Leopoldo Cardenas v. Maggie Miller-Stout;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LEOPOLDO CARDENAS,
Plaintiff - Appellant,
v.
MAGGIE MILLER-STOUT; et al.,
Defendants - Appellees.
No. 12-35997
D.C. No. 2:11-cv-05117-TOR
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of Washington
Thomas O. Rice, District Judge, Presiding
Submitted January 21, 2014**
Before: CANBY, SILVERMAN, and PAEZ, Circuit Judges.
Washington state prisoner Leopoldo Cardenas appeals pro se from the
district court’s order dismissing his 42 U.S.C. § 1983 action alleging due process
and retaliation claims as barred under the statute of limitations. We have
FILED
JAN 28 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.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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jurisdiction under 28 U.S.C. § 1291. We review de novo, Azer v. Connell, 306
F.3d 930, 936 (9th Cir. 2002), and we affirm.
The district court properly dismissed Cardenas’s due process claim as
untimely because it was filed more three years after Cardenas received notice that
the disciplinary infraction underlying his claim had been expunged. See Bagley v.
CMC Real Estate Corp., 923 F.2d 758, 760 (9th Cir. 1991) (limitations period for
§ 1983 action is three years under Washington state law; claim accrues when
plaintiff “knows or has reason to know of the injury which is the basis of the
action”); see also Heck v. Humphrey, 512 U.S. 477, 486-87, 489 (1994) (§ 1983
claim arising from an allegedly unconstitutional conviction or sentence accrues
when the “conviction or sentence is reversed, expunged, invalidated, or impugned
by the grant of a writ of habeas corpus”).
The district court properly dismissed Cardenas’s retaliation claim as
untimely because it was filed more than three years after the allegedly retaliatory
denial of Cardenas’s request for restoration of previously-lost good time credits.
See Bagley, 923 F.2d at 760. Moreover, Cardenas’s retaliation claim was never
barred by Heck because a favorable resolution on the claim would not necessarily
implicate the validity of the previous infraction or accompanying revocation of
good time credits. See Nonnette v. Small, 316 F.3d 872, 875 (9th Cir. 2002) (Heck
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only bars a claim arising from an unconstitutional deprivation of good time credits
if the alleged constitutional violation would necessarily imply the invalidity of the
deprivation of good time credits).
Cardenas’s contentions regarding the delayed accrual of his claims based on
various theories, and the tolling of his claims based on a Washington state notice of
claim provision, are unpersuasive.
AFFIRMED.
12-35997 3

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