Peter Eriksen v. Ronal Serpas , 478 F. App'x 368 ( 2012 )

FILED
NOT FOR PUBLICATION APR 27 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
PETER ERIKSEN, a single man; MARY No. 09-35841
ERIKSEN, a single woman,
D.C. No. 2:09-cv-00082-EFS
Plaintiffs - Appellants,
v. MEMORANDUM *
RONAL SERPAS, Chief, Washington
State Patrol; KITTITAS COUNTY, a
municipal corporation; CITY OF CLE
ELUM, a municipal corporation; GENE
DANA, Kittitas County Sheriff; JOHN
DOE, Squad Supervisor; BRENNEN
MILLOY, Chief of Police, City of Cle
Elum; JOHN DOE, Administrator, City of
Cle Elum; WILLIAM LARSON, District
Commander for Sixth District Washington
State Patrol; PAUL WOODSIDE, #398,
Washington State Patrolman or
Dispatcher; DAVID SNYDER, #1087,
Washington State Patrolman or
Dispatcher; DAVID STANDISH, #930,
Washington State Patroman or Dispatcher;
JOHN KOCH, Washington State
Patrolman or Dispatcher; JOHN DOES,
Washington State Patrolman or
Dispatcher; JAMES WOODY, #S19,
Kittitas County Deputy Sheriff; MARK
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
RICKY, #S20, Kittitas County Deputy
Sheriff; JOHN DOES, Kittitas County
Deputy Sheriffs,
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of Washington
Edward F. Shea, District Judge, Presiding
Argued and Submitted April 16, 2012
San Francisco, California
Before: McKEOWN and N.R. SMITH, Circuit Judges, and NGUYEN, District
Judge.**
Peter and Mary Eriksen (“Appellants” or “the Eriksens”) appeal from the
district court’s judgment dismissing their 42 U.S.C. § 1983 action alleging
excessive force.
We have jurisdiction under 28 U.S.C. § 1291. We review de novo the
district court’s dismissal based on the applicable statute of limitations. Lukovsky v.
City & Cnty. of San Francisco, 535 F.3d 1044, 1047 (9th Cir. 2008). See Huynh v.
Chase Manhattan Bank, 465 F.3d 992, 1003 (9th Cir. 2006) (“Though we review
de novo the district court's determinations with respect to the statute of limitations,
**
The Honorable Jacqueline H. Nguyen, District Judge for the U.S.
District Court for Central California, sitting by designation.
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we review for abuse of discretion its conclusions regarding the applicability of
equitable tolling.”). We review for an abuse of discretion the district court’s denial
of leave to amend. Lipton v. PathoGenesis Corp., 284 F.3d 1027, 1038 (9th Cir.
2002). We affirm.
The district court properly dismissed the action because the Eriksens filed it
well after the applicable three-year statute of limitations period had run. See
Bagley v. CMC Real Estate Corp., 923 F.2d 758, 760 (9th Cir. 1991) (“[T]he
appropriate statute of limitations in a § 1983 action is the three-year limitation of
Wash. Rev. Code § 4.16.080(2).”).
In addition, the Eriksens have failed to establish a basis for equitable tolling.
“For actions under 42 U.S.C. § 1983, courts apply . . . the forum state’s law
regarding tolling, including equitable tolling, except to the extent [the law] is
inconsistent with federal law.” Jones v. Blanas, 393 F.3d 918, 927 (9th Cir. 2004)
(citation omitted). Thus, Washington law applies.
The current predicates for equitable tolling in civil cases under Washington
law are not clear. See In re Carter, 172 Wash. 2d 917, 928–29 (2011) (en banc); In
re Bonds, 165 Wash. 2d 135, 141 (2008) (en banc). However, it is clear, under any
Washington articulation of predicates, that a plaintiff must exercise diligence in the
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pursuit of his case before he is entitled to equitable tolling. See Carter, 172 Wash.
2d at 928–29; Bonds, 165 Wash. 2d at 141. Here, the Eriksens have not exercised
such diligence. They failed to properly effect service or otherwise comply with
Federal Rule of Civil Procedure 4(m); they failed to request more time for service;
they failed to ask for reconsideration of the first district court judgment; and they
failed to appeal the first judgment by the district court, instead filing a new action.
Thus, the Eriksens are not entitled to equitable tolling.
Finally, the district court did not abuse its discretion by dismissing the action
without leave to amend because it was “absolutely clear that the deficiencies of the
complaint could not be cured by amendment.” Weilburg v. Shapiro, 488 F.3d
1202, 1205 (9th Cir. 2007); see also Saul v. United States, 928 F.2d 829, 843 (9th
Cir. 1991).
The Eriksens’ remaining contentions are unpersuasive.
AFFIRMED.
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