                                                                           FILED
                            NOT FOR PUBLICATION                             APR 27 2012

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



PETER ERIKSEN, a single man; MARY                No. 09-35841
ERIKSEN, a single woman,
                                                 D.C. No. 2:09-cv-00082-EFS
              Plaintiffs - Appellants,

  v.                                             MEMORANDUM *

RONAL SERPAS, Chief, Washington
State Patrol; KITTITAS COUNTY, a
municipal corporation; CITY OF CLE
ELUM, a municipal corporation; GENE
DANA, Kittitas County Sheriff; JOHN
DOE, Squad Supervisor; BRENNEN
MILLOY, Chief of Police, City of Cle
Elum; JOHN DOE, Administrator, City of
Cle Elum; WILLIAM LARSON, District
Commander for Sixth District Washington
State Patrol; PAUL WOODSIDE, #398,
Washington State Patrolman or
Dispatcher; DAVID SNYDER, #1087,
Washington State Patrolman or
Dispatcher; DAVID STANDISH, #930,
Washington State Patroman or Dispatcher;
JOHN KOCH, Washington State
Patrolman or Dispatcher; JOHN DOES,
Washington State Patrolman or
Dispatcher; JAMES WOODY, #S19,
Kittitas County Deputy Sheriff; MARK


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
RICKY, #S20, Kittitas County Deputy
Sheriff; JOHN DOES, Kittitas County
Deputy Sheriffs,

              Defendants - Appellees.



                    Appeal from the United States District Court
                      for the Eastern District of Washington
                     Edward F. Shea, District Judge, Presiding

                        Argued and Submitted April 16, 2012
                             San Francisco, California

Before: McKEOWN and N.R. SMITH, Circuit Judges, and NGUYEN, District
Judge.**

      Peter and Mary Eriksen (“Appellants” or “the Eriksens”) appeal from the

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

excessive force.

      We have jurisdiction under 28 U.S.C. § 1291. We review de novo the

district court’s dismissal based on the applicable statute of limitations. Lukovsky v.

City & Cnty. of San Francisco, 535 F.3d 1044, 1047 (9th Cir. 2008). See Huynh v.

Chase Manhattan Bank, 465 F.3d 992, 1003 (9th Cir. 2006) (“Though we review

de novo the district court's determinations with respect to the statute of limitations,



       **
             The Honorable Jacqueline H. Nguyen, District Judge for the U.S.
District Court for Central California, sitting by designation.

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we review for abuse of discretion its conclusions regarding the applicability of

equitable tolling.”). We review for an abuse of discretion the district court’s denial

of leave to amend. Lipton v. PathoGenesis Corp., 284 F.3d 1027, 1038 (9th Cir.

2002). We affirm.

      The district court properly dismissed the action because the Eriksens filed it

well after the applicable three-year statute of limitations period had run. See

Bagley v. CMC Real Estate Corp., 923 F.2d 758, 760 (9th Cir. 1991) (“[T]he

appropriate statute of limitations in a § 1983 action is the three-year limitation of

Wash. Rev. Code § 4.16.080(2).”).


      In addition, the Eriksens have failed to establish a basis for equitable tolling.

“For actions under 42 U.S.C. § 1983, courts apply . . . the forum state’s law

regarding tolling, including equitable tolling, except to the extent [the law] is

inconsistent with federal law.” Jones v. Blanas, 393 F.3d 918, 927 (9th Cir. 2004)

(citation omitted). Thus, Washington law applies.


      The current predicates for equitable tolling in civil cases under Washington

law are not clear. See In re Carter, 172 Wash. 2d 917, 928–29 (2011) (en banc); In

re Bonds, 165 Wash. 2d 135, 141 (2008) (en banc). However, it is clear, under any

Washington articulation of predicates, that a plaintiff must exercise diligence in the



                                           3
pursuit of his case before he is entitled to equitable tolling. See Carter, 172 Wash.

2d at 928–29; Bonds, 165 Wash. 2d at 141. Here, the Eriksens have not exercised

such diligence. They failed to properly effect service or otherwise comply with

Federal Rule of Civil Procedure 4(m); they failed to request more time for service;

they failed to ask for reconsideration of the first district court judgment; and they

failed to appeal the first judgment by the district court, instead filing a new action.

Thus, the Eriksens are not entitled to equitable tolling.


      Finally, the district court did not abuse its discretion by dismissing the action

without leave to amend because it was “absolutely clear that the deficiencies of the

complaint could not be cured by amendment.” Weilburg v. Shapiro, 488 F.3d

1202, 1205 (9th Cir. 2007); see also Saul v. United States, 928 F.2d 829, 843 (9th

Cir. 1991).

      The Eriksens’ remaining contentions are unpersuasive.

      AFFIRMED.




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