Joseph Mizzoni v. E. McDaniel , 481 F. App'x 392 ( 2012 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT SEP 25 2012
MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS
JOSEPH L. MIZZONI, No. 11-17443
Plaintiff - Appellant, D.C. No. 3:11-cv-00186-ECR-
WGC
v.
E. K. McDANIEL; et al., MEMORANDUM *
Defendants - Appellees.
Appeal from the United States District Court
for the District of Nevada
Edward C. Reed, Jr., District Judge, Presiding
Submitted September 10, 2012 **
Before: WARDLAW, CLIFTON, and N.R. SMITH, Circuit Judges.
Joseph L. Mizzoni, a Nevada state prisoner, appeals pro se from the district
court’s judgment dismissing his 42 U.S.C. § 1983 action for failure to comply with
the court’s order to file an amended complaint. We have jurisdiction under 28
*
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).
U.S.C. § 1291. We review the district court’s dismissal under 28 U.S.C. § 1915A,
rather than its later dismissal under Federal Rule of Civil Procedure 41(b), because
Mizzoni notified the district court of his intent to stand on his complaint. See
Edwards v. Marin Park, Inc., 356 F.3d 1058, 1063 (9th Cir. 2004). We review de
novo. Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000). We reverse and
remand.
The district court improperly dismissed Mizzoni’s due process claim as time
barred because the statute of limitations was tolled during the inmate appeal
process and, from the face of the complaint, Mizzoni may have filed within the
limitations period. 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.”); Perez v. Seevers, 869 F.2d 425, 426 (9th Cir.
1989) (per curiam) (setting forth the applicable statute of limitations); see also
Cervantes v. City of San Diego, 5 F.3d 1273, 1276-77 (9th Cir. 1993) (noting
dismissal on statute of limitations grounds is inappropriate where tolling may apply
but is not considered). Accordingly, we reverse and remand for further
proceedings.
REVERSED and REMANDED.
2 11-17443