                            NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                         NOV 1 2017
                                                                       MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS
                            FOR THE NINTH CIRCUIT

MICHAEL J. MITCHELL,                             No.   16-16848

                Plaintiff-Appellant,             D.C. No. 2:15-cv-01167-TLN-AC

 v.
                                                 MEMORANDUM*
SNOWDEN; et al.,

                Defendants-Appellees.

                    Appeal from the United States District Court
                       for the Eastern District of California
                     Troy L. Nunley, District Judge, Presiding

                           Submitted October 23, 2017**

Before:      McKEOWN, WATFORD, and FRIEDLAND, Circuit Judges.

      Michael J. Mitchell, a California state prisoner, appeals pro se from the

district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging deliberate

indifference to his safety. We have jurisdiction under 28 U.S.C. § 1291. We

review de novo a district court’s dismissal on the basis of the applicable statute of


      *
             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).
limitations. Lukovsky v. City & County of San Francisco, 535 F.3d 1044, 1047

(9th Cir. 2008). We vacate and remand.

      The district court properly concluded that the pendency of Mitchell’s prior

federal action did not toll the statute of limitations. See Cal. Civ. Proc. Code

§§ 335.1, 352.1(a) (two-year statute of limitations for personal injury claims; two-

year tolling period due to incarceration); Jones v. Blanas, 393 F.3d 918, 927 (9th

Cir. 2004) (forum state’s personal injury statute of limitations and tolling laws

apply to § 1983 actions); Martell v. Antelope Valley Hosp. Med. Ctr., 79 Cal. Rptr.

2d 329, 334 (Ct. App. 1998) (a plaintiff’s pursuit of successive claims in the same

forum does not warrant application of equitable tolling). However, Mitchell also

argued that the statute of limitations should be tolled because of his mental illness

and multiple prison transfers. These factors should have been evaluated under

California’s equitable tolling doctrine. See Fink v. Shedler, 192 F.3d 911, 916 (9th

Cir. 1999) (three-pronged test for equitable tolling in California). We vacate the

judgment and remand for further proceedings.

      On remand, the district court should reevaluate whether counsel should be

appointed in light of Mitchell’s mental illness and medical conditions. See

McElyea v. Babbitt, 833 F.2d 196, 199 n.3 (9th Cir. 1987) (evaluation of

                                          2                                    16-16848
exceptional circumstances requires consideration of both the “characteristics of the

claim and the litigant”).

      We do not consider documents and facts not presented to 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.”).

      Appellees shall bear the costs on appeal.

      VACATED and REMANDED.




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