Canell v. McClain

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                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                              AUG 6 1998
                                  TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                Clerk

 JOSE MACAIBA CANELL,

           Plaintiff-Appellant,
 vs.                                                     No. 97-3281
                                                 (D.C. No. 97-CV-3124-GTV)
 KEN McCLAIN,                                              (D. Kan.)

           Defendant-Appellee.


                              ORDER AND JUDGMENT *


Before PORFILIO, KELLY, and HENRY, Circuit Judges. **


       Plaintiff-Appellant Jose Macaiba-Canell, appearing pro se and in forma

pauperis, appeals from the district court’s denial of his letter motion for

rehearing, which the court construed as a Fed. R. Civ. P. 60(b)(6) motion. Our

jurisdiction arises under 28 U.S.C. §1291, and we affirm.

       We review the district court's denial of a Rule 60(b)(6) motion for abuse of


       *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This 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.
       **
         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); 10th
Cir. R. 34.1.9. The cause is therefore ordered submitted without oral argument.
discretion. See Cashner v. Freedom Stores, Inc., 98 F.3d 572, 576 (10th Cir.

1996). In his complaint filed April 9, 1997, Mr. Macaiba-Canell alleges he was

injured by a corrections officer on June 28, 1992. The district court dismissed the

case pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). Mr. Macaiba-Canell’s Bivens

claim is subject to Kansas’s two-year general personal injury statute. See Kan.

Stat. Ann. § 60-513(a)(4) (1994); Industrial Constructors Corp. v. United States

Bureau of Reclamation, 15 F.3d 963, 968 (10th Cir. 1994). The face of the

complaint indicates Mr. Macaiba-Canell’s claim is time-barred, and we cannot say

that the district court abused its discretion in determining that his tolling

arguments were legally insufficient. See Aldrich v. McCulloch Properties, 627

F.2d 1036, 1041 n.4 (10th Cir. 1980).

      AFFIRMED.

                                        Entered for the Court


                                        Paul J. Kelly, Jr.
                                        Circuit Judge