                                                               F I L E D
                                                         United States Court of Appeals
                                                                 Tenth Circuit
                 UNITED STATES COURT OF APPEALS
                                                                AUG 16 2004
                              TENTH CIRCUIT
                                                            PATRICK FISHER
                                                                       Clerk

ETHAN ERWIN ROBERTS,

            Plaintiff - Appellant,

      v.                                           No. 03-2269
                                              (D. Ct. No. Civ-03-686
LAWRENCE BARRERAS, Senior Director,                 MCA/LCS)
Cornell Correctional Institution/Santa Fe          (D. N. Mex.)
County Detention Center (SFCDC);
WILFRED ROMERO, Assistant Director,
Cornell Correctional Institution/SFCDC;
MAJOR ROMERO, Security Chief, Cornell
Correctional Institution/SFCDC;
CAPTAIN/LT. HICKMAN, Supervisor,
Cornell Correctional Institution/SFCDC;
CAROLINE KINGSTON, MD, Health
Services/Correctional Medical Services,
Inc./SFCDC; DONNA DEMING, MD,
Health Services/Correctional Medical
Services, Inc./SFCDC; DR. STOLLER,
Health Services/Correctional Medical
Services, Inc./SFCDC; ERIN FIRE, P.A.C.,
Health Services/Correctional Medical
Services, Inc./SFCDC; ROBYNN BELL,
Administrator, Health Services/Correctional
Medical Services, Inc./SFCDC; MR.
DESORMEAUX, Administrator, Health
Services/Correctional Medical Services,
Inc./SFCDC; ANNE HALL, Quality
Assurance, Health Services/Correctional
Medical Services, Inc./SFCDC; RICK
PLOOF, Deputy U.S. Marshal, Operations
Supervisor, U.S. Marshal Service; SANTA
FE COUNTY; CORNELL CORRECTIONS
INC.; CORRECTIONAL MEDICAL
SERVICES, INC.; JOHN/JANE DOES,
 unknown at time of filing of this complaint
 and having a nexus to the damages of the
 plaintiff; all parties listed above are sued in
 their individual capacities and/or official
 capacities,

              Defendants - Appellees.




                            ORDER AND JUDGMENT *


Before TACHA, Chief Circuit Judge, BRISCOE, and HARTZ, Circuit Judges.


      After examining the briefs and the appellate record, this three-judge panel

has determined unanimously that oral argument would not be of material

assistance in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th

Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.

      Plaintiff-Appellant Ethan Erwin Roberts, a federal prisoner proceeding pro

se, filed this action against Defendants-Appellees Lawrence Barreras et al. under

Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S.

388 (1971), alleging Eighth Amendment violations from forced second-hand

smoke exposure during his incarceration. Mr. Roberts appeals the District



      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

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Court’s sua sponte dismissal of his complaint. We take jurisdiction under 28

U.S.C. § 1291, REVERSE, and REMAND.

                                I. BACKGROUND

      Mr. Roberts was incarcerated from April 16, 1999, to June 8, 2000, at the

Santa Fe, New Mexico, County Detention Center. He claims in his complaint

that, during this time, he was exposed to second-hand tobacco smoke, denied

necessary medical care, denied access to the courts, and suffered personal injuries

as a result. Alleging violations of the Eighth Amendment to the Federal

Constitution, Mr. Roberts executed his complaint on May 29, 2003, postmarked it

on June 5, and filed it with the District Court on June 6.

      Upon a report and recommendation from the magistrate judge, the District

Court dismissed Mr. Roberts’s claim sua sponte, see 28 U.S.C. § 1915(e)(2), for

failure to state a claim, see Fed. R. Civ. P. 12(b)(6), reasoning that the applicable

three-year statute of limitations had run. See N.M. Stat. Ann. § 37-1-8 (setting

the limitations period for personal-injury claims). 1 The District Court concluded

from the complaint that Mr. Roberts knew of his injuries as early as June 1999,



      1
       A Bivens action is subject to the same statute of limitations as a 42 U.S.C.
§ 1983 suit. Industrial Constructors Corp. v. United States Bureau of
Reclamation, 15 F.3d 963, 968 (10th Cir. 1994). A § 1983 action borrows the
personal-injury statute of limitations of the state where the action accrues.
Garcia v. Wilson, 731 F.2d 640, 651 (10th Cir. 1984), aff’d sub nom. Wilson v.
Garcia, 471 U.S. 261, 280 (1985).

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thus rendering the statute of limitations expired in June 2002—a year before the

filing of this case. On appeal, Mr. Roberts argues that his filing of mandatory

administrative grievances should equitably toll the statute of limitations.

                            II. STANDARD OF REVIEW

       “The court’s function on a Rule 12(b)(6) motion is not to weigh potential

evidence that the parties might present at trial, but to assess whether the

plaintiff’s complaint alone is legally sufficient to state a claim for which relief

may be granted.” Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226,

1236 (10th Cir. 1999) (quotation omitted). We accept all well-pleaded factual

allegations in the complaint as true and view them in the light most favorable to

the nonmoving party. Id. Because legal sufficiency is a question of law, we

review the district court’s disposition of a Rule 12(b)(6) motion de novo.    Id.

                                  III. DISCUSSION

       On appeal, Mr. Roberts argues that we should equitably toll his claim for

the time during which he sought mandatory administrative relief. If he meets the

requirements for equitable tolling, we agree.

       Under federal law, prisoners must exhaust “such administrative remedies as

are available” before suing over prison conditions. 42 U.S.C. § 1997e(a). The

exhaustion requirement applies even if the prisoner only requests monetary

damages unavailable through administrative channels. Booth v. Churner, 532


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U.S. 731, 741 (2001) (holding that § 1997e(a) requires a § 1983 prisoner-plaintiff

to exhaust administrative remedies before filing suit, even when only requesting

monetary damages), overruling in part Garrett v. Hawk, 127 F.3d 1263, 1267

(10th Cir. 1997); see also Yousef v. Reno, 254 F.3d 1214, 1216 n.1 (10th Cir.

2001) (applying Booth in a Bivens case).

      Reading Mr. Roberts’s pro se complaint liberally, Haines v. Kerner, 404

U.S. 519, 520-21 (1972), we note at least three references to the filing of

administrative grievances prior to the filing of this lawsuit. Compl. at 3-A-5, 3-

A-6, 4-B-1, App. to D-3. Every circuit to address the issue has held that the filing

of a mandatory administrative grievance tolls the statute of limitations for § 1983

and Bivens claims. See, e.g., Leal v. Georgia Dep’t. of Corrections, 254 F.3d

1276, 1280 (11th Cir. 2001) (citing other circuit decisions).

      The District Court did not address the tolling issue, even though Mr.

Roberts claims in his complaint that he filed grievances. A district court’s

decision to dismiss a complaint under § 1915(e)(2) “cannot serve as a factfinding

process for the resolution of disputed facts.” Fratus v. Deland, 49 F.3d 673, 675

(10th Cir. 1995) (internal quotation omitted). In Fratus, we held “that the district

court improperly dismissed [the] complaint by raising sua sponte a statute of

limitations defense that was neither patently clear from the face of the complaint

nor rooted in adequately developed facts.” Id. Similarly, because Mr. Roberts


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alleges that he filed grievances required by § 1997e(a), the statute of limitations

defense is not “patently clear from the face of the complaint.” Id. Thus, we hold

that, because the complaint alleges the filing of mandatory administrative

grievances, the District Court committed reversible error in dismissing the

complaint sua sponte without considering whether equitable tolling is appropriate.

On remand, the District Court should determine whether the alleged

administrative filings toll the applicable limitations period.

       It is not entirely settled whether New Mexico law or federal law provides

the appropriate tolling rule in this case.   Compare Leal, 254 F.3d at 1280 (state

law provides the appropriate statute of limitations tolling rules)   with Rodriguez v.

Holmes , 963 F.2d 799, 805 (5th Cir. 1992) (“Even if Texas did not provide a

haven for equity, federal courts possess the power to use equitable principles to

fashion their own tolling provisions in exceptional situations in which state

statutes of limitations eradicate rights or frustrate policies created by federal law.

. . .”). Because we need not resolve this legal uncertainty before the District

Court makes its factual findings, we do not reach this question today.

       Finally, we note that this determination involves both legal and factual

issues. See Leal , 254 F.3d at 1280 (“If the district court resolves this legal issue

in favor of tolling, then the court should address the factual issue of whether [the

plaintiff] pursued administrative remedies such that sufficient tolling occurred to


                                             -6-
enable [him] to avoid a statute of limitations bar.”). We leave the order of this

determination to the discretion of the District Court. For instance, the District

Court need not decide the legal question of whether equitable tolling applies, if it

finds that, as a factual matter, the administrative filings could not sufficiently toll

the statute of limitations even if tolling were applicable. If the District Court first

conducts this factual inquiry, it should consider authorizing service of the

Defendants, b ecause its power to dismiss claims sua sponte under § 1915(e)(2)

“cannot serve as a factfinding process for the resolution of disputed facts.”

Fratus, 49 F.3d at 675.

                                 IV. CONCLUSION

      For the foregoing reasons, we REVERSE and REMAND.

                                         ENTERED FOR THE COURT,



                                         Deanell Reece Tacha
                                         Chief Circuit Judge




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