Richard Jenkins v. Kenneth Little

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 25 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

RICHARD ANTHONY JENKINS, No. 20-35195

Plaintiff-Appellant, D.C. No. 1:19-cv-00247-DCN

v. MEMORANDUM* KENNETH LITTLE, M.D.,

Defendant-Appellee.

Appeal from the United States District Court for the District of Idaho David C. Nye, District Judge, Presiding

Submitted March 16, 2021**

Before: GRABER, R. NELSON, and HUNSAKER, Circuit Judges.

Oregon state prisoner Richard Anthony Jenkins appeals pro se from the

district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging deliberate

indifference to his serious medical needs. We have jurisdiction under 28 U.S.C.

§ 1291. We review de novo. Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir.

* 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). 2012) (dismissal under 28 U.S.C. § 1915(e)(2)(B)(ii)); Resnick v. Hayes, 213 F.3d

443, 447 (9th Cir. 2000) (dismissal under 28 U.S.C. § 1915A). We affirm.

The district court properly dismissed Jenkins’s action because his claim was

barred by the statute of limitations. See Idaho Code § 5-219(4) (two-year statute of

limitations for personal injury actions); Soto v. Sweetman, 882 F.3d 865, 871-72

(9th Cir. 2018) (state tolling and statute of limitations for personal injury claims

apply to § 1983 actions; 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). Jenkins’s contention that equitable tolling or equitable estoppel should

apply is without merit. See Wilhelm v. Frampton, 158 P.3d 310, 312 (Idaho 2007)

(Idaho courts cannot equitably toll statute of limitations); J.R. Simplot Co. v.

Chemetics Int’l Inc., 887 P.2d 1039, 1041 (Idaho 1994) (equitable estoppel is

available in Idaho only if plaintiff lacks actual or constructive knowledge of the

truth), abrogated on other grounds by Day as Tr. of Tr. B of Donald M. Day &

Marjorie D. Day Family Tr. v. Transportation Dep’t, 458 P.3d 162 (Idaho 2020).

AFFIRMED.

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