                                                                             FILED
                             NOT FOR PUBLICATION                              AUG 17 2011

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




                             FOR THE NINTH CIRCUIT



JERARDO RODRIGUEZ,                               No. 10-35530

               Plaintiff - Appellant,            D.C. No. 3:08-cv-00290-ST

  v.
                                                 MEMORANDUM *
MAX WILLIAMS, Director of ODOC; et
al.,

               Defendants - Appellees.



                   Appeal from the United States District Court
                            for the District of Oregon
                   Michael W. Mosman, District Judge, Presiding

                             Submitted August 11, 2011 **

Before:        THOMAS, SILVERMAN, and CLIFTON, Circuit Judges.

       Former Oregon state prisoner Jerardo Rodriguez appeals pro se from the

district court’s summary judgment in his 42 U.S.C. § 1983 action alleging claims

related to the conditions of his prior confinement and subsequent parole


          *
             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).
proceedings. We have jurisdiction under 28 U.S.C. § 1291. We review de novo

the district court’s decision to grant summary judgment. Toguchi v. Chung, 391

F.3d 1051, 1056 (9th Cir. 2004). We review for an abuse of discretion the district

court’s decision to permit a party to amend its answer. Owens v. Kaiser Found.

Health Plan, Inc., 244 F.3d 708, 712 (9th Cir. 2001). We affirm.

      The district court properly granted summary judgment as to Rodriguez’s

claims regarding the conditions of his confinement because these claims were

barred by the applicable two-year statute of limitations, and Rodriguez failed to

establish circumstances warranting equitable tolling. See Alameda Books, Inc. v.

City of Los Angeles, 631 F.3d 1031, 1041 (9th Cir. 2011) (§ 1983 limitations

period is the personal injury statute of limitations of the state where the claims

arose); see also Or. Rev. Stat. § 12.110(1) (personal injury claims subject to

two-year statute of limitations); Dearmond v. Dep’t of Revenue, 14 Or. Tax 112,

117 (1997) (equitable tolling applies where claimant files defective pleading

during statutory period or is induced by adversaries into missing a filing deadline);

cf. also Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002) (“[E]quitable

tolling is unavailable in most cases and is appropriate only if extraordinary

circumstances beyond a prisoner’s control make it impossible to file a [federal

habeas] petition on time.” (citation and internal quotation marks omitted)).


                                           2                                     10-35530
      The district court properly granted summary judgment as to Rodriguez’s

remaining claims against the Oregon Board of Parole and Post Prison Supervision

because these defendants are shielded by Eleventh Amendment immunity, and did

not waive this defense by failing to raise it initially in their summary judgment

motion. See Cal. Franchise Tax Bd. v. Jackson, 184 F.3d 1046, 1048-49 (9th Cir.

1999) (Eleventh Amendment’s jurisdictional bar to suing a state or its agencies in

federal court can be raised at any time by a party or the court sua sponte).

      The district court did not abuse its discretion in granting defendants leave to

amend their answer to add a statute of limitations defense because defendants

notified both Rodriguez and his former counsel of their intent to raise the defense

early on, and Rodriguez was not prejudiced by the amendment. See Fed. R. Civ. P.

15(a)(2) (court should “freely give leave [to amend] when justice so requires”);

Rivera v. Anaya, 726 F.2d 564, 566 (9th Cir. 1984) (absent prejudice to plaintiff,

defendant could raise the limitations defense first during summary judgment).

      Rodriguez’s remaining contentions are unpersuasive.

      AFFIRMED.




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