Ramon Dy v. Boru Nale, M.d.;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RAMON DY,
Plaintiff-Appellant,
v.
BORU NALE, M.D.; et al.,
Defendants-Appellees.
No. 18-15241
D.C. No. 2:16-cv-03924-ROS
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
Roslyn O. Silver, District Judge, Presiding
Argued and Submitted May 16, 2019
San Francisco, California
Before: WALLACE, IKUTA, and CHRISTEN, Circuit Judges.
Ramon Dy is a California state prisoner incarcerated in Chowchilla, located
in the Eastern District of California. Dy was previously confined in Arizona at a
private prison operated by Corrections Corporation of America (CCA), during
which time he alleges his doctors delayed treating his meningioma, ultimately
causing severe, permanent injury. Dy brought this action in the Eastern District of
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
FILED
JUN 24 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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California in 2016 against his treating physicians, and a magistrate judge there
transferred the action to the District of Arizona for improper venue. The district
court subsequently dismissed Dy’s complaint as untimely, applying Arizona law.
Dy timely appealed. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Dy’s primary argument on appeal is that the district court erred in its
calculation of the relevant limitations periods because his claims would have been
timely under California law. Dy argues that under the California Code of Civil
Procedure, he is entitled to two years of tolling due to his incarceration. See Cal.
Code Civ. P. § 352.1(a). Dy does not dispute that the district court correctly held
that his claims were untimely under Arizona law.
Dy’s argument fails because the district court correctly applied Arizona law,
not California law. When an action is transferred for improper venue, rather than
for convenience, the choice-of-law rules of the forum district apply. Nelson v. Int’l
Paint Co., 716 F.2d 640, 643 (9th Cir. 1983). As the district court was bound to
apply Arizona law for both Dy’s 1983 claims, see Jones v. Blanas, 393 F.3d 918,
927 (9th Cir. 2004), and his medical malpractice claims, see Nelson, 716 F.2d at
643, the district court correctly applied Arizona’s statutes of limitations to Dy’s
claims. Venue was not proper in the Eastern District of California because “a
substantial part of the events or omissions giving rise to” his claims did not occur
in that district; all of the alleged deliberate indifference and medical malpractice

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occurred in Arizona. See 28 U.S.C. § 1391(b)(2). Further, Dy’s challenge to the
magistrate judge’s transfer order for lack of magistrate jurisdiction was not raised
to either district court and is therefore forfeited. See Simpson v. Lear Astronics
Corp., 77 F.3d 1170, 1175 (9th Cir. 1996) (“[A] party who fails to object to a
magistrate judge’s nondispositive order is barred from pursuing appellate review of
that order”). Moreover, even if not forfeited the challenge is meritless because the
magistrate judge had authority to enter the nondispositive transfer order. See Flam
v. Flam, 788 F.3d 1043, 1046-47 (9th Cir. 2015).
Dy nonetheless attempts to argue that California law applies by invoking the
Interstate Corrections Compact (ICC). The ICC guarantees that:
All inmates who may be confined in an institution pursuant to the
provisions of this compact shall be treated in a reasonable and humane
manner and shall be treated equally with such similar inmates of the
receiving state as may be confined in the same institution. The fact of
confinement in a receiving state shall not deprive any inmate so
confined of any legal rights which said inmate would have had if
confined in an appropriate institution of the sending state.
ARS § 31-491; Cal. Penal Code § 11189; ICC Art. IV, § (e). However, even if an
out-of-state statute of limitations could be described as a “legal right[] which said
inmate would have had if confined in an appropriate institution of [California],”
the ICC also provides that it is “entered into by this state with any and all other
states legally joining therein.” ARS § 31-491; see also Cal. Penal Code § 11189
(“The [ICC] is hereby enacted into law and entered into by this state with any other

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states legally joining therein”). By the ICC’s plain language, CCA is not a “state,”
and Article IV therefore does not apply.
AFFIRMED.

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Dy v. Nale, No. 18-15241
CHRISTEN, Circuit Judge, concurring:
I concur in the result reached by the majority based on the arguments raised.
I write separately to explain that I do not read the majority’s memorandum
disposition to conclude that the Interstate Corrections Compact (ICC) cannot apply
to a private prison as a matter of law. In my view, the majority correctly decides
that Dy did not meet his burden to show the ICC applies to the contract in this case,
between the Corrections Corporation of America (CCA) and the California
Department of Corrections and Rehabilitation (CDCR), because the parties did not
expressly incorporate the ICC in their contract and there is inadequate indication in
the record that the parties intended for the ICC to apply.
Dy cannot rely on the ICC to bring the claims currently on appeal, but in his
opposition to defendants’ motion to dismiss, he asked the district court in Arizona
for “leave to amend to add a breach of contract claim based on [Dy’s] status as a
third party beneficiary of the contract between CDCR and CCA.” It appears that
Dy did not file a contract claim against CDCR or any California defendant in the
Arizona action prior to the expiration of Arizona’s four-year statute of limitations.
Dy did not need permission from the District of Arizona to file a state breach
of contract claim against CDCR in California based on a third party beneficiary
theory, but we cannot tell from our record whether he has done so. The contract
FILED
JUN 24 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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between CDCR and CCA requires CCA to provide essential health services and
meet certain standards of care, and Dy’s theory is that CCA failed to perform its
contractual duties. Dy concedes that his claims related to the allegedly deficient
medical care accrued on November 13, 2013, but the statute of limitations in
California for contract claims is generally four years, see Cal. Civ. Proc. Code
§ 337, and California tolls the statute of limitations for two years for prisoners
sentenced to terms less than life, see Cal. Civ. Proc. Code § 352.1. Thus, although
it is not entirely clear from our record, Dy may still have a viable state law claim to
pursue in California.1
1 Dy’s original pro se complaint was filed in California, but it did not
name a California defendant or include a claim for breach of contract. The
California district court correctly ruled that venue was not proper in California.
Dy’s first amended complaint, filed in Arizona, did include a California defendant,
but Dy only brought a section 1983 claim against that defendant. The district court
correctly dismissed that claim because there is no respondeat superior liability
under section 1983.
2

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