                                                                        FILED
                    UNITED STATES COURT OF APPEALS                       DEC 18 2014

                                                                     MOLLY C. DWYER, CLERK
                            FOR THE NINTH CIRCUIT                     U.S. COURT OF APPEALS




CARL WEST,                                     No. 12-16811

              Plaintiff - Appellant,           D.C. No. 2:12-CV-00657-JWS
                                               District of Arizona,
  v.                                           Phoenix

CITY OF MESA; JEFFREY JACOBS, a
police Defendant for the City of Mesa/         ORDER
Husband ,

              Defendants - Appellees,

  And

UNKNOWN JACOBS, named as: Jane
Doe Jacobs/ wife; UNKNOWN PARTIES,
named as: John and Jane Does I-X, XYZ
Corporations I-X, XYZ Partnerships I-X,
and Limited Liability Companies I-X,

              Defendants.


Before: D.W. NELSON, SILVERMAN, and M. SMITH, Circuit Judges.

       Appellees’ Motion for Limited Reconsideration filed October 27, 2014, is

hereby GRANTED. An amended memorandum disposition is filed concurrently

with this order.
      Judge Silverman voted to deny the motion. A dismissal with prejudice on

the motion of the prosecution due to its inability to prove the case is obviously a

termination of the criminal proceedings in the defendant’s favor.

      IT IS SO ORDERED.
                                                                           FILED
                            NOT FOR PUBLICATION                            DEC 18 2014

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


CARL WEST,                                       No. 12-16811

              Plaintiff - Appellant,             D.C. No. 2:12-CV-00657-JWS

  v.
                                                 AMENDED MEMORANDUM*
CITY OF MESA and JEFFREY JACOBS,
a police Defendant for the City of Mesa/
Husband,

              Defendants - Appellees,

  and

UNKNOWN JACOBS, named as: Jane
Doe Jacobs/ wife and UNKNOWN
PARTIES, named as: John and Jane Does
I-X, XYZ Corporations I-X, XYZ
Partnerships I-X, and Limited Liability
Companies I-X,

              Defendants.


                    Appeal from the United States District Court
                             for the District of Arizona
                    John W. Sedwick, District Judge, Presiding



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                            Submitted October 8, 2014**
                                Phoenix, Arizona

Before: D.W. NELSON, SILVERMAN, and M. SMITH, Circuit Judges.

      Carl West appeals from dismissal of his complaint against the City of Mesa

and Detective Jeffrey Jacobs. We affirm in part and vacate in part the district

court’s order and remand for entry of an order consistent with this disposition.

      1.     The district court correctly dismissed West’s state claim for malicious

prosecution because litigation challenging West’s conviction had not yet finally

terminated in his favor. Moran v. Klatzke, 682 P.2d 1156, 1157 (Ariz. Ct. App.

1984). The same rule applies to West’s claims under 42 U.S.C. § 1983 against the

City of Mesa and Detective Jacobs insofar as they are based on West’s prosecution.

Heck v. Humphrey, 512 U.S. 477, 487 (1994). It was therefore error to dismiss

West’s § 1983 claims as time-barred because that claim, like the state malicious

prosecution claim, had not yet accrued.

      2.     The district court correctly dismissed West’s remaining claims as

time-barred. West’s false arrest and imprisonment claims, both state and federal,

accrued when his detention was validated by legal process. Wallace v. Kato, 549

U.S. 384, 390 (2007); see Hansen v. Stoll, 636 P.2d 1236, 1242 (Ariz. Ct. App.


        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
                                          2
1981). West’s remaining tort claims were not subject to a favorable termination

requirement, and accrued at least by the time West was convicted. West’s

complaint alleges that he was injured only by Hrbal’s coerced testimony at his

2003 trial, not by any later misconduct on the part of Detective Jacobs or the City

of Mesa. Gust, Rosenfeld & Henderson v. Prudential Ins. Co. of Am., 898 P.2d

964, 966 (Ariz. 1995) (“Under the ‘discovery rule,’ a plaintiff’s cause of action

does not accrue until the plaintiff knows or, in the exercise of reasonable diligence,

should know the facts underlying the cause.”). The limitations periods for West’s

state and federal claims are one-year and two-years, respectively. Ariz. Rev. Stat.

§ 12-541; Ariz. Rev. Stat. § 12-821; TwoRivers v. Lewis, 174 F.3d 987, 991 (9th

Cir. 1999). West was convicted on February 6, 2003, making the February 6,

2012 filing of his complaint untimely.1

      3.     The district court did not abuse its discretion by denying leave to

amend. The claims stemming from West’s prosecution against the City of Mesa

and Detective Jacobs could only be saved by amendment if the termination of

West’s conviction was final. At the time of the district court’s order, West’s post-


      1
             West’s argument on appeal that former FBI Agent Gordwin’s
indictment in 2008 tolls the limitations period also fails. This argument was not
raised before the district court, related allegations do not appear in West’s
complaint, and if the limitations period was tolled until 2008, West’s complaint
would still be untimely.
                                           3
conviction relief was not final. During the course of this appeal, however, the

litigation concerning West’s conviction terminated. Thus, on remand West must

be granted leave to amend the state and federal claims arising from his prosecution

in order to reflect the current legal status of his state conviction. Additionally,

West must be granted leave to amend his Monell claim against the city because it is

not clear on this record that he is unable to allege a policy, custom, or practice of

the City under which Detective Jacobs acted. See Eminence Capital, LLC v.

Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003) (per curiam). The remaining

claims are time-barred, and thus cannot be saved by amendment. Id.

      Each party shall bear its own costs on appeal.

      AFFIRMED in part, VACATED in part and REMANDED.




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