Benjamin R. Schwarz; v. Erwin Meinberg;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BENJAMIN R. SCHWARZ; et al.,
Plaintiffs - Appellants,
v.
ERWIN MEINBERG; et al.,
Defendants - Appellees.
No. 14-55062
D.C. No. 2:13-cv-00356-BRO-
PLA
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Beverly Reid O’Connell, District Judge, Presiding
Argued and Submitted February 8, 2016
Pasadena, California
Before: FARRIS, CLIFTON, and BEA, Circuit Judges.
Benjamin Schwarz and Stephen Yagman appeal the dismissal of their Bivens
action alleging violations of their Fifth and Eighth Amendment rights while they
were inmates at the Metropolitan Detention Center in Los Angeles, California.
FILED
FEB 19 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

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After the district court issued its order dismissing Schwarz’s claims for
failure to exhaust administrative remedies, an en banc decision of this Court held
that disputed facts related to exhaustion are not properly resolved on a motion to
dismiss. Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014) (en banc). Schwarz
has pleaded facts adequate to place in dispute whether exhaustion should be
excused because the prison grievance process was functionally unavailable. See
Nunez v. Duncan, 591 F.3d 1217, 1224 (9th Cir. 2010). Albino therefore controls,
notwithstanding this Court’s prior exhaustion determination in Schwarz v.
Meinberg, 478 F. App’x 394 (9th Cir. 2012). We vacate the district court’s
exhaustion ruling and remand on an open record so that the district court can
address this issue with the benefit of Albino. We express no opinion on whether
42 U.S.C. § 1997e applies to Schwarz, who remains incarcerated in a Canadian
prison.
The district court erred in dismissing Schwarz’s equal protection claim as
insufficiently pleaded. Schwarz has plausibly pleaded factual matter sufficient to
claim that the policy of the Bureau of Prisons discriminated against him as a non-
citizen. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). We express no opinion
as to the validity of his allegations or as to any contention by the government that a
deportable alien is not similarly situated to a citizen for this purpose.
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The district court did not err in dismissing Schwarz’s due process claim with
prejudice. To state a cognizable due process claim, a plaintiff must first identify a
protected life, liberty, or property interest of which he has been deprived. Board of
Regents v. Roth, 408 U.S. 564, 570-71 (1972). Schwarz’s argument that the
grievance process deprived him of access to the courts fails, given that exhaustion
is excused under § 1997e when a grievance process is unavailable. See Sapp v.
Kimbrell, 623 F.3d 813, 823 (9th Cir. 2010).
The district court did not err in dismissing Yagman’s claims as time-barred.
The statute of limitations for a Bivens action follows that of an action under
42 U.S.C. § 1983. Van Strum v. Lawn, 940 F.2d 406, 410 (9th Cir. 1991). The
two-year statute of limitations provided by California Civil Procedure Code
§ 335.1 applies in § 1983 actions. Maldonado v. Harris, 370 F.3d 945, 954 (9th
Cir. 2004). Yagman filed this action on January 17, 2013, over two years after he
was released from Bureau custody on November 8, 2010.
AFFIRMED in part, VACATED in part and REMANDED.
Each party shall bear their own costs.
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