Yasin v. Coulter, et al.,

Filing 34

MEMORANDUM AND ORDER signed by Judge Frank C. Damrell, Jr., on 9/8/09. Pltf's motion for a continuance to permit time for discovery is DENIED. Dft Coulter's 24 Motion for Summary Judgment is GRANTED on the ground that pltf's claims against him are barred by the statute of limitations. The case remains pending against the other named dfts, Espinoza, Galvan and Alvarez. Pltf has 90 days from the date of this Order to effectuate service on said dfts or the court will dismiss the action for a failure to timely serve. (Kastilahn, A)

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA ----oo0oo---BILAL ABDUL YASIN, Plaintiff, v. CHAD COULTER, ALBA ESPINOZA, JOE GALVAN, ROMAN ALVAREZ, and Does 1 through 20, inclusive, Defendants. ----oo0oo---This matter is before the court on defendant Chad Coulter's ("defendant" or "Coulter") motion for summary judgment as to plaintiff Bilal Abdul Yasin's ("plaintiff") first amended complaint ("FAC"), alleging violations of plaintiff's constitutional rights under the Fourth, Fifth and Fourteenth Amendments of the United States Constitution.1
1

NO. CIV. S-08-2299 FCD/GGH MEMORANDUM AND ORDER

The claims arise

The FAC, filed May 27, 2009, also names Alba Espinoza, Joe Galvan and Roman Alvarez as defendants. To date, plaintiff has not served these defendants, and they are not moving parties on the instant motion. By this order, the court dismisses Coulter from this action. The court has not yet issued a scheduling order. It will defer doing so to permit plaintiff a 1

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out of an investigation and arrest of plaintiff for buying stolen cigarettes and selling illegal narcotics. Plaintiff does not

deny in his FAC that he engaged in this conduct but alleges he was impermissibly singled out for investigation because he is Palestinian and a Muslim. Plaintiff opposes Coulter's instant motion, arguing the hearing on the motion should be continued to permit him time to conduct discovery. Because the court finds that plaintiff has

not made the requisite showing under Fed. R. Civ. P. 56(f), the court resolves the motion on the papers and evidence presently before it.2 For the reasons set forth below, the court GRANTS defendant's motion on the ground that plaintiff's claims are barred by the statute of limitations. As a result of that

finding, the court does not reach defendant's alternative basis for the motion that Coulter is entitled to qualified immunity.

final opportunity to serve the remaining defendants as set forth below. Because oral argument will not be of material assistance, the court orders this matter submitted on the briefs. E.D. Cal. L.R. 78-230(h). 2
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¶ 3.) I. Factual Background A.

BACKGROUND3

Investigation of Plaintiff

Coulter, a Federal Bureau of Investigation Special Agent, first learned of plaintiff's name in connection with potential drug trafficking in the course of the FBI's investigation of a drug trafficking operation in Northern California. (RUF ¶ 1.)

Some of the individuals suspected of being involved in the drug trafficking operation either owned convenience stores or also worked as resellers of merchandise to convenience stores along the I-5 Interstate corridor. This corridor is known for drug Some of the individuals

trafficking, including methamphetamine.

suspected of involvement in the drug trafficking operation also had frequent contacts with plaintiff and his convenience store called "Chinca's Market" located in Chico, California. ¶ 2.) Sometime thereafter, Coulter obtained plaintiff's criminal history showing an arrest for drug possession in 1994. (RUF (RUF

In March 2004, Coulter received a 1996 report from the

California Department of Justice concerning the arrest of a person for transporting 48 cases of pseudoephedrine tablets in a Ryder truck. The tablets in boxes had labels attached for candy

and gum, and it was suspected this was done to conceal the The court considers the following facts undisputed. While plaintiff claims to "dispute" the majority of the facts below, the only basis for his dispute is his request for discovery pursuant to Rule 56(f). For the reasons set forth below, the court denies that request, and thus, plaintiff has not presented any admissible evidence to create a triable issue. (See Reply Sep. Stmt. of Undisp. Facts in Supp. of Def.'s MSJ, filed Aug. 24, 2009 [Docket #32-8] [hereinafter "RUF")].) 3
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identity of the contents in an effort to utilize the tablets to manufacture methamphetamine (since pseudoephedrine is a major ingredient of methamphetamine). The individual arrested

indicated that he had been working for his "cousin" who owned Chinca's Market in Chico. This "cousin" was identified through Plaintiff admitted

subsequent investigation as plaintiff.

purchasing some pseudoephedrine boxes every so often, but denied knowing that such tablets were used to make methamphetamine. (RUF ¶ 4.) The FBI also received another report indicating that an individual under investigation frequented plaintiff's apartment in approximately 2000, and that this person was "involved in drugs" and was on probation. (RUF ¶ 5.) In May 2004, Coulter

received information from an inmate in a Butte County jail that plaintiff was involved in bartering alcohol for sexual favors, and that he hired young men to drive trucks running drugs to Los Angeles. (RUF ¶ 6.) Coulter also inquired of

local law enforcement about criminal activity near Chinca's Market. He received information about such activity, including (RUF ¶ 7.)

drug activity.

Based on this information, in September 2004 the FBI, with the assistance of a public utility company, installed a telephone pole camera ("pole camera") to observe possible criminal activity at Chinca's Market. (RUF ¶ 8.) Plaintiff learned of the pole

camera from a former public utility employee and called the FBI shortly after it was installed to inquire about the camera. ¶ 9.) (RUF

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At some point in 2004, Coulter contacted agents of the California Alcohol Beverage Control Board ("ABC"). He inquired

about whether they had any information about plaintiff and his business. This was part of the FBI's routine contact with ABC

concerning potential criminal conduct at liquor stores. (RUF ¶ 10.) After this contact, the FBI and ABC jointly

opened an investigation of plaintiff, with Coulter providing assistance to ABC's investigation. (RUF ¶ 11.) ABC began undercover operations beginning in approximately September 2004. On at least three occasions in 2004 and 2005, an

undercover ABC operative offered to sell plaintiff cigarettes that the operative told plaintiff were stolen. to purchase the cigarettes. Plaintiff agreed

The undercover operative also had

contact with employees of Chinca's Market concerning the purchase of cigarettes that the operative told the employees were stolen. (RUF ¶ 12.) In late January 2005, the undercover ABC operative arranged to sell plaintiff approximately twenty­five cases of cigarettes that the operative told plaintiff were stolen. The operative

also arranged to purchase from plaintiff approximately a half pound of marijuana. (RUF ¶ 13.) Coulter had no direct contact

with plaintiff or anyone else in Chinca's Market during the undercover operations. (RUF ¶ 14.) B. Arrest and Search of Plaintiff's Home and Business On February 1, 2005, ABC obtained a warrant from the Butte County Superior Court to search plaintiff's residence and Chinca's Market for evidence of stolen cigarettes and drug

5

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trafficking.

(RUF ¶ 15.)4

The warrant was supported by a

fifty-page affidavit setting forth the ABC undercover operation and evidence obtained against plaintiff with respect to attempted purchases of stolen cigarettes and attempted sale of marijuana. (RUF ¶ 16.) On February 3, 2005, per agreement, plaintiff met He paid the

undercover ABC operatives at Chinca's Market.

operatives approximately $11,000.00 for cigarettes he had been told were stolen. He also attempted to sell to the operatives a

half pound of marijuana in exchange for approximately $2,200.00. After the attempted transaction, plaintiff was arrested by ABC agents. Coulter was present, but did not physically take Pursuant to the warrant,

plaintiff into custody. (RUF ¶ 17.)

plaintiff's van was searched by an ABC investigator for evidence of drug trafficking. Marijuana was found in the cup holder next

to the driver's seat, as well as in a jar in the center console. Minutes after plaintiff was arrested, investigators from California ABC and other local law enforcement offices, assisted by some FBI agents, executed a state search warrant for Chinca's Market and plaintiff's residence in Chico. (RUF ¶ 19.) Pursuant

to the warrant, plaintiff's computers, some cash, and other evidence were seized by ABC agents and transferred to Coulter's Plaintiff disputes whether the warrant attached as Ex. E to Coutler's declaration is the warrant approved on February 1, 2005 by the Butte County judge because the copy attached to the declaration has the "no" box checked regarding approval. Coulter concedes for purposes of this motion that there is a factual dispute on this issue. However, that dispute is not material to the motion. For purposes of this motion, it is only relevant that as evidenced by the FBI's and ABC's contemporaneous reports, the Butte County judge authorized a search warrant of plaintiff's home and business on February 1, 2005, and that warrant was executed on February 3, 2005. Plaintiff does not raise any evidence to dispute those facts. 6
4

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custody.

(RUF ¶ 20.)

After forensic electronic analysis, in which Coulter did not participate, the computers were returned to plaintiff. (RUF ¶ 21.) Coulter did not participate in questioning plaintiff (RUF ¶ 22.) Coulter had no additional

after he was arrested.

involvement in any further investigation of plaintiff by ABC. (RUF ¶ 23.) C. Criminal Prosecution On February 25, 2005, the Butte County District Attorney's Office filed a criminal complaint in California Superior Court charging plaintiff with two counts of attempting to sell marijuana under California Health & Safety Code § 11360, and five counts of attempted receipt of stolen property under California Penal Code §§ 664, 496(a). (RUF ¶ 24.) Plaintiff was first

arraigned on March 11, 2005, and entered a not guilty plea on April 4, 2005. (RUF ¶ 25.) decision to prosecute. Coulter was not involved in the

(RUF ¶ 26.)

On January 17, 2006, plaintiff filed a motion to dismiss the complaint for discriminatory prosecution under Murgia v. Municipal Court, 15 Cal. 3d 286, 306 (1975) (recognizing a defendant's right to bring a pretrial motion to dismiss on the grounds of "`intentional and purposeful' invidious discrimination"). (RUF ¶ 27.) On July 17, 2007, the court

dismissed the prosecution because the FBI had not produced documents that might have been "material" to plaintiff's motion. (RUF ¶ 28.) The superior court did not grant the motion based on

any finding of discriminatory investigation or prosecution. (Id.) 7

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II.

Procedural History Plaintiff filed his original complaint on September 28,

2008.

(Docket #1.)

Therein, plaintiff alleged claims against

Coulter, the FBI, the State of California and various agents of ABC. On April 14, 2009, Coulter and the FBI moved to dismiss the (Docket # 19.) In response, plaintiff filed a first

complaint.

amended complaint, thereby mooting the motion to dismiss. (Docket # 22.) In the FAC, plaintiff continued to allege claims

against Coulter and other individual defendants but dropped the FBI as a defendant. instant motion. In the FAC, plaintiff alleges Coulter caused to be installed a surveillance camera to monitor plaintiff's place of business in Chico, examined plaintiff's bank, financial, and telephone records without a warrant; and intercepted plaintiff's telephone and computer communications without a warrant. (FAC, ¶¶ 10-17.) Plaintiff alleges that Coulter and the FBI did this because plaintiff was Palestinian and a Muslim, and that they lacked probable cause to believe he was financially supporting terrorists or that he had committed any crime. ¶¶ 18-19.) Plaintiff further alleges that in September 2004, Coulter told an employee of the California Anti-terrorism Information Center that plaintiff was suspected of participating in illegal narcotics activities and that this representation was false in that Coulter did not have information that plaintiff participated in illegal narcotics activities. (Id. at ¶¶ 22-24.) The California official relayed this information to defendant 8 (Id. at In response to the FAC, Coutler filed the

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Roman Alvarez ("Alvarez"), an ABC representative.

(Id. at ¶ 25.)

Plaintiff alleges that Alvarez contacted Coulter, and he told Alvarez that he had a report that an African male was involved in large quantities of narcotics. (Id. at ¶ 26.) Thereafter,

Coulter, Alvarez, and defendants Alba Espinoza ("Espinoza") and Joe Galvan ("Galvan"), other ABC agents, "conspired to and devised a plan to investigate, single-out for prosecution, and entrap plaintiff into committing a crime, for the purposes of assisting SA Coulter in investigating plaintiff because of his national origin and religion." (Id. at ¶ 27.)

Plaintiff alleges that in "furtherance of that conspiracy," the named defendants agreed to send Espinoza, "an attractive female" to plaintiff's business to entrap plaintiff into furnishing Espinoza with narcotics. (Id. at ¶¶ 28-29.)

Plaintiff alleges when that failed, defendants agreed to send Espinoza back to plaintiff's business to entrap plaintiff into purchasing stolen cigarettes. (Id. at ¶¶ 30-31.) On the

third occasion, plaintiff's employees agreed to purchase stolen cigarettes. (Id. at ¶¶ 32-33.)

Plaintiff further alleges that in "contravention" of ABC policy, Coulter, Alvarez, Espinoza, and Galvan decided not to arrest plaintiff's employees but to continue to send Espinoza to plaintiff's business to entrap plaintiff into "furnishing" narcotics and purchasing stolen cigarettes. (Id. at ¶ 34.)

Plaintiff finally agreed to buy cigarettes after Espinoza told plaintiff that instead of being stolen, the cigarettes were purchased on a credit card and she wanted to sell them for cash. (Id. at ¶¶ 35-38.) Plaintiff alleges Espinoza also went to 9

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plaintiff's business on three separate occasions to get him to sell her narcotics. (Id. at ¶¶ 39-40.) After being spurned

three times by plaintiff, Espinoza told plaintiff that she needed to sell illegal drugs to continue her business. 41-43.) (Id. at ¶¶

Plaintiff then agreed to furnish plaintiff with (Id. at ¶ 44.)

marijuana.

Plaintiff alleges he was then arrested, and a search warrant was served on his residence. (Id. at ¶¶ 45-46.) Plaintiff

alleges that FBI agents unlawfully "interrogated" plaintiff, asking him questions about his immigration history, his Muslim religion, how often he attended church and how much he contributed, his relationship with other Middle Eastern shopkeepers in Butte County, his contributions to local Muslim churches, his financial contributions to Hamas, "a Muslim organization," his thoughts about September 11, 2001, and where he had hidden $85,000.00 in cash in his house. 47-56.) (Id. at ¶¶

Plaintiff alleges that FBI agents illegally seized his

personal property, including his computer, videotapes, personal mail, photographs, and cash. (Id. at ¶ 57.) Plaintiff alleges

defendants' conduct violated plaintiff's constitutional rights under the Fourth, Fifth and Fourteenth Amendments. To date, no discovery has taken place. The instant motion

is Coulter's first responsive pleading to the FAC. STANDARD I. Summary Judgment The Federal Rules of Civil Procedure provide for summary judgment where "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no 10

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genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c);

see California v. Campbell, 138 F.3d 772, 780 (9th Cir. 1998). The evidence must be viewed in the light most favorable to the nonmoving party. See Lopez v. Smith, 203 F.3d 1122, 1131 (9th

Cir. 2000) (en banc). The moving party bears the initial burden of demonstrating the absence of a genuine issue of fact. Catrett, 477 U.S. 317, 325 (1986). See Celotex Corp. v.

If the moving party fails to

meet this burden, "the nonmoving party has no obligation to produce anything, even if the nonmoving party would have the ultimate burden of persuasion at trial." Nissan Fire & Marine

Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102-03 (9th Cir. 2000). However, if the nonmoving party has the burden of proof at trial, the moving party only needs to show "that there is an absence of evidence to support the nonmoving party's case." 477 U.S. at 325. Once the moving party has met its burden of proof, the nonmoving party must produce evidence on which a reasonable trier of fact could find in its favor viewing the record as a whole in light of the evidentiary burden the law places on that party. See Triton Energy Corp. v. Square D Co., 68 F.3d 1216, 1221 (9th Cir. 1995). The nonmoving party cannot simply rest on its Celotex Corp.,

allegations without any significant probative evidence tending to support the complaint. 1107. See Nissan Fire & Marine, 210 F.3d at

Instead, through admissible evidence the nonmoving party

"must set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). 11

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II.

Rule 56(f) Rule 56(f) provides in pertinent part: Should it appear from the affidavits of a party opposing the motion that the party cannot for reasons stated present by affidavit facts essential to justify the party's opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.

Fed. R. Civ. P. 56(f).

The party seeking a continuance has a First, he "must make clear

three-fold burden under Rule 56(f):

what information is sought and how it would preclude summary judgment." Garrett v. City and County of San Francisco, 818 F.2d Second, he must explain "why [he]

1515, 1518 (9th Cir. 1987).

cannot immediately provide `specific facts' demonstrating a genuine issue of material fact." Mackey v. Pioneer Nat. Bank, Third, he must put the Fed. R. Civ. P. 56(f);

867 F.2d 520, 524 (9th Cir. 1989).

foregoing explanations into an affidavit.

Brae Transp., Inc. v. Coopers & Lybrand, 790 F.2d 1439, 1443 (9th Cir. 1986). Under Rule 56(f), the party seeking a continuance bears the burden of showing what specific facts it expects to uncover that will raise an issue of material fact. Continental Maritime v.

Pacific Coast Metal Trades Dist. Council, 817 F.2d 1391, 1395 (9th Cir. 1987). The affidavit in support of the request must

make clear what information would preclude summary judgment. Garrett, 818 F.2d at 1518. Mere speculation or hope that further

information may be developed is inadequate to postpone the court's ruling on a motion for summary judgment. Neely v. St.

Paul Fire & Marine Ins. Co., 584 F.2d 341, 344 (9th Cir. 1978). 12

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Where there is no likelihood that further discovery will produce material new information, the court need not grant the continuance and may proceed to a ruling on the motion for summary judgment. California Union Ins. Co. v. American Diversified Sav.

Bank, 914 F.2d 1271, 1278 (9th Cir. 1990). ANALYSIS I. Rule 56(f) Request In the first instance, plaintiff requests a continuance of the motion to permit time for him to depose Coulter, the other named defendants and the FBI and Homeland Security Officer who interrogated plaintiff following his arrest. Plaintiff asserts

that if given an opportunity to depose Coulter he could establish Coulter's illegal motivation for investigating plaintiff. Plaintiff asserts that whether Coulter's investigation was an anti-terrorism investigation based only on plaintiff's Muslim religion and Middle-Eastern ancestry is the essential issue in this case, and if permitted to depose Coulter he could garner evidence supporting his claim of a discriminatory investigation. Plaintiff asserts that if permitted to depose the other named defendants and other persons involved in plaintiff's arrest, plaintiff could gather facts concerning the illegal bases for Coulter's investigation. [Docket # 25-4].) Plaintiff's assertions are insufficient to establish entitlement to relief under Rule 56(f). Plaintiff's counsel's (See Katz Decl., filed July 10, 2009

affidavit filed in support of the Rule 56(f) request (see id.) does not set forth what specific facts plaintiff expects to obtain that will defeat Coulter's motion for summary judgment. 13

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As set forth below, as his preliminary argument in support of his motion for summary judgment, Coulter argues plaintiff's claims are barred by the statute of limitations. Plaintiff has not

explained how the requested discovery will establish the timeliness of this action. To be entitled to relief under Rule

56(f), plaintiff's supporting affidavit must make clear what information would defeat summary judgment. 1518. Garrett, 818 F.2d at

Instead, here, plaintiff simply identifies the various

topics of which he would like to inquire of Coulter and others, without tying those inquires to the issues presented by Coulter's motion. This does not meet the requirements of the Rule; nowhere

does plaintiff identify what specific facts he anticipates gathering to defeat the instant motion. At best, plaintiff appears to want to test the credibility of Coulter's declaration filed in support of the motion. Yet,

merely testing Coulter's sworn statements through a deposition in hope that he might change his declaration is not a basis for granting a Rule 56(f) request. See e.g. Strang v. U.S. Arms

Control and Disarmament Agency, 864 F.2d 859, 861 (D.C. Cir. 1989) (holding that "[w]ithout some reason to question the veracity of [the defendant's] affiants . . . , whom [the plaintiff] sought to depose . . ., [the plaintiff's] desire to `test and elaborate' the affiants' testimony falls short" of demonstrating entitlement to relief under Rule 56(f)). Mere

speculation or hope that further information may be developed is inadequate to postpone the court's ruling on Coulter's motion for summary judgment. Neely, 584 F.2d at 344.

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Ultimately, plaintiff proposes to conduct broad discovery of Coulter and other agents without any idea of what specific facts will be obtained or how those facts will defeat summary judgment. This is precisely what Rule 56(f) does not permit. Duffy v.

Wolle, 123 F.3d 1026, 1041 (8th Cir. 1997) (holding "`Rule 56(f) does not condone a fishing expedition' where a plaintiff merely hopes to uncover some possible evidence of a constitutional violation") (citations omitted). Because plaintiff offers no

specific reasons demonstrating the necessity and utility of discovery to enable him to withstand summary judgment, the court properly denies plaintiff's Rule 56(f) request.5 II. Coulter's Motion for Summary Judgment Plaintiff brings his constitutional claims pursuant to Bivens and 42 U.S.C. § 1983.6 Such claims are governed by the

statute of limitations for personal injury actions for the state in which the misconduct allegedly occurred. 940 F.2d 406, 410 (9th Cir. 1991). Van Strum v. Lawn,

In California, the applicable Cal. Civ. Proc. Code §

statute of limitations is two years. 355.1.

Additionally, the court notes that although it does not reach the issue of qualified immunity since the action is dismissed on statute of limitations grounds, plaintiff's Rule 56(f) request also fails because the Supreme Court has repeatedly recognized the propriety of resolving issues of qualified immunity pre-discovery. See e.g. Crawford-El v. Britton, 523 U.S. 574, 597-98 (1998); Pearson v. Callahan, 129 S. Ct. 808, 815 (2009). Since Coulter is a federal officer, plaintiff's constitutional claims are authorized by Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). 15
6

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However, when the claim accrued is governed by federal law. Wallace v. Kato, 549 U.S. 384, 388 (2007); Papa v. United States, 281 F.3d 1004, 1009 (9th Cir. 2002). A constitutional tort claim

arises where plaintiff has "a complete and present cause of action"--i.e., when he can file suit and obtain relief. Wallace, 549 U.S. at 388 (internal quotations omitted). Moreover, each discrete act gives rise to a separate constitutional claim for purposes of the statute of limitations. See Carpienteria Valley Farms, Ltd., v. County of Santa Barbara, 344 F.3d 822, 829 (9th Cir. 2003) (no "continuing violation doctrine" applies to § 1983 claims). Plaintiff alleges wrongdoing by Coulter at least as early as 2004, including warrantless searches and a discriminatory investigation. (FAC, ¶¶ 22.) The culmination of the See

investigation was plaintiff's arrest and search of his office and residence on February 3, 2005. (RUF ¶¶ 17, 19, 20.) A claim for

an unreasonable search and seizure under the Fourth Amendment arises at the time of search or arrest. See Matthews v. Macanas,

990 F.2d 467, 469 (9th Cir. 1993), abrogated on other grounds; Pearce v. Romeo, C02-04011 RMW, 2007 WL 30596, *2 (N.D. Cal. Jan. 3, 2007) ("[I]t is well-settled that the statute of limitations for a section 1983 claim stemming from a warrantless search begins to run on the date of the search, not on the date the plaintiff learns that the search was constitutionally deficient.") Thus, plaintiff's Fourth Amendment claims based on

any pre-arrest searches accrued prior to February 3, 2005, and the claims based on the arrest or post-arrest searches accrued on February 3, 2005. Thus, for all of plaintiff's Fourth Amendment 16

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claims, the two-year statute of limitations ran prior to, or on, February 3, 2007, approximately a year-and-a-half before plaintiff filed the current action on September 29, 2008. Similarly, plaintiff alleges that Coulter conspired with others to cause plaintiff to be arrested, and that this too was the result of a discriminatory investigation in violation of the Fifth and Fourteenth Amendments' guarantee of equal protection. The arrest occurred on February 3, 2005, and thus, the statute ran on February 3, 2007. Further, even if the claim is construed

as one of false arrest or imprisonment due to a discriminatory motive, such a claim accrues at the time that the legal process was first initiated and a person is bound over or arraigned. Wallace, 549 U.S. at 389-90. Here, the criminal complaint was

filed against Plaintiff on February 25, 2005, and he was first arraigned on March 11, 2005. (RUF ¶ .) Thus, the statute of

limitations ran at the latest on March 11, 2007, over a year and a half before plaintiff filed his complaint in September 2008.7 In response to defendant's motion, plaintiff does not dispute that all of the conduct on which he bases his constitutional claims occurred on or before February 3, 2005. Nor does he claim that the statute was somehow tolled during the pendency of the criminal action against him.8
7

Instead, he argues

The arraignment was apparently continued to April 4, 2005, when Plaintiff entered his guilty plea. (Def.'s RJN, filed July 10, 2009, Ex. A.) Even using this date as the date of accrual, plaintiff's claim is still time barred as the statute would have run on April 4, 2007. Regardless, such an argument would be unavailing. In Wallace v. Kato, the Supreme Court held that there is no federal tolling of constitutional torts while a plaintiff is subject to a criminal prosecution. 549 U.S. at 394-95. 17
8

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his claims are not time barred because he only learned in November 2006 of the alleged "conspiracy" to deprive him of his rights. Plaintiff alleges a conspiracy only with respect to his second claim for relief for violation of the Fourteenth Amendment's due process protections. Thus, plaintiff offers no

rebuttal to Coulter's motion that plaintiff's Fourth Amendment unlawful search and seizure and Fifth and Fourteenth Amendment equal protection claims are barred by the statute of limitations. Coulter's motion is thus properly granted on the basis of plaintiff's failure to oppose the motion on those issues. With

respect to plaintiff's second claim for relief, for a civil conspiracy, "it is the wrongful act, not the conspiracy, which is actionable in a civil case." (9th Cir. 1984). Compton v. Ide, 732 F.2d 1429, 1433

Thus, the Ninth Circuit has recognized that

under the "last overt act" rule, injury flows from the alleged wrongful acts, not the existence of the conspiracy. Gibson "The

v.United States, 781 F.2d 1334, 1340 (9th Cir. 1986).

existence of a conspiracy does not generally postpone accrual of causes of action arising from the conspirators' separate wrongs." Compton, 732 F.2d at 1433. Rather, a plaintiff may recover only

for the overt acts that occurred within the statute of limitations; here, after September 29, 2006. See Gibson,

Following Wallace, courts in this district have similarly found Bivens and § 1983 claims time-barred despite the pendency of state criminal proceedings that related to the underlying alleged constitutional tort. See e.g., Kamar v. Krolczyk, 07-CV-0340 AWI TAG, 2008 WL 2880414, * 6-7, 11-12 (E.D. Cal. July 22, 2008) (claims based on unreasonable search and seizure time-barred); Olson v. Oreck, 06-CV-2064 MCE-CMK, 2008 WL 149976, *6-7 (E.D. Cal. Jan. 14, 2008) (same). 18

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781 F.2d at 1340.

All of the overt acts that plaintiff complains

were part of the conspiracy--e.g., installation of the pole camera, the review of his records and email, his arrest, and the search of his home, car, and office--occurred prior to or in February 2005, well outside of the limitations period. Thus, any conspiracy claim is barred. Gibson, 781 F.2d at 1340;

Hogan v. Robinson, 01:03-CV-0648 LJO WMW, 2007 WL 2972911, * 4-5 (E.D. Cal. Oct. 10, 2007) (granting judgment on § 1983 claim where all overt acts occurred prior to statute of limitations). Contrary to plaintiff's argument, the Ninth Circuit in Kimes v. Stone, 84 F.3d 1121 (9th Cir. 1996) did not hold differently. In Kimes, the Ninth Circuit applied the discovery rule to a conspiracy claim, finding that the claim accrued when the injury (overt act) is known or reasonably should have been known. at 1128. Id.

In contrast, plaintiff here cannot plead ignorance to In

the overt acts that give rise to his conspiracy claim.

particular, plaintiff stated in his declaration submitted in this case that he was questioned by an FBI agent on February 3, 2005, the date of the arrest, about his possible ties to Hamas and his religion. (See Yasin Decl. [Docket No. 25-6], at ¶¶ 5-7; Pickles

Decl., filed July 10, 2009, Ex. A (6/12/2007 Reporter's Transcript), at 14:18-18:2.) Morever, it is undisputed that

plaintiff was aware of the FBI's involvement in a potential investigation even earlier than his arrest when he called the FBI directly in October 2004 about the installation of a pole camera outside of his convenience store. (RUF, ¶ 9; Pickles Decl., Ex. A at 18:6-20:4.) All of this occurred in or prior to February 19

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2005.

Moreover, at the latest, plaintiff's suspicions of an

improper investigation culminated in January 2006 when plaintiff brought his motion to dismiss, in state court, for a selective prosecution based on race and religion. (RJN, Ex. A [Docket No. 24-8].) Accordingly, plaintiff was aware of the overt acts on which he is now basing his conspiracy claim and could have formed a belief that his arrest was improperly motivated by race or religion long before the statute of limitations ran. Moreover,

that plaintiff claims he was not aware of the full extent of Coulter's involvement in an alleged conspiracy until a hearing in November 2006 does not defeat summary judgment. Coulter submits

evidence, which is undisputed by plaintiff, that plaintiff and his attorney met with Coulter in May 2006 when Coulter returned plaintiff's computer and other items. 20:21-22:23.) (Pickles Decl., Ex. A at

Further, an ABC agent testified as to the FBI's

involvement in ABC's investigation during a hearing on plaintiff's motion to dismiss in July 2006. (See Pickles Decl., Thus,

Ex. B (7/11/2006 Reporter's Transcript) at 13:22-18:4.)

plaintiff was aware or reasonably should have been aware of Coulter and the FBI's involvement in ABC's investigation months before he now claims. It is Plaintiff's knowledge of the overt

acts, not of the conspiracy or the extent of Coulter's involvement, that triggers the statute. See e.g., Pearce v. Romeo, 299 Fed. Appx. 653, 655-56 (9th Cir. 2008) (claims barred where arrest and search known to plaintiff despite claim he did not know full extent of alleged misconduct until later); Amcor Capital Corp. v. United States, 94-CV-21814 DT, 1995 WL 769173, 20

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*3-5 (C.D. Cal. June 12, 1995) (granting judgment where plaintiff aware of misconduct before statue ran despite plaintiff's claims it was unaware of conduct). Because all of the conduct on which plaintiff bases his claims occurred on or before February 2005, and plaintiff was aware or reasonably should have been aware of this conduct long before the statute ran, his claims against Coulter are time barred and Coulter is entitled to summary judgment. CONCLUSION For the foregoing reasons, plaintiff's motion for a continuance, pursuant to Rule 56(f), to permit time for discovery is DENIED. Defendant Coulter's motion for summary judgment is

granted on the ground that plaintiff's claims against him are barred by the statute of limitations. The case remains pending against the other named defendants, Espinoza, Galvan and Alvarez. Plaintiff shall have 90 days from

the date of this Order to effectuate service on said defendants or the court will dismiss the action for a failure to timely serve. Fed. R. Civ. P. 4(m).

IT IS SO ORDERED. DATED: September 8, 2009

FRANK C. DAMRELL, JR. UNITED STATES DISTRICT JUDGE

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