                                                                            FILED
                             NOT FOR PUBLICATION                            DEC 16 2015

                                                                         MOLLY C. DWYER, CLERK
                      UNITED STATES COURT OF APPEALS                      U.S. COURT OF APPEALS



                              FOR THE NINTH CIRCUIT


JAMISI JERMAINE CALLOWAY,                        No. 14-17431

                Plaintiff - Appellant,           D.C. No. 1:11-cv-00803-DLB

 v.
                                                 MEMORANDUM*
A. K. SCRIBNER, Warden at C.S.A.T.F;
et al.,

                Defendants - Appellees.


                     Appeal from the United States District Court
                        for the Eastern District of California
                    Dennis L. Beck, Magistrate Judge, Presiding**

                            Submitted December 9, 2015***

Before:         WALLACE, RAWLINSON, and IKUTA, Circuit Judges.

      Jamisi Jermaine Calloway, a California state prisoner, appeals pro se from

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

          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
            The parties consented to proceed before a magistrate judge. See 28
U.S.C. § 636(c).
          ***
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
deliberate indifference to his serious medical needs. We have jurisdiction under 28

U.S.C. § 1291. We review de novo a dismissal on the basis of a statute of

limitations and under Fed. R. Civ. P. 12(b)(6). Cholla Ready Mix, Inc. v. Civish,

382 F.3d 969, 973 (9th Cir. 2004). We affirm.

      The district court properly dismissed Calloway’s action because, even with

the benefit of statutory tolling due to his incarceration, Calloway failed to file his

action within the applicable statute of limitations, and he failed to demonstrate he

was entitled to equitable tolling. See Cal. Civ. Proc. Code §§ 335.1, 352.1 (two-

year statute of limitations for personal injury claims; two-year tolling period due to

incarceration); Canatella v. Van De Kamp, 486 F.3d 1128, 1132 (9th Cir. 2007)

(forum state’s personal injury statute of limitations and tolling laws apply to

§ 1983 actions); see also Fink v. Shedler, 192 F.3d 911, 916-17 (9th Cir. 1999)

(three-pronged test for equitable tolling in California; plaintiff was not entitled to

equitable tolling where “actions were not a reasonable and good faith effort to

pursue his claims in an alternate forum or case” (citation and internal quotation

marks omitted)); Thomas v. Gilliland, 115 Cal. Rptr. 2d 520, 524 (Ct. App. 2002)

(“In the absence of a statute, a party cannot deduct from the period of the statute of

limitations applicable to his case the time consumed by the pendency of an action




                                            2                                     14-17431
in which he sought to have the matter adjudicated, but which was dismissed

without prejudice to him.” (citation and internal quotation marks omitted)).

       Contrary to Calloway’s contention, the statute of limitations was not tolled

based on his alleged incapacity because his incapacity arose after the accrual of his

cause of action. See Cal. Civ. Proc. Code § 352(a); Henein v. Saudi Arabian

Parsons Ltd., 818 F.2d 1508, 1515 (9th Cir. 1987) (statute of limitations was not

tolled under California law where plaintiff “does not allege that he was

incapacitated at the time the cause of action accrued”).

       We reject Calloway’s contention that his claims are not time barred due to

his pro se status.

       AFFIRMED.




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