Unpublished Disposition, 849 F.2d 1476 (9th Cir. 1986)

Lorence C. Reyes, an Oregon state prisoner, appeals pro se the district court's dismissal of his civil rights action on statute of limitations grounds. On appeal, he contends the action is not time barred because under Oregon law the limitations period is tolled by imprisonment. We reverse and remand.

DISCUSSION

On August 25, 1986 Reyes filed a civil rights action. He alleges that on August 15, 1984 police officers illegally arrested and then beat him, denied him medical care, and illegally seized certain personal property. In response defendants filed a motion to dismiss under Fed. R. Civ. P. 12(b) (6) asserting that under Oregon's two-year statute of limitations, Reyes' civil rights action was barred on the face of the complaint.

Reyes contends that his civil rights action should not have been dismissed because Or.Rev.Stat. Sec. 12.160(3) (1987) tolled the statute of limitations while he was incarcerated. The defendants do not respond to the merits of Reyes' contention but rather assert Reyes should be precluded from raising this argument on appeal because he did not specifically raise that tolling provision in opposition to their motion. We conclude, however, that Reyes' failure to raise the specific tolling provision below is not determinative since his pleadings alone are sufficient to prevent dismissal on statute of limitations grounds.

The affirmative defense of statute of limitations is usually raised by responsive pleadings. See Vernon v. Heckler, 811 F.2d 1274, 1278 (9th Cir. 1987). A limitations defense may be raised, however, in a motion to dismiss when the running of the statute is apparent from the face of the complaint. Id. Nonetheless, we have repeatedly warned that such a motion should 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." Jablon v. Dean Witter & Co., 614 F.2d 677, 682 (9th Cir. 1980).

In construing a complaint for purposes of a Rule 12(b) (6) motion, any doubt is to be resolved in favor of the pleader. Gillespie v. Civiletti, 629 F.2d 637, 640 (9th Cir. 1980). In addition, pleadings submitted by pro se civil rights plaintiffs are held to a less exacting standard than those submitted by lawyers. Id. Because of our required liberal constructions we conclude that Reyes' Complaint, although marginal at best and unacceptable if drafted by an attorney, is sufficient to allow him to show that the statute of limitations was tolled. The complaint indicates that Reyes was imprisoned at the time of filing. The incarceration disability of the Oregon statute ceases when the plaintiff is released from custody and it is not reinstated by subsequent imprisonment. Boag v. Chief of Police, 669 F.2d 587, 589 (9th Cir.) (per curiam), cert. denied, 459 U.S. 849 (1982). Reyes' complaint does not suggest that he was ever released from custody. Consequently the assertions of his complaint do not preclude Reyes from presenting factual support and arguing that the statute was tolled. See Jablon, 614 F.2d at 682; see also Vernon, 811 F.2d at 1278 (a motion to dismiss should be granted only where allegations of the complaint preclude proof that the statute of limitations was tolled).

REVERSED and REMANDED.