                                                                           FILED
                            NOT FOR PUBLICATION                            MAY 22 2013

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



                             FOR THE NINTH CIRCUIT


THOMAS BODNAR,                                   No. 12-56109

               Plaintiff - Appellant,            D.C. No. 5:11-cv-00092-DSF-OP

  v.
                                                 MEMORANDUM*
RIVERSIDE COUNTY SHERIFF’S
DEPARTMENT; et al.,

               Defendants - Appellees.


                    Appeal from the United States District Court
                       for the Central District of California
                     Dale S. Fischer, District Judge, Presiding

                              Submitted May 14, 2013**

Before:        LEAVY, THOMAS, and MURGUIA, Circuit Judges.

       California state prisoner Thomas Bodnar appeals pro se from the district

court’s judgment dismissing as time-barred his 42 U.S.C. § 1983 action alleging

excessive force during his arrest. We have jurisdiction under 28 U.S.C. § 1291.


          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
We review de novo the district court’s dismissal on the basis of the applicable

statute of limitations and, where the relevant facts are undisputed, its decision

whether to apply equitable tolling. Jones v. Blanas, 393 F.3d 918, 926 (9th Cir.

2004). We affirm.

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

Bodnar filed this action more than four years after the alleged use of excessive

force. See Cal. Civ. Proc. Code §§ 335.1, 352.1(a) (two-year statute of limitations

for personal injury claims; limitations period may be tolled for an additional two

years for prisoners); Jones, 393 F.3d at 927 (“For actions under 42 U.S.C. § 1983,

courts apply the forum state’s statute of limitations for personal injury actions.”).

      The district court properly declined to apply equitable tolling because

defendants were not provided timely notice of Bodnar’s claims given that Bodnar

voluntarily dismissed his prior action before serving any of the defendants in that

action. See Cervantes v. City of San Diego, 5 F.3d 1273, 1275 (9th Cir. 1993)

(explaining the three-pronged test for equitable tolling in California and noting that

“[t]he doctrine of equitable tolling focuses on the effect of the prior claim in

warning the defendants in the subsequent claim of the need to prepare a defense”);

Fink v. Shedler, 192 F.3d 911, 914 (9th Cir. 1999) (federal courts apply forum

state’s equitable tolling rules when not inconsistent with federal law).


                                           2                                       12-56109
      We deny Bodnar’s opposed motion to amend his opening brief, filed on

February 13, 2013, and his motion to stay the appeal, filed on January 15, 2013.

      AFFIRMED.




                                         3                                   12-56109
