eLaws | Code of Federal Regulations | United States Code |
 All Courts
 Federal Courts
 US Court of Appeals Cases
 Court of Appeals for the Ninth Circuit
 2019-07

Gregory McClellan v. S. Lozano ( 2019 )


Menu:
 
  •                            NOT FOR PUBLICATION                           FILED
UNITED STATES COURT OF APPEALS                       JUL 19 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GREGORY McCLELLAN,                              No. 18-17130
Plaintiff-Appellant,            D.C. No. 1:18-cv-01120-AWI-JLT
v.
MEMORANDUM*
S. LOZANO; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of California
Anthony W. Ishii, District Judge, Presiding
Submitted July 15, 2019**
Before:      SCHROEDER, SILVERMAN, and CLIFTON, Circuit Judges.
Gregory McClellan appeals pro se from the district court’s judgment
dismissing his
    42 U.S.C. § 1983
     action alleging an excessive force claim. We have
jurisdiction under
    28 U.S.C. § 1291
    . We review de novo. Watison v. Carter,
    668 F.3d 1108
    , 1112 (9th Cir. 2012) (dismissal under
    28 U.S.C. § 1915
    (e)(2)(B)(ii));
*
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).
Jones v. Blanas,
    393 F.3d 918
    , 926 (9th Cir. 2004) (dismissal as time-barred and
equitable tolling analysis where relevant facts are undisputed). We affirm.
The district court properly dismissed McClellan’s action as time-barred
because, even with the benefit of statutory tolling, McClellan failed to file his
action within the applicable statute of limitations. See
    Cal. Civ. Proc. Code § 335.1
     (two-year statute of limitations for personal injury claims), § 352.1(a)
(statutory tolling of up to two years due to imprisonment); 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).
The district court properly concluded that McClellan is not entitled to
equitable tolling for the period during which (1) he pursued Supplemental Security
Income with the Social Security Administration or (2) his prior district court action
alleging the same excessive force claim was pending. See Cervantes v. City of San
Diego,
    5 F.3d 1273
    , 1275-77 (9th Cir. 1993) (discussing California’s “definitive
three-pronged test” for equitable tolling; dismissal despite a claim of equitable
tolling may be appropriate when it is evident from the face of the complaint that
the plaintiff could not prevail on the equitable tolling issue as a matter of law
(citation and internal quotation marks omitted)); Martell v. Antelope Valley Hosp.
Med. Ctr.,
    79 Cal. Rptr. 2d 329
    , 334 (Ct. App. 1998) (equitable tolling does not
apply to “successive claims pursued in the same forum”).
2                                    18-17130
McClellan’s contention, relying on Escobedo v. Applebees,
    787 F.3d 1226
    (9th Cir. 2015), that the complaint in this action was constructively filed within the
statute of limitations period is unpersuasive.
We do not consider matters not specifically and distinctly raised and argued
in the opening brief, or arguments and allegations raised for the first time on
appeal. See Padgett v. Wright,
    587 F.3d 983
    , 985 n.2 (9th Cir. 2009).
AFFIRMED.
3                                       18-17130