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Braxton v. Zavaras

August 2, 2010

JAMES BRAXTON; TROY GRAVES; RONALD JOHNSON; PAUL PALECECK, PLAINTIFFS-APPELLANTS, AND MICHAEL DAVID JOHNSON, PLAINTIFF,
v.
ARISTEDES ZAVARAS, THE EXECUTIVE DIRECTOR OF THE C.D.O.C.; KEVIN MILYARD; TERRY BARTRUFF; LLOYD WAIDE; JEFF REVORD; RAYMOND HIGGINS; GARY LITTLE; ROBERT KEISEL; SHAWN REWOLDT; ASSOCIATE WARDEN CAROL SOARES; MAJOR MARY OX-BERGMAN, ALL IN THEIR OFFICIAL AND INDIVIDUAL CAPACITIES, DEFENDANTS-APPELLEES.



APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO (D.C. No. 09-CV-01147-LTB-KMT, consolidated with 09-CV-01218-LTB-KMT; 09-CV-01313-LTB-KMT; 09-CV-01352-LTB-KMT; and 1:09-CV-01153-LTB-KMT)

The opinion of the court was delivered by: Briscoe, Chief Judge.

PUBLISH

Before BRISCOE, Chief Judge, TACHA, and O'BRIEN, Circuit Judges.

Plaintiffs-Appellants James Braxton, Troy Graves, Ronald Johnson, and Paul Palececk (collectively "plaintiffs"), Colorado prisoners proceeding pro se, brought this civil rights action under 42 U.S.C. § 1983, alleging that Defendants-Appellees violated their civil rights during a public strip search at Sterling Correctional Facility. Plaintiffs appeal the district court's dismissal of their consolidated action as untimely filed.*fn1 Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we conclude that under the fact pattern presented, the statute of limitations should not be tolled, and affirm.*fn2

I.

On August 1, 2006, officers at the Sterling Correctional Facility conducted a public strip search during which plaintiffs were required to expose themselves to other inmates and prison staff. Plaintiffs filed internal grievances, following the prison's three-step procedure, and they received final responses to their Step 3 grievances on May 24 (Braxton), June 21 (Graves and Ronald Johnson), and July 5, 2007 (Palececk).

Individual lawsuits were filed on May 19 (Braxton), May 27 (Graves), June 4 (Ronald Johnson), and June 10, 2009 (Palececk), naming as defendants various officials of the Colorado Department of Corrections (CDOC) and employees of Sterling Correctional Facility. The district court then consolidated the cases.

Defendants filed motions to dismiss under Federal Rule of Civil Procedure 12(b)(6), arguing in part that plaintiffs' claims were barred by Colorado's two-year statute of limitations. Plaintiffs responded that in Colorado, the statute of limitations is tolled pending the exhaustion of administrative remedies.*fn3

Specifically, they argued that the statute of limitations was tolled until they received responses to their Step 3 grievances. The magistrate judge recommended that the action be dismissed, reasoning that under Colorado law the statute of limitations is not automatically tolled while plaintiffs pursue the exhaustion of administrative remedies, and plaintiffs had not demonstrated that they were entitled to equitable tolling. The district court agreed and granted defendants' motions to dismiss.

II.

A.

We review de novo the dismissal of an action under Rule 12(b)(6) based on the statute of limitations. Brady v. UBS Fin. Servs., Inc., 538 F.3d 1319, 1323 (10th Cir. 2008). "We review the district court's refusal to apply equitable tolling for an abuse of discretion." Garrett v. Fleming, 362 F.3d 692, 695 (10th Cir. 2004). Because plaintiffs are proceeding pro se, we liberally construe their pleadings. Gallagher v. Shelton, 587 F.3d 1063, 1067 (10th Cir. 2009).

In a § 1983 action, state law governs issues regarding the statute of limitations and tolling, although federal law governs the determination of when a § 1983 action accrues. Fratus v. DeLand, 49 F.3d 673, 675 (10th Cir. 1995). Under Colorado law, plaintiffs bear the burden of demonstrating that the statute of limitations should be tolled. See Lake Canal Reservoir Co. v. Beethe, 227 P.3d 882, 886 (Colo. 2010).

It is undisputed that this action accrued on August 1, 2006. Because "the statute of limitations for § 1983 actions brought in Colorado is two years from the time the cause of action accrued," Fogle v. Pierson, 435 F.3d 1252, 1258 (10th Cir. 2006), the limitations period expired on August 1, 2008. Thus, this action, which was brought by the individual plaintiffs on various ...


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