                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        NOV 7 2016
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT



TIMOTHY WAYNE ARNETT,                            No. 15-15225

                 Plaintiff-Appellant,            D.C. No. 1:13-cv-02066-LJO-MJS

  v.
                                                 MEMORANDUM*
WALGREEN COMPANY, INC.,

                 Defendant-Appellee.

                   Appeal from the United States District Court
                      for the Eastern District of California
                   Lawrence J. O’Neill, Chief Judge, Presiding

                           Submitted October 25, 2016**

Before:      LEAVY, GRABER, and CHRISTEN, Circuit Judges.

       Timothy Wayne Arnett appeals pro se from the district court’s judgment

dismissing his diversity action alleging medical malpractice and wrongful death

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

dismissal for failure to state a claim under Federal Rule of Civil Procedure


       *
             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).
12(b)(6), Edwards v. Marin Park, Inc., 356 F.3d 1058, 1061 (9th Cir. 2004), and

we affirm.

      The district court properly dismissed Arnett’s action because it was barred

by the three-year statute of limitations and Arnett failed to plead facts

demonstrating that tolling should apply. See Cal. Civ. Proc. Code § 340.5 (setting

forth three-year statute of limitations and reasons why it may be tolled); see also

Belton v. Bowers Ambulance Serv., 978 P.2d 591, 593 (Cal. 1999) (“No tolling

provision outside of [those identified in section 340.5] can extend the three-year

maximum time period that section 340.5 establishes.”).

      The district court did not abuse its discretion in dismissing Arnett’s

complaint without leave to amend because amendment 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 “a district court may dismiss

without leave where . . . amendment would be futile”).

      Arnett’s contention that the magistrate judge erred by not informing him of

the statute of limitations issue is unpersuasive.

      Arnett’s pending motions are denied.

      AFFIRMED.




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