                                                                            FILED
                             NOT FOR PUBLICATION                               JAN 03 2013

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




                             FOR THE NINTH CIRCUIT



CLAUDELL EARL MARTIN,                            No. 11-15830

               Plaintiff - Appellant,            D.C. No. 1:08-cv-00415-LJO-SMS

  v.
                                                 MEMORANDUM *
JEANNE S. WOODFORD, Director of
Department of Corrections; et al.,

               Defendants - Appellees.



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

                           Submitted December 19, 2012 **

Before:        GOODWIN, WALLACE, and FISHER, Circuit Judges.

       Claudell Earl Martin, a California state prisoner, appeals pro se from the

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

indifference to his serious medical needs, and retaliation for filing grievances. We


          *
             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).
have jurisdiction under 28 U.S.C. § 1291. We review de novo the district court’s

dismissal on the basis of the statute of limitations and under Federal Rule of Civil

Procedure 12(b)(6), Cholla Ready Mix, Inc. v. Civish, 382 F.3d 969, 973 (9th Cir.

2004), and its 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 whether

to apply equitable estoppel and equitable tolling. Leong v. Potter, 347 F.3d 1117,

1121 (9th Cir. 2003). We affirm.

      The district court properly dismissed Martin’s deliberate indifference claim

against McGuiness on the basis of the statute of limitations because Martin failed

to file his complaint within two years of the final rejection of his appeal of his

grievance. See Cal. Civ. Proc. Code § 335.1 (two-year statute of limitations for

personal injury claims); TwoRivers v. Lewis, 174 F.3d 987, 991-92 (9th Cir. 1999)

(in § 1983 actions, federal courts borrow from the forum state the statute of

limitations applicable to personal injury claims and tolling rules, but federal law

determines when a claim accrued; under federal law, a claim accrues when the

plaintiff knows or has reason to know of the injury which is the basis of the

action); see also Brown v. Valoff, 422 F.3d 926, 943 (9th Cir. 2005) (“[T]he

applicable statute of limitations must be tolled while a prisoner completes the

mandatory exhaustion process.”). Contrary to Martin’s contention, equitable


                                           2                                      11-15830
estoppel does not apply because no prison official prevented Martin from bringing

his claim, or misrepresented or concealed information pertinent to the claim. See

Lukovsky v. City & County of San Francisco, 535 F.3d 1044, 1051-52 (9th Cir.

2008) (discussing requirements for equitable estoppel under California law).

      The district court properly granted summary judgment for Patel on Martin’s

deliberate indifference claim because Martin failed to raise a genuine dispute of

material fact as to whether Patel knew of and disregarded an excessive risk to his

heart condition. See Toguchi, 391 F.3d at 1057 (a prison official is deliberately

indifferent only if he knows of and disregards an excessive risk to an inmate’s

health).

      The district court properly granted summary judgment for Fisher and

Thomas on Martin’s retaliation claim because Martin failed to raise a triable

dispute as to whether these defendants took adverse action against him.

See Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 1995) (discussing

elements of a retaliation claim).

      The district court properly granted summary judgment for Henry and Flory

on Martin’s retaliation claim because Martin failed to raise a triable dispute as to

whether these defendants acted with retaliatory intent, and whether his transfer did

not advance a legitimate, penological interest. See id.; see also Pratt v. Rowland,


                                           3                                    11-15830
65 F.3d 802, 808 (9th Cir. 1995) (concluding that timing was insufficient to

establish retaliatory intent where there was no evidence that the defendants had

knowledge of the plaintiff’s protected activity).

      The district court did not abuse its discretion by extending the time for

defendants to file a dispositive motion because the length of the delay was brief,

defendants gave several reasons for their requests, and there was no evidence of

bad faith or prejudice. See Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1087

(9th Cir. 2002) (discussing the standard of review and a district court’s broad

discretion in supervising the pretrial phase of litigation); see also Pincay v.

Andrews, 389 F.3d 853, 855-56 (9th Cir. 2004) (explaining that an attorney’s

calendaring error does not render the neglect inexcusable).

      Martin’s contention that the magistrate judge was biased against him is

rejected.

      AFFIRMED.




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