Gregory Brown v. Eldon Vail

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 1 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GREGORY TYREE BROWN, No. 16-35378
Plaintiff-Appellant, D.C. No. 2:15-cv-00121-TOR
v.
MEMORANDUM*
ELDON VAIL, in his individual and
official capacities; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of Washington
Thomas O. Rice, Chief Judge, Presiding
Submitted February 27, 2018**
Before: THOMAS, Chief Judge, and TROTT and SILVERMAN, Circuit Judges.
Washington state prisoner Gregory Tyree Brown appeals pro se from the
district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging
constitutional violations. We have jurisdiction under 28 U.S.C. § 1291. We
review de novo a district court’s dismissal for failure to state a claim under Fed. R.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Civ. P. 12(b)(6) and on the basis of the applicable statute of limitations. Ventura
Mobilehome Cmtys. Owners Ass’n v. City of San Buenaventura, 371 F.3d 1046,
1050 (9th Cir. 2004). We vacate and remand.
The district court properly found that Brown is entitled to tolling from April
22, 2012 through May 17, 2012, while his grievance was pending with the prison’s
superintendent. However, taking the amended complaint’s factual allegations as
true, Brown is also entitled to tolling for the period from February 5, 2012, when
he first filed his grievance with the prison captain’s office, to April 22, 2012.
Brown alleged that there was no written policy governing the proper procedures
for a prisoner to seek redress for confiscation of property, he was instructed to file
and did file an appeal through the prison captain’s office, and was not told until
April 22, 2012 to submit his appeal to the prison’s superintendent. See Griffin v.
Arpaio, 557 F.3d 1117, 1119 (9th Cir. 2009) (“Prisoners need comply only with
the prison’s own grievance procedures to properly exhaust under the PLRA.”);
Brown v. Valoff, 422 F.3d 926, 943 (9th Cir. 2005) (“[T]he applicable statute of
limitations [is] tolled while a prisoner completes the mandatory exhaustion
process.”).
Applying these 77 additional days of tolling and the 25 days of tolling that
the district court already accepted, the statute of limitations expired on April 27,
2015. Thus, Brown’s original complaint in this action, mailed on March 31, 2015,
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was timely. See Butler v. Nat’l Cmty. Renaissance of Cal., 766 F.3d 1191, 1198
(9th Cir. 2014) (section 1983 claims are subject to the forum state’s statute of
limitations for personal injury claims); Wash. Rev. Code
§ 4.16.080(2) (personal injury claims are subject to a three-year statute of
limitations). We vacate the dismissal of Brown’s action as time-barred under the
applicable statute of limitations and remand for further proceedings.
The district court declined to exercise supplemental jurisdiction over
Brown’s state law claims after his federal claims were dismissed. In light of our
disposition, we vacate the dismissal of the state law claims and remand for the
district court to decide whether to exercise supplemental jurisdiction over these
claims.
Each party shall bear its own costs on appeal.
VACATED and REMANDED.
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