Steven Miller v. Albert Najera ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 20 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
STEVEN RAY MILLER, No. 21-15202
Plaintiff-Appellant, D.C. No. 1:19-cv-01077-AWI-
BAM
v.
ALBERT NAJERA; et al., MEMORANDUM*
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of California
Anthony W. Ishii, District Judge, Presiding
Submitted December 14, 2021**
Before: WALLACE, CLIFTON, and HURWITZ, Circuit Judges.
Steven Ray Miller appeals pro se from the district court’s judgment
dismissing his action alleging claims under 42 U.S.C. § 1983, Bivens v. Six
Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), and
state law that occurred while he was a pretrial detainee. We have jurisdiction
*
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).
under 28 U.S.C. § 1291. We review de novo a dismissal under 28 U.S.C. § 1915A.
Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000). We affirm.
The district court properly dismissed Miller’s action as barred by the
applicable statute of limitations. See Cal. Civ. Proc. Code §§ 335.1, 352.1(a)
(setting forth two-year statute of limitations for personal injury and negligence
claims; statutory tolling of up to two years due to imprisonment); Jones v. Blanas,
393 F.3d 918, 927 (9th Cir. 2004) (§ 1983 claims are governed by the forum state’s
statute of limitations for personal injury claims, including state law regarding
tolling); Van Strum v. Lawn, 940 F.2d 406, 410 (9th Cir. 1991) (for action under
Bivens, claims are governed by the forum state’s statute of limitations for personal
injury claims); Wood v. Elling Corp., 572 P.2d 755, 759 (Cal. 1977) (equitable
tolling based on successive claims in same forum permitted only where, inter alia,
the trial court erroneously dismissed first action and dilatory tactics by defendant
prevented disposition of the first action in time to permit filing of second action
within the limitations period).
The district court did not abuse its discretion by denying Miller leave to
amend because amendment would have been futile. See Cervantes v. Countrywide
Home Loans, Inc., 656 F.3d 1034, 1041 (9th Cir. 2011) (setting forth standard of
review and explaining that a district court may dismiss without leave to amend
when amendment would be futile).
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We do not consider matters not specifically and distinctly raised and argued
in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
AFFIRMED.
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