Jesse Dupris, a married man and JEREMY REED, a married man v. Selanhongva Mcdonald, in his individual capacity as special agent in charge with the…

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JESSE DUPRIS, a married man and
JEREMY REED, a married man,
Plaintiffs - Appellants,
v.
SELANHONGVA MCDONALD, in his
individual capacity as special agent in
charge with the United States Department
of the Interior, Bureau of Indian Affairs; et
al.,
Defendants - Appellees.
No. 12-15243
D.C. Nos. 3:08-cv-08132-PGR
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
Paul G. Rosenblatt, Senior District Judge, Presiding
Argued and Submitted December 3, 2013
San Francisco, California
Before: SILVERMAN, CALLAHAN, and N.R. SMITH, Circuit Judges.
In 2006, Jesse Dupris and Jeremy Reed (the “Plaintiffs”) were arrested on
FILED
JAN 30 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

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tribal charges for assaults they did not commit. In 2008, they commenced this
action against the members of the federal Task Force that arrested them and the
United States under Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388 (1971), and the Federal Tort Claims Act (“FTCA”), 28
U.S.C. §§ 1346(b)(1), 2671-2680. The district court granted summary judgment
for the defendants and Plaintiffs have appealed. We affirm, concluding that: (1)
the Plaintiffs’ claims against two members of the Task Force are barred by the
applicable statute of limitations; (2) the remaining individual defendants were
entitled to qualified immunity; and (3) the United States is immune from liability
under the FTCA pursuant to the discretionary function exception. 1
1. In this Bivens action the applicable statute of limitations is Arizona’s
two-year statue of limitations for personal injury actions. See Wilson v. Garcia,
471 U.S. 261, 266 (1985); Vaughan v. Grijalva, 927 F.2d 476, 478 (9th Cir. 1991).
However, federal law governs when a cause of action accrues and under federal
law, a claim generally accrues when the plaintiff knows or has reason to know of
the injury which is the basis of the action. Cabrera v. City of Huntington Park,
159 F.3d 374, 379 (9th Cir. 1998); see also Two Rivers v. Lewis, 174 F.3d 987, 991
(9th Cir. 1999).
1 Because the parties are familiar with the facts and procedural history,
we do not restate them here except as necessary to explain our decision.
2

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Plaintiffs did not allege any claims against agents McCoy and Youngman
until they filed a fourth amended complaint in October 2010. The district court
determined that Plaintiffs claims arose when the charges against them were
dismissed in February and April 2007. McCoy was the Incident Commander of the
Task Force and Youngman was the Assistant Incident Commander. The district
court’s determination that Plaintiffs knew of McCoy and Youngman’s involvement
when their claims arose, or should have known of their involvement, is supported
by the record. Accordingly, the district court’s dismissal of Plaintiffs’ claims
against McCoy and Youngman is affirmed.
2. A grant of summary judgment and the dismissal for failure to state a
claim are reviewed de novo. See Johnson v. Buckley, 356 F.3d 1067, 1071 (9th
Cir. 2004); Lee v. City of Los Angeles, 250 F.3d 668, 679 (9th Cir. 2001). The
grant of qualified immunity is also reviewed de novo. Conner v. Heiman, 672 F.3d
1126, 1130 (9th Cir. 2012); Act Up!/Portland v. Bailey, 988 F.2d 868, 871 (9th Cir.
1993).
The initial issue raised by Plaintiffs is whether the officers had probable
cause for their arrests. We have reiterated that “[t]he test for whether probable
cause exists is whether ‘at the moment of arrest the facts and circumstances within
the knowledge of the arresting officers and of which they had reasonably
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trustworthy information were sufficient to warrant a prudent [person] in believing
that the petitioner had committed or was committing an offense.’” Blankenhorn v.
City of Orange, 485 F.3d 463, 471 (9th Cir. 2007) (quoting United States v.
Jensen, 425 F.3d 698, 704 (9th Cir. 2005)). At the time of the arrests, the Task
Force had identifications by witnesses, corroborating circumstantial evidence, and
authorization from the tribal prosecutor for the arrest. Nonetheless, Plaintiffs
advance non-frivolous arguments that the information supporting their arrests was
not trustworthy.
We need not decide this issue. In determining whether an officer is entitled
to qualified immunity, we apply a two-step analysis: (1) has the plaintiff made out
a violation of a constitutional right; and (2) was that right clearly established at the
time of the officer’s alleged misconduct. Pearson v. Callahan, 555 U.S. 223, 232
(2009); Saucier v. Katz, 533 U.S. 194, 201 (2001). Here the right not to be
arrested without probable cause was clearly established, but Plaintiffs have not
shown that the members of the Task Force knew or should have known that they
lacked probable cause when Plaintiffs were arrested.
Unlike the situations presented by the cases relied upon by Plaintiffs where
the arrests were made without a warrant, see Jenkins v. City of New York, 478 F.3d
76, 82 n.1 (2nd Cir. 2007) and Grant v. City of Long Beach, 315 F.3d 1081, 1085
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(9th Cir. 2002), in this case the arrests were made pursuant to authorization by the
tribal prosecutor.
In Malley v. Briggs, 475 U.S. 335, 341 (1986), the Supreme Court explained
that qualified immunity has evolved to provide “ample protection to all but the
plainly incompetent or those who knowingly violate the law.” “Defendants will
not be immune if, on an objective basis, it is obvious that no reasonably competent
officer would have concluded that a warrant should issue; but if officers of
reasonable competence could disagree on this issue, immunity should be
recognized.” Id.
In Messerschmidt v. Millender, 132 S. Ct. 1235, 1245 (2012), the Supreme
Court noted that “the fact that a neutral magistrate has issued a warrant is the
clearest indication that the officers acted in an objectively reasonable manner.” In
Armstrong v. Asselin, 734 F.3d 984, 991 (9th Cir. 2013), applying Millender, we
noted that presentation to a superior officer, a prosecutor or a judicial officer
demonstrates that any error on the part of the officer was not obvious. 2
2 We commented:
The question in this case is not whether the magistrate erred in
believing there was sufficient probable cause to support the scope of
the warrant he issued. It is instead whether the magistrate so
obviously erred that any reasonable officer would have recognized the
error. The occasions on which this standard will be met may be rare,
but so too are the circumstances in which it will be appropriate to
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Here, the Task Force sought and obtained the authority of the tribal
prosecutor to arrest the Plaintiffs. The prosecutor has maintained that she
independently determined that there was probable cause for their arrest. Although
the tribal prosecutor is not the “neutral magistrate” mentioned in Millender, on the
facts of this case, we determine that assuming that there was not probable cause to
arrest Plaintiffs, nonetheless the tribal prosecutor’s independent authorization of
the arrests was sufficient to allow the members of the Task Force to proceed with
the arrests in good faith. Accordingly, the grant of summary judgment in favor of
the individual defendants is affirmed.
3. Pursuant to 28 U.S. C. § 2680(a), the United States has not waived its
sovereign immunity for claims “based upon the exercise or performance or the
failure to exercise or perform a discretionary function.” In applying this standard,
a court determines first whether the challenged conduct involves an element of
choice or judgment or violated a mandatory regulation or policy, and second
“whether [the] judgment is the kind that the discretionary function exception was
designed to shield.” Berkovitz v. United States, 486 U.S. 531, 536 (1988).
We have held that where an agent is allowed to exercise discretion, “it must
impose personal liability on a lay officer in the face of judicial
approval of his actions.
734 F.3d at 991.
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be presumed that the agent’s acts are grounded in policy.” Alfrey v. United States,
276 F.3d 557, 562 (9th Cir. 2002). We have further noted that investigations by
federal officers include the type of policy judgments protected by the discretionary
function test. See Alfrey, 566 F.3d at 566; Sabow v. United States, 93 F.3d 1445,
1453 (9th Cir. 1996). We conclude on this record that the Task Force’s
determinations of whom to arrest and when to arrest them came within the
discretionary function exception. Accordingly, the grant of summary judgment in
favor of the United States is affirmed.
Because we conclude that Plaintiffs claims against McCoy and Youngman
were barred by the applicable statute of limitations, the remaining members of the
Task Force were properly granted qualified immunity, and the United States was
immune from liability under the FTCA’s discretionary function exception, we need
not, and do not, reach the other issues raised on appeal by the parties. The district
court’s orders (1) dismissing defendants McCoy and Youngman; and (2) granting
summary judgment in favor of the remaining defendants are AFFIRMED.
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