NOT FOR PUBLICATION FILED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