NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 7 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
TIMOTHY WAYNE ARNETT, No. 15-15225
Plaintiff-Appellant, D.C. No. 1:13-cv-02066-LJO-MJS
v.
MEMORANDUM*
WALGREEN COMPANY, INC.,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, Chief Judge, Presiding
Submitted October 25, 2016**
Before: LEAVY, GRABER, and CHRISTEN, Circuit Judges.
Timothy Wayne Arnett appeals pro se from the district court’s judgment
dismissing his diversity action alleging medical malpractice and wrongful death
claims. We have jurisdiction under 28 U.S.C. § 1291. We review de novo a
dismissal for failure to state a claim under Federal Rule of Civil Procedure
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
12(b)(6), Edwards v. Marin Park, Inc., 356 F.3d 1058, 1061 (9th Cir. 2004), and
we affirm.
The district court properly dismissed Arnett’s action because it was barred
by the three-year statute of limitations and Arnett failed to plead facts
demonstrating that tolling should apply. See Cal. Civ. Proc. Code § 340.5 (setting
forth three-year statute of limitations and reasons why it may be tolled); see also
Belton v. Bowers Ambulance Serv., 978 P.2d 591, 593 (Cal. 1999) (“No tolling
provision outside of [those identified in section 340.5] can extend the three-year
maximum time period that section 340.5 establishes.”).
The district court did not abuse its discretion in dismissing Arnett’s
complaint without leave to amend because 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 that “a district court may dismiss
without leave where . . . amendment would be futile”).
Arnett’s contention that the magistrate judge erred by not informing him of
the statute of limitations issue is unpersuasive.
Arnett’s pending motions are denied.
AFFIRMED.
2 15-15225