FILED
NOT FOR PUBLICATION MAY 01 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GILDA BAKER, Successor and interest to No. 13-16870
the Decedent, Diallo Sekou Neal Sr.
Estate, D.C. No. 3:13-cv-00073-MEJ
Plaintiff - Appellant,
MEMORANDUM*
and
ESTATE OF DIALLO SEKOU NEAL
SR.; et al.,
Plaintiffs,
v.
CALIFORNIA HIGHWAY PATROL,
HOWARD JORDAN; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Northern District of California
Maria-Elena James, Magistrate Judge, Presiding**
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The parties consented to proceed before a magistrate judge. See 28
U.S.C. § 636(c).
Submitted April 22, 2015***
Before: GOODWIN, BYBEE, and CHRISTEN, Circuit Judges.
Gilda Baker appeals pro se from the district court’s judgment dismissing her
action arising out of the death of her son and subsequent investigation of the
circumstances of his death. We have jurisdiction under 28 U.S.C. § 1291. We
review de novo, and may affirm on any ground supported by the record.
Thompson v. Paul, 547 F.3d 1055, 1058-59 (9th Cir. 2008). We affirm.
Dismissal of Baker’s § 1983 and Monell claims was proper because Baker
failed to file her action within the statute of limitations. See Cal. Civ. Proc. Code
§ 335.1 (two-year statute of limitations for personal injury actions); Knox v. Davis,
260 F.3d 1009, 1012-13 (9th Cir. 2001) (for § 1983 claims, federal courts apply the
forum state’s personal injury statute of limitations and apply federal law to
determine accrual; a § 1983 claim accrues when the plaintiff knows or has reason
to know of the injury that forms the basis of the action).
Contrary to Baker’s contentions, she is not entitled to equitable tolling. See
Butler v. Nat’l Cmty. Renaissance of Cal., 766 F.3d 1191, 1204 (9th Cir. 2014)
(explaining that federal courts borrow state law equitable tolling provisions and
***
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2 13-16870
setting forth California’s doctrine of equitable tolling); see also Gutierrez v. Mofid,
705 P.2d 886, 902-03 (Cal. 1985) (the limitations period is not equitably tolled by
an attorney’s belief that plaintiff lacks a legal remedy). Nor is Baker entitled to
equitable estoppel. See Lukovsky v. City & County of San Francisco, 535 F.3d
1044, 1051-52 (9th Cir. 2008) (setting forth elements of California’s equitable
estoppel doctrine and explaining that the plaintiff must identify fraudulent
concealment or conduct “above and beyond the wrongdoing upon which the
plaintiff’s claim is filed, to prevent the plaintiff from suing in time” (citation and
internal quotation marks omitted)).
We reject Baker’s contentions regarding her competency.
AFFIRMED.
3 13-16870