Belanus v. Clark

• Decision Date: 05 August 2015
• Docket Number: No. 12–35952.,12–35952.
• Citation: 796 F.3d 1021
• Parties: Duane Ronald BELANUS, Plaintiff–Appellant, v. Phil CLARK ; Raymond Potter; Cory Olson; Larry Platts; Allen Hughes ; Pat Hurley; Leo Dutton; Leo Gallagher ; Melissa Broch, Defendants–Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

796 F.3d 1021

Duane Ronald BELANUS, Plaintiff–Appellant

v.Phil CLARK ; Raymond Potter; Cory Olson; Larry Platts; Allen Hughes ; Pat Hurley; Leo Dutton; Leo Gallagher ; Melissa Broch, Defendants–Appellees.

No. 12–35952.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 7, 2015.

Filed Aug. 5, 2015.

Thomas Christoph Keller (argued) and Britta Stamps (argued), certified law student representatives, University of Arkansas Federal Appellate Litigation Project, Fayetteville, AR; Lindsey C. Lien and Colin Seaborg, certified law student representatives, Gregory C. Sisk, supervising attorney, University of St. Thomas School of Law Appellate Clinic, Minneapolis, MN, for Plaintiff–Appellant.

Rebekah J. French, Special Assistant Attorney General, Helena, MT, for Amicus Curiae State of Montana.

Appeal from the United States District Court for the District of Montana, Dana L. Christensen, Chief District Judge, Presiding. D.C. No. 6:12–cv–00051–DLC.

Before: FERDINAND F. FERNANDEZ, JOHNNIE B. RAWLINSON, and CONSUELO M. CALLAHAN, Circuit Judges.

Opinion by Judge CALLAHAN

; Partial Concurrence and Partial Dissent by Judge FERNANDEZ.

OPINION

CALLAHAN, Circuit Judge:

Montana state prisoner Duane Ronald Belanus filed this § 1983 action asserting claims based on the alleged violation of his rights under the United States and Montana constitutions as a result of searches of his home, storage shed, and workplace in 2008, that were made in connection with his criminal prosecution. The district court dismissed his complaint with prejudice at the screening stage and held that Belanus's complaint constituted a “strike” against him pursuant to 28 U.S.C. § 1915(g). We affirm, holding that Belanus cannot assert a cognizable claim for equitable tolling of the statute of limitations, and that the district court could determine that his complaint constitutes a “strike.”

I. Background

On August 3, 2008, Belanus returned to his home to find the police searching his home. Belanus was detained and later arrested. Belanus was charged “with kidnapping [his girlfriend], raping her, inflicting bodily injury upon her in the course of the rape, unlawfully tampering with physical evidence of the rape, burglarizing [the girlfriend's] residence, and committing a theft therein.” State v. Belanus, 357 Mont. 463, 240 P.3d 1021, 1022–23 (2010). Belanus was tried in June 2009, convicted, and, in August 2009, sentenced to life without the possibility of parole. Belanus appealed to the Montana Supreme Court, which affirmed his conviction. Id. at 1025.

On June 5, 2012, Belanus, proceeding pro se, filed a civil complaint in the United States District Court of the District of Montana. He alleged that the police had conducted warrantless searches of his home, his shed, and his workplace between August 3 and August 8, 2008, in violation of his rights under the United States and Montana constitutions. He named as defendants officers with the Lewis and Clark County Sheriff's Department and attorneys with the County. He paid the filing fee.

The gist of Belanus's complaint is that the police: (1) searched his residence on August 3 and 4, 2008, prior to the issuance of a warrant on August 5, 2008; (2) searched his shed on August 5, 2008, prior to the issuance of a warrant on August 12, 2008; and (3) between August 3 and 15, 2008, searched his workplace without a warrant.

Belanus alleged that the “illegally obtained evidence was knowingly used against me in court proceedings. I was convicted of a crime that I still profess my innocence.” Belanus sought “monetary damages in excess of $75,000 from each defendant for just causes of: physical, emotional, mental, loss of freedom, and financial stress and anguish.”

Belanus's complaint was reviewed by a Magistrate Judge, who concluded that the complaint should be dismissed. He reasoned that if Belanus was challenging his conviction, his claim was barred by Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), and that it was otherwise barred by the applicable three-year statute of limitations. The Magistrate Judge further found that the dismissal of Belanus's action would count as a strike under 28 U.S.C. § 1915(g). Belanus filed objections to the Magistrate Judge's findings and recommendations, and the District Judge adopted the Magistrate Judge's findings and recommendations, dismissed Belanus's complaint with prejudice, and held that the dismissal would count as a strike pursuant to 28 U.S.C. § 1915(g). Belanus filed a timely notice of appeal.

II. Standard of Review

We review de novo the district court's dismissal of an action under 28 U.S.C. § 1915A. Hamilton v. Brown, 630 F.3d 889, 892 (9th Cir.2011). In determining whether a complaint states a claim, “a court must accept as true all allegations of material fact and must construe those facts in the light most favorable to the plaintiff.” Id. at 892–93 (quoting Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir.2000) ). Also, questions of statutory interpretation, such as the applicability of the strike provision of 28 U.S.C. § 1915(g), are reviewed de novo. Andrews v. King, 398 F.3d 1113, 1118 (9th Cir.2005).

III. The Heck Bar

Because Belanus's pro se complaint alluded to his conviction and his assertion of innocence, the district court properly noted that to the extent he asserted that the evidence collected during the searches caused his conviction, his claim was barred by Heck.¹ 512 U.S. at 487, 114 S.Ct. 2364. The district court also recognized that if a determination of the constitutionality of the searches did not necessarily imply the invalidity of Belanus's conviction, there was no Heck bar. As the thrust of Belanus's complaint did not appear to challenge his conviction, the district court properly proceeded to consider whether it was barred by the statute of limitations.

In Trimble v. City of Santa Rosa, 49 F.3d 583, 585 (9th Cir.1995), we stated that where a defendant's claims are Heck -barred, the dismissal should be without prejudice “so that [the plaintiff] may reassert his claims if he ever succeeds in invalidating his conviction.” Accordingly, we construe the district court dismissal of Belanus's action to be without prejudice as to any Heck -barred claim that he might assert at some time in the future.

IV. The Statute of Limitations

As the district court and Belanus agree, the applicable statute of limitations is Montana's three-year statute of limitations governing personal injury actions, Mont.Code Ann. § 27–2–204(1). See Wilson v. Garcia, 471 U.S. 261, 280, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985) (holding “that § 1983 claims are best characterized as personal injury actions,” and that the lower court correctly applied the state's three-year statute of limitations governing actions “for an injury to the person or reputation of any person”).

Federal law determines when a cause of action accrues and when the statute of limitations begins to run for a § 1983 claim. Wallace v. Kato, 549 U.S. 384, 388, 127 S.Ct. 1091, 166 L.Ed.2d 973 (2007) (noting that “the accrual date of a § 1983 cause of action is a question of federal law”); Pouncil v. Tilton, 704 F.3d 568, 573 (9th Cir.2012) (stating that “[f]ederal law determines when a cause of action for a Section 1983 claim accrues and, hence, when the statute of limitations begins to run”).

Under federal law, a cause of action accrues when the plaintiff knows or has reason to know of the injury that is the basis of the action. Kimes v. Stone, 84 F.3d 1121, 1128 (9th Cir.1996) ; Pouncil, 704 F.3d at 574. Thus, “[a]n action ordinarily accrues on the date of the injury.” Id.

Here, Belanus's causes of action accrued on August 3, 2008, and on whatever dates over the next week that the police searched his home, shed, and workplace. Belanus does not deny that he knew of the searches. He states that when he came home on August 3, 2008, the police were in his home. Furthermore, the documents attached to his complaint confirm that he was aware of the searches and the possible lack of timely search warrants by the time of his trial in June 2009. Accordingly, on its face, Belanus's June 5, 2012 complaint appears to be untimely and barred by Montana's three-year statute of limitations.

Belanus, however, argues that his complaint is not barred because he can assert a viable argument for equitable tolling of the statute of limitations. He notes that although federal law determines the accrual of his cause of action, state law governs the tolling of the statute of limitations in § 1983 cases. See Wallace, 549 U.S. at 394, 127 S.Ct. 1091 (commenting “[w]e have generally referred to state law for tolling rules, just as we have for the length of statutes of limitations”).

Citing Schoof v. Nesbit, 373 Mont. 226, 316 P.3d 831 (2014), Belanus argues that he has a viable argument that the statute of limitations was equitably tolled under Montana law. In Schoof, a county resident sought to challenge a decision by the county commissioners to permit elected county officials to receive cash payments in lieu of county contributions on the officials' behalf to a group health insurance program. Id. at 833. Schoof did not file his action until several years after the commissioners' decision, and the defendants successfully moved to dismiss on the ground that the action was barred by the applicable thirty-day statute of limitations. Id. at 833–34.

On appeal, the Supreme Court of Montana determined that Schoof's complaint was timely under the equitable tolling doctrine. Id. at 839–41.

Montana law provides that the period of limitation does not begin until the claim has been discovered or should have been discovered.² Under Montana law, “[t]he doctrine of equitable tolling arrests the running of the limitations period after a claim has accrued, allowing in limited circumstances for an action to be pursued despite the failure to comply with relevant statutory filing deadlines.” Id. at 839–40 (quotation marks and citation omitted). The ...