UNITED STATES COURT OF APPEALS
Filed 10/7/96
FOR THE TENTH CIRCUIT
GUST MARION JANIS,
Plaintiff-Appellant,
v. No. 95-1299
(D.C. No. 94-C-1202)
JANET RENO, United States Attorney (D. Colo.)
General; KATHLEEN HAWKS,
Director, Federal Bureau of Prisons;
PATRICK W. KEOHANE, Warden;
PATRICK WHALEN, Warden; ED
YORK, Unit Manager; J. JOHNSON,
Case Manager; MATT
EASTERBROOK, Correctional
Counselor; KARL BELFONTI, Unit
Manager; TYRONE RODRIGUEZ,
Case Manager; REIDA HENDERSON,
Correctional Counselor; T.L. HINES,
Captain; OFFICER GAIBREATH,
Correctional Counselor; JESUS
GONZALEZ, Lieutenant; ROBERT E.
WILLIAMS, Clinical Director;
TERRY FINNEGAN, Health Services
Director; B.R. LANGE, Physicians
Assistant; E. VINCENT, Security
Officer; BILLY WILLIAMS, Security
Officer; DWAYNE ROBERSON,
Education Supervisor; J. GRECO,
Associate Warden; D. P. IVERSON,
Security Officer; OFFICER
AIRINGTON, Security Officer; DOES
1-100; all sued individually and in
their official capacities; UNITED
STATES DEPARTMENT OF
JUSTICE; FEDERAL BUREAU OF
PRISONS; UNITED STATES
PENITENTIARY - LOMPOC;
UNITED STATES PENITENTIARY -
FLORENCE HIGH SECURITY,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before ANDERSON, LOGAN, and MURPHY, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore
ordered submitted without oral argument.
Plaintiff, who is pro se, commenced an action under Bivens v. Six
Unknown Named Agents, 403 U.S. 388 (1971), against four federal government
agencies and twenty-two individuals, in both their official and individual
capacities, alleging various constitutional claims relating primarily to access to
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
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legal materials and the courts, to retaliation, and to his medical needs. The
district court granted the served defendants’ motion to dismiss and dismissed the
action without prejudice as to the unserved defendants. Plaintiff appealed, and
we now affirm.
Plaintiff first argues the district court abused its discretion by failing to toll
the statute of limitations from the date he filed his complaint until the date the
district court dismissed the complaint without prejudice as to the unserved
defendants. He contends that lack of service should toll the statute of limitations.
Plaintiff did not ask the district court to toll the statute of limitations. Generally,
this court does not consider issues on appeal that were not raised in the district
court. Walker v. Mather (In re Walker), 959 F.2d 894, 896 (10th Cir. 1992).
Nonetheless, we conclude plaintiff’s argument is without merit. Bivens actions,
like 42 U.S.C. § 1983 actions, are subject to the statute of limitations of the
general personal injury statute of the state where the action arose. Industrial
Constructors Corp. v. United States Bureau of Reclamation, 15 F.3d 963, 968
(10th Cir. 1994). In addition to applying the state statute of limitations, questions
of tolling are also governed by state law. Hardin v. Straub, 490 U.S. 536, 539
(1989); Fratus v. Deland, 49 F.3d 673, 675 (10th Cir. 1995). Plaintiff has not
identified any state law indicating that his action should have been tolled, and we
have found no state or federal law to support his request for tolling. See also
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Brown v. Hartshorne Pub. Sch. Dist. No. 1, 926 F.2d 959, 961 (10th Cir.
1991)(“In the absence of a statute to the contrary, the limitation period is not
tolled during the pendency of the dismissed action.”); Wilson v. Grumman Ohio
Corp., 815 F.2d 26, 27-28 (6th Cir. 1987)(without statute to contrary, party cannot
deduct from period of limitations time during which action, later dismissed
without prejudice for failure to perfect service, was pending); Stein v. Reynolds
Sec., Inc., 667 F.2d 33, 33-34 (11th Cir. 1982)(dismissal of suit without prejudice
does not authorize later suit brought outside otherwise binding limitation period);
Dupree v. Jefferson, 666 F.2d 606, 610-11 (D.C. Cir. 1981)(involuntary dismissal
of action without prejudice does not toll running of statute of limitations).
Accordingly, we conclude the district court did not err in failing to toll the statute
of limitations.
Plaintiff next argues that the district court abused its discretion in
dismissing his complaint as to the served defendants for failure to state a claim
upon which relief can be granted. 1 See Fed. R. Civ. P. 12(b)(6). We review de
novo the district court’s dismissal for failure to state a claim upon which relief
may be granted. Industrial Constructors Corp., 15 F.3d at 967. We uphold a
dismissal under Rule 12(b)(6) if, after accepting all of the well-pleaded
1
Both in the district court and in his brief on appeal, plaintiff states that he
does not oppose dismissal of the institutional defendants.
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allegations in the complaint as true and construing them in the light most
favorable to the plaintiff, it appears the plaintiff can prove no set of facts
supporting his claims that would entitle him to relief. Roman v. Cessna Aircraft
Co., 55 F.3d 542, 543 (10th Cir. 1995). Although we must determine “whether
the complaint states a conceivable cause of action, we are not required to
manufacture a party’s argument on appeal when it has failed in its burden to draw
our attention to the error below.” National Commodity & Barter Ass’n v. Gibbs,
886 F.2d 1240, 1244 (10th Cir. 1989). Here, plaintiff’s assertions to support this
argument are conclusory. Upon consideration of the briefs, record on appeal, and
relevant case law, we conclude the district court properly dismissed the claims
against the served defendants for failure to state a claim. We affirm as to this
argument for substantially the reasons stated in the June 12, 1995,
recommendation of the magistrate judge adopted by the district court on June 28,
1995.
Plaintiff’s third argument is that the district court abused its discretion in
denying his motion to amend his original complaint to split his action into two
parts and refusing to transfer the part over which the district court lacked personal
jurisdiction to the proper jurisdiction. We review the district court’s denial of the
motion to amend for an abuse of discretion. Creamer v. Laidlaw Transit, Inc., 86
F.3d 167, 171 (10th Cir. 1996). Under this standard, the district court must be
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upheld “‘if the proposed amendment could not have withstood a motion to dismiss
or otherwise failed to state a claim.’” Ketchum v. Cruz, 961 F.2d 916, 920 (10th
Cir. 1992)(quoting Schepp v. Fremont County, 900 F.2d 1448, 1451 (10th Cir.
1990)). Under the circumstances of this case, amendment would have been futile.
See Foman v. Davis, 371 U.S. 178, 182 (1962)(futility justifies denial of
amendment). We conclude the district court did not abuse its discretion in
denying amendment of the complaint.
We also review the district court’s refusal to transfer a portion of the action
for an abuse of discretion. Scheidt v. Klein, 956 F.2d 963, 965 (10th Cir. 1992).
Because plaintiff also failed to state a claim against all defendants, we conclude
the district court did not abuse its discretion in failing to transfer part of the case.
Fourth, plaintiff argues the district court abused its discretion in failing to
substitute the United States for defendants sued in their official capacities. The
defendants counter that there was no error because plaintiff failed to show the
United States waived sovereign immunity and because plaintiff never requested
that the United States be substituted. We agree with defendants. Plaintiff never
requested substitution in the district court, see Walker, 959 F.2d at 896, but even
if he had, plaintiff makes no showing of waiver, and the United States has not
waived sovereign immunity to suits such as this for money damages, see National
Commodity & Barter Ass’n, 886 F.2d at 1245-46.
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Finally, plaintiff argues the district court erroneously assumed that he was
suing various defendants under the theory of respondeat superior. Contrary to
plaintiff’s assertion on appeal that he specified actual wrongdoing by all
defendants in his complaint, the complaint evidences a lack of pleading of
personal participation by various defendants. We therefore conclude the district
court correctly assumed plaintiff was suing under the theory of respondeat
superior.
The judgment of the United States District Court for the District of
Colorado is AFFIRMED. The mandate shall issue forthwith.
Entered for the Court
Michael R. Murphy
Circuit Judge
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