Graham v. Taylor , 640 F. App'x 766 ( 2016 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
February 10, 2016
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
RANDOLPH GRAHAM,
Plaintiff - Appellant,
v. No. 15-1286
(D.C. No. 1:15-CV-00006-LTB)
KIRK TAYLOR, FRAN LePAGE, (D. of Colo.)
LIGHTCAP (FNU), BINFORD (FNU),
ZIOLKOWSKI (FNU), KIESTER
(FNU), SOSA (FNU), GONZALEZ
(FNU), GALLARDO (FNU), and
ANNA CIODORIA,
Defendants - Appellees.
ORDER AND JUDGMENT *
Before TYMKOVICH, Chief Judge, HARTZ, and MORITZ, Circuit Judges. **
*
This order and judgment is not binding precedent except under the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.
**
After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.
Randolph Graham, a state prisoner appearing pro se, 1 appeals the district
court’s sua sponte dismissal of his civil rights case against various Colorado
correctional officers as frivolous. We have jurisdiction under 28 U.S.C. § 1291
and AFFIRM.
I. Background
Graham is a prisoner of the State of Colorado. On January 2, 2015, he filed
a 42 U.S.C. § 1983 civil action, which, liberally construed, alleges three
constitutional claims: (1) Appellees violated Graham’s right of access to the
courts by denying his request to use the prison law library; (2) Appellees violated
his right of access to the courts by refusing to provide him a grievance form so he
could report the incident; and (3) Appellees racially discriminated against him in
their distribution of grievance forms. Graham’s complaint makes apparent the
relief he requests concerns events that occurred from July 2011 to January 2012.
Because Graham filed his case in forma pauperis (IFP), and consistent with
its screening obligation under 28 U.S.C. § 1915, the district court ordered Graham
to show cause why his case should not be dismissed as untimely. Graham
responded to the order and also filed an amended complaint, setting forth the
same factual allegations. In a written order, the district court concluded
1
We construe pro se filings liberally. Standifer v. Ledezma, 635 F.3d
1276, 1277 n.1 (10th Cir. 2011).
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Graham’s claims were barred by the applicable statute of limitations and
dismissed his complaint as frivolous under § 1915(e)(2)(B)(i).
II. Analysis
“[W]e 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). We review frivolous
determinations for abuse of discretion. Fratus v. Deland, 49 F.3d 673, 674 (10th
Cir. 1995).
Federal courts in IFP cases “shall dismiss the case at any time if the court
determines that . . . the action or appeal . . . (i) is frivolous or malicious; [or] (ii)
fails to state a claim on which relief may be granted . . . .” 28 U.S.C.
§ 1915(e)(2)(B). A claim is frivolous if it is “based on an indisputably meritless
legal theory” or founded on “clearly baseless” factual allegations. Neitzke v.
Williams, 490 U.S. 319, 327 (1989). Moreover, if the allegations, taken as true,
show the requested relief is barred by the statute of limitations, dismissal for
failure to state a claim is proper. See Jones v. Bock, 549 U.S. 199, 215 (2007).
The statute of limitations defense, however, must be “patently clear from the face
of the complaint” or “rooted in adequately developed facts.” Fogle v. Pierson,
435 F.3d 1252, 1258 (10th Cir. 2006) (citation omitted).
The statute of limitations for § 1983 actions is borrowed from state statute.
Mondragón v. Thompson, 519 F.3d 1078, 1082 (10th Cir. 2008). In Colorado, the
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relevant statute prescribes a two-year statute of limitations for federal civil rights
actions. Colo. Rev. Stat. § 13-80-102(1). “A civil rights action accrues when
facts that would support a cause of action are or should be apparent.” Fratus, 49
F.3d at 675 (citation omitted).
Graham does not dispute that the conduct he alleges is unlawful occurred
outside the two-year limitations period. Instead, he asserts the nature of his
claims alters the applicable period. First, Graham argues his conspiracy claim
under 42 U.S.C. § 1985(3) is not subject to the two-year limitations. As an initial
matter, Graham has not pleaded a conspiracy claim. In his 20-page complaint, he
references § 1985 twice in passing and never mentions the word “conspiracy.”
See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556–57 (2007) (conclusory
allegations of a conspiracy will not suffice). Nonetheless, even if pleaded,
§ 1985(3) conspiracy claims are subject to the same two-year statute of
limitations. See Lyons v. Kyner, 367 F. App’x 878, 881 (10th Cir. 2010)
(collecting cases) (“For conspiracy claims under § 1985(3), courts have also
applied the forum state’s personal-injury statute of limitations.”). And, as
Graham alleges, the last act of the purported conspiracy occurred in January 2012,
which is outside the limitations period. Therefore, whether Graham actually
pleaded a § 1985(3) claim does nothing to alter the fact that his claims are
untimely.
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Second, Graham relies on the continuing violation doctrine, which permits
courts to consider continuing wrongs as a whole, “so long as an injurious act falls
within the statute of limitations period.” Burkley v. Corr. Healthcare Mgmt. of
Okla., Inc., 141 F. App’x 714, 716 (10th Cir. 2005) (citations omitted). Even if
we accept Graham’s invocation of the doctrine, 2 Graham has failed to allege any
unlawful conduct by Appellees that occurred two years prior to his filing of this
case (i.e., post-January 2013). Accordingly, it is patently clear from Graham’s
complaint that his claims are barred by the statute of limitations and the district
court’s dismissal was warranted.
Graham lastly challenges the district court’s characterization of his claims
as frivolous. Although the district court indicated it was dismissing Graham’s
complaint under § 1915(e)(2)(B)(i)’s frivolous standard, instead, the court
appears to have dismissed the complaint because Graham failed to state a timely
claim for relief—that is, under the § 1915(e)(2)(B)(ii) standard. Importantly,
here, the district court’s characterization of the standard for dismissal is not
dispositive. 3 We therefore conclude Graham’s complaint was properly dismissed
2
This court has never formally adopted the continuing violation doctrine
for § 1983 actions. Canfield v. Douglas Cnty., 619 F. App’x 774, 778 (10th Cir.
2015) (“[T]his court has never held that the continuing-violation doctrine applies
to § 1983 cases.”).
3
A federal court shall dismiss an IFP case if the action is frivolous or the
plaintiff fails to state a claim for relief. § 1915(e)(2)(B)(i)–(ii). And either
ground for dismissal subjects the IFP plaintiff to a “strike” under § 1915(g).
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because he failed to state a claim not otherwise barred by the statute of
limitations.
Because we conclude Graham’s complaint fails to state a claim for relief,
see § 1915(e)(2)(B)(ii), we impose a strike against him under the Prisoner
Litigation Reform Act (PLRA). § 1915(g). In addition, because of the frivolity
of Graham’s appeal, we impose a second strike. Jennings v. Natrona Cnty. Det.
Ctr., 175 F.3d 775, 780–81 (10th Cir. 1999), overruled on other grounds by
Coleman v. Tollefson, 135 S. Ct. 1759 (2015). We remind Graham that if he
accrues three strikes, he may not proceed IFP in civil actions before federal courts
unless he is under imminent danger of serious physical injury. § 1915(g).
We also deny Graham’s request to proceed IFP on appeal because he has
failed to advance a reasoned, nonfrivolous argument in support of the issues
raised. Therefore, he must pay the balance of the appellate filing fee
immediately.
III. Conclusion
We AFFIRM the district court’s dismissal of Graham’s § 1983 action
because he failed to state a timely claim for relief and DISMISS his appeal. We
also DENY Graham’s request to proceed IFP and impose two strikes against him
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under the PLRA.
ENTERED FOR THE COURT
Timothy M. Tymkovich
Chief Judge
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