F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
January 10, 2007
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
KEITH E. FRAZIER,
Plaintiff-Appellant,
v. No. 06-1333
ED JORDAN, Sheriff of Weld County; (D.C. No. 04-CV-1914-LTB-BNB)
DR. FLOWER, Weld County Centennial (D. Colorado)
Jail Physician; JANE DOE #1, Weld
County Centennial Jail Dietician; LEON
WIKOFF, Weld County Centennial Jail
Correctional Officer; JOHN DOES #3
through #7 and JOHN DOE #9, Weld
County Centennial Jail Personnel;
KENNETH LEACH, Weld County
Centennial Jail Correctional Officer, each
in their individual and official capacities;
and THE MUNICIPALITY OF WELD
COUNTY, by and through THE BOARD
OF COUNTY COMMISSIONERS OF
THE COUNTY OF WELD.
Defendants-Appellees.
ORDER AND JUDGMENT *
Before HENRY, BRISCOE, and O’BRIEN, Circuit Judges.
*
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 (eff. Dec. 1, 2006) and 10th Cir. R.
32.1 (eff. Jan. 1, 2007).
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,
ordered submitted without oral argument.
Plaintiff Keith Frazier (“Frazier”) appeals the district court’s dismissal of his pro
se action filed pursuant to 42 U.S.C. § 1983. We have jurisdiction pursuant to 28 U.S.C.
§ 1291 and affirm.
Frazier, who is currently incarcerated with the Colorado Department of
Corrections, filed his complaint on September 7, 2004, against Ed Jordan (“Jordan”), the
former sheriff of Weld County, the Board of County Commissioners of Weld County
(“BOCC”), and ten Jane/John Doe defendants for violations of his Eighth and Fourteenth
Amendment rights. After learning the identity of two of his John Doe defendants, Dr.
Thomas Flower (“Flower”) and Leon Wikoff (“Wikoff”), Frazier submitted an amended
complaint against Jordan, Flower, Wikoff, the BOCC, and eight remaining Jane/John
Does on December 17, 2004. On July 18, 2005, the district court granted Frazier’s
motion to identify John Doe #8 as correctional officer Kenneth Leach (“Leach”).
In his amended complaint, Frazier alleges that during his pretrial detention at the
Weld County Centennial Jail (“WCCJ”) he was denied a sufficient amount of food in
violation of the Eighth Amendment’s prohibition against cruel and unusual punishment
and the substantive due process clause of the Fourteenth Amendment. He claims that
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Flower, a physician at WCCJ, ignored his requests for additional food. He also asserts
that Wikoff, a correctional officer, “purposefully misinterpret[ed] a frivolous and rarely-
used rule” to confiscate excess ramen soup packets from his cell. Record on Appeal
(“ROA”), Tab 35 at 4d. He alleges that Jordan denied his request for an additional review
of his excess soup infraction “on a technicality.” Id. at 4e. Finally, Frazier asserts that
Leach, while conducting an evening cell inspection, found a cheeseburger he had hidden
in a bowl in his room. Frazier “tricked the officer into letting him examine what he’d
found, and once he had the food back in his hands, he quickly tried to eat it.” Id. at 4g.
He contends that Leach then “went berserk and attacked [him] in an effort to prevent him
from eating his own food.” Id. He claims that Leach tackled him and wrestled with him,
while attempting to pull food out of his mouth, resulting in “minor injuries” to Frazier.
Id. Frazier fails to allege any facts related to any action taken or a policy implemented by
the BOCC that caused or led to the alleged violations of his constitutional rights.
On October 15, 2004, the district court denied Frazier’s motion for appointment of
counsel. On August 31, 2005, the district court dismissed Frazier’s claims against Flower
and Jordan for failure to state a claim and failure to file within the statute of limitations.
It dismissed the claim against the BOCC and its current sheriff, John Cook (“Cook”), for
failure to adequately allege a governmental policy or custom causing deprivation of a
constitutional right. The district court also dismissed Frazier’s claims against Wikoff,
concluding that Frazier’s claim was time-barred and he was not entitled to equitable
tolling of the statute of limitations. On September 21, 2005, the court dismissed Frazier’s
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claims against his remaining Jane/John Doe defendants. Finally, on July 18, 2006, the
district court adopted the recommendation of the magistrate judge, which concluded that
Frazier’s claim against Leach was barred by the statute of limitations, Frazier was not
entitled to equitable tolling, and recommending dismissal of Frazier’s claim against Leach
and Frazier’s suit in its entirety.
Although Frazier lists sixteen issues for review in his notice of appeal, several of
the issues are redundant. To summarize, Frazier argues that the district court erred in: (1)
denying his motion to appoint counsel and, in the process, exhibiting bias towards him;
(2) dismissing his case against Jordan and Flower as barred by the statute of limitations
and for failure to state a claim, concluding that he was not entitled to equitable tolling,
and dismissing his claims against Wikoff and Leach as time-barred; (3) concluding that
the continuing violations doctrine was inapplicable to his case; (4) dismissing his suit
before allowing sufficient time for discovery and dismissing his suit against unnamed
Jane/John Doe defendants; (5) dismissing his claim against the BOCC and the current
sheriff of WCCJ for failure to state a claim; and (6) neglecting to address his request for
injunctive relief. Because Frazier is a pro se litigant, his “pleadings are to be construed
liberally and held to a less stringent standard than formal pleadings drafted by lawyers.”
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
We “review a district court’s refusal to appoint counsel for an indigent prisoner in
a civil case for an abuse of discretion. The burden is on the applicant to convince the
court that there is sufficient merit to his claim to warrant the appointment of counsel.”
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Steffey v. Orman, 461 F.3d 1218, 1223 (10th Cir. 2006) (citations omitted). The district
court’s decision to deny counsel will only be overturned “in those extreme cases where
the lack of counsel results in fundamental unfairness.” Id. “In evaluating a prisoner’s
request for appointed counsel, the court should consider ‘the merits of the prisoner’s
claims, the nature and complexity of the factual and legal issues, and the prisoner’s ability
to investigate the facts and present his claims.’” Id. at 1224.
In evaluating Frazier’s motion for appointment of counsel, the magistrate judge
considered the proper factors and determined that Frazier adequately presented his claims,
his factual and legal issues were not complex, and the allegations in the complaint did not
indicate a strong chance of success on the merits. We cannot conclude that Frazier’s lack
of counsel resulted in fundamental unfairness. Frazier’s complaint demonstrates that he
adequately and thoroughly presented his factual claims and legal arguments and the
magistrate judge noted that he would construe Frazier’s pleadings liberally in light of his
pro se status. Finally, Frazier fails to demonstrate that the court was biased against him.
The magistrate judge did not abuse his discretion in denying Frazier appointed counsel.
The district court dismissed Frazier’s claims against Flower, Jordan, Wikoff, and
Leach as time-barred. On appeal, Frazier concedes that he filed his complaint outside the
limitations period, but argues that he was entitled to equitable tolling of the statute of
limitations and application of the continuing violations doctrine. We review a district
court’s determination that a plaintiff’s claims are barred by the statute of limitations de
novo. Cisneros v. ABC Rail Corp., 217 F.3d 1299, 1304 (10th Cir. 2000).
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Section 1983 claims are subject to the relevant state statute of limitations for
personal injury actions. Hunt v. Bennett, 17 F.3d 1263, 1265 (10th Cir. 1994). In
Colorado, personal injury actions are subject to a two-year statute of limitations. Id. at
1266; Colo.Rev.Stat. § 13-80-102. Because his cause of action arose in Colorado,
Frazier’s § 1983 suit was governed by a two-year statute of limitations. “Section 1983
claims accrue, for the purpose of the statute of limitations, when the plaintiff knows or
has reason to know of the injury which is the basis of his action.” Hunt, 17 F.3d at 1266.
According to Frazier’s amended complaint, his claim against Flower accrued in
November of 2001. His claims against Wikoff and Jordan accrued in January of 2002
and his claim against Leach accrued in March of 2002. Frazier had two years from the
accrual of each of his claims to file his complaint. Frazier did not file his complaint until
September 7, 2004, which was between five and ten months after the requisite limitation
period had run for his claims against each of these defendants. Frazier argues that he is
entitled to equitable tolling because he was denied access to the WCCJ’s law library. He
asserts that he did not have access to a law library until October of 2002 when he was
transferred to the general population of the Sterling Correctional Facility. He contends
that he requested use of the WCCJ’s law library on August 10, 2001, but was denied
access by a correctional officer not named in his complaint.
The issue of tolling is governed by state law. Fratus v. DeLand, 49 F.3d 673, 675
(10th Cir. 1995). In Colorado, an “equitable tolling of a statute of limitations is limited to
situations in which either the defendant has wrongfully impeded the plaintiff’s ability to
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bring the claim or truly extraordinary circumstances prevented the plaintiff from filing his
or her claim despite diligent efforts.” Dean Witter Reynolds, Inc. v. Hartman, 911 P.2d
1094, 1099 (Colo. 1996). Frazier asserts that the defendants at issue wrongfully impeded
his ability to bring his claim because they denied him access to the WCCJ’s law library.
While acknowledging that the identity of the officer who denied him access to the library
is unknown and that this officer is not a named defendant in his case, he asserts that this
fact is irrelevant because the officer claimed to be following jail policy. Frazier also
alleges that extraordinary circumstances prevented him from filing his complaint despite
his diligent efforts. He notes that he had only two to four hours a week to spend in the
law library and that, at that time, he had no experience with litigation.
“Because tolling is an equitable remedy, its application involves an examination of
the facts and circumstances of individual cases to determine when equity requires such a
remedy.” Morrison v. Goff, 91 P.3d 1050, 1057 (Colo. 2004). Frazier’s complaint does
not allege that Flower, Jordan, Wikoff, or Leach was involved in any way with denying
him access to the WCCJ’s library. Because none of these defendants were involved with
denying Frazier access to the law library, he cannot argue that they “wrongfully impeded”
his ability to bring a claim. Dean Witter, 911 P.2d at 1099. In addition, even if Frazier
was not granted access to a law library until October of 2002, he still had at the very least
thirteen months to file his complaint and Frazier acknowledged that he had between two
and four hours a week to spend in the prison’s law library. In light of this, Frazier fails to
demonstrate that there were truly extraordinary circumstances preventing him from timely
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filing his complaint.
Frazier also argues that the continuing violations doctrine should apply to his case.
The continuing violation theory “is a creation of federal law that arose in Title VII cases”
and “recognizes that certain violations are continuing in nature and provides that a claim
asserting such a violation is timely if administrative charges are filed within the period
applicable to the last act in the continuing series.” Thomas v. Denny’s, Inc., 111 F.3d
1506, 1513 (10th Cir. 1997). To establish a continuing violation, a plaintiff must show
that the claimed discriminatory acts that occurred outside the limitations period were
sufficiently related to at least one act occurring within the relevant filing period, thereby
constituting a continuing pattern of discrimination. Furr v. AT&T Tech., Inc., 824 F.2d
1537, 1543 (10th Cir. 1987). Frazier asserts that he was underfed during his entire stay at
the WCCJ and that he was denied access to the WCCJ’s law library during the duration of
his confinement, triggering the continuing violations doctrine. As a preliminary matter,
Frazier has failed to provide any authority in which this circuit has applied the continuing
violations doctrine to a § 1983 claim. See Hunt, 17 F.3d at 1266 (declining to determine
if continuing violations doctrines applies to § 1983 suits); Thomas, 111 F.3d at 1514
(declining to apply continuing violations doctrine to § 1981 claims because the doctrine
“is a creature of the need to file administrative charges” and is not applicable to § 1981
claims, which do not require such charges).
Additionally, Frazier misconstrues the purpose and application of the doctrine.
First, Frazier fails to assert any violation that occurred within the two-year statutory
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period preceding his complaint. Second, he actually argues that he was subjected to
continuing ill effects (continuous undernourishment and lack of access to the law library)
from the defendants’ original actions, not that the defendants committed further
constitutional violations against him within the two-year statutory period preceding the
filing of his complaint. The continuing violations doctrine is triggered by continual
unlawful acts, not by continual ill effects from the original violation. Bergman v. U.S.,
751 F.2d 314, 317 (10th Cir. 1984).
Frazier’s claims against Jordan, Wikoff, and Leach refer to specific incidents, each
of which occurred outside the statutory period. Nowhere does Frazier allege that any of
these defendants continued to harass him after these specific incidents. Frazier asserts
that Flower denied him extra food rations on several occasions, but the last time Flower
denied him extra food was in November of 2001. Frazier asserts no other violations
committed by Flower after this date. In addition, Frazier asserts that he was informed on
August 10, 2001, that he was denied access to the law library. Nowhere in his amended
complaint does he allege that he continued to seek and was denied access to the library.
In fact, in his reply brief, he admits that he did not seek further access to the law library
because it would have been pointless. Because Frazier is actually arguing continual ill
effects from the defendants’ prior actions (which fall outside the statutory period), the
continuing violation doctrine is inapplicable to this claim.
On September 21, 2005, the district court dismissed Frazier’s claims against Jane
Doe #1, John Does #3 through #7 and #9 for failure to show cause for his failure to serve
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process upon these defendants within 120 days as required by Federal Rule of Civil
Procedure 4(m).1 “The preliminary inquiry to be made under Rule 4(m) is whether the
plaintiff has shown good cause for the failure to timely effect service.” Espinoza v.
United States, 52 F.3d 838, 841 (10th Cir. 1995). “If good cause is shown, the plaintiff is
entitled to a mandatory extension of time. If the plaintiff fails to show good cause, the
district court must still consider whether a permissive extension of time may be
warranted. At that point the district court may in its discretion either dismiss the case
without prejudice or extend the time for service.” Id. We review a district court’s
dismissal for failure to effect service for abuse of discretion. Scott v. Hern, 216 F.3d 897,
912 (10th Cir. 2000).
Frazier filed his complaint in September of 2004. The district court ordered him to
show cause for his failure to serve his Jane/John Doe defendants in September of 2005.
Prior to this order, the district court had twice granted Frazier time extensions to serve
defendants and Frazier was given the opportunity to conduct discovery to identify the
Jane/John Doe defendants. He received answers to his first set of interrogatories in
January of 2005, nearly seven months before he was ordered to show cause for failing to
1
Federal Rule of Civil Procedure 4(m) states:
If service of the summons and complaint is not made upon a defendant within 120
days after the filing of the complaint, the court, upon motion or on its own
initiative after notice to the plaintiff, shall dismiss the action without prejudice as
to that defendant or direct that service be effected within a specified time; provided
that if the plaintiff shows good cause for the failure, the court shall extend the time
for service for an appropriate period. Fed. R. Civ. P. 4(m).
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serve the unnamed defendants. Despite this, Frazier asserts on appeal that he was not
given a fair opportunity to conduct discovery as to the unnamed defendants because the
defendants failed to make a good faith effort to answer his interrogatories.
In its order dismissing Frazier’s claims against the Jane/John Doe defendants, the
district court did not state whether it considered a permissive extension of time. “If the
plaintiff fails to show good cause, the district court must still consider whether a
permissive extension of time may be warranted.” Espinoza, 52 F.3d at 841. However,
the court had previously allowed Frazier at least two extensions of time for service and
permitted him to conduct discovery as to the identities of the unnamed defendants. “A
pro se litigant is still obligated to follow the requirements of Fed.R.Civ.P. 4.” DiCesare
v. Stuart, 12 F.3d 973, 980 (10th Cir. 1993). Because the rule does not require the district
court to grant Frazier yet another permissive extension of time to file service and Frazier
had adequate time to identify the unnamed defendants, we conclude that the district court
did not abuse its discretion in dismissing the remaining Jane/John Doe defendants.
On August 31, 2005, the district court dismissed Frazier’s claims against the
BOCC and WCCJ’s current sheriff, Cook, pursuant to Federal Rule of Civil Procedure
12(b)(6), because Frazier failed to adequately allege a governmental policy or custom
causing any deprivation of a constitutional right against either party. In addition, the
district court noted that Frazier failed to name Cook as a party defendant and had
admitted in his objection to the magistrate judge’s report and recommendation that “John
Cook is not legally responsible for any liability that was incurred by Ed Jordan during his
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tenure as Sheriff of Weld County, and as such, the Plaintiff would have no intention of
pursuing any legal action against John Cook.” ROA, Tab 58 at 1-2.
“Because the sufficiency of a complaint is a question of law, we review de novo
the district court’s grant of a motion to dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(6), applying the same standards as the district court.” Moore v. Guthrie,
438 F.3d 1036, 1039 (10th Cir. 2006). Dismissal of a complaint is proper only if “it
appears to a certainty that plaintiff is entitled to no relief under any state of facts which
could be proved in support of the claim.” Id. “The court’s function on a Rule 12(b)(6)
motion is not to weigh potential evidence that the parties might present at trial, but to
assess whether the plaintiff’s complaint alone is legally sufficient to state a claim for
which relief may be granted.” Sutton v. Utah State Sch. for Deaf & Blind, 173 F.3d
1226, 1236 (10th Cir. 1999) (citation omitted).
On appeal, Frazier argues that the court erred in dismissing his claim against Cook
because he established the sheriff of Weld County, in his official capacity, as a defendant
in his action. Frazier’s complaint names Jordan, the former WCCJ sheriff, as a defendant
in his individual and official capacities. The complaint does not name Cook as a
defendant or assert any allegations against him. In fact, Frazier admits in his reply brief
on appeal that he could not allege a specific violation against Cook because he was never
employed as a sheriff during the time he was incarcerated at WCCJ. In addition, Frazier
fails to describe any policy or custom implemented by the WCCJ that violated his
constitutional rights.
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Frazier argues that he adequately stated a claim against the BOCC, although he
admits that he could only make assumptions as to relevant policies or customs because he
was denied discovery on this issue. Despite a liberal reading of Frazier’s complaint, he
fails to describe any policy or custom in place at the WCCJ or implemented by the BOCC
that violated his constitutional rights. “A local government may not be sued under § 1983
for an injury inflicted solely by its employees or agents. Instead, it is when execution of a
government’s policy or custom, whether made by its lawmakers or by those whose edicts
or acts may fairly be said to represent official policy, inflicts the injury that the
government as an entity is responsible under § 1983.” Monell v. Dep’t of Soc. Servs.,
436 U.S. 658, 694 (1978).
In the section of his amended complaint entitled “Parties,” Frazier lists the BOCC
and cites to Colorado state statutes that allegedly impose responsibilities upon the BOCC
to correct improprieties in prisons located in its county. Frazier never mentions the
BOCC at any other time in his complaint. Colorado statute § 17-26-126, C.R.S. 2001,
states that the BOCC has a duty to examine “the jail of its county, its sufficiency, and the
management thereof during each session of the board and to correct all irregularities and
improprieties therein found.” Terry v. Sullivan, 58 P.3d 1098, 1102 (Colo. Ct. App.
2002). However, because “the commissioners and sheriff are separately elected officials”
and “the Board does not exercise managerial control over either the sheriff or the
detention center and its staff,” a board of county commissioners does not have a duty to
ensure an inmate’s safety at the detention center. Id. Colorado state law does not hold
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the BOCC responsible for the acts of the sheriff or staff of a detention center in its county.
Because Frazier’s amended complaint fails to describe any policy or custom in place at
the WCCJ or implemented by the BOCC that violated his constitutional rights, the district
court properly dismissed his claim pursuant to Rule 12(b)(6).
Finally, Frazier asserts that the district court erred in failing to address his motions
for injunctive relief. It is unclear if Frazier is appealing the district court’s failure to
address the injunctive relief he requested in his amended complaint or if he is referring to
his later motions for emergency injunctions. Neither claim has merit. If Frazier is
referring to the injunctive relief requested in his complaint, the district court has no duty
to address this issue because it dismissed his suit in its entirety.
Additionally, the district court addressed Frazier’s later motions for emergency
injunctive relief and denied them. Because Frazier did not object to the magistrate
judge’s report and recommendation, which recommended a denial of these motions,
within the required ten-day time period, this issue is waived on appeal. Key Energy Res.,
Inc. v. Merrill, 230 F.3d 1197, 1199-1200 (10th Cir. 2000). Even if we were to consider
this issue, Frazier’s claim fails because his motions for injunctive relief did not implicate
any of the defendants in his suit, but alleged violations occurring at the Kit Carson
Correctional Center, which was not a party in his suit.
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Based on the foregoing analysis, we AFFIRM the district court.2
Entered for the Court
Mary Beck Briscoe
Circuit Judge
2
We GRANT Frazier’s motion to proceed on appeal without prepayment of costs
and fees and remind him that he is obligated to continue making partial payments until
the entire fee has been paid.
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