                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


TED LOUIS BRADFORD,                       No. 14-35651
               Plaintiff-Appellant,
                                             D.C. No.
                 v.                       2:13-cv-03012-
                                               TOR
JOSEPH SCHERSCHLIGT; CITY OF
YAKIMA,
            Defendants-Appellees.           OPINION


      Appeal from the United States District Court
        for the Eastern District of Washington
       Thomas O. Rice, District Judge, Presiding

               Argued and Submitted
       September 4, 2015—Seattle, Washington

               Filed September 25, 2015

    Before: John T. Noonan, Michael Daly Hawkins,
         and Ronald M. Gould, Circuit Judges.

              Opinion by Judge Hawkins
2                 BRADFORD V. SCHERSCHLIGT

                           SUMMARY*


                            Civil Rights

    The panel reversed the district court’s dismissal of a civil
rights action as time-barred and remanded for the district
court to consider in the first instance whether defendant was
entitled to qualified immunity.

    In 1996, plaintiff was convicted and served a full ten-year
sentence for residential burglary and rape. In 2008, the
Washington State courts vacated his conviction based
largely on newly-available DNA testing. Prosecutors retried
plaintiff, which resulted in his acquittal in 2010. In 2013,
plaintiff brought a 42 U.S.C. § 1983 action against a Yakima
Police Department detective alleging the deliberate
fabrication of evidence. The district court, determining that
the running of the three-year statute of limitations began on
the vacatur of plaintiff’s conviction and not the date of his
acquittal on retrial, found plaintiff’s claim time-barred.

    The panel held that plaintiff’s claim did not accrue until
he was acquitted of all charges on retrial. The panel
concluded that plaintiff filed the underlying action within the
three-year statute of limitations period, and it was error to
dismiss his deliberate fabrication of evidence claim as time-
barred. The panel declined to address the defendant’s
qualified immunity defense and remanded for the district
court to consider it in the first instance.


  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                BRADFORD V. SCHERSCHLIGT                      3

                         COUNSEL

Leonard J. Feldman (argued), Felix G. Luna, and Tomás A.
Gahan, Peterson Wampold Rosato Luna Knopp, Seattle,
Washington, for Plaintiff-Appellant.

Robert L. Christie (argued) and Jason M. Rosen, Christie Law
Group, PLLC, Seattle, Washington, for Defendants-
Appellees.


                          OPINION

HAWKINS, Circuit Judge:

    Ted Bradford was convicted in 1996 of residential
burglary and rape. In 2008, after Bradford served his full ten-
year sentence, the Washington State courts vacated his
conviction based largely on newly-available DNA testing,
which excluded him as a contributor of genetic material
found at the crime scene. Prosecutors then proceeded to retry
Bradford, which resulted in his acquittal in 2010. In 2013, a
few days before the three-year anniversary of that acquittal,
but more than four years after his conviction was vacated,
Bradford filed the underlying 42 U.S.C. § 1983 action against
Yakima Police Department Detective Joseph Scherschligt,
alleging the deliberate fabrication of evidence. The district
court, determining that the running of the three-year statute of
limitations began on the vacatur of Bradford’s conviction and
not the date of his acquittal, granted summary judgment in
favor of Detective Scherschligt, finding that Bradford’s claim
was time-barred.
4               BRADFORD V. SCHERSCHLIGT

   Because we conclude that Bradford’s claim accrued when
he was no longer subject to criminal charges, we reverse and
remand.

               FACTUAL BACKGROUND

    In 1996, the Yakima Police Department, led by Detective
Scherschligt, investigated Bradford as a suspect in the
burglary and rape of a Yakima resident, whom we, like the
Washington State tribunals, will refer to as K.S. In
September 1995, a man, wearing a nylon stocking over his
face, broke into K.S.’s home and raped her. During the
attack, the assailant forced K.S. to wear a mask, which had a
piece of tape secured over the eye holes.

    Detective Scherschligt took over the investigation and
prepared an internal memorandum detailing suspect leads in
October 1995. The memo explained that a neighbor had
“flushed a peeping Tom out of her back yard” in April of that
year. She also reported seeing a “white male driving a white
smaller car several mornings” around that same time—
approximately six months before K.S. was attacked. Another
resident observed a man matching the description K.S. had
provided the police around the same time the suspect would
have been fleeing the crime scene. That resident and K.S.
described the suspect as “really tall,” muscular, and with long
hair. The report did not identify either neighbor by name.

    Several months later, Bradford was arrested for a series of
misdemeanors involving lewd conduct, which occurred in the
area surrounding K.S.’s neighborhood. The detective leading
the investigation into the misdemeanors, Detective Light,
informed Detective Scherschligt that Bradford might also be
a suspect in the rape and burglary investigation. Contrary to
               BRADFORD V. SCHERSCHLIGT                    5

K.S. and her neighbor’s description of the rape suspect,
Bradford was approximately 5' 7" tall, 210 pounds and had
short hair.

    Nevertheless, Detectives Scherschligt and Light visited
Bradford while he was in custody for the misdemeanor
charges and interrogated him about the rape and burglary.
Bradford informed the detectives that he had an alibi for the
day of the crime—he was at work during the time of the
attack and was undergoing a medical procedure later that
afternoon. The detectives continued their interrogation, and
after many hours, Bradford confessed to the crime. But the
details of his confession were inconsistent with many of the
facts K.S. had reported.

     After Bradford’s confession, Detective Scherschligt
returned to K.S.’s neighborhood to conduct further
interviews. One of the women interviewed at that time was
the same neighbor who earlier reported “flush[ing] the
peeping Tom” from her yard. According to Detective
Scherschligt’s report and contrary to the neighbor’s first
statement, the neighbor now recalled seeing a man driving a
small, white, two-door Toyota—the same car Bradford drove
at the time—around the neighborhood on at least six different
occasions and just weeks before K.S.’s attack. She even
reported seeing that same man staring at K.S.’s house just
days before the rape. Detective Scherschligt showed the
neighbor a photo montage from which she identified
Bradford.

     In September 1996, Bradford was tried and convicted of
first-degree rape and first-degree burglary and sentenced to
122 months in prison with credit for time served. After
serving six years of his sentence, Bradford, with the help of
6               BRADFORD V. SCHERSCHLIGT

the Innocence Project Northwest, sought previously
unavailable DNA testing on physical evidence collected from
the crime scene. The physical evidence included the mask
that the assailant had forced K.S. to wear, along with the tape,
which contained genetic material from an unidentified male.
The DNA testing revealed that Bradford was not a match to
any of the samples found on the physical evidence, including
the tape affixed to the mask. Later that year, Bradford was
released from prison having served his full sentence, and he
petitioned to have his conviction vacated.

    Following a hearing, the Yakima County Superior Court
concluded that the DNA evidence would likely have changed
the outcome of Bradford’s 1996 trial. The Washington Court
of Appeals agreed, granted Bradford’s petition, and vacated
his conviction, specifically permitting the prosecution to
pursue a new trial. In re Bradford, 165 P.3d 31, 32–35
(Wash. App. 2008). The court explained, “The factual
disputes regarding Mr. Bradford’s confession and alibi, like
the other factual disputes noted by the parties, remain open
questions for a jury to resolve upon retrial and in the context
of the new DNA evidence.” Id. at 35.

    Bradford’s conviction and sentence were formally vacated
on August 1, 2008. The following month, Yakima County
prosecutors filed an amended information elevating the
charges against Bradford to aggravated rape and burglary,
thereby increasing the likelihood that Bradford would be
returned to prison if convicted. The retrial proceeded several
months later, and on February 10, 2010, a Washington jury
acquitted Bradford of all charges.

   On February 7, 2013, just short of three years after his
acquittal, Bradford filed the underlying action, asserting
                  BRADFORD V. SCHERSCHLIGT                              7

claims that Detective Scherschligt deliberately fabricated
inculpatory evidence.1 Detective Scherschligt moved for
summary judgment on the grounds that Bradford’s claim was
barred by the statute of limitations and that he was entitled to
qualified immunity. The district court granted the motion on
statute of limitations grounds, concluding that Bradford’s
claim accrued when his conviction was vacated on August 1,
2008.      The district court did not reach Detective
Scherschligt’s alternative argument regarding qualified
immunity. Bradford timely filed this appeal.2

         JURISDICTION AND STANDARD OF REVIEW

    We have jurisdiction under 28 U.S.C. § 1291. We review
de novo a district court’s grant of summary judgment on
statute of limitations grounds. Tarabochia v. Adkins,
766 F.3d 1115, 1120 (9th Cir. 2014). Summary judgment is
appropriate when, viewing the evidence in the light most
favorable to the non-moving party, the court determines that
there are no genuine issues of material fact, and the moving
party is entitled to judgment as a matter of law. Id.


 1
   The operative complaint for purposes of this appeal is Bradford’s third
amended complaint, which removed allegations that Detective
Scherschligt withheld material exculpatory evidence. Bradford now
argues that he only removed his claim based on the withholding of a
sketch but maintained his claim based on the withholding of witness
information. On remand, we reopen the issue of whether Bradford has
adequately pleaded a Brady claim, or whether he may again amend his
complaint to do so.
     2
   Bradford also brought negligence-based claims against the City of
Yakima, and the district court granted judgment to the City on all claims.
Bradford appeals the ruling only with regard to his §1983 claim against
Detective Scherschligt.
8               BRADFORD V. SCHERSCHLIGT

                        ANALYSIS

    Before turning to the statute of limitations and qualified
immunity issues before us, we provide a brief overview of the
legal claim that Bradford asserts, as the elements of the claim
are central to both inquiries. As Bradford explains, he is
asserting a claim for deliberate fabrication of evidence, as
recognized by this Court in Devereaux v. Abbey, 263 F.3d
1070, 1076 (9th Cir. 2001) (en banc). For ease of reference,
we will refer to this as a Devereaux claim.

    A Devereaux claim is a claim that the government
violated the plaintiff’s due process rights by subjecting the
plaintiff to criminal charges based on deliberately-fabricated
evidence. 236 F.3d at 1074–75. Fundamentally, the plaintiff
must first point to evidence he contends the government
deliberately fabricated. See, e.g., Costanich v. Dep’t of Soc.
& Health Servs., 627 F.3d 1101, 1107 (9th Cir. 2010) (false
statements in report and declaration); McSherry v. City of
Long Beach, 423 F.3d 1015, 1022 (9th Cir. 2005) (false
testimony at trial).

    Then, there are two “circumstantial methods” of proving
that the falsification was deliberate. Costanich, 627 F.3d at
1111. The first method is to demonstrate that the defendant
continued his investigation of the plaintiff even though he
knew or should have known that the plaintiff was innocent.
Devereaux, 263 F.3d at 1076. The second method is to
demonstrate that the defendant used “investigative techniques
that were so coercive and abusive that [he] knew or should
have known that those techniques would yield false
information.” Id. These methods are not themselves
independent causes of action. Rather, they are methods of
               BRADFORD V. SCHERSCHLIGT                     9

proving one element—intent—of a claim that the government
deliberately fabricated the evidence at issue.

I. Statute of limitations.

    As a matter of first impression, we must determine when
a Devereaux claim accrues and starts the running of the
limitations period. Although Washington’s three-year statute
of limitations applies to Bradford’s § 1983 claim, Bagley v.
CMC Real Estate Corp., 923 F.2d 758, 760 (9th Cir. 1991),
the Supreme Court has held that federal law determines the
date of accrual, Wallace v. Kato, 549 U.S. 384, 388 (2007).

    At the outset, we address Bradford’s contention that his
claim would have been barred by Heck v. Humphrey,
512 U.S. 477 (1994), had he filed it immediately upon
vacatur of his conviction. We disagree. Heck established the
now well-known rule that when an otherwise complete and
present § 1983 cause of action would impugn an extant
conviction, accrual is deferred until the conviction or
sentence has been invalidated. Id. at 487. As the Supreme
Court made clear in its decision in Wallace, however, Heck
applies only when there is an extant conviction and is not
implicated merely by the pendency of charges. Wallace,
549 U.S. at 392–94. Consequently, the resolution of this
appeal hinges on traditional rules of accrual and not on the
extension of Heck to retrial proceedings.

    Turning then to the principles of accrual, “it is the
standard rule that accrual occurs when the plaintiff has a
complete and present cause of action.” Wallace, 549 U.S. at
388 (internal alterations and quotation marks omitted). In
other words, a claim accrues when the plaintiff knows or has
reason to know of the injury that forms the basis of his cause
10             BRADFORD V. SCHERSCHLIGT

of action. Knox v. Davis, 260 F.3d 1009, 1013 (9th Cir.
2001).

    We have recently considered the accrual date of § 1983
claims on two occasions. See Rosales-Martinez v. Palmer,
753 F.3d 890, 891 (9th Cir. 2014); Jackson v. Barnes,
749 F.3d 755, 760–61 (9th Cir. 2014). Jackson involved a
plaintiff who succeeded in having his conviction and sentence
vacated on the basis of a Miranda violation and immediately
thereafter filed a § 1983 action. 749 F.3d at 758–59. While
his § 1983 action was pending, the plaintiff was retried and
convicted on the same charges. Id. at 759. The district court
dismissed the § 1983 action, reasoning that it was barred both
by Heck, in light of the plaintiff’s second conviction, and by
the applicable statute of limitations. Id. We reversed,
holding that the plaintiff’s claim would not impugn his
second conviction because the order vacating his original
conviction precluded the government from using the
unlawfully-obtained statements in a second trial. Id. at
760–61. Therefore, the second trial was “entirely insulated
from the Miranda violation associated with his initial
conviction.” Id. at 761. Further, the plaintiff’s claim could
not have accrued before his original conviction and sentence
were vacated; therefore, it was timely. Id.

    In Rosales-Martinez, we wrote “to clarify our law on
when a released prisoner’s cause of action for constitutional
violations accrues, and when the statute of limitations begins
to run.” 753 F.3d at 891. Relying on Jackson and Wallace,
we held that the plaintiff’s § 1983 Brady claim “did not
accrue until the Nevada court vacated [his] convictions on
December 2, 2008.” Id. at 896. The plaintiff’s conviction
was vacated in conjunction with a comprehensive plea
agreement that resolved all outstanding charges against the
                  BRADFORD V. SCHERSCHLIGT                            11

plaintiff. Id. at 893. The date the conviction was vacated
thus also marked the date on which the plaintiff could no
longer be prosecuted for the underlying charges. See id.

    Here, Bradford alleges a violation of his due process
rights based on the initiation of criminal charges that were
based on allegedly fabricated evidence. The constitutional
violation and resultant injury thus began on the date that the
State brought charges against Bradford. Yet, unlike Jackson,
in which the date of vacatur was the date on which the
government could no longer use the unlawful evidence
against the plaintiff, or Rosales-Martinez, in which the date
of vacatur was also the date on which all charges were
conclusively resolved, Bradford’s conviction was vacated in
a manner that specifically permitted the pursuit of the same
charges against him based on the same evidence.3 The
inquiry here is therefore not as simple as merely identifying
the onset date of injury. Indeed, the limitations period “on
common-law torts do[es] not always begin on the date that a
plaintiff knows or has reason to know of his injury.” Owens
v. Baltimore City State’s Attorneys Office, 767 F.3d 379, 389
(4th Cir. 2014), cert. denied, 135 S. Ct. 1893 (2015).

    To determine the proper date of accrual, we look to the
common law tort most analogous to Bradford’s claim. See
Wallace, 549 U.S. at 388–89. As we have explained, the
right at issue in a Devereaux claim is the right to “be free
from [criminal] charges” based on a claim of deliberately
fabricated evidence. Devereaux, 263 F.3d at 1075. In this
regard, it is similar to the tort of malicious prosecution, which
involves the right to be free from the use of legal process that

  3
    Indeed, Detective Scherschligt’s counsel stated at oral argument that
detectives pursued no further investigation before Bradford’s retrial.
12              BRADFORD V. SCHERSCHLIGT

is motivated by malice and unsupported by probable cause.
Awabdy v. City of Adelanto, 368 F.3d 1062, 1066 (9th Cir.
2004).

     In a recent case, the Fourth Circuit provided a helpful
analysis of the accrual rules for malicious prosecution claims.
Owens, 767 F.3d at 379. There, the Fourth Circuit was tasked
with determining when a certain Brady-based § 1983 claim
had accrued. Id. at 388–92. The court first recognized that
under Wallace, a court evaluates the proper accrual date for
a claim by identifying the common law analogue for the
§ 1983 claim and applying any “distinctive” accrual rules
associated with that common law analogue. Id. at 389–92.
Likening it to a malicious prosecution claim, the court held
that the § 1983 claim had accrued when prosecutors entered
a nolle prosequi rather than the date on which the court had
originally granted the plaintiff a new trial. Id. at 392. The
court noted that a malicious prosecution claim does not
accrue until the proceedings against the plaintiff have
“terminated ‘in such manner that [they] cannot be revived.’”
Id. at 390 (citing W. Page Keeton, et al., Prosser & Keeton on
Torts § 119 (5th ed. 1984)). We find this reasoning
persuasive.

     Setting the accrual date for Bradford’s Devereaux claim
as the date of acquittal is logical. If Bradford’s original 1996
trial had resulted in an acquittal, his Devereaux claim would
have accrued on the date the charges against him were
dismissed. See Walker v. Jastemski, 159 F.3d 117, 119 (2d
Cir. 1998) (claim based on officers’ conspiracy to fabricate
evidence accrued when charges dismissed); cf. Johnson v.
Dossey, 515 F.3d 778, 781 (7th Cir. 2008) (Brady-like § 1983
claim accrued on date of acquittal). The analysis is the same
in the retrial setting where, as here, the government pursues
                   BRADFORD V. SCHERSCHLIGT                              13

the same charges based on the same evidence after the
vacatur of the original conviction.

    In this instance, setting the triggering date for the onset of
the limitations period as the date of acquittal also makes
practical sense. Had Bradford brought his claims immediately
after his conviction was vacated, Detective Scherschligt
would almost certainly have moved to stay proceedings on
the grounds that a retrial was imminent and that a conviction
would produce a Heck bar against Bradford’s claims.4 Thus,
Detective Scherschligt would not only not be prejudiced by
a delay in reaching the merits, he might well have benefitted
from it.

    We recognize, however, that the result may be different
under other factual circumstances. For example, a similar
claim could accrue upon vacatur of a conviction if the
conviction was set aside in a manner precluding the
government from maintaining charges on evidence presented
at the initial trial. See Jackson, 749 F.3d at 760–61. But in
this case, Bradford remained subject to the very same charges
based on the same evidence, which forms the basis of his
claim, until his February 10, 2010, acquittal. His claim
seeking to vindicate his right to be free from those criminal
charges based on the allegedly fabricated evidence did not
accrue until the charges were fully and finally resolved and
could no longer be brought against him.5


 4
   Again, Detective Scherschligt’s counsel acknowledged as much at oral
argument.
     5
     For the first time on appeal, Detective Scherschligt argues that
Bradford’s claim is untimely even if it accrued on the date of his acquittal.
Scherschligt argues that this is so because Bradford raised his deliberate
14                 BRADFORD V. SCHERSCHLIGT

    We therefore conclude that Bradford filed the underlying
action within the three-year statute of limitations period, and
it was error to dismiss his deliberate fabrication of evidence
claim as time-barred.

II. Qualified Immunity.

    Detective Scherschligt asks us to affirm, in the
alternative, on the basis that he is entitled to qualified
immunity. Although he raised his qualified immunity
defense in his motion for summary judgment, he limited his
arguments to a claim based on allegations that Bradford’s
confession was coerced. The district court did not reach the
issue of qualified immunity, and Bradford confirmed at
argument that he is no longer pursuing a claim based on his
own confession. We therefore decline to address Detective
Scherschligt’s qualified immunity defense, and remand for
the district court to consider it in the first instance.




fabrication of evidence claim in his third amended complaint filed on
September 26, 2013. Even if Detective Scherschligt had not waived this
argument by failing to raise it below, K.W. ex rel. D.W. v. Armstrong,
789 F.3d 962, 974 (9th Cir. 2015), we would reject it. Bradford’s
Devereaux claim is based on the same factual allegations set forth in the
original complaint, and at best, is a new legal theory predicated on the
precise transactions and occurrences set out in the complaint that Bradford
filed on February 7, 2013. Consequently, his claim relates back to that
filing date, and is timely. See Fed. R. Civ. P. 15(c)(1)(B); Clipper
Exxpress v. Rocky Mountain Motor Tariff Bureau, Inc., 690 F.2d 1240,
1259 n.29 (9th Cir. 1982) (holding that fraud claim related back to original
complaint that asserted antitrust violation based on same ICC protests).
                BRADFORD V. SCHERSCHLIGT                     15

                      CONCLUSION

     We hold today that Bradford’s claim did not accrue until
he was acquitted of all charges on February 10, 2010.
Therefore, it was error to dismiss his claim as time- barred,
and we reverse. We remand for the district court to consider
in the first instance whether Detective Scherschligt is entitled
to qualified immunity under the circumstances.

   REVERSED AND REMANDED
