FILED
NOT FOR PUBLICATION MAR 29 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
STEPHEN SCOTT SMILLIE, No. 14-15376
Plaintiff - Appellant, D.C. No. 2:11-cv-01320-NVW
v.
MEMORANDUM*
COUNTY OF MARICOPA; JOSEPH M.
ARPAIO, Sheriff; MERRICK KOTAPKA,
Registered Nurse; DONNA BUNKERS,
Physician’s Assistant; C. BINDU,
Registered Nurse; MICHELLE
KALMAN, Physician’s Assistant; C.
MUHAMMED, Registered Nurse; RAMA
BAJALI; D. RAUCH, Officer; J. HOGUE,
Officer,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Arizona
Neil V. Wake, District Judge, Presiding
Argued and submitted February 11, 2016
San Francisco, California
Before: SILVERMAN, FISHER, and TALLMAN, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Appellant Stephen Smillie appeals the Arizona District Court’s dismissal of
his 42 U.S.C. § 1983 and state law claims alleging unlawful detention, violation of
the Eighth Amendment for failure to provide adequate medical care, negligence
and aggravated negligence. We have jurisdiction pursuant to 28 U.S.C. § 1291 and
we affirm.
1. The district court did not err in dismissing Smillie’s third amended
complaint, replacing John Does with named individual Defendants, as barred by
the statute of limitations. There is no evidence in the record satisfying the
requirements of relation back. See Fed. R. Civ. P. 15(c); Miguel v. Country
Funding Corp., 309 F.3d 1161, 1165 (9th Cir. 2002) (as amended). Smillie did not
advance any relation back argument before the district court, and conceded as
much at oral argument. By assuming relation back was automatic, Smillie offered
no proof to trigger the provision and failed to show that Defendants were provided
notice of the complaint and were not prejudiced by the amendment. See Fed. R.
Civ. P. 15(c)(1)(C); Miguel, 309 F.3d at 1165 (holding that plaintiff’s amended
complaint could not relate back because there was “no evidence in the record that
the [defendant] had notice of the suit within the 120 day period required by Rule
4(m).”). The district court, therefore, did not err in dismissing Smillie’s untimely
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third amended complaint because the record does not establish his entitlement to
relation back under Rule 15(c).
Moreover, the district court did not abuse its discretion in denying Smillie
the chance to further amend his complaint. See Lopez v. Smith, 203 F.3d 1122,
1130 (9th Cir. 2000) (en banc) (reviewing a district court dismissal of claims
without leave to amend for abuse of discretion). The district court gave Smillie
three chances to amend his complaint and provided guidance on how to fix it.
Smillie paid little heed to any of the court’s guidance or dispositive orders. After
two-and-a-half years in district court and four complaints, the district court
reasonably determined there was no justification for further amendment and delay.
2. Smillie’s argument that equitable tolling applies is waived as it was not
raised in the district court below. See A-1 Ambulance Serv., Inc. v. Cty. of
Monterey, 90 F.3d 333, 338 (9th Cir. 1996) (“Generally, in order for an argument
to be considered on appeal, the argument must have been raised sufficiently for the
trial court to rule on it.”).
AFFIRMED.
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