Armando Marroquin v. Yolanda Fernandez-Carr

FILED
NOT FOR PUBLICATION NOV 23 2016

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ARMANDO ANTONIO MARROQUIN, No. 15-16352

Plaintiff-Appellant, D.C. No. 2:13-cv-01761-DGC

v.
MEMORANDUM*
YOLANDA FERNANDEZ-CARR,
Education Principal at La Palma
Correctional Center; et al.,

Defendants-Appellees.

Appeal from the United States District Court
for the District of Arizona
David G. Campbell, District Judge, Presiding

Submitted November 16, 2016**

Before: LEAVY, BERZON, and MURGUIA, Circuit Judges.

California state prisoner Armando Antonio Marroquin appeals pro se from

the district court’s summary judgment and dismissal order in his 42 U.S.C. § 1983

action alleging deliberate indifference, retaliation, and denial of access to courts.

*
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).
We have jurisdiction under 28 U.S.C. § 1291. We review de novo. Williams v.

Paramo, 775 F.3d 1182, 1191 (9th Cir. 2015) (failure to exhaust administrative

remedies); Thompson v. Paul, 547 F.3d 1055, 1058-59 (9th Cir. 2008) (dismissal

under Fed. R. Civ. P. 12(b)(6)). We affirm.

The district court properly dismissed Marroquin’s deliberate indifference

and retaliation claims against defendants Ward and Hudson because those claims

are barred by the statute of limitations and Marroquin failed to plead facts

demonstrating that any tolling should apply. See Ariz. Rev. Stat. § 12-542

(two-year statute of limitations for personal injury actions); Jones v. Blanas, 393

F.3d 918, 927 (9th Cir. 2004) (forum state’s personal injury statute of limitations

and tolling laws apply to § 1983 actions).

The district court properly granted summary judgment on Marroquin’s

access-to-courts claim against defendants Fereandez-Carr and Prince because

Marroquin did not properly exhaust all steps of the grievance process, and he did

not show that administrative remedies were effectively unavailable to him. See

Woodford v. Ngo, 548 U.S. 81, 90 (2006) (“Proper exhaustion [of administrative

remedies] demands compliance with an agency’s deadlines and other critical

procedural rules[.]”); Sapp v. Kimbrell, 623 F.3d 813, 823-24, 826-27 (9th Cir.

2010) (describing limited circumstances where improper screening renders

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administrative remedies unavailable or where exhaustion might otherwise be

excused).

The district court did not abuse its discretion in dismissing without prejudice

Marroquin’s claim against defendant Wilkinson because Marroquin did not serve

Wilkinson or demonstrate that the U.S. Marshal failed to perform her duties. See

Fed. R. Civ. P. 4(m) (district court may dismiss a claim for failure to effect timely

service after providing notice, and absent a showing of good cause for failure to

serve); Thompson v. Maldonado, 309 F.3d 107, 110 (9th Cir. 2002) (standard of

review); Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994) (an incarcerated

pro se plaintiff proceeding in forma pauperis may rely on U.S. Marshal for service

of the summons and complaint, but must provide sufficient information to allow

the marshal to serve the defendant), abrogated in part on other grounds by Sandin

v. Conner, 515 U.S. 472 (1995).

The district court did not abuse its discretion in denying Marroquin’s motion

to appoint counsel because Marroquin did not demonstrate exceptional

circumstances. See Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991) (setting

forth standard of review and requirements for appointment of counsel).

We reject as unsupported Marroquin’s contentions regarding the district

court’s failure to provide him with an opportunity to obtain evidence, failure to

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send him requested forms, failure to rule on motions, and treatment of his Rule 59

motion, or regarding judicial bias and discovery.

AFFIRMED.

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