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 2020-07

Jerome Alverto v. Bryan Cline ( 2020 )


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  •                            NOT FOR PUBLICATION                           FILED
UNITED STATES COURT OF APPEALS                        JUL 23 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JEROME CEASAR ALVERTO,                          No.    19-35796
Plaintiff-Appellant,            D.C. No. 3:19-cv-05053-RBL
v.
MEMORANDUM*
BRYAN DWAIN CLINE,
Defendant-Appellee,
Appeal from the United States District Court
for the Western District of Washington
Ronald B. Leighton, District Judge, Presiding
Submitted July 14, 2020**
Before:      CANBY, FRIEDLAND, and R. NELSON, Circuit Judges.
Jerome Ceasar Alverto appeals pro se from the district court’s judgment
dismissing his
    42 U.S.C. § 1983
     action alleging excessive force. We have
jurisdiction under
    28 U.S.C. § 1291
    . We review de novo a dismissal under Fed. R.
Civ. P. 12(b)(6) on the basis of the applicable statute of limitations. Cholla Ready
*
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).
Mix, Inc. v. Civish,
    382 F.3d 969
    , 973 (9th Cir. 2004). We affirm.
The district court properly dismissed Alverto’s action as time-barred because
Alverto filed his action after the applicable statute of limitations had run and failed
to allege circumstances that justified equitable tolling. See
    Wash. Rev. Code § 4.16.080
    (2) (three-year statute of limitations for personal injury claims); see also
Wallace v. Kato,
    549 U.S. 384
    , 387, 394 (2007) (federal courts apply the forum
state’s personal injury statute of limitations in § 1983 claims; “[w]e have generally
referred to state law for tolling rules, just as we have for the length of statutes of
limitations”); In re Hoisington,
    993 P.2d 296
    , 300 (Wash. Ct. App. 2000)
(“Appropriate circumstances for equitable tolling include bad faith, deception, or
false assurances by the defendant, and the exercise of diligence by the plaintiff.”
(citations and internal quotation marks omitted)).
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).
Alverto’s motion to correct the record (Docket Entry No. 17) is granted.
The Clerk is directed to strike Mark Fry, Timothy Donlin, Paul Pastor, Kathleen
Proctor, and Brian Neal Wasankari as defendants.
AFFIRMED.
2                                     19-35796