NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS APR 25 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

RICHARD WILLIAM DOUGLAS, Jr.; No. 23-15104

CHRISTINE ANNE HURTT,

D.C. No. Plaintiffs-Appellants, 1:21-cv-01535-JLT-EPG

and

MEMORANDUM*

DAVID R.L. HENDERSON,

Plaintiff,

v.

WILLIAM JOSEPH KALANTA;

MICHAEL JAMES KALANTA;

KIMBERLY JO HURTT; MODESTO

POLICE DEPARTMENT,

Defendants-Appellees.

Appeal from the United States District Court for the Eastern District of California Jennifer L. Thurston, District Judge, Presiding

Submitted April 25, 2024**

Before: BENNETT, BADE, and COLLINS, Circuit Judges.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Plaintiffs Richard William Douglas, Jr., and Christine Anne Hurtt filed a

complaint on October 18, 2021, alleging that defendants William Joseph Kalanta,

Michael James Kalanta, Kimberly Jo Hurtt, and the Modesto Police Department

conspired to murder Angela Dawn Kalanta in 2009. Angela was Douglas’s ex-

wife and Christine’s sister. William was Angela’s husband, Michael was the son

of Douglas and Angela, and Kimberly was Angela’s sister. Defendants moved to

dismiss, and plaintiffs sought a default judgment against the Modesto Police

Department, which had not appeared in the action. The magistrate judge

recommended dismissal of the case against all defendants. First, she recommended

dismissing the civil RICO claims against all defendants because plaintiffs lacked

statutory standing. Second, she recommended finding that the RICO claims

against all defendants were barred by the statute of limitations. Third, she

recommended dismissing the claim relating to the Modesto Police Department’s

alleged failure to conduct an adequate criminal investigation into Angela’s death

and alleged failure to answer plaintiffs’ questions about her case. The district court

adopted in full the magistrate judge’s recommendations. We have jurisdiction

under 28 U.S.C. § 1291, and we affirm.

1. We review de novo a district court’s dismissal for failure to state a

claim. See Benavidez v. County of San Diego, 993 F.3d 1134, 1141 (9th Cir.

2021). RICO’s private right of action—18 U.S.C. § 1964(c)—requires that to

2 “have [statutory] standing under § 1964(c), a civil RICO plaintiff must show:

(1) that his alleged harm qualifies as injury to his business or property; and (2) that

his harm was ‘by reason of’ the RICO violation, which requires the plaintiff to

establish proximate causation.” Canyon County v. Syngenta Seeds, Inc., 519 F.3d

969, 972 (9th Cir. 2008) (emphasis added).

Plaintiffs alleged that they “suffered substantial loss of income and severe

depression and disability from the death of . . . Angela” and “special damages

including monetary damages.” They also alleged that they “have not been able to

work in any employment of [thei]r professions,” “Christine lost her career as a

direct result of the murder of her sister Angela,” and “[Douglas] and Christine both

have lost the love and affection of Angela as a result of her being murdered.”

But as explained by the district court, plaintiffs’ personal suffering (serious

as it likely was), such as depression and their loss of love and affection, does not

constitute losses to business or property under the civil RICO statute. See Living

Designs, Inc. v. E.I. Dupont de Nemours & Co., 431 F.3d 353, 364 (9th Cir. 2005)

(noting that plaintiffs “suffered ‘the type of personal injury or injury to an

intangible interest not remediable by RICO’s civil provisions’” (citations

omitted)). While the Ninth Circuit has recognized an injury when a plaintiff was

unable to “fulfill his employment contract or pursue valuable employment

opportunities,” Diaz v. Gates, 420 F.3d 897, 900 (9th Cir. 2005) (en banc),

3 plaintiffs’ alleged inability to work due to the emotional trauma of Angela’s death

is an indirect, derivative injury that is too remote from the alleged RICO violations

to satisfy RICO’s proximate causation requirement, id. at 901 (stating that RICO

standing requires proximate cause and that “one be a ‘person injured in his

business or property by reason of a violation of [§] 1962’” (quoting 18 U.S.C.

§ 1964(c))); see also Hemi Grp., LLC v. City of New York, 559 U.S. 1, 10–12

(2010); Holmes v. Sec. Inv. Prot. Corp., 503 U.S. 258, 271–74 (1992).

Thus, we affirm the dismissal of the civil RICO claims against all

defendants.1

1 The district court noted that plaintiffs’ opposition to the motion to dismiss contained new allegations not in the complaint. Plaintiffs also made new allegations in their objection to the magistrate judge’s recommendations and on appeal. However, even if we were to consider these allegations, none (singly or collectively) suffice to establish statutory standing. For example, in their affidavits in support of their motions for default judgment against the Modesto Police Department, plaintiffs stated that “[t]he constant mental, physical and financial distress has caused great harm.” They further alleged in their opposition to the motion to dismiss that “[Douglas] is homeless as a direct result of [d]efendants[’] attack and murder of [Angela].” In their objections to the magistrate judge’s recommendations, plaintiffs alleged that “[p]laintiff is homeless as a direct result of [d]efendants[’] prior attempts to take his life to shut his mouth the same way they shut Angela’s mouth.” On appeal, plaintiffs allege that “[d]efendants caused Christine to lose her business as a financial services broker rendering her unemployed and disabled.” They further state: “No justice served to victim, and victim’s family and friends, loss of home and careers. This is a public safety issue. Plaintiffs are harmed and continue to be harmed with no justice for the murder of Angela, from police cover up, malfeasance and violation of due process.” These allegations either do not allege RICO-cognizable losses to business or property, see Diaz, 420 F.3d at 900, or are purely indirect injuries that were not proximately caused by the alleged RICO violations, see id. at 901; Hemi Grp., 559 U.S. at 11.

4 2. We review de novo the dismissal of a complaint on statute of

limitations grounds.2 See Washington v. Garrett, 10 F.3d 1421, 1428 (9th Cir.

1993). The limitations period for civil RICO claims is four years. Agency Holding

Corp. v. Malley-Duff & Assocs., Inc., 483 U.S. 143, 156 (1987). The Ninth Circuit

has “faithfully followed” the “injury discovery” rule, which has two components:

First, the civil RICO limitations period begins to run when a plaintiff knows or should know of the injury that underlies his cause of action. The plaintiff need not discover that the injury is part of a pattern of racketeering for the period to begin to run. The second part of the injury discovery rule is the separate accrual rule, which provides that a new cause of action accrues for each new and independent injury, even if the RICO violation causing the injury happened more than four years before.

Grimmett v. Brown, 75 F.3d 506, 510–11 (9th Cir. 1996) (internal quotation marks

and citations omitted).

The complaint shows that plaintiffs knew the facts underlying their civil

RICO claims in 2009. Douglas told the coroner on June 2, 2009, that he believed

that Angela was murdered by William. The complaint also recited facts relating to

events preceding Angela’s death that led plaintiffs to later believe that she had

been murdered. Plaintiffs also acknowledged that they were sued by defendants

2 Though our affirming the district court as to lack of statutory standing would be sufficient to affirm the dismissal, we exercise our discretion to also reach the equally dispositive statute of limitations issue. See, e.g., City of Miami Gardens v. Wells Fargo & Co., 956 F.3d 1319, 1320 (11th Cir. 2020) (considering both the issue of standing and the issue of statute of limitations).

5 for defamation in 2011 based on their allegations that defendants had murdered

Angela. Based on these facts, the district court concluded that “[r]egardless of

whether Angela’s 2009 death or the 2011 defamation suit is used as the date for

when [p]laintiffs knew the injury underlying their civil RICO claim, the four-year

statute of limitations would have expired well before this case was filed in October

2021.” We agree.

On appeal, plaintiffs do not explain why they waited more than ten years

after Angela’s death to file suit. They merely state that they “have done [thei]r due

diligence but [they] are not attorneys and are not knowledgeable of the legal

process.” This is plainly insufficient to overcome the district court’s reasoned

statute of limitations dismissal.

Plaintiffs further alleged in the opposition to the motion to dismiss that “in

2015 [p]laintiff Christin [sic] [Hurtt] was assaulted with a firearm in her own home

by” someone named Thomas Banfield. They further claimed suspicion of the

alleged conspiracy back in 2015 “[u]pon Thomas Banfield’s arrest,” because

Banfield “told [d]etectives that he was an attorney and that he knew what he was

doing” and “[t]hat is when [Christine] realized the possibility of [defendants]

setting [her] up to be killed by Banfield to collect the life insurance that was taken

out on [her] during [her] marriage.” Setting aside the fact that these allegations are

not contained in the complaint, even if plaintiffs were able to base their civil RICO

6 claims on these two alleged facts, the four-year limitations period would have run

in 2019.

Plaintiffs also claimed, for the first time in their opposition to the magistrate

judge’s recommendations, that Kimberly Hurtt supposedly “stalked . . . Christine

[Hurtt] through” Christine Hurtt’s former “spouse, Carl Botzenhardt and his sister

Shawna Devlin” in 2018, and that this behavior by Botzenhardt was purportedly

“instrumental in causing [Hurtt] to divorce . . . Botzenhardt in 2022.” We agree

with the district court that this allegation is irrelevant to when the statute of

limitations for the RICO murder claim began to run, because this allegation, even

if taken as true, did not establish any injury to business or property, much less one

proximately caused by the alleged RICO violations.

3. It is unclear from the complaint whether plaintiffs have alleged

anything other than their civil RICO claims. However, in their opposition to the

motion to dismiss, plaintiffs stated for the first time: “This is a RICO and violation

of civil rights claim.” (emphasis added). Specifically, they stated that “[t]he

precise nature of [p]laintiffs[’] claims are [the] Stanislaus Court and Modesto

Police have and are still violating [their] [c]ivil rights to due process and plaintiffs

are alleging [m]alfeasance of the police an[d] county in the mishandling of the

Capitol [sic] murder of [Angela] including a botched investigation.” Plaintiffs

have made a similar conclusory claim on appeal.

7 The district court considered similar factual allegations in the complaint and

concluded sua sponte that they did not establish any cognizable civil rights claim

against the Modesto Police Department, which had not appeared in the action.

First, the district court determined that the right to petition in the First

Amendment—the constitutional provision potentially implicated by plaintiffs’

allegations—does not impose an affirmative obligation on the government to

consider, respond to, or grant any relief on a citizen’s petition for redress of

grievances. Second, it concluded that plaintiffs cannot compel the criminal

prosecution of defendants, because “a private citizen lacks a judicially cognizable

interest in the prosecution or nonprosecution of another.” See Linda R.S. v.

Richard D., 410 U.S. 614, 619 (1973).

To the extent that plaintiffs are alleging a federal civil rights claim against

the Modesto Police Department, we agree with and affirm the district court’s sua

sponte dismissal.

AFFIRMED.

8