Raymond Foss v. Todd Rowen

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 30 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RAYMOND C. FOSS, No. 17-15652
Plaintiff-Appellant, D.C. No. 2:15-cv-00686-TLN-DB
v.
MEMORANDUM*
TODD ROWEN,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of California
Troy L. Nunley, District Judge, Presiding
Submitted November 15, 2017**
Before: CANBY, TROTT, and GRABER, Circuit Judges.
California state prisoner Raymond C. Foss appeals pro se from the district
court’s judgment dismissing as time-barred his 42 U.S.C. § 1983 action alleging
false arrest and imprisonment. We have jurisdiction under 28 U.S.C. § 1291. We
review de novo. Jones v. Blanas, 393 F.3d 918, 926 (9th Cir. 2004). We affirm.
*
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).
The district court properly dismissed Foss’s action as time-barred because,
even with the benefit of statutory tolling and accepting Foss’s argument that his
claim accrued in October 2006, Foss failed to file this action within the applicable
statute of limitations, and equitable tolling did not apply. See Cal. Code Civ. Proc.
§ 335.1 (two-year statute of limitations for personal injury claims); Jones, 393 F.3d
at 927 (§ 1983 claims are governed by the forum state’s statute of limitations for
personal injury claims, including state law regarding tolling); Azer v. Connell, 306
F.3d 930, 936 (9th Cir. 2002) (three-pronged test for equitable tolling in
California).
The district court did not abuse its discretion by not holding an evidentiary
hearing. See United States v. Schafer, 625 F.3d 629, 635 (9th Cir. 2010) (denial of
evidentiary hearing is reviewed for abuse of discretion).
The district court did not abuse its discretion by denying Foss’s motion for
appointment of counsel because Foss did not show exceptional circumstances
warranting such an appointment. See Palmer v. Valdez, 560 F.3d 965, 970 (9th
Cir. 2009) (setting forth standard of review and explaining the “exceptional
circumstances” requirement).
We reject as unsupported by the record Foss’s contention that he was
prejudiced by defendant raising new issues in the reply brief because Foss was
2 17-15652
given an opportunity to file a sur-reply brief.
AFFIRMED.
3 17-15652