NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 9 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

CARLOS ARMANDO ORTEGA, No. 19-17547

Plaintiff-Appellant, D.C. No. 4:19-cv-00319-HSG

v. MEMORANDUM* SANTA CLARA COUNTY JAIL; et al.,

Defendants,

and

A. FLORES, Correctional Officer; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Northern District of California Haywood S. Gilliam, Jr., District Judge, Presiding

Argued and Submitted November 15, 2021 San Francisco, California

Before: PAEZ and FRIEDLAND, Circuit Judges, and KORMAN,** District Judge.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Edward R. Korman, United States District Judge for the Eastern District of New York, sitting by designation. Appellant Carlos Armando Ortega, who is in psychiatric detention, appeals

the district court’s dismissal without leave to amend of his 42 U.S.C. § 1983

complaint for failure to state a claim under Rule 12(b)(6) of the Federal Rules of

Civil Procedure. We have jurisdiction under 28 U.S.C. § 1291. We reverse and

remand for further proceedings.

The district court determined that the statute of limitations for Ortega’s

complaint expired on December 12, 2014 and dismissed his complaint as

“untimely.” Plaintiffs are generally not required to “plead around affirmative

defenses.” U.S. Commodity Futures Trading Comm’n v. Monex Credit Co., 931 F.3d 966, 972 (9th Cir. 2019). Rather, “[d]ismissal under Rule 12(b)(6) on the

basis of an affirmative defense is proper only if the defendant shows some obvious

bar to securing relief on the face of the complaint.” ASARCO, LLC v. Union Pac.

R.R. Co., 765 F.3d 999, 1004 (9th Cir. 2014). Thus, “[a] motion to dismiss based

on the running of the statute of limitations period may be granted only ‘if the

assertions of the complaint, read with the required liberality, would not permit the

plaintiff to prove that the statute was tolled.’” Supermail Cargo, Inc. v. United

States, 68 F.3d 1204, 1206–07 (9th Cir. 1995) (citing Jablon v. Dean Witter &

Co., 614 F.2d 677, 682 (9th Cir. 1980)). Under this standard, Ortega has not

pleaded himself out of court by failing to plead around the statute of limitations.

Ortega may be able to establish entitlement to tolling. Under California

2 law,1 Ortega may be entitled to statutory tolling if he lacked “the legal capacity to

make decisions” when his cause of action accrued, Cal. Civ. Proc. Code § 352(a),

or to equitable tolling, if he demonstrates “excusable delay,” Johnson v.

Henderson, 314 F.3d 409, 414 (9th Cir. 2002).2

The district court found that Ortega was not entitled to statutory tolling

because he did not “present[] evidence supporting his allegation” that he lacked the

legal capacity to make decisions in any of his filings. The district court found that

Ortega was not entitled to equitable tolling because he did not “demonstrate[] the

necessary reasonable and good faith conduct required,” as he was able to litigate

other lawsuits during the time period at issue.3 This is the incorrect Rule 12(b)(6)

1 Federal courts apply the forum state’s tolling laws to 42 U.S.C. § 1983 cases. Jones v. Blanas, 393 F.3d 918, 927 (9th Cir. 2004). 2 California applies a stop-clock approach to equitable tolling: “the limitations period stops running during the tolling event, and begins to run again only when the tolling event has concluded.” Lantzy v. Centex Homes, 73 P.3d 517, 523 (Cal. 2003), as modified (Aug. 27, 2003) (emphasis in original). 3 The district court properly took judicial notice of the list of Ortega’s other cases. Fed. R. Evid. 201(b); see Est. of Blue v. County of Los Angeles, 120 F.3d 982, 984 (9th Cir. 1997) (taking judicial notice of court filings in a related case to affirm the district court's decision to dismiss the plaintiff's complaint as untimely and deny the plaintiff equitable tolling). Moreover, these materials, even if considered, do not prove that Ortega’s complaint is untimely. While Ortega’s litigation history might suggest that he had the capacity to litigate, there could be factual questions about whether Ortega was actually competent. For example, counsel or another prisoner could have helped him file lawsuits. And, even if Ortega was competent enough to file certain lawsuits on his own, it is possible that Ortega was only competent during brief windows of time—windows that add up to much less than two years.

3 standard; Ortega need not “demonstrate” or “present evidence” at this stage.

Rather, he must make factual allegations that show a plausible claim for relief,

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)), and do not foreclose the possibility that he may establish

statutory or equitable tolling, Supermail Cargo, 68 F.3d at 1206–07. The face of

his complaint does not foreclose the possibility that Ortega may be able to

demonstrate that he lacked the legal capacity to make decisions during the relevant

time period or that he excusably delayed filing his suit. Because the district court

erred in dismissing Ortega’s complaint, we reverse and remand for further

proceedings.

REVERSED AND REMANDED.

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