Kirtdoll v. City of Topeka, KS

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
JAN 2 2003
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

FRANK LEVI KIRTDOLL,

Plaintiff-Appellant,

v.

CITY OF TOPEKA, KANSAS; JOAN No. 02-3229
WAGNON; DUANE F. POMEROY;
PETER TAVERES; JAMES A.
MCCLINTON; BETTY M. DUNN;
SAMUEL CARKHUFF; JIM
REARDON; FRAN LEE; VINCE
COOK; and JAMES GARDNER,

Defendants-Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
(D.C. No. 01-CV-2329-KHV)

Submitted on the briefs:

Frank L. Kirtdoll, pro se , Topeka, Kansas.

Mary Beth Mudrick, City of Topeka, Kansas, for Defendants-Appellees.

Before KELLY, McKAY, and MURPHY, Circuit Judges.

McKAY , Circuit Judge.
 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); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.

Plaintiff, appearing pro se, filed a § 1983 action against the City of Topeka

and several City officers alleging that Defendants violated his Fifth and

Fourteenth Amendment rights by demolishing his property. He also asserted state

law claims of trespass and conversion. The district court sustained Defendants’

motion to dismiss and overruled Plaintiff’s motion for summary judgment. The

district court found that Plaintiff’s action was untimely and that his complaint did

not plead a factual predicate for any tolling theory. However, the court granted

Plaintiff leave to file a motion to amend his complaint to allege grounds for

tolling the statute of limitations. Plaintiff then filed a motion to amend, which the

court overruled but, the court granted Plaintiff permission to file an amended

complaint. Plaintiff then filed a motion for reconsideration and another motion to

amend, both of which the court overruled. The court found that Plaintiff’s

proposed amendment did not state an adequate factual basis for tolling the statute

of limitations. Therefore, the district court dismissed the action on May 23, 2002.

Plaintiff appeals to this court.

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 Plaintiff concedes that his claims are barred by a two-year statute of

limitations unless saved by K.S.A. § 60-518 which provides a plaintiff with

additional time to bring a second action if he (1) timely commenced the first

action, (2) failed in the first action other than on the merits after the expiration of

the statute, and (3) commenced the new action within six months of the failure.

In order to take advantage of K.S.A. § 60-518, Plaintiff must have served

Defendants in the state court suit before he dismissed it. Otherwise, the state

court suit never “commenced.” Plaintiff’s amended complaint alleges that he

filed the state court action on January 4, 2001, and that he dismissed it the very

next day on January 5, 2001. Plaintiff also alleges that he served the Defendants

within ninety days of filing the action; however, he does not allege that he served

the Defendants before he dismissed the case. Therefore, the state court action

was never “commenced.”

After a thorough review of the briefs and the record, and for substantially

the same reasons set forth in the district court’s January 28, 2002, and May 23,

2002, Orders, we hold that no relief is available to Mr. Kirtdoll pursuant to §

1983 because he did not state an adequate factual basis for tolling the statute of

limitations.

The decision of the trial court is AFFIRMED.

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