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 2019-12

Charles Byrd v. Robert McKinney ( 2019 )


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  •                            NOT FOR PUBLICATION                           FILED
UNITED STATES COURT OF APPEALS                       DEC 17 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHARLES EDWARD BYRD,                            No.    18-17338
Plaintiff-Appellant,            D.C. No. 2:15-cv-02661-NVW-
DMF
v.
ROBERT MCKINNEY, Phoenix Police                 MEMORANDUM*
Department Officer #8046; TIMOTHY
THIEBAUT, Phoenix Police Department
Officer #8008,
Defendants-Appellees,
and
PHOENIX POLICE DEPARTMENT,
Defendant.
Appeal from the United States District Court
for the District of Arizona
Neil V. Wake, District Judge, Presiding
Submitted December 11, 2019**
Before:      WALLACE, CANBY, and TASHIMA, Circuit Judges.
*
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).
Charles Edward Byrd, an Arizona state prisoner, appeals pro se from the
district court’s order dismissing his
    42 U.S.C. § 1983
     action alleging a Fourth
Amendment violation and use of excessive force. We have jurisdiction under
    28 U.S.C. § 1291
    . We review de novo. Erlin v. United States,
    364 F.3d 1127
    , 1130
(9th Cir. 2004) (dismissal on the basis of the statute of limitations); Edwards v.
Marin Park, Inc.,
    356 F.3d 1058
    , 1061 (9th Cir. 2004) (dismissal under Fed. R.
Civ. P. 12(b)(6)). We affirm.
The district court properly dismissed Byrd’s action because it is barred by
the applicable two-year statute of limitations. See TwoRivers v. Lewis,
    174 F.3d 987
    , 991 (9th Cir. 1999) (statute of limitations for § 1983 claims in Arizona is two
years); see also Mills v. City of Covina,
    921 F.3d 1161
    , 1166 (9th Cir. 2019)
(plaintiff had “complete and present causes of action” at the time of search and
arrest, and claims accrued at that time); Doe v. Roe,
    955 P.2d 951
    , 964 (Ariz. 1998)
(unsound mind equitable tolling may not be established by “conclusory averments
such as assertions that one was unable to manage daily affairs or understand legal
rights and liabilities” but rather requires plaintiff to set forth “specific facts”).
Byrd’s motion for appointment of counsel is denied.
AFFIRMED.
2                                      18-17338