NOT FOR PUBLICATION                            FILED
                    UNITED STATES COURT OF APPEALS                        MAR 28 2023
                                                                      MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

CHANDAN MANANSINGH; ANGELA                      No.    21-16192
NAIRNS,
                                                D.C. No. 2:20-cv-01139-DWM
                Plaintiffs-Appellants,

 v.                                             MEMORANDUM*

UNITED STATES OF AMERICA; et al.,

                Defendants-Appellees.

                   Appeal from the United States District Court
                            for the District of Nevada
                   Donald W. Molloy, District Judge, Presiding

                      Argued and Submitted March 10, 2023
                               Las Vegas, Nevada

Before: GRABER, CLIFTON, and BENNETT, Circuit Judges.

      Chandan Manansingh and Angela Nairns (together, “Plaintiffs”) appeal from

the district court’s judgment dismissing their constitutional claims against five

federal probation officers (“Probation Defendants”) under Bivens v. Six Unknown

Named Agents of the Federal Bureau of Narcotics, 

 (1971), and tort




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
claims against the United States under the Federal Tort Claims Act (“FTCA”). 1

The district court dismissed most of Plaintiffs’ claims in their First and Second

Amended Complaint for untimeliness, lack of subject matter jurisdiction, and

failure to state a claim. We have jurisdiction under 

. We review

de novo. See Lam v. United States, 

 (9th Cir. 2020) (dismissal

for lack of jurisdiction under Federal Rule of Civil Procedure 12(b)(1)); Redlin v.

United States, 

 (9th Cir. 2019) (dismissal for failure to state a

claim under Federal Rule of Civil Procedure 12(b)(6)); Pouncil v. Tilton, 

 (9th Cir. 2012) (dismissal based on the statute of limitations). We affirm

in part, reverse in part, and remand for further proceedings.

      1. We affirm the dismissal of Plaintiffs’ Fourth and Fifth Amendment

claims because they are time-barred. For these Bivens claims, federal courts apply

the forum state’s personal injury statute of limitations. Wallace v. Kato, 

 (2007). The statute of limitations for personal injury claims in Nevada is

two years. Rosales-Martinez v. Palmer, 

 (9th Cir. 2014) (citing

(4)(e)). Plaintiffs filed their complaint on June 19, 2020,

more than two years after April 1, 2016, the date of the alleged unlawful search of

their residence, the seizure of Manansingh, and the start of Manansingh’s



      1
       In their reply brief, Plaintiffs withdrew their Eighth Amendment, invasion
of privacy, false light invasion of privacy, and trespass claims.

                                          2
detention. See Bonelli v. Grand Canyon Univ., 

 (9th Cir. 2022)

(concluding that illegal search, seizure, and detention claims accrue “when the

wrongful act occurs” (citation omitted)). Plaintiffs have not demonstrated that the

limitations period should be equitably tolled for these claims. No “extraordinary

circumstances” prevented them from timely filing their complaint. See Redlin, 

 (citation omitted); Fausto v. Sanchez-Flores, 

, 681–82

(Nev. 2021) (setting forth elements for equitable tolling of 

(4)(e)).

      2. We affirm the dismissal of Plaintiffs’ claim for failure to intercede

because it is not cognizable under Bivens. See Mejia v. Miller, 

, 666–

68 (9th Cir. March 2, 2023) (setting forth requirements of a Bivens action).

Plaintiffs have not shown that Bivens should be extended to their claim. See Ting

v. United States, 

 (9th Cir. 1991) (rejecting a failure-to-

intervene claim as cognizable under Bivens where bystander officers failed to

prevent another officer from shooting the plaintiff); Egbert v. Boule, 

 (2022) (stating that recognizing a new Bivens action is “a disfavored

judicial activity” (citation omitted)).

      3. We affirm the dismissal of Plaintiffs’ 

(3) claim based on

qualified immunity. See Mullenix v. Luna, 

, 11–12 (2015) (per curiam)

(setting forth elements for qualified immunity); Pasadena Republican Club v. W.


                                          3
Just. Ctr., 

 (9th Cir. 2021) (setting forth elements of a

§ 1985(3) claim). Under the intracorporate-conspiracy doctrine, “an agreement

between or among agents of the same legal entity, when the agents act in their

official capacities, is not an unlawful conspiracy.” Ziglar v. Abbasi, 

 (2017). When Plaintiffs claimed that Probation Defendants conspired to

deprive them of constitutional rights, the question whether an intracorporate

agreement could subject federal officials (from the same or different agencies

within the Executive Branch) to liability under § 1985(3) was unsettled. See

Fazaga v. Fed. Bureau of Investigation, 

, 1059–60 & n.41 (9th Cir.

2020), reversed on other grounds by Fed. Bureau of Investigation v. Fazaga, 

 (2022).

      4. We affirm the dismissal of Plaintiffs’ FTCA claims against the United

States on sovereign immunity grounds. Under 

(h), the United

States is not liable for “[a]ny claim arising out of ... malicious prosecution, abuse

of process,” and certain other intentional torts, unless committed by “investigative

or law enforcement officers of the United States Government.” For purposes of

this provision, the term “investigative or law enforcement officer” means “any

officer of the United States who is empowered by law to execute searches, to seize

evidence, or to make arrests for violations of Federal law.” 

 Federal

prosecutors do not qualify as investigative or law enforcement officers here. See


                                           4
Wright v. United States, 

 (9th Cir. 1983) abrogated on other

grounds as recognized by Snyder & Assocs. Acquisitions LLC v. United States, 

 (9th Cir. 2017); Snow-Erlin v. United States, 

(9th Cir. 2006) (“If the gravamen of Plaintiff’s complaint is a claim for an

excluded tort under § 2680(h), then the claim is barred.”); Sheehan v. United

States, 

 (9th Cir. 1990) (barring an intentional infliction of

emotional distress (“IIED”) claim under § 2680(h) if “in substance the conduct

relied upon constituted a specifically excluded tort”).

      5. We reverse the dismissal of Plaintiffs’ IIED and abuse of process claims

against Probation Defendants based on conduct that occurred before June 24, 2017.

The district court dismissed these claims on the ground that they were untimely.

See Wallace, 

 (requiring that the plaintiff have “a complete and

present cause of action” before accrual (citations omitted)); Bennett v. United

States, 

 (9th Cir. 2022) (citing 

(b)) (noting that

the FTCA has a two-year limitations period). The district court held that these

claims were not subject to deferred accrual under Heck v. Humphrey, 

(1994), which bars a 

 claim when a favorable judgment for the

plaintiff would “necessarily imply the invalidity of [the plaintiff’s] conviction or

sentence.” 

.




                                          5
      Here, Plaintiffs allege that Probation Defendants caused “severe and

extremely emotionally distressing conduct” through June 21, 2018, by withholding

exculpatory information and planting evidence to prosecute Manansingh. See

Olivero v. Lowe, 

 (Nev. 2000) (setting forth elements of an

IIED claim in Nevada). They also allege that Probation Defendants’ “fabrication

of evidence” and “alleged planting of evidence” constitute an abuse of process

through “the present day.” See Land Baron Invs. Inc. v. Bonnie Springs Family

LP, 

, 519 (Nev. 2015) (setting forth elements of an abuse of process

claim in Nevada). The IIED and abuse of process claims are akin to the tort of

malicious prosecution because they rely on alleged fabrication of evidence and

“challenge the validity of the criminal proceedings against [Manansingh].” See

McDonough v. Smith, 

, 2158 (2019). No conviction (or

invalidation of a conviction) was required to apply Heck and McDonough to these

claims. See Roberts v. City of Fairbanks, 

, 1201 n.11 (9th Cir. 2020)

(explaining that the favorable-termination rule and invalidation under Heck are not

“coterminous”).

      Accordingly, Plaintiffs did not have a complete cause of action for the IIED

and abuse of process claims until the criminal case against Manansingh was

dismissed on June 21, 2018, whereupon his prosecution was terminated favorably.

See McDonough, 139 S. Ct. at 2156. These claims were therefore timely. The


                                         6
district court should determine on remand if Probation Defendants’ conduct prior

to June 24, 2017, establishes plausible claims for IIED and abuse of process.

      6. We reverse the dismissal of Plaintiffs’ malicious prosecution claim

against Probation Defendants. The district court dismissed the claim because

Plaintiffs failed to allege that Manansingh was prosecuted in the absence of

probable cause. However, Plaintiffs alleged that Manansingh’s prosecution rested

on fabricated evidence and that the prosecution withheld exculpatory evidence,

which rebuts a finding of probable cause. See Awabdy v. City of Adelanto, 

, 1066–68 (9th Cir. 2004) (setting forth elements of a malicious

prosecution claim and stating that a finding of probable cause may be rebutted by

showing the “prosecution was induced by . . . fabricated evidence[ ] or other

wrongful conduct undertaken in bad faith”). The district court also held that the

voluntary dismissal of Manansingh’s indictment was not a favorable termination

sufficient for a malicious prosecution claim. But after the district court’s decision,

the Supreme Court held that a malicious prosecution claim requires a plaintiff

“need only show that the criminal prosecution ended without a conviction.”

Thompson v. Clark, 

 (2022) (examining a Fourth Amendment

claim under § 1983 for malicious prosecution). Given that the district court relied

in part on now-abrogated federal common law in forming its decision, the district

court should reconsider the issue in light of Thompson.


                                          7
      7. We affirm the dismissal of Plaintiffs’ negligence claim based on

untimeliness and sovereign immunity. See Sanchez ex rel. Sanchez v. Wal-Mart

Stores, Inc., 

, 1280–81 (Nev. 2009) (setting forth elements of a

negligence claim in Nevada). Plaintiffs allege that Probation Defendants violated

their duty of care “through their use of force and making of arrests.” As previously

stated, accrual of these claims began on April 1, 2016, and are thus time-barred.

See Wallace, 

; Bonelli, 

. The remaining allegations

either accrued at the time of the negligent acts (rendering the claim untimely) or

are barred by sovereign immunity. See id.; Wright, 

.

      Based on the foregoing, we reverse in part the district court’s dismissal of

Plaintiffs’ IIED, abuse of process, and malicious prosecution claims against

Probation Defendants. We remand for limited fact-finding to determine whether

Probation Defendants’ conduct prior to June 24, 2017, establishes plausible claims

for IIED and abuse of process. The district court should also consider, in the first

instance, whether the malicious prosecution claim proceeds in light of Thompson v.

Clark, 

 (2022). On all other issues, we affirm.2

      AFFIRMED in part, REVERSED in part, and REMANDED. Each party

shall bear its own costs on appeal.


      2
       We will not consider matters that are not “specifically and distinctly”
argued in Plaintiffs’ opening brief. See Padgett v. Wright, 

, 985 n.2
(9th Cir. 2009).

                                          8