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 2021-08

Eldon Bennett v. Two Rivers Correctional Inst. ( 2021 )


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  •                            NOT FOR PUBLICATION                           FILED
UNITED STATES COURT OF APPEALS                        AUG 6 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ELDON JAY BENNETT,                              No.    19-35728
Plaintiff-Appellant,            D.C. No. 2:18-cv-00347-MO
v.
MEMORANDUM*
TWO RIVERS CORRECTIONAL
INSTITUTION; L. IVERSON; P. DAY; L.
BRAUN; T. RIDLEY; C. HARRIS; D.
SANDERS; POLLARD, Cpl.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Oregon
Michael W. Mosman, District Judge, Presiding
Submitted August 4, 2021**
San Francisco, California
Before: THOMAS, Chief Judge, and HAWKINS and McKEOWN, Circuit
Judges.
Eldon Jay Bennett, Jr. appeals the district court’s grant of summary
judgment for various staff members of Two Rivers Correctional Institution.
*
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).
Reviewing de novo, we affirm. See Hamilton v. State Farm Fire & Gas Co.,
    270 F.3d 778
    , 782 (9th Cir. 2001).
Claims one and two are time-barred because a two-year statute of limitations
applies, the alleged incidents took place in 2015, and Bennett did not file his
complaint until February of 2018. See Sain v. City of Bend,
    309 F.3d 1134
    , 1139
(9th Cir. 2002) (holding that Oregon claims brought under
    42 U.S.C. § 1983
     are
subject to a two-year statute of limitations). Bennett argues that these claims
should be treated as ongoing violations together with the acts alleged in claim
three, which is not time-barred. That argument is foreclosed by Nat’l R.R.
Passenger Corp. v. Morgan,
    536 U.S. 101
     (2002). See Carpinteria Valley Farms,
Ltd. v. County of Santa Barbara,
    344 F.3d 822
    , 829 (9th Cir. 2003) (“We have
applied Morgan to bar § 1983 claims predicated on discrete time-barred acts,
notwithstanding that those acts are related to timely-filed claims.”).
As to claim three, Bennett argues that the district court erred in holding that
he failed to allege the personal involvement of any named defendant. Bennett
argues specifically that the district court should have treated his grievances as part
of his pleadings under Federal Rule of Civil Procedure 10(c). But Bennett did not
attach the grievances as an exhibit, and Rule 10(c) only provides that a “copy of a
written instrument that is an exhibit to a pleading is a part of the pleading for all
purposes.” Fed. R. Civ. Proc. Rule 10(c)(emphasis added). Bennett also argues
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that he should have been allowed to add defendants to cure this pleading error, but
when he attempted to do so in the district court, he did not comply with the local
rules and did not correct his error when given the opportunity to do so.
Bennett also argues that the district court abused its discretion in staying
discovery pending resolution of the motion for summary judgment. But Bennett
did not object to the stay in the district court, nor did he make the necessary
showing for further discovery. See State of Cal., on Behalf of California Dep’t of
Toxic Substances Control v. Campbell,
    138 F.3d 772
    , 779 (9th Cir. 1998) (holding
that a court may continue a summary judgment motion upon a showing by the
opposing party that certain discoverable facts exist and are essential to defending
against summary judgment).
AFFIRMED.
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