FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
February 8, 2011
FOR THE TENTH CIRCUIT
Elisabeth A. Shumaker
Clerk of Court
WILLIAM WILSON,
Plaintiff-Appellant,
v. No. 10-1408
(D.C. No. 1:09-CV-02138-WYD-BNB)
CITY OF AURORA, Colorado, a (D. Colo.)
municipality; DANIEL OATES, Chief
of the Aurora Police Department, in
his official capacity; RICKY
BENNETT, Former Chief of the
Aurora Police Department, in his
individual capacity; TERRY JONES,
Former Acting Chief of the Aurora
Police Department, in his individual
capacity; KENNETH HAITHCOAT,
Former Detective in the Aurora Police
Department, in his individual
capacity; PAT SMITH, Sergeant in
the Aurora Police Department, in his
individual and official capacities;
STEVEN COX, Detective in the
Aurora Police Department, in his
individual and official capacities;
CAROL CHAMBERS, District
Attorney of the Eighteenth Judicial
District, in her official capacity;
CAROLYN O’HARA, Former Deputy
District Attorney of the Eighteenth
Judicial District, in her individual
capacity; JIM PETERS, Former
District Attorney of the Eighteenth
Judicial District, in his individual
capacity; EIGHTEENTH JUDICIAL
DISTRICT of COLORADO, political
subdivision of the State of Colorado,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before HOLMES and McKAY, Circuit Judges, and PORFILIO, Senior
Circuit Judge.
William Wilson appeals the district court’s decision that his 42 U.S.C.
§ 1983 claims are time-barred. Exercising jurisdiction under 28 U.S.C. § 1291,
we AFFIRM.
The initial complaint, filed in September 2009, alleged that defendants
violated Mr. Wilson’s civil rights by investigating him, searching his residence,
causing the destruction of his business, and engaging in a conspiracy against him.
In November, he filed an amended complaint with the same § 1983 claims and a
new claim alleging state-law violations. As in the initial complaint, most of the
events specifically described were in 2002 (the initial investigation), 2003
(further investigation and the search), and 2004 (the closure of his business),
while the conspiracy was described as ongoing between 2002 and 2009. The
magistrate judge concluded that those § 1983 claims that were adequately pleaded
*
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)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. 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 and 10th Cir. R. 32.1.
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fell outside the two-year limitations period. He recommended that the district
court dismiss the claims as time-barred and that the court decline to exercise
federal jurisdiction over the state-law claims and dismiss them without prejudice.
Subsequently, Mr. Wilson filed a motion for leave to file a second amended
complaint and a proposed second amended complaint. The magistrate judge
recommended denying leave to amend because the proposed second amended
complaint failed to comply with Federal Rule of Civil Procedure 8; it failed to
allege any plausible claim that was not time-barred; and it came too late.
Because Mr. Wilson objected to both recommendations, the district court
engaged in a de novo review. Regarding dismissal, the court agreed with the
magistrate judge that the § 1983 claims accrued, for limitations purposes, in 2003
and 2004; there were no sufficient allegations to support the tolling of the
limitations period; and the conclusory allegations of a conspiracy lasting into
2009 were insufficient to invoke a continuing violation theory. Accordingly, the
court dismissed the § 1983 claims as time-barred. The court also declined to
exercise supplemental jurisdiction over the state-law claims and dismissed them
without prejudice. Regarding amendment, the court concluded that granting leave
to amend would be futile because the statute of limitations would still bar the
claims in the proposed second amended complaint. Thus, the court entered
judgment for the defendants.
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On appeal, Mr. Wilson argues that the defendants’ actions constituted an
ongoing conspiracy that precludes application of the limitations period. We note
that his brief cites to his second amended complaint. That complaint, however,
was never filed, and on appeal Mr. Wilson does not present any argument
challenging the denial of his motion for leave to amend. Thus, the relevant
allegations are those contained in the amended complaint. Having reviewed the
parties’ briefs and the appellate record, we affirm the district court’s decision for
substantially the reasons stated in the report and recommendation filed on
May 19, 2010, and the order adopting the recommendation filed on September 2,
2010.
Mr. Wilson also argues that the court erred in dismissing the claims against
one defendant based on Eleventh Amendment immunity. While the report and
recommendation discussed Eleventh Amendment immunity, the district court’s
judgment on all of the § 1983 claims rested only on the statute of limitations.
Therefore, we need not address any Eleventh Amendment issues.
Defendants’ Motion to Dismiss Appeal or for Summary Disposition, or in
the Alternative, Motion to Supplement the Record is DENIED. The judgment of
the district court is AFFIRMED.
Entered for the Court
Jerome A. Holmes
Circuit Judge
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