## F I L E D United States Court of Appeals Tenth Circuit 

### AUG 16 2004 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ETHAN ERWIN ROBERTS,

Plaintiff - Appellant,

v. LAWRENCE BARRERAS, Senior Director, Cornell Correctional Institution/Santa Fe County Detention Center (SFCDC); WILFRED ROMERO, Assistant Director, Cornell Correctional Institution/SFCDC; MAJOR ROMERO, Security Chief, Cornell Correctional Institution/SFCDC; CAPTAIN/LT. HICKMAN, Supervisor, Cornell Correctional Institution/SFCDC; CAROLINE KINGSTON, MD, Health Services/Correctional Medical Services, Inc./SFCDC; DONNA DEMING, MD, Health Services/Correctional Medical Services, Inc./SFCDC; DR. STOLLER, Health Services/Correctional Medical Services, Inc./SFCDC; ERIN FIRE, P.A.C., Health Services/Correctional Medical Services, Inc./SFCDC; ROBYNN BELL, Administrator, Health Services/Correctional Medical Services, Inc./SFCDC; MR. DESORMEAUX, Administrator, Health Services/Correctional Medical Services, Inc./SFCDC; ANNE HALL, Quality Assurance, Health Services/Correctional Medical Services, Inc./SFCDC; RICK PLOOF, Deputy U.S. Marshal, Operations Supervisor, U.S. Marshal Service; SANTA FE COUNTY; CORNELL CORRECTIONS INC.; CORRECTIONAL MEDICAL SERVICES, INC.; JOHN/JANE DOES, No. 03-2269 (D. Ct. No. Civ-03-686 MCA/LCS) (D. N. Mex.)* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. This court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. -2- unknown at time of filing of this complaint and having a nexus to the damages of the plaintiff; all parties listed above are sued in their individual capacities and/or official capacities, Defendants - Appellees.

ORDER AND JUDGMENT *

Before TACHA , Chief Circuit Judge, BRISCOE , and HARTZ , Circuit Judges.
After examining the briefs and the appellate record , this three-judge panel has determined unanimously that oral argument wouldnot be of material assistance in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered sub mitted without oral argument. Plaintiff-Appellant Ethan Erwin Roberts, a federal prisoner proceeding pro se, filed this action against Defendants-Appellees Lawrence Barreras et al. under Bivens v. Six Unknown Named Agents of the Fed. Bure au of Narcotics , 403 U.S. 388 (1971), alleging Eighth Amendment violations fr om forced second-hand smoke exposure during his incarceration. Mr. Roberts appeals the District1 A Bivens action is subject to the same statute of limitatio ns as a 42 U.S.C.

§ 1983 suit. Industrial Constructors Corp. v. United States Bure au of Reclamation , 15 F.3d 963, 968 (10th Cir. 1994). A § 1983 acti on borrows the personal-injury statute of limitations of the state where the action accrues. Garcia v. Wilson , 731 F.2d 640, 651 (10th Cir. 1984), aff’d sub nom. Wilson v. Garcia , 471 U.S. 261, 280 (1985). -3- Court’s sua sponte dismissal of his complaint. We take jurisdiction under 28 U.S.C. § 1291, REVERSE, and REMAND.
I. BACKGROUND Mr. Roberts was incarcerated from April 16, 1999, t o June 8, 2000, at the Santa Fe, New Mexico, County Detention Center. He claims in his complaint that, during this time, he was exposed to second-ha nd tobacco smoke, denied necessary medical care, denied access to the courts , and suffered personal injuries as a result. Alleging violations of the Eighth Ame ndment to the Federal Constitution, Mr. Roberts executed his complaint on May 29, 2003, postmarked it on June 5, and filed it with the District Court on June 6. Upon a report and recommendation from the magistrat e judge, the District Court dismissed Mr. Roberts’s claim sua sponte, see 28 U.S.C. § 1915(e)(2), for failure to state a claim, see Fed. R. Civ. P. 12(b)(6), reasoning that the appli cable three-year statute of limitations had run. See N.M. Stat. Ann. § 37-1-8 (setting the limitations period for personal-injury claims). 1 The District Court concluded from the complaint that Mr. Roberts knew of his inj uries as early as June 1999,-4-

thus rendering the statute of limitations expired i n June 2002—a year before the filing of this case. On appeal, Mr. Roberts argues that his filing of mandatory administrative grievances should equitably toll the statute of limitations.
II. STANDARD OF REVIEW “The court’s function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, b ut to assess whether the plaintiff’s complaint alone is legally sufficient t o state a claim for which relief may be granted.” Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999) (quotation omitted). We acce pt all well-pleaded factual allegations in the complaint as true and view them in the light most favorable to the nonmoving party. Id. Because legal sufficiency is a question of law, w e review the district court’s disposition of a Rule 12(b)(6) motion de novo. Id.
III. DISCUSSION On appeal, Mr. Roberts argues that we should equita bly toll his claim for the time during which he sought mandatory administr ative relief. If he meets the requirements for equitable tolling, we agree. Under federal law, prisoners must exhaust “such adm inistrative remedies as are available” before suing over prison conditions. 42 U.S.C. § 1997e(a). The exhaustion requirement applies even if the prisoneronly requests monetary damages unavailable through administrative channels

. Booth v. Churner , 532-5-

U.S. 731, 741 (2001) (holding that § 1997e(a) requi res a § 1983 prisoner-plaintiff to exhaust administrative remedies before filing su it, even when only requesting monetary damages), overruling in part Garrett v. Hawk, 127 F.3d 1263, 1267 (10th Cir. 1997); see also Yousef v. Reno , 254 F.3d 1214, 1216 n.1 (10th Cir. 2001) (applying Booth in a Bivens case). Reading Mr. Roberts’s pro se complaint liberally, Haines v. Kerner , 404 U.S. 519, 520-21 (1972), we note at least three ref erences to the filing of administrative grievances prior to the filing of th is lawsuit. Compl. at 3-A-5, 3- A-6, 4-B-1, App. to D-3. Every circuit to address t he issue has held that the filing of a mandatory administrative grievance tolls the s tatute of limitations for § 1983 and Bivens claims. See, e.g. , Leal v. Georgia Dep’t. of Corrections , 254 F.3d 1276, 1280 (11th Cir. 2001) (citing other circuit d ecisions). The District Court did not address the tolling issu e, even though Mr. Roberts claims in his complaint that he filed griev ances. A district court’s decision to dismiss a complaint under § 1915(e)(2) “cannot serve as a factfinding process for the resolution of disputed facts.” Fratus v. Deland, 49 F.3d 673, 675 (10th Cir. 1995) (internal quotation omitted). In Fratus , we held “that the district court improperly dismissed [the] complaint by raisi ng sua sponte a statute of limitations defense that was neither patently clearfrom the face of the complaint nor rooted in adequately developed facts.” Id. Similarly, because Mr. Roberts-6-

alleges that he filed grievances required by § 1997 e(a), the statute of limitations defense is not “patently clear from the face of the complaint.” Id . Thus, we hold that, because the complaint alleges the filing of m andatory administrative grievances, the District Court committed reversible error in dismissing the complaint sua sponte without considering whether eq uitable tolling is appropriate. On remand, the District Court should determine whether the alleged administrative filings toll the applicable limitati ons period. It is not entirely settled whether New Mexico law o r federal law provides the appropriate tolling rule in this case. Compare Leal , 254 F.3d at 1280 (state law provides the appropriate statute of limitations tolling rules) with Rodriguez v. Holmes , 963 F.2d 799, 805 (5th Cir. 1992) (“Even if Texas did not provide a haven for equity, federal courts possess the power to use equitable principles to fashion their own tolling provisions in exceptional situations in which state statutes of limitations eradicate rights or frustrate policies created by federal law. . . .”). Because we need not resolve this legal un certainty before the District Court makes its factual findings, we do not reach t his question today. Finally, we note that this determination involves b oth legal and factual issues. See Leal , 254 F.3d at 1280 (“If the district court resolves this legal issue in favor of tolling, then the court should address the factual issue of whether [the plaintiff] pursued administrative remedies such that sufficient tolling occurred to-7-

enable [him] to avoid a statute of limitations bar. ”). We leave the order of this determination to the discretion of the District Cou rt. For instance, the District Court need not decide the legal question of whetherequitable tolling applies, if it finds that, as a factual matter, the administrative filings could not sufficiently toll the statute of limitations even if tolling were app licable. If the District Court first conducts this factual inquiry, it should consider a uthorizing service of the Defendants, b ecause its power to dismiss claims sua sponte unde r § 1915(e)(2) “cannot serve as a factfinding process for the reso lution of disputed facts.”
Fratus , 49 F.3d at 675.
IV. CONCLUSION For the foregoing reasons, we REVERSE and REMAND. ENTERED FOR THE COURT,

Deanell Reece Tacha Chief Circuit Judge