766 F.3d 1191 (9th Cir. 2014), 11-55806, Butler v. Nat'l Cmty. Renaissance of California

Docket Nº:11-55806
Citation:766 F.3d 1191
Opinion Judge:BENNETT, District Judge:
Party Name:ZINA BUTLER, Plaintiff-Appellant, v. NATIONAL COMMUNITY RENAISSANCE OF CALIFORNIA, AKA National Community Renaissance Corp., Defendant, and HOUSING AUTHORITY OF THE COUNTY OF LOS ANGELES; CITY OF PALMDALE; OSCAR BARRAZA; AND LEE D'ERRICO, Defendants-Appellees
Attorney:Jeremy B. Rosen (argued), Horvitz & Levy, L.L.P., Encino, California; Andrew Wilhelm and Ashley Cook, certified law students, Ninth Circuit Appellate Advocacy Clinic, Pepperdine University School of Law, Malibu, California, for Plaintiff-Appellant Zina Butler. Toussaint S. Bailey (argued), Steven...
Judge Panel:Before: Stephen S. Trott, Consuelo M. Callahan, Circuit Judges, and Mark W. Bennett, District Judge.[*] Opinion by Judge Bennett.
Case Date:September 12, 2014
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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766 F.3d 1191 (9th Cir. 2014)

ZINA BUTLER, Plaintiff-Appellant,

v.

NATIONAL COMMUNITY RENAISSANCE OF CALIFORNIA, AKA National Community Renaissance Corp., Defendant, and HOUSING AUTHORITY OF THE COUNTY OF LOS ANGELES; CITY OF PALMDALE; OSCAR BARRAZA; AND LEE D'ERRICO, Defendants-Appellees

No. 11-55806

United States Court of Appeals, Ninth Circuit

September 12, 2014

Argued and Submitted, Pasadena, California June 2, 2014

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[Copyrighted Material Omitted]

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Appeal from the United States District Court for the Central District of California. D.C. No. 5:09-cv-00761-MMM-E. Margaret M. Morrow, District Judge.

Jeremy B. Rosen (argued), Horvitz & Levy, L.L.P., Encino, California; Andrew Wilhelm and Ashley Cook, certified law students, Ninth Circuit Appellate Advocacy Clinic, Pepperdine University School of Law, Malibu, California, for Plaintiff-Appellant Zina Butler.

Toussaint S. Bailey (argued), Steven R. Orr, and Aaron C. O'Dell, Richards, Watson & Gershon, P.C., Los Angeles, California, for Defendants-Appellees City of Palmdale and Oscar Barraza.

Nicole A. Davis Tinkham and Christian E. Foy Nagy, Collins Collins Muir + Stewart, L.L.P., South Pasadena, California, for Defendants-Appellees Housing Authority of the County of Los Angeles and Lee D'Errico.

Before: Stephen S. Trott, Consuelo M. Callahan, Circuit Judges, and Mark W. Bennett, District Judge.[*] Opinion by Judge Bennett.

OPINION

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BENNETT, District Judge:

Plaintiff-appellant Zina Butler appeals from the district court's granting appellees' motions to dismiss her 42 U.S.C. § 1983 action challenging the constitutionally of a warrantless search of her apartment by various actors. The district court held that Butler's claims were untimely filed. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

We review de novo the district court's determination of whether a claim is barred by the statute of limitations. See Pouncil v. Tilton, 704 F.3d 568, 574 (9th Cir. 2012), cert. denied, 134 S.Ct. 76, 187 L.Ed.2d 30 (2013). Likewise, we review the district court's application of the relation-back doctrine under Federal Rule of Civil Procedure 15(c) de novo. See Williams v. Boeing Co., 517 F.3d 1120, 1132 (9th Cir. 2008).

I. BACKGROUND

A. The Pleadings

On April 17, 2009, Butler filed a one-page complaint, a request to proceed in forma pauperis, and a request for an attorney in federal district court. The caption of the complaint named only National Community Renaissance Corporation (" National CORE" ) as a defendant. The complaint alleged:

On April 18th 2007 apartment manager in absence of a search warrant gave Section 8 investigator and City employee and Sheriff deputies the keys to my apartment who then entered without search warrant or consent And began searching my apartment. Sheriff deputies removed me from My home and issued me a citation and then released me at that point. And in that situation they violated my 4th amendment right.

On April 22, 2009, Butler filed a first amended complaint. The caption again named National CORE as a defendant and added the Housing Authority of the County of Los Angeles (" HACoLA" ). The first amended complaint alleged:

On April 18th 2007 apartment manager in absence of a search warrant gave Section 8 investigator and city employee and Sheriff deputies the keys to my apartment who then entered without search warrant or consent And began searching my apartment. Sheriff deputies removed me from My home and issued me a citation and then released me at that point. And in that situation they violated my 4th AMENDMENT RIGHT.

I am adding Housing Authority To my compliant [sic].

On May 15, 2009, the court sua sponte dismissed the first amended complaint with leave to amend because " it [was] unclear whom Plaintiff intends to sue."

On June 17, 2009, Butler filed a second amended complaint, again identifying National CORE and HACoLA in the caption. In the " Statement of Facts," Butler alleged the following:

On April 18th 2007 Section 8 investigator Mr. Derrico came to my apartment and knocked on my door. I asked who is it and he said Housing Authority investigator and I ask him if he had a

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search warrant from my upstairs window he said no and I told him that I was not going to let him in then. So he came back with the manager of National Renaissance Corporation Elizabeth Freeman and Officers McCormick, and Murphy from Palmdale Sheriff Department and city employee Oscar Barrza and then the manager Elizabeth Freeman took the key and opened my door and let all of thee [sic] above into my apartment and they started searching my apartment AFTER THEY STARTED SEARCHING MY APARTMENT OFFICERS MCCORMICK, and MURPHY took me to the car and wrote me a ticket for a [sic] infraction and released me at that point THEREFORE I WOULD LIKE TO SUE PALMDALE SHERIFF DEPARTMENT, NATIONAL RENAISSANCE COMMUNITY CORP, HOUSING AUTHORITY OF THE COUNTY OF L.A. AND THE CITY OF PALMDALE

On July 17, 2009, the district court sua sponte dismissed the second amended complaint with leave to amend. The court observed, inter alia, that " [l]ike its predecessor, the Second Amended Complaint is unclear whom Plaintiff intends to sue."

On August 12, 2009, Butler filed a third amended complaint. National CORE, HACoLA, the City of Palmdale (" Palmdale" ), Oscar Barraza, in his individual capacity, and " Mr Derrico", in his individual capacity, are identified as defendants in the caption. In the " Statement of Facts," Butler alleged that:

9. On April 18th 2007 Section 8 investigator Mr Derrico came to my apartment and knock [sic] on my door. I asked who is it and he said Housing Authority investigator.

10. And I ask him if he had a search warrant from my upstairs window. He said no and I told him that I was not going to let him in. 11. So Mr Derrico went and got the manager of National Renaissance Community Corporation Elizabeth Freeman, City Employee Oscar Barraza, and Sheriff Deputies McCormick, and Murphy, and officers from Housing authority whose names I don't know (John Doe's). Mr Derrico then told Elizabeth Freeman to open the door and Ms Freeman took the key and opened the door. Elizabeth Freeman gave me no notice of entry and was acting in concert with Housing Authority officers. 12. After opening my front door I was sitting on the stair inside my apartment and an officer from housing authority came up the stairs towards me with his gun in his hand and told me to go down stairs. The officer from Housing Authority continued upstairs and proceeded to search. 13. Mr. Derrico and Oscar Barraza, and other officers from Housing Authority (John Doe's) entered and started searching my apartment. I could see them searching my closet and then some of the other officers from Housing Authority sent into my kitchen. I asked why were they searching my apartment. 14. By that time Palmdale Sheriff Deputies Murphy, and McCormick entered into my apartment and cuffed me then walked me to there [sic] car and detained me in there [sic] car for about 20 minutes and then cited me out for an infraction and released me at that point. 15. While I was detained, the Housing Authority officers Mr. Derrico, and City Employee inspector Oscar Barraza continued to search my apartment. 16. It is a custom of the Housing Authority to illegally enter peoples [sic] homes who have Section 8 housing vouchers. Page 1196

17. I made a complaint with the City of Palmdale on Jun [sic] 11 2007. See Exhibit A. They denied my complaint.

18. As a result of this I suffered High blood pressure and emotional Distress. I also had to go to the doctor for my increase [sic] blood pressure.

On August 20, 2009, Butler filed a proof of service declaring that the third amended complaint was " personally served" on HACoLA via a post office box in Santa Fe Springs, California. That proof of service also indicated that National CORE and Palmdale were personally served, but did not indicate that D'Errico was served. On September 17, 2009, Butler filed a proof of service indicating that D'Errico was personally served on August 18, 2009.

On September 8, 2009, Palmdale and Barraza filed a Motion to Dismiss the third amended complaint. On September 10, 2009, National CORE also filed a motion to dismiss the third amended complaint. On January 13, 2010, the court denied National CORE's motion, but granted Palmdale and Barraza's motion and dismissed the third amended complaint with leave to amend. The district court concluded, inter alia, that Butler's claims against Palmdale and Barraza were untimely and did not relate back to any of Butler's prior pleadings.

On March 15, 2010, Butler filed a nineteen-page fourth amended complaint. Butler again named as defendants National CORE, HACoLA, Palmdale, as well as Oscar Barraza and " Mr. Derrico" in their individual capacities.1 The core of Butler's factual allegations were again the warrantless search of her apartment on April 18, 2007. Butler added details concerning the relationship between National CORE, HACoLA, Palmdale, as well as her rental history with HACoLA. Butler alleged that, " [i]n the week after the search, [she] contacted HACoLA on approximately seven different occasions and was informed that D'Errico had led the investigation of her apartment." Butler alleged that on June 11, 2007, she filed a claim with Palmdale in which she " accused Barazza [sic] of entering her apartment on April 18, 2007." On June 28, 2007, Palmdale allegedly denied Butler's claim. The fourth amended complaint contained three claims for relief: (1) a civil rights violation claim under 42 U.S.C. § 1983 against all defendants; (2) a breach of contract claim against National CORE; and (3) a claim...

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