                                                                           FILED
                             NOT FOR PUBLICATION                            AUG 17 2011

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



SUSAN MAE POLK,                                  No. 10-15889

               Plaintiff - Appellant,            D.C. No. 3:08-cv-01483-MMC

  v.
                                                 MEMORANDUM *
JAMES CAVIN, Deputy; et al.,

               Defendants - Appellees.



                    Appeal from the United States District Court
                       for the Northern District of California
                    Maxine M. Chesney, District Judge, Presiding

                             Submitted August 11, 2011 **

Before:        THOMAS, SILVERMAN, and CLIFTON, Circuit Judges.

       Susan Mae Polk, a California state prisoner, appeals pro se from the district

court’s judgment in her 42 U.S.C. § 1983 action alleging that defendants used

excessive force and violated her right to access the courts. We have jurisdiction

under 28 U.S.C. § 1291. We review de novo. Wyatt v. Terhune, 315 F.3d 1108,

          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
1117 (9th Cir. 2003) (failure to exhaust administrative remedies); Ervin v. Los

Angeles County, 848 F.2d 1018, 1019 (9th Cir. 1988) (statute of limitations and

equitable tolling). We vacate in part, reverse in part, and remand.

       The district court dismissed Polk’s claims against the state defendants

because Polk did not exhaust administrative remedies at the final level of review

until after she had filed her federal action. However, Polk’s grievance was granted

at the first level of review. In light of our recent decision, Harvey v. Jordan, 605

F.3d 681 (9th Cir. 2010), Polk “ha[d] no obligation to appeal from a grant of relief

. . . in order to exhaust [her] administrative remedies . . . . Nor is it [her]

responsibility to ensure that prison officials actually provide the relief they have

promised.” Id. at 685. Accordingly, we vacate and remand for further proceedings

on Polk’s claims against the state defendants.

       The district court dismissed Polk’s claims against the county defendants as

time-barred, concluding that despite Polk’s allegations, defendants were not

equitably estopped from raising a statute of limitations defense. However, “when a

motion to dismiss is based on the running of the statute of limitations, it can be

granted only if the assertions of the complaint, read with the required liberality,

would not permit the plaintiff to prove that the statute was tolled.” Cervantes v.

City of San Diego, 5 F.3d 1273, 1275 (9th Cir. 1993) (alteration, citation, and


                                             2                                    10-15889
internal quotation marks omitted). Polk sufficiently alleged that defendants

threatened and intimated her. See id. at 1276 (“California’s fact-intensive test for

equitable tolling is more appropriately applied at the summary judgment or trial

stage of litigation.”); Ateeq v. Najor, 19 Cal. Rptr. 2d 320, 323-24 (Ct. App. 1993)

(defendant equitably estopped from asserting statute of limitations as defense

where defendant’s repeated threats caused plaintiff to delay filing suit); see also

Socop-Gonzalez v. INS, 272 F.3d 1176, 1195 (9th Cir. 2001) (en banc) (when a

statute of limitations is tolled, the days during a tolled period are not counted

against the limitations period). Accordingly, we reverse and remand for further

proceedings on Polk’s claims against the county defendants.

      Polk’s remaining contentions are unpersuasive.

      Defendants shall bear the costs on appeal.

      VACATED in part, REVERSED in part, and REMANDED.




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