Demondza Hunter v. Ballard

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT DEC 16 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
DEMONDZA HUNTER, No. 14-56531
Plaintiff - Appellant, D.C. No. 3:13-cv-02691-H-JMA
v.
MEMORANDUM*
BALLARD; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Southern District of California
Marilyn L. Huff, District Judge, Presiding
Submitted December 9, 2015**
Before: WALLACE, RAWLINSON, and IKUTA, Circuit Judges.
Demondza Hunter, a California state prisoner, appeals pro se from the
district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging Eighth
Amendment claims. We have jurisdiction under 28 U.S.C. § 1291. We review de
*
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).
novo. Hamilton v. Brown, 630 F.3d 889, 892 (9th Cir. 2011) (dismissal under 28
U.S.C. § 1915A); Lukovsky v. City & County of San Francisco, 535 F.3d 1044,
1047 (9th Cir. 2008) (dismissal under the applicable statute of limitations); Barren
v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (order) (dismissal under 28
U.S.C. § 1915(e)(2)(B)(ii)). We affirm.
The district court properly dismissed Hunter’s action because, even with the
benefit of statutory tolling due to incarceration, Hunter failed to file his action
within the applicable statute of limitations. See Canatella v. Van De Kamp, 486
F.3d 1128, 1132-33 (9th Cir. 2007) (forum state’s personal injury statute of
limitations and tolling laws apply to § 1983 actions; federal law determines when a
civil rights claim accrues, which is “when the plaintiff knows or has reason to
know of the injury which is the basis of the action” (citation and internal quotation
marks omitted)); Jones v. Blanas, 393 F.3d 918, 927 (9th Cir. 2004) (for claims
accruing prior to 2003, California’s statute of limitations was one year); see also
Cal. Code Civ. Proc. § 352.1(a) (two-year statutory tolling for incarceration). Even
taking into consideration California’s discovery rule, Hunter’s action was still
untimely.
The district court did not abuse its discretion in finding that equitable
estoppel did not apply to Hunter’s action because Hunter did not plead with
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particularity that defendants fraudulently concealed any facts that prevented Hunter
from timely filing this action. See Lukovsky, 535 F.3d at 1051-52 (setting forth
elements of California’s doctrine of equitable estoppel); Guerrero v. Gates, 442
F.3d 697, 706-07 (9th Cir. 2006) (explaining that a plaintiff “must plead with
particularity the facts which give rise to the claim of fraudulent concealment”
(citation and internal quotation marks omitted)); Leong v. Potter, 347 F.3d 1117,
1121 (9th Cir. 2003) (setting forth standard of review).
The district court did not abuse its discretion in denying Hunter leave to
amend his fraudulent concealment claim because amendment would have been
futile. See Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (en banc) (setting
forth standard of review and explaining that leave to amend should be given unless
the deficiencies in the complaint cannot be cured by amendment).
The district court did not abuse its discretion by denying Hunter’s motion for
reconsideration under Federal Rule of Civil Procedure Rule 59(e) because Hunter
failed to establish any ground warranting such relief. See Sch. Dist. No. 1J,
Multnomah Cty., Or., v. ACandS, Inc., 5 F.3d 1255, 1262-63 (9th Cir. 1993)
(setting forth standard of review and grounds for reconsideration).
AFFIRMED.
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