FILED
NOT FOR PUBLICATION MAR 03 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVID THOMAS RHODES, No. 13-17368
Plaintiff - Appellant, D.C. No. 2:12-cv-01971-DGC
v.
MEMORANDUM*
RICARDO E. CHAVEZ, individually and
in his official capacity as Warden of FCI
Phoenix; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Arizona
David G. Campbell, District Judge, Presiding
Submitted February 24, 2016**
Before: LEAVY, FERNANDEZ, and RAWLINSON, Circuit Judges.
David Thomas Rhodes, a former federal prisoner, appeals pro se from the
district court’s judgment dismissing his action brought under Bivens v. Six
Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971),
*
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).
alleging that he was incarcerated beyond the term of his sentence. We have
jurisdiction under 28 U.S.C. § 1291. We review de novo a district court’s
dismissal under Federal Rule of Civil Procedure 12(b)(6). Thompson v. Paul, 547
F.3d 1055, 1058-59 (9th Cir. 2008). We vacate and remand.
The district court dismissed Rhodes’ action as barred by the applicable
statute of limitations. See Ariz. Rev. Stat. 12-542(1) (two-year statute of
limitations for personal injury actions); W. Ctr. For Journalism v. Cederquist, 235
F.3d 1153, 1156 (9th Cir. 2000) (for Bivens claims, federal courts apply the forum
state’s personal injury statute of limitations and federal law for determining
accrual). However, as appellees concede, the dismissal was improper because
Rhodes was pursuing habeas relief when he was released from custody, and thus
his claim did not accrue before his release. See Heck v. Humphrey, 512 U.S. 477,
489-90 (1994) (“[A prisoner’s 42 U.S.C.] § 1983 cause of action for damages
attributable to an unconstitutional conviction or sentence does not accrue until the
conviction or sentence has been invalidated.”); Erlin v. United States, 364 F.3d
1127, 1130-31 (9th Cir. 2004) (explaining that under Heck, a cause of action for
miscalculation of a prisoner’s release date does not accrue until the prisoner has
won a writ of habeas corpus); Martin v. Sias, 88 F.3d 774, 775 (9th Cir. 1996)
(order) (“Heck applies to Bivens actions.”).
2 13-17368
Accordingly, we vacate the dismissal of Rhodes’ action to the extent that the
district court concluded it was barred by the statute of limitations, and remand for
further proceedings. We express no opinion on whether the district court had
personal jurisdiction over defendants Johnson and Watts.
Appellees shall bear the costs on appeal.
VACATED and REMANDED.
3 13-17368