Jean Max Darbouze v. STEPHAN CHRISTOPHER, Deputy, individual;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JEAN MAX DARBOUZE,
Plaintiff-Appellant,
v.
STEPHAN CHRISTOPHER, Deputy,
individual; et al.,
Defendants-Appellees.
No. 21-55133
D.C. No. 2:18-cv-02964-CJC-JDE
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Cormac J. Carney, District Judge, Presiding
Submitted May 17, 2022**
Before: CANBY, TASHIMA, and NGUYEN, Circuit Judges.
Jean Max Darbouze appeals pro se from the district court’s judgment
dismissing his 42 U.S.C. § 1983 action alleging failure to protect while he was a
pretrial detainee. We have jurisdiction under 28 U.S.C. § 1291. We review de
novo. Hebbe v. Pliler, 627 F.3d 338, 341 (9th Cir. 2010) (dismissal under Fed. R.
* 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).
FILED
JUN 1 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Civ. P. 12(b)(6)); Lukovsky v. City & County of San Francisco, 535 F.3d 1044,
1047 (9th Cir. 2008) (dismissal based on the applicable statute of limitations). We
affirm.
The district court properly dismissed Darbouze’s action as time-barred
because Darbouze filed this action more than two years after his claim accrued and
failed to allege circumstances that justified statutory tolling, equitable tolling or
equitable estoppel. See Soto v. Sweetman, 882 F.3d 865, 870-72 (9th Cir. 2018)
(explaining that “[f]ederal courts in § 1983 actions apply the state statute of
limitations from personal injury claims and borrow the state’s tolling rules,” and
that federal law governs when a claim accrues, which is when a plaintiff knows or
should know of the injury that forms the basis for his cause of action); see also Cal.
Civ. Proc. Code § 335.1 (two-year statute of limitations for personal injury claims);
Lukovsky, 535 F.3d at 1051-52 (discussing grounds for equitable estoppel under
California law); McDonald v. Antelope Valley Cmty. Coll. Dist., 194 P.3d 1026,
1033 (Cal. 2008) (setting forth California’s equitable tolling doctrine); Austin v.
Medicis, 230 Cal. Rptr. 3d 528, 536 (Ct. App. 2018) (holding that a local inmate in
pretrial custody at the time that the cause of action accrues is not entitled to
statutory tolling under Cal. Civ. Proc. Code § 352.1).
The district court did not abuse its discretion by dismissing Darbouze’s
fourth amended complaint without leave to amend because further amendment

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would be futile. See Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034,
1041 (9th Cir. 2011) (setting forth standard of review and explaining that dismissal
without leave to amend is proper if amendment would be futile).
We do not consider matters not specifically and distinctly raised and argued
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).
Darbouze’s request to take judicial notice of his district court filing, set forth
in his opening brief, is denied as unnecessary. Darbouze’s first motion to submit
evidence (Docket Entry No. 17) is denied to the extent that he seeks to submit
documents that were not presented to the district court. Darbouze’s second motion
to submit evidence (Docket Entry No. 22) is construed as a citation of
supplemental authorities under Federal Rule of Appellate Procedure 28(j), and the
case citation is duly noted.
AFFIRMED.

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