FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT April 15, 2021
_________________________________
Christopher M. Wolpert
Clerk of Court
JON HETER,
Plaintiff - Appellant,
v. No. 20-3114
(D.C. No. 6:19-CV-01258-EFM-GEB)
CITY OF HUTCHINSON, KANSAS; (D. Kan.)
OFFICER JOSH LONG, in his individual
and official capacity,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before MORITZ, BALDOCK, and EID, Circuit Judges.
_________________________________
Jon Heter appeals the district court order dismissing his 42 U.S.C. § 1983 civil
rights action against the City of Hutchinson, Kansas and Officer Josh Long.
Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
*
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
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 This order and judgment is not binding precedent,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.
Background
On November 17, 2016, Officer Long stopped Heter for riding a bicycle on a
sidewalk at night without a headlight. After Heter gave a false name and refused to
provide his date of birth, Officer Long arrested him for interference with law
enforcement. During the search incident to arrest, Officer Long found Heter’s
driver’s license and evidence of drug crimes. He also discovered that Heter had an
outstanding arrest warrant for a probation violation. Heter was booked in the county
jail and released on bond the same day. The state later charged him with possession
of methamphetamine and possession of drug paraphernalia.
Heter moved to suppress the evidence seized during the search. The state
district court denied the motion, found him guilty after a bench trial, and sentenced
him to seventeen months in prison. After serving about three months of his sentence
in prison, Heter was released to serve the remainder of his sentence on probation
through community corrections, and he was discharged from community corrections
in September 2018.
On January 11, 2019—after Heter had completed his sentence—the Kansas
Court of Appeals reversed his conviction, concluding that the evidence should have
been suppressed because Officer Long lacked probable cause to arrest Heter and the
evidence was not admissible under an exception to the exclusionary rule. On
remand, the prosecution dismissed the charges.
Heter filed this suit against the City and Officer Long in federal district court
on September 23, 2019. The court granted defendants’ Fed. R. Civ. P. 12(b)(6)
2
motion to dismiss the complaint as barred by the applicable statute of limitations, and
this appeal followed.1
Discussion
We review de novo the district court’s determination that Heter’s claims are
time barred. See Braxton v. Zavaras, 614 F.3d 1156, 1159 (10th Cir. 2010) (“We
review de novo the dismissal of an action under Rule 12(b)(6) based on
the statute of limitations.”).
A defendant may raise a statute of limitations defense in a Rule 12(b)(6)
motion to dismiss when the dates given in the complaint and incorporated
documents2 “make clear that the right sued upon has been extinguished.” Aldrich v.
McCulloch Props., Inc., 627 F.2d 1036, 1041 n.4 (10th Cir. 1980). When the dates
are undisputed, “we may as a matter of law determine when a cause of action has
accrued.” Smith v. City of Enid ex rel. Enid City Comm’n, 149 F.3d 1151, 1154
(10th Cir. 1998).
The limitations period for § 1983 claims is determined by the state’s personal
injury statute of limitations. Owens v. Okure, 488 U.S. 235, 236 (1989). The parties
agree that under Kansas law, the applicable limitations period is two years. See Kan.
1
Defendants also sought dismissal on qualified immunity grounds, but because
the district court dismissed the complaint as time-barred, it did not reach that issue.
2
In ruling on a motion to dismiss, courts consider both the complaint and the
documents attached as exhibits to the complaint. Oxendine v. Kaplan, 241 F.3d
1272, 1275 (10th Cir. 2001); see Fed. R. Civ. P. 10(c) (“A copy of a written
instrument that is an exhibit to a pleading is a part of the pleading for all purposes.”).
3
Stat. Ann. § 60-513(a)(4) (establishing two-year limitations period for personal injury
actions); Keith v. Koerner, 843 F.3d 833, 851 (10th Cir. 2016) (holding that Kan.
Stat. Ann. 60-513(a)(4), applies to § 1983 suits). They disagree, however, about
when the statute began to run.
The accrual date of a § 1983 claim is a question of federal law. Wallace v.
Kato, 549 U.S. 384, 388 (2007). Under federal law “accrual occurs when the
plaintiff has a complete and present cause of action.” Id. (brackets and internal
quotation marks omitted). Our first task in determining the accrual date of Heter’s
claims is to identify the alleged constitutional violation. See Smith, 149 F.3d at 1154.
Heter asserted two § 1983 claims: one for “unlawful arrest” and one for
“constitutional deprivation.” Aplt. App. at 17-18. The question is whether his claims
are both rooted in the Fourth Amendment or whether they also implicated his right to
due process under the Fourteenth Amendment.
“If [a § 1983 plaintiff] has been imprisoned without legal process he has a
claim under the Fourth Amendment analogous to a tort claim for false arrest or false
imprisonment.” Mondragon v. Thompson, 519 F.3d 1078, 1082 (10th Cir. 2008).
Such a claim accrues “when the plaintiff is released or legal process is instituted
justifying that imprisonment.” Id. at 1083; see also Wallace, 549 U.S. at 389
(explaining that a plaintiff has a complete and present cause of action for a § 1983
claim of false arrest or imprisonment based on the Fourth Amendment when his
detention without legal process ends).
4
After the initiation of legal process, the source of an alleged constitutional
violation stemming from a plaintiff’s continued detention shifts from the Fourth to
the Fourteenth Amendment. Specifically, if a plaintiff “has been imprisoned
pursuant to legal but wrongful process, he has a claim under the procedural
component of the Fourteenth Amendment’s Due Process Clause analogous to a tort
claim for malicious prosecution.” Mondragon, 519 F.3d at 1082. Such claims
concern the period between the institution of legal process and its favorable
termination through, for example, acquittal or the dismissal of charges, and they
accrue “at the earliest when favorable termination occurs.” Id. at 1083.
Under the Mondragon framework, Heter’s unlawful arrest claim was plainly a
false imprisonment claim rooted in the Fourth Amendment. His complaint alleged
that he was “unreasonably searched and seized by Officer Long” and expressly
identified the Fourth Amendment as the operative constitutional provision. Aplt.
App. at 18. Heter’s “constitutional deprivation” claim was also a Fourth Amendment
false imprisonment claim. It, like the unlawful arrest claim, was based on Heter’s
arrest, not his subsequent prosecution and imprisonment. Specifically, he alleged the
City and Officer Long “violated [his] federal rights when he was unlawfully seized,
and thus deprived [him] of his rights and privileges secured by the Constitution and
laws,” and that the City “inadequately trained Officer Long and/or had customs or
policies that led to the violation of [Heter’s] constitutional rights.” Id. (emphasis
added).
Neither of Heter’s claims “left open the possibility of alternative theories,” as
5
Heter suggests in his reply brief. Aplt. Reply Br. at 2. Nothing in the complaint even
hinted that he was claiming he had been maliciously prosecuted or that his
post-conviction imprisonment violated his Fourteenth Amendment due process rights.
The complaint indicated that he had been convicted and “served three months in
prison and twelve months on probation,” and that his conviction was reversed based
on the unlawful arrest and search. Aplt. App. at 17. But it did not allege any facts
supporting a due process malicious prosecution claim or a due process unlawful
post-conviction imprisonment claim.
Because both claims were Fourth Amendment claims, the statute of limitations
began to run on November 17, 2016, when Heter was released on bond. See
Mondragon, 519 F.3d at 1083. And because he did not file his complaint until nearly
three years later, the district court correctly dismissed it as time-barred.3 See id.
3
The district court determined that the statute began to run when legal process
was instituted, which it concluded was either the date of Heter’s arrest on the
probation violation or the date of his trial, and because both dates were more than
two years before Heter filed his complaint, the court held his claims were time-
barred. But the date legal process was instituted does not drive the accrual analysis
here. A false imprisonment claim accrues when either “the plaintiff is released or
legal process is instituted justifying” continued detention. Mondragon, 519 F.3d at
1083 (emphasis added). The date legal process was instituted is the accrual date only
if the plaintiff was not released, because it is the institution of legal process (i.e.,
when he is bound over for trial or is arraigned on the charges) that justifies his
continued detention. When, as here, a § 1983 plaintiff is released before legal
process is instituted, the release date is the accrual date. We can affirm the district
court’s ruling “on any grounds adequately supported by the record,” Safe Sts. All. v.
Hickenlooper, 859 F.3d 865, 879 (10th Cir. 2017) (internal quotation marks omitted),
and the record supports the November 17, 2016 accrual date based on Heter’s release
on bond. Accordingly, we need not address the propriety of the district court’s
analysis regarding when legal process was instituted.
6
We are not persuaded otherwise by Heter’s contention that the limitations
period began to run in February 2018, when he was released from prison, in
September 2018, when he was discharged from community corrections, or in January
2019, when his conviction was reversed. These proposed accrual dates and the
arguments he makes to support them are tethered to his assumption that his claims
challenged the constitutionality of his conviction and subsequent imprisonment. But
as we have explained above, Heter did not raise a claim for malicious
prosecution/unlawful imprisonment. And, contrary to his assertion, the fact that his
conviction stemmed from his unlawful arrest does not mean that his claims
challenging the constitutionality of the arrest also necessarily challenged the
constitutionality of his conviction and subsequent imprisonment.
Nor are we persuaded by Heter’s argument that he could not have shown his
arrest was unlawful until his conviction was reversed about two months after the
statute ran. Had he raised a claim challenging the constitutionality of his legal
process (his prosecution and trial) or of his subsequent imprisonment, his argument
that the statute did not start to run until the underlying conviction was reversed or
until he discharged his sentence might have merit. But Mondragon is clear that a
§ 1983 plaintiff who was released from custody must file a claim challenging the
constitutionality of his arrest within two years after his release. 519 F.3d at 1082-83.
Heter has cited no authority, and we are aware of none, providing that the statute of
limitations for a false imprisonment claim is tolled pending an appeal of a conviction
resulting from evidence discovered in a search incident to the arrest. In any event,
7
the fact that the Kansas Court of Appeals did not decide Heter’s appeal until after the
statute ran did not prevent him from filing his § 1983 complaint within the
limitations period. Having sought suppression of evidence in the trial court based on
his unlawful arrest and appealed his conviction on the same basis, he was plainly
aware of the factual and legal basis for his Fourth Amendment claim, and he could
have filed his complaint within two years after his release and then sought a stay
pending resolution of his appeal.
Conclusion
We affirm the district court’s order dismissing Heter’s complaint as
time-barred.
Entered for the Court
Nancy L. Moritz
Circuit Judge
8