Lyle Floyd, a single person v. City of Grand Coulee

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LYLE FLOYD, a single person,
Plaintiff-Appellant,
v.
CITY OF GRAND COULEE; J.D. TUFTS,
Grand Coulee Police Chief; GARY W.
MOORE, Sergeant; JOSEPH HIGGS,
Officer; ADAM FLORENZEN, Officer;
JOHN AND JANE DOES 1-10,
Defendants-Appellees.
No. 21-35917
D.C. No. 2:21-cv-00211-SAB
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of Washington
Stanley A. Bastian, Chief District Judge, Presiding
Submitted December 5, 2022**
Seattle, Washington
Before: McKEOWN, MILLER, and H.A. THOMAS, Circuit Judges.
Plaintiff Lyle Floyd appeals the district court’s order granting the motion to
dismiss filed by Defendants City of Grand Coulee, Police Chief J.D. Tufts,
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
DEC 7 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Sergeant Gary W. Moore, Officer Joseph Higgs, and Officer Adam Florenzen. We
have jurisdiction under 28 U.S.C. § 1291. We affirm.
1. The district court correctly concluded that Floyd’s claims under 42
U.S.C. § 1983 and Monell v. Department of Social Services of City of New York,
436 U.S. 658 (1978), are time barred. A three-year statute of limitations applies to
these claims. See Wash. Rev. Code Ann. § 4.16.080(2); cf. Butler v. Nat’l Cmty.
Renaissance of Cal., 766 F.3d 1191, 1198 (9th Cir. 2014) (explaining that in
§ 1983 actions, federal courts apply “the forum state’s statute of limitations for
personal injury actions [and its] law regarding tolling, including equitable tolling”).
In Floyd’s case, that statute of limitations ran in 2019, three years after his alleged
injuries occurred, but Floyd did not file his complaint until 2021. See Wallace v.
Kato, 549 U.S. 384, 397 (2007) (“[T]he statute of limitations upon a § 1983
claim . . . for a false arrest in violation of the Fourth Amendment . . . begins to run
at the time the claimant becomes detained pursuant to legal process.”).
2. Floyd seeks equitable tolling, but such tolling is not available to him
as he cannot demonstrate that “an extraordinary circumstance prevented a timely
filing” of his complaint. In re Fowler, 479 P.3d 1164, 1168 (Wash. 2021).
Although deception that prevents a plaintiff from asserting a claim can constitute
an extraordinary circumstance, see Millay v. Cam, 955 P.2d 791, 797 (Wash.
1998), Floyd concedes that he was aware of his alleged injuries in 2016. The

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emails Floyd discovered in November 2018 thus had no bearing upon his ability to
pursue his claims.
3. The district court also correctly concluded that Floyd’s Washington
state law claims for excessive force, assault and battery, and unlawful
imprisonment are time barred. The two-year statute of limitations applicable to
those claims ran in 2018, Wash. Rev. Code Ann. § 4.16.100(1), but Floyd did not
file his complaint until 2021. See Allen v. State, 826 P.2d 200, 203 (Wash. 1992)
(“The action accrues when the plaintiff knows or should know the relevant facts.”).
Tolling the statute of limitations to November 2018 would not make Floyd’s filing
timely. Even with such tolling, the statute of limitations would have run in
November 2020, eight months before he filed his complaint.
AFFIRMED.

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