FILED
United States Court of Appeals
Tenth Circuit
August 2, 2010
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
JAMES BRAXTON; TROY GRAVES;
RONALD JOHNSON; PAUL
PALECECK,
Plaintiffs-Appellants,
and
MICHAEL DAVID JOHNSON,
Plaintiff,
v. No. 10-1053
ARISTEDES ZAVARAS, the
Executive Director of the C.D.O.C.;
KEVIN MILYARD; TERRY
BARTRUFF; LLOYD WAIDE; JEFF
REVORD; RAYMOND HIGGINS;
GARY LITTLE; ROBERT KEISEL;
SHAWN REWOLDT; ASSOCIATE
WARDEN CAROL SOARES; MAJOR
MARY OX-BERGMAN, all in their
official and individual capacities,
Defendants-Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. No. 09-CV-01147-LTB-KMT,
consolidated with 09-CV-01218-LTB-KMT; 09-CV-01313-LTB-KMT;
09-CV-01352-LTB-KMT; and 1:09-CV-01153-LTB-KMT)
Submitted on the briefs:
James Braxton, Troy Graves, Ronald Johnson, and Paul Palececk, pro se.
John W. Suthers, Attorney General and Nicole S. Gellar, Assistant Attorney
General, Denver, Colorado, for Defendants-Appellees.
Before BRISCOE, Chief Judge, TACHA, and O’BRIEN, Circuit Judges.
BRISCOE, Chief Judge.
Plaintiffs-Appellants James Braxton, Troy Graves, Ronald Johnson, and
Paul Palececk (collectively “plaintiffs”), Colorado prisoners proceeding pro se,
brought this civil rights action under 42 U.S.C. § 1983, alleging that Defendants-
Appellees violated their civil rights during a public strip search at Sterling
Correctional Facility. Plaintiffs appeal the district court’s dismissal of their
consolidated action as untimely filed. 1 Exercising jurisdiction pursuant to 28
U.S.C. § 1291, we conclude that under the fact pattern presented, the statute of
limitations should not be tolled, and affirm. 2
1
The district court also included in the consolidated action a suit filed by a
fifth prisoner, Michael Johnson. He is not participating in this appeal.
2
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is,
therefore, submitted without oral argument.
2
I
On August 1, 2006, officers at the Sterling Correctional Facility conducted
a public strip search during which plaintiffs were required to expose themselves
to other inmates and prison staff. Plaintiffs filed internal grievances, following
the prison’s three-step procedure, and they received final responses to their Step 3
grievances on May 24 (Braxton), June 21 (Graves and Ronald Johnson), and July
5, 2007 (Palececk).
Individual lawsuits were filed on May 19 (Braxton), May 27 (Graves), June
4 (Ronald Johnson), and June 10, 2009 (Palececk), naming as defendants various
officials of the Colorado Department of Corrections (CDOC) and employees of
Sterling Correctional Facility. The district court then consolidated the cases.
Defendants filed motions to dismiss under Federal Rule of Civil Procedure
12(b)(6), arguing in part that plaintiffs’ claims were barred by Colorado’s two-
year statute of limitations. Plaintiffs responded that in Colorado, the statute of
limitations is tolled pending the exhaustion of administrative remedies. 3
3
Plaintiffs also argued for statutory tolling, relying on Colo. Rev. Stat. §
13-17.5-104, which provides that while an inmate grievance procedure is pending,
the “court shall stay the state civil action until . . . the grievance procedure is
completed and all rights of appeal have been exhausted.” The district court
concluded that the statute was inapplicable, as it pertained to staying a civil
action rather than tolling the statute of limitations. On appeal, plaintiffs have
abandoned the argument that statutory tolling applies. See Appellants’ Br. at 3
(“Colorado does not have any statutory tolling provisions which would control
this case.”).
3
Specifically, they argued that the statute of limitations was tolled until they
received responses to their Step 3 grievances. The magistrate judge
recommended that the action be dismissed, reasoning that under Colorado law the
statute of limitations is not automatically tolled while plaintiffs pursue the
exhaustion of administrative remedies, and plaintiffs had not demonstrated that
they were entitled to equitable tolling. The district court agreed and granted
defendants’ motions to dismiss.
II
A
We review de novo the dismissal of an action under Rule 12(b)(6) based on
the statute of limitations. Brady v. UBS Fin. Servs., Inc., 538 F.3d 1319, 1323
(10th Cir. 2008). “We review the district court’s refusal to apply equitable tolling
for an abuse of discretion.” Garrett v. Fleming, 362 F.3d 692, 695 (10th Cir.
2004). Because plaintiffs are proceeding pro se, we liberally construe their
pleadings. Gallagher v. Shelton, 587 F.3d 1063, 1067 (10th Cir. 2009).
In a § 1983 action, state law governs issues regarding the statute of
limitations and tolling, although federal law governs the determination of when a
§ 1983 action accrues. Fratus v. DeLand, 49 F.3d 673, 675 (10th Cir. 1995).
Under Colorado law, plaintiffs bear the burden of demonstrating that the statute
of limitations should be tolled. See Lake Canal Reservoir Co. v. Beethe, 227 P.3d
882, 886 (Colo. 2010).
4
It is undisputed that this action accrued on August 1, 2006. Because “the
statute of limitations for § 1983 actions brought in Colorado is two years from the
time the cause of action accrued,” Fogle v. Pierson, 435 F.3d 1252, 1258 (10th
Cir. 2006), the limitations period expired on August 1, 2008. Thus, this action,
which was brought by the individual plaintiffs on various dates in May and June
of 2009, is subject to dismissal as untimely filed unless tolling applies.
Although plaintiffs recognize that “Colorado does not have any statutory
tolling provisions which would control this case,” they contend that the statute of
limitations is tolled “during the time a person is involved in any administrative
review process.” Appellants’ Br. at 3. Liberally construing their briefs, plaintiffs
make two separate arguments: (1) Colorado automatically tolls the statute of
limitations whenever a plaintiff attempts to resolve a claim with any
administrative body, and (2) they are entitled to equitable tolling because they
were prevented from bringing their claims in federal court until they had
exhausted their administrative remedies. As discussed more fully in the sections
that follow, we disagree. First, Colorado does not recognize an “administrative
exhaustion” tolling doctrine apart from equitable tolling. Second, plaintiffs are
not entitled to equitable tolling because they have not diligently pursued their
claims.
B
We begin by considering plaintiffs’ argument that “tolling is applied to
5
arrest the running of statutes of limitations during the time a person is involved in
any administrative review process.” Appellants’ Br. at 3. In support of their
argument, they rely on London Guarantee & Accident Co. v. Sauer, 22 P.2d 624
(Colo. 1933). However, Sauer is inapposite. In that case, the Colorado Supreme
Court held the statute of limitations did not prevent the Industrial Commission
from reopening or reviewing a claim for workers’ compensation after
compensation had been paid when all parties had committed an error. See id. at
626. Thus, contrary to plaintiffs’ assertion, the Colorado Supreme Court has not
held that the statute of limitations is automatically tolled whenever a person is
involved in any administrative review process.
Because there are no decisions from the Colorado Supreme Court on point,
we “must endeavor to predict how that high court would rule.” Johnson v.
Riddle, 305 F.3d 1107, 1118 (10th Cir. 2002). The Colorado Supreme Court
“attempt[s] to interpret statutes of limitations consistent with their purposes of
promoting justice, avoiding unnecessary delay, and preventing the litigation of
stale claims.” Morrison v. Goff, 91 P.3d 1050, 1052 (Colo. 2004). In that vein,
the Colorado Supreme Court has previously rejected a bright-line tolling rule that
“does not require plaintiffs to bring claims as expediently as possible.” Id. at
1056.
Moreover, Colorado law favors a case-by-case approach to tolling, rather
than automatically tolling the statute of limitations for entire classes of cases.
6
See id. at 1058 (rejecting an approach to tolling in part “because it tolls the
statute of limitations for an entire class of claims”). “Because tolling involves the
exercise of equitable jurisdiction, Colorado courts have repeatedly stated that
tolling determinations require an examination of the specific facts and
circumstances of each case.” Id. at 1057. Accordingly, we conclude that under
Colorado law, the statute of limitations is not automatically tolled whenever an
individual pursues administrative remedies. See Ferrel v. Colo. Dep’t of Corr.,
179 P.3d 178, 188–89 (Colo. App. 2007) (rejecting the argument that the statute
of limitations should be tolled pending exhaustion of administrative remedies
where exhaustion was not a prerequisite to filing suit).
C
Next, we consider whether plaintiffs are entitled to equitable tolling.
Colorado recognizes that “equity may require a tolling of the statutory period
where flexibility is required to accomplish the goals of justice.” Dean Witter
Reynolds, Inc. v. Hartman, 911 P.2d 1094, 1096 (Colo. 1996). At the same time,
“statutes of limitations compel litigants to pursue their claims in a timely
manner.” Id. at 1099. Thus, equitable tolling is limited “to situations in which
either the defendant has wrongfully impeded the plaintiff’s ability to bring the
claim or truly extraordinary circumstances prevented the plaintiff from filing his
or her claim despite diligent efforts.” Id.
The Colorado Supreme Court has yet to find a case that qualifies as an
7
“extraordinary circumstance” that would justify tolling. However, that court has
relied on cases from other jurisdictions to illustrate that tolling may apply when a
plaintiff is truly precluded from filing suit: Hanger v. Abbott, 73 U.S. (6 Wall.)
532 (1867) (courts in southern states were closed during the Civil War), Seattle
Audubon Society v. Robertson, 931 F.2d 590 (9th Cir. 1991) (district court’s
erroneous enforcement of an unconstitutional statute barred plaintiff from filing),
rev’d on other grounds, 503 U.S. 429 (1992), and Osbourne v. United States, 164
F.2d 767 (2d Cir. 1947) (plaintiff held by Japan during World War II). See Dean
Witter, 911 P.2d at 1097.
Under the Prison Litigation Reform Act (PLRA), plaintiffs were required to
exhaust all available administrative remedies prior to filing this suit in federal
court. 42 U.S.C. § 1997e(a). Failure to do so could have resulted in the dismissal
of their action. See, e.g., Jernigan v. Stuchell, 304 F.3d 1030, 1032–33 (10th Cir.
2002). Accordingly, the PLRA’s exhaustion requirement could constitute a
circumstance “mak[ing] it impossible for [a] plaintiff to file his or her claims
within the statutory period,” thus entitling a plaintiff to equitable tolling, “so long
as [he or she] makes good faith efforts to pursue the claims when possible.” See
Dean Witter, 911 P.2d at 1097.
Plaintiffs direct our attention to a line of cases from the Colorado Court of
Appeals holding that the statute of limitations may be tolled during the time that a
claim is presented to a board of county commissioners. See CAMAS Colo., Inc.
8
v. Bd. of County Comm’rs, 36 P.3d 135, 140–41 (Colo. App. 2001) (citing Bd. of
Comm’rs v. Flanagan, 122 P. 801 (Colo. App. 1912)). Similar to the PLRA,
Colorado law prohibits the filing of an action against a county until a claim has
been presented and rejected by the board of county commissioners. See Colo.
Rev. Stat. § 30-25-110(1). In CAMAS, the court of appeals reasoned that because
there was “no suggestion that [the plaintiff] failed to prosecute its claims in good
faith and with diligence,” the statute of limitations should be tolled during the
period when the claims were presented to the board of county commissioners.
CAMAS, 36 P.3d at 141.
Although CAMAS does not explicitly rely on equitable tolling, we think it
is best understood under that doctrine. As the Colorado Supreme Court has
recognized, “tolling is an equitable remedy . . . .” Morrison, 91 P.3d at 1057.
Moreover, the “extraordinary circumstances” aspect of equitable tolling is based
on the reasoning “that it is unfair to penalize the plaintiff for circumstances
outside his or her control, so long as the plaintiff makes good faith efforts to
pursue the claims when possible.” Dean Witter, 911 P.2d at 1097. The statute of
limitations in CAMAS was tolled precisely because the statutory presentment
requirement made it impossible for the plaintiff to bring suit until the board had
rejected the claim, and the plaintiff had diligently pursued its claim. See
CAMAS, 36 P.3d at 141 (citing Dean Witter, 911 P.2d 1094) (“In such a
situation, a plaintiff should not be penalized for circumstances beyond his or her
9
control, provided that good faith efforts are made to pursue the claim.”). Thus,
CAMAS can be read as supporting equitable tolling under “extraordinary
circumstances” when exhaustion is a necessary condition precedent to filing suit,
and a plaintiff has been diligent in pursuing the claim following exhaustion.
Even if the administrative exhaustion requirement constitutes an
“extraordinary circumstance” preventing plaintiffs from filing suit, plaintiffs still
must “make[] good faith efforts to pursue the claims when possible.” See Dean
Witter, 911 P.2d at 1097; cf. CAMAS, 36 P.3d at 140–41. Thus, whether
plaintiffs are entitled to equitable tolling depends on whether they diligently
pursued their claims following the exhaustion of their administrative remedies.
We recently discussed equitable tolling under Colorado law pending
exhaustion of administrative remedies in an unpublished decision in Rosales v.
Ortiz, 325 F. App’x 695 (10th Cir. 2009). Although Rosales is not controlling
authority, the facts of that case are very similar to the case at bar, and thus, we
find it persuasive. Rosales, a Colorado state prisoner, had previously filed a §
1983 action, which was dismissed for his failure to exhaust his administrative
remedies. Id. at 697. Upon completing the grievance process, plaintiff had six
months to refile his action before the statute of limitations expired. However, he
did not refile his action in federal court until more than ten months after
exhausting his administrative remedies, and thus, over four months too late. We
noted that we had “declined to apply [equitable tolling] in circumstances almost
10
identical to this case, reasoning that ample time for filing within the two-year
limitations period remained after the exhaustion of remedies, but that the plaintiff
failed to diligently pursue his opportunity to file.” Id. at 699 (citing Russell-El v.
United States, No. 99-1124, 1999 WL 987350 (10th Cir. Nov. 1, 1999)). We then
held that by failing to file suit within six months after exhausting administrative
remedies, Rosales was not entitled to equitable tolling. Id.
We find the reasoning of Rosales persuasive. After receiving the responses
to their final administrative appeals, plaintiffs had over a year remaining to file
their action in federal court—twice as long as the time remaining in Rosales—but
they waited approximately two years to file suit. See id. (“[W]aiting . . . the
better part of a year or more to file[] fails equitable tolling qualification.”).
Plaintiffs have not offered an explanation for why they did not file this action in
the year remaining on the limitations period, let alone why they waited almost
two years to file suit after receiving the final response from the grievance process.
Because plaintiffs did not pursue their claims with diligence, they are not entitled
to equitable tolling. “Neither the defendants nor extraordinary circumstances
stood in the way of [plaintiffs’] filing suit within the statutory period. Only
[their] own inaction prevented [them] from filing in a timely manner.” See Dean
Witter, 911 P.2d at 1099. 4
4
Because we conclude that plaintiffs’ claims are not entitled to equitable
(continued...)
11
D
Plaintiffs also argue that they are entitled to tolling because the CDOC sent
letters to the plaintiffs encouraging them to wait for the resolution of the
grievance process. However, plaintiffs did not raise this issue or allege any
wrongful conduct on the part of defendants before the district court. Accordingly,
we will not consider this argument on appeal. See Beaudry v. Corr. Corp. of Am.,
331 F.3d 1164, 1166 (10th Cir. 2003) (per curiam) (refusing to consider issues
pro se plaintiffs did not raise in district court). Additionally, plaintiffs have
attached to their reply brief copies of memos regarding the resolution of their
Step 3 grievances. On appeal, we review only the record presented to the district
court. See United States v. Kennedy, 225 F.3d 1187, 1191 (10th Cir. 2000)
(“This court will not consider material outside the record before the district
court.”).
III
We AFFIRM the judgment of the district court and GRANT Braxton,
Graves, and Palececk’s motion to proceed without prepayment of fees. They are
reminded that they are each obligated to continue making partial payments until
4
(...continued)
tolling, we do not consider defendants’ alternative argument that the statute of
limitations was tolled only until forty-five days after plaintiffs filed their Step 3
grievances, when the grievances were “effectively exhausted.” See Whitington v.
Ortiz, 472 F.3d 804, 808 (10th Cir. 2007).
12
his respective portion of the fee has been paid. 5
5
Ronald Johnson has already paid his portion of the filing fee to the district
court.
13