                                                                            FILED
                            NOT FOR PUBLICATION                              JUL 02 2015

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                             FOR THE NINTH CIRCUIT


JASON GIDDINGS,                                  No. 13-35807

               Plaintiff - Appellant,            D.C. No. 2:11-cv-01484-RSM

 v.
                                                 MEMORANDUM*

GREYHOUND LINES INC.; KIRK M.
RHODES,

               Defendants - Appellees.


                    Appeal from the United States District Court
                       for the Western District of Washington
                    Ricardo S. Martinez, District Judge, Presiding

                              Submitted June 22, 2015**

Before:        HAWKINS, GRABER, and W. FLETCHER, Circuit Judges.

      Jason Giddings appeals pro se from the district court’s summary judgment in

his diversity action alleging claims arising out of an incident with a Greyhound bus

driver. We have jurisdiction under 28 U.S.C. § 1291. We review de novo. O’Day

          *
             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).
v. McDonnell Douglas Helicopter Co., 79 F.3d 756, 761 (9th Cir. 1996). We

reverse and remand.

      The district court granted summary judgment because it concluded that

Giddings did not meet his burden of showing he was disabled at the time of the

incident, and thus he was not entitled to statutory tolling and his action was time-

barred. However, the record shows that Giddings was previously diagnosed with a

serious mental illness and lacked awareness of his actions when not taking

medication, that he had a current prescription to treat that illness as of the date of

the incident, and that he acted erratically during the incident, giving rise to an

inference that he was not taking his medication. Therefore, the record shows a

genuine dispute of material fact as to whether Giddings suffered sufficiently from a

disability at the time of the incident to warrant tolling. See Wash. Rev. Code §

4.16.190; Wash. Rev. Code § 11.88.010; Rivas v. Overlake Hosp. Med. Ctr., 189

P.3d 753, 756 (Wash. 2008) (explaining requirements for statutory tolling based on

disability under Washington law); see also O’Day, 79 F.3d at 761 (when reviewing

a grant of summary judgment, this court must “entertain every reasonable inference

in favor of the non-moving party.”). Accordingly, we reverse and remand for

further proceedings.

      We do not consider facts not presented to the district court. See United


                                            2                                     13-35807
States v. Elias, 921 F.2d 870, 874 (9th Cir. 1990) (“[F]acts not presented to the

district court are not part of the record on appeal.”).

      REVERSED and REMANDED.




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