                                                                            FILED
                           NOT FOR PUBLICATION                              MAR 29 2016

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



                            FOR THE NINTH CIRCUIT


STEPHEN SCOTT SMILLIE,                           No. 14-15376

              Plaintiff - Appellant,             D.C. No. 2:11-cv-01320-NVW

 v.
                                                 MEMORANDUM*
COUNTY OF MARICOPA; JOSEPH M.
ARPAIO, Sheriff; MERRICK KOTAPKA,
Registered Nurse; DONNA BUNKERS,
Physician’s Assistant; C. BINDU,
Registered Nurse; MICHELLE
KALMAN, Physician’s Assistant; C.
MUHAMMED, Registered Nurse; RAMA
BAJALI; D. RAUCH, Officer; J. HOGUE,
Officer,

              Defendants - Appellees.


                    Appeal from the United States District Court
                             for the District of Arizona
                      Neil V. Wake, District Judge, Presiding

                     Argued and submitted February 11, 2016
                            San Francisco, California

Before: SILVERMAN, FISHER, and TALLMAN, Circuit Judges.

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      Appellant Stephen Smillie appeals the Arizona District Court’s dismissal of

his 42 U.S.C. § 1983 and state law claims alleging unlawful detention, violation of

the Eighth Amendment for failure to provide adequate medical care, negligence

and aggravated negligence. We have jurisdiction pursuant to 28 U.S.C. § 1291 and

we affirm.

      1. The district court did not err in dismissing Smillie’s third amended

complaint, replacing John Does with named individual Defendants, as barred by

the statute of limitations. There is no evidence in the record satisfying the

requirements of relation back. See Fed. R. Civ. P. 15(c); Miguel v. Country

Funding Corp., 309 F.3d 1161, 1165 (9th Cir. 2002) (as amended). Smillie did not

advance any relation back argument before the district court, and conceded as

much at oral argument. By assuming relation back was automatic, Smillie offered

no proof to trigger the provision and failed to show that Defendants were provided

notice of the complaint and were not prejudiced by the amendment. See Fed. R.

Civ. P. 15(c)(1)(C); Miguel, 309 F.3d at 1165 (holding that plaintiff’s amended

complaint could not relate back because there was “no evidence in the record that

the [defendant] had notice of the suit within the 120 day period required by Rule

4(m).”). The district court, therefore, did not err in dismissing Smillie’s untimely




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third amended complaint because the record does not establish his entitlement to

relation back under Rule 15(c).

       Moreover, the district court did not abuse its discretion in denying Smillie

the chance to further amend his complaint. See Lopez v. Smith, 203 F.3d 1122,

1130 (9th Cir. 2000) (en banc) (reviewing a district court dismissal of claims

without leave to amend for abuse of discretion). The district court gave Smillie

three chances to amend his complaint and provided guidance on how to fix it.

Smillie paid little heed to any of the court’s guidance or dispositive orders. After

two-and-a-half years in district court and four complaints, the district court

reasonably determined there was no justification for further amendment and delay.

       2. Smillie’s argument that equitable tolling applies is waived as it was not

raised in the district court below. See A-1 Ambulance Serv., Inc. v. Cty. of

Monterey, 90 F.3d 333, 338 (9th Cir. 1996) (“Generally, in order for an argument

to be considered on appeal, the argument must have been raised sufficiently for the

trial court to rule on it.”).

       AFFIRMED.




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