FILED
NOT FOR PUBLICATION MAR 17 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
TRYON LARRY SMITH, No. 11-56317
Plaintiff - Appellant, D.C. No. 2:09-cv-09219-JAK
v.
MEMORANDUM*
NATHAN KOURI; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Central District of California
John A. Kronstadt, District Judge, Presiding
Submitted March 10, 2014**
Before: PREGERSON, LEAVY, and MURGUIA, Circuit Judges.
California state prisoner Tyron Larry Smith appeals pro se from the district
court’s judgment dismissing as time-barred his 42 U.S.C. § 1983 action alleging
that defendants used excessive force while taking him into custody on December 7,
*
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).
2005. We have jurisdiction under 28 U.S.C. § 1291. We review de novo, Jones v.
Blanas, 393 F.3d 918, 926 (9th Cir. 2004), and we affirm.
The district court properly dismissed Smith’s action with prejudice because,
although the statute of limitations was tolled until Smith turned eighteen on
February 10, 2007, see Cal. Civ. Proc. Code § 352(a) (tolling if person is under the
age of majority at the time the claims accrued), Smith did not file his complaint
until November 30, 2009, more than nine months after the two-year limitations
period expired on February 10, 2009. See Cal. Civ. Proc. Code § 335.1 (two-year
statute of limitations for personal injury claims); Jones, 393 F.3d at 927 (for
§ 1983 claims, the courts apply the forum state’s statute of limitations for personal
injury claims); Knox v. Davis, 260 F.3d 1009, 1013 (9th Cir. 2001) (a § 1983
“claim accrues when the plaintiff knows or has reason to know of the injury which
is the basis of the action” (citation omitted)).
The district court properly declined to apply tolling pursuant to Cal. Civ.
Proc. Code § 352.1 which states that prisoners are entitled to two years of statutory
tolling, because at the time Smith’s claims accrued, Smith was not imprisoned on a
criminal charge. See Cal. Civ. Proc. Code § 357 (“No person can avail himself of a
disability, unless it existed when his right of action accrued.”); Elliott v. City of
Union City, 25 F.3d 800, 802-03 (9th Cir. 1994) (explaining that “actual,
2 11-56317
uninterrupted incarceration is the touchstone” for assessing tolling in post-arrest
custody situations) (citation omitted)).
We reject Smith’s contention that he may invoke tolling pursuant to Cal.
Gov’t Code § 945.3. See Torres v. City of Santa Ana, 108 F.3d 224, 227 (9th Cir.
1997) (concluding, for purposes of tolling under Cal. Gov’t Code § 945.3, that no
charge is “pending” until a criminal complaint is actually filed after an arrest).
AFFIRMED.
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