Demond Mimms v. Gail Lewis

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 5 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT

DEMOND MAURICE MIMMS, No. 16-56868

Plaintiff-Appellant, D.C. No. 2:12-cv-10769-DMG-JC

v.
MEMORANDUM*
GAIL LEWIS; OSCAR PENA,

Defendants-Appellees.

Appeal from the United States District Court
for the Central District of California
Dolly M. Gee, District Judge, Presiding

Submitted September 26, 2017**

Before: SILVERMAN, TALLMAN, and N.R. SMITH, Circuit Judges.

Demond Maurice Mimms, a former California state prisoner, appeals pro se

from the district court’s judgment dismissing as time-barred his 42 U.S.C. § 1983

action alleging constitutional claims. We have jurisdiction under 28 U.S.C.

§ 1291. We review de novo. Jones v. Blanas, 393 F.3d 918, 926 (9th Cir. 2004).

*
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 affirm.

The district court properly dismissed Mimms’s action because Mimms filed

his action more than three years after he began serving his prison sentence for his

1998 criminal conviction. See Wallace v. Kato, 549 U.S. 384, 389 (2007) (statute

of limitations begins to run “when the alleged false imprisonment ends” (citation

and internal quotation marks omitted)); Douglas v. Noelle, 567 F.3d 1103, 1109

(9th Cir. 2009) (§ 1983 claims are governed by forum state’s statute of limitations

for personal injury actions); Jones, 393 F.3d at 927 (in California, prior to 2003,

one year statute of limitations applicable to personal injury actions; prisoners

entitled to two years of statutory tolling).

Contrary to Mimms’s contentions, he is not entitled to equitable tolling

because there would be substantial prejudice to defendants in gathering evidence to

defend against Mimms’s claims and because Mimms failed to demonstrate good

faith and reasonable conduct. See Fink v. Shedler, 192 F.3d 911, 916 (9th Cir.

1999) (three-pronged test for equitable tolling in California).

AFFIRMED.

2 16-56868