution was commenced against him. Winter, 244 F.3d at 1090; W. Ctr. for Journalism, 235 F.3d at 1156. His claims did not accrue at this time for statute of limitations purposes, however, because under the continuing torts doctrine this could not happen until the prosecution ended. See Flowers v. Carville, 310 F.3d 1118, 1126 (9th Cir. 2002) ("When a tort involves continuing wrongful conduct, the statute of limitations doesn't begin to run until that conduct ends.").
The district court dismissed the criminal case against Braunstein on May 4, 1999. Although his claims would appear to accrue at that point, Braunstein contends they did not, as the dismissal was without prejudice and the government could seek a new indictment to resume the prosecution. See United States v. Hayden, 860 F.2d 1483, 1488 (9th Cir. 1988) (noting that dismissal without prejudice allows the government "to reindict based on the same or similar charges"). It is true, as Braunstein suggests, that malicious prosecution claims do not accrue until the underlying prosecution terminates in favor of the plaintiff. Heck v. Humphrey, 512 U.S. 477, 484 (1994); Hartman v. Moore, 126 S. Ct. 1695, 1702 (2006) (holding that the common law may provide "a source of inspired examples" useful for analyzing Bivens torts). Yet even if one could argue that Braunstein's prosecution did not terminate "in his favor" in May 1999, the threat of prosecution necessarily terminated when the limitations period ran out for prosecuting the alleged criminal acts. See 18 U.S.C. § 3282(a) (providing that "no person shall be prosecuted, tried, or punished for any offense, not capital, unless the indictment is found or the information is instituted within five years next after such offense shall have been committed"). Accordingly, the two-year limitations period governing Braunstein's claims started running no later than August 2001 and expired before Braunstein filed his action in February 2004. 28 U.S.C. § 2401(b); Cholla Ready Mix, Inc., 382 F.3d at 974.
Braunstein attempts to characterize our court's February 2002 decision regarding his Hyde Amendment motion for attorney's fees as the "favorable termination" of his prosecution. But a court's consideration of a motion to assess fees does not hold a case open. The allegedly malicious prosecution of Braunstein, including any risk that the prosecution might be resumed, terminated well before then. See Budinich v. Becton Dickinson Co., 486 U.S. 196, 200 (1988) (holding as a general rule that "a claim for attorney's fees is not part of the merits of the action to which the fees pertain").
Alternatively, Braunstein argues that the limitations period was tolled by the district court's October 2000 denial of the Hyde Amendment motion and was reset by our court's reversal of that decision. It might be true that the district court's denial of that motion doomed to failure any FTCA or Bivens action filed by Braunstein, because the district court's factual conclusions were inconsistent with the showings Braunstein would need to prevail in his civil claims. Nonetheless, Braunstein cites no authority to support the proposition that a limitations period is tolled because the prospects for success on a claim appear dim or even nil. This is not how statutes of limitations work. If Braunstein wanted to pursue a claim, he was required to file it before the limitations period expired.
That Braunstein later filed for bankruptcy also does not alter the fact that he failed to comply with the applicable limitations period. Braunstein cites no law or any other authority to support his contention that a bankruptcy filing tolls or resets a limitations period already set in motion by the accrual of a tort claim. The premise of Braunstein's argument is that his civil claims "did not exist" prior to this court's reversal of the district court's denial of attorney's fees. That, however, was not the case.
The Supreme Court's recent decision in Wallace v. Kato confirms that we should not infer tolling here. In Wallace, the Court held that a conviction will bar the filing of a related 42 U.S.C. § 1983 claim for false arrest but will not toll a statute of limitations that already has started to run. 127 S. Ct. at 1096. If a conviction doesn't toll the limitations period for a false arrest claim, even though it bars the claim, then a bankruptcy filing or a denial of a motion for fees under the Hyde Amendment won't toll the limitations period, either.
AFFIRMED