Jean Darbouze v. Stephan Christopher

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 1, 2022
• Docket: 21-55133
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 1 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JEAN MAX DARBOUZE, No. 21-55133

Plaintiff-Appellant, D.C. No. 2:18-cv-02964-CJC-JDE

v. MEMORANDUM* STEPHAN CHRISTOPHER, Deputy, individual; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Central District of California Cormac J. Carney, District Judge, Presiding

Submitted May 17, 2022**

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

Jean Max Darbouze appeals pro se from the district court’s judgment

dismissing his 42 U.S.C. § 1983 action alleging failure to protect while he was a

pretrial detainee. We have jurisdiction under 28 U.S.C. § 1291. We review de

novo. Hebbe v. Pliler, 627 F.3d 338, 341 (9th Cir. 2010) (dismissal under Fed. R.

* 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). Civ. P. 12(b)(6)); Lukovsky v. City & County of San Francisco, 535 F.3d 1044,

1047 (9th Cir. 2008) (dismissal based on the applicable statute of limitations). We

affirm.

The district court properly dismissed Darbouze’s action as time-barred

because Darbouze filed this action more than two years after his claim accrued and

failed to allege circumstances that justified statutory tolling, equitable tolling or

equitable estoppel. See Soto v. Sweetman, 882 F.3d 865, 870-72 (9th Cir. 2018)

(explaining that “[f]ederal courts in § 1983 actions apply the state statute of

limitations from personal injury claims and borrow the state’s tolling rules,” and

that federal law governs when a claim accrues, which is when a plaintiff knows or

should know of the injury that forms the basis for his cause of action); see also Cal.

Civ. Proc. Code § 335.1 (two-year statute of limitations for personal injury claims);

Lukovsky, 535 F.3d at 1051-52 (discussing grounds for equitable estoppel under

California law); McDonald v. Antelope Valley Cmty. Coll. Dist., 194 P.3d 1026,

1033 (Cal. 2008) (setting forth California’s equitable tolling doctrine); Austin v.

Medicis, 230 Cal. Rptr. 3d 528, 536 (Ct. App. 2018) (holding that a local inmate in

pretrial custody at the time that the cause of action accrues is not entitled to

statutory tolling under Cal. Civ. Proc. Code § 352.1).

The district court did not abuse its discretion by dismissing Darbouze’s

fourth amended complaint without leave to amend because further amendment

2 21-55133 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 dismissal

without leave to amend is proper if amendment would be futile).

We do not consider matters not specifically and distinctly raised and argued

in the opening brief, or arguments and allegations raised for the first time on

appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

Darbouze’s request to take judicial notice of his district court filing, set forth

in his opening brief, is denied as unnecessary. Darbouze’s first motion to submit

evidence (Docket Entry No. 17) is denied to the extent that he seeks to submit

documents that were not presented to the district court. Darbouze’s second motion

to submit evidence (Docket Entry No. 22) is construed as a citation of

supplemental authorities under Federal Rule of Appellate Procedure 28(j), and the

case citation is duly noted.

AFFIRMED.

3 21-55133