FILED
United States Court of Appeals
Tenth Circuit
January 4, 2012
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
ELVIN CLIFFORD WATKINS,
Plaintiff-Appellant,
No. 11-7019
v. (D.C. No. 6:09-CV-00418-JHP-SPS)
(E.D. Okla.)
CLINT B. CRAFT,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before KELLY, GORSUCH, and MATHESON, Circuit Judges.
Plaintiff-Appellant Elvin Clifford Watkins is an inmate in the custody of
the Federal Bureau of Prisons. Mr. Watkins filed a pro se amended complaint
under 42 U.S.C. § 1983, alleging that Clint B. Craft, an Oklahoma Highway
Patrol Trooper, violated his constitutional rights on August 13, 2007, during a
traffic stop that resulted in Mr. Watkins’s arrest and eventual conviction for
*
After examining the briefs and appellate record, this panel has determined
unanimously to grant 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
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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
possessing marijuana with intent to distribute. In response to defendant Craft’s
motion to dismiss under Fed. R. Civ. P. 12(b)(6), the district court determined
that the claims set forth in the amended complaint were barred by the statute of
limitations. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
We have reviewed Mr. Watkins’s opening brief and have determined that,
although he refers to several constitutional amendments, his briefing on all but
the excessive force claim is inadequate. See Adler v. Wal-Mart Stores, Inc.,
144 F.3d 664, 679 (10th Cir. 1998) (“Arguments inadequately briefed in the
opening brief are waived . . . .”). We will therefore limit our analysis to that
claim.
We review a Rule 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. Watkins is proceeding
pro se, this court reviews the record and construes his pleadings liberally.
Id. at 1125. If Mr. Watkins’s amended complaint shows on its face that the
applicable statute of limitations has expired, however, dismissal for failure to
state a claim is appropriate. See Aldrich v. McCulloch Props., Inc., 627 F.2d
1036, 1041 n.4 (10th Cir. 1980).
“State statutes of limitations applicable to general personal injury claims
supply the limitations period for § 1983 claims, but federal law governs the time
of accrual of § 1983 claims.” Beck v. City of Muskogee Police Dep’t, 195 F.3d
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553, 557 (10th Cir. 1999) (citations omitted). In this case, Oklahoma’s two-year
statute governs Mr. Watkins’s excessive force claim. See Okla. Stat. tit. 12,
§ 95(A)(3); Meade v. Grubbs, 841 F.2d 1512, 1522 (10th Cir. 1988). “Since the
injury in a § 1983 case is the violation of a constitutional right, such claims
accrue when the plaintiff knows or should know that his or her constitutional
rights have been violated.” Beck, 195 F.3d at 557 (internal quotation marks
omitted). Thus, “[c]laims arising out of police actions toward a criminal suspect,
such as arrest, interrogation, or search and seizure, are presumed to have accrued
when the actions actually occur.” Johnson v. Johnson Cnty. Comm’n Bd., 925
F.2d 1299, 1301 (10th Cir. 1991); see also Fox v. DeSoto, 489 F.3d 227, 233
(6th Cir. 2007) (“A § 1983 claim for excessive force in effectuating an arrest
accrues at the time of arrest.”).
In appropriate cases, the doctrine of equitable tolling can apply in § 1983
cases and prevent the running of the applicable statute of limitations. As we have
explained:
“[S]tate law governs the application of tolling in a [federal] civil
rights action.” Alexander v. Oklahoma, 382 F.3d 1206, 1217
(10th Cir. 2004). “In general, Oklahoma permits the tolling of a
statute of limitations in two circumstances.” Id. The first
circumstance is the existence of a legal disability, which has been
applied in cases where a plaintiff's competency is impaired or where
the plaintiff has not yet reached the age of majority. Id. The second
circumstance is when “defendants engage in false, fraudulent or
misleading conduct calculated to lull plaintiffs into sitting on their
rights.” Id. (quotation omitted). This court noted also that “[i]n the
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appropriate case, exceptional circumstances may justify tolling a
statute of limitations.” Id. at 1219.
Young v. Davis, 554 F.3d 1254, 1258 (10th Cir. 2009) (alterations in original).
In his amended complaint, Mr. Watkins alleges that the events at issue in
this case took place on August 13, 2007. See R., Doc. 7 at 5-6. Mr. Watkins’s
claim for excessive force is therefore presumed to have accrued on August 13,
2007 – the day defendant Craft allegedly assaulted him. See Johnson, 925 F.2d
at 1301. Because we see no reason to depart from this presumption, Mr. Watkins
was required to file his initial complaint on or before August 13, 2009. See Okla.
Stat. tit. 12, § 95(A)(3); Meade, 841 F.2d at 1522. But Mr. Watkins did not file
his initial complaint until October 27, 2009. See R., Doc. 1. His excessive force
claim is thus time-barred unless he can establish that the district court should
have equitably tolled the limitations period.
Mr. Watkins argued in the district court that the statute of limitations
should be tolled based on exceptional circumstances. Specifically, in an
“Affidavit” attached to his amended complaint, Mr. Watkins stated:
Plaintiff ELVIN CLIFFORD WATKINS, #04635-063 went out
on a “Writ” on January 08, 2009, to face other legal issue[s] in West
Virginia, Martinsburg. Plaintiff, was jailed there about seven (7)
months unable to research, litigate[], or do legal typing. This
Affidavit is in support of the attached complain[t] if the statute of
limitations has expired. Plaintiff, did not [return to] the compound
here at Fort Devens [in Massachusetts] until SEPTEMBER 1st, 2009,
almost eight (8) months later, therefore plaintiff [has] showed “Good
Cause” to why if he’s time-barred! And the court[s] can not
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discriminate against the (B.O.P.), therefore in support of equitable
tolling, this case MUST move forward.
R., Doc. 7 at 12. Similarly, in his response to defendant Craft’s motion to
dismiss, Mr. Watkins alleged that (1) “He was out on a ‘Writ’ faced with other
legal issue[s] and this was out of his control;” and (2) “During those
seven-months in the local jail [in West Virginia], he was unable to type[,] litigate,
or research in law library.” Id., Doc. 28 at 3-4.
We conclude that Mr. Watkins has failed to provide sufficient specificity
about (1) his alleged lack of access to writing and legal research materials during
his time in West Virginia; and (2) how the alleged lack of access affected his
ability to file a timely § 1983 complaint. See Young, 554 F.3d at 1258-59
(holding that prisoner failed to state a claim for equitable tolling where prisoner
failed to provide sufficient specificity about his alleged lack of access to a law
library and his attempts to diligently pursue his claims). The only claim we are
dealing with at this juncture is Mr. Watkins’s excessive force claim, and
Mr. Watkins has not explained specifically why he needed a typewriter or a law
library to prepare a timely § 1983 complaint containing the basic allegations
supporting that claim or why he was otherwise prevented from “litigating” that
claim. Moreover, Mr. Watkins has not alleged that he was in any way prevented
from mailing court documents from the jail in West Virginia.
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The judgment of the district court is AFFIRMED. Appellant’s motion for
leave to proceed on appeal in forma pauperis is GRANTED, but we remind
appellant that he is obligated to continue making partial payments until the entire
appellate filing fee has been paid. Appellant’s motion for summary judgment is
DENIED. Appellee’s motion to strike appellant’s motion for summary judgment
is DENIED as moot.
ENTERED FOR THE COURT,
Scott M. Matheson, Jr.
Circuit Judge
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