Charles Byrd v. Robert McKinney

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 17, 2019
• Docket: 18-17338
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 17 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

CHARLES EDWARD BYRD, No. 18-17338

Plaintiff-Appellant, D.C. No. 2:15-cv-02661-NVW- DMF v.

ROBERT MCKINNEY, Phoenix Police MEMORANDUM* Department Officer #8046; TIMOTHY THIEBAUT, Phoenix Police Department Officer #8008,

Defendants-Appellees,

and

PHOENIX POLICE DEPARTMENT,

Defendant.

Appeal from the United States District Court for the District of Arizona Neil V. Wake, District Judge, Presiding

Submitted December 11, 2019**

Before: WALLACE, CANBY, and TASHIMA, Circuit Judges.

* 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). Charles Edward Byrd, an Arizona state prisoner, appeals pro se from the

district court’s order dismissing his 42 U.S.C. § 1983 action alleging a Fourth

Amendment violation and use of excessive force. We have jurisdiction under 28

U.S.C. § 1291. We review de novo. Erlin v. United States, 364 F.3d 1127, 1130

(9th Cir. 2004) (dismissal on the basis of the statute of limitations); Edwards v.

Marin Park, Inc., 356 F.3d 1058, 1061 (9th Cir. 2004) (dismissal under Fed. R.

Civ. P. 12(b)(6)). We affirm.

The district court properly dismissed Byrd’s action because it is barred by

the applicable two-year statute of limitations. See TwoRivers v. Lewis, 174 F.3d

987, 991 (9th Cir. 1999) (statute of limitations for § 1983 claims in Arizona is two

years); see also Mills v. City of Covina, 921 F.3d 1161, 1166 (9th Cir. 2019)

(plaintiff had “complete and present causes of action” at the time of search and

arrest, and claims accrued at that time); Doe v. Roe, 955 P.2d 951, 964 (Ariz. 1998)

(unsound mind equitable tolling may not be established by “conclusory averments

such as assertions that one was unable to manage daily affairs or understand legal

rights and liabilities” but rather requires plaintiff to set forth “specific facts”).

Byrd’s motion for appointment of counsel is denied.

AFFIRMED.

2 18-17338