Angel Soto v. Unknown Sweetman , 882 F.3d 865 ( 2018 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANGEL SOTO, No. 16-15497
Plaintiff-Appellant,
D.C. No.
v. 2:14-cv-01323-
SMM
UNKNOWN SWEETMAN, ADOC Sgt.
at SMU II Browning Unit;
UNKNOWN ZAMORA, ADOC CO II OPINION
at SMU II Browning Unit;
UNKNOWN HARRIS, ADOC CO II at
SMU II Browning Unit; UNKNOWN
JONES, ADOC CO II at SMU II
Browning Unit; UNKNOWN SCHELL,
ADOC CO II at SMU II Browning
Unit; UNKNOWN EMORE, ADOC CO
II at SMU II Browning Unit;
UNKNOWN VICTORIA, ADOC Sgt. at
SMU II Browning Unit; UNKNOWN
BOPE, ADOC CO II at SMU II
Browning Unit; UNKNOWN SWANEY,
ADOC Sgt. at SMU II Browning
Unit; UNKNOWN MCCLELLAN,
ADOC Sgt. at SMU II Browning
Unit,
Defendants-Appellees.
2 SOTO V. SWEETMAN
Appeal from the United States District Court
for the District of Arizona
Stephen M. McNamee, Senior District Judge, Presiding
Argued and Submitted December 5, 2017
San Francisco, California
Filed February 9, 2018
Before: Susan P. Graber and N. Randy Smith, Circuit
Judges, and Lee H. Rosenthal,* Chief District Judge.
Opinion by Chief District Judge Rosenthal;
Dissent by Judge N.R. Smith
*
The Honorable Lee H. Rosenthal, Chief United States District Judge
for the Southern District of Texas, sitting by designation.
SOTO V. SWEETMAN 3
SUMMARY**
Prisoner Civil Rights
The panel affirmed the district court’s summary judgment
in an action brought by an Arizona state inmate pursuant to
42 U.S.C. § 1983 alleging excessive-force and sexual-assault
claims against ten Arizona Department of Corrections
officers.
The district court found that the two-year statute of
limitations barred plaintiff’s claims because his claims
accrued in 2010 when the alleged incident occurred but he did
not sue until 2014. Plaintiff argued that his claims did not
accrue until 2014, because he was told that the Criminal
Investigation Unit needed to complete its investigation before
he could file an administrative grievance. Plaintiff did not
hear from the Criminal Investigation Unit until 2014, at
which point he restarted the administrative grievance process,
exhausted his administrative remedies and filed suit.
The panel first declined to adopt plaintiff’s proposed rule
that a claim does not accrue until administrative remedies
have been exhausted. The panel held that when, as in this
case, the inmate knows of the acts when they occurred and
knows that he was injured, the claim accrues. The panel held
that the administrative exhaustion requirement justifies
tolling the statute of limitations, but it does not justify
creating a new accrual rule.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
4 SOTO V. SWEETMAN
The panel held that plaintiff was not entitled to equitable
tolling because not only did he fail to include any allegations
in his 2014 complaint that he could not proceed with the
grievance process until the Criminal Investigation Unit
completed its investigation, he failed to submit any
declaration, affidavit, authenticated document, or other
competent evidence to that effect.
Dissenting in part, Judge N. Smith stated that: (1) pro se
inmates need not comply strictly with the rule that a party
must rely on affidavits, depositions, answers to
interrogatories, or admissions to defeat summary judgment;
(2) the panel failed to accord plaintiff’s statement in his
response brief appropriate weight; and (3) viewed in the light
most favorable to plaintiff, the evidence in the record showed
that he diligently pursued the completion of the Criminal
Investigation Unit’s investigation.
COUNSEL
Stephen J. Van Stempvoort (argued), Miller Johnson, Grand
Rapids, Michigan, for Plaintiff-Appellant.
Michelle C. Lombino (argued), Assistant United States
Attorney; Mark Brnovich, Attorney General; Office of the
Attorney General, Phoenix, Arizona; for Defendants-
Appellees.
SOTO V. SWEETMAN 5
OPINION
ROSENTHAL, Chief District Judge:
Angel Soto, an Arizona state inmate, appeals the district
court’s grant of summary judgment dismissing his 42 U.S.C.
§ 1983 excessive-force and sexual-assault claims against ten
Arizona Department of Corrections officers. Soto’s claims
arise from a 2010 incident, but he did not sue until 2014. The
district court held that the two-year statute of limitations
barred his claims. We have jurisdiction under 28 U.S.C.
§ 1291, and we affirm.
I. Background
Soto alleged in his June 2014 complaint that, in April
2010, corrections officers beat him, stomped on him, and
kicked him in the head while he was on mental-health watch;
that the officers strapped him to a gurney and sprayed his
body with mace; and that one or more of the officers sexually
assaulted him by spraying mace into his rectum. Soto alleged
a jaw injury, two broken fingers, and a chin injury requiring
stitches. He sued under § 1983, seeking damages for
violations of his Eighth Amendment rights.
About a month after the alleged assault, in May 2010,
Soto filed a written grievance with the prison, alleging
excessive force and sexual assault. Arizona Department of
Corrections Order 802 sets out a five-step grievance process.
The Order “provides timely administrative remedies to
inmate complaints which might otherwise unnecessarily
burden the courts.” An inmate begins the process by
attempting to resolve a grievance informally with prison staff.
If that fails, the inmate must submit an informal complaint, or
6 SOTO V. SWEETMAN
“inmate letter,” to the prison staff within 10 days of the
incident that caused the complaint. An officer must respond
within 15 days of receiving the inmate letter. The third step
requires the inmate to submit a formal grievance to the
deputy warden within 5 days of receiving the response. The
deputy warden must formally respond within 15 days of
receiving the formal grievance. If the deputy warden denies
the grievance, the inmate may appeal to the warden within
5 days, and the warden must respond within 20 days of
receiving the appeal. Finally, the inmate may appeal the
warden’s decision to the director of the Department of
Corrections within 5 days. The director’s decision is the final
institutional response and the end of the administrative-
remedy process. The inmate may not file suit before that
process is exhausted.
Soto did not sue based on the April 2010 alleged assault
until June 2014. The issues are when the two-year statute of
limitations began to run and when it ended. These issues turn
on when Soto’s cause of action accrued and whether the
statute of limitations was tolled from the date Soto filed his
first inmate letter in 2010 to the date he exhausted his
administrative remedies in 2014.
In his district court filing responding to the defendants’
summary judgment motion, Soto stated that, after he
submitted his first inmate letter in 2010, he was sent to the
Special Services Unit to document his injuries. He stated that
while he was at the Special Services Unit, he was told that the
Criminal Investigation Unit would be notified about his
complaint and would investigate and that he could continue
the grievance process when that Unit completed its
investigation. Soto stated that he was told it would take a
while for the Criminal Investigation Unit to contact him. He
SOTO V. SWEETMAN 7
stated that he did not hear from the Criminal Investigation
Unit until January 2014.
In January 2014, nearly four years after the alleged
assault, Soto submitted a new inmate letter that restarted the
grievance process. In that letter, Soto stated that he had told
a corrections officer that he was waiting for someone from
the Criminal Investigation Unit to talk to him, and that the
officer had told Soto to write down what happened. In
February 2014, Soto submitted another inmate letter about the
2010 incident, stating that a Criminal Investigation Unit
representative had talked to him on January 24, 2014.
Soto filed a formal grievance in March 2014, the third
step in the recommenced grievance process. Three days later,
Soto received the deputy warden’s response that the
allegations were determined to be unfounded. Soto promptly
appealed to the warden. On April 4, 2014, Soto received a
notice from the Criminal Investigation Unit that his sexual-
assault allegations had been investigated and deemed
unfounded because of insufficient evidence. Several days
later, Soto received the warden’s denial of his appeal, which
he promptly appealed to the director. On May 2, 2014, the
director affirmed the warden’s decision, the final step needed
to exhaust Soto’s administrative remedies.1 Soto filed this
suit a month later.
The district court granted the defendants’ summary
judgment motion, ruling that Soto’s claim accrued in April
2010, when the alleged incident occurred and he knew of his
injuries, and that Soto was not entitled to equitable tolling
1
“Defendants concede that Plaintiff ultimately completed the
grievance procedure and his grievances were addressed on the merits.”
8 SOTO V. SWEETMAN
during the three years and nine months before he exhausted
his administrative remedies. The district court held that Soto
presented no competent evidence that he had to wait for the
Criminal Investigation Unit to complete its investigation of
his sexual-assault complaint before he could proceed with the
grievance process. The district court also held that no
competent evidence showed that, during the years Soto was
allegedly waiting to hear from the Criminal Investigation
Unit, he took any action to follow up on his claim or to ask
about the investigation. The district court held that tolling did
not apply to extend the limitations period for three years and
nine months.
Soto raises two issues on appeal. First, Soto argues that,
because the Prison Litigation Reform Act of 1995, as
amended, 42 U.S.C. § 1997e, required him to exhaust his
administrative remedies before filing, his claims from the
2010 incident did not accrue until he exhausted those
remedies in 2014. Second, he argues that, if his claims
accrued in 2010, he is entitled to equitable tolling of the
limitations period from 2010 until 2014, the period during
which he alleges he was exhausting his administrative
remedies.
II. The Legal Standard
We review de novo the district court’s grant of summary
judgment. Fuller v. Idaho Dep’t of Corr., 865 F.3d 1154,
1161 (9th Cir. 2017). “[W]e must determine, viewing the
evidence in the light most favorable to the nonmoving party,
whether there are any genuine issues of material fact and
whether the district court correctly applied the substantive
law.” Id. (alteration in original) (quoting Ray v. Henderson,
SOTO V. SWEETMAN 9
217 F.3d 1234, 1239–40 (9th Cir. 2000)); see also FED. R.
CIV. P. 56(a).
III. Analysis
The Prison Litigation Reform Act provides that “[n]o
action shall be brought with respect to prison conditions
under section 1983 of this title, or any other Federal law, by
a prisoner . . . until such administrative remedies as are
available are exhausted.” 42 U.S.C. § 1997e(a). Exhaustion
is mandatory. The required administrative steps “are defined
not by the [Act], but by the prison grievance process itself.”
Manley v. Rowley, 847 F.3d 705, 711–12 (9th Cir. 2017)
(quoting Jones v. Bock, 549 U.S. 199, 218 (2007)). “This
court has previously emphasized that the [Act] requires only
that a prisoner exhaust available remedies, and that a failure
to exhaust a remedy that is effectively unavailable does not
bar a claim from being heard in federal court.” McBride v.
Lopez, 807 F.3d 982, 986 (9th Cir. 2015).
A. When Did Soto’s Claims Accrue?
Although state law determines the statute of limitations
for § 1983 claims, federal law governs when a claim accrues.
Wallace v. Kato, 549 U.S. 384, 388 (2007). “Accrual is the
date on which the statute of limitations begins to run . . . .”
Lukovsky v. City of San Francisco, 535 F.3d 1044, 1048 (9th
Cir. 2008). A claim accrues “when the plaintiff has ‘a
complete and present cause of action,’ that is, when ‘the
plaintiff can file suit and obtain relief.’” Wallace, 549 U.S.
at 388 (quoting Bay Area Laundry & Dry Cleaning Pension
Tr. Fund v. Ferbar Corp. of Cal., Inc., 522 U.S. 192, 201
(1997)). “[U]nder federal law, a claim accrues when the
plaintiff knows or has reason to know of the injury which is
10 SOTO V. SWEETMAN
the basis of the action.” Lukovsky, 535 F.3d at 1048 (internal
quotation marks omitted).
The Prison Litigation Reform Act’s exhaustion
requirement barred Soto from filing suit until he had
exhausted the administrative remedies specified by the
Arizona Department of Corrections. 42 U.S.C. § 1997e(a).
Only at that point, Soto argues, did he have a “complete and
present” cause of action on which he could file suit and seek
relief. Therefore, Soto argues, his claim could not have
accrued before exhaustion was complete.
This circuit recognizes the potential unfairness that can
result from the intersection of a rule that a claim accrues
when the plaintiff knows of the injury and a rule that requires
the plaintiff to exhaust administrative remedies before suing
on that claim. But exhaustion can take longer than the
limitations period, as it did here. Exhaustion under the Prison
Litigation Reform Act and limitations bars serve separate and
important interests. “The congressional purpose in enacting
§ 1997e(a)[ is] rooted in conservation of judicial resources
through alternative dispute resolution . . . .” Roles v. Maddox,
439 F.3d 1016, 1017 (9th Cir. 2006). Exhaustion creates a
procedural hurdle for inmates seeking to litigate their claims
in federal court, to allow the prison system to act first and to
reduce the quantity and improve the quality of prisoner suits.
See Porter v. Nussle, 534 U.S. 516, 524 (2002) (“Beyond
doubt, Congress enacted § 1997e(a) to reduce the quantity
and improve the quality of prisoner suits; to this purpose,
Congress afforded corrections officials time and opportunity
to address complaints internally before allowing the initiation
of a federal case.”). Statutes of limitation “ensure that claims
are filed before essential evidence disappears.” Belanus v.
Clark, 796 F.3d 1021, 1027 (9th Cir. 2015).
SOTO V. SWEETMAN 11
The circuits do not ameliorate the potential unfairness that
may arise from the intersection of exhaustion and limitations
by delaying accrual until exhaustion is complete. That
procedure can so delay limitations as to frustrate the purpose
of the limitations period. If, as would occur here under
Soto’s proposed rule, accrual is delayed for four years after
the event and limitations runs two years later, memories
would dim, witnesses would be difficult to find, and evidence
would grow stale or disappear. The courts that have
addressed the issue keep the accrual trigger fixed to the
inmate’s knowledge of the injurious event. These courts
apply equitable tolling to extend limitations while the inmate
exhausts his administrative remedies. See Brown v. Valoff,
422 F.3d 926, 942–43 (9th Cir. 2005) (“We do not regard the
intersection of the exhaustion and statute of limitations
requirements as creating a problem for prisoners, however, as
we agree with the uniform holdings of the circuits that have
considered the question that the applicable statute of
limitations must be tolled while a prisoner completes the
mandatory exhaustion process.”); see also Pearson v. Sec’y
Dep’t of Corr., 775 F.3d 598, 603 (3d Cir. 2015); Gonzalez
v. Hasty, 651 F.3d 318, 324 (2d Cir. 2011); Clifford v. Gibbs,
298 F.3d 328, 333 (5th Cir. 2002); Napier v. Preslicka,
314 F.3d 528, 534 n.3 (11th Cir. 2002); Leal v. Ga. Dep’t of
Corr., 254 F.3d 1276, 1280 (11th Cir. 2001) (per curiam);
Johnson v. Rivera, 272 F.3d 519, 522 (7th Cir. 2001); Brown
v. Morgan, 209 F.3d 595, 596 (6th Cir. 2000); Harris v.
Hegmann, 198 F.3d 153, 158 (5th Cir. 1999) (per curiam).
Soto asks this court to adopt a rule that a claim does not
accrue until administrative remedies have been exhausted.
He relies primarily on cases involving contract disputes with
the United States or suits challenging federal agency actions.
These cases are different from cases subject to the Prison
12 SOTO V. SWEETMAN
Litigation Reform Act. In Crown Coat Front Co. v. United
States, 386 U.S. 503 (1967), superseded by statute on other
grounds, as noted in Sikorsky Aircraft Corp. v. United States,
105 Fed. Cl. 657, 669 (2012), the Supreme Court addressed
a government contract requiring a plaintiff to administratively
exhaust claims relating to the contract before filing suit. The
Court held that the claims did not accrue until the
administrative decision was final. Id. at 511. But when a
plaintiff did file suit, the federal court’s role was much more
limited than that of a district court asked to adjudicate a
prisoner’s § 1983 civil rights claims. The court adjudicating
the contract dispute reviews only the agency record and
determines only whether the administrative decision was
arbitrary and capricious. By definition, that cannot be done
before the administrative decision has been made. Id.; see
also United States v. Suntip Co., 82 F.3d 1468, 1476 (9th Cir.
1996) (an action to enforce a contracting officer’s decision
does not accrue until the officer issues the decision);
Donnelly v. United States, 850 F.2d 1313, 1319 (9th Cir.
1988) (a quiet-title action against the United States would not
accrue until the final agency decision had issued); Sherar v.
Harless, 561 F.2d 791, 794 (9th Cir. 1977) (a claim for
wrongful dismissal from IRS employment did not accrue until
the agency’s administrative remedies were exhausted and the
agency record was complete).
By contrast, the alleged acts of excessive force that the
district court examines in a § 1983 prisoner case take place
well before the inmate exhausts his administrative remedies
and the district court may go well beyond the administrative
record in deciding the claim. When, as here, the inmate
knows of the acts when they occurred and knows that he was
injured, the claim accrues. The exhaustion requirement
justifies tolling the statute of limitations, but it does not
SOTO V. SWEETMAN 13
justify creating a new accrual rule. The potential unfairness
of limitations running during exhaustion is better addressed
by equitable tolling.
Soto’s claims accrued when the alleged assault occurred
in 2010 because he knew of his injuries at that time. The
issue is not when the limitations period began, but when it
ended.
B. Is Soto Entitled to Equitable Tolling?
Federal courts in § 1983 actions apply the state statute of
limitations from personal-injury claims and borrow the state’s
tolling rules. TwoRivers v. Lewis, 174 F.3d 987, 991–92 (9th
Cir. 1999). Arizona law requires tolling the statute of
limitations while a claimant pursues Arizona’s prison-
grievance process. See Albano v. Shea Homes Ltd. P’ship,
634 F.3d 524, 533 (9th Cir. 2011) (order) (citing Ariz. Dep’t
of Revenue v. Dougherty, 29 P.3d 862, 869 (Ariz. 2001)).
This circuit has, with other circuits, adopted a mandatory
tolling provision for claims subject to the Prison Litigation
Reform Act. See Brown, 422 F.3d at 942–43.
Soto argues that he is entitled to have the limitations
period tolled from the time he began the grievance process in
May 2010 to when he completed all five steps in April 2014.
Soto argues that after he completed the first two of the five
grievance steps in 2010—by attempting informal resolution
and submitting an inmate letter—a prison staff member told
him that the Criminal Investigation Unit would contact him
as part of investigating his sexual-assault claim and that
“once [the] investigation was done he could start his
grievance process.” Soto raised this argument for the first
time in his responses to the defendants’ summary judgment
14 SOTO V. SWEETMAN
motion and to the district court’s show-cause order. The
district court held that Soto was not entitled to tolling
throughout this period because he presented no competent
evidence that he was required to wait for the Criminal
Investigation Unit to finish its investigation, or that he had
done anything to follow up on his sexual-assault claim,
including asking about the investigation. We agree.
In Thomas v. Ponder, 611 F.3d 1144, 1150 (9th Cir.
2010), this court emphasized that “an ordinary pro se litigant,
like other litigants, must comply strictly with the summary
judgment rules. Pro se inmates are, however, expressly
exempted from this rule.” Id. (citation omitted). “We have,
therefore, held consistently that courts should construe
liberally motion papers and pleadings filed by pro se inmates
and should avoid applying summary judgment rules strictly.”
Id. This rule exempts pro se inmates from strict compliance
with the summary judgment rules, but it does not exempt
them from all compliance. See Blaisdell v. Frappiea,
729 F.3d 1237, 1241 (9th Cir. 2013) (“This rule relieves pro
se litigants from the strict application of procedural rules and
demands that a court not hold missing or inaccurate legal
terminology or muddled draftsmanship against them.”
(emphasis added)); Marrero v. Ives, 682 F.3d 1190, 1192 (9th
Cir. 2012) (even if the petitioner’s filings were construed
liberally, he still failed to identify evidence supporting his
claim).
The dissent argues that the majority is treating Soto as an
ordinary pro se litigant, not an inmate, in declining to
consider his statements in his district court responses as
competent summary judgment evidence. We agree that
Ponder relieves inmates from strict compliance with the
SOTO V. SWEETMAN 15
summary judgment rules; the issue is how much Ponder
relaxes the compliance requirement in this case.
The district court’s finding that Soto failed to do what the
summary judgment rules, even as relaxed, require does not
ignore Ponder, but rather applies it. Reading Ponder to
consider Soto’s arguments as competent evidence comes
close to exempting pro se inmates from any compliance at all.
We do not, as the dissent argues, treat Soto as an ordinary pro
se litigant, much less as a trained attorney. But we do not
entirely release him from any obligation to identify or submit
some competent evidence supporting his claim for equitable
tolling.
This approach does not unfairly require Soto to take steps
beyond his knowledge. The district court followed Rand v.
Rowland, 154 F.3d 952, 962 (9th Cir. 1998) (en banc),
sending Soto a written notice of the requirements for
responding to a motion for summary judgment under the
Federal Rules of Civil Procedure. The notice given to Soto
explicitly told him that:
[w]hen a party you are suing makes a motion
for summary judgment that is properly
supported by declarations (or other sworn
testimony), you cannot simply rely on what
your complaint says. Instead, you must set
out specific facts in declarations, depositions,
answers to interrogatories, or authenticated
documents, as provided in Rule 56(e), that
contradict the facts shown in the Defendants’
declarations and documents and show that
there is a genuine issue of material fact for
trial. If you do not submit your own evidence
16 SOTO V. SWEETMAN
in opposition, summary judgment, if
appropriate, may be entered against you.
Docket Entry No. 63 at 2, Soto v. Ryan (D. Ariz. 2015) (No.
14-1323).
Not only did Soto fail to include any allegations in his
2014 complaint that he could not proceed with the grievance
process until the Criminal Investigation Unit completed its
investigation, he failed to submit any declaration, affidavit,
authenticated document, or other competent evidence to that
effect.
Soto knew how to file a sworn affidavit. He submitted
two of his own sworn affidavits with his response to the
defendants’ motion for summary judgment in this case. The
problem is that neither mentioned anything about being told
of a need to wait for the Criminal Investigation Unit to
investigate to start the grievance process. The affidavits Soto
filed in this case did comply with the summary judgment
evidence rule, but these affidavits did not include any
evidence of the facts that matter here.
The only statements supporting Soto’s tolling argument
are in his unsworn district court responses to the defendants’
motion for summary judgment and to the district court’s
show-cause order. In those responses, Soto stated, for the
first time, that after he filed the 2010 inmate letter about the
alleged assault, he
was called into [the Special Services Unit]
Office so that [the Unit] could take pictures of
all his injuries and was told by [the Special
Services Unit] that [the Criminal Investigation
SOTO V. SWEETMAN 17
Unit] will be notified and that he will be seen
by [the Criminal Investigation Unit] and once
[the Criminal Investigation Unit] investigation
was done he could start his grievance process.
This statement fails to meet the Rand notice requirements. It
is not competent evidence that Soto was told that he could not
pursue the grievance process. The written inmate grievance
requirements Soto had used before and used during this
period clearly state that “[u]nless notified of an extension of
time frames, expiration of any time limit for a response at any
stage in the process shall entitle the inmate grievant to move
to the next step in the process.” The district court correctly
held that the written grievance policies did not require Soto
to wait for the Criminal Investigation Unit.
The district court was also correct in ruling that no
competent evidence showed that, during the three years and
nine months Soto stated that he was waiting to hear from the
Criminal Investigation Unit, he took any steps to follow up on
his claim or ask about the delay in the investigation. The
record shows that Soto was not doing anything to exhaust his
remedies from May 2010 to January 2014. He failed for
almost four years to question the fact that he had heard
nothing about the Criminal Investigation Unit’s investigation.
The summary judgment record includes several letters
Soto wrote to prison staff between 2010 and 2014. In those
letters, Soto wrote that he wanted to talk to the Criminal
Investigation Unit, but he was told it would take some time.
He stated in his December 2012 letter that an unidentified
prison staff member told him “that [the Criminal
Investigation Unit] would come and see me that it takes time
but while I was waiting for [the Criminal Investigation Unit]
18 SOTO V. SWEETMAN
to come talk to me one staff member told me it would not be
in my best interest to push the issue if I wanted to do my time
with no problems.” Soto stated in a November 2013 letter to
prison officials that he filed grievances, but that “most did not
follow through.” Soto did write other grievances from
August 2012 to April 2014—eight, as the district court
noted—but none mentions his sexual-assault or excessive-
force claims. Nor did he say anything in the letters he sent in
December 2012 or in November 2013 about corrections
officers telling him that he had to wait for the Criminal
Investigation Unit to complete its investigation before he
could proceed with the grievance process. Soto’s own letters
show that he did not ask about talking to the Criminal
Investigation Unit from May 2010 until January 2014.
In short, neither Soto’s 2014 complaint allegations, his
sworn affidavits, nor the letters and grievances he wrote from
2010 to 2014, provide competent summary judgment
evidence that he took any steps to inquire into the delay in
hearing from the Criminal Investigation Unit for nearly four
years. Even with the relaxed affidavit requirement and
Ponder’s liberal construction rule, the evidence is not in the
record.
Soto’s own conduct also undermines his argument that he
did nothing for almost four years because he could not pursue
his remedies until the Criminal Investigation Unit had
finished its investigation. When Soto did eventually exhaust
his administrative remedies in 2014, he did not wait for the
Criminal Investigation Unit to finish its investigation. Soto
made an informal complaint and sent an inmate letter to
restart the grievance process in January 2014. He did not
wait for the Criminal Investigation Unit to complete its
investigation, as he now claims he was told he had to, before
SOTO V. SWEETMAN 19
proceeding with the third step in the grievance process by
filing a formal grievance in March 2014. Soto did not receive
notice that the Criminal Investigation Unit had completed its
investigation until April 4, 2014. By then, he had already
appealed to the warden, step four in the grievance process.
Contrary to the dissent’s assertion, the majority does not
improperly weigh evidence or judge credibility. To the
contrary, even assuming that Soto’s statements in his briefs
are competent evidence and viewing that evidence in the light
most favorable to Soto, it does not support equitable tolling.
The written prison policy, the grievances and letters Soto
filed, his own actions, and his district court filings are
insufficient to generate or support an inference that he was
misled by prison authorities into doing nothing to pursue his
grievance for nearly four years, so as to entitle him to
equitable tolling for that period.
As the district court noted, during the years of silence
from the Criminal Investigation Unit, Soto “could have and
should have sought clarification” about the investigation into
his claim. Soto offers no evidence that during the almost
four-year delay, he “took reasonable and appropriate steps to
exhaust his . . . claim,” but “was precluded from exhausting”
by misinformation from prison staff. See Nunez v. Duncan,
591 F.3d 1217, 1224 (9th Cir. 2010) (excusing the inmate’s
failure to exhaust his administrative remedies because he was
misled during the process and sent on “an almost ten-month
wild goose chase,” to the extent that he was precluded from
fully exhausting his remedies despite taking reasonable steps
to diligently inquire about his claim and the steps needed for
exhaustion). Considering the record in its entirety, it is clear
that Soto began to exhaust his administrative remedies when
he filed his initial inmate letter in May 2010. He then
20 SOTO V. SWEETMAN
abandoned the process. He restarted a new grievance process
nearly four years later, in early 2014, completing it within
four months. No competent record evidence supports his
claim that he had to delay for nearly four years or was misled
by staff into delaying, or that he was doing anything to follow
up or ask about his administrative remedies from mid-2010
to early 2014. We affirm the district court’s determination
that there is no basis to toll the statute of limitations between
June 2010 and January 2014.
This approach is consistent with this circuit’s mandatory
tolling rule set out in Brown, which held that “the applicable
statute of limitations must be tolled while a prisoner
completes the mandatory exhaustion process.” 422 F.3d at
943. Soto is entitled to tolling while he was actively
exhausting his remedies—between April and May 2010 and
January and May 2014. See, e.g., Gonzalez, 651 F.3d at 322
(“Our sister circuits . . . [hold] that tolling is applicable during
the time period in which an inmate is actively exhausting his
administrative remedies.” (emphasis added) (citing Brown,
422 F.3d at 943)). Soto is not entitled to tolling during the
time he abandoned the process. Because he is entitled to
tolling only from April to May 2010 and January to May 2,
2014, Soto’s two-year statute of limitations expired long
before he sued. His claims are barred.
IV. Conclusion
We affirm the district court’s grant of summary judgment.
AFFIRMED.
SOTO V. SWEETMAN 21
N.R. SMITH, Circuit Judge, dissenting in part:
I must dissent from the majority opinion, because it
ignores the summary judgment standard of review, thus
granting summary judgment and failing to allow Soto a
hearing regarding equitable tolling.1 Let me explain. First,
although the majority cites Thomas v. Ponder, 611 F.3d 1144(9th Cir. 2010), it ignores the language of Ponder indicating
that pro se inmates need not comply strictly with the rule that
a party must rely on affidavits, depositions, answers to
interrogatories, or admissions to defeat summary judgment.
See id. at 1150. Second, it fails to accord Soto’s statement its
appropriate weight on a summary judgment motion. Third,
the majority manufactures an argument, concerning Soto’s
diligent pursuit of the investigation (a question of fact), that
the government never raised on appeal. Based on that
manufactured argument, the majority incorrectly concludes
that, even if Soto were credited for his statement, there is no
evidence in the record showing that Soto diligently pursued
the investigation.
1
The factual disputes regarding Soto’s claim for equitable tolling can
be resolved at a separate evidentiary hearing, or the district court can
bifurcate the trial. We have previously approved of a bifurcated trial when
there is a genuine dispute of a material fact regarding whether the statute
of limitations was tolled. Burnham Chem. Co. v. Borax Consol., 170 F.2d
569, 573 (9th Cir. 1948). We have further held that, “[w]here factual
questions not readily ascertainable from the declarations of witnesses or
questions of credibility predominate, the district court should hear oral
testimony.” United Commercial Ins. Serv., Inc. v. Paymaster Corp.,
962 F.2d 853, 858 (9th Cir. 1992); Jones v. Cal. Dep’t of Corr., 584 F.
App’x 496, 497 (9th Cir. 2014) (holding that it is an abuse of discretion
to fail to hold an evidentiary hearing in such circumstances).
22 SOTO V. SWEETMAN
I.
The majority opinion treats Soto like an ordinary pro se
litigant rather than a pro se inmate when evaluating his
response to the summary judgment motion; our precedent
requires otherwise. In Bias v. Moynihan, the issue before us
was whether the pro se plaintiff had presented sufficient,
competent evidence to survive summary judgment. 508 F.3d
1212, 1218–19 (9th Cir. 2007). Bias made several statements
in her response brief but did not “go beyond the pleadings
and, by her own affidavits, or by the depositions, answers to
interrogatories, and admissions on file, designate specific
facts showing that there [was] a genuine issue for trial.” Id. at
1218 (internal quotation marks omitted) (quoting Celotex
Corp. v. Catrett, 477 U.S. 317, 324 (1986)). Because Bias did
not submit any documents opposing summary judgment other
than the pleadings, we held that she “failed to demonstrate
that there [were] any genuine issues of material facts in
dispute.” Id. at 1219.
Later, we decided Ponder, wherein we differentiated
between the procedural burden placed on ordinary pro se
litigants and the procedural burden placed on pro se inmates
when responding to a motion for summary judgment. Ponder,
611 F.3d at 1150. In Ponder, we cited Bias and held that pro
se inmates must be treated differently than Bias (an ordinary
pro se litigant). Id. We noted that “Bias v. Moynihan,
508 F.3d 1212 (9th Cir. 2007) holds that an ordinary pro se
litigant, like other litigants, must comply strictly with the
summary judgment rules. Pro se inmates are, however,
expressly exempted from this rule.” Id. (internal citation
omitted). Thus, based on the language of Ponder, a pro se
inmate (unlike the ordinary pro se litigant in Bias) could
defeat summary judgment by submitting factual statements in
SOTO V. SWEETMAN 23
the inmate’s response to summary judgment. The pro se
inmate would not be required to file affidavits, depositions,
answers to interrogatories, or admissions to defeat summary
judgment.2 The factual statements would instead be treated
just like an affidavit for purposes of summary judgment.
In our case, the government moved for summary
judgment, claiming that pro se inmate Soto’s complaint did
not fall within the statute of limitations. In his response brief,
Soto argued that he was entitled to equitable tolling, because
prison staff provided him with faulty information regarding
the grievance process (resulting in a significant delay). In
particular, Soto claimed that a member of the prison staff told
him that he was required to wait for the Criminal
Investigation Unit to complete an investigation of his claim
before further pursuing the grievance process.
Contrary to our language in Ponder, the majority does not
treat this statement like an affidavit, instead holding that the
statement is not “competent evidence,” i.e., evidence
admissible for purposes of summary judgement. Evidence,
Black’s Law Dictionary (10th ed. 2014) (“Admissible
2
Ponder mandates that “courts should construe liberally motion
papers and pleadings filed by pro se inmates and should avoid applying
summary judgment rules strictly.” Ponder, 611 F.3d at 1150 (emphasis
added). To avoid its application, the majority argues that the issue here is
the degree to which Ponder relaxes the summary judgment rules for pro
se inmates. Maj. Op. at 14–15. The majority asserts that Ponder is silent
as to this issue. However, Ponder provided an answer to the question
before us when it cited Bias. If we were not bound by precedent, requiring
Soto to submit his statement in an affidavit may be a perfectly reasonable
requirement to place on a pro se inmate. However, Ponder indicated
otherwise when it cited Bias. Thus, as a three-judge panel, we are not free
to revisit the issue.
24 SOTO V. SWEETMAN
evidence” is “[a]lso termed competent evidence.”). Then, the
majority holds that there is no genuine dispute of material
fact regarding the statute of limitations or Soto’s equitable
tolling claim. Maj. Op. at 18–19. Thus, the majority treats
Soto as an ordinary pro se litigant, requiring him to submit
his statement in an affidavit. In doing so, the majority errs.
II.
Our precedent is clear; a party’s own testimony is
sufficient to create a genuine dispute of material fact even
when other evidence in the record does not support the facts
asserted in the statement. Manley v. Rowley, 847 F.3d 705,
711 (9th Cir. 2017). As we just recently held,
We have refused to find a “genuine issue” as
to a material fact where the only evidence
presented is uncorroborated and self-serving
testimony. However, because a party’s own
testimony will nearly always be “self-
serving,” the mere self-serving nature of
testimony permits a court to discount that
testimony where it states only conclusions and
not facts that would be admissible evidence.
Id. (internal citations, quotation marks, and alterations
omitted). Soto’s statement recites facts, not legal conclusions,
and creates a genuine dispute of material fact. “[A] court
ruling on a motion for summary judgment may not engage in
credibility determinations or the weighing of evidence, as
those are functions reserved for the jury.” Id. (internal
citation, quotation marks, and alterations omitted). Thus,
because Soto’s statement is admissible for purposes of
SOTO V. SWEETMAN 25
summary judgment, the majority cannot weigh the statement
based on other evidence in the record. Id.Contrary to this bedrock principle of summary judgment,
the majority cites evidence in the record in an attempt to
weigh and undermine Soto’s statement. First, the majority
attacks the statement by noting that Soto failed to include the
statement as an allegation in his complaint. Maj. Op. at 16.
Second, the majority continues its attack when it notes that
“Soto knew how to file a sworn affidavit,” but did not include
the statement in either of the affidavits he submitted. Maj.
Op. at 16. Third, the majority attacks the statement’s
reliability when it points to the fact that “the written
grievance policies did not require Soto to wait for the
Criminal Investigation Unit.” Maj. Op. at 17. The legal
significance of Soto’s statement cannot be extinguished by
pointing to competing evidence in the record, because we
may not weigh evidence at summary judgment. Manley,
847 F.3d at 711. Thus, the majority errs.
III.
Lastly, to buttress its decision to grant summary judgment
and thereby deprive Soto of an evidentiary hearing, the
majority asserts that, even if the statement were admissible,
Soto is entitled to equitable tolling only if he can show that he
diligently pursued what he incorrectly believed was the next
step in the grievance process. In making this assertion, the
majority manufactures an argument the government never
made. The government did not argue on appeal that Soto
failed to diligently pursue the investigation; the government
only argued that Soto’s statement was not made in an
affidavit. “Generally, an appellee waives any argument it fails
to raise in its answering brief.” United States v. Dreyer,
26 SOTO V. SWEETMAN
804 F.3d 1266, 1277 (9th Cir. 2015) (en banc). Thus, this
argument (a factual issue) is waived.
In his opening brief, Soto argued that “[t]he statute of
limitations is tolled while the prisoner is pursuing the
remedies that corrections officers informed were required of
him.” To support this argument, Soto claimed that “he
inquired about the pending [Criminal Investigation Unit]
investigation for years, to no avail,” and that these efforts
“suffice” to meet the “reasonable diligence” required for
equitable tolling. The government did not dispute this factual
assertion. Again, the government waived the issue of
reasonable diligence. Id.The government failed to raise this argument for good
reason; viewing the evidence in the light most favorable to
Soto (as we must), the evidence in the record is more than
sufficient to create a genuine dispute regarding this factual
issue. “The diligence required for equitable tolling purposes
is ‘reasonable diligence,’ not ‘maximum feasible diligence.’”
Holland v. Florida, 560 U.S. 631, 653 (2010) (citations and
quotation marks omitted). The majority concludes that
“Soto’s own letters show that he did not ask about talking to
the Criminal Investigation Unit from May 2010 until January
2014.” To the contrary, Soto’s inmate letters show that he
pursued the investigation, that he was told it would take some
time, and that he was threatened on one occasion when he
pursued the investigation. Let us examine the evidence. In
2012, Soto wrote, in an inmate letter, that
[he] was told by [prison] staff that [the
Criminal Investigation Unit] would come and
see [him,] that it takes time[,] but that while
[he] was waiting for [the Criminal
SOTO V. SWEETMAN 27
Investigation Unit] to come talk to [him,] one
staff member told [him] it would not be in
[his] best interest to push the issue if [he]
wanted to do his time with no problems.
In his January 2014 inmate letter, Soto wrote that he “kept
telling [prison staff] that [he] was still waiting on [the
Criminal Investigation Unit].” Thus, viewed in the light most
favorable to Soto, the evidence in the record shows that Soto
diligently pursued the completion of the Criminal
Investigation Unit’s investigation.