Jehan Zeb Mir v. San Antonio Community Hospital

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 26 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JEHAN ZEB MIR, MD, Nos. 13-57138
13-57181
Plaintiff-Appellant / Cross-
Appellee, D.C. No. 5:12-cv-01791-GW-SP
v.
MEMORANDUM*
SAN ANTONIO COMMUNITY
HOSPITAL; et al.,
Defendants-Appellees /
Cross-Appellants.
Appeals from the United States District Court
for the Central District of California
George H. Wu, District Judge, Presiding
Submitted January 18, 2017**
Before: TROTT, TASHIMA, and CALLAHAN, Circuit Judges.
Jehan Zeb Mir, M.D., appeals pro se from the district court’s judgment
dismissing his action alleging 42 U.S.C. §§ 1985, 1986, Racketeer Influenced and
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes these cases are suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Corrupt Organizations Act (“RICO”), and state law claims. San Antonio
Community Hospital cross-appeals from the district court’s order denying its
motion for sanctions and attorney’s fees. We have jurisdiction under 28 U.S.C.
§ 1291. We review de novo a dismissal for failure to state a claim under Federal
Rule of Civil Procedure 12(b)(6). Cholla Ready Mix, Inc. v. Civish, 382 F.3d 969,
973 (9th Cir. 2004). We affirm.
The district court properly dismissed all of Mir’s claims that accrued during
or before 2005 because his claims are barred by the applicable statute of
limitations. See Cal. Civ. Proc. Code § 335.1 (two-year statute of limitations for
personal injury claims); Douglas v. Noelle, 567 F.3d 1103, 1109 (9th Cir. 2009)
(§ 1983 claims are governed by forum state’s statute of limitations for personal
injury actions, and they accrue when the plaintiff knows or should know of the
injury that is the basis of the cause of action); Pincay v. Andrews, 238 F.3d 1106,
1108 (9th Cir. 2001) (the statute of limitations for civil RICO actions is four
years). Contrary to Mir’s contentions, the district court did not abuse its discretion
by concluding that defendants should not be equitably estopped from asserting a
statute of limitations defense because Mir did not allege that defendants prevented
him from filing in time through “some active conduct by the defendant above and
2 13-57138, 13-57181
beyond the wrongdoing.” Lukovsky v. City & County of San Francisco, 535 F.3d
1044, 1048, 1051-52 (9th Cir. 2008).
The district court properly dismissed Mir’s RICO, 42 U.S.C. §§ 1985-1986,
and intentional infliction of emotional distress claims against defendant San
Antonio Community Hospital because Mir failed to allege facts sufficient to state a
claim. See United Bhd. of Carpenters & Joiners of Am., Local 610 v. Scott, 463
U.S. 825, 828-29 (1983) (elements of 42 U.S.C. § 1985(3) claim); Living Designs,
Inc. v. E. I. DuPont de Nemours & Co., 431 F.3d 353, 361 (9th Cir. 2005)
(elements of civil RICO claim); Delta Sav. Bank v. United States, 265 F.3d 1017,
1024 (9th Cir. 2001) (§ 1986 claim liability is predicated upon a § 1985 violation);
Burns v. County of King, 883 F.2d 819, 821 (9th Cir. 1989) (requiring race-based
nexus for § 1985 claim); Hughes v. Pair, 209 P.3d 963, 976 (Cal. 2009) (elements
of an intentional infliction of emotional distress claim under California law).
The district court did not abuse its discretion by denying Mir’s request for
leave to amend to add San Antonio Community Hospital’s attorneys of record and
their law firm as defendants to the Second Amended Complaint. See Serra v.
Lappin, 600 F.3d 1191, 1200 (9th Cir. 2010) (setting forth standard of review and
factors for permitting leave to amend).
3 13-57138, 13-57181
The district court did not abuse its discretion by denying Mir’s motion for
reconsideration because Mir failed to establish any basis for 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 under
Federal Rules of Civil Procedure 59(e) and 60(b)).
The district court did not abuse its discretion by denying defendant San
Antonio Community Hospital’s motion for sanctions under Federal Rule of Civil
Procedure 11 and 28 U.S.C. § 1927 because Mir was proceeding pro se and the
district court had granted him leave to amend additional facts. See Islamic Shura
Council of S. Cal. v. FBI, 757 F.3d 870, 872 (9th Cir. 2014) (setting forth standard
of review for rulings on sanctions under Rule 11); Trulis v. Barton, 107 F.3d 685,
691-92 (9th Cir. 1995) (setting forth standard of review for rulings on sanctions
under 28 U.S.C. § 1927); Warren v. Guelker, 29 F.3d 1386, 1390 (9th Cir. 1994)
(recognizing that Rule 11 applies to a pro se plaintiff, and that a court must take
into account a plaintiff’s pro se status when determining whether the filing was
reasonable).
Appeal No. 13-57138: AFFRIMED.
Appeal No. 13-57181: AFFIRMED.
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