Billy Cepero v. Douglas Gillespie

FILED
NOT FOR PUBLICATION AUG 05 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BILLY CEPERO, No. 15-15039
Plaintiff - Appellant, D.C. No. 2:11-cv-01421-JAD-
GWF
v.
DOUGLAS GILLESPIE; et al., MEMORANDUM*
Defendants - Appellees.
Appeal from the United States District Court
for the District of Nevada
Jennifer A. Dorsey, District Judge, Presiding
Submitted July 26, 2016**
Before: SCHROEDER, CANBY and CALLAHAN, Circuit Judges.
Nevada state prisoner Billy Cepero appeals pro se from the district court’s
judgment dismissing his 42 U.S.C. § 1983 action alleging federal and state law
claims arising out of an arrest. We have jurisdiction under 28 U.S.C. § 1291. We
review de novo a dismissal under Fed. R. Civ. P. 12(b)(6). Kneivel v. ESPN, 393
*
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).
F.3d 1068, 1072 (9th Cir. 2005). We reverse and remand.
The district court concluded that Cepero’s complaint was not timely filed.
However, the record reflects that Cepero constructively filed a handwritten
complaint before the expiration of the applicable statute of limitations period. See
Loya v. Desert Sands Unified Sch. Dist., 721 F.2d 279, 281 (9th Cir. 1983)
(complaint which arrives in the custody of the court clerk within the statutory
period but fails to conform with local rules is nevertheless deemed filed for statute
of limitations purposes); see also Ordonez v. Johnson, 254 F.3d 814, 816 (9th Cir.
2001) (pro se prisoner constructively filed amended complaint before filing
deadline when it was received but returned unfiled by the district court).
Therefore, we reverse the judgment and remand for further proceedings.
We do not consider documents not filed with the district court. See United
States v. Elias, 921 F.2d 870, 874 (9th Cir. 1990) (“Documents or facts not
presented to the district court are not part of the record on appeal.”).
REVERSED and REMANDED.
2 15-15039