F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
DEC 31 1997
TENTH CIRCUIT
PATRICK FISHER
Clerk
WILLIAM CARPENTER,
Plaintiff-Appellant,
v.
No. 97-6269
OKLAHOMA DEPARTMENT OF (W. District of Oklahoma)
CORRECTIONS; DR. F. WARREN (D.C. No. CIV-96-1447)
BENTON, Director DOC (1976);
GARY MAYNARD, Director DOC
(1987),
Defendants-Appellees.
ORDER AND JUDGMENT *
Before BALDOCK, EBEL, and MURPHY, Circuit Judges.
After examining the briefs and the appellate record, this three-judge panel
has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a);
*
This order and judgment is not binding precedent, except under the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.
10th Cir. R. 34.1.9. This court therefore honors the parties’ requests and orders
the cause submitted without oral argument.
William Carpenter, appearing pro se and in forma pauperis, appeals the
district court’s grant of summary judgment in favor of numerous individual
employees of the Oklahoma Department of Corrections. Carpenter brought this
civil rights suit pursuant to 42 U.S.C. § 1983, claiming that he is entitled to
damages because the defendants violated his constitutional rights by forcing him
to serve an “excessive” period of incarceration. The district court concluded that
Carpenter’s suit was barred by the two-year statute of limitations and that neither
the discovery rule nor the Oklahoma doctrine of fraudulent concealment served to
toll the statute of limitations because Carpenter was aware of all of the “facts”
necessary to bring this suit when his sentence expired in 1989. The district court
concluded that Carpenter’s ignorance of the legal basis, as opposed to the factual
predicates, underlying his claim could not serve to toll the running of the
limitations period. See United States v. Kubrick, 444 U.S. 111, 119-122 (1979)
Gatewood v. Railroad Retirement Bd., 88 F.3d 886, 890 (10th Cir. 1996).
Upon de novo review of the magistrate’s Report and Recommendation, the
district court Order, the parties’ briefs and contentions, and the entire record on
appeal, this court affirms for substantially the reasons set forth in the Magistrate’s
Report and Recommendation dated May 30, 1997, and the district court Order
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dated July 17, 1997. We further hold that this appeal is frivolous or fails to state
a claim under 28 U.S.C. § 1915(e)(2)(b)(i) or (ii) for purposes of counting “prior
occasions” under 28 U.S.C. § 1915(g).
ENTERED FOR THE COURT:
Michael R. Murphy
Circuit Judge
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