NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

KUI Z. MYLES, 

Plaintiff-Appellant, 

 v. 

UNITED STATES OF AMERICA; DAVID 

MARIN; BRIAN DEMORE; FRANCIS M. 

JACKSON; ARACELI TREVINO; DAVID 

GASSMANN; TROY THOMPSON; 

STEVEN LOVETT, 

Defendants-Appellees.

No. 20-55910 

D.C. No. 

5:19-cv-02036-PSG-KK 

MEMORANDUM*

Appeal from the United States District Court

for the Central District of California

Philip S. Gutierrez, Chief District Judge, Presiding

Argued and Submitted December 10, 2021

Pasadena, California

Before: BERZON and BEA, Circuit Judges, and BENNETT,** District Judge.

Kui Z. Myles filed a complaint against the federal government and five 

Department of Homeland Security (“DHS”) employees alleging malicious 

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

except as provided by Ninth Circuit Rule 36-3.

** The Honorable Richard D. Bennett, United States District Judge for 

the District of Maryland, sitting by designation.

FILED

SEP 2 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
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prosecution, abuse of process, negligence, intentional infliction of emotional 

distress, a First Amendment Bivens claim, a Second Amendment Bivens claim, a 

Fifth Amendment Bivens claim, a Fourteenth Amendment Bivens claim, 

conspiracy to interfere with civil rights under 42 U.S.C. § 1985, and a violation of 

civil rights under 42 U.S.C. § 1986. The district court dismissed Myles’s

complaint in its entirety on grounds of untimeliness, lack of administrative 

exhaustion, and discretionary function immunity. We address the latter issue in a 

concurrently filed opinion. With respect to the other two issues, we affirm in part, 

reverse in part, and remand for further proceedings. 

1. We affirm the dismissal of Myles’s section 1986 claim. Causes of action 

arising under 42 U.S.C. § 1986 must be “commenced within one year after the 

cause of action has accrued.” 42 U.S.C. § 1986. A cause of action cannot accrue 

until each of its elements has transpired. See, e.g., Petrella v. Metro-GoldwynMayer, Inc., 572 U.S. 663, 670 (2014). An element of Myles’s section 1986 claim 

is that the five individual defendants had the power to prevent or aid in the 

prevention of unlawful acts—namely, malicious prosecution and the associated 

commission of perjury, obstruction, tampering with witnesses, and fabrication of 

evidence—that occurred throughout the state criminal proceeding, but they 

neglected or refused to do so. A claim closely associated with a claim for 

malicious prosecution does not accrue until criminal proceedings are terminated in 
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the plaintiff’s favor. See, e.g., Heck v. Humphrey, 512 U.S. 477, 489 (1994); 

Rosales-Martinez v. Palmer, 753 F.3d 890, 895–96 (9th Cir. 2014). Myles’s claim 

therefore accrued in November 2017, when the state criminal case was dismissed 

in her favor. Myles filed her complaint in October 2019, more than one year after 

November 2017. Her section 1986 claim was untimely. 

2. We reverse the dismissal of Myles’s section 1985 claim. Causes of 

action arising under 42 U.S.C. § 1985 are subject to the limitations period of 

analogous state personal injury claims. Taylor v. Regents of Univ. of Cal., 993 

F.2d 710, 711–12 (9th Cir. 1993). California applies a two-year statute of 

limitations for personal injury actions, Cal. Civ. Proc. Code § 335.1, so Myles was 

required to file her complaint within two years of the date upon which her 

section 1985 claim accrued. An element of Myles’s section 1985 claim is that the 

five individual defendants conspired to injure her through the malicious 

prosecution and the related misconduct. So, as with her section 1986 claim,

Myles’s section 1985 claim accrued only once the criminal proceeding resolved in 

her favor in November 2017. See, e.g., Heck, 512 U.S. at 489; Rosales-Martinez, 

753 F.3d at 895–96. Myles filed her complaint in October 2019, within the twoyear limitations period. Her section 1985 claim was timely.

 3. We affirm the dismissal of Myles’s tort claims for abuse of process, 

negligence, and intentional infliction of emotional distress (“IIED”) to the extent 
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that they focus on conduct occurring after Myles’s reinstatement in 2017. The 

Federal Tort Claims Act does not authorize plaintiffs to bring tort suits against the 

United States unless they have exhausted their administrative remedies. 28 U.S.C. 

§ 2675(a); Jerves v. United States, 966 F.2d 517, 518–19 (9th Cir. 1992). Myles 

has not exhausted her administrative remedies for injuries “that occurred after her 

return to work in 2017.” The district court did not err in dismissing Myles’s tort 

claims to the extent that they focus on such injuries.

4. We reverse the dismissal of the version of Myles’s tort claims for abuse 

of process, negligence, and IIED to the extent that they focus on conduct occurring 

between 2014, when Myles reported that she was again experiencing harassment, 

and November 2017, when she was reinstated following the dismissal of the state 

criminal case. 

The 2014 to 2017 tort claims, which were administratively exhausted, were 

dismissed by the district court on the ground that they were untimely. A plaintiff’s 

claim cannot accrue until she becomes aware of her injury and its immediate cause. 

United States v. Kubrick, 444 U.S. 111, 122 (1979); see also Brown v. United 

States, 353 F.3d 578, 579 (9th Cir. 1965). But that awareness is not the only 

prerequisite to accrual. As explained, a cause of action cannot accrue until each of 

its elements has occurred. See, e.g., Pollock v. Tri-Modal Distrib. Servs., Inc., 11 

Cal. 5th 918, 930–31 (2021); see also Petrella, 572 U.S. at 670. California’s 
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continuing violations doctrine “aggregates a series of wrongs or injuries for 

purposes of the statute of limitations, treating the limitations period as accruing for 

all of them upon commission or sufferance of the last of them.” Aryeh v. Canon 

Bus. Sols., Inc., 55 Cal. 4th 1185, 1192 (2013); see also Murray v. Oceanside 

Unified Sch. Dist., 79 Cal. App. 4th 1338, 1363–64 (2000).

(i) Myles asserts a negligent retention claim. One element of a negligent 

retention claim is that the employer knew or should have known “facts which 

would warn a reasonable person that the employee” presented an undue risk of 

harm to third parties. Federico v. Super. Ct., 59 Cal. App. 4th 1207, 1214 (1997); 

see also Dent v. Nat’l Football League, 902 F.3d 1109, 1122 (9th Cir. 2018). The 

federal government was not on notice that the DHS officials presented an undue 

risk of harm to third parties until the state criminal case concluded in Myles’s favor 

as, until that point, it was not clear the DHS officials had instigated and maintained 

a baseless criminal case against an innocent person. Myles’s negligent retention 

claim thus accrued in November 2017. As she filed her complaint in October 2019

and the claim is subject to a two-year statute of limitations, Cal. Civ. Proc. Code 

§ 335.1, the claim was timely raised.

(ii) Myles asserts an abuse of process claim. The two elements of an abuse 

of process claim in California are: (1) “a willful act in the use of [a] process not 

proper in the regular course of the proceeding” such that the act constitutes a 
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“misuse” of the process; and (2) “an ulterior purpose.” Cantu v. Resolution Trust 

Corp., 4 Cal. App. 4th 857, 884–857 (1992) (quoting Oren Royal Oaks Venture v. 

Greenberg, Bernhard, Weiss & Karma, Inc., 42 Cal. 3d 1157, 1168 (1986)); 

Friedman v. Stadum, 171 Cal. App. 3d 775, 779 (1985). Each qualifying “willful 

act” tolls the statute of limitations period. Kappel v. Bartlett, 200 Cal. App. 3d 

1457, 1467–68 (1988); Cantu, 4 Cal. App. 4th at 890–91; see also Aryeh, 55 Cal. 

4th at 1192.

Myles’s complaint alleges that DHS officials tampered with witnesses, made 

false statements, and submitted fabricated evidence to the OCDA “through 

November 2017.” For example, Gassmann attended a November 2017 hearing in 

which he continued to insist upon Myles’s guilt “despite his knowledge that the 

case against [Myles] was unmeritorious.” As the complaint alleges willful acts

asserted to constitute abuse of process that occurred within the two-year statute of 

limitations period, Cal. Civ. Proc. Code § 335.1, it was not proper to dismiss 

Myles’s abuse of process claim as untimely.

(iii) Myles also asserts an IIED claim. The elements of IIED are: “(1) 

extreme and outrageous conduct by the defendant with the intention of causing, or 

reckless disregard of the probability of causing, emotional distress; (2) the 

plaintiff’s suffering severe or extreme emotional distress; and (3) actual and 

proximate causation of the emotional distress by the defendant’s outrageous 
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conduct.” Christensen v. Super. Ct., 54 Cal. 3d 868, 903 (1991) (quoting Davidson 

v. City of Westminster, 32 Cal. 3d 197, 209 (1982)). As with Myles’s abuse of 

process claim, each act that qualifies as IIED restarts the statute of limitations 

period for the claim. Murray, 79 Cal. App. 4th at 1363–64; see also Aryeh, 55 Cal. 

4th at 1192. Myles alleges “outrageous, intentional, and malicious” behaviors—

such as the knowingly baseless maintenance of her suspension and continued “use 

of the investigatory process to interrogate Ms. Myles, harass her, humiliate her, 

and demoralize her”—that occurred “through November 2017.” Her IIED claim 

was also timely filed.

The district court rejected Myles’s continuing violations doctrine argument 

on the ground that Myles had only alleged continued “ill effects” from actions that 

occurred in 2015 or earlier. But, as explained, Myles’s claims rest on the 

occurrence of a series of related actions occurring “through November 2017,” not 

just continuing effects from earlier acts. So the continuing violations doctrine

applies, and the claims discussed did not accrue until November 2017. Aryeh, 

55 Cal. 4th at 1192.

5. We reverse the dismissal of Myles’s two outstanding Bivens claims as 

untimely on the same ground, without speaking to the merits.

1

 Myles’s Bivens 

1 We note that the Supreme Court recently established that “there is no 

Bivens action for First Amendment retaliation.” Egbert v. Boule, 142 S. Ct. 1793, 

1806–08 (2022); see also Ziglar v. Abbasi, 137 S. Ct. 1843, 1863–1865 (2017).
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claims turn on the assertion that the five individual defendants violated her free 

speech and due process rights each day during the pendency of the state criminal 

proceedings by knowingly facilitating the maintenance of baseless criminal 

charges against her and by taking specific wrongful acts such as providing the 

OCDA with false testimony and fabricated evidence. Her claims thus accrued in 

November 2017. Cf. Heck, 512 U.S. at 489; Rosales-Martinez, 753 F.3d at 895;

Aryeh, 55 Cal. 4th at 1192. As the statute of limitations on Bivens claims is two 

years, Van Strum v. Lawn, 940 F.2d 406, 408–10 (9th Cir. 1991), her claims were

timely filed.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED. 

Costs are awarded to appellant.