NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 21 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAMAL DAMON HENDRIX, No. 16-16229
Plaintiff-Appellant, D.C. No. 2:13-cv-01527-JAD-
CWH
v.
ROHAN, C/O; et al., MEMORANDUM*
Defendants-Appellees.
Appeal from the United States District Court
for the District of Nevada
Jennifer A. Dorsey, District Judge, Presiding
Submitted April 11, 2017**
Before: GOULD, CLIFTON, and HURWITZ, Circuit Judges.
Jamal Damon Hendrix, a Nevada state prisoner, appeals pro se from the
district court’s judgment on the pleadings in his 42 U.S.C. § 1983 action alleging
various constitutional violations, including excessive force and inadequate medical
care during his pretrial detention. We have jurisdiction under 28 U.S.C. § 1291.
*
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).
We review de novo. Lyon v. Chase Bank USA, N.A., 656 F.3d 877, 883 (9th
Cir. 2011). We vacate and remand.
The district court dismissed Hendrix’s § 1983 claims as time-barred because,
even allowing for tolling while Hendrix was allegedly incompetent, Hendrix’s
claims were barred by the statute of limitations. See Perez v. Seevers, 869 F.2d
425, 426 (9th Cir. 1989) (§ 1983 actions are governed by the forum state’s statute
of limitations for personal injury claims; two-year statute of limitations under
Nevada law). However, Hendrix alleged in his amended complaint that he had
exhausted available administrative grievance procedures at the Clark County
Detention Center. Liberally construed, these allegations show that Hendrix may be
entitled to further tolling on the ground that he was completing the mandatory
exhaustion process. See Brown v. Valoff, 422 F.3d 926, 943 (9th Cir. 2005)
(“[T]he applicable statute of limitations must be tolled while a prisoner completes
the mandatory exhaustion process.”); Cervantes v. City of San Diego, 5 F.3d 1273,
1276-77 (9th Cir. 1993) (noting dismissal as time-barred at the pleading stage is
inappropriate where complaint alleges facts indicating potential tolling may apply);
see also Supermail Cargo, Inc. v. United States, 68 F.3d 1204, 1207 (9th
Cir. 1995) (“[A] complaint cannot be dismissed [for untimeliness] unless it appears
beyond doubt that the plaintiff can prove no set of facts that would establish the
timeliness of the claim.”).
2 16-16229
We vacate and remand for further proceedings.
Appellees shall bear the costs on appeal.
VACATED and REMANDED.
3 16-16229