FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


SHELDON LOCKETT,                           No. 19-55898
           Plaintiff-Appellee,
                                          D.C. No.
              v.                     2:18-cv-05838-PJW

COUNTY OF LOS ANGELES,
        Defendant-Appellant.                OPINION

     Appeal from the United States District Court
          for the Central District of California
     Patrick J. Walsh, Magistrate Judge, Presiding

        Argued and Submitted August 12, 2020
                Pasadena, California

                   Filed October 2, 2020

Before: Consuelo M. Callahan, Patrick J. Bumatay, and
         Lawrence VanDyke, Circuit Judges.

              Opinion by Judge Bumatay
2           LOCKETT V. COUNTY OF LOS ANGELES

                          SUMMARY *


                           Civil Rights

    In an interlocutory appeal, the panel affirmed the district
court’s denial of the County of Los Angeles’s motion to
dismiss a claim brought pursuant to Monell v. Dep’t of Soc.
Servs. of City of New York, 

, 690 (1978),
alleging that the County’s failure to hire, train, and supervise
its Sheriff’s deputies resulted in two deputies severely
beating plaintiff during his arrest.

    The panel first acknowledged that federal courts borrow
from state law to determine any applicable statute of
limitations for § 1983 claims, including tolling provisions.
The panel held that although plaintiff’s complaint was filed
outside the relevant two-year statute of limitations,
California Government Code § 945.3 tolled plaintiff’s claim
while his criminal charges were pending. Section 945.3
provides, in relevant part, that a person charged with a
criminal offense may not bring a civil action against a peace
officer or the public entity employing a peace officer “based
upon” conduct of the peace officer relating to the offense for
which the accused is charged while the charges against the
accused are pending before a superior court.

   The panel held that because there can be no Monell claim
based on excessive force without an underlying
constitutional violation by the officers, the peace officer’s
conduct in violation of the Constitution here became the

    *
      This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
           LOCKETT V. COUNTY OF LOS ANGELES                  3

necessary logical condition to formulate a Monell claim.
Thus, California Government Code § 945.3’s “based upon”
language applied to plaintiff’s Monell claim, and his claim
was properly tolled until the dismissal of his criminal
charges.


                         COUNSEL

Jack F. Altura (argued) and Rickey Ivie, Ivie McNeill &
Wyatt, Los Angeles, California, for Defendant-Appellant.

Steven C. Glickman (argued) and Laura Tagmazian,
Glickman & Glickman, Beverly Hills, California; John E.
Sweeney, The Sweeney Firm, Beverly Hills, California; for
Plaintiff-Appellee.


                         OPINION

BUMATAY, Circuit Judge:

    In an interlocutory appeal, the County of Los Angeles
challenges the district court’s denial of its motion to dismiss
Sheldon Lockett’s Monell claim. See Monell v. Dep’t of Soc.
Servs. of City of New York, 

, 690 (1978).
Lockett alleges that the County’s failure to hire, train, and
supervise its Sheriff’s deputies resulted in two deputies
severely beating him during an arrest. Specifically, Lockett
contends that the County tolerated and ignored the
proliferation of racially motivated “cliques” or “gangs”
within the Sherriff’s Department which led to the excessive
force used.
4          LOCKETT V. COUNTY OF LOS ANGELES

    We must consider whether California Government Code
§ 945.3 tolled Lockett’s claim. If so, then the claim survives
California’s two-year statute of limitations for filing a civil
action. Cal. Code Civ. Proc. § 335.1. Because the plain text
of Government Code § 945.3 compels tolling of any action
involving the “conduct of [a] peace officer,” we affirm.

                              I.

    On January 15, 2016, two Los Angeles County Sheriff’s
Department deputies confronted Lockett at his godmother’s
house in Compton after a shooting nearby. According to
Lockett’s complaint, he ran in fear from the deputies—who
had guns drawn and shouted commands at him—and hid in
a nearby home. In response, the deputies radioed in a false
report that Lockett had a gun and was fleeing. After being
found, Lockett attempted to surrender to the deputies, but
they severely beat him and used racial slurs against him. The
deputies allegedly punched, kicked, and beat Lockett with
their police batons. After the deputies finally subdued
Lockett, one of the deputies allegedly rammed a baton into
Lockett’s eye socket, causing permanent damage.

    On January 20, 2016, Lockett was charged with
attempted murder and was held in custody for eight months.
On August 2, 2016, the charge was dropped and Lockett was
released from jail. On July 3, 2018, more than two years and
five months after his arrest, Lockett filed a federal civil
rights suit against the County of Los Angeles, the two
deputies, and others under 42 U.S.C. § 1983. In his
complaint, Lockett alleges that his claims were tolled while
he was in custody for the attempted murder charge by
operation of Government Code § 945.3.

   In the district court, the County of Los Angeles moved
to dismiss the Monell claim. The County argued that
           LOCKETT V. COUNTY OF LOS ANGELES                  5

Government Code § 945.3 was inapplicable to Lockett’s
action since the tolling provision is directed solely at claims
“based upon conduct of the peace officer” and his Monell
claim is based on “the conduct of the department,” not “the
officer.” The district court disagreed. It concluded that
Lockett was entitled to tolling for the eight-month period
that the attempted murder charge was pending against him
and, therefore, his civil action was not barred by California’s
two-year statute of limitations. See Cal. Civ. Proc. Code
§ 335.1. The district court explained that while Government
Code § 945.3 tolls only claims based upon the conduct of the
officer, a Monell claim is “derivative” of a claim against the
officer and requires an “underlying civil rights claim against
an officer.” Lockett v. Cty. of Los Angeles, No. CV-18-5838-
PJW, 

, at *3 (C.D. Cal. May 29, 2019)
(citing City of Los Angeles v. Heller, 

, 799
(1986)).

    The district court certified the issue for interlocutory
appeal. See 28 U.S.C. § 1292. We then granted permission
for the County to appeal. See 28 U.S.C. § 1292(b). Our
review of the district court’s decision is de novo. Flores v.
City of Westminster, 

, 748 (9th Cir. 2017);
Dunn v. Castro, 

, 1198 (9th Cir. 2010).

                              II.

    Section 1983 authorizes civil actions for the “deprivation
of any rights . . . secured by the Constitution and laws”
against a party acting under color of state law. 42 U.S.C.
§ 1983. Known as a “Monell claim,” an individual may
prevail in a § 1983 action against “municipalities, including
counties and their sheriff’s departments,” if the
“unconstitutional action ‘implements or executes a policy
statement, ordinance, regulation, or decision officially
adopted and promulgated by that body’s officers.’” Rivera
6            LOCKETT V. COUNTY OF LOS ANGELES

v. Cnty. of Los Angeles, 

, 389 (9th Cir. 2014)
(quoting 

).

     Federal courts borrow from state law to determine any
applicable statute of limitations for § 1983 claims, including
tolling provisions. Torres v. City of Santa Ana, 

, 226 (9th Cir. 1997). California has a two-year statute
of limitations for actions involving “assault, battery, or
injury” caused by the wrongful act or neglect of another. See
Cal. Code Civ. Proc. § 335.1. California also has a tolling
provision, Government Code § 945.3, which provides that:

         No person charged … [with] a criminal
         offense may bring a civil action for money or
         damages against a peace officer or the public
         entity employing a peace officer based upon
         conduct of the peace officer relating to the
         offense for which the accused is charged,
         including an act or omission in investigating
         or reporting the offense or arresting or
         detaining the accused, while the charges
         against the accused are pending before a
         superior court.

Cal. Gov’t Code § 945.3. 1 Thus, “[§] 1983 actions [are]
tolled by California Government Code § 945.3 while



    1
       We have held, under the Supremacy Clause, U.S. Const. art. VI,
cl. 2, that “although section 945.3 may not prohibit a potential plaintiff
from bringing a section 1983 claim against a peace officer while criminal
actions are pending, section 945.3’s tolling provision may still apply to
toll the limitations period while criminal actions are pending against the
potential plaintiff.” Harding v. Galceran, 

, 908 (9th Cir.
1989).
           LOCKETT V. COUNTY OF LOS ANGELES                 7

criminal charges are pending.” 

(simplified).

    In this case, while Lockett filed his Monell claim against
the County two years and five months after his arrest by the
deputies—outside of the two-year statute of limitations—his
attempted murder charge was pending for eight months.
Consequently, his claim against the County may proceed if
§ 945.3 tolled his civil action while he was in custody. To
answer whether § 945.3 governs, we look to whether
Lockett’s Monell claim is “based upon conduct of the peace
officer relating to the offense for which the accused is
charged.” Cal Gov’t Code § 945.3.

    In another context, the Court has interpreted § 945.3
“based upon” language to mean “because of.” Safeco Ins.
Co. of Am. v. Burr, 

, 64 n.14 (2007). In turn, the
ordinary meaning of “because of” is “by reason of” or “on
account of.” Univ. of Tex. Sw. Med. Ctr. v. Nassar, 

, 350 (2013). Thus, in “common talk,” we understand
the phrase “based on” to indicate a “but-for causal
relationship and thus a necessary logical condition.” Safeco
Ins. Co. of 

. We see no reason—nor do
we find any reason in California caselaw—to define the
phrase differently. Accordingly, § 945.3 tolls a civil action
when the “but for” cause of the claim is the “conduct of the
peace officer.” See Cal. Gov’t Code § 945.3.

    To establish municipal liability under Monell, Lockett
must prove that (1) he was deprived of a constitutional right;
(2) the municipality had a policy; (3) the policy amounted to
deliberate indifference to Lockett’s constitutional right; and
(4) the policy was the moving force behind the constitutional
violation. Dougherty v. City of Covina, 

, 900
(9th Cir. 2011). Accordingly, while Monell claims cannot
predicate municipal liability for constitutional violations of
8          LOCKETT V. COUNTY OF LOS ANGELES

its officers under the theory of respondeat superior, 

, such claims are still “contingent on a
violation of constitutional rights.” Scott v. Henrich, 

, 916 (9th Cir. 1994) (holding that “municipal defendants
cannot be held liable because no constitutional violation
occurred”).

    Monell claims thus require a plaintiff to show an
underlying constitutional violation. For example, the Court
has held that a jury’s determination that an individual officer
did not use excessive force precluded § 1983 municipal
liability on that ground. 

(“[N]either
Monell . . . nor any other of our cases authorizes the award
of damages against a municipal corporation based on the
actions of one of its officers when in fact the jury has
concluded that the officer inflicted no constitutional harm.”).
As the Ninth Circuit Model Civil Jury Instructions
demonstrate, in the excessive force context, a plaintiff
cannot succeed on a Monell claim without establishing an
officer’s deprivation of a federal right. See Model Civ. Jury
Instr. 9th Cir. 9.5 (providing that an element of a Monell
claim is that the plaintiff must prove “the acts of [name of
defendant’s official or employee] deprived the plaintiff of
his … particular rights under … the United States
Constitution”) (simplified); see also Model Civ. Jury Instr.
9th Cir. 9.8. While the County correctly argues that Monell
liability is limited to the “acts of the municipality,” Pembaur
v. City of Cincinnati, 

, 479–480 (1986)
(simplified), the peace officer’s conduct still constitutes an
element of a Monell claim.

    Under this understanding of the law, it is clear that the
officers’ conduct is the “but for” cause of Lockett’s Monell
claim. Here, Lockett alleges that two deputies severely
kicked, punched, and beat him with a baton during his arrest
            LOCKETT V. COUNTY OF LOS ANGELES                     9

in violation of his right to be free from excessive force—a
constitutional violation. In turn, Lockett’s Monell claim
alleges that the County of Los Angeles allowed the
proliferation of racially motivated gangs or cliques among
Sheriff’s deputies, including the two deputies involved in his
case, which resulted in the constitutional violation he
suffered. To succeed on the latter, Lockett must prove the
former. Accordingly, the deputies’ conduct necessarily lies
at the heart of Lockett’s Monell claim, 

, and his Monell claim is “based upon conduct of the
peace officer[s]” within the meaning of § 945.3. His claim
was, thus, tolled while his attempted murder charge was
pending.

                               III.

    Because there can be no Monell claim based on
excessive force without an underlying constitutional
violation by the officers, the peace officer’s conduct in
violation of the Constitution here becomes the “necessary
logical condition” to formulate a Monell claim. Safeco Ins.
Co. of 

; see also Fairley v. Luman,

, 916 (9th Cir. 2002) (“Exoneration of [the
officer] of the charge of excessive force precludes municipal
liability for the alleged unconstitutional use of such force.”).
Thus, California Government Code § 945.3’s “based upon”
language applies to Lockett’s Monell claim, and his claim
was properly tolled until the dismissal of his criminal
charges. 2

    AFFIRMED.


     2
       We also GRANT the County’s unopposed motion to take judicial
notice of facts contained in the public record, ECF No. 18.