FILED
NOT FOR PUBLICATION MAR 19 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
EVERETT GALINDO GONZALEZ, No. 13-17021
Plaintiff - Appellant, D.C. No. 1:09-cv-01284-AWI-
SKO
v.
C. GARDEMAL, Associate Warden; et al., MEMORANDUM*
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Anthony W. Ishii, District Judge, Presiding
Submitted March 10, 2015**
Before: FARRIS, WARDLAW, and PAEZ, Circuit Judges.
Everett Galindo Gonzalez, a California state prisoner, appeals pro se from
the district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging
retaliation and due process violations. We have jurisdiction under 28 U.S.C.
§ 1291. We review de novo. Hebbe v. Pliler, 627 F.3d 338, 341 (9th Cir. 2010)
*
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).
(dismissal under Fed. R. Civ. P. 12(b)(6)); Lukovsky v. City & County of San
Francisco, 535 F.3d 1044, 1047 (9th Cir. 2008) (statute of limitations). We affirm
in part, reverse in part, and remand.
The district court properly dismissed as time-barred Gonzalez’s retaliatory
transfer claim and his due process claims stemming from his re-validation as a
gang member in 2004 and 2006, and his inactive status review in 2006. See Cal.
Civ. Proc. Code § 335.1 (two-year statute of limitations for personal injury claims);
Douglas v. Noelle, 567 F.3d 1103, 1109 (9th Cir. 2009) (§ 1983 claims are
governed by forum state’s statute of limitations for personal injury actions, and
they accrue when the plaintiff knows or should know of the injury that is the basis
of the cause of action); 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 Gonzalez’s contention, he is not
entitled to statutory tolling because he is incarcerated for a life term without the
possibility of parole. See Cal. Civ. Proc. Code § 352.1(a) (requirements for tolling
due to incarceration). We also reject Gonzalez’s contention that he is entitled to
additional equitable tolling.
The district court also dismissed as time-barred Gonzalez’s due process
claim based on his 2007 re-validation. However, that claim is timely because
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Gonzalez filed this action within two years of when that claim accrued. See Cal.
Civ. Proc. Code § 335.1; Douglas, 567 F.3d at 1109. Moreover, Gonzalez alleged
that defendants did not present any reliable evidence in recommending his
continued validation and that he served an indeterminate term in the Security
Housing Unit – allegations sufficient to state a due process claim. See Castro v.
Terhune, 712 F.3d 1304, 1307, 1314-15 (9th Cir. 2013) (“[d]ue process . . .
requires [prison gang member] validations to be supported by ‘some evidence’”;
“some evidence” is any evidence bearing some indicia of reliability); Bruce v. Ylst,
351 F.3d 1283, 1287 (9th Cir. 2003) (explaining due process requirements for
placing a gang member in segregation). We therefore reverse and remand for
further proceedings as to Gonzalez’s due process claims based on his 2007 re-
validation.
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) (per curiam).
We do not consider defendants’ arguments regarding qualified immunity
because defendants failed to make these arguments before the district court. See
Armstrong v. Brown, 768 F.3d 975, 981 (9th Cir. 2014) (arguments not raised
before the district court are waived).
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Appellees’ motion to strike, filed on November 13, 2014, is granted.
Gonzalez’s motion to supplement the record, filed on January 29, 2015, is
denied.
The parties shall bear their own costs on appeal.
AFFIRMED in part, REVERSED in part, and REMANDED.
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