United States v. 2020-07-21 | 19-17426 | C. GILMORE V. C. SILVA | nonprecedential | memorandum disposition |

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

C. DWAYNE GILMORE,

Plaintiff-Appellant,

v.

C. SILVA, Office Technician, Inmate
Assignment Office; et al.,

Defendants-Appellees.

No. 19-17426

D.C. No. 4:19-cv-02689-JSW

MEMORANDUM
*

Appeal from the United States District Court
for the Northern District of California
Jeffrey S. White, District Judge, Presiding

Submitted July 14, 2020
**

Before: CANBY, FRIEDLAND, and R. NELSON, Circuit Judges.

California state prisoner C. Dwayne Gilmore appeals pro se from the district
court’s judgment dismissing his 42 U.S.C. § 1983 action alleging First Amendment
and Religious Land Use and Institutionalized Persons Act (“RLUIPA”) claims.
We have jurisdiction under 28 U.S.C. § 1291. We review de novo. Byrd v.

*
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).
FILED

JUL 21 2020

MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

2 19-17426
Maricopa Cty. Bd. of Supervisors, 845 F.3d 919, 922 (9th Cir. 2017) (dismissal of
an action under 28 U.S.C. § 1915A); Pouncil v. Tilton, 704 F.3d 568, 574 (9th Cir.
2012) (dismissal of an action as time-barred). We vacate and remand.
The district court concluded that Gilmore’s action was untimely because he
did not file it within the applicable four-year statute of limitations and he did not
state a basis for equitable tolling. However, Gilmore alleges in his complaint that
he was exhausting his administrative remedies under the Prison Litigation Reform
Act (“PLRA”) during the limitations period, which is a basis for tolling the statute
of limitations. See Soto v. Unknown Sweetman, 882 F.3d 865, 875 (9th Cir. 2018)
(holding that a prisoner “is entitled to tolling [of the applicable statute of
limitations] while he was actively exhausting his remedies” under the PLRA); see
also Fuqua v. Ryan, 890 F.3d 838, 844 (9th Cir. 2018) (explaining that “RLUIPA
incorporates the administrative exhaustion requirements of the . . . PLRA”). We
vacate and remand for the district court to consider, in the first instance, whether
Gilmore is entitled to toll the statute of limitations during the period of time he was
exhausting his administrative remedies under the PLRA, and, if appropriate, to
provide Gilmore with an opportunity to submit briefing on this issue.
Gilmore’s motion for appointment of counsel on remand (Docket Entry No.
5) is denied without prejudice to renewing this motion before the district court.
VACATED and REMANDED.