FILED
NOT FOR PUBLICATION JAN 03 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
CLAUDELL EARL MARTIN, No. 11-15830
Plaintiff - Appellant, D.C. No. 1:08-cv-00415-LJO-SMS
v.
MEMORANDUM *
JEANNE S. WOODFORD, Director of
Department of Corrections; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, District Judge, Presiding
Submitted December 19, 2012 **
Before: GOODWIN, WALLACE, and FISHER, Circuit Judges.
Claudell Earl Martin, a California state prisoner, appeals pro se from the
district court’s judgment in his 42 U.S.C. § 1983 action alleging deliberate
indifference to his serious medical needs, and retaliation for filing grievances. We
*
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).
have jurisdiction under 28 U.S.C. § 1291. We review de novo the district court’s
dismissal on the basis of the statute of limitations and under Federal Rule of Civil
Procedure 12(b)(6), Cholla Ready Mix, Inc. v. Civish, 382 F.3d 969, 973 (9th Cir.
2004), and its summary judgment, Toguchi v Chung, 391 F.3d 1051, 1056 (9th Cir.
2004). We review for an abuse of discretion the district court’s decision whether
to apply equitable estoppel and equitable tolling. Leong v. Potter, 347 F.3d 1117,
1121 (9th Cir. 2003). We affirm.
The district court properly dismissed Martin’s deliberate indifference claim
against McGuiness on the basis of the statute of limitations because Martin failed
to file his complaint within two years of the final rejection of his appeal of his
grievance. See Cal. Civ. Proc. Code § 335.1 (two-year statute of limitations for
personal injury claims); TwoRivers v. Lewis, 174 F.3d 987, 991-92 (9th Cir. 1999)
(in § 1983 actions, federal courts borrow from the forum state the statute of
limitations applicable to personal injury claims and tolling rules, but federal law
determines when a claim accrued; under federal law, a claim accrues when the
plaintiff knows or has reason to know of the injury which is the basis of the
action); see also Brown v. Valoff, 422 F.3d 926, 943 (9th Cir. 2005) (“[T]he
applicable statute of limitations must be tolled while a prisoner completes the
mandatory exhaustion process.”). Contrary to Martin’s contention, equitable
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estoppel does not apply because no prison official prevented Martin from bringing
his claim, or misrepresented or concealed information pertinent to the claim. See
Lukovsky v. City & County of San Francisco, 535 F.3d 1044, 1051-52 (9th Cir.
2008) (discussing requirements for equitable estoppel under California law).
The district court properly granted summary judgment for Patel on Martin’s
deliberate indifference claim because Martin failed to raise a genuine dispute of
material fact as to whether Patel knew of and disregarded an excessive risk to his
heart condition. See Toguchi, 391 F.3d at 1057 (a prison official is deliberately
indifferent only if he knows of and disregards an excessive risk to an inmate’s
health).
The district court properly granted summary judgment for Fisher and
Thomas on Martin’s retaliation claim because Martin failed to raise a triable
dispute as to whether these defendants took adverse action against him.
See Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 1995) (discussing
elements of a retaliation claim).
The district court properly granted summary judgment for Henry and Flory
on Martin’s retaliation claim because Martin failed to raise a triable dispute as to
whether these defendants acted with retaliatory intent, and whether his transfer did
not advance a legitimate, penological interest. See id.; see also Pratt v. Rowland,
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65 F.3d 802, 808 (9th Cir. 1995) (concluding that timing was insufficient to
establish retaliatory intent where there was no evidence that the defendants had
knowledge of the plaintiff’s protected activity).
The district court did not abuse its discretion by extending the time for
defendants to file a dispositive motion because the length of the delay was brief,
defendants gave several reasons for their requests, and there was no evidence of
bad faith or prejudice. See Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1087
(9th Cir. 2002) (discussing the standard of review and a district court’s broad
discretion in supervising the pretrial phase of litigation); see also Pincay v.
Andrews, 389 F.3d 853, 855-56 (9th Cir. 2004) (explaining that an attorney’s
calendaring error does not render the neglect inexcusable).
Martin’s contention that the magistrate judge was biased against him is
rejected.
AFFIRMED.
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