NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JUL 20 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ERIC SWAIN JOHNSON, No. 21-35961

Plaintiff-Appellant, D.C. No. 1:21-cv-00262-BLW

v.

MEMORANDUM*

STATE OF IDAHO; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the District of Idaho B. Lynn Winmill, Chief District Judge, Presiding

Submitted July 19, 2023**

Before: WALLACE, O’SCANNLAIN, SILVERMAN, Circuit Judges.

Eric S. Johnson appeals pro se from the district court’s order dismissing his

complaint with prejudice as legally frivolous and denying his Motion to Reconsider.

We have jurisdiction under 28 U.S.C. § 1291. We review a district court’s dismissal

of a complaint on statute of limitations grounds de novo but review the district

* 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). court’s underlying factual findings for clear error. EEOC v. Dinuba Med. Clinic, 222

F.3d 580, 584-85 (9th Cir. 2000). We review the denial of a Motion to Reconsider

and refusal to consider certain evidence in making that determination for abuse of

discretion. Sch. Dist. No. 1J v. ACandS, Inc., 5 F.3d 1255, 1261-63 (9th Cir. 1993).

I

The district court properly dismissed Johnson’s complaint with prejudice

because the statute of limitations on his suit under Idaho Code § 5-219 had lapsed.

Federal courts must apply state law for tolling statutes of limitations for § 1983

actions. De Luna v. Farris, 841 F.2d 312, 314 (9th Cir. 1988). Idaho does not permit

equitable tolling in civil suits, Wilhelm v. Frampton, 158 P.3d 310, 312 (Idaho 2007),

and Johnson failed to show that he was entitled to tolling on the basis of insanity

under Idaho Code § 5-230.

The insanity language at issue was first adopted as § 170 of the 1881 Idaho

Code of Civil Procedure. At the time, there was “no general definition of legal

insanity”; rather, it was “a mental deficiency with reference to the particular act in

question.” See Bouvier’s Law Dictionary (revised 1897). The fact that Johnson

pursued his claims in Idaho state court during the period of his claimed insanity

refutes any assertion that his cognitive defects prevented him from acting in relation

to this cause of action in a timely manner.

2 II

The district court did not abuse its discretion in refusing to consider the 2019

Coronavirus outbreak when it denied Johnson’s Motion to Reconsider. Johnson’s

argument that the outbreak caused the Boise, Idaho law library to close could have

been raised at any point prior to his Motion to Reconsider. The outbreak is thus not

“newly discovered evidence”—it simply was not introduced in a timely manner. See

ACandS, Inc., 5 F.3d at 1263.

III

The district court did not abuse its discretion in denying Johnson’s Motion to

Reconsider. There are four grounds upon which a Rule 59(e) motion may be granted:

(1) the motion is necessary to correct manifest errors of law or fact; (2) the moving

party presents newly discovered or previously unavailable evidence; (3)

reconsideration is necessary to prevent manifest injustice; or (4) there is an

intervening change in controlling law. Turner v. Burlington N. Santa Fe R.R. Co.,

338 F.3d 1058, 1063 (9th Cir. 2003). Johnson did not provide any legitimate basis

for the district court to grant his motion.

AFFIRMED.1

1 The motion for default judgment is DENIED. The Federal Rules of Appellate Procedure do not provide for default judgments on appeal. See Fed. R. App. P. 31(c).

3