Respondents filed a motion to dismiss in the district court,
arguing that Garcia had failed to exhaust all of her administrative
remedies and that her complaint was barred by the statute of limitations.
The district court granted the motion, finding that Garcia's claims were all
subject to a two-year statute of limitations, which the district court found
had expired on November 17, 2012, two years from the date respondents
alleged the prison responded to Garcia's grievance regarding the assault.
This appeal followed.
This court reviews de novo an order granting an NRCP
12(b)(5) motion to dismiss, accepting all factual allegations in the
complaint as true, and drawing all inferences in the plaintiffs favor.
Buzz Stew, LLC v. City of N. Las Vegas, 124 Nev. 224, 227-28, 181 P.3d
670, 672 (2008). We have reviewed appellant's civil proper person appeal
statement, respondent's response, appellant's reply,' and the record on
appeal, and we conclude that the district court erred in granting
respondents' motion to dismiss.
Respondents concede in their response to Garcia's proper
person appeal statement that there was no failure to exhaust
administrative remedies by Garcia. Thus, the only remaining issue on
appeal is whether Garcia's complaint was filed before the expiration of
the statute of limitations. The district court found that all of Garcia's
claims are subject to a two-year statute of limitations. See NRS
'Appellant has filed proper person motions to strike respondents'
response and to file a reply. Having considered the motions, we deny the
motion to strike respondents' response and grant the motion to file a reply.
The clerk of the court shall file the proper person reply provisionally
received in this court on April 14, 2014.
SUPREME COURT
OF
NEVADA
2
(0) 1947A eD
11.190(4)(c) and (e). But respondents argue that although Garcia's
complaint was received by the clerk on October 8, 2012, because the
motion to proceed in forma pauperis was not granted until December 5,
2012, and the statute governing in forma pauperis applications does not
toll the time for plaintiffs to file their complaints, Garcia's complaint was
not filed until December 5 and was therefore time-barred.
In Sullivan v. Eighth Judicial Din. Court, 111 Nev. 1367,
1371, 904 P.2d 1039, 1042 (1995), this court stated that, where the
district court clerk has received a complaint and motion to proceed in
forma pauperis from a plaintiff, "for statute of limitations purposes, the
complaint would have to be considered filed on the date of actual receipt
by the clerk of the district court." Garcia's complaint therefore should
have been considered filed on October 8, 2012, for statute of limitations
purposes. Because the complaint was therefore filed less than two years
from the date of the alleged October 25, 2010, sexual assault, and less
than two years from the date the prison responded to Garcia's grievance,
the district court erred in granting respondents' motion to dismiss
Garcia's complaint based on the expiration of the statute of limitations.
For the foregoing reasons, we therefore
ORDER the judgment of the district court REVERSED AND
REMAND this matter to the district court for proceedings consistent with
this order.
Hardesty
Jc (45'
Douglas Cherry
SUPREME COURT
OF
NEVADA
3
(0) 1947A
cc: Hon. Gloria Sturman, District Judge
Karisma Garcia
Attorney General/Carson City
Eighth District Court Clerk
SUPREME COURT
OF
NEVADA
4
(0) 1947A