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 2016-01

Edward Ray, Jr. v. A. Leal , 633 F. App'x 401 ( 2016 )


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  •                                                                             FILED
NOT FOR PUBLICATION                              JAN 28 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
EDWARD VINCENT RAY, Jr.,                         No. 15-15745
Plaintiff - Appellant,            D.C. No. 4:11-cv-05550-YGR
v.
MEMORANDUM*
A. LEAL, Serial #8587P /Ind. and Off.
Cap; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Northern District of California
Yvonne Gonzalez Rogers, District Judge, Presiding
Submitted January 20, 2016**
Before:        CANBY, TASHIMA, and NGUYEN, Circuit Judges.
Edward Vincent Ray, Jr., a California state prisoner, appeals pro se from the
district court’s summary judgment in his 42 U.S.C. § 1983 action alleging
excessive force. We have jurisdiction under 28 U.S.C. § 1291. We review de
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
novo. Tucker v. Baxter Healthcare Corp.,
    158 F.3d 1046
    , 1049 (9th Cir. 1998).
We may affirm on any ground supported by the record. Enlow v. Salem-Keizer
Yellow Cab Co.,
    389 F.3d 802
    , 811 (9th Cir. 2004). We affirm.
Dismissal of Ray’s action was proper because, even with the benefit of
statutory and equitable tolling, Ray failed to file his action within the applicable
statute of limitations. See Cal. Code Civ. Proc. §§ 335.1 (two-year statute of
limitations for personal injury actions); 352.1(a) (statutory tolling due to
incarceration not to exceed two years); Canatella v. Van De Kamp,
    486 F.3d 1128
    ,
1132-33 (9th Cir. 2007) (forum state’s personal injury statute of limitations and
tolling laws apply to § 1983 actions); McDonald v. Antelope Valley Cmty. Coll.
Dist.,
    194 P.3d 1026
    , 1033, 1039-40 (Cal. 2008) (setting forth California’s
equitable tolling doctrine and noting that “voluntary abandonment . . . may be
relevant to whether a plaintiff can satisfy the three criteria for equitable tolling”).
We do not consider matters not specifically and distinctly raised and argued
in the opening brief, or arguments and allegations raised for the first time on
appeal. See Padgett v. Wright,
    587 F.3d 983
    , 985 n.2 (9th Cir. 2009) (per curiam).
All pending motions and requests are denied.
AFFIRMED.
2                                      15-15745