FILED
NOT FOR PUBLICATION AUG 17 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JERARDO RODRIGUEZ, No. 10-35530
Plaintiff - Appellant, D.C. No. 3:08-cv-00290-ST
v.
MEMORANDUM *
MAX WILLIAMS, Director of ODOC; et
al.,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Oregon
Michael W. Mosman, District Judge, Presiding
Submitted August 11, 2011 **
Before: THOMAS, SILVERMAN, and CLIFTON, Circuit Judges.
Former Oregon state prisoner Jerardo Rodriguez appeals pro se from the
district court’s summary judgment in his 42 U.S.C. § 1983 action alleging claims
related to the conditions of his prior confinement and subsequent parole
*
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).
proceedings. We have jurisdiction under 28 U.S.C. § 1291. We review de novo
the district court’s decision to grant summary judgment. Toguchi v. Chung, 391
F.3d 1051, 1056 (9th Cir. 2004). We review for an abuse of discretion the district
court’s decision to permit a party to amend its answer. Owens v. Kaiser Found.
Health Plan, Inc., 244 F.3d 708, 712 (9th Cir. 2001). We affirm.
The district court properly granted summary judgment as to Rodriguez’s
claims regarding the conditions of his confinement because these claims were
barred by the applicable two-year statute of limitations, and Rodriguez failed to
establish circumstances warranting equitable tolling. See Alameda Books, Inc. v.
City of Los Angeles, 631 F.3d 1031, 1041 (9th Cir. 2011) (§ 1983 limitations
period is the personal injury statute of limitations of the state where the claims
arose); see also Or. Rev. Stat. § 12.110(1) (personal injury claims subject to
two-year statute of limitations); Dearmond v. Dep’t of Revenue, 14 Or. Tax 112,
117 (1997) (equitable tolling applies where claimant files defective pleading
during statutory period or is induced by adversaries into missing a filing deadline);
cf. also Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002) (“[E]quitable
tolling is unavailable in most cases and is appropriate only if extraordinary
circumstances beyond a prisoner’s control make it impossible to file a [federal
habeas] petition on time.” (citation and internal quotation marks omitted)).
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The district court properly granted summary judgment as to Rodriguez’s
remaining claims against the Oregon Board of Parole and Post Prison Supervision
because these defendants are shielded by Eleventh Amendment immunity, and did
not waive this defense by failing to raise it initially in their summary judgment
motion. See Cal. Franchise Tax Bd. v. Jackson, 184 F.3d 1046, 1048-49 (9th Cir.
1999) (Eleventh Amendment’s jurisdictional bar to suing a state or its agencies in
federal court can be raised at any time by a party or the court sua sponte).
The district court did not abuse its discretion in granting defendants leave to
amend their answer to add a statute of limitations defense because defendants
notified both Rodriguez and his former counsel of their intent to raise the defense
early on, and Rodriguez was not prejudiced by the amendment. See Fed. R. Civ. P.
15(a)(2) (court should “freely give leave [to amend] when justice so requires”);
Rivera v. Anaya, 726 F.2d 564, 566 (9th Cir. 1984) (absent prejudice to plaintiff,
defendant could raise the limitations defense first during summary judgment).
Rodriguez’s remaining contentions are unpersuasive.
AFFIRMED.
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