United States v. 2020-06-23 | 18-17184 | SHEENA SHAW V. SAC. COUNTY SHERIFF'SDEPT. | nonprecedential | memorandum disposition |

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SHEENA SHAW,

Plaintiff-Appellant,

v.

SACRAMENTO COUNTY SHERIFF'S
DEPARTMENT; et al.,

Defendants-Appellees.

No. 18-17184

D.C. No.
2:16-cv-00729-TLN-CKD

MEMORANDUM
*

Appeal from the United States District Court
for the Eastern District of California
Troy L. Nunley, District Judge, Presiding

Argued and Submitted May 11, 2020
San Francisco, California

Before: R. NELSON and BRESS, Circuit Judges, and GWIN,
**
District Judge.

Sheena Shaw was arrested by deputies from the Sacramento County
Sheriff’s Department on April 5, 2014, detained overnight, and released the next
day. Two years and one day after the arrest, she filed a complaint under 42 U.S.C.

*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

**
The Honorable James S. Gwin, United States District Judge for the
Northern District of Ohio, sitting by designation.
FILED

JUN 23 2020

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

2
§ 1983 against the Sheriff’s Department, as well several deputies, based on the
events surrounding the arrest. The district court granted a motion to dismiss the
complaint as time barred, a decision we review de novo. Gregg v. Haw., Dep’t of
Pub. Safety, 870 F.3d 883, 886–87 (9th Cir. 2017). We have jurisdiction under 28
U.S.C. § 1291 and affirm in part and reverse in part.
1

1. The district court correctly held that tolling was not available under
California Code of Civil Procedure section 352.1, which tolls the statute of
limitations during the time “a person” is “imprisoned on a criminal charge.” Under
the California Court of Appeal’s decision in Austin v. Medicis—which we are
“obligated to follow” in the absence of evidence that the California Supreme Court
would rule to the contrary, Ryman v. Sears, Roebuck & Co., 505 F.3d 993, 995 (9th
Cir. 2007) (internal quotation marks omitted)—the phrase “imprisoned on a
criminal charge” means “serving a term of imprisonment in the state prison.” 230
Cal. Rptr. 3d 528, 542 (Ct. App. 2018), review denied (June 13, 2018). Shaw has
not alleged that she was serving a term of imprisonment, nor that she was detained
in a state prison. So the district court was correct to hold that her one-day
detention in a county jail did not entitle her to tolling under California Code of
Civil Procedure section 352.1. Id. at 543; see also Bd. of Regents of Univ. of N.Y.

1
We deny as moot Shaw’s Motion to Stay Setting Case for Oral Argument. That
motion was premised upon Shaw’s filing of a supplemental opening brief, which
she did before oral argument.

3
v. Tomanio, 446 U.S. 478, 484 (1980) (explaining that “a state statute of
limitations and the coordinate tolling rules” are “binding rules of law” in a § 1983
case).
2

2. Shaw also argues she is entitled to tolling of the statute of limitations
under California Government Code section 945.3, which tolls the statute of
limitations in certain cases for the period during which “charges are pending before
a superior court.” But she did not raise this argument in her opposition to the
County’s motion to dismiss. Instead, she raised it for the first time in a motion for
reconsideration of a magistrate judge order staying discovery pending a ruling on
the motion to dismiss. The issue was therefore waived, and we decline to exercise
our discretion to consider it for the first time on appeal. See Janes v. Wal-Mart
Stores Inc., 279 F.3d 883, 888 n.4 (9th Cir. 2002).
3. Having decided Shaw is not entitled to tolling, we now decide
whether her claims are barred by the two-year statute of limitations. Jones v.
Blanas, 393 F.3d 918, 927 (9th Cir. 2004); Cal. Code Civ. Proc. § 335.1. All but
one of Shaw’s claims accrued on April 5, 2014, because that was the day she knew
or had “reason to know of the injury which is the basis” for her claims. Kimes v.

2
Shaw argued in a supplemental brief that the Medicis decision should not be
applied retroactively. We decline to consider this argument because it was not
raised in Shaw’s opening brief. See Brown v. Rawson-Neal Psychiatric Hosp., 840
F.3d 1146, 1148–49 (9th Cir. 2016).

4
Stone, 84 F.3d 1121, 1128 (9th Cir. 1996) (internal quotation marks omitted).
Those claims—brought in the April 6, 2016 complaint—were therefore asserted
one day late and are barred by the two-year statute of limitations. Shaw’s false
arrest claim, however, did not accrue until “the alleged false imprisonment
end[ed]” on April 6, 2014. Wallace v. Kato, 549 U.S. 384, 389 (2007). Thus, that
claim is not barred by the two-year statute of limitations. We therefore affirm the
district court’s dismissal of all causes of action other than Shaw’s claim for false
arrest. As to that claim, we reverse and remand with instructions to consider, in
the first instance, whether the false arrest claim is adequately pled or barred by
Shaw’s nolo contendere plea. Each party will bear its own costs.
AFFIRMED IN PART; REVERSED IN PART.