                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                          FILED
                            FOR THE NINTH CIRCUIT                           DEC 16 2015

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

DEMONDZA HUNTER,                                 No. 14-56531

              Plaintiff - Appellant,             D.C. No. 3:13-cv-02691-H-JMA

 v.
                                                 MEMORANDUM*
BALLARD; et al.,

              Defendants - Appellees.


                    Appeal from the United States District Court
                      for the Southern District of California
                     Marilyn L. Huff, District Judge, Presiding

                           Submitted December 9, 2015**

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

      Demondza Hunter, a California state prisoner, appeals pro se from the

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

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


          *
             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).
novo. Hamilton v. Brown, 630 F.3d 889, 892 (9th Cir. 2011) (dismissal under 28

U.S.C. § 1915A); Lukovsky v. City & County of San Francisco, 535 F.3d 1044,

1047 (9th Cir. 2008) (dismissal under the applicable statute of limitations); Barren

v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (order) (dismissal under 28

U.S.C. § 1915(e)(2)(B)(ii)). We affirm.

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

benefit of statutory tolling due to incarceration, Hunter failed to file his action

within the applicable statute of limitations. See Canatella v. Van De Kamp, 486

F.3d 1128, 1132-33 (9th Cir. 2007) (forum state’s personal injury statute of

limitations and tolling laws apply to § 1983 actions; federal law determines when a

civil rights claim accrues, which is “when the plaintiff knows or has reason to

know of the injury which is the basis of the action” (citation and internal quotation

marks omitted)); Jones v. Blanas, 393 F.3d 918, 927 (9th Cir. 2004) (for claims

accruing prior to 2003, California’s statute of limitations was one year); see also

Cal. Code Civ. Proc. § 352.1(a) (two-year statutory tolling for incarceration). Even

taking into consideration California’s discovery rule, Hunter’s action was still

untimely.

      The district court did not abuse its discretion in finding that equitable

estoppel did not apply to Hunter’s action because Hunter did not plead with


                                            2                                     14-56531
particularity that defendants fraudulently concealed any facts that prevented Hunter

from timely filing this action. See Lukovsky, 535 F.3d at 1051-52 (setting forth

elements of California’s doctrine of equitable estoppel); Guerrero v. Gates, 442

F.3d 697, 706-07 (9th Cir. 2006) (explaining that a plaintiff “must plead with

particularity the facts which give rise to the claim of fraudulent concealment”

(citation and internal quotation marks omitted)); Leong v. Potter, 347 F.3d 1117,

1121 (9th Cir. 2003) (setting forth standard of review).

      The district court did not abuse its discretion in denying Hunter leave to

amend his fraudulent concealment claim because amendment would have been

futile. See Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (en banc) (setting

forth standard of review and explaining that leave to amend should be given unless

the deficiencies in the complaint cannot be cured by amendment).

      The district court did not abuse its discretion by denying Hunter’s motion for

reconsideration under Federal Rule of Civil Procedure Rule 59(e) because Hunter

failed to establish any ground warranting such relief. See Sch. Dist. No. 1J,

Multnomah Cty., Or., v. ACandS, Inc., 5 F.3d 1255, 1262-63 (9th Cir. 1993)

(setting forth standard of review and grounds for reconsideration).

      AFFIRMED.




                                          3                                     14-56531
