FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT September 25, 2017
Elisabeth A. Shumaker
Clerk of Court
REJEANIA LOUISE MILLER,
Plaintiff - Appellant,
v. No. 16-6289
(D.C. No. 5:14-CV-01124-R)
TRACY FORD; JACQUELINE (W.D. Okla.)
GARRETT-KING; RICKEY W.
MOHAM, Warden presiding in lieu of
previous Warden; MILLICENT
NEWTON-EMBRY,
Defendants - Appellees.
ORDER AND JUDGMENT*
Before PHILLIPS, McKAY, and McHUGH, Circuit Judges.
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This is a pro se §1983 civil rights appeal. Plaintiff Rejeania Miller was an inmate
at the Mabel Bassett Correctional Center (MBCC) in McCloud, Oklahoma. (Plaintiff has
since been transferred.) Plaintiff filed a complaint in October 2014 against several
MBCC employees. Plaintiff presented several claims, stemming from incidents—some
quite serious, some less so—that allegedly occurred between 2010 and 2012.
*
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)(2); 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 This order and judgment is not binding precedent,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.
The case was referred to a magistrate judge, who screened Plaintiff’s complaint
sua sponte pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b). The magistrate judge
issued a Report and Recommendation (R&R), recommending that the complaint be
dismissed for failure to state a claim because Plaintiff’s claims were barred by the statute
of limitations. Plaintiff filed an objection and an amended complaint. After reviewing
the amended complaint, the magistrate judge made the same recommendation for the
same reason: dismissal, because the claims were time-barred. The district court adopted
the recommendation and dismissed the case. Plaintiff filed this timely appeal.
“Like dismissals under Rule 12(b)(6), we review de novo a district court’s sua
sponte dismissal pursuant to 28 U.S.C. § 1915(e)(2) in an in forma pauperis proceeding.”
Vasquez Arroyo v. Starks, 589 F.3d 1091, 1094 (10th Cir. 2009). Under § 1915(e)(2), the
district court “shall dismiss the case at any time if the court determines that . . . the action
. . . fails to state a claim on which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).
However, the “district court may not sua sponte dismiss a prisoner’s § 1983 action on the
basis of the statute of limitations unless it is clear from the face of the complaint that
there are no meritorious tolling issues, or the court has provided the plaintiff notice and
an opportunity to be heard on the issue.” Vasquez Arroyo, 589 F.3d at 1097 (emphasis
added). “When a district court believes it is likely that a pro se prisoner’s § 1983
complaint is dismissible on the basis of the state’s statute of limitations, the court may
[give] the plaintiff an opportunity to explain why the statute of limitations should be
tolled.” Id.
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Here, Plaintiff’s complaint was clearly not filed within the two-year statute of
limitations. See McCarty v. Gilchrist, 646 F.3d 1281, 1289 (10th Cir. 2011) (“The statute
of limitations period for a § 1983 claim is dictated by the personal injury statute of
limitations in the state in which the claim arose . . . and in Oklahoma, that period is two
years. 12 Okla. Stat. tit. 12, § 95(A)(3).” (internal citation omitted)). However, the
complaint does not on its face foreclose the possibility of equitable tolling. Thus, the
court was required to provide Plaintiff with notice and an opportunity to explain why the
statute of limitations should be tolled before dismissing the complaint for failure to state a
claim under § 1915(e)(2). The court fulfilled this requirement; Plaintiff was provided
with such an opportunity. In the first R&R, the magistrate judge advised Plaintiff of her
right to file an objection, and specifically noted that “Plaintiff may present any arguments
she has for tolling of the statute of limitations and, at that time, provide any documents or
other evidence that would support those arguments.” Miller v. Ford, No. CIV-14-1124-R
(W.D. Okla. Nov. 26, 2014). As noted above, Plaintiff filed an objection and, shortly
thereafter, an amended complaint. Neither, however, was responsive to this instruction.
Out of an abundance of caution, and construing the amended complaint liberally,
the magistrate judge nonetheless addressed an argument for equitable tolling for the time
Plaintiff spent exhausting her administrative remedies. There were two problems with
this potential argument: First, Oklahoma law, which governs, permits tolling only in
limited situations, none of which are applicable. Second, even if Oklahoma law did
permit tolling under these circumstances, Plaintiff’s claims would still be untimely. On
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appeal, Plaintiff does not present any arguments against these dual determinations. Nor
do we, reviewing them de novo, find any fault.
Plaintiff also sought to enjoin future violations of the constitutional and natural
rights of female inmates at MBCC. The magistrate judge recommended dismissing this
claim because, among other reasons, Plaintiff failed to allege an ongoing problem. Since
the filing of the complaint, Plaintiff has been transferred from MBCC. “When a prisoner
files suit against prison officials who work in the institution in which he is incarcerated,
seeking declaratory and injunctive relief on the basis of alleged wrongful conduct by
those officials, and then that prisoner is subsequently transferred to another prison or
released from the prison system, courts are presented with a question of possible
mootness.” Jordan v. Sosa, 654 F.3d 1012, 1027 (10th Cir. 2011). “Mootness is a
threshold issue because the existence of a live case or controversy is a constitutional
prerequisite to federal court jurisdiction. Moreover, this requirement exists at all stages
of federal judicial proceedings, and it is therefore not enough that the dispute was alive
when the suit was filed.” Ind v. Colo. Dep’t of Corr., 801 F.3d 1209, 1213 (10th Cir.
2015) (internal quotation marks, citation, and brackets omitted). “Where the prisoner’s
claims for declaratory or injunctive relief relate solely to the conditions of confinement at
the penal institution at which the prisoner is no longer incarcerated, courts have
concluded that they are unable to provide the prisoner with effective relief.” Jordan, 654
F.3d at 1027. That is the case here. We, therefore, dismiss this claim as moot.
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Accordingly, we AFFIRM the district court’s order. We GRANT Plaintiff’s
motion to proceed in forma pauperis.
Entered for the Court
Monroe G. McKay
Circuit Judge
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