FILED
NOT FOR PUBLICATION JUN 29 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
DAVID SIMMONS, No. 11-35301
Plaintiff - Appellant, D.C. No. 3:10-cv-00280-JWS
v.
MEMORANDUM *
STEPHEN B. WALLACE; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Alaska
John W. Sedwick, District Judge, Presiding
Submitted June 26, 2012 **
Before: SCHROEDER, HAWKINS, and GOULD, Circuit Judges.
David Simmons appeals pro se from the district court’s judgment dismissing
his 42 U.S.C. § 1983 action alleging that the State of Alaska, two of its judges, and
two of its prosecutors violated his constitutional rights by retrying him on new
*
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).
charges after the Alaska Court of Appeals invalidated a conviction arising from the
same incident. We have jurisdiction under 28 U.S.C. § 1291. We review de novo
a dismissal under 28 U.S.C. § 1915(e)(2)(B), Barren v. Harrington, 152 F.3d 1193,
1194 (9th Cir. 1998) (order), and we affirm.
The district court properly dismissed Simmons’ claims against the State of
Alaska under the Eleventh Amendment. See Jackson v. Arizona, 885 F.2d 639,
641 (9th Cir. 1989) (Eleventh Amendment bars a § 1983 action against a state).
The district court properly dismissed Simmons’ claims against the state
court judges who participated in his retrial because they are entitled to absolute
immunity. See Sadoski v. Mosley, 435 F.3d 1076, 1079 (9th Cir. 2006) (holding
that a judge is entitled to absolute immunity even if he takes an action that violates
the Double Jeopardy Clause).
The district court properly dismissed the remainder of Simmons’ action as
time barred because Simmons failed to show a basis for equitable tolling. See
Canatella v. Van De Kamp, 486 F.3d 1128, 1132 (9th Cir. 2007) (forum state’s
tolling laws apply to § 1983 claims unless they are inconsistent with federal law);
Solomon v. Interior Reg’l Hous. Auth., 140 P.3d 882, 884 (Alaska 2006)
(explaining grounds for equitable tolling when a plaintiff pursues “multiple legal
remedies”).
2 11-35301
Simmons’ remaining contentions, including that the district court imposed a
heightened pleading standard, are unpersuasive.
AFFIRMED.
3 11-35301