Francine E. Bailey; v. Don Kelly

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
EN/Research
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FRANCINE E. BAILEY; et al.,
Plaintiffs - Appellants,
v.
DON KELLY,
Defendant - Appellee
and
SOUTHWEST MONTANA DRUG TASK
FORCE, an Agency of the State of
Montana; et al.,
Defendants.
No. 08-35677
D.C. No. 2:07-cv-00031-RFC-
CSO
MEMORANDUM *
Appeal from the United States District Court
for the District of Montana
Richard F. Cebull, Chief District Judge, Presiding
FILED
DEC 14 2009
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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The panel unanimously finds this case suitable for decision without**
oral argument. See Fed. R. App. P. 34(a)(2).
EN/Research 08-35677 2
Submitted November 17, 2009**
Before: ALARCÓN, TROTT, and TASHIMA, Circuit Judges.
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.
AFFIRMED.

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