Chrisco v. Holubek

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT October 6, 2017
_________________________________
Elisabeth A. Shumaker
Clerk of Court
LUKE IRVIN CHRISCO,

Plaintiff - Appellant,

v. No. 17-1169
(D.C. No. 1:17-CV-00231-LTB)
TIFFANY HOLUBEK, SCCF Law (D. Colo.)
Librarian; RICHARD F. RAEMISCH,
CDOC Exec. Dir.,

Defendants - Appellees.

–––––––––––––––––––––––––––––––––––

LUKE IRVIN CHRISCO,

Plaintiff - Appellant,

v. No. 17-1196
(D.C. No. 1:17-CV-00573-LTB)
TIFFANY HOLUBEK, (D. Colo.)
SCCF Law Librarian,

Defendant - Appellee.
_________________________________

ORDER AND JUDGMENT*
_________________________________

Before BRISCOE, HARTZ, and BACHARACH, Circuit Judges.

*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
these appeals. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The cases are
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 This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and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. 32.1and 10th Cir. R. 32.1.
_________________________________

Luke Irvin Chrisco is a Colorado state prisoner proceeding pro se. These

appeals arise from claims he filed against a prison law librarian and other prison

officials under 42 U.S.C. § 1983. The district court dismissed all claims against all

defendants as legally frivolous in two separate orders, which Chrisco now appeals.

We dismiss the appeals as frivolous.

Background

1. Appeal No. 17-1169

In the first action, Chrisco asserted five claims alleging retaliation and denial

of access to the courts during his incarceration at the San Carlos Correctional Facility

(SCCF) from July 2 to September 16, 2014. In addition to critiquing the prison’s

grievance process generally, he took issue with numerous practices and procedures at

the prison library and accused the librarian of “sabotag[ing]” the grievance process

and “hijack[ing]” his habeas petition. Appeal No. 17-1169, R. at 5-6 (internal

quotation marks omitted).

Chrisco did not file his complaint until January 2017—more than four months

after the applicable two-year statute of limitations had run. Therefore, the district

court ordered him to show cause why his case should not be dismissed as untimely.

Chrisco responded by identifying a confluence of circumstances that purportedly

prevented a timely filing: namely, obstructionist behavior by prison officials with

respect to grievances and library access, his inability to obtain copies of grievances,

delayed receipt of the prison litigation manual, extended mental-health watches,

2
involuntary sedation and medication, and his lack of eyeglasses. Based on these

circumstances, he asked the district court to equitably toll the statute of limitations.

The district court rejected Chrisco’s equitable-tolling arguments, noting that he

had been able to file a number of other cases during the relevant time period. See

Appeal No. 17-1169, R. at 60 (“Based on his litigation history, it is apparent that the

obstacles Mr. Chrisco allegedly faced during the relevant time period did not actually

prevent him from filing civil actions and pursuing legal claims.”). It dismissed his

claims as barred by the statute of limitations and legally frivolous.

Chrisco twice sought reconsideration of the district court’s ruling. First, he

filed a motion under Federal Rule of Civil Procedure 60(b), which the district court

construed as a motion under Federal Rule of Civil Procedure 59(e) because of the

timing of the filing. In addition to repeating many of his earlier arguments, Chrisco

explained that “he would have had to forgoe [sic] his other legal activities” or “file

them past their limitations period” had he timely filed this action. Appeal No.

17-1169, R. at 64-65. This explanation only reinforced the district court’s earlier

conclusion that he was not prevented from timely filing his claims, so it denied his

motion. Second, Chrisco filed a motion to reopen his case and reconsider the denial

of his Rule 60(b) motion via oral argument; the motion was summarily denied.

Chrisco appeals the dismissal order and the orders denying his postjudgment

motions.

3
2. Appeal No. 17-1196

In the second action, Chrisco asserted nine claims alleging retaliation and

denial of access to the courts, equal protection, and due process during his

incarceration at the same facility from February 2015 to mid-2016. The first six

claims stemmed from his belief that he is a sovereign citizen and his desire to pursue

sovereignty-law claims in federal court.1 The remaining claims related to his efforts

to appeal the denial of a state habeas petition, to various acts of retaliation, and to the

prison policy limiting prisoners to 15 books.

The magistrate judge found a number of technical and substantive deficiencies

in the complaint, including Chrisco’s “fail[ure] to allege specific facts in support of

his claims that demonstrate he is entitled to relief.” No. 17-1196, R. at 39. He

therefore ordered Chrisco to file an amended complaint that complies with the

Federal Rules of Civil Procedure and clarifies his claims, using the court-approved

form. The order warned Chrisco that failure to comply would result in dismissal, but

even so he did not respond. The district court thus treated the original complaint as

the operative pleading, assessed its sufficiency, and dismissed all claims as legally

frivolous.

Chrisco appeals the dismissal order.

1
Chrisco explains that sovereigns, also known as “sojourners,” do not consider
themselves to be citizens of the United States and “use commercial and diplomatic
law to negate the voidable contracts of adhesion that they take issue with, and to
regain their status as ‘the People’ of the several states which are guaranteed a
Republican form of government.” No. 17-1196, Aplt. Opening Br. at 8, 12. But
according to Chrisco, prison officials disfavor such claims and impede prisoners from
filing them.
4
Discussion

Because Chrisco is proceeding pro se, “we construe his pleadings liberally.”

Ledbetter v. City of Topeka, 318 F.3d 1183, 1187 (10th Cir. 2003). We make some

allowances for deficiencies, such as unfamiliarity with pleading requirements, failure

to cite appropriate legal authority, and confusion of legal theories. See Garrett v.

Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005). But we “cannot

take on the responsibility of serving as [his] attorney in constructing arguments and

searching the record.” Id.

We start with the first appeal, No. 17-1169. As the district court correctly

explained, § 1983 does not contain a statute of limitations or a body of tolling rules;

to fill the void, we turn to the state statute of limitations and tolling rules for the

analogous cause of action. See Appeal No. 17-1169, R. at 56 (citing Bd. of Regents

v. Tomanio, 446 U.S. 478, 483-84 (1980)). The Supreme Court has stated that

§ 1983 claims are best characterized as personal-injury actions for limitations

purposes. See Wilson v. Garcia, 471 U.S. 261, 280 (1985). In Colorado the residual

statute of limitations for a personal-injury claim—and thus a § 1983 claim—is two

years. See Blake v. Dickason, 997 F.2d 749, 750-51 (10th Cir. 1993). Federal law

governs accrual though, and a § 1983 claim accrues “when the plaintiff knows or has

reason to know of the injury which is the basis of his action.” Kripp v. Luton,

466 F.3d 1171, 1175 (10th Cir. 2006) (internal quotation marks omitted). Here, that

date was no later than September 16, 2014.

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Chrisco concedes he filed his complaint more than two years after that date but

invokes the equitable-tolling doctrine to excuse his delay. Under Colorado law,

equitable tolling of a statute of limitations is appropriate “when flexibility is required

to accomplish the goals of justice,” such as when a plaintiff does not timely file his

claims “because of extraordinary circumstances or because defendants’ wrongful

conduct prevented [him] from doing so.” Morrison v. Goff, 91 P.3d 1050, 1053

(Colo. 2004) (internal quotation marks omitted). Even though the statute of

limitations is an affirmative defense, Chrisco bears “the burden of establishing a

factual basis for tolling” because it is clear from the dates given in the complaint that

“the right sued upon has been extinguished.” Aldrich v. McCulloch Props., Inc.,

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

Chrisco’s arguments on appeal echo his arguments before the district court,

and they are no more persuasive now. He continues to insist he could not file this

action on time because defendants’ misconduct impeded him from doing so. But we

agree with the district court that Chrisco’s extensive litigation history fatally

undercuts this argument. The record shows Chrisco managed to file at least five

federal lawsuits, as well as dozens of grievances and several state-court matters,

during the two-year limitations period. Equitable tolling is not appropriate under

these circumstances.

Turning to the second appeal, No. 17-1196, we agree with the district court’s

analysis here too. Chrisco states that he “chose to ‘sit tight’ and appeal any

dismissal” rather than file an amended complaint because “he remained under the

6
impression his complaint was sound.” No. 17-1196, Aplt. Opening Br. at 2. But the

magistrate judge outlined the deficiencies in Chrisco’s complaint and explained what

he needed to do to fix them. Having disregarded an explicit warning that his case

would be dismissed if he did not file an amended complaint, Chrisco has no recourse

now.

Conclusion

We dismiss these appeals as frivolous.

We deny Chrisco’s motion for leave to proceed without prepayment of fees in

both appeals because he has failed to advance “a reasoned, nonfrivolous argument on

the law and facts in support of the issues raised.” DeBardeleben v. Quinlan,

937 F.2d 502, 505 (10th Cir. 1991). Therefore, he must pay the balance of the

appellate filing fees immediately. And, because we dismiss Chrisco’s appeals as

frivolous, the dismissals will count as two strikes under 28 U.S.C. § 1915(g). See

Jennings v. Natrona Cty. Det. Ctr. Med. Facility, 175 F.3d 775, 780-81 (10th Cir.

1999), overruled on other grounds by Coleman v. Tollefson, 135 S. Ct. 1759 (2015).

Chrisco’s renewed motion to supplement the record in Appeal No. 17-1196

with exhibits to a complaint filed in an unrelated lawsuit in the District of Colorado

(Case No. 1:15-cv-00475-LTB) is also denied.

Entered for the Court

Harris L Hartz
Circuit Judge