FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
TENTH CIRCUIT November 18, 2011
Elisabeth A. Shumaker
Clerk of Court
CALVIN EUGENE BARNETT,
Plaintiff - Appellant,
v. No. 11-7052
(D.C. No. 6:10-CV-00348-RAW-SPS)
CORRECTION CORPORATION OF (E.D. Okla.)
AMERICA; OWNER OR OWNERS OF
CCA; ROBERT EZELL; BILL BOYD;
BRIAN (LNU), United Manager; BERRY
(LNU), Captain,
Defendant - Appellees.
ORDER AND JUDGMENT*
Before BRISCOE, Chief Judge, MURPHY and MATHESON, Circuit Judges.
Plaintiff-Appellant Calvin Barnett is an inmate in the custody of the Oklahoma
*After examining Appellant=s brief and the 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) and 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 This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and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.
Department of Corrections. On September 22, 2010, Mr. Barnett filed a pro se complaint
under 42 U.S.C. § 1983, charging certain corporate owners and employees of the Davis
Correctional Facility (DCF), a private prison in Holdenville, Oklahoma, of violating his
constitutional rights. In response to the defendants’ Rule 12(b)(6) motion to dismiss, the
district court dismissed the complaint as time barred under the statute of limitations. Mr.
Barnett appealed.
We review a 12(b)(6) dismissal de novo, construing all facts and inferences in the
light most favorable to the appellant. Casanova v. Ulibarri, 595 F.3d 1120, 1124-25
(10th Cir. 2010). Because Mr. Barnett is proceeding pro se, this court reviews the record
and construes his pleadings liberally. Id. at 1125.
Mr. Barnett’s complaint is vague and lacks detail, but he seems to allege that the
defendants knew of a danger to two inmates—himself and his cell mate, Nathan Gerrod
Houston—apparently as a result of conflict and likely violence between them.1 Mr.
Barnett contends he told the defendants that he feared for his life, but they did nothing to
protect the two inmates from one another. According to Mr. Barnett, this failure to act
caused Mr. Houston’s death. Mr. Barnett was transferred from DCF on March 28, 2007,
shortly after the death, and was charged with first degree murder on June 19, 2007.
Barnett v. Corrections Corp. of America, 2011 WL 2971969 at *1 (E.D. Okla. Jul. 21,
2011). He has not returned to DCF. Id.
1
In his complaint, Mr. Barnett states defendants knew “of the substantial risk . . .
and harm, that either inmate, could have easy (sic) brought up on the other.”
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The limitations period for a § 1983 claim is governed by the forum state’s
limitation for personal injury actions. Frederick v. Oklahoma, 42 F.3d 1406, 1406 (10th
Cir. 1994). In Oklahoma, this period is two years. Okla. Stat. tit. 12 § 95(A)(3); Meade
v. Grubbs, 841 F.2d 1512, 1522 (10th Cir. 1988). Although Mr. Barnett’s complaint does
not specify the date of the alleged constitutional violations, he contends the violations
occurred while he was an inmate at DCF and before Mr. Houston’s death. Thus, the
action accrued no later than his transfer date of March 28, 2007. The statute of
limitations therefore ran on March 28, 2009—more than a year before this complaint was
filed. When a complaint shows on its face that the applicable statute of limitations has
expired, dismissal for failure to state a claim is appropriate. Frederick, 42 F.3d at 1406.
Mr. Barnett argues, however, that he is entitled to equitable tolling because he was
not aware of the § 1983 violation until October 2009. Under Mr. Barnett’s theory, the
statute of limitations would not have run until October 2011, making his complaint
timely. State law governs tolling in § 1983 cases. Fogle v. Pierson, 435 F.3d 1252, 1258
(10th Cir. 2006). Oklahoma discovery rules toll the statute of limitations “until an
injured party knows of, or, in the exercise of reasonable diligence, should have known of
or discovered the injury.” Lovelace v. Keohane, 831 P.2d 624, 629 (Okla. 1992).
Unfortunately, Mr. Barnett has not explained why he failed to discover the injury
earlier, nor does he provide any reason why the court should find that he exercised
reasonable diligence in spite of this failure. To the contrary, Mr. Barnett’s own
complaint requires an inference that he was, from the very beginning, aware of the key
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facts underlying his claim: he claims he personally told the defendants of his concerns
and they failed to separate him from his cellmate.
We find that the district court was correct in finding no grounds for equitable
tolling. As such, the order dismissing this action is AFFIRMED.
ENTERED FOR THE COURT
Scott M. Matheson, Jr.
Circuit Judge
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