Jamisi Calloway v. Rangel

FILED
NOT FOR PUBLICATION DEC 16 2015

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

JAMISI JERMAINE CALLOWAY, No. 14-17245

Plaintiff - Appellant, D.C. No. 1:12-cv-00193-GSA

v.
MEMORANDUM*
RANGEL, Sergeant; et al.,

Defendants - Appellees.

Appeal from the United States District Court
for the Eastern District of California
Gary S. Austin, Magistrate Judge, Presiding**

Submitted December 9, 2015**

Before: WALLACE, RAWLINSON, and IKUTA, Circuit Judges.

Jamisi Jermaine Calloway, a California state prisoner, appeals pro se from

the district court’s judgment dismissing his 42 U.S.C. § 1983 action arising from a

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
Calloway consented to proceed before a magistrate judge. See 28
U.S.C. § 636(c).
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2003 alleged excessive force incident. We have jurisdiction under 28 U.S.C.

§ 1291. We review de novo. Hamilton v. Brown, 630 F.3d 889, 892 (9th Cir.

2011) (dismissal under 28 U.S.C. § 1915A); Cholla Ready Mix, Inc. v. Civish, 382

F.3d 969, 973 (9th Cir. 2004) (dismissal on the basis of a statute of limitations).

We affirm.

The district court properly dismissed Calloway’s action because, even with

the benefit of statutory tolling due to incarceration, Calloway failed to file his

action within the applicable statute of limitations and failed to demonstrate he was

entitled to equitable tolling. See Cal. Civ. Proc. Code §§ 335.1, 352.1 (two-year

statute of limitations for personal injury claims; two-year tolling period due to

incarceration); Canatella v. Van De Kamp, 486 F.3d 1128, 1132-33 (9th Cir. 2007)

(forum state’s personal injury statute of limitations and tolling laws apply to

§ 1983 actions); see also Fink v. Shedler, 192 F.3d 911, 916-17 (9th Cir. 1999)

(three-pronged test for equitable tolling in California; plaintiff was not entitled to

equitable tolling where “actions were not a reasonable and good faith effort to

pursue his claims in an alternate forum or case” (citation and internal quotation

marks omitted)); Thomas v. Gilliland, 115 Cal. Rptr. 2d 520, 524 (Ct. App. 2002)

(“In the absence of a statute, a party cannot deduct from the period of the statute of

limitations applicable to his case the time consumed by the pendency of an action

2 14-17245
in which he sought to have the matter adjudicated, but which was dismissed

without prejudice to him.” (citation and internal quotation marks omitted)).

We reject Calloway’s contentions that his claims are not time-barred due to

his pro se status, or because of his alleged incapacitation after the statute of

limitations had already expired.

AFFIRMED.

3 14-17245