Jason Giddings v. Greyhound Bus Lines Inc

FILED
NOT FOR PUBLICATION JUL 02 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JASON GIDDINGS, No. 13-35807
Plaintiff - Appellant, D.C. No. 2:11-cv-01484-RSM
v.
MEMORANDUM*
GREYHOUND LINES INC.; KIRK M.
RHODES,
Defendants - Appellees.
Appeal from the United States District Court
for the Western District of Washington
Ricardo S. Martinez, District Judge, Presiding
Submitted June 22, 2015**
Before: HAWKINS, GRABER, and W. FLETCHER, Circuit Judges.
Jason Giddings appeals pro se from the district court’s summary judgment in
his diversity action alleging claims arising out of an incident with a Greyhound bus
driver. We have jurisdiction under 28 U.S.C. § 1291. We review de novo. O’Day
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
v. McDonnell Douglas Helicopter Co., 79 F.3d 756, 761 (9th Cir. 1996). We
reverse and remand.
The district court granted summary judgment because it concluded that
Giddings did not meet his burden of showing he was disabled at the time of the
incident, and thus he was not entitled to statutory tolling and his action was time-
barred. However, the record shows that Giddings was previously diagnosed with a
serious mental illness and lacked awareness of his actions when not taking
medication, that he had a current prescription to treat that illness as of the date of
the incident, and that he acted erratically during the incident, giving rise to an
inference that he was not taking his medication. Therefore, the record shows a
genuine dispute of material fact as to whether Giddings suffered sufficiently from a
disability at the time of the incident to warrant tolling. See Wash. Rev. Code §
4.16.190; Wash. Rev. Code § 11.88.010; Rivas v. Overlake Hosp. Med. Ctr., 189
P.3d 753, 756 (Wash. 2008) (explaining requirements for statutory tolling based on
disability under Washington law); see also O’Day, 79 F.3d at 761 (when reviewing
a grant of summary judgment, this court must “entertain every reasonable inference
in favor of the non-moving party.”). Accordingly, we reverse and remand for
further proceedings.
We do not consider facts not presented to the district court. See United
2 13-35807
States v. Elias, 921 F.2d 870, 874 (9th Cir. 1990) (“[F]acts not presented to the
district court are not part of the record on appeal.”).
REVERSED and REMANDED.
3 13-35807