Susan Polk v. James Cavin , 447 F. App'x 840 ( 2011 )

FILED
NOT FOR PUBLICATION AUG 17 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
SUSAN MAE POLK, No. 10-15889
Plaintiff - Appellant, D.C. No. 3:08-cv-01483-MMC
v.
MEMORANDUM *
JAMES CAVIN, Deputy; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Northern District of California
Maxine M. Chesney, District Judge, Presiding
Submitted August 11, 2011 **
Before: THOMAS, SILVERMAN, and CLIFTON, Circuit Judges.
Susan Mae Polk, a California state prisoner, appeals pro se from the district
court’s judgment in her 42 U.S.C. § 1983 action alleging that defendants used
excessive force and violated her right to access the courts. We have jurisdiction
under 28 U.S.C. § 1291. We review de novo. Wyatt v. Terhune, 315 F.3d 1108,
*
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).
1117 (9th Cir. 2003) (failure to exhaust administrative remedies); Ervin v. Los
Angeles County, 848 F.2d 1018, 1019 (9th Cir. 1988) (statute of limitations and
equitable tolling). We vacate in part, reverse in part, and remand.
The district court dismissed Polk’s claims against the state defendants
because Polk did not exhaust administrative remedies at the final level of review
until after she had filed her federal action. However, Polk’s grievance was granted
at the first level of review. In light of our recent decision, Harvey v. Jordan, 605
F.3d 681 (9th Cir. 2010), Polk “ha[d] no obligation to appeal from a grant of relief
. . . in order to exhaust [her] administrative remedies . . . . Nor is it [her]
responsibility to ensure that prison officials actually provide the relief they have
promised.” Id. at 685. Accordingly, we vacate and remand for further proceedings
on Polk’s claims against the state defendants.
The district court dismissed Polk’s claims against the county defendants as
time-barred, concluding that despite Polk’s allegations, defendants were not
equitably estopped from raising a statute of limitations defense. However, “when a
motion to dismiss is based on the running of the statute of limitations, it can be
granted only if the assertions of the complaint, read with the required liberality,
would not permit the plaintiff to prove that the statute was tolled.” Cervantes v.
City of San Diego, 5 F.3d 1273, 1275 (9th Cir. 1993) (alteration, citation, and
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internal quotation marks omitted). Polk sufficiently alleged that defendants
threatened and intimated her. See id. at 1276 (“California’s fact-intensive test for
equitable tolling is more appropriately applied at the summary judgment or trial
stage of litigation.”); Ateeq v. Najor, 19 Cal. Rptr. 2d 320, 323-24 (Ct. App. 1993)
(defendant equitably estopped from asserting statute of limitations as defense
where defendant’s repeated threats caused plaintiff to delay filing suit); see also
Socop-Gonzalez v. INS, 272 F.3d 1176, 1195 (9th Cir. 2001) (en banc) (when a
statute of limitations is tolled, the days during a tolled period are not counted
against the limitations period). Accordingly, we reverse and remand for further
proceedings on Polk’s claims against the county defendants.
Polk’s remaining contentions are unpersuasive.
Defendants shall bear the costs on appeal.
VACATED in part, REVERSED in part, and REMANDED.
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