Thomas Bondurant v. City of Battle Ground , 698 F. App'x 361 ( 2017 )


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  •                            NOT FOR PUBLICATION                           FILED
    UNITED STATES COURT OF APPEALS                        OCT 4 2017
    MOLLY C. DWYER, CLERK
    U.S. COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    THOMAS BONDURANT; MICHELLE                      No. 16-36085
    BONDURANT, husband and wife,
    D.C. No. 3:15-cv-05719-KLS
    Plaintiffs-Appellants,
    v.                                             MEMORANDUM*
    CITY OF BATTLE GROUND; et al.,
    Defendants-Appellees.
    Appeal from the United States District Court
    for the Western District of Washington
    Karen L. Strombom, Magistrate Judge, Presiding**
    Submitted September 26, 2017***
    Before:      SILVERMAN, TALLMAN, and N.R. SMITH, Circuit Judges.
    Thomas Bondurant and Michelle Bondurant appeal pro se from the district
    court’s summary judgment in their 
    42 U.S.C. § 1983
     action alleging federal and
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by Ninth Circuit Rule 36-3.
    **
    The parties consented to proceed before a magistrate judge. See 
    28 U.S.C. § 636
    (c).
    ***
    The panel unanimously concludes this case is suitable for decision
    without oral argument. See Fed. R. App. P. 34(a)(2).
    state law claims. We have jurisdiction under 
    28 U.S.C. § 1291
    . We review de
    novo. Blankenhorn v. City of Orange, 
    485 F.3d 463
    , 470 (9th Cir. 2007). We
    affirm.
    The district court properly granted summary judgment for the City of Battle
    Ground because the Bondurants failed to raise a genuine dispute of material fact as
    to whether the alleged deprivations were caused by municipal policy, custom, or
    practice, or whether the allegedly unconstitutional conduct was ratified by an
    official with final policymaking authority. See Monell v. Dep’t of Soc. Servs., 
    436 U.S. 658
    , 694 (1978) (explaining municipal liability under § 1983); Gilette v.
    Delmore, 
    979 F.2d 1342
    , 1346-47 (9th Cir. 1992) (in the absence of an expressly
    adopted municipal policy, municipal liability under § 1983 can be established by
    proving that an official with final policymaking authority ratified a subordinate’s
    unconstitutional decision or action and basis for it).
    The district court properly granted summary judgment for the Battle Ground
    Police Department because the Bondurants failed to establish that the Battle
    Ground Police Department is an entity with capacity to be sued under Washington
    law. See Fed. R. Civ. P. 17(b); BATTLE GROUND, WASH., MUN. CODE § 2.30.040
    (2009); Shaw v. Cal. Dep’t of Alcoholic Beverage Control, 
    788 F.2d 600
    , 604
    2                                   16-36085
    (1986) (an entity’s capacity to be sued in federal court is determined by state law);
    Roth v. Drainage Improvement Dist. No. 5, of Clark Cty., 
    392 P.2d 1012
    , 1014-15
    (Wash. 1964) (“In determining the issue of [an entity’s] capacity to be sued, we
    must examine the enactment providing for its establishment.”).
    The district court did not abuse its discretion by denying the Bondurants’
    motion to amend their complaint because amendment would be futile. See
    Johnson v. Buckley, 
    356 F.3d 1067
    , 1077 (9th Cir. 2004) (setting forth standard of
    review and factors for determining whether to grant leave to amend, and stating
    that “[f]utility alone can justify the denial of a motion to amend” (internal
    quotation marks omitted)). The district court properly concluded that the
    Bondurants’ amended complaint was time-barred. See Bagley v. CMC Real Estate
    Corp., 
    923 F.2d 758
    , 760 (9th Cir. 1991) (limitations period for § 1983 claim is
    three years under Washington law). The district court also properly concluded that
    the new allegations did not relate back to their original complaint because the
    Bondurants failed to demonstrate that the claims alleged in the amended complaint
    “arose out of the conduct, transaction, or occurrence set forth or attempted to be set
    forth in the original pleading” or that the parties had adequate notice of those
    claims. Wash. Civ. R. 15(c); see Williams v. Boeing Co., 
    517 F.3d 1120
    , 1132-33
    3                                    16-36085
    (9th Cir. 2008) (setting forth standard of review); Merritt v. County of Los Angeles,
    
    875 F.2d 765
    , 768 (9th Cir. 1989) (explaining that relation back provisions of state
    law govern § 1983 actions); Stansfield v. Douglas County, 
    43 P.3d 498
    , 500-01
    (Wash. 2002) (discussing requirements for relation back under Wash. Civ. R.
    15(c)).
    We do not consider documents not filed with the district court. See United
    States v. Elias, 
    921 F.2d 870
    , 874 (9th Cir. 1990) (“Documents or facts not
    presented to the district court are not part of the record on appeal.”).
    Appellees’ motion to strike (Docket Entry No. 12) is denied.
    AFFIRMED.
    4                                  16-36085