Thomas Bodnar v. Riverside County Sheriff's Dep , 519 F. App'x 511 ( 2013 )

FILED
NOT FOR PUBLICATION MAY 22 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
THOMAS BODNAR, No. 12-56109
Plaintiff - Appellant, D.C. No. 5:11-cv-00092-DSF-OP
v.
MEMORANDUM*
RIVERSIDE COUNTY SHERIFF’S
DEPARTMENT; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Central District of California
Dale S. Fischer, District Judge, Presiding
Submitted May 14, 2013**
Before: LEAVY, THOMAS, and MURGUIA, Circuit Judges.
California state prisoner Thomas Bodnar appeals pro se from the district
court’s judgment dismissing as time-barred his 42 U.S.C. § 1983 action alleging
excessive force during his arrest. We have jurisdiction under 28 U.S.C. § 1291.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
We review de novo the district court’s dismissal on the basis of the applicable
statute of limitations and, where the relevant facts are undisputed, its decision
whether to apply equitable tolling. Jones v. Blanas, 393 F.3d 918, 926 (9th Cir.
2004). We affirm.
The district court properly dismissed Bodnar’s action as time-barred because
Bodnar filed this action more than four years after the alleged use of excessive
force. See Cal. Civ. Proc. Code §§ 335.1, 352.1(a) (two-year statute of limitations
for personal injury claims; limitations period may be tolled for an additional two
years for prisoners); Jones, 393 F.3d at 927 (“For actions under 42 U.S.C. § 1983,
courts apply the forum state’s statute of limitations for personal injury actions.”).
The district court properly declined to apply equitable tolling because
defendants were not provided timely notice of Bodnar’s claims given that Bodnar
voluntarily dismissed his prior action before serving any of the defendants in that
action. See Cervantes v. City of San Diego, 5 F.3d 1273, 1275 (9th Cir. 1993)
(explaining the three-pronged test for equitable tolling in California and noting that
“[t]he doctrine of equitable tolling focuses on the effect of the prior claim in
warning the defendants in the subsequent claim of the need to prepare a defense”);
Fink v. Shedler, 192 F.3d 911, 914 (9th Cir. 1999) (federal courts apply forum
state’s equitable tolling rules when not inconsistent with federal law).
2 12-56109
We deny Bodnar’s opposed motion to amend his opening brief, filed on
February 13, 2013, and his motion to stay the appeal, filed on January 15, 2013.
AFFIRMED.
3 12-56109