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NOT FOR PUBLICATION DEC 16 2015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. 14-17244
Plaintiff - Appellant, D.C. No. 1:11-cv-01281-RRB
v.
MEMORANDUM*
D. G. ADAMS, Warden; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Ralph R. Beistline, Chief 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 alleging,
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Ralph R. Beistline, Chief United States District Judge
for the District of Alaska, sitting by designation.
***
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
among other claims, deliberate indifference to his serious medical needs. 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 deliberate indifference
claims regarding the denial of an adequate renal diet, ice chips, and sundries
because Calloway failed to allege facts sufficient to show defendants were
deliberately indifferent. See Toguchi v. Chung, 391 F.3d 1051, 1057-61 (9th Cir.
2004) (a prison official acts with deliberate indifference only if he or she knows of
and disregards an excessive risk to the prisoner’s health; negligence and a mere
difference in medical opinion are insufficient); see also Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (a pleading must offer more than “labels and conclusions or a
formulaic recitation of the elements of a cause of action”; “[t]hreadbare recitals of
the elements of a cause of action, supported by mere conclusory statements, do not
suffice” (citations and internal quotation marks omitted)).
The district court properly concluded that Calloway’s claims relating to
events and conduct occurring before October 14, 2010 were barred by the statute of
limitations. See Cal. Civ. Proc. Code §§ 335.1, 352.1 (two-year statute of
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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).
Calloway’s contention regarding continuing violations is unsupported.
The district court did not abuse its discretion in dismissing Calloway’s
claims to the extent he sought to add new parties and new claims arising out of
events unrelated to the claims upon which he was granted leave to proceed. See
Planned Parenthood of S. Arizona v. Nelley, 130 F.3d 400, 402 (9th Cir. 1997)
(setting forth standard of review and explaining that leave to permit supplemental
pleading “cannot be used to introduce a separate, distinct and new cause of action”
(citation and internal quotation marks omitted)); see also Jackson v. Bank of
Hawaii, 902 F.2d 1385, 1387 (9th Cir. 1990) (denying leave to amend where
additional claims “advance different legal theories and require proof of different
facts”).
The district court did not abuse its discretion in denying Calloway further
leave to amend after providing Calloway with an opportunity to amend and
concluding that further amendment would be futile. See Cervantes v. Countrywide
Home Loans, Inc., 656 F.3d 1034, 1041 (9th Cir. 2011) (setting forth standard of
review and explaining dismissal without leave to amend is proper when
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amendment would be futile); see also Cafasso, U.S. ex rel. v. Gen. Dynamics C4
Sys., Inc., 637 F.3d 1047, 1058-59 (9th Cir. 2011) (district court did not abuse its
discretion in denying leave to amend where the pleading violated Fed. R. Civ. P. 8
pleading standards).
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).
AFFIRMED.
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