Kevin MacGregor v. Dial , 671 F. App'x 441 ( 2016 )

FILED
NOT FOR PUBLICATION NOV 23 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KEVIN ANTHONY MacGREGOR, No. 15-16422
Plaintiff-Appellant, D.C. No. 2:13-cv-01883-JAM-AC
v.
MEMORANDUM*
DIAL, Doctor; G. W. JAMES, Doctor,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of California
John A. Mendez, District Judge, Presiding
Submitted November 16, 2016**
Before: LEAVY, BERZON, and MURGUIA, Circuit Judges.
Kevin Anthony MacGregor, a California state prisoner, appeals pro se from
the district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging
deliberate indifference to his serious medical needs. We have jurisdiction under 28
U.S.C. § 1291. We review de novo a dismissal under Fed. R. Civ. P. 12(b)(6).
*
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).
TwoRivers v. Lewis, 174 F.3d 987, 991 (9th Cir. 1999). We affirm.
The district court properly dismissed MacGregor’s action as barred by the
statute of limitations. See Jones v. Blanas, 393 F.3d 918, 927 (9th Cir. 2004)
(stating that the statute of limitations for § 1983 claims is governed by the forum
state’s statute of limitations for personal injury claims and that the applicable
statute of limitations under California law is two years; recognizing that California
law provides for tolling for a period of up to two years based on the disability of
imprisonment); see also Brown v. Valoff, 422 F.3d 926, 943 (9th Cir. 2005)
(“[T]he applicable statute of limitations [is] tolled while a prisoner completes the
mandatory exhaustion process.”).
Contrary to MacGregor’s contentions, his claims accrued when defendants
treated him, and MacGregor failed to allege facts sufficient to show that
defendants’ treatment of him constituted a continuing violation. See Knox v.
Davis, 260 F.3d 1009, 1013 (9th Cir. 2001) (“[A] mere continuing impact from
past violations is not actionable.” (citation omitted)); TwoRivers, 174 F.3d at 991-
92 (a § 1983 claim based on allegation of deliberate indifference to a serious
medical need accrues when plaintiff knows or has reason to know of the prison
personnel’s deliberate indifference).
The district court did not abuse its discretion by denying MacGregor leave to
2 15-16422
amend his complaint because amendment would have been futile. See Rutman
Wine Co. v. E. & J. Gallo Winery, 829 F.2d 729, 738 (9th Cir. 1987) (setting forth
standard of review and explaining that denial of leave to amend is not an abuse of
discretion where amendment would be futile).
We do not consider MacGregor’s contention that the district court erred by
not permitting him to add timely additional claims involving events that occurred
at other prisons because MacGregor did not raise these arguments before the
district court. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999) (court will
not consider matters not properly raised before the district court).
AFFIRMED.
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