Joseph Rollin v. Christine Cook

FILED

NOT FOR PUBLICATION JAN 23 2012

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

JOSEPH PIERRE ROLLIN, No. 10-16783

Plaintiff - Appellant, D.C. No. 3:09-cv-03579-SI

v.

MEMORANDUM *

CHRISTINE COOK; MICHAEL

FINAMORE; CHESTER JARBOE; ROY

HORTON; BETTY HENDERSON;

KENNETH HENDERSON,

Defendants - Appellees.

Appeal from the United States District Court

for the Northern District of California

Susan Illston, District Judge, Presiding

Argued and Submitted October 13, 2011

San Francisco, California

Before: HUG, KLEINFELD, and W. FLETCHER, Circuit Judges.

In various orders, the district court dismissed all but one of Plaintiff-

Appellant Joseph Pierre Rollin’s § 1983 claims as untimely, granted Defendant-

*

This disposition is not appropriate for publication and is not precedent

except as provided by 9th Cir. R. 36-3.

Appellee Christine Cook qualified immunity on Rollin’s sole remaining § 1983

claim, and denied Rollin attorney’s fees for Defendants-Appellees Betty and

Kenneth Henderson’s refusal to waive service of process. Rollin appeals all the

district court’s orders. We review a dismissal based on the statute of limitations de

novo. See Ventura Mobilehome Cmty. Owners Ass’n v. City of San Buenaventura,

371 F.3d 1046, 1050 (9th Cir. 2004). We review a grant of summary judgment

based on qualified immunity de novo. See Stoot v. City of Everett, 582 F.3d 910,

918 (9th Cir. 2009). We review the denial of costs for a defendant’s failure to

waive service for abuse of discretion. See Estate of Darulis v. Garate, 401 F.3d

1060, 1063 (9th Cir. 2005).

1. Dismissal Orders

The statute of limitations is two years for claims accruing after January 1,

2003, and one year for claims accruing prior to that date. See Cal. Code Civ. Proc.

§ 335.1; see also Maldonado v. Harris, 370 F.3d 945, 954-55 (9th Cir. 2004),

Wilson v. Garcia, 471 U.S. 261, 275 (1985) (requiring application of single statute

of limitations for all § 1983 claims).

We agree with the district court on the accrual date of Counts II-V. The

claims related to Rollin’s false arrest (Counts II and IV) accrued on May 19, 2003,

the date Rollin was arraigned and bound over for trial. See Wallace v. Kato, 549

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U.S. 384, 391-92 (2007). Cal. Code Civ. Proc. § 352.1 tolled the statute of

limitations for a maximum of two years, i.e., until May 19, 2005. The statute ran

until the appellate court reversed Rollin’s judgment on December 13, 2006, almost

one year and seven months later. After a jury acquitted Rollin on January 15,

2008, he did not file his complaint until almost one year and seven months later, on

August 5, 2009. Count III, the count alleging illegal search and seizure, accrued on

the search date, March 21, 2002, so the one-year statute of limitation applies. See

Venegas v. Wagner, 704 F.2d 1144, 1146 (9th Cir. 1983). Counts II, III, and IV

are thus untimely. Rollin’s contention that § 352.1 tolled the limitations period

while he was incarcerated after entry of judgment contradicts the text of the statute

and well-settled precedents of California law. See Cal. Code. Civ. Proc. § 352.1

(requiring person to be incarcerated “at the time the cause of action accrued” for

tolling to apply); Cal. Savings & Loan Soc. v. Culver, 127 Cal. 107, 110-11 (1899).

Count V relating to the seizure of Rollin’s property on March 25, 2002 is

also untimely. Rollin knew or should have known of the seizure by the preliminary

hearing on November 23, 2003, at the latest. See Maldonado, 370 F.3d at 955.

After accounting for tolling, we agree with the district court’s calculation and so

affirm dismissal of Count V as untimely.

2. Summary Judgment

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With respect to Count I, we agree with the district court that Cook’s conduct

“[did] not violate clearly established statutory or constitutional rights of which a

reasonable person would have known.” Pearson v. Callahan, 555 U.S. 223, 231

(2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). We conclude

that at the time of Cook’s alleged violation of Rollin’s Fifth Amendment rights in

April 2003, it would not have been clear to a reasonable police officer that Cook’s

conduct was unlawful. See Shedelbower v. Estelle, 885 F.2d 570, 574 (9th Cir.

1989), cert. denied, 498 U.S. 1092 (1991); Missouri v. Seibert, 542 U.S. 600

(2004) .

3. Attorney’s Fees

Rule 4 requires a defendant to pay reasonable attorney’s fees if the

defendant refuses to sign and return a waiver of service requested by plaintiff

without good cause and the plaintiff files a motion to collect any service-related

expenses. See Fed. R. Civ. P. 4(d)(2). The district court erred in holding that the

Hendersons’ payment of service expenses after Rollin’s filing of the motion

rendered the motion moot, and that Rollin’s attorney could have taken “additional

steps” to avoid having to effect formal service of process.

Once a plaintiff has sent a valid request for a waiver of service of process,

the burden shifts to the defendant to avoid imposing unnecessary costs on the

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plaintiff. Fed. R. Civ. P. 4(d)(1). Absent a showing of good cause, a defendant

who fails to execute a valid waiver “must” pay the costs of formal service and any

costs, including reasonable attorney’s fees, of any motion “required” to collect

service expenses. Fed. R. Civ. P. 4(d)(2). Because the Hendersons failed to waive

service and also failed to pay the service expenses until after Rollin had filed a

motion to collect them, they also must, absent a showing of good cause, pay

Rollin’s reasonable attorney’s fees associated with these failures. The district court

made no finding of good cause, which, in any case, should be “rare.” See Estate of

Darulis, 401 F.3d at 1064. Accordingly, we vacate the district court’s order

denying Rollin attorney’s fees and remand for additional proceedings consistent

with this disposition.

For the foregoing reasons, dismissal and summary judgment are

AFFIRMED, but the order denying attorney’s fees is VACATED AND

REMANDED.

Each party shall bear its own costs on appeal.

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