                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           FEB 19 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


BENJAMIN R. SCHWARZ; et al.,                     No. 14-55062

              Plaintiffs - Appellants,           D.C. No. 2:13-cv-00356-BRO-
                                                 PLA
 v.

ERWIN MEINBERG; et al.,                          MEMORANDUM*

              Defendants - Appellees.


                   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.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      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.


                                            2
      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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