Unpublished Disposition, 902 F.2d 1578 (9th Cir. 1990)

MEMORANDUM^** 

Herbert Gilbert appeals pro se and in forma pauperis the district court's dismissal of his civil rights action. Gilbert alleged in his complaint that various employees of the California Public Utilities Commission (PUC), the California Division of Labor Standards Enforcement (CDLSE), and the Bay Area Rapid Transit (BART) conspired to deprive him of his rights to exercise free speech and to practice his profession.

The district court dismissed all but two of Gilbert's claims against the PUC and the CDLSE defendants because the applicable statute of limitations had expired. The remaining two claims against those defendants were dismissed on the ground that Gilbert failed to state a claim upon which relief could be granted. The district court dismissed the claims against the BART defendants for lack of service. We affirm.

DISCUSSION

Gilbert argues that the statute of limitations was tolled by the defendants' fraudulent concealment or alternatively, the statute was tolled during the time that Gilbert pursued his administrative remedies. We disagree. Gilbert's allegations of fraudulent concealment show only why he thought he was unjustly terminated, rather than how the defendants concealed a claim for relief. His showing is thus insufficient to toll the statute of limitations. See Gibson v. United States, 781 F.2d 1334, 1344-45 (9th Cir. 1986), cert. denied, 479 U.S. 1054 (1987). Nor was the limitations period equitably tolled while Gilbert pursued administrative remedies. Gilbert pursued an administrative remedy only as to one of his claims. Equitable tolling is inapplicable when "a plaintiff who allegedly suffered several different wrongs pursues only one remedy as to one of those wrongs." Ervin v. Los Angeles County, 848 F.2d 1018, 1019 (9th Cir. 1988) (internal quotation and emphasis omitted), cert. denied, 109 S. Ct. 1125 (1989).

Gilbert alleged two acts in his complaint that occurred within the statute of limitations period. We agree with the district court that neither of these events, however, even if proved, supports Gilbert's constitutional claims under the first or fourteenth amendments. We also agree with the district court's conclusion that Gilbert's proffered amendments do not cure the deficiencies and that Gilbert can allege no set of fact which if proven true would entitle him to relief under his asserted constitutional claims. Accordingly, dismissal with prejudice was appropriate. See Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 623 (9th Cir. 1988).

We agree with Gilbert's assertion that a party proceeding in forma pauperis is entitled to rely upon service by a United States Marshal. See Puett v. Blandford, 895 F.2d 630, 635 (9th Cir. 1990). We nevertheless affirm the dismissal of the BART defendants on an alternative ground. See Kelson v. City of Springfield, 767 F.2d 651, 656 (9th Cir. 1985) (court may affirm on any basis supported by the record). The record shows that Gilbert's claims against the BART defendants were barred by the statute of limitations.

AFFIRMED.