Clorissa D. Porter; William D. Spencer v. SOUTHERN NEVADA ADULT MENTAL HEALTH SERVICES, AKA Rawson-Neal Psychiatric Hospital,…

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CLORISSA D. PORTER; WILLIAM D.
SPENCER,
Plaintiffs-Appellants,
v.
SOUTHERN NEVADA ADULT MENTAL
HEALTH SERVICES, AKA Rawson-Neal
Psychiatric Hospital, a mental health
treatment operation licensed by the State of
Nevada; et al.,
Defendants-Appellees.
No. 18-15360
D.C. No.
2:16-cv-02949-APG-PAL
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
Andrew P. Gordon, District Judge, Presiding
Argued and Submitted July 15, 2019
San Francisco, California
Before: PAEZ and RAWLINSON, Circuit Judges, and HUCK,** District Judge.
Clorissa Porter and William Spencer appeal the district court’s order
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Paul C. Huck, United States District Judge for the U.S.
District Court for Southern Florida, sitting by designation.
FILED
DEC 19 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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dismissing their case as time-barred. Former patients of Southern Nevada Adult
Mental Health Services (“SNAMHS”), Porter and Spencer filed the instant class
action—on behalf of themselves and victims of an alleged scheme to unlawfully
discharge mental health patients—after the statute of limitations had run on their
claims. Porter and Spencer had delayed filing their class action while an earlier
class action plaintiff who represented them as putative class members proceeded in
an ultimately unsuccessful appeal to this court. See Brown v. Rawson-Neal
Psychiatric Hosp., 840 F.3d 1146, 1148 (9th Cir. 2016). Porter and Spencer argue
that their class claims under the Americans with Disabilities Act (“ADA”) and 42
U.S.C. § 1983 should be subject to tolling under either the principles expressed in
American Pipe Construction Co. v. Utah, 414 U.S. 538 (1974) and its progeny or
traditional principles of equitable tolling. The district court denied tolling under
both theories. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.1
1. We review de novo whether the district court erred in concluding that
American Pipe tolling did not apply to Porter’s and Spencer’s class claims under
the ADA and § 1983.2 See Ellis v. City of San Diego, 176 F.3d 1183, 1188 (9th
1 We also grant Porter’s and Spencer’s request for judicial notice.
2 Although § 1983 and the ADA provide federal causes of action, they borrow the
forum state’s tolling rules for individual claims. See TwoRivers v. Lewis, 174 F.3d
987, 992 (9th Cir. 1999). We have not yet decided whether the forum state’s
tolling rules should also apply in the context of a Rule 23 class action. We need
not address that question, however, as Nevada appears to have adopted federal

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Cir. 1999). In American Pipe—and in Crown, Cork, & Seal, Co. v. Parker—the
U.S. Supreme Court established that the filing of a class action suspends the
applicable statute of limitation as to all putative class members until class
certification is denied, at which point members may file their own individual suits
or intervene as plaintiffs in the pending action. Crown, Cork, & Seal, Co. v.
Parker, 462 U.S. 345, 353–54 (1983). Recently, in China Agritech, Inc. v. Resh,
the Court clarified that American Pipe only tolls individual claims: “Time to file a
class action falls outside the bounds of American Pipe.” 138 S. Ct. 1800, 1811
(2018). Applying the China Agritech rule, we conclude that Porter’s and
Spencer’s class claims were not subject to American Pipe tolling at any point
during the pendency of the Brown class action. See id.
2. We review de novo whether the district court erred by failing to extend
traditional principles of equitable tolling to Porter’s and Spencer’s class claims.3
Neither this court nor the Nevada Supreme Court has addressed whether traditional
principles of equitable tolling extend beyond individual claims to apply to
class action tolling principles. See Jane Roe Dancer I-VII v. Golden Coin, Ltd.,
176 P.3d 271, 275 & n.22 (Nev. 2008).
3 While American Pipe tolling is an “equitable-tolling exception to statutes of
limitation,” China Agritech, Inc., 138 S. Ct. at 1809, Porter and Spencer seek to
avail themselves of the traditional doctrine of equitable tolling, Cal. Pub. Emps.
Retirement Sys. v. ANZ Securities, Inc., 137 S. Ct. 2042, 2051–52 (2017) (noting
the differences between American Pipe and the traditional doctrine of equitable
tolling).

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successive class claims. The Nevada Supreme Court, however, would likely
follow the California law addressing this issue. See Wisenbaker v. Farwell, 341 F.
Supp. 2d 1160, 1167 (D. Nev. 2004). And at least one California court has denied
equitable tolling to class claims post-China Agritech. See Fierro v. Landry’s
Restaurant Inc., 244 Cal. Rptr. 3d 1, 15–17 (Cal. Ct. App. 2019). We agree with
this conclusion and decline to apply any principles of equitable tolling to Porter’s
and Spencer’s successive class claims.
3. We do not consider whether Porter’s and Spencer’s individual claims are
subject to tolling under American Pipe or traditional principles of equitable tolling
because neither Porter nor Spencer raise this issue in their opening brief. See Smith
v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999) (“[O]n appeal, arguments not raised
by a party in its opening brief are deemed waived.”).
AFFIRMED.

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