Dennis Sharkey v. Eral O'Neal

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

DENNIS SHARKEY, No. 11-15619
Plaintiff-Appellant,
D.C. No.
v. 3:09-cv-04341-
JSW
ERAL O’NEAL; SILVA FOSTER; D.
GRAHAM; CHARLES SYDNEY,
Defendants-Appellees. OPINION

Appeal from the United States District Court
for the Northern District of California
Jeffrey S. White, District Judge, Presiding

Argued and Submitted
November 5, 2013—San Francisco, California

Filed February 10, 2015

Before: Stephen Reinhardt and Paul J. Watford, Circuit
Judges, and Robert S. Lasnik, District Judge.*

Opinion by Judge Reinhardt

*
The Honorable Robert S. Lasnik, District Judge for the U.S. District
Court for the Western District of Washington, sitting by designation.
2 SHARKEY V. O’NEAL

SUMMARY**

Americans with Disabilities Act/Civil Rights

The panel reversed the district court’s order dismissing as
time-barred plaintiff’s claims under Title II of the Americans
with Disabilities Act, Title VII of the Civil Rights Act, and
42 U.S.C. § 1983.

The district judge applied California’s two-year statute of
limitations for personal injury claims to plaintiff’s claims
against his parole officers, which alleged that defendants
transferred plaintiff from his apartment to motels which did
not accommodate his disabilities. The panel held that with
respect to plaintiff’s claim under Title II of the Americans
with Disabilities Act, the district court was required to borrow
the three-year limitations period applicable to claims under
California Government Code § 11135, rather than the
limitations period applicable to personal injury claims in
California. Under this three-year limitations period, plaintiff’s
Americans with Disabilities Act claim was not time-barred.
With respect to plaintiff’s remaining claims, the panel held
that the district court abused its discretion in dismissing the
pro se claims with prejudice without explanation. The panel
remanded for an application of the factors set forth in Foman
v. Davis, 371 U.S. 178, 182 (1962), and the presumption in
favor of granting leave to amend with respect to all claims
other than plaintiff’s Americans with Disabilities Act claim.

**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 SHARKEY V. O’NEAL 3

COUNSEL

Lisa Ells (argued) and Sanford Jay Rosen, Rosen Bien Galvan
& Grunfeld, San Francisco, California, for Plaintiff-
Appellant.

Neah Huynh (argued), Deputy Attorney General; Kamala D.
Harris, Attorney General; Jonathan L. Wolff, Senior
Assistant Attorney General; Thomas S. Patterson,
Supervising Deputy Attorney General, San Francisco,
California, for Defendants-Appellees.

OPINION

REINHARDT, Circuit Judge:

Dennis Sharkey appeals from an order of the district court
dismissing as time-barred his claims under Title II of the
Americans with Disabilities Act (ADA), Title VII of the Civil
Rights Act, and various provisions of the Constitution
pursuant to 42 U.S.C. § 1983. The district judge applied
California’s two-year statute of limitations for personal injury
claims to all of Sharkey’s claims. With respect to Sharkey’s
claim under Title II of the ADA, we hold that the district
court did not apply the correct statute of limitations. District
courts must borrow the three-year limitations period
applicable to claims under California Government Code
§ 11135, rather than the limitations period applicable to
personal injury claims in California. Under this three-year
limitations period, Sharkey’s ADA claim is not time-barred.
With respect to his other claims, Sharkey does not contest the
applicable limitations periods, but we hold that the district
4 SHARKEY V. O’NEAL

court abused its discretion in dismissing the complaint with
prejudice without affording Sharkey leave to amend.

BACKGROUND1

Sharkey is a 55-year-old man with disabilities that require
him to use a wheelchair and two canes. In late 2006 and early
2007, Defendants Graham, Foster, O’Neal, and Sydney were
employees at the Parole Division of the California
Department of Corrections and Rehabilitation in Berkeley.

In 2006, Sharkey was on parole, living independently in
an accessible apartment in Oakland. On December 28, 2006,
Agent Foster informed Sharkey of new parole terms,
including a housing restriction imposed under the California
Sexual Predator and Control Act that required Sharkey to
move from his Oakland residence. Agent O’Neal, who Agent
Foster had assigned to Sharkey’s case, gave Sharkey only an
hour to relocate and only 25 minutes to pack, notwithstanding
his disability. Sharkey experienced a great deal of pain during
this harried move, and, due to the time pressure, left behind
important medical supplies and personal possessions. Agent
O’Neal forbade Sharkey from ever returning to the apartment
or from calling friends to retrieve his remaining belongings.

That night, Agent O’Neal drove Sharkey to the Harris
Motel and assigned him to a room that lacked the safety
features necessary to accommodate his disability, such as a

1
The operative facts are taken from Sharkey’s complaint. “In reviewing
a motion to dismiss pursuant to Rule 12(b)(6), we must accept as true all
factual allegations in the complaint and draw all reasonable inferences in
favor of the nonmoving party.” Retail Prop. Trust v. United Bhd. of
Carpenters & Joiners of Am., 768 F.3d 938, 945 (9th Cir. 2014).
 SHARKEY V. O’NEAL 5

wheelchair-accessible entrance, sufficient floor space to
operate a wheelchair, and bathroom grab bars. When Sharkey
complained to Agent Foster, no attempt was made to locate
a suitable residence.

Sharkey was injured at least three times in slip and fall
accidents as a result of the lack of accommodations at the
Harris Motel. He also lost access to a federal program that
had provided him with in-home medical services because the
motel did not meet the program’s residence requirements.
Sharkey’s doctors in turn canceled several scheduled
surgeries because he no longer had a suitable recovery
environment, and Sharkey was unable to participate in other
medically necessary treatments. Sharkey informed the
defendants about the problems caused by his relocation to the
Harris Motel and the need for an accessible residence, to no
avail.

In March 2007, after Sharkey went to the emergency
room with injuries sustained when he fell in the ill-equipped
motel room, Agent O’Neal moved Sharkey from the Harris
Motel to the Sea Breeze Inn. Located on a truck route in an
industrial area that lacked access to public transportation, this
new motel did not accommodate Sharkey’s disability-related
needs either.

Sharkey alleges that the defendants’ decisions to require
him to live in motels incapable of accommodating his
disabilities caused him significant pain and stress,
exacerbated his medical conditions, and deprived him of
access to important medical treatments. On September 17,
2009, Sharkey filed suit, proceeding pro se and in forma
pauperis, against the defendants in the Northern District of
California, alleging violations of Title II of the ADA, Title
6 SHARKEY V. O’NEAL

VII of the Civil Rights Act, and the Constitution. On
February 25, 2011, the district court dismissed the entirety of
Sharkey’s complaint with prejudice as time-barred under the
two-year statute of limitations applicable to personal injury
claims in California.2 We reverse.

DISCUSSION

I.

Sharkey first contends that the district court erred when
it dismissed his claim under Title II of the ADA as barred by
the two-year statute of limitations applicable to personal
injury claims in California. We review de novo the district
court’s order dismissing the claim on statute of limitations
grounds. MHC Fin. Ltd. P’ship v. City of San Rafael,
714 F.3d 1118, 1125 (9th cir. 2013).

Initially, we reject defendants’ argument that we must
apply the same limitations period to all ADA claims. The
ADA is structured as separate titles governing different
conduct: Title I, 42 U.S.C. §§ 12111–12117, covers
discrimination in employment; Title II, 42 U.S.C.
§§ 12131–12165, covers discrimination in public services,
and Title III, 42 U.S.C. §§ 12181–12189, covers
discrimination in public accommodations and services

2
The district judge also concluded that Agents O’Neal and Supervising
Agent Sydney “were not properly served.” On appeal, however, the
defendants concede that they “do not argue, as an alternative basis for
affirmance, that the suits should have been dismissed for lack of proper
service.” Indeed, the district court is responsible for effectuating service
of process where the plaintiff is proceeding in forma pauperis, as Sharkey
was. See 28 U.S.C. § 1915(d); Fed. R. Civ. P. 4(c)(3); Davis v. Dep’t of
Corr., 446 F.2d 644, 645 (9th Cir. 1971).
 SHARKEY V. O’NEAL 7

operated by private entities. It is clear that Congress did not
intend every title of the ADA to have the same limitations
period. Title I expressly incorporates the limitations period
under Title VII of the Civil Rights Act, see, e.g., Douglas v.
Cal. Dep’t. of Youth Auth., 271 F.3d 812, 823 (9th Cir. 2001),
whereas Congress omitted express limitations periods from
the other ADA titles. Furthermore, because each title of the
ADA “encompasses different types of discrimination, as well
as different remedies,” Mary J. Topliff, Annotation,
Limitation of Actions Under the Americans with Disabilities
Act, 144 A.L.R. Fed. 307 § 2(a) (1998), there is good reason
for differing statutes of limitations. Here, we express no
opinion as to the limitations period applicable to claims under
titles of the ADA other than Title II.

Title II of the ADA does not contain an express statute of
limitations. The four-year catchall statute of limitations for
actions arising under federal statutes enacted after December
1, 1990 is inapplicable, as the ADA was enacted on July 26,
1990, see 104 Stat. 327, and Sharkey does not contend that
his “claim against the defendant was made possible by a post-
1990 enactment.” Jones v. R.R. Donnelley & Sons Co.,
541 U.S. 369, 382 (2004); see also 28 U.S.C. § 1658. Instead,
we borrow the statute of limitations applicable to the most
analogous state-law claim, so long as “it is not inconsistent
with federal law or policy to do so.” Wilson v. Garcia,
471 U.S. 261, 266–67 (1985), partially superseded by statute
as stated in Jones, 541 U.S. at 377–80. See also 42 U.S.C.
§ 1988; Goodman v. Lukens Steel Co., 482 U.S. 656, 660
(1987).

No published opinion of this court has determined the
most appropriate state-law analog to claims under Title II of
the ADA. In four published opinions we assumed without
8 SHARKEY V. O’NEAL

deciding that California’s statute of limitations for personal
injury claims applies to ADA and Rehabilitation Act claims.3
In three of the four cases we did so because the parties argued
their positions based on that assumption. In the fourth we
stated that the result would be the same whichever statute of
limitations was applicable. In any event, none of these cases
involved Title II.

We now hold that California Government Code § 11135
provides the most analogous state-law claim to a Title II
claim.4 Title II of the ADA provides that “no qualified
individual with a disability shall, by reason of such disability,
be excluded from participation in or be denied the benefits of
the services, programs, or activities of a public entity, or be

3
See Pickern v. Holiday Quality Food Inc., 293 F.3d 1133, 1137 n.2
(9th Cir. 2002); Daviton v. Columbia/HCA Healthcare Corp., 241 F.3d
1131, 1136 (9th Cir. 2001); Douglas v. Cal. Dep’t of Youth Auth.,
271 F.3d 812, 823 n.11 (9th Cir. 2001); Alexopulos v. San Francisco
Unified Sch. Dist., 817 F.2d 551, 554 (1987).

A number of unpublished dispositions have also stated—without
analysis other than citation to the above cases declining to reach the
issue—that the personal injury limitations period applies to ADA claims.
See, e.g., Thunderbird v. Or., 570 F. App’x 693, 694 (9th Cir. 2014);
Hubbs v. Cnty. of San Bernardino, 519 F. App’x 468, 469 (9th Cir. 2013);
Lancaster v. City of Reno, 479 F. App’x 774, 774 (9th Cir. 2012).
4
Although we find that section 11135 provides the most analogous state-
law claim to an ADA Title II claim, we note that the other state statutes
proffered by Sharkey—the Unruh Civil Rights Act and the California
Disabled Persons Act (DPA)—also provide analogous causes of action for
disability discrimination. See Cal. Civ. Code §§ 51(f); 54(c); Cohen v. City
of Culver City, 754 F.3d 690, 701 (9th Cir. 2014) (holding that because the
City was not entitled to summary judgment on Cohen’s ADA Title II
claim, the district court also erred in granting summary judgment to the
City on Cohen’s claims under the DPA and the Unruh Act).
 SHARKEY V. O’NEAL 9

subjected to discrimination by any such entity.” 42 U.S.C.
§ 12132. Section 11135(a) similarly provides that “No person
in the State of California shall, on the basis of . . . disability,
be unlawfully denied full and equal access to the benefits of,
or be unlawfully subjected to discrimination under, any
program or activity that is conducted, operated, or
administered by the state or by any state agency, is funded
directly by the state, or receives any financial assistance from
the state.” Section 11135(b) then expressly incorporates “the
protections and prohibitions contained in Section 202 of the
federal Americans with Disabilities Act of 1990 (42 U.S.C.
Sec. 12132) [Title II], and the federal rules and regulations
adopted in implementation thereof . . . .” Thus, section 11135
provides an almost identical state-law counterpart to Title II,
and we accordingly borrow the limitations period applicable
to such claims.5

Some circuits have applied state limitations periods for
personal injury claims to ADA or Rehabilitation Act claims.
These courts reason that in Wilson v. Garcia, the Supreme
Court held that the forum state’s personal injury statute of
limitations applies to § 1983 claims, see Wilson, 471 U.S. at

5
The principal difference between section 11135 and Title II is that the
former statute “may be enforced by a civil action for equitable relief,” Cal.
Gov’t. Code § 11139, whereas under the latter statute, a plaintiff may
recover compensatory damages if he makes a showing of discriminatory
intent. See Ferguson v. City of Phoenix, 157 F.3d 668, 674 (9th Cir. 1998).
Notwithstanding this distinction, we conclude that section 11135 is the
closest state-law analog to Title II. Listing differences between the two
statutes merely “begs the question of which [California] statute is most
analogous . . . . The difference . . . simply means that . . . there is no
perfect counterpart . . . and we must determine which statute is more
appropriate.” McCullough v. Branch Banking & Trust Co., 35 F.3d 127,
132 (4th Cir. 1994); see also Wilson, 471 U.S. at 271–72.
10 SHARKEY V. O’NEAL

280, and ADA and Rehabilitation Act claims are in turn
analogous to § 1983 claims. These circuits do not discuss,
however, whether the forum state provides a state-law
disability discrimination claim to which a closer analogy
might be had,6 often relying on the parties’ agreement that the
personal injury limitations period applied.7 Thus, there is no
precedent holding that the personal injury limitations period
is applicable where, as in the case before us, state law
provides an almost identical counterpart to Title II.

We follow the approach taken by the Fourth Circuit in A
Society Without A Name v. Commonwealth of Virginia, which
held that the limitations period under the Virginia Rights of
Persons with Disabilities Act (Virginia Act), rather than the
personal injury statute of limitations, applies to ADA Title II
claims. 655 F.3d 342, 348 (4th Cir. 2011). The Fourth Circuit
had previously applied the Virginia Act limitations period to
Rehabilitation Act claims in Wolsky v. Medical College of

6
See Disabled in Action of Pa. v. Se. Pa. Transp. Auth., 539 F.3d 199,
208 (3d Cir. 2008) (Rehabilitation Act and ADA Title II); Faibisch v.
Univ. of Minn., 304 F.3d 797, 802 (8th Cir. 2002) (Rehabilitation Act);
Soignier v. Am. Bd. of Plastic Surgery, 92 F.3d 547, 550–51 (7th Cir.
1996) (ADA Title III); Baker v. Bd. of Regents of Kan., 991 F.2d 628,
631–32 (10th Cir. 1993) (Rehabilitation Act); Morse v. Univ. of Vt.,
973 F.2d 122, 125–27 (2d Cir. 1992) (Rehabilitation Act). But see Gaona
v. Town & Country Credit, 324 F.3d 1050, 1054–56 (8th Cir. 2003)
(rejecting state-law disability discrimination analog for ADA Title III
claim because prior decisions—none of which considered whether state
law provided an analogous disability discrimination claim—applied
personal injury limitations period to Rehabilitation Act claims).
7
See Disabled in Action of Pa., 539 F.3d at 208 (stating the parties did
not dispute the district court’s conclusion that the personal injury
limitations period applied); Soignier v. Am. Bd. of Plastic Surgery, 92 F.3d
at 550–51 (same).
 SHARKEY V. O’NEAL 11

Hampton Roads, where it explained that the Virginia Act
constitutes a much closer state-law analog to the federal
statute than does a personal injury action. 1 F.3d 222, 224–25
(4th Cir. 1993); see also McCullough v. Branch Banking &
Trust Co., 35 F.3d 127, 132 (4th Cir. 1994) (applying statute
of limitations in North Carolina Handicapped Persons
Protection Act to Rehabilitation Act claim). Our holding (and
that of the Fourth Circuit) is also consistent with the decisions
of a handful of circuits that apply the personal injury
limitations period simply because the relevant state lacks an
analogous disability discrimination cause of action.8

As Wolsky persuasively explained, Wilson supports
borrowing the limitations period applicable to state-law
disability discrimination claims, rather than the personal
injury limitations period. See Wolsky, 1 F.3d at 225. Wilson
requires us to select “‘the most appropriate,’ or ‘the most
analogous’ state statute of limitations.” 471 U.S. at 268.
Applying the limitations period applicable to section 11135,
the nearly identical state-law counterpart to Title II, more
faithfully adheres to this command than does applying the
limitations period of § 1983. More important, Wilson’s

8
See McCormick v. Miami Univ., 693 F.3d 654, 664 (6th Cir. 2012)
(“Because § 4112.022 is not modeled after the ADA and does not set forth
its own statute of limitations, the appropriate statute of limitations for a
Title II claim is the two-year limitations period applicable to personal
injury actions in Ohio”); Frame v. City of Arlington, 657 F.3d 215, 237 n.
116 (5th Cir. 2011) (“In selecting Texas’s personal-injury limitations
period, we note that Texas has not adopted a general disability
discrimination law modeled on Title II or the Rehabilitation Act.”);
Everett v. Cobb Cnty. Sch. Dist., 138 F.3d 1407, 1409 (11th Cir. 1998)
(“Because Georgia has not passed a state law identical to the
Rehabilitation Act from which to borrow a limitations period, we . . .
apply Georgia’s two-year statute of limitations period for personal injury
actions.”).
12 SHARKEY V. O’NEAL

reasons for characterizing § 1983 claims as analogous to
personal injury claims do not apply here. Wilson explained
that § 1983 provides a “unique remedy” that “encompass[es]
numerous and diverse topics and subtopics” with “no precise
counterpart in state law.” 471 U.S. at 272–73. Thus, “a
simple, broad characterization of all § 1983 claims” is
appropriate, and applying the personal injury limitations
period avoids the problem of conflicting analogies “to more
than one of the ancient common-law forms of action.” Id. By
contrast, the specific nature of claims under Title II of the
ADA allows for a direct analogy to section 11135, which
expressly incorporates the protections of Title II, and is not a
common-law claim.

It remains for us to determine the statute of limitations
applicable to section 11135 claims, a question of state law.
Although the California Supreme Court has not ruled on this
issue, the applicable statute of limitations under state law is
readily ascertainable. “[W]hen (1) a federal court is required
to apply state law, and (2) there is no relevant precedent from
the state’s highest court, but (3) there is relevant precedent
from the state’s intermediate appellate court, the federal court
must follow the state intermediate appellate court decision
unless the federal court finds convincing evidence that the
state’s supreme court likely would not follow it.” See Ryman
v. Sears, Roebuck & Co., 505 F.3d 993, 994 (9th Cir. 2007).

California provides a three-year statute of limitations for
“[a]n action upon a liability created by statute, other than a
penalty or forfeiture,” Cal. Civ. Proc. Code § 338(a), which
“applies only where the liability is embodied in a statutory
provision and was of a type which did not exist at common
law.” Brandenburg v. Eureka Redevelopment Agency, 62 Cal.
Rptr. 3d 339, 344 (Cal. Ct. App. 2007) (emphasis and internal
 SHARKEY V. O’NEAL 13

quotation marks omitted). In Gatto v. County of Sonoma, the
California Court of Appeal explained that while state-law
counterparts to Title I of the ADA would not be subject to the
three-year limitations period in section 338(a) because they
derive from common-law public accommodation claims, “the
ADA also addresses other rights of the disabled, such as the
right[] . . . to receive the benefits of the services, programs, or
activities of a public entity (42 U.S.C. § 12132 [Title II]),
which are unrelated to public accommodations and do not
derive from the common law.” 120 Cal. Rptr. 2d 550, 561
(Ct. App. 2002). Because Gatto concluded that Title II does
not derive from the common law, Title II’s state-law
counterpart, section 11135, does not either; both are
“embodied in a statutory provision” for the purposes of
section 338(a). Thus, under Gatto, section 11135 is subject to
section 338(a)’s three-year limitations period. Gatto has
remained good law in California for over a decade, and no
countervailing authority convinces us that the California
Supreme Court would reach a different result.

Finally, applying this three-year statute of limitations to
an ADA Title II claim is not inconsistent with federal law or
policy. See Wilson, 471 U.S. at 266–67. Section 11135
expressly provides that insofar as it incorporates Title II
standards, Title II provides a floor and not a ceiling for the
scope of section 11135 protections and prohibitions. Cal.
Gov’t Code § 11135(b) (“[I]f the laws of this state prescribe
stronger protections and prohibitions, the programs and
activities subject to subdivision (a) shall be subject to the
stronger protections and prohibitions.”). Thus, “[i]t is most
unlikely that the period of limitations applicable to [Title II]
claims ever was, or ever would be, fixed in a way that would
discriminate against federal claims, or be inconsistent with
federal law in any respect.” Wilson, 471 U.S. at 279.
14 SHARKEY V. O’NEAL

Sharkey filed suit two and a half years after the last events
alleged in his complaint occurred. Under the applicable three-
year statute of limitations, his claim under Title II of the
ADA is not time-barred.

II.

Sharkey also contends that the district court erred in
dismissing his other claims with prejudice. While Sharkey
does not contest the statute of limitations applicable to these
claims, he seeks leave to amend his complaint to allege
additional facts defeating the statute-of-limitations defense.
We review the denial of an opportunity to amend for abuse of
discretion. Foman v. Davis, 371 U.S. 178, 182 (1962).

Sharkey missed the deadline to amend his pleadings as a
matter of course, as he was required to do so within twenty-
one days of being served with a motion to dismiss. See Fed.
R. Civ. P. 15(a)(1)(B). However, “Rule 15(a) declares that
leave to amend shall be freely given when justice so requires;
this mandate is to be heeded.” Foman, 371 U.S. at 182
(internal quotation marks omitted). Moreover, “[w]e are very
cautious in approving a district court’s decision to deny pro
se litigants leave to amend.” Flowers v. First Hawaiian Bank,
295 F.3d 966, 976 (9th Cir. 2002); see also Lopez v. Smith,
203 F.3d 1122, 1131 (9th Cir. 2000) (en banc); see also Lucas
v. Dep’t of Corr., 66 F.3d 245, 248–49 (9th Cir.1995) (per
curiam).

The Supreme Court in Foman v. Davis held that district
courts should consider the following factors in deciding
whether to dismiss with prejudice:
 SHARKEY V. O’NEAL 15

In the absence of any apparent or declared
reason such as undue delay, bad faith or
dilatory motive on the part of the movant,
repeated failure to cure deficiencies by
amendments previously allowed, undue
prejudice to the opposing party by virtue of
allowance of the amendment, futility of
amendment, etc. the leave sought should, as
the rules require, be ‘freely given.’ 371 U.S. at
182. “Absent prejudice, or a strong showing
of any of the remaining Foman factors, there
exists a presumption under Rule 15(a) in favor
of granting leave to amend.” Eminence
Capital, LLC v. Aspeon, Inc., 316 F.3d 1048,
1052 (9th Cir. 2003).

In the instant case, the district court provided no
explanation for dismissing with prejudice, despite the fact
that the operative complaint was the first and only complaint
filed by Sharkey, who was proceeding pro se. “A simple
denial of leave to amend without any explanation by the
district court is subject to reversal.” Id. “Of course, the grant
or denial of an opportunity to amend is within the discretion
of the District Court, but outright refusal to grant the leave
without any justifying reason appearing for the denial is not
an exercise of discretion; it is merely abuse of that discretion
and inconsistent with the spirit of the Federal Rules.” Foman,
371 U.S. at 182. Similarly, dismissal with prejudice
constitutes an abuse of discretion where the district court fails
to make a determination “that the pleading could not possibly
be cured by the allegation of other facts,” Lopez, 203 F.3d at
1127 (emphasis added) (internal quotation marks omitted),
and this is so “‘even if no request to amend the pleading was
made.’” Doe v. United States, 58 F.3d 494, 497 (9th Cir.
16 SHARKEY V. O’NEAL

1995) (quoting Cook, Perkiss & Liehe v. N. Cal. Collection
Service, 911 F.2d 242, 247 (9th Cir.1990)). We therefore
conclude that the district court erred in dismissing Sharkey’s
entire complaint with prejudice without explanation and we
accordingly remand for application of the Foman factors and
the presumption in favor of granting leave to amend with
respect to all claims other than his ADA Title II claim.

CONCLUSION

We hold that California’s three-year limitations period for
an action upon liability created by statute applies to claims
under Title II of the ADA, and that Sharkey’s Title II claim
is not time-barred. We also hold that the district court abused
its discretion in dismissing Sharkey’s remaining claims with
prejudice without affording him leave to amend.

REVERSED AND REMANDED.