Kentrell Willis v. United States

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 12 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

KENTRELL WILLIS, No. 20-15127

Plaintiff-Appellant, D.C. No. 1:19-cv-00761-LJO-BAM

v. MEMORANDUM* UNITED STATES OF AMERICA,

Defendant-Appellee.

Appeal from the United States District Court for the Eastern District of California Lawrence J. O’Neill, District Judge, Presiding

Submitted May 11, 2021**

Before: FERNANDEZ, SILVERMAN, and N.R. SMITH, Circuit Judges

Federal prisoner Kentrell Willis appeals pro se from the district court’s

judgment dismissing his action under the Federal Tort Claims Act (“FTCA”) as

barred by the statute of limitations. We have jurisdiction under 28 U.S.C. § 1291.

We review de novo. Gregg v. Haw. Dep’t of Pub. Safety, 870 F.3d 883, 886 (9th

* 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). Cir. 2017) (dismissal as time-barred); Watison v. Carter, 668 F.3d 1108, 1112 (9th

Cir. 2012) (dismissal under 28 U.S.C. § 1915(e)(2)(B)(ii)); Resnick v. Hayes, 213

F.3d 443, 447 (9th Cir. 2000) (dismissal under 28 U.S.C. § 1915A). We vacate

and remand.

The district court determined that Willis’s claims were time-barred and that

Willis was not entitled to equitable tolling. However, Willis alleged that prison

officials withheld his legal materials necessary to file a well-pleaded complaint. It

is not evident at this early stage in the proceedings that equitable tolling would not

apply to extend the limitations proceeding. See 28 U.S.C § 2401(b); Wong v.

Beebe, 732 F.3d 1030, 1052 (9th Cir. 2013) (explaining elements necessary for

equitable tolling); Cervantes v. City of San Diego, 5 F.3d 1273, 1276-77 (9th Cir.

1993) (noting dismissal on the basis of the statute of limitations is disfavored

where the complaint, liberally construed, adequately alleges facts showing the

potential applicability of tolling). Because the action was dismissed at screening,

and the grounds for equitable tolling are highly fact-dependent, we vacate and

remand for the district court to order service of the complaint on defendant.

VACATED and REMANDED.