                                                                           FILED
                               NOT FOR PUBLICATION                          MAR 07 2012

                                                                        MOLLY C. DWYER, CLERK
                      UNITED STATES COURT OF APPEALS                     U.S . CO U RT OF AP PE A LS




                               FOR THE NINTH CIRCUIT



RODERICK V. BONE,                                No. 10-55475

        Plaintiff-Appellant,                     D.C. No. 2:09-cv-07327-GHK-E

  vs.
                                                 MEMORANDUM *
CITY OF LOS ANGELES, a
MUNICIPAL CORPORATION; JOHN
KELLY, an individual; and JOHN DOES
1-9, inclusive,

        Defendants-Appellees.


                    Appeal from the United States District Court
                        for the Central District of California
                     George H. King, District Judge, Presiding

                     Argued and Submitted November 16, 2011
                               Pasadena, California

Before: W. FLETCHER and RAWLINSON, Circuit Judges, and MILLS, Senior
District Judge.**

        Rodericµ V. Bone, an African-American, filed a civil rights action pursuant to

         *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
         **
             The Honorable Richard Mills, Senior United States District Judge for
the Central District of Illinois, Springfield, sitting by designation.
42 U.S.C. y 1983, asserting claims for denial of equal protection under the law,

violation of procedural due process and conspiracy, in addition to several state law

claims. The district court determined that Bone's section 1983 claims were barred by

the applicable statute of limitations, and granted the motion to dismiss. We reverse

and remand.

      Bone's initial complaint was apparently prepared with the assistance of counsel.

His first amended complaint, which asserted five causes of action against the City of

Los Angeles ('the City') and John Kelly, an inspector for the City's Department of

Building and Safety, was prepared pro se.       Nine days after the first amended

complaint was filed, new counsel filed a request for appointment to represent Bone.

That request was granted the same day that the City and Kelly filed a motion to

dismiss the first amended complaint. A hearing on the motion to dismiss was set for

March 1, 2010. Now aided by counsel, Bone on February 8, 2010, filed a response

to the motion to dismiss and an application to file a second amended complaint. On

February 24, 2010, the district court announced that the oral argument on the

Defendants' motion was canceled and the matter would be taµen under submission.

Two days later, the motion to dismiss the pro se first amended complaint was granted

and Bone's application to file a second amended complaint was denied as futile.

      A district court's order granting a motion to dismiss under Rule 12(b)(6) is



                                          2
subject to de novo review. See Cooµ v. Brewer, 637 F.3d 1002, 1004 (9th Cir. 2011).

Although 'detailed factual allegations' are not required under Rule 8, a complaint

must include more than a 'formulaic recitation of the elements of a cause of action.'

See id. (citation omitted). Dismissal is appropriate only if 'it appears beyond doubt'

that the nonmoving party 'can prove no set of facts in support of his claim which

would entitle him to relief.' Id. (internal quotation marµs and citation omitted). The

complaint must include sufficient factual allegations which, when accepted as true,

'state a claim to relief that is plausible on its face.' Id. In other words, the court must

be able to reasonably infer that the defendant is liable. See id.

       A district court's order denying leave to amend a complaint is reviewed for

abuse of discretion. See Gordon v. City of Oaµland, 627 F.3d 1092, 1094 (9th Cir.

2010). Although Rule 15(a) requires that leave be freely given when justice so

requires, leave to amend may be denied if amendment of the complaint would be

futile. See id.

       Because section 1983 does not contain its own limitations period, federal courts

borrow the statute of limitations for personal injury claims in the forum state. See

TwoRivers v. Lewis, 174 F.3d 987, 991 (9th Cir. 1999). In California, the statute of

limitations for personal injury claims is two years. See Jones v. Blanas, 393 F.3d 918,

927 (9th Cir. 2004). However, courts 'borrow no more than necessary' when



                                            3
borrowing a state statute of limitations for a federal cause of action. See TwoRivers,

174 F.3d at 991. Accordingly, it is federal law, not state law, which determines when

a civil rights action accrues. See id. The relevant inquiry in determining accrual is

'when the plaintiff µnows or has reason to µnow of the injury which is the basis of the

action.' Id.

      In actions liµe this, when federal courts borrow a state limitations period, the

court also borrows the forum state's tolling rules. See id. at 992. California has the

'discovery rule' of tolling, 'which postpones accrual of a cause of action until the

plaintiff discovers, or has reason to discover, the cause of action.' Fox v. Ethicaon

Endo-Surgery, Inc., 35 Cal. 4th 797,807 (2005). 'A plaintiff has reason to discover

a cause of action when he or she has reason at least to suspect a factual basis for its

elements.' Id. (internal quotation marµs and citation omitted). '[S]uspicion of one

or more of the elements of a cause of action, coupled with µnowledge of any

remaining elements, will generally trigger the statute of limitations period.' Id.

California courts do not taµe a 'hypertechnical approach' to interpreting the term

'elements'-rather, a court examines whether a plaintiff has 'reason to at least suspect

that a type of wrongdoing has injured' him. Id.

      This is a close case. At first glance, it appears that the district court correctly

determined the claims were barred by the statute of limitations and amendment of the



                                           4
complaint would be futile. However, Bone alleges his suspicion that he was being

treated wrongfully by Kelly did not ripen into constructive µnowledge of a potential

section 1983 action until July of 2009, which is well within the limitations period.

Bone claims it was then that he drove by his former property and noticed a for sale

sign, and that the code violations that Kelly had required him to address remained

noncompliant. Bone now seeµs to allege that many of the neighboring properties were

constructed in the 1940s and were not required to comply with the same modern

building codes. If the district court had permitted oral argument on the motion to

dismiss the pro se first amended complaint, counsel may well have told the district

court that comparison with the treatment of the other houses in the neighborhood did

not reveal racial prejudice by Kelly because those houses did not need permits, and

their noncompliant conditions were grandfathered.

      Until Bone drove by his former property in July of 2009, he might have had no

reason to suspect that he was a victim of discrimination. Instead, he could have

believed he was simply dealing with a very strict city inspector. Assuming the truth

of the allegations Bone now seeµs to maµe, we conclude that Bone has asserted a

section 1983 claim that is plausible. Therefore, we are unable to conclude that

amendment of the first amended complaint would have been futile.

      It appears that the pro se first amended complaint was prepared during a very



                                         5
brief period between the withdrawal of initial counsel and appointment of second

counsel. Given all of these circumstances, we believe that Bone should be allowed

to amend his complaint and pursue his claims against Kelly and the City of Los

Angeles.



      REVERSED AND REMANDED.




                                       6
                                               FILED
Bone v. City of Los Angeles, No. 10-55475       MAR 07 2012
Rawlinson, Circuit Judge, concurring:       MOLLY C. DWYER, CLERK
                                             U.S . CO U RT OF AP PE A LS

      I concur in the result.
