NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

TRACEY L. BROWN, 

Plaintiff-Appellant,

 v.

GARY TORSKY, Metro Police Department 

/ Officer; GORDON MARTINES, Metro 

Police Department / Officer; LAS VEGAS 

METROPOLITAN POLICE 

DEPARTMENT; ANTHONY BROWN; 

CLARK COUNTY NEVADA; DOUGLAS 

C. GILLESPIE; JAMES BUCZEK, Metro 

Police Department / Officer, 

Defendants-Appellees.

No. 14-16358

D.C. No.

2:12-cv-00173-JCM-GWF

MEMORANDUM*

Appeal from the United States District Court

for the District of Nevada

James C. Mahan, District Judge, Presiding

Argued and Submitted July 6, 2016 

San Francisco, California

Before: SILVERMAN, and NGUYEN, Circuit Judges, and GARBIS,** District 

Judge.

 

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

except as provided by Ninth Circuit Rule 36-3.

** The Honorable Marvin J. Garbis, United States District Judge for the 

District of Maryland, sitting by designation.

FILED

JUL 18 2016

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
 2 

Tracey Brown appeals the district court’s dismissal pursuant to Federal Rule

of Civil Procedure 12(b)(6) of federal and state claims relating to a search of his 

home that Las Vegas Metropolitan Police Department officers conducted in 2005. 

Specifically, Brown argues that his claims under 42 U.S.C. §§ 1983 and 1985 and 

Nevada state law for malicious prosecution should survive dismissal due to the 

doctrine of equitable tolling. We have jurisdiction under 28 U.S.C. § 1291, and 

we affirm.1

The parties agree on appeal that Brown’s §§ 1983 and 1985 claims and his 

claim for malicious prosecution under Nevada state law are all subject to two-year 

statutes of limitations. See Jones v. Blanas, 393 F.3d 918, 927 (9th Cir. 2004); 

Perez v. Seevers, 869 F.2d 425, 426 (9th Cir. 1989); Nev. Rev. Stat. 11.190(4)(c);

Nev. Rev. Stat. 11.190(4)(e). They also agree that these claims accrued no later 

than August 3, 2009, the date on which the Nevada Supreme Court overturned his 

initial state conviction due to the illegality of the 2005 search. See Wallace v. 

Kato, 549 U.S 384, 389-90 (2007). Brown’s claims are untimely because he first 

filed them on February 1, 2012, more than two years after the accrual date, and the 

factors primarily relied on by Nevada courts weigh against the application of 

 

1 We grant Brown’s unopposed request for judicial notice.
 3 

equitable tolling. See Copeland v. Desert Inn Hotel, 673 P.2d 490, 492 (Nev. 

1983) (per curiam) (listing as six non-exhaustive factors: claimant’s diligence, 

claimant’s knowledge of relevant facts, claimant’s reliance on misleading 

authoritative statements by an administrative agency, deception by the defendants, 

prejudice to opposing party, and any other equitable considerations); State Dep’t of 

Taxation v. Masco Builder Cabinet Grp., 265 P.3d 666, 671 (Nev. 2011). 

Brown alleges that he was confused by the fact that the state continued to 

pursue criminal proceedings against him even after his conviction was reversed, 

and that the statute of limitations should be tolled until April 13, 2010, when he 

entered a plea that ultimately resolved the proceedings. But Brown cannot 

establish diligence because the Nevada State Court made clear that the 2005 search 

was “unlawful” and that evidence from it could not be used in any future 

proceeding months before Brown’s plea date, and Brown offers no examples of 

actions that he actually took to attempt to address his confusion. Brown’s 

argument that the defendants would not be prejudiced does not, standing alone, 

support equitable tolling here, particularly where the balance of the remaining 

Copeland factors weigh against him. See 673 P.2d at 492.

 AFFIRMED.