Unpublished Disposition, 895 F.2d 1416 (9th Cir. 1990)

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U.S. Court of Appeals for the Ninth Circuit - 895 F.2d 1416 (9th Cir. 1990)

John BIRGES, Sr., Plaintiff-Appellant,v.J. Michael QUINLAN, et al., Defendants-Appellees.

No. 88-6439.

United States Court of Appeals, Ninth Circuit.

Feb. 5, 1990.

Before DAVID A. NELSON, BRUNETTI, and O'SCANNLAIN, Circuit Judges.


John Birges, plaintiff-appellant, appeals the dismissal with prejudice of six separate Bivens causes of action based upon defendants-appellees' alleged deprivation of his constitutional rights. See Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971). Birges is currently serving a twenty year sentence imposed in 1982 by the United States District Court in Las Vegas for the bombing of Harvey's Casino at Lake Tahoe, Nevada in August, 1980. We affirm the district court's dismissal of each cause of action.

Birges' first claim seeks damages from various federal defendants for allegedly violating his right to due process by failing to conduct an independent investigation into an admitted prior conviction. The Probation Officer properly included the conviction in the presentence report and is immune from civil liability. See Demoran v. Witt, 781 F.2d 155, 157-58 (9th Cir. 1986). Because Birges admits the prior conviction listed in the presentence report, the Unit Managers' and Warden's reliance upon this conviction was proper. Therefore, the district court properly dismissed this claim with prejudice.

Birges' second claim seeks damages from various federal and state defendants for permitting his removal to Nevada, which he alleges was illegal. In Birges v. United States, No. CV84-628-RG(B) (D. Nev. 1984), the court held that Birges' removal to Nevada for state prosecution was lawful. The named defendants properly turned Birges over to Nevada authorities following this ruling and thus are immune from civil liability. Therefore, the district court properly dismissed this claim with prejudice.

Birges' third, fourth, and fifth claims seek damages from various federal defendants for alleged injuries caused by defendants' alleged wrongful acts and negligence, individually and collectively under an alleged conspiracy or common scheme, regarding the alleged prevention of contact between Birges and the media and other persons. The statute of limitations for such claims in the state of California is one year. Cal.Civ.Proc.Code Sec. 340. See also Wilson v. Garcia, 471 U.S. 261 (1985). The fourth and fifth causes of actions in Birges' complaint allege events occurring more than one year before the filing of the complaint. As the third cause of action conceivably alleges events occurring within one year of filing, the district court granted Birges leave to amend, which he failed to do, before dismissing the claim with prejudice. Birges admits in his brief on appeal that none of the events alleged in the complaint as to limitations of visitation occurred within one year of filing. Therefore, the district court properly dismissed these three claims with prejudice.

Birges' sixth and last claim purports to incorporate the allegations of the first five claims. As each of these claims was properly dismissed with prejudice, the district court properly dismissed this claim with prejudice.



The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); 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 Circuit Rule 36-3