Angel Soto v. Unknown Sweetman

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ANGEL SOTO, No. 16-15497

Plaintiff-Appellant,

D.C. No.

v. 2:14-cv-01323-

SMM

UNKNOWN SWEETMAN, ADOC Sgt.

at SMU II Browning Unit;

UNKNOWN ZAMORA, ADOC CO II OPINION

at SMU II Browning Unit;

UNKNOWN HARRIS, ADOC CO II at

SMU II Browning Unit; UNKNOWN

JONES, ADOC CO II at SMU II

Browning Unit; UNKNOWN SCHELL,

ADOC CO II at SMU II Browning

Unit; UNKNOWN EMORE, ADOC CO

II at SMU II Browning Unit;

UNKNOWN VICTORIA, ADOC Sgt. at

SMU II Browning Unit; UNKNOWN

BOPE, ADOC CO II at SMU II

Browning Unit; UNKNOWN SWANEY,

ADOC Sgt. at SMU II Browning

Unit; UNKNOWN MCCLELLAN,

ADOC Sgt. at SMU II Browning

Unit,

Defendants-Appellees.

2 SOTO V. SWEETMAN

Appeal from the United States District Court

for the District of Arizona

Stephen M. McNamee, Senior District Judge, Presiding

Argued and Submitted December 5, 2017

San Francisco, California

Filed February 9, 2018

Before: Susan P. Graber and N. Randy Smith, Circuit

Judges, and Lee H. Rosenthal,* Chief District Judge.

Opinion by Chief District Judge Rosenthal;

Dissent by Judge N.R. Smith

*

The Honorable Lee H. Rosenthal, Chief United States District Judge

for the Southern District of Texas, sitting by designation.

SOTO V. SWEETMAN 3

SUMMARY**

Prisoner Civil Rights

The panel affirmed the district court’s summary judgment

in an action brought by an Arizona state inmate pursuant to

42 U.S.C. § 1983 alleging excessive-force and sexual-assault

claims against ten Arizona Department of Corrections

officers.

The district court found that the two-year statute of

limitations barred plaintiff’s claims because his claims

accrued in 2010 when the alleged incident occurred but he did

not sue until 2014. Plaintiff argued that his claims did not

accrue until 2014, because he was told that the Criminal

Investigation Unit needed to complete its investigation before

he could file an administrative grievance. Plaintiff did not

hear from the Criminal Investigation Unit until 2014, at

which point he restarted the administrative grievance process,

exhausted his administrative remedies and filed suit.

The panel first declined to adopt plaintiff’s proposed rule

that a claim does not accrue until administrative remedies

have been exhausted. The panel held that when, as in this

case, the inmate knows of the acts when they occurred and

knows that he was injured, the claim accrues. The panel held

that the administrative exhaustion requirement justifies

tolling the statute of limitations, but it does not justify

creating a new accrual rule.

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

4 SOTO V. SWEETMAN

The panel held that plaintiff was not entitled to equitable

tolling because not only did he fail to include any allegations

in his 2014 complaint that he could not proceed with the

grievance process until the Criminal Investigation Unit

completed its investigation, he failed to submit any

declaration, affidavit, authenticated document, or other

competent evidence to that effect.

Dissenting in part, Judge N. Smith stated that: (1) pro se

inmates need not comply strictly with the rule that a party

must rely on affidavits, depositions, answers to

interrogatories, or admissions to defeat summary judgment;

(2) the panel failed to accord plaintiff’s statement in his

response brief appropriate weight; and (3) viewed in the light

most favorable to plaintiff, the evidence in the record showed

that he diligently pursued the completion of the Criminal

Investigation Unit’s investigation.

COUNSEL

Stephen J. Van Stempvoort (argued), Miller Johnson, Grand

Rapids, Michigan, for Plaintiff-Appellant.

Michelle C. Lombino (argued), Assistant United States

Attorney; Mark Brnovich, Attorney General; Office of the

Attorney General, Phoenix, Arizona; for Defendants-

Appellees.

SOTO V. SWEETMAN 5

OPINION

ROSENTHAL, Chief District Judge:

Angel Soto, an Arizona state inmate, appeals the district

court’s grant of summary judgment dismissing his 42 U.S.C.

§ 1983 excessive-force and sexual-assault claims against ten

Arizona Department of Corrections officers. Soto’s claims

arise from a 2010 incident, but he did not sue until 2014. The

district court held that the two-year statute of limitations

barred his claims. We have jurisdiction under 28 U.S.C.

§ 1291, and we affirm.

I. Background

Soto alleged in his June 2014 complaint that, in April

2010, corrections officers beat him, stomped on him, and

kicked him in the head while he was on mental-health watch;

that the officers strapped him to a gurney and sprayed his

body with mace; and that one or more of the officers sexually

assaulted him by spraying mace into his rectum. Soto alleged

a jaw injury, two broken fingers, and a chin injury requiring

stitches. He sued under § 1983, seeking damages for

violations of his Eighth Amendment rights.

About a month after the alleged assault, in May 2010,

Soto filed a written grievance with the prison, alleging

excessive force and sexual assault. Arizona Department of

Corrections Order 802 sets out a five-step grievance process.

The Order “provides timely administrative remedies to

inmate complaints which might otherwise unnecessarily

burden the courts.” An inmate begins the process by

attempting to resolve a grievance informally with prison staff.

If that fails, the inmate must submit an informal complaint, or

6 SOTO V. SWEETMAN

“inmate letter,” to the prison staff within 10 days of the

incident that caused the complaint. An officer must respond

within 15 days of receiving the inmate letter. The third step

requires the inmate to submit a formal grievance to the

deputy warden within 5 days of receiving the response. The

deputy warden must formally respond within 15 days of

receiving the formal grievance. If the deputy warden denies

the grievance, the inmate may appeal to the warden within

5 days, and the warden must respond within 20 days of

receiving the appeal. Finally, the inmate may appeal the

warden’s decision to the director of the Department of

Corrections within 5 days. The director’s decision is the final

institutional response and the end of the administrative-

remedy process. The inmate may not file suit before that

process is exhausted.

Soto did not sue based on the April 2010 alleged assault

until June 2014. The issues are when the two-year statute of

limitations began to run and when it ended. These issues turn

on when Soto’s cause of action accrued and whether the

statute of limitations was tolled from the date Soto filed his

first inmate letter in 2010 to the date he exhausted his

administrative remedies in 2014.

In his district court filing responding to the defendants’

summary judgment motion, Soto stated that, after he

submitted his first inmate letter in 2010, he was sent to the

Special Services Unit to document his injuries. He stated that

while he was at the Special Services Unit, he was told that the

Criminal Investigation Unit would be notified about his

complaint and would investigate and that he could continue

the grievance process when that Unit completed its

investigation. Soto stated that he was told it would take a

while for the Criminal Investigation Unit to contact him. He

SOTO V. SWEETMAN 7

stated that he did not hear from the Criminal Investigation

Unit until January 2014.

In January 2014, nearly four years after the alleged

assault, Soto submitted a new inmate letter that restarted the

grievance process. In that letter, Soto stated that he had told

a corrections officer that he was waiting for someone from

the Criminal Investigation Unit to talk to him, and that the

officer had told Soto to write down what happened. In

February 2014, Soto submitted another inmate letter about the

2010 incident, stating that a Criminal Investigation Unit

representative had talked to him on January 24, 2014.

Soto filed a formal grievance in March 2014, the third

step in the recommenced grievance process. Three days later,

Soto received the deputy warden’s response that the

allegations were determined to be unfounded. Soto promptly

appealed to the warden. On April 4, 2014, Soto received a

notice from the Criminal Investigation Unit that his sexual-

assault allegations had been investigated and deemed

unfounded because of insufficient evidence. Several days

later, Soto received the warden’s denial of his appeal, which

he promptly appealed to the director. On May 2, 2014, the

director affirmed the warden’s decision, the final step needed

to exhaust Soto’s administrative remedies.1 Soto filed this

suit a month later.

The district court granted the defendants’ summary

judgment motion, ruling that Soto’s claim accrued in April

2010, when the alleged incident occurred and he knew of his

injuries, and that Soto was not entitled to equitable tolling

1

“Defendants concede that Plaintiff ultimately completed the

grievance procedure and his grievances were addressed on the merits.”

8 SOTO V. SWEETMAN

during the three years and nine months before he exhausted

his administrative remedies. The district court held that Soto

presented no competent evidence that he had to wait for the

Criminal Investigation Unit to complete its investigation of

his sexual-assault complaint before he could proceed with the

grievance process. The district court also held that no

competent evidence showed that, during the years Soto was

allegedly waiting to hear from the Criminal Investigation

Unit, he took any action to follow up on his claim or to ask

about the investigation. The district court held that tolling did

not apply to extend the limitations period for three years and

nine months.

Soto raises two issues on appeal. First, Soto argues that,

because the Prison Litigation Reform Act of 1995, as

amended, 42 U.S.C. § 1997e, required him to exhaust his

administrative remedies before filing, his claims from the

2010 incident did not accrue until he exhausted those

remedies in 2014. Second, he argues that, if his claims

accrued in 2010, he is entitled to equitable tolling of the

limitations period from 2010 until 2014, the period during

which he alleges he was exhausting his administrative

remedies.

II. The Legal Standard

We review de novo the district court’s grant of summary

judgment. Fuller v. Idaho Dep’t of Corr., 865 F.3d 1154,

1161 (9th Cir. 2017). “[W]e must determine, viewing the

evidence in the light most favorable to the nonmoving party,

whether there are any genuine issues of material fact and

whether the district court correctly applied the substantive

law.” Id. (alteration in original) (quoting Ray v. Henderson,

SOTO V. SWEETMAN 9

217 F.3d 1234, 1239–40 (9th Cir. 2000)); see also FED. R.

CIV. P. 56(a).

III. Analysis

The Prison Litigation Reform Act provides that “[n]o

action shall be brought with respect to prison conditions

under section 1983 of this title, or any other Federal law, by

a prisoner . . . until such administrative remedies as are

available are exhausted.” 42 U.S.C. § 1997e(a). Exhaustion

is mandatory. The required administrative steps “are defined

not by the [Act], but by the prison grievance process itself.”

Manley v. Rowley, 847 F.3d 705, 711–12 (9th Cir. 2017)

(quoting Jones v. Bock, 549 U.S. 199, 218 (2007)). “This

court has previously emphasized that the [Act] requires only

that a prisoner exhaust available remedies, and that a failure

to exhaust a remedy that is effectively unavailable does not

bar a claim from being heard in federal court.” McBride v.

Lopez, 807 F.3d 982, 986 (9th Cir. 2015).

A. When Did Soto’s Claims Accrue?

Although state law determines the statute of limitations

for § 1983 claims, federal law governs when a claim accrues.

Wallace v. Kato, 549 U.S. 384, 388 (2007). “Accrual is the

date on which the statute of limitations begins to run . . . .”

Lukovsky v. City of San Francisco, 535 F.3d 1044, 1048 (9th

Cir. 2008). A claim accrues “when the plaintiff has ‘a

complete and present cause of action,’ that is, when ‘the

plaintiff can file suit and obtain relief.’” Wallace, 549 U.S.

at 388 (quoting Bay Area Laundry & Dry Cleaning Pension

Tr. Fund v. Ferbar Corp. of Cal., Inc., 522 U.S. 192, 201

(1997)). “[U]nder federal law, a claim accrues when the

plaintiff knows or has reason to know of the injury which is

10 SOTO V. SWEETMAN

the basis of the action.” Lukovsky, 535 F.3d at 1048 (internal

quotation marks omitted).

The Prison Litigation Reform Act’s exhaustion

requirement barred Soto from filing suit until he had

exhausted the administrative remedies specified by the

Arizona Department of Corrections. 42 U.S.C. § 1997e(a).

Only at that point, Soto argues, did he have a “complete and

present” cause of action on which he could file suit and seek

relief. Therefore, Soto argues, his claim could not have

accrued before exhaustion was complete.

This circuit recognizes the potential unfairness that can

result from the intersection of a rule that a claim accrues

when the plaintiff knows of the injury and a rule that requires

the plaintiff to exhaust administrative remedies before suing

on that claim. But exhaustion can take longer than the

limitations period, as it did here. Exhaustion under the Prison

Litigation Reform Act and limitations bars serve separate and

important interests. “The congressional purpose in enacting

§ 1997e(a)[ is] rooted in conservation of judicial resources

through alternative dispute resolution . . . .” Roles v. Maddox,

439 F.3d 1016, 1017 (9th Cir. 2006). Exhaustion creates a

procedural hurdle for inmates seeking to litigate their claims

in federal court, to allow the prison system to act first and to

reduce the quantity and improve the quality of prisoner suits.

See Porter v. Nussle, 534 U.S. 516, 524 (2002) (“Beyond

doubt, Congress enacted § 1997e(a) to reduce the quantity

and improve the quality of prisoner suits; to this purpose,

Congress afforded corrections officials time and opportunity

to address complaints internally before allowing the initiation

of a federal case.”). Statutes of limitation “ensure that claims

are filed before essential evidence disappears.” Belanus v.

Clark, 796 F.3d 1021, 1027 (9th Cir. 2015).

SOTO V. SWEETMAN 11

The circuits do not ameliorate the potential unfairness that

may arise from the intersection of exhaustion and limitations

by delaying accrual until exhaustion is complete. That

procedure can so delay limitations as to frustrate the purpose

of the limitations period. If, as would occur here under

Soto’s proposed rule, accrual is delayed for four years after

the event and limitations runs two years later, memories

would dim, witnesses would be difficult to find, and evidence

would grow stale or disappear. The courts that have

addressed the issue keep the accrual trigger fixed to the

inmate’s knowledge of the injurious event. These courts

apply equitable tolling to extend limitations while the inmate

exhausts his administrative remedies. See Brown v. Valoff,

422 F.3d 926, 942–43 (9th Cir. 2005) (“We do not regard the

intersection of the exhaustion and statute of limitations

requirements as creating a problem for prisoners, however, as

we agree with the uniform holdings of the circuits that have

considered the question that the applicable statute of

limitations must be tolled while a prisoner completes the

mandatory exhaustion process.”); see also Pearson v. Sec’y

Dep’t of Corr., 775 F.3d 598, 603 (3d Cir. 2015); Gonzalez

v. Hasty, 651 F.3d 318, 324 (2d Cir. 2011); Clifford v. Gibbs,

298 F.3d 328, 333 (5th Cir. 2002); Napier v. Preslicka,

314 F.3d 528, 534 n.3 (11th Cir. 2002); Leal v. Ga. Dep’t of

Corr., 254 F.3d 1276, 1280 (11th Cir. 2001) (per curiam);

Johnson v. Rivera, 272 F.3d 519, 522 (7th Cir. 2001); Brown

v. Morgan, 209 F.3d 595, 596 (6th Cir. 2000); Harris v.

Hegmann, 198 F.3d 153, 158 (5th Cir. 1999) (per curiam).

Soto asks this court to adopt a rule that a claim does not

accrue until administrative remedies have been exhausted.

He relies primarily on cases involving contract disputes with

the United States or suits challenging federal agency actions.

These cases are different from cases subject to the Prison

12 SOTO V. SWEETMAN

Litigation Reform Act. In Crown Coat Front Co. v. United

States, 386 U.S. 503 (1967), superseded by statute on other

grounds, as noted in Sikorsky Aircraft Corp. v. United States,

105 Fed. Cl. 657, 669 (2012), the Supreme Court addressed

a government contract requiring a plaintiff to administratively

exhaust claims relating to the contract before filing suit. The

Court held that the claims did not accrue until the

administrative decision was final. Id. at 511. But when a

plaintiff did file suit, the federal court’s role was much more

limited than that of a district court asked to adjudicate a

prisoner’s § 1983 civil rights claims. The court adjudicating

the contract dispute reviews only the agency record and

determines only whether the administrative decision was

arbitrary and capricious. By definition, that cannot be done

before the administrative decision has been made. Id.; see

also United States v. Suntip Co., 82 F.3d 1468, 1476 (9th Cir.

1996) (an action to enforce a contracting officer’s decision

does not accrue until the officer issues the decision);

Donnelly v. United States, 850 F.2d 1313, 1319 (9th Cir.

1988) (a quiet-title action against the United States would not

accrue until the final agency decision had issued); Sherar v.

Harless, 561 F.2d 791, 794 (9th Cir. 1977) (a claim for

wrongful dismissal from IRS employment did not accrue until

the agency’s administrative remedies were exhausted and the

agency record was complete).

By contrast, the alleged acts of excessive force that the

district court examines in a § 1983 prisoner case take place

well before the inmate exhausts his administrative remedies

and the district court may go well beyond the administrative

record in deciding the claim. When, as here, the inmate

knows of the acts when they occurred and knows that he was

injured, the claim accrues. The exhaustion requirement

justifies tolling the statute of limitations, but it does not

SOTO V. SWEETMAN 13

justify creating a new accrual rule. The potential unfairness

of limitations running during exhaustion is better addressed

by equitable tolling.

Soto’s claims accrued when the alleged assault occurred

in 2010 because he knew of his injuries at that time. The

issue is not when the limitations period began, but when it

ended.

B. Is Soto Entitled to Equitable Tolling?

Federal courts in § 1983 actions apply the state statute of

limitations from personal-injury claims and borrow the state’s

tolling rules. TwoRivers v. Lewis, 174 F.3d 987, 991–92 (9th

Cir. 1999). Arizona law requires tolling the statute of

limitations while a claimant pursues Arizona’s prison-

grievance process. See Albano v. Shea Homes Ltd. P’ship,

634 F.3d 524, 533 (9th Cir. 2011) (order) (citing Ariz. Dep’t

of Revenue v. Dougherty, 29 P.3d 862, 869 (Ariz. 2001)).

This circuit has, with other circuits, adopted a mandatory

tolling provision for claims subject to the Prison Litigation

Reform Act. See Brown, 422 F.3d at 942–43.

Soto argues that he is entitled to have the limitations

period tolled from the time he began the grievance process in

May 2010 to when he completed all five steps in April 2014.

Soto argues that after he completed the first two of the five

grievance steps in 2010—by attempting informal resolution

and submitting an inmate letter—a prison staff member told

him that the Criminal Investigation Unit would contact him

as part of investigating his sexual-assault claim and that

“once [the] investigation was done he could start his

grievance process.” Soto raised this argument for the first

time in his responses to the defendants’ summary judgment

14 SOTO V. SWEETMAN

motion and to the district court’s show-cause order. The

district court held that Soto was not entitled to tolling

throughout this period because he presented no competent

evidence that he was required to wait for the Criminal

Investigation Unit to finish its investigation, or that he had

done anything to follow up on his sexual-assault claim,

including asking about the investigation. We agree.

In Thomas v. Ponder, 611 F.3d 1144, 1150 (9th Cir.

2010), this court emphasized that “an ordinary pro se litigant,

like other litigants, must comply strictly with the summary

judgment rules. Pro se inmates are, however, expressly

exempted from this rule.” Id. (citation omitted). “We have,

therefore, held consistently that courts should construe

liberally motion papers and pleadings filed by pro se inmates

and should avoid applying summary judgment rules strictly.”

Id. This rule exempts pro se inmates from strict compliance

with the summary judgment rules, but it does not exempt

them from all compliance. See Blaisdell v. Frappiea,

729 F.3d 1237, 1241 (9th Cir. 2013) (“This rule relieves pro

se litigants from the strict application of procedural rules and

demands that a court not hold missing or inaccurate legal

terminology or muddled draftsmanship against them.”

(emphasis added)); Marrero v. Ives, 682 F.3d 1190, 1192 (9th

Cir. 2012) (even if the petitioner’s filings were construed

liberally, he still failed to identify evidence supporting his

claim).

The dissent argues that the majority is treating Soto as an

ordinary pro se litigant, not an inmate, in declining to

consider his statements in his district court responses as

competent summary judgment evidence. We agree that

Ponder relieves inmates from strict compliance with the

SOTO V. SWEETMAN 15

summary judgment rules; the issue is how much Ponder

relaxes the compliance requirement in this case.

The district court’s finding that Soto failed to do what the

summary judgment rules, even as relaxed, require does not

ignore Ponder, but rather applies it. Reading Ponder to

consider Soto’s arguments as competent evidence comes

close to exempting pro se inmates from any compliance at all.

We do not, as the dissent argues, treat Soto as an ordinary pro

se litigant, much less as a trained attorney. But we do not

entirely release him from any obligation to identify or submit

some competent evidence supporting his claim for equitable

tolling.

This approach does not unfairly require Soto to take steps

beyond his knowledge. The district court followed Rand v.

Rowland, 154 F.3d 952, 962 (9th Cir. 1998) (en banc),

sending Soto a written notice of the requirements for

responding to a motion for summary judgment under the

Federal Rules of Civil Procedure. The notice given to Soto

explicitly told him that:

[w]hen a party you are suing makes a motion

for summary judgment that is properly

supported by declarations (or other sworn

testimony), you cannot simply rely on what

your complaint says. Instead, you must set

out specific facts in declarations, depositions,

answers to interrogatories, or authenticated

documents, as provided in Rule 56(e), that

contradict the facts shown in the Defendants’

declarations and documents and show that

there is a genuine issue of material fact for

trial. If you do not submit your own evidence

16 SOTO V. SWEETMAN

in opposition, summary judgment, if

appropriate, may be entered against you.

Docket Entry No. 63 at 2, Soto v. Ryan (D. Ariz. 2015) (No.

14-1323).

Not only did Soto fail to include any allegations in his

2014 complaint that he could not proceed with the grievance

process until the Criminal Investigation Unit completed its

investigation, he failed to submit any declaration, affidavit,

authenticated document, or other competent evidence to that

effect.

Soto knew how to file a sworn affidavit. He submitted

two of his own sworn affidavits with his response to the

defendants’ motion for summary judgment in this case. The

problem is that neither mentioned anything about being told

of a need to wait for the Criminal Investigation Unit to

investigate to start the grievance process. The affidavits Soto

filed in this case did comply with the summary judgment

evidence rule, but these affidavits did not include any

evidence of the facts that matter here.

The only statements supporting Soto’s tolling argument

are in his unsworn district court responses to the defendants’

motion for summary judgment and to the district court’s

show-cause order. In those responses, Soto stated, for the

first time, that after he filed the 2010 inmate letter about the

alleged assault, he

was called into [the Special Services Unit]

Office so that [the Unit] could take pictures of

all his injuries and was told by [the Special

Services Unit] that [the Criminal Investigation

SOTO V. SWEETMAN 17

Unit] will be notified and that he will be seen

by [the Criminal Investigation Unit] and once

[the Criminal Investigation Unit] investigation

was done he could start his grievance process.

This statement fails to meet the Rand notice requirements. It

is not competent evidence that Soto was told that he could not

pursue the grievance process. The written inmate grievance

requirements Soto had used before and used during this

period clearly state that “[u]nless notified of an extension of

time frames, expiration of any time limit for a response at any

stage in the process shall entitle the inmate grievant to move

to the next step in the process.” The district court correctly

held that the written grievance policies did not require Soto

to wait for the Criminal Investigation Unit.

The district court was also correct in ruling that no

competent evidence showed that, during the three years and

nine months Soto stated that he was waiting to hear from the

Criminal Investigation Unit, he took any steps to follow up on

his claim or ask about the delay in the investigation. The

record shows that Soto was not doing anything to exhaust his

remedies from May 2010 to January 2014. He failed for

almost four years to question the fact that he had heard

nothing about the Criminal Investigation Unit’s investigation.

The summary judgment record includes several letters

Soto wrote to prison staff between 2010 and 2014. In those

letters, Soto wrote that he wanted to talk to the Criminal

Investigation Unit, but he was told it would take some time.

He stated in his December 2012 letter that an unidentified

prison staff member told him “that [the Criminal

Investigation Unit] would come and see me that it takes time

but while I was waiting for [the Criminal Investigation Unit]

18 SOTO V. SWEETMAN

to come talk to me one staff member told me it would not be

in my best interest to push the issue if I wanted to do my time

with no problems.” Soto stated in a November 2013 letter to

prison officials that he filed grievances, but that “most did not

follow through.” Soto did write other grievances from

August 2012 to April 2014—eight, as the district court

noted—but none mentions his sexual-assault or excessive-

force claims. Nor did he say anything in the letters he sent in

December 2012 or in November 2013 about corrections

officers telling him that he had to wait for the Criminal

Investigation Unit to complete its investigation before he

could proceed with the grievance process. Soto’s own letters

show that he did not ask about talking to the Criminal

Investigation Unit from May 2010 until January 2014.

In short, neither Soto’s 2014 complaint allegations, his

sworn affidavits, nor the letters and grievances he wrote from

2010 to 2014, provide competent summary judgment

evidence that he took any steps to inquire into the delay in

hearing from the Criminal Investigation Unit for nearly four

years. Even with the relaxed affidavit requirement and

Ponder’s liberal construction rule, the evidence is not in the

record.

Soto’s own conduct also undermines his argument that he

did nothing for almost four years because he could not pursue

his remedies until the Criminal Investigation Unit had

finished its investigation. When Soto did eventually exhaust

his administrative remedies in 2014, he did not wait for the

Criminal Investigation Unit to finish its investigation. Soto

made an informal complaint and sent an inmate letter to

restart the grievance process in January 2014. He did not

wait for the Criminal Investigation Unit to complete its

investigation, as he now claims he was told he had to, before

SOTO V. SWEETMAN 19

proceeding with the third step in the grievance process by

filing a formal grievance in March 2014. Soto did not receive

notice that the Criminal Investigation Unit had completed its

investigation until April 4, 2014. By then, he had already

appealed to the warden, step four in the grievance process.

Contrary to the dissent’s assertion, the majority does not

improperly weigh evidence or judge credibility. To the

contrary, even assuming that Soto’s statements in his briefs

are competent evidence and viewing that evidence in the light

most favorable to Soto, it does not support equitable tolling.

The written prison policy, the grievances and letters Soto

filed, his own actions, and his district court filings are

insufficient to generate or support an inference that he was

misled by prison authorities into doing nothing to pursue his

grievance for nearly four years, so as to entitle him to

equitable tolling for that period.

As the district court noted, during the years of silence

from the Criminal Investigation Unit, Soto “could have and

should have sought clarification” about the investigation into

his claim. Soto offers no evidence that during the almost

four-year delay, he “took reasonable and appropriate steps to

exhaust his . . . claim,” but “was precluded from exhausting”

by misinformation from prison staff. See Nunez v. Duncan,

591 F.3d 1217, 1224 (9th Cir. 2010) (excusing the inmate’s

failure to exhaust his administrative remedies because he was

misled during the process and sent on “an almost ten-month

wild goose chase,” to the extent that he was precluded from

fully exhausting his remedies despite taking reasonable steps

to diligently inquire about his claim and the steps needed for

exhaustion). Considering the record in its entirety, it is clear

that Soto began to exhaust his administrative remedies when

he filed his initial inmate letter in May 2010. He then

20 SOTO V. SWEETMAN

abandoned the process. He restarted a new grievance process

nearly four years later, in early 2014, completing it within

four months. No competent record evidence supports his

claim that he had to delay for nearly four years or was misled

by staff into delaying, or that he was doing anything to follow

up or ask about his administrative remedies from mid-2010

to early 2014. We affirm the district court’s determination

that there is no basis to toll the statute of limitations between

June 2010 and January 2014.

This approach is consistent with this circuit’s mandatory

tolling rule set out in Brown, which held that “the applicable

statute of limitations must be tolled while a prisoner

completes the mandatory exhaustion process.” 422 F.3d at

943. Soto is entitled to tolling while he was actively

exhausting his remedies—between April and May 2010 and

January and May 2014. See, e.g., Gonzalez, 651 F.3d at 322

(“Our sister circuits . . . [hold] that tolling is applicable during

the time period in which an inmate is actively exhausting his

administrative remedies.” (emphasis added) (citing Brown,

422 F.3d at 943)). Soto is not entitled to tolling during the

time he abandoned the process. Because he is entitled to

tolling only from April to May 2010 and January to May 2,

2014, Soto’s two-year statute of limitations expired long

before he sued. His claims are barred.

IV. Conclusion

We affirm the district court’s grant of summary judgment.

AFFIRMED.

SOTO V. SWEETMAN 21

N.R. SMITH, Circuit Judge, dissenting in part:

I must dissent from the majority opinion, because it

ignores the summary judgment standard of review, thus

granting summary judgment and failing to allow Soto a

hearing regarding equitable tolling.1 Let me explain. First,

although the majority cites Thomas v. Ponder, 611 F.3d 1144

(9th Cir. 2010), it ignores the language of Ponder indicating

that pro se inmates need not comply strictly with the rule that

a party must rely on affidavits, depositions, answers to

interrogatories, or admissions to defeat summary judgment.

See id. at 1150. Second, it fails to accord Soto’s statement its

appropriate weight on a summary judgment motion. Third,

the majority manufactures an argument, concerning Soto’s

diligent pursuit of the investigation (a question of fact), that

the government never raised on appeal. Based on that

manufactured argument, the majority incorrectly concludes

that, even if Soto were credited for his statement, there is no

evidence in the record showing that Soto diligently pursued

the investigation.

1

The factual disputes regarding Soto’s claim for equitable tolling can

be resolved at a separate evidentiary hearing, or the district court can

bifurcate the trial. We have previously approved of a bifurcated trial when

there is a genuine dispute of a material fact regarding whether the statute

of limitations was tolled. Burnham Chem. Co. v. Borax Consol., 170 F.2d

569, 573 (9th Cir. 1948). We have further held that, “[w]here factual

questions not readily ascertainable from the declarations of witnesses or

questions of credibility predominate, the district court should hear oral

testimony.” United Commercial Ins. Serv., Inc. v. Paymaster Corp.,

962 F.2d 853, 858 (9th Cir. 1992); Jones v. Cal. Dep’t of Corr., 584 F.

App’x 496, 497 (9th Cir. 2014) (holding that it is an abuse of discretion

to fail to hold an evidentiary hearing in such circumstances).

22 SOTO V. SWEETMAN

I.

The majority opinion treats Soto like an ordinary pro se

litigant rather than a pro se inmate when evaluating his

response to the summary judgment motion; our precedent

requires otherwise. In Bias v. Moynihan, the issue before us

was whether the pro se plaintiff had presented sufficient,

competent evidence to survive summary judgment. 508 F.3d

1212, 1218–19 (9th Cir. 2007). Bias made several statements

in her response brief but did not “go beyond the pleadings

and, by her own affidavits, or by the depositions, answers to

interrogatories, and admissions on file, designate specific

facts showing that there [was] a genuine issue for trial.” Id. at

1218 (internal quotation marks omitted) (quoting Celotex

Corp. v. Catrett, 477 U.S. 317, 324 (1986)). Because Bias did

not submit any documents opposing summary judgment other

than the pleadings, we held that she “failed to demonstrate

that there [were] any genuine issues of material facts in

dispute.” Id. at 1219.

Later, we decided Ponder, wherein we differentiated

between the procedural burden placed on ordinary pro se

litigants and the procedural burden placed on pro se inmates

when responding to a motion for summary judgment. Ponder,

611 F.3d at 1150. In Ponder, we cited Bias and held that pro

se inmates must be treated differently than Bias (an ordinary

pro se litigant). Id. We noted that “Bias v. Moynihan,

508 F.3d 1212 (9th Cir. 2007) holds that an ordinary pro se

litigant, like other litigants, must comply strictly with the

summary judgment rules. Pro se inmates are, however,

expressly exempted from this rule.” Id. (internal citation

omitted). Thus, based on the language of Ponder, a pro se

inmate (unlike the ordinary pro se litigant in Bias) could

defeat summary judgment by submitting factual statements in

SOTO V. SWEETMAN 23

the inmate’s response to summary judgment. The pro se

inmate would not be required to file affidavits, depositions,

answers to interrogatories, or admissions to defeat summary

judgment.2 The factual statements would instead be treated

just like an affidavit for purposes of summary judgment.

In our case, the government moved for summary

judgment, claiming that pro se inmate Soto’s complaint did

not fall within the statute of limitations. In his response brief,

Soto argued that he was entitled to equitable tolling, because

prison staff provided him with faulty information regarding

the grievance process (resulting in a significant delay). In

particular, Soto claimed that a member of the prison staff told

him that he was required to wait for the Criminal

Investigation Unit to complete an investigation of his claim

before further pursuing the grievance process.

Contrary to our language in Ponder, the majority does not

treat this statement like an affidavit, instead holding that the

statement is not “competent evidence,” i.e., evidence

admissible for purposes of summary judgement. Evidence,

Black’s Law Dictionary (10th ed. 2014) (“Admissible

2

Ponder mandates that “courts should construe liberally motion

papers and pleadings filed by pro se inmates and should avoid applying

summary judgment rules strictly.” Ponder, 611 F.3d at 1150 (emphasis

added). To avoid its application, the majority argues that the issue here is

the degree to which Ponder relaxes the summary judgment rules for pro

se inmates. Maj. Op. at 14–15. The majority asserts that Ponder is silent

as to this issue. However, Ponder provided an answer to the question

before us when it cited Bias. If we were not bound by precedent, requiring

Soto to submit his statement in an affidavit may be a perfectly reasonable

requirement to place on a pro se inmate. However, Ponder indicated

otherwise when it cited Bias. Thus, as a three-judge panel, we are not free

to revisit the issue.

24 SOTO V. SWEETMAN

evidence” is “[a]lso termed competent evidence.”). Then, the

majority holds that there is no genuine dispute of material

fact regarding the statute of limitations or Soto’s equitable

tolling claim. Maj. Op. at 18–19. Thus, the majority treats

Soto as an ordinary pro se litigant, requiring him to submit

his statement in an affidavit. In doing so, the majority errs.

II.

Our precedent is clear; a party’s own testimony is

sufficient to create a genuine dispute of material fact even

when other evidence in the record does not support the facts

asserted in the statement. Manley v. Rowley, 847 F.3d 705,

711 (9th Cir. 2017). As we just recently held,

We have refused to find a “genuine issue” as

to a material fact where the only evidence

presented is uncorroborated and self-serving

testimony. However, because a party’s own

testimony will nearly always be “self-

serving,” the mere self-serving nature of

testimony permits a court to discount that

testimony where it states only conclusions and

not facts that would be admissible evidence.

Id. (internal citations, quotation marks, and alterations

omitted). Soto’s statement recites facts, not legal conclusions,

and creates a genuine dispute of material fact. “[A] court

ruling on a motion for summary judgment may not engage in

credibility determinations or the weighing of evidence, as

those are functions reserved for the jury.” Id. (internal

citation, quotation marks, and alterations omitted). Thus,

because Soto’s statement is admissible for purposes of

SOTO V. SWEETMAN 25

summary judgment, the majority cannot weigh the statement

based on other evidence in the record. Id.

Contrary to this bedrock principle of summary judgment,

the majority cites evidence in the record in an attempt to

weigh and undermine Soto’s statement. First, the majority

attacks the statement by noting that Soto failed to include the

statement as an allegation in his complaint. Maj. Op. at 16.

Second, the majority continues its attack when it notes that

“Soto knew how to file a sworn affidavit,” but did not include

the statement in either of the affidavits he submitted. Maj.

Op. at 16. Third, the majority attacks the statement’s

reliability when it points to the fact that “the written

grievance policies did not require Soto to wait for the

Criminal Investigation Unit.” Maj. Op. at 17. The legal

significance of Soto’s statement cannot be extinguished by

pointing to competing evidence in the record, because we

may not weigh evidence at summary judgment. Manley,

847 F.3d at 711. Thus, the majority errs.

III.

Lastly, to buttress its decision to grant summary judgment

and thereby deprive Soto of an evidentiary hearing, the

majority asserts that, even if the statement were admissible,

Soto is entitled to equitable tolling only if he can show that he

diligently pursued what he incorrectly believed was the next

step in the grievance process. In making this assertion, the

majority manufactures an argument the government never

made. The government did not argue on appeal that Soto

failed to diligently pursue the investigation; the government

only argued that Soto’s statement was not made in an

affidavit. “Generally, an appellee waives any argument it fails

to raise in its answering brief.” United States v. Dreyer,

26 SOTO V. SWEETMAN

804 F.3d 1266, 1277 (9th Cir. 2015) (en banc). Thus, this

argument (a factual issue) is waived.

In his opening brief, Soto argued that “[t]he statute of

limitations is tolled while the prisoner is pursuing the

remedies that corrections officers informed were required of

him.” To support this argument, Soto claimed that “he

inquired about the pending [Criminal Investigation Unit]

investigation for years, to no avail,” and that these efforts

“suffice” to meet the “reasonable diligence” required for

equitable tolling. The government did not dispute this factual

assertion. Again, the government waived the issue of

reasonable diligence. Id.

The government failed to raise this argument for good

reason; viewing the evidence in the light most favorable to

Soto (as we must), the evidence in the record is more than

sufficient to create a genuine dispute regarding this factual

issue. “The diligence required for equitable tolling purposes

is ‘reasonable diligence,’ not ‘maximum feasible diligence.’”

Holland v. Florida, 560 U.S. 631, 653 (2010) (citations and

quotation marks omitted). The majority concludes that

“Soto’s own letters show that he did not ask about talking to

the Criminal Investigation Unit from May 2010 until January

2014.” To the contrary, Soto’s inmate letters show that he

pursued the investigation, that he was told it would take some

time, and that he was threatened on one occasion when he

pursued the investigation. Let us examine the evidence. In

2012, Soto wrote, in an inmate letter, that

[he] was told by [prison] staff that [the

Criminal Investigation Unit] would come and

see [him,] that it takes time[,] but that while

[he] was waiting for [the Criminal

SOTO V. SWEETMAN 27

Investigation Unit] to come talk to [him,] one

staff member told [him] it would not be in

[his] best interest to push the issue if [he]

wanted to do his time with no problems.

In his January 2014 inmate letter, Soto wrote that he “kept

telling [prison staff] that [he] was still waiting on [the

Criminal Investigation Unit].” Thus, viewed in the light most

favorable to Soto, the evidence in the record shows that Soto

diligently pursued the completion of the Criminal

Investigation Unit’s investigation.