Barbara Brown v. Alex Collins

NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS MAY 26 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

BARBARA E. BROWN, No. 20-55350

Plaintiff-Appellant, D.C. No. 5:18-cv-01418-CJC-E

v.

MEMORANDUM*

ALEX COLLINS, Sheriff Deputy,

individual and official capacity,

Defendant-Appellee,

and

STATE OF CALIFORNIA DEPARTMENT

OF MOTOR VEHICLES; et al.,

Defendants.

Appeal from the United States District Court

for the Central District of California

Cormac J. Carney, District Judge, Presiding

Submitted May 18, 2021**

Before: CANBY, FRIEDLAND, and VANDYKE, Circuit Judges.

*

This disposition is not appropriate for publication and is not precedent

except as provided by Ninth Circuit Rule 36-3.

**

The panel unanimously concludes this case is suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2).

Barbara E. Brown appeals pro se from the district court’s summary

judgment in her 42 U.S.C. § 1983 action alleging federal and state law claims. We

have jurisdiction under 28 U.S.C. § 1291. We review de novo. Shelley v. Geren,

666 F.3d 599, 604 (9th Cir. 2012). We affirm.

The district court properly granted summary judgment on Brown’s excessive

force claim against defendant Collins because Brown failed to bring this claim

within the applicable statute of limitations or establish any basis for tolling. See

Jones v. Blanas, 393 F.3d 918, 927 (9th Cir. 2004) (§ 1983 claims are governed by

the forum state’s statute of limitations for personal injury claims, including state

law regarding tolling); see also Cal. Civ. Proc. Code § 335.1 (two-year statute of

limitations for personal injury claims); Lukovsky v. City & County of San

Francisco, 535 F.3d 1044, 1048 (9th Cir. 2008) (under federal law, which

determines accrual, “a claim accrues 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)); Vaughn v. Teledyne, Inc., 628 F.2d 1214, 1218 (9th Cir. 1980)

(plaintiff has burden to prove facts that show tolling).

The district court properly dismissed Brown’s remaining claims in the

operative fourth amended complaint for failure to comply with Federal Rule of

Civil Procedure 8 because, despite opportunities to amend, Brown failed to provide

“fair notice” of what each “claim is and the grounds upon which it rests.” Bell Atl.

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Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citation and internal quotation marks

omitted); Pickern v. Pier 1 Imports (U.S.), Inc., 457 F.3d 963, 968 (9th Cir. 2006)

(standard of review); McHenry v. Renne, 84 F.3d 1172, 1178 (9th Cir. 1996)

(complaint does not comply with Rule 8 if “one cannot determine from the

complaint who is being sued, for what relief, and on what theory”).

The district court did not abuse its discretion by denying Brown’s motions

for appointment of counsel because Brown failed to demonstrate exceptional

circumstances. See Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (setting

forth standard of review and “exceptional circumstances” requirement for

appointment of counsel).

The district court did not abuse its discretion by denying Brown’s motions to

disqualify the district judge because Brown failed to establish extrajudicial bias or

prejudice. See United States v. McTiernan, 695 F.3d 882, 891-92 (9th Cir. 2012)

(setting forth standard of review and circumstances requiring disqualification).

We reject as unsupported by the record Brown’s contentions that the district

court engaged in improper conduct.

To the extent Brown makes contentions regarding her prior federal actions,

we do not consider such contentions because they are outside the scope of this

appeal.

We do not consider matters not specifically and distinctly raised and argued

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in the opening brief, or arguments and allegations raised for the first time on

appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

AFFIRMED.

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