NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT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 Califor nia state prisoner incarcerated in Chowchilla, located in the Eastern District of C alifornia

. 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 t reating 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, CLER K U.S. COURT OF APPEAL S2

California in 2016 against his treating physicians , and a magistrate judge there transferred the action to the District of Arizona for im proper venue. The district court subsequently dismissed Dy’s complaint as untimely, applying Arizona law. Dy timely appeal ed

. 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 it s calculation of the relevant limitations period s 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 Ci v. P

. § 352.1(a). Dy does not dispute that the district court correctly held that hi s 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 mal practice claims, see Nelson , 716 F.2d at 643, the district court correctly applie d 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 medi cal malpractice3

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 As tronics 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 confine d 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. Pen al 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 (“T he [ICC] is hereby enacted into law and entered into by this state with any other4

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

v . N ale , No. 18-15241 C HR ISTEN, C irc uit Judge , c onc urring:
I c onc ur in the re sult re a c he d by the m a j ority ba se d on the a rgum e nts ra ise d. I write se pa

ra te ly to e xpla in tha

t I do not re a d the m a

jority ’ s m e m ora ndum disposition to c onc lude tha t the Inte rsta te C orre c tions C o m pa c t (IC C ) c a nnot a

pply
to a priva te prison a s a m a tte r of la w. In m y vie w , the m a

jority c orre c tly de c ide s tha t Dy did not m e e t his burde n to show the IC C a pplie s to the c ontra c t in this c a se , be twe e n the C orre c tions C orpora tion of Am e ric a (C C A) a nd the C a lifornia
De pa rtm e nt of C orre c t ions a

nd R e ha bilita tion (C DC R ), be c a

use the pa rtie s did not

e xpre s sly inc orpora te the IC C in the ir c ontra c t a nd the re is ina de qua te indic a tion in the re c ord tha

t the pa rtie s inte nde d for the IC C to a pply

. Dy c a nnot re ly

on the IC C to bring the

c la im s c urre ntly

on a ppe a l, but in his opposition to de fe nda

nts’ m otion to dism

i ss, he a ske d the distric t c ourt in Ariz ona for “ le a ve to a m e nd to a dd a

bre a c h of c ontra c t c l a im

ba se d on [Dy ’ s] sta

t us a s a third pa rty be ne fic ia ry of the c o ntra c t be twe e n C DC R a nd C C A.” It a

ppe a rs tha

t Dy d id not file a c ontra c t c la im a ga inst C D C R or a ny

C a lifornia

de fe nda nt in the Ariz ona a c tion prior to the e xpira tion of Ariz ona ’ s four-y e a r sta t ute of lim ita

tions. Dy did not ne e d pe rm ission from the Distric t of Ariz o na

to file a sta

te bre a c h of c ontra c t c l a im

a ga i nst C DC R

in C a lifornia

ba se d on a

third pa rty be n e fic ia ry the o ry , but we c a nnot te l l from our re c ord whe t

he r he ha s done so. The c ontra c t



# FIL ED

JUN 24 2019
M OLLY C. DW Y ER, CLERK U

. S. CO URT O F APPEALSbe twe e n C DC R a n d C C A re quire s C C A to provide e s se ntia l he a l th se rvic e s a nd

m e e t c e rta in sta

nda rds of c a re , a

nd Dy ’ s the o ry is tha

t C C A fa ile d to pe rform

its

c ontra c tua l dutie s. Dy c o n c e d e s tha t his c la i m s re la te d to the a lle ge dly de fic ie nt

m e dic a l c a re a c c rue d

on Nove m

be r 13, 2013, but the

sta t ute of lim ita

tions in
C a lifornia for c ontra c t c la im s is ge ne ra lly four y e a rs, s e e C a l. C iv. Proc . C ode § 337, a nd C a lifornia

tolls the sta tute of lim ita

tions for two y e a rs for prisone rs

se nte nc e d to te rm s le s s tha n life , se e C a l. C iv. Proc . C ode § 352.1. Thus, a lthough it is not e ntire ly

c le a r from

our re c ord, Dy

m a y still ha ve a via ble sta t e la w c la im to
pursue in C a lifornia

. 1

1 Dy ’ s origina l pro se c om pla int w as file d in C a lifornia , but it did not na m e a C a lifornia

de fe nda nt or inc lude a

c la im for bre a c h of c o ntra c t. The C a lifornia distric t c ourt c orre c tly

rule d tha t ve nue wa s not prope r in C a lifornia

. Dy ’ s first a

m e nde d c om

pla int, file d in Ariz ona , did inc l ude a C a l ifornia

de fe nda nt, but Dy only brought a

se c tion 1983 c la i m

a g a inst tha

t de fe nda nt. The distric t c ourt c orre c tly dism isse d tha

t c la i m be c a use the re is no re sponde a t supe rior lia bility unde r se c tion 1983. 2