UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

FOR PUBLICATION

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

DENNIS SHARKEY, Plaintiff-Appellant,

v.

ERAL O'NEAL; SILVA FOSTER; D. GRAHAM; CHARLES SYDNEY,

Defendants-Appellees.

No. 11-15619 D.C. No.

3:09-cv-04341JSW

OPINION

Appeal from the United States District Court for the Northern District of California

Jeffrey S. White, District Judge, Presiding

Argued and Submitted November 5, 2013--San Francisco, California

Filed February 10, 2015

Before: Stephen Reinhardt and Paul J. Watford, Circuit Judges, and Robert S. Lasnik, District Judge.*

Opinion by Judge Reinhardt

* The Honorable Robert S. Lasnik, District Judge for the U.S. District Court for the Western District of Washington, sitting by designation.

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SHARKEY V. O'NEAL

SUMMARY**

Americans with Disabilities Act/Civil Rights

The panel reversed the district court's order dismissing as time-barred plaintiff's claims under Title II of the Americans with Disabilities Act, Title VII of the Civil Rights Act, and 42 U.S.C. ? 1983.

The district judge applied California's two-year statute of limitations for personal injury claims to plaintiff's claims against his parole officers, which alleged that defendants transferred plaintiff from his apartment to motels which did not accommodate his disabilities. The panel held that with respect to plaintiff's claim under Title II of the Americans with Disabilities Act, the district court was required to borrow the three-year limitations period applicable to claims under California Government Code ? 11135, rather than the limitations period applicable to personal injury claims in California. Under this three-year limitations period, plaintiff's Americans with Disabilities Act claim was not time-barred. With respect to plaintiff's remaining claims, the panel held that the district court abused its discretion in dismissing the pro se claims with prejudice without explanation. The panel remanded for an application of the factors set forth in Foman v. Davis, 371 U.S. 178, 182 (1962), and the presumption in favor of granting leave to amend with respect to all claims other than plaintiff's Americans with Disabilities Act claim.

** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.

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COUNSEL

Lisa Ells (argued) and Sanford Jay Rosen, Rosen Bien Galvan & Grunfeld, San Francisco, California, for PlaintiffAppellant.

Neah Huynh (argued), Deputy Attorney General; Kamala D. Harris, Attorney General; Jonathan L. Wolff, Senior Assistant Attorney General; Thomas S. Patterson, Supervising Deputy Attorney General, San Francisco, California, for Defendants-Appellees.

OPINION

REINHARDT, Circuit Judge:

Dennis Sharkey appeals from an order of the district court dismissing as time-barred his claims under Title II of the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act, and various provisions of the Constitution pursuant to 42 U.S.C. ? 1983. The district judge applied California's two-year statute of limitations for personal injury claims to all of Sharkey's claims. With respect to Sharkey's claim under Title II of the ADA, we hold that the district court did not apply the correct statute of limitations. District courts must borrow the three-year limitations period applicable to claims under California Government Code ? 11135, rather than the limitations period applicable to personal injury claims in California. Under this three-year limitations period, Sharkey's ADA claim is not time-barred. With respect to his other claims, Sharkey does not contest the applicable limitations periods, but we hold that the district

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SHARKEY V. O'NEAL

court abused its discretion in dismissing the complaint with prejudice without affording Sharkey leave to amend.

BACKGROUND1

Sharkey is a 55-year-old man with disabilities that require him to use a wheelchair and two canes. In late 2006 and early 2007, Defendants Graham, Foster, O'Neal, and Sydney were employees at the Parole Division of the California Department of Corrections and Rehabilitation in Berkeley.

In 2006, Sharkey was on parole, living independently in an accessible apartment in Oakland. On December 28, 2006, Agent Foster informed Sharkey of new parole terms, including a housing restriction imposed under the California Sexual Predator and Control Act that required Sharkey to move from his Oakland residence. Agent O'Neal, who Agent Foster had assigned to Sharkey's case, gave Sharkey only an hour to relocate and only 25 minutes to pack, notwithstanding his disability. Sharkey experienced a great deal of pain during this harried move, and, due to the time pressure, left behind important medical supplies and personal possessions. Agent O'Neal forbade Sharkey from ever returning to the apartment or from calling friends to retrieve his remaining belongings.

That night, Agent O'Neal drove Sharkey to the Harris Motel and assigned him to a room that lacked the safety features necessary to accommodate his disability, such as a

1 The operative facts are taken from Sharkey's complaint. "In reviewing a motion to dismiss pursuant to Rule 12(b)(6), we must accept as true all factual allegations in the complaint and draw all reasonable inferences in favor of the nonmoving party." Retail Prop. Trust v. United Bhd. of Carpenters & Joiners of Am., 768 F.3d 938, 945 (9th Cir. 2014).

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wheelchair-accessible entrance, sufficient floor space to operate a wheelchair, and bathroom grab bars. When Sharkey complained to Agent Foster, no attempt was made to locate a suitable residence.

Sharkey was injured at least three times in slip and fall accidents as a result of the lack of accommodations at the Harris Motel. He also lost access to a federal program that had provided him with in-home medical services because the motel did not meet the program's residence requirements. Sharkey's doctors in turn canceled several scheduled surgeries because he no longer had a suitable recovery environment, and Sharkey was unable to participate in other medically necessary treatments. Sharkey informed the defendants about the problems caused by his relocation to the Harris Motel and the need for an accessible residence, to no avail.

In March 2007, after Sharkey went to the emergency room with injuries sustained when he fell in the ill-equipped motel room, Agent O'Neal moved Sharkey from the Harris Motel to the Sea Breeze Inn. Located on a truck route in an industrial area that lacked access to public transportation, this new motel did not accommodate Sharkey's disability-related needs either.

Sharkey alleges that the defendants' decisions to require him to live in motels incapable of accommodating his disabilities caused him significant pain and stress, exacerbated his medical conditions, and deprived him of access to important medical treatments. On September 17, 2009, Sharkey filed suit, proceeding pro se and in forma pauperis, against the defendants in the Northern District of California, alleging violations of Title II of the ADA, Title

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