Hernandez
Hernandez v. Immigration & Naturalization Service
Opinion
Lead Opinion
MEMORANDUM **
Andres Ernesto Hernandez appeals pro se the judgment dismissing his civil rights action as time-barred. We have jurisdiction under 28 U.S.C. § 1291 . We review the district court’s decision that a claim is barred by the statute of limitations de novo. Santa Maria v. Pacific Bell, 202 F.3d 1170, 1175 (9th Cir.2000). We vacate and remand.
*807 Hernandez filed his initial complaint on September 30, 1999. The action was later dismissed without prejudice because Hernandez failed to comply with court orders. Hernandez then filed a “motion to show cause” requesting that the court reopen the action. He explained that he had been unable to attend court appearances because he was incarcerated. The district court construed the motion as a motion to reopen, and, in an order filed May 2, 2001, granted Hernandez leave to “re-file his complaint in this action.” Hernandez filed a “first amended complaint,” which was filed under the same case number assigned to his original complaint.
The defendant filed a motion to dismiss arguing that the action was time-barred. In deciding the motion, the district court apparently used the date Hernandez filed his first amended complaint as the…