Opinion
No. 08-35677.
The panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).
Filed December 14, 2009.
Robert Lee Kelleher, Sr., Esquire, Kelleher Law Office, Butte, MT, for Plaintiffs-Appellants.
Brendon J. Rohan, Esquire, Poore Roth Robinson, Butte, MT, for Butte Silver Bow Unified Government.
John C. Melcher, Assistant Attorney General, Montana Department of Justice, Helena, MT, for Don Kelly, Jane Doe.
Appeal from the United States District Court for the District of Montana, Richard F. Cebull, Chief District Judge, Presiding. D.C. No. 2:07-cv-0003 1-RFC-CSO.
Before: ALARCÓN, TROTT, and TASHIMA, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Francine E. Bailey and others appeal from the district court's order dismissing as time-barred their 42 U.S.C. § 1983 against Montana Department of Corrections employee Don Kelly. We have jurisdiction under 28 U.S.C. § 1291. We review de novo the district court's dismissal based on the statute of limitations, Papa v. United States, 281 F.3d 1004, 1008-09 (9th Cir. 2002), and we affirm.
The district court properly determined that, because appellants voluntarily discontinued their state court case, they were not allowed an additional year to file a complaint on the same subject matter. See Mont. Code Ann. § 27-2-204 (2007) (extending statute of limitations period for timely state court claims "terminated in any other manner than by voluntary discontinuance.").
Appellants remaining contentions are unpersuasive.
All pending motions are denied.