                             NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS                        FILED
                             FOR THE NINTH CIRCUIT                          SEP 25 2012

                                                                        MOLLY C. DWYER, CLERK
                                                                         U .S. C O U R T OF APPE ALS

JOSEPH L. MIZZONI,                               No. 11-17443

               Plaintiff - Appellant,            D.C. No. 3:11-cv-00186-ECR-
                                                 WGC
  v.

E. K. McDANIEL; et al.,                          MEMORANDUM *

               Defendants - Appellees.



                    Appeal from the United States District Court
                             for the District of Nevada
                    Edward C. Reed, Jr., District Judge, Presiding

                           Submitted September 10, 2012 **

Before:        WARDLAW, CLIFTON, and N.R. SMITH, Circuit Judges.

       Joseph L. Mizzoni, a Nevada state prisoner, appeals pro se from the district

court’s judgment dismissing his 42 U.S.C. § 1983 action for failure to comply with

the court’s order to file an amended complaint. We have jurisdiction under 28




          *
             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).
U.S.C. § 1291. We review the district court’s dismissal under 28 U.S.C. § 1915A,

rather than its later dismissal under Federal Rule of Civil Procedure 41(b), because

Mizzoni notified the district court of his intent to stand on his complaint. See

Edwards v. Marin Park, Inc., 356 F.3d 1058, 1063 (9th Cir. 2004). We review de

novo. Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000). We reverse and

remand.

      The district court improperly dismissed Mizzoni’s due process claim as time

barred because the statute of limitations was tolled during the inmate appeal

process and, from the face of the complaint, Mizzoni may have filed within the

limitations period. See Brown v. Valoff, 422 F.3d 926, 943 (9th Cir. 2005) (“[T]he

applicable statute of limitations must be tolled while a prisoner completes the

mandatory exhaustion process.”); Perez v. Seevers, 869 F.2d 425, 426 (9th Cir.

1989) (per curiam) (setting forth the applicable statute of limitations); see also

Cervantes v. City of San Diego, 5 F.3d 1273, 1276-77 (9th Cir. 1993) (noting

dismissal on statute of limitations grounds is inappropriate where tolling may apply

but is not considered). Accordingly, we reverse and remand for further

proceedings.

      REVERSED and REMANDED.




                                           2                                       11-17443
