Fourstar v. Ness

MEMORANDUM ^**

Victor Charles Fourstar, Jr., appeals from the district court’s order dismissing his malpractice complaint pursuant to 28 U.S.C. § 1915A, without leave to amend. We have jurisdiction under 28 U.S.C. § 1291. We review for abuse of discretion a district court’s denial of leave to amend, Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir.2000) (en banc), and we affirm.

The district court did not abuse its discretion by dismissing Fourstar’s complaint without leave to amend because his action is barred by a three-year statute of limitations, whether the complaint is construed as asserting a federal claim, see Mont.Code Ann. § 27-2-204; Van Strum v. Lawn, 940 F.2d 406, 410 (9th Cir.1991) (state’s statute of limitations for personal injury claims applies in both Bivens and section 1983 actions), or a state claim, see 28 U.S.C. § 1332; see also Mont.Code Ann. § 27-2-206; Flowers v. Carville, 310 F.3d 1118, 1123 (9th Cir.2002) (in a diversity case forum state law determines which state’s statute of limitations governs).

AFFIRMED.

** This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.