Tracey Brown v. Gary Torsky , 667 F. App'x 647 ( 2016 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 18 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
TRACEY L. BROWN, No. 14-16358
Plaintiff-Appellant, D.C. No.
2:12-cv-00173-JCM-GWF
v.
GARY TORSKY, Metro Police Department MEMORANDUM*
/ Officer; GORDON MARTINES, Metro
Police Department / Officer; LAS VEGAS
METROPOLITAN POLICE
DEPARTMENT; ANTHONY BROWN;
CLARK COUNTY NEVADA; DOUGLAS
C. GILLESPIE; JAMES BUCZEK, Metro
Police Department / Officer,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Argued and Submitted July 6, 2016
San Francisco, California
Before: SILVERMAN, and NGUYEN, Circuit Judges, and GARBIS,** District
Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Marvin J. Garbis, United States District Judge for the
District of Maryland, sitting by designation.
Tracey Brown appeals the district court’s dismissal pursuant to Federal Rule
of Civil Procedure 12(b)(6) of federal and state claims relating to a search of his
home that Las Vegas Metropolitan Police Department officers conducted in 2005.
Specifically, Brown argues that his claims under 42 U.S.C. §§ 1983 and 1985 and
Nevada state law for malicious prosecution should survive dismissal due to the
doctrine of equitable tolling. We have jurisdiction under 28 U.S.C. § 1291, and
we affirm.1
The parties agree on appeal that Brown’s §§ 1983 and 1985 claims and his
claim for malicious prosecution under Nevada state law are all subject to two-year
statutes of limitations. See Jones v. Blanas, 393 F.3d 918, 927 (9th Cir. 2004);
Perez v. Seevers, 869 F.2d 425, 426 (9th Cir. 1989); Nev. Rev. Stat. 11.190(4)(c);
Nev. Rev. Stat. 11.190(4)(e). They also agree that these claims accrued no later
than August 3, 2009, the date on which the Nevada Supreme Court overturned his
initial state conviction due to the illegality of the 2005 search. See Wallace v.
Kato, 549 U.S 384, 389-90 (2007). Brown’s claims are untimely because he first
filed them on February 1, 2012, more than two years after the accrual date, and the
factors primarily relied on by Nevada courts weigh against the application of
1
We grant Brown’s unopposed request for judicial notice.
2
equitable tolling. See Copeland v. Desert Inn Hotel, 673 P.2d 490, 492 (Nev.
1983) (per curiam) (listing as six non-exhaustive factors: claimant’s diligence,
claimant’s knowledge of relevant facts, claimant’s reliance on misleading
authoritative statements by an administrative agency, deception by the defendants,
prejudice to opposing party, and any other equitable considerations); State Dep’t of
Taxation v. Masco Builder Cabinet Grp., 265 P.3d 666, 671 (Nev. 2011).
Brown alleges that he was confused by the fact that the state continued to
pursue criminal proceedings against him even after his conviction was reversed,
and that the statute of limitations should be tolled until April 13, 2010, when he
entered a plea that ultimately resolved the proceedings. But Brown cannot
establish diligence because the Nevada State Court made clear that the 2005 search
was “unlawful” and that evidence from it could not be used in any future
proceeding months before Brown’s plea date, and Brown offers no examples of
actions that he actually took to attempt to address his confusion. Brown’s
argument that the defendants would not be prejudiced does not, standing alone,
support equitable tolling here, particularly where the balance of the remaining
Copeland factors weigh against him. See 673 P.2d at 492.
AFFIRMED.
3