Unpublished Disposition, 874 F.2d 816 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 874 F.2d 816 (9th Cir. 1989)

Manuel I. MARUSICH, Plaintiff-Appellant,v.K. ALBRIGHT, Detective Sergeant, Las Vegas MetropolitanPolice Department; R. Travers, Detective, Las VegasMetropolitan Police Department; T. Acklin, Detective, LasVegas Metropolitan Police Department; R. Mesinar,Detective, Las Vegas Metropolitan Police Department; J.Campbell, Detective, Las Vegas Metropolitan PoliceDepartment; Frank C. Cook, Esq.; John R. Kinsinger, Esq.,Deputy District Attorney; Robert J. Miller, Esq., DistrictAttorney; Gregory C. Diamond, Esq., Deputy DistrictAttorney; Bernard Little, Esq., Deputy District Attorney;L. Jim O'Neal, Esq., Deputy District Attorney; Carl J.Christensen, Judge, Department of Parole & Probation;Carole Van Dyke, Officer, Department of Parole & Probation,Defendants-Appellees.

No. 87-1901.

Ninth Circuit.

Submitted Feb. 9, 1989.Decided April 25, 1989.

Before PREGERSON, O'SCANNLAIN and TROTT, Circuit Judges.


MEMORANDUM** 

Manuel Marusich, a Nevada state prisoner, appeals pro se from the district court's order dismissing his civil rights complaint without leave to amend. Marusich contends that five members of the Las Vegas Police Department, a Nevada probation officer, and his private defense attorney conspired to deprive him of his constitutional rights in violation of 42 U.S.C. §§ 1983 and 1985. These violations allegedly occurred during Marusich's arrest in November 1980 and continued throughout his state criminal proceedings, culminating in his sentencing in July 1983. We affirm in part, and reverse and remand in part.

* On November 7, 1980, Marusich was arrested in Las Vegas, Nevada on drugs and weapons charges. He was apparently injured during the course of his arrest. Marusich alleges that after his arrest, Las Vegas Police detective Mesinar threatened him with a gun and took $250 from him.

Private attorney Frank Cook assisted Marusich in obtaining release on bail. After Marusich was released pending trial, he and Cook discussed the possibility of filing a civil action against the police officers who arrested him.

Marusich failed to appear at his arraignment, and a bench warrant issued for his arrest. He was later located in Arizona and extradicted to Nevada in August 1982.1  Pursuant to a plea agreement, Marusich pleaded guilty on May 12, 1983, and was sentenced to ten years' imprisonment by Eighth Judicial District Court Judge Christensen on July 28, 1983.2 

On February 3, 1986, Marusich filed his civil rights complaint in federal district court. Named as defendants were Las Vegas police officers Albright, Travers, Acklin, Mesinar, and Campbell; attorney Cook; five Nevada district attorneys; Judge Christensen; and probation officer Van Dyke. Marusich alleged that the defendants violated 42 U.S.C. §§ 1983 and 1985 by conspiring to injure him during his arrest, falsify reports and evidence against him, falsely convict and imprison him, and cause him severe mental anguish. Marusich also alleged that detective Mesinar threatened him with a gun and, in concert with Albright, Travers, and Acklin, conspired to deprive him of his property. He sought damages and declaratory relief.

The district court granted the defendants' motions to dismiss, finding the district attorneys and Judge Christensen absolutely immune from suit and Marusich's suit against the remaining defendants barred by the statute of limitations. The court also determined that probation officer Van Dyke had not been properly served and was therefore not a party to the action. Marusich timely appeals, but only as to defendants Van Dyke, Cook, and the police officers.

II

This court reviews de novo the dismissal of an action for failure to state a claim under Fed. R. Civ. P. 12(b) (6). Mir v. Little Co. of Mary Hosp., 844 F.2d 646, 649 (9th Cir. 1988). A court should liberally construe pro se civil rights pleadings, affording the plaintiff the benefit of any doubt. King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n. 1 (9th Cir. 1985) (en banc)). Before dismissing a pro se action for failure to state a claim, the court must generally provide the plaintiff with notice of the complaint's deficiencies and an opportunity to amend. Hernandez v. Denton, 861 F.2d 1421, 1423 (9th Cir. 1988). However, where it is "absolutely clear that the deficiencies of the complaint could not be cured by amendment," the action may be dismissed. Id. (quoting Franklin v. Murphy, 745 F.2d 1221, 1228 n. 9 (9th Cir. 1984)).

A dismissal on statute of limitations grounds presents a question of law reviewed de novo. Donoghue v. Orange County, 848 F.2d 926, 929 (9th Cir. 1987). When a motion to dismiss is based on the running of the statute of limitations, "it can be granted only if the assertions of the complaint, read with the required liberality, would not permit the plaintiff to prove that the statute was tolled." Jablon v. Dean Witter & Co., 614 F.2d 677, 682 (9th Cir. 1980).

III

When a complaint alleges a conspiracy to interfere with state court proceedings in violation of 42 U.S.C. § 1985, the claims must be based upon either the second clause of section 1985(2) or the first clause of section 1985(3). Bretz v. Kelman, 773 F.2d 1026, 1028 (9th Cir. 1985) (en banc). Under these clauses of section 1985, an allegation of racial or class-based animus is an essential element of the claim. Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987). To establish such animus, a plaintiff must show an "invidiously discriminatory motivation ... behind the conspirators' action." Id. (quoting Griffin v. Breckenridge, 403 U.S. 88, 102 (1971)).

Marusich alleges in his complaint that he is a Mexican national. However, even construing his complaint liberally, Marusich does not allege that the defendants' actions were motivated by racial or class-based discrimination. The district court properly dismissed Marusich's section 1985 claim without granting leave to amend.

IV

Marusich contends the district court erred in failing to permit him to serve probation officer Van Dyke by publication. However, because Van Dyke is immune from suit under section 1983, we need not address whether the denial of service was proper.

Probation officers have absolute judicial immunity from damage suits under 42 U.S.C. § 1983 for acts performed within the scope of their official duties. Demoran v. Witt, 781 F.2d 155, 158 (9th Cir. 1986). This immunity is not pierced by allegations of conspiracy, Ashelman v. Pope, 793 F.2d 1072, 1078-79 (9th Cir. 1986) (en banc), or bad faith, Demoran, 781 F.2d at 158.

Van Dyke acted within the scope of her duties when she prepared Marusich's presentence report. Under Nev.Rev.Stat. Sec. 175.135, the Department of Corrections is required to prepare presentence investigative reports for court use prior to the sentencing of criminal defendants who have pled guilty; Nev.Rev.Stat. Sec. 210.1096(8) directs assistant probation officers to make written reports as required by the court. Van Dyke is therefore immune from suit under section 1983 for preparing Marusich's presentence report. See Demoran, 781 F.2d at 158.3 

Consequently, even if the district court erred in not permitting Marusich to serve Van Dyke by publication, Marusich cannot state a section 1983 claim against Van Dyke. Because this court may affirm on any basis presented in the record, Samarzia v. Clark County, No. 87-2558, slip op. at 1008 (9th Cir. Feb. 3, 1989), the district court's dismissal of Marusich's claim against Van Dyke is affirmed.

V

Marusich argues that the district court erred in dismissing his claims against attorney Cook and the police officers as time-barred. To identify those acts which remained actionable at the time Marusich filed his complaint on February 3, 1986, we must determine when Marusich's claims accrued, and the applicable limitations period.

Federal law determines when a cause of action accrues. Compton v. Ide, 732 F.2d 1429, 1432 (9th Cir. 1984). This court utilizes the "last overt act" doctrine to determine the accrual of civil conspiracies under section 1983 for limitations purposes. Gibson v. United States, 781 F.2d 1334, 1340 (9th Cir. 1986), cert. denied, 479 U.S. 1054 (1987). Under this doctrine, a cause of action runs separately from each overt act that is alleged to have caused damage to the plaintiff. Id. Each cause of action accrues when the plaintiff knows or has reason to know of the injury resulting from each act. Compton, 732 F.2d at 1432; see also Beneficial Standard Life Ins. Co. v. Madariaga, 851 F.2d 271, 275 (9th Cir. 1988). A plaintiff may recover only for the causes of action he has specifically alleged to have accrued within the appropriate limitations period. Gibson, 781 F.2d at 1340.

Marusich has alleged that the following overt acts caused him injury: (1) his arrest and the physical harm, deprivation of $250, and threats to his life made immediately thereafter; (2) Cook's failure to file a civil rights action for him against the police officers; (3) his arrest in Arizona and extradition to Nevada; (4) his guilty plea; and (5) the use of a presentence report containing false information at his sentencing. Marusich had reason to know of the injuries resulting from each act, and his causes of action therefore accrued, on the following dates: (1) his arrest and the resulting harm--November 7, 1980; (2) Cook's failure to file suit--March 26, 1982;4  (3) his extradition--August 1982; (4) his guilty plea--May 1983; (5) his sentencing--July 1983. It must therefore be determined whether any of these causes of action accrued within the applicable limitations period.

The applicable statute of limitations for section 1983 actions in Nevada was changed from three years, Nev.Rev.Stat. Sec. 11.190(3) (a); Mason v. Schaub, 564 F.2d 308, 309 (9th Cir. 1977), to two years, Nev.Rev.Stat. Sec. 11.190(4) (e), when on April 17, 1985, the Supreme Court handed down its decision in Wilson v. Garcia, 471 U.S. 261 (1985).

In Usher v. City of Los Angeles, 828 F.2d 556 (9th Cir. 1987), we addressed the retroactive effect of Wilson and held that "the limitation period for causes of action arising prior to Wilson shall be either (1) the pre-Wilson period, commencing at the time the cause of action arises, or (2) the post-Wilson period, commencing with the [date of the] Wilson decision, whichever expires first." Id. at 561. In this case, the former period occurred first with regard to each of the overt acts alleged in Marusich's complaint. As such, the applicable limitations period for all of Marusich's claims is three years.

Marusich filed his civil rights complaint on February 3, 1986. Therefore, any of his causes of action which accrued after February 3, 1983 are actionable under section 1983. Because Marusich's guilty plea and sentencing occurred after February 3, 1983, these causes of action accrued within the applicable limitations period and are therefore not time-barred.

Accordingly, we affirm the dismissal of Marusich's section 1983 claim against the police officers and Cook to the extent that it is based on activity preceding February 3, 1983, but reverse the dismissal of that claim to the extent that it is based on occurrences after that date. See Gibson, 781 F.2d at 1340.5 

VI

Marusich contends on appeal that he was denied due process because he received notice of the date of the hearing on defendants' motions to dismiss too late to attend the hearing, and because the hearing proceeded without his presence. However, as the following facts indicate, it was Marusich's own actions which caused him to receive the "late" notice. His contention is therefore frivolous.

On October 15, 1986, the district court notified all parties that oral argument on defendants' motions to dismiss would be heard on November 7, 1986. Marusich moved for postponement of the hearing on the ground that he would be incarcerated in Arizona until December 12, 1986, but could attend a hearing after that date. In response, the court twice continued the hearing date: in a November 5 order, the hearing was continued until December 19; in an order dated December 11, the court continued the hearing until January 9, 1987.

Marusich was sent notification concerning the January 9 hearing. However, this notice was returned by the post office as "undeliverable" on December 19, 1986 because Marusich had been released from prison. Marusich failed to notify the court of his new address until January 5, 1987. On that date, the clerk sent Marusich a copy of the order indicating the hearing date. On January 9, Marusich failed to appear. It is apparent that Marusich's own actions caused him to receive the delayed notice. He cannot state a due process claim based on such circumstances.

VII

The district court judgment is affirmed in part and reversed in part, and remanded for further proceedings consistent with this opinion.

AFFIRMED IN PART, REVERSED IN PART, and REMANDED.

 *

Submitted Feb. 9, 1989.
Decided April 25, 1989.

 *

The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a) and Ninth Circuit Rule 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. Rule 36-3

 1

Marusich hired private attorney Tony Behrens to fight extradition. During the course of his representation, Behrens sent a letter to attorney Cook, requesting information regarding Marusich's arrest and whether any civil action had been filed by Cook on Marusich's behalf. On March 26, 1982, Behrens received a letter indicating that no such civil action had been filed

 2

Marusich's presentence report, prepared by probation officer Carole Van Dyke, is dated June 28, 1983

 3

Although Marusich also requested declaratory relief, because his criminal proceedings are now over, equitable remedies are no longer available and the propriety of the dismissal of his claim against Van Dyke turns on whether immunity bars recovery of money damages from her. See Ashelman, 793 F.2d at 1075

 4

Marusich argues that he did not become aware that no suit had been filed against the officers until November 1984 because the defendants fraudulently concealed this fact from him. To toll a statute of limitations based on a claim of fraudulent concealment, the plaintiff must plead with particularity facts which show that the defendant actively misled him, and that he had neither actual nor constructive knowledge of the facts constituting his cause of action despite due diligence in trying to uncover those facts. Volk v. D.A. Davidson & Co., 816 F.2d 1406, 1415-16 (9th Cir. 1987); Rutledge v. Boston Woven Hose & Rubber Company, 576 F.2d 248, 249-50 (9th Cir. 1978)

Because Marusich alleged that he was not informed by Cook that no action had been filed against the police officers, he has pled sufficient facts to show that he was actively misled. See Rutledge, 576 F.2d at 250. He cannot, however, show that he neither had actual nor constructive knowledge of facts constituting his cause of action. Marusich had reason to know that Cook had not filed his action when his new attorney, Behrens, received Cook's March 1982 letter stating that no filing had been made. Notice to an attorney constitutes notice to a client. NLRB v. Sequoia District Council of Carpenters, AFL-CIO, 568 F.2d 628, 633 (9th Cir. 1977); see also Lange v. Hickman, 92 Nev. 41, 544 P.2d 1208, 1209 (1976). Marusich does not allege that Behrens was part of the conspiracy. Thus, if there was any fraudulent concealment by defendants, the running of the statute of limitations would have been tolled only until Behrens received this letter. This date, therefore, is when Marusich's cause of action accrued as to this claim.

 5

Although Marusich failed to allege that Cook and the police officers were directly involved in his guilty plea and sentencing, he did allege that all the defendants were part of an ongoing conspiracy to falsely convict and imprison him. Because the district court dismissed Marusich's complaint for failure to state a claim without granting leave to amend, this court must accept all of the complaint's allegations as true. See Usher, 828 F.2d at 558 n. 1. Thus, Marusich has stated a section 1983 claim against the remaining defendants based on his allegations of conspiracy, see Stanger v. City of Santa Cruz, 653 F.2d 1257, 1258 (9th Cir. 1980), even though some of the conspirators have been dismissed on immunity grounds, see Dennis v. Sparks, 449 U.S. 24, 27-28 (1980). Moreover, allegations that a private attorney conspired with state officials are sufficient to meet the "state action" requirement of section 1983. See Tower v. Glover, 467 U.S. 914 (1984). Thus, Marusich has stated a section 1983 claim against Cook even though Cook is a private attorney