Dain Sansome; v. Glenn Fairall;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAIN SANSOME; et al.,
Plaintiffs-Appellants,
v.
GLENN FAIRALL; et al.,
Defendants-Appellees.
No. 16-35724
D.C. No. 6:15-cv-02267-AA
MEMORANDUM*
Appeal from the United States District Court
for the District of Oregon
Ann L. Aiken, District Judge, Presiding
Submitted May 17, 2018**
Portland, Oregon
Before: TASHIMA, McKEOWN, and PAEZ, Circuit Judges.
Dain Sansome and his minor children (collectively, “the Sansomes”) appeal
the district court’s denial of reconsideration and dismissal of their civil rights
claims against detective Glenn Fairall and the City of Albany. We review de novo
* 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
JUN 28 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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the district court’s statute of limitations rulings.1 Orr v. Bank of Am., NT & SA,
285 F.3d 764, 779–80 (9th Cir. 2002). We affirm in part, reverse in part, and
remand with instructions to appoint a representative for the minor children.
1. As a preliminary matter, we may review the district court’s dismissal
order even though the notice of appeal references only the district court’s denial of
reconsideration. The Sansomes’ opening brief gave defendants sufficient notice
that they also intended to appeal the dismissal order, and because defendants
responded to the Sansomes’ arguments challenging the dismissal of their claims,
defendants are not prejudiced by our review of the dismissal order. See Barnes v.
Sea Haw. Rafting, LLC, 889 F.3d 517, 535 n.14 (9th Cir. 2018).
2. (a) The two-year statute of limitations, Oregon Revised Statutes
§ 12.110, which applies to these claims brought under 42 U.S.C. § 1983, see
Bonneau v. Centennial Sch. Dist. No. 28J, 666 F.3d 577, 580 (9th Cir. 2012), does
not bar Dain Sansome’s claim that Fairall violated his due process rights by
investigating and prosecuting him while Fairall knew or should have known that he
was innocent. The complaint, filed in December 2015, alleges a continuing
violation in the form of a “continuing . . . criminal investigation and criminal
1 Although we review the district court’s denial of reconsideration for abuse of
discretion, Kona Enterprises, Inc. v. Estate of Bishop, 229 F.3d 877, 883 (9th Cir.
2000), “[t]he abuse-of-discretion standard includes review to determine that the
discretion was not guided by erroneous legal conclusions,” Koon v. United States,
518 U.S. 81, 100 (1996).

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prosecution.” This claim is similar to a malicious prosecution claim, which “does
not accrue until the plaintiff is acquitted.” RK Ventures, Inc. v. City of Seattle, 307
F.3d 1045, 1060 n.11 (9th Cir. 2002). Accordingly, this claim did not accrue until
Sansome was acquitted of all criminal charges in December 2013, which is within
the two-year limitations period.
(b) Assuming for purposes of appeal that Sansome’s Sixth Amendment
retaliatory prosecution claim is cognizable, it similarly alleges a continuing
violation that did not stop until he was acquitted. Thus, Sansome’s Sixth
Amendment claim also accrued in December 2013 and is not time-barred.
(c) The statute of limitations bars Sansome’s claim that Fairall violated his
due process rights by falsifying interview transcripts and presenting them as
accurate transcripts to his superiors in November 2011. These alleged unlawful
actions constitute “discrete acts,” not a continuing violation. Pouncil v. Tilton, 704
F.3d 568, 583 (9th Cir. 2012). At most, the complaint alleges that Fairall’s
subsequent investigation and prosecution of Sansome was a “continuing impact” of
the prior discrete acts. Knox v. Davis, 260 F.3d 1009, 1013–14 (9th Cir. 2001).
Accordingly, this claim accrued in November 2011 and the limitations period
expired in November 2013, prior to the filing of the complaint.
(d) We do not consider whether Sansome’s putative claim against the City
pursuant to Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978), is barred by the

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statute of limitations. Sansome did not argue before the district court that the
complaint alleged a timely Monell claim, and the district court did not consider the
issue. Therefore, the issue is waived on appeal. United States v. Crowell, 9 F.3d
1452, 1453 (9th Cir. 1993). In addition, the district court did not err in failing to
address any potential Monell claim sua sponte when dismissing the case and
denying reconsideration. Cf. Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir. 1995).
3. (a) The two-year statute of limitations bars Sansome’s claim that Fairall
violated his Fourteenth Amendment right to family association by restricting his
contact with his children. This claim accrued when Sansome’s contact with his
children was restricted in November 2011. The ongoing restriction that followed is
best characterized as the “continuing impact” of the initial restriction rather than a
continuing violation. Knox, 260 F.3d at 1013–14.
(b) The statute of limitations does not bar the minor children’s claims that
Fairall violated their Fourteenth Amendment right to family association. For
minors’ section 1983 claims, we apply Oregon Revised Statutes § 12.160, which
tolls the general two-year limitations period for five years or until the minors turn
nineteen years old, whichever occurs first. Bonneau, 666 F.3d at 580. The
Sansome children were aged one, three, and six when their contact with their father
was restricted in November 2011. Thus, the limitations period for their claims was
tolled until November 2018, and so their claims were timely filed in December

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2015. Furthermore, the district court erred in dismissing the children’s claims with
prejudice without first appointing a representative or “next friend” to represent
them. See Johns v. Cty. of San Diego, 114 F.3d 874, 878 (9th Cir. 1997); Fed. R.
Civ. P. 17(c)(2).
Accordingly, we affirm in part and reverse in part the district court’s orders
dismissing the case and denying reconsideration. We remand for further
proceedings consistent with this disposition, with instructions to appoint an
appropriate representative for the minor children in advance of such proceedings.2
AFFIRMED in part; REVERSED in part; REMANDED with
instructions. The parties shall bear their own costs on appeal.
2 Because we do not decide whether the Sansomes have pled cognizable claims, or
whether they have sufficiently alleged facts to support such claims, the district
court may consider these questions in the first instance on remand.

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