NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 1 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL J. MITCHELL, No. 16-16848
Plaintiff-Appellant, D.C. No. 2:15-cv-01167-TLN-AC
v.
MEMORANDUM*
SNOWDEN; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of California
Troy L. Nunley, District Judge, Presiding
Submitted October 23, 2017**
Before: McKEOWN, WATFORD, and FRIEDLAND, Circuit Judges.
Michael J. Mitchell, a California state prisoner, appeals pro se from the
district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging deliberate
indifference to his safety. We have jurisdiction under 28 U.S.C. § 1291. We
review de novo a district court’s dismissal on the basis of the applicable statute of
*
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).
limitations. Lukovsky v. City & County of San Francisco, 535 F.3d 1044, 1047
(9th Cir. 2008). We vacate and remand.
The district court properly concluded that the pendency of Mitchell’s prior
federal action did not toll the statute of limitations. See Cal. Civ. Proc. Code
§§ 335.1, 352.1(a) (two-year statute of limitations for personal injury claims; two-
year tolling period due to incarceration); Jones v. Blanas, 393 F.3d 918, 927 (9th
Cir. 2004) (forum state’s personal injury statute of limitations and tolling laws
apply to § 1983 actions); Martell v. Antelope Valley Hosp. Med. Ctr., 79 Cal. Rptr.
2d 329, 334 (Ct. App. 1998) (a plaintiff’s pursuit of successive claims in the same
forum does not warrant application of equitable tolling). However, Mitchell also
argued that the statute of limitations should be tolled because of his mental illness
and multiple prison transfers. These factors should have been evaluated under
California’s equitable tolling doctrine. See Fink v. Shedler, 192 F.3d 911, 916 (9th
Cir. 1999) (three-pronged test for equitable tolling in California). We vacate the
judgment and remand for further proceedings.
On remand, the district court should reevaluate whether counsel should be
appointed in light of Mitchell’s mental illness and medical conditions. See
McElyea v. Babbitt, 833 F.2d 196, 199 n.3 (9th Cir. 1987) (evaluation of
2 16-16848
exceptional circumstances requires consideration of both the “characteristics of the
claim and the litigant”).
We do not consider documents and facts not presented to the district court.
See United States v. Elias, 921 F.2d 870, 874 (9th Cir. 1990) (“Documents or facts
not presented to the district court are not part of the record on appeal.”).
Appellees shall bear the costs on appeal.
VACATED and REMANDED.
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