NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

THOMAS BONDURANT; MICHELLE 

BONDURANT, husband and wife, 

Plaintiffs-Appellants, 

 v. 

CITY OF BATTLE GROUND; et al., 

Defendants-Appellees.

No. 16-36085 

D.C. No. 3:15-cv-05719-KLS 

MEMORANDUM*

Appeal from the United States District Court

for the Western District of Washington

Karen L. Strombom, Magistrate Judge, Presiding**

Submitted September 26, 2017*** 

Before: SILVERMAN, TALLMAN, and N.R. SMITH, Circuit Judges.

Thomas Bondurant and Michelle Bondurant appeal pro se from the district 

court’s summary judgment in their 42 U.S.C. § 1983 action alleging federal and 

 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The parties consented to proceed before a magistrate judge. See 28 

U.S.C. § 636(c).

*** The panel unanimously concludes this case is suitable for decision 

without oral argument. See Fed. R. App. P. 34(a)(2).

FILED

OCT 4 2017

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 16-36085 

state law claims. We have jurisdiction under 28 U.S.C. § 1291. We review de 

novo. Blankenhorn v. City of Orange, 485 F.3d 463, 470 (9th Cir. 2007). We 

affirm.

The district court properly granted summary judgment for the City of Battle 

Ground because the Bondurants failed to raise a genuine dispute of material fact as 

to whether the alleged deprivations were caused by municipal policy, custom, or 

practice, or whether the allegedly unconstitutional conduct was ratified by an 

official with final policymaking authority. See Monell v. Dep’t of Soc. Servs., 436 

U.S. 658, 694 (1978) (explaining municipal liability under § 1983); Gilette v. 

Delmore, 979 F.2d 1342, 1346-47 (9th Cir. 1992) (in the absence of an expressly 

adopted municipal policy, municipal liability under § 1983 can be established by 

proving that an official with final policymaking authority ratified a subordinate’s 

unconstitutional decision or action and basis for it).

The district court properly granted summary judgment for the Battle Ground 

Police Department because the Bondurants failed to establish that the Battle 

Ground Police Department is an entity with capacity to be sued under Washington 

law. See Fed. R. Civ. P. 17(b); BATTLE GROUND, WASH., MUN. CODE § 2.30.040 

(2009); Shaw v. Cal. Dep’t of Alcoholic Beverage Control, 788 F.2d 600, 604 
3 16-36085 

(1986) (an entity’s capacity to be sued in federal court is determined by state law); 

Roth v. Drainage Improvement Dist. No. 5, of Clark Cty., 392 P.2d 1012, 1014-15 

(Wash. 1964) (“In determining the issue of [an entity’s] capacity to be sued, we 

must examine the enactment providing for its establishment.”).

The district court did not abuse its discretion by denying the Bondurants’ 

motion to amend their complaint because amendment would be futile. See 

Johnson v. Buckley, 356 F.3d 1067, 1077 (9th Cir. 2004) (setting forth standard of 

review and factors for determining whether to grant leave to amend, and stating 

that “[f]utility alone can justify the denial of a motion to amend” (internal 

quotation marks omitted)). The district court properly concluded that the 

Bondurants’ amended complaint was time-barred. See Bagley v. CMC Real Estate 

Corp., 923 F.2d 758, 760 (9th Cir. 1991) (limitations period for § 1983 claim is 

three years under Washington law). The district court also properly concluded that 

the new allegations did not relate back to their original complaint because the 

Bondurants failed to demonstrate that the claims alleged in the amended complaint 

“arose out of the conduct, transaction, or occurrence set forth or attempted to be set 

forth in the original pleading” or that the parties had adequate notice of those 

claims. Wash. Civ. R. 15(c); see Williams v. Boeing Co., 517 F.3d 1120, 1132-33 
4 16-36085 

(9th Cir. 2008) (setting forth standard of review); Merritt v. County of Los Angeles, 

875 F.2d 765, 768 (9th Cir. 1989) (explaining that relation back provisions of state 

law govern § 1983 actions); Stansfield v. Douglas County, 43 P.3d 498, 500-01 

(Wash. 2002) (discussing requirements for relation back under Wash. Civ. R. 

15(c)). 

We do not consider documents not filed with the district court. See United 

States v. Elias, 921 F.2d 870, 874 (9th Cir. 1990) (“Documents or facts not 

presented to the district court are not part of the record on appeal.”).

Appellees’ motion to strike (Docket Entry No. 12) is denied.

AFFIRMED.