Donald Calvin v. Bill Elfo ( 2015 )

FILED
NOT FOR PUBLICATION FEB 26 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DONALD CALVIN, No. 14-35237
Plaintiff - Appellant, D.C. No. 2:13-cv-00859-MJP
v.
MEMORANDUM*
BILL ELFO, Sheriff of Whatcom County;
et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Western District of Washington
Marsha J. Pechman, Chief Judge, Presiding
Submitted February 17, 2015**
Before: O’SCANNLAIN, LEAVY, and FERNANDEZ, Circuit Judges.
Former pretrial detainee Donald Calvin appeals pro se from the district
court’s judgment dismissing his 42 U.S.C. § 1983 action alleging, among other
claims, deliberate indifference to his serious medical needs. We have jurisdiction
*
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).
under 28 U.S.C. § 1291. We review de novo. Lukovsky v. City & Cnty. of San
Francisco, 535 F.3d 1044, 1047 (9th Cir. 2008). We affirm.
The district court properly dismissed Calvin’s action as time-barred because
Calvin filed his complaint more than three-year after his release from jail. See
Wash. Rev. Code § 4.16.080(2) (three-year statute of limitations for personal
injury actions); Douglas v. Noelle, 567 F.3d 1103, 1109 (9th Cir. 2009) (“State law
governs the statute of limitations period for § 1983 suits and closely related
questions of tolling.”); see also Wash. Rev. Code § 4.16.190(1) (statute of
limitations is tolled while a person is “imprisoned on a criminal charge prior to
sentencing”); S.J. v. Issaquah Sch. Dist. No. 411, 470 F.3d 1288, 1293 (9th Cir.
2006) (Fed. R. Civ. P. 3 “governs the commencement of federal causes of action
using borrowed state statutes of limitations. . . . [T]here is no gap to fill and no
basis for resorting to state law to determine when the action is commenced.”).
We reject Calvin’s arguments concerning equitable tolling.
We do not consider 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).
Calvin’s request for appointment of counsel, set forth in his opening brief, is
denied.
AFFIRMED.
2 14-35237