Jenkins v. Chance ( 2019 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT January 29, 2019
_________________________________
Elisabeth A. Shumaker
Clerk of Court
WILLIAM D. JENKINS, JR.; TOBIE
JENKINS,
Plaintiffs - Appellants,
v. No. 18-1216
(D.C. No. 1:17-CV-02761-STV)
COREY CHANCE; MICHAEL (D. Colo.)
HEIDINGER; ATTILA DENES;
NICHOLAS ARNONE; DOUGLAS
COUNTY SHERIFF’S OFFICE,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before McHUGH, BALDOCK, and O’BRIEN, Circuit Judges.
_________________________________
Williams D. Jenkins, Jr. and Tobie Jenkins brought a pro se civil action under
42 U.S.C. § 1983 arising out of the death of their twenty-three-year-old son, Jayson.
They alleged one of the defendants fired a taser at Jayson, which caused Jayson to
pull the trigger of a rifle he was pointing at his head, resulting in Jayson’s death.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
Defendants moved to dismiss under Federal Rule of Civil Procedure 12(b)(6). The
district court1 dismissed the complaint because it was time-barred by the applicable
statute of limitations. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
I. BACKGROUND
A. Factual background2
In the early morning hours of February 3, 2015, Jayson discussed suicide with
a friend before traveling to a nearby park in Highlands Ranch, Colorado, where he sat
in a tree grove. While there, he fired a pistol into the ground. Defendants Corey
Chance, Michael Heidinger, Attila Denes, and Nicholas Arnone, deputies with the
Douglas County Sheriff’s Department, responded to a report of shots fired. Deputy
Chance found Jayson sitting with a rifle between his legs and talking to his mother on
the telephone. Deputy Chance approached Jayson with his gun drawn and ordered
Jayson to put the rifle down. Jayson asked Deputy Chance to move back, explaining
that he was trying to talk to his mother. Deputy Chance told Jayson he could talk to
his mother shortly and suggested Jayson could first talk to him. According to Deputy
Chance, Jayson at one point said he was not going to shoot Deputy Chance or point
the rifle toward him, so Deputy Chance switched from his gun to his Taser.
1
With the consent of the parties, this case was assigned for decision to
Magistrate Judge Scott T. Varholak, as permitted by 28 U.S.C. § 636(c)(1).
2
Because this appeal involves a Rule 12(b)(6) dismissal, we draw the facts
from the allegations in the complaint and exhibits submitted with it. See Smith v.
United States, 561 F.3d 1090, 1098 (10th Cir. 2009) (“In evaluating a Rule 12(b)(6)
motion to dismiss, courts may consider not only the complaint itself, but also
attached exhibits . . . .”).
2
At least once during this encounter, Jayson placed the rifle’s muzzle in or near
his mouth with his thumb on the trigger. Despite this, the complaint alleges, Deputy
Chance never meaningfully attempted to deescalate the situation or radio that
defendants were dealing with a potential suicide; he instead continued to pressure
Jayson. While Jayson’s thumb was on the trigger and the muzzle was near his
mouth, Deputy Chance fired his Taser, the prongs of which struck Jayson’s leg and
shoulder. The rifle and Taser went off “basically at the same time.” Doc. 5-1 at ¶ u.3
Jayson died at the scene.
The next day, forensic pathology consultant Dr. Michael Burson performed an
autopsy and issued a report. In the report, Dr. Burson noted Jayson’s alleged history
of “suicidal ideations and attempts” and a “thermal injury” on his leg, but he
concluded the manner of death was suicide and listed the cause of death as a
“self-inflicted gunshot wound of the head.” Doc. 5-16, subfolder 16-ATT-FR1 1st
Inv Rqst-Report, 16-ATT-FR1-2(B), AUTOPSY REPORT, at 4, 5, 7.4 On
3
The Jenkinses submitted numerous exhibits with their complaint in digital
form on a thumb drive, which was assigned docket number 5. The digital files are
organized in folders numbered 01 through 23 and another called “MISC,” some of
which have subfolders. Where the top-level folder contains only one document in
.pdf format, we identify the document by referring to the docket number (5) followed
by the folder number (omitting the zero for folders 1–9); e.g., “Doc. 5-1” refers to the
single .pdf file in folder 1. Folder 1 contains an identical document in both .pdf and
Microsoft Word formats; we cite to the .pdf version. Where a folder contains
subfolders or two or more documents, we add additional identifying information
derived from the documents or subfolders themselves.
4
We cite to the .pdf page numbers of this document, which presents the pages
of the report out of order.
3
February 19, 2015, the Douglas County Coroner completed a report reaching the
same conclusions about the cause and manner of death.
On October 21, 2015, the Jenkinses submitted a “Request for Further
Investigation and Information” to the Coroner and Dr. Burson. Id., 16-ATT-FR1-1
REQUEST FOR FURTHER INVESTIGATION, at 1 (Request) (some capitalization
omitted). Among other things, they asked the Coroner to reopen the investigation
and both the Coroner and Dr. Burson to amend the cause of death “if there is doubt as
to whether or not the Taser X2 had a part in the firing of the rifle.” Id. at 22 (some
capitalization omitted). They also asked for reconsideration of references to Jayson’s
suicidal history, claiming there was no evidence of such a history. The Jenkinses
supported their Request with extensive evidence, some of which they quoted at
length, including the Taser’s product manual and video-recorded interviews of all
four individual defendants. On February 3, 2016, the Jenkinses filed an Addendum
to the Request.
On some unknown date in 2016, Dr. Burson issued an amended autopsy report,
retaining his conclusion that the cause of death was a self-inflicted gunshot wound to
the head but removing the references to Jayson’s suicidal history and changing the
manner of death from suicide to “undetermined.” Doc. 5-4-ATT-AR AUTOPSY
REPORT at 2 (Amended Autopsy Report). Dr. Burson opined that “there remain
questions as to the precise timing of events which [led] up to the firing of the
weapon,” including whether use of the Taser “contributed to the firing of the
weapon.” Id. Dr. Burson deferred the final determination of the manner of death to
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the Coroner. The Jenkinses did not receive the Amended Autopsy Report until
January 10, 2017.
Meanwhile, on February 9, 2016, after considering the Jenkinses’ evidence in
detail, the Coroner concluded the manner of death remained suicide. She noted that,
although the Taser may have contacted Jayson’s leg, she could not determine the
probability that it did, and she suggested the Taser did not make complete contact
because that would have precluded reflex ability, rendering Jayson unable to pull the
trigger. See Doc. 5-6-ATT-CM Coroner’s Memo P-1 through P-3.
B. District court proceedings
The Jenkinses filed their § 1983 action on November 17, 2017, asserting
violations of the Second, Fourth, Fifth, and Eighth Amendments. Defendants filed a
Rule 12(b)(6) motion to dismiss based on several grounds, including statute of
limitations. The magistrate judge granted the motion, reasoning that the applicable
two-year statute of limitations began to run no later than October 21, 2015, when the
Jenkinses submitted the Request. The Jenkinses’ cause of action accrued at that
point, he said, because the Request made clear they “knew of the facts necessary to
sue and recover damages arising out of Jayson’s death.” R. at 84. The magistrate
judge rejected the argument that the claims did not accrue until the Jenkinses
received Dr. Burson’s Amended Autopsy Report on January 10, 2017, because the
report “merely gave potential support to [their] previously-held belief that Jayson did
not commit suicide” and did “not change the fact that [their] theory of the cause of
Jayson’s death was well known to them by at least October 21, 2015.” Id. at 85.
5
Because the Jenkinses filed their complaint more than two years later, their claims
were time-barred.
The magistrate judge also rejected the Jenkinses’ reliance on equitable tolling,
concluding they had not shown any of the defendants “wrongfully impeded them
from filing [their] lawsuit or that truly extraordinary circumstances prevented them
from filing their claims despite diligent efforts.” Id. at 89. The Amended Autopsy
Report, he said, “at most leant minimal support to Plaintiffs’ already-held belief that
Jayson did not commit suicide,” id. at 88, and he concluded there was no evidence
the Coroner, who was not a defendant in the case, was part of a cover up.
The magistrate judge did not reach the other grounds for dismissal defendants
advanced in their motion. This appeal followed.
II. DISCUSSION
A. Standard of review
“We review de novo the dismissal of an action under Rule 12(b)(6) based on
the statute of limitations.” Braxton v. Zavaras, 614 F.3d 1156, 1159 (10th Cir.
2010). Under this standard, we “accept as true all well-pleaded facts, as
distinguished from conclusory allegations, and view those facts in the light most
favorable to the nonmoving party.” Maher v. Durango Metals, Inc., 144 F.3d 1302,
1304 (10th Cir. 1998). “We review the district court’s refusal to apply equitable
tolling for an abuse of discretion.” Braxton, 614 F.3d at 1159 (internal quotation
marks omitted). Because the Jenkinses are proceeding pro se, we liberally construe
their filings. See id.
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B. Analysis
1. Statute of limitations
“The Reconstruction Civil Rights Acts do not contain a specific statute of
limitations governing § 1983 actions . . . .” Wilson v. Garcia, 471 U.S. 261, 266
(1985) (superseded by 28 U.S.C. § 1658 on unrelated grounds). “Because ‘§ 1983
claims are best characterized as personal injury actions,’” the Supreme Court has
“held that a [forum] State’s personal injury statute of limitations should be applied to
all § 1983 claims.” Owens v. Okure, 488 U.S. 235, 240–41 (1989) (quoting Wilson,
471 U.S. at 280). “[W]here state law provides multiple statutes of limitations for
personal injury actions, courts considering § 1983 claims should borrow the general
or residual statute for personal injury actions.” Id. at 249–50.
“Colorado has multiple personal injury statutes of limitations. In Colorado,
the residual statute of limitations for all actions, including personal injury actions,
provides a two-year limitations period.” Blake v. Dickason, 997 F.2d 749, 750
(10th Cir. 1993) (citations omitted); see Colo. Rev. Stat. § 13-80-102(1)(i) (providing
a two-year statute of limitations for “[a]ll other actions of every kind for which no
other period of limitation is provided”). We apply that limitations period to § 1983
claims. See Blake, 997 F.2d at 750–51 (finding § 1983 claims barred under
§ 13-80-102(1)(i); see also Fogle v. Pierson, 435 F.3d 1252, 1258 (10th Cir. 2006)
(“We have made clear that the statute of limitations for § 1983 actions brought in
Colorado is two years from the time the cause of action accrued.”).
7
Despite this long-held line of precedent, the Jenkinses raise several challenges
to the application of a two-year limitations period to their claims: (1) it violates
equal protection because the residual limitations period is longer in other states;
(2) the states should not be able to restrict when § 1983 claims can be filed because
states are the very entities § 1983 is supposed to control; (3) federal courts lack
power to dismiss due solely to an arbitrary state limitations period; (4) § 1983
litigants have no notice that a state limitations period applies; and (5) Colorado’s
three-year statute of limitations “for fraud, misrepresentation, concealment, or
deceit,” Colo. Rev. Stat. § 13-80-101(1)(c), should apply because in their complaint
the Jenkinses referred to misrepresentation, concealment, and deceit. But they raised
none of these arguments in the district court, and none involves subject-matter
jurisdiction or sovereign immunity. Nor have they advanced any argument in this
court for plain-error review. Accordingly, they have failed to preserve these
challenges for our review. See Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1131
(10th Cir. 2011) (“[T]he failure to argue for plain error and its application on appeal
. . . surely marks the end of the road for an argument for reversal not first presented
to the district court.”); Daigle v. Shell Oil Co., 972 F.2d 1527, 1539 (10th Cir. 1992)
(“As a general rule we refuse to consider arguments raised for the first time on appeal
unless sovereign immunity or jurisdiction is in question.”).
2. Accrual
Although state law governs the length of the limitations period for filing a
§ 1983 claim, federal law determines the accrual of a federal cause of action.
8
Alexander v. Oklahoma, 382 F.3d 1206, 1215 (10th Cir. 2004). The Jenkinses’
reliance on Colorado accrual authority is, therefore, inapposite.
We agree with the magistrate judge: the Jenkinses’ § 1983 claims accrued no
later than October 21, 2015, when they submitted the Request for further
investigation to Dr. Burson and the Coroner. “[U]nder the federal discovery rule,
claims accrue and the statute of limitations begins to run when the plaintiff knows or
has reason to know of the existence and cause of the injury which is the basis of his
action.” Alexander, 382 F.3d at 1215 (brackets and internal quotation marks
omitted). “In particular, a civil rights action accrues when facts that would support a
cause of action are or should be apparent.” Id. (brackets and internal quotation marks
omitted). But “a plaintiff need not have conclusive evidence of the cause of an injury
in order to trigger the statute of limitations.” Id. at 1216. We instead “focus on
whether the plaintiff knew of facts that would put a reasonable person on notice that
wrongful conduct caused the harm.” Id.
The Request indisputably shows the Jenkinses had sufficient factual
knowledge to file § 1983 claims against all five defendants no later than October 21,
2015. In the Request, they cited scholarly works explaining that electrical burns
result in skin injury at the “points of contact to the electrical source,” and that
exposure to a temperature of “65℃ for two seconds” is “sufficient to produce burns.”
Request at 6–7 (emphasis and internal quotation marks omitted). They asserted
“[t]he Taser prongs undoubtedly arched [sic] for the full five seconds preprogrammed
into the Taser-X-2 as recalled by Deputy Arnone and Deputy Heidinger on the
9
interview videos.” Id. at 6 (some capitalization omitted). They then posited the
thermal burn to Jayson’s leg could have occurred if a taser prong or the electricity
arcing from it to Jayson’s skin reached 65℃.
Turning to the Taser manual, the Jenkinses noted the Taser Deputy Chance
used was capable of two shots and suggested that if it had no effect on Jayson as
Deputy Chance alleged, he would have fired a second shot. They also provided a
Taser log reflecting Deputy Chance’s deployment of the Taser’s second shot “each
and every time within a second of the first except on the day he deployed the Taser
on [Jayson.]” Id. at 21 (some capitalization omitted). They concluded that if Deputy
Chance had deployed the Taser while Jayson “had the rifle in his mouth and the rifle
fired, then there would be no need for the second set of prongs to be deployed,” firing
the Taser while Jayson had the gun in his mouth was “at a minimum reckless,” and
“such use of the Taser X2 would be in violation of the Douglas County Sheriff’s
Office[’s]” policies. Id. (some capitalization omitted). They asserted they were
“unclear” if Deputy Chance had “been trained in the use of the Taser X-2 per [the
manufacturer’s] instructions.” Id. at 8 (some capitalization omitted).
The Jenkinses next quoted portions of the manual explaining the Taser X-2’s
electrical pulses “are designed to affect the sensory and motor functions of the
peripheral nervous system and cause involuntary muscle contractions,” id. at 8–9
(emphasis and internal quotation marks omitted), and are able “to cause involuntary
stimulation of both [the] sensory nerves and the motor nerves,” id. at 9 (emphasis and
internal quotation marks omitted). Significantly, they interpreted this functionality to
10
mean “the Taser X2 could have inadvertently caused [Jayson] to push the trigger.”
Id. (emphasis added).
The Jenkinses also discussed the manual’s explanation that “[e]lectricity must
be able to flow between the probes or the electrodes to deliver an electrical charge
and will generally follow the path of least resistance.” Id. at 9 (emphasis and internal
quotation marks omitted). They then claimed it was “undeniable that the electricity
flowed between the probes attached to [Jayson],” and “[t]he facts in this case indicate
that the path of least resistance was undoubtedly [Jayson’s] body.”
Id. (capitalization, emphasis, and internal quotation marks omitted). They further
quoted the manual’s statement that “[e]lectricity can arc through most clothing, and
even some bullet-resistant materials,” which they read as making “perfectly clear that
[Jayson’s] clothing was not an obstacle to the electricity being emitted from the
Taser” because Jayson was not wearing anything “bullet-resistant.” Id. (some
capitalization, emphasis, and internal quotation marks omitted).
The Jenkinses then quoted from interview statements by Deputies Arnone,
Heidinger, and Chance that they heard the Taser arcing. They also cited one
Deputy’s statement that he saw the prongs make contact with Jayson’s leg and “the
shoulder area of the pretty thick puffy jacket the kid had on,” id. at 12; and Deputy
Chance’s statement that he “saw one good Taser probe in his leg the other one came
up and got him in the arm but must not have made contact [because of] . . . the baggy
clothes,” id. at 20 (emphasis and internal quotation marks omitted).
11
Regarding the timing of the Taser and rifle shots, they quoted Deputies Arnone
and Heidinger as saying the two shots were “kind of simultaneous,” id. at 15
(emphasis and internal quotation marks omitted), and “basically at the same time,”
id. at 17 (emphasis and internal quotation marks omitted).
All of these observations, allegations, and assertions clearly demark the
critical tipping point: as of the date they filed their Request, October 21, 2015, the
Jenkinses “knew of facts that would put a reasonable person on notice that wrongful
conduct caused the harm.” Alexander, 382 F.3d at 1216. A complaint filed on
November 17, 2017, more than two years after their cause of action accrued, is barred
by Colo. Rev. Stat. § 13-80-102(1)(i)’s two-year statute of limitations.
The Jenkinses, however, insist that their cause of action did not accrue until
February 3, 2016, when they allegedly completed their investigation and submitted
the Addendum to their Request, or until even later, when they finally received
Dr. Burson’s Amended Autopsy Report on January 10, 2017. But nothing in the
Addendum shows they had insufficient factual knowledge on October 21, 2015—it
generally reiterates what the Jenkinses asserted in their initial Request by reference to
a different document from the Taser manufacturer. See generally Doc. 5-17,
17-ATT-SR2 2nd Inv Rqst-Report. And in relevant part, the Amended Autopsy
Report simply changed the manner of death from “suicide” to “undetermined,”
leaving the final determination to the Coroner. Amended Autopsy Report at 2. That
“fact” was not necessary for the Jenkinses to file their complaint. See Alexander,
382 F.3d at 1216 (“[A] plaintiff need not have conclusive evidence of the cause of an
12
injury in order to trigger the statute of limitations.”). In short, the Jenkinses’
arguments do not persuade us that their § 1983 cause of action accrued any later than
October 21, 2015.
3. Equitable tolling
State law governs equitable tolling in a § 1983 action. Id. at 1217. Under
Colorado law, “equitable tolling of a statute of limitations is limited to situations in
which either the defendant has wrongfully impeded the plaintiff’s ability to bring the
claim or truly extraordinary circumstances prevented the plaintiff from filing his or
her claim despite diligent efforts.” Brodeur v. Am. Home Assur. Co., 169 P.3d 139,
149 (Colo. 2007) (en banc) (internal quotation marks omitted). Neither condition
exists here. The Jenkinses argue that the Coroner maliciously withheld Dr. Burson’s
Amended Autopsy Report as part of a cover-up, but as we just concluded, nothing in
the Amended Autopsy Report was necessary for them to file suit. Any alleged
withholding, therefore, did not impede their ability to do so. The Jenkinses complain
“they are being prejudiced for exercising due diligence and for not engaging
[judicial] resources until [they] knew the Defendants’ actions or lack of actions
contributed [to] or caused [Jayson’s] death.” Aplt. Reply Br. at 5. We are
sympathetic to their effort to avoid filing a lawsuit until they were “fully convinced”
they had cause of action. Id. at 4 (emphasis omitted). But again, “conclusive
evidence of the cause of an injury” is not necessary to trigger a limitations period.
Alexander, 382 F.3d at 1216. We therefore see no abuse of discretion in the
magistrate judge’s refusal to apply equitable tolling.
13
III. CONCLUSION
The judgment of the district court is affirmed.
Entered for the Court
Terrence L. O’Brien
Circuit Judge
14