Billy Cepero v. Douglas Gillespie

Ninth Circuit

Billy Cepero v. Douglas Gillespie

668 F. App'x 216

CourtCourt of Appeals for the Ninth Circuit

DecidedAugust 5, 2016

Docket15-15039

StatusUnpublished

This text of 668 F. App'x 216 (Billy Cepero v. Douglas Gillespie) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Billy Cepero v. Douglas Gillespie, 668 F. App'x 216 (9th Cir. 2016).

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Opinion

MEMORANDUM **

Nevada state prisoner Billy Cepero appeals pro se from the district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging federal and state law claims arising out of an arrest. We have jurisdiction under 28 U.S.C. § 1291. We review de novo a dismissal under Fed. R. Civ. P. 12(b)(6). Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005). We reverse and remand.

The district court concluded that Cepe-ro’s complaint was not timely filed. However, the record reflects that Cepero constructively filed a handwritten complaint before the expiration of the applicable statute of limitations period. See Loya v. Desert Sands Unified Sch. Dist., 721 F.2d 279, 281 (9th Cir. 1983) (complaint which arrives in the custody of the court clerk within the statutory period but fails to conform with local rules is nevertheless deemed filed for statute of limitations purposes); see also Ordonez v. Johnson, 254 F.3d 814, 816 (9th Cir. 2001) (pro se prisoner constructively filed amended complaint before filing deadline when it was received but returned unfiled by the district court). Therefore, we reverse the judgment and remand for further proceedings.

We do not consider documents not filed with 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.”).

REVERSED and REMANDED.

**

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

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MEMORANDUM **

Nevada state prisoner Billy Cepero appeals pro se from the district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging federal and state law claims arising out of an arrest. We have jurisdiction under 28 U.S.C. § 1291. We review de novo a dismissal under Fed. R. Civ. P. 12(b)(6). Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005). We reverse and remand.

The district court concluded that Cepe-ro’s complaint was not timely filed. However, the record reflects that Cepero constructively filed a handwritten complaint before the expiration of the applicable statute of limitations period. See Loya v. Desert Sands Unified Sch. Dist., 721 F.2d 279, 281 (9th Cir. 1983) (complaint which arrives in the custody of the court clerk within the statutory period but fails to conform with local rules is nevertheless deemed filed for statute of limitations purposes); see also Ordonez v. Johnson, 254 F.3d 814, 816 (9th Cir. 2001) (pro se prisoner constructively filed amended complaint before filing deadline when it was received but returned unfiled by the district court). Therefore, we reverse the judgment and remand for further proceedings.

We do not consider documents not filed with 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.”).

REVERSED and REMANDED.

**

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

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668 F. App'x 216, Counsel Stack Legal Research, https://law.counselstack.com/opinion/billy-cepero-v-douglas-gillespie-ca9-2016.

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