NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS AUG 24 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT BARRY L. BROOKINS, No. 21-16578

Plaintiff-Appellant, D.C. No. 1:18-cv-00645-DAD-GSA v. RAJENDRA DWIVEDI, MD, MEMORANDUM*

Defendant-Appellee.

Appeal from the United States District Court

for the Eastern District of California

Dale A. Drozd, District Judge, Presiding

Submitted August 17, 2022** Before: S.R. THOMAS, PAEZ, and LEE, Circuit Judges.

California state prisoner Barry L. Brookins appeals pro se from the district court’s judgment dismissing as untimely his 42 U.S.C. § 1983 action alleging deliberate indifference to his serious medical needs. We have jurisdiction under 28 U.S.C. § 1291. We review de novo. Pouncil v. Tilton, 704 F.3d 568, 574 (9th Cir.

*

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). 2012) (dismissal of an action as time-barred); Thompson v. Paul, 547 F.3d 1055, 1058 (9th Cir. 2008) (dismissal under Fed. R. Civ. P. 12(b)(6)). We affirm.

The district court properly dismissed Brookins’s action because Brookins failed to file his action within the statute of limitations. See Wallace v. Kato, 549 U.S. 384, 387, 394 (2007) (federal courts in § 1983 actions apply the state statute of limitations and borrow applicable tolling provisions from state law); see also Cal. Civ. Proc. §§ 335.1, 352.1(a) (setting forth two-year statute of limitations for personal injury claims and a two-year maximum statutory tolling due to imprisonment); Cervantes v. City of San Diego, 5 F.3d 1273, 1275-77 (9th Cir. 1993) (stating California’s three-pronged test for equitable tolling and explaining that dismissal may be appropriate when it is evident from the face of the complaint that equitable tolling is unavailable as a matter of law).

AFFIRMED.

2 21-16578