Herrera-Zamora v. Crosby

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS May 8, 2019
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
ELIAS HERRERA-ZAMORA,
Plaintiff - Appellant,
v. No. 19-1032
(D.C. No. 1:18-CV-01913-LTB)
DAVID CROSBY; CITY AND (D. Colo.)
COUNTY OF DENVER; SHERIFF
DEPARTMENT JAIL FACILITIES;
NORMANDO ROBERTO PACHECO;
BARBARA SUZANNE SKALLA,
Defendants - Appellees.
ORDER AND JUDGMENT *
Before CARSON, BALDOCK, and MURPHY, Circuit Judges.
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This order and judgment is not binding precedent except under the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.
Elias Herrera-Zamora, a federal prisoner proceeding pro se, appeals the
dismissal of the civil rights complaint he brought pursuant to 42 U.S.C. § 1983and Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403
U.S. 388 (1971). In the complaint, filed on July 27, 2018, Herrera-Zamora
alleged he was arrested by DEA officers without a valid arrest warrant and was
then unlawfully incarcerated by the Denver County Sheriff’s Department.
The district court dismissed Herrera-Zamora’s complaint, concluding it was
barred by the two-year Colorado statute of limitations applicable to tort actions.
See Colo. Rev. Stat. § 13-80-102. The district court also concluded Herrera-
Zamora failed to show entitlement to equitable tolling of the limitations period.
Accordingly, the court dismissed the action as untimely under 28 U.S.C.
§ 1915(e)(2)(B)(i). We review de novo the dismissal of an action under Rule
12(b)(6) based on the statute of limitations. 1 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).
In his appellate brief, Herrera-Zamora asserts the district court erred by
applying Colorado law instead of federal law to determine the statute of
1
The district court also denied the motion for reconsideration that Herrera-
Zamora filed on December 3, 2018. Herrera-Zamora does not reference that order
in his appellate brief and, thus, we do not review its denial.
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limitations. It is well-settled, however, that “state law determines the appropriate
statute of limitations and accompanying tolling provisions” for § 1983 and Bivens
claims. Fratus v. DeLand, 49 F.3d 673, 675 (10th Cir. 1995) (§ 1983); Indus.
Constr. Corp. v. U.S. Bureau of Reclamation, 15 F.3d 963, 968 (10th Cir. 1994)
(Bivens). Federal law only controls the issue of when the federal cause of action
accrued. Fratus, 49 F.3d at 675. Here, there is no dispute that the cause of action
accrued on June 16, 2011, the day Herrera-Zamora was arrested by federal
officers and incarcerated by the Denver County Sheriff’s Department. There is
also no dispute that Herrera-Zamora did not file his complaint until more than
seven years later, on July 27, 2018. Accordingly, absent some basis for equitable
tolling, the complaint was untimely under Colo. Rev. Stat. § 13-80-102.
Herrera-Zamora’s appellate brief does not contain any reasoned explanation
of why he is entitled to equitable tolling. Instead, he makes vague allegations that
a miscarriage of justice will occur if his claims are not addressed on the merits.
These arguments are insufficient to show entitlement to equitable tolling.
Herrera-Zamora also implies that Defendants were obligated to come forward
within the two-year limitations period and admit that they engaged in
unconstitutional conduct. It is unclear whether this is an argument that Herrera-
Zamora is entitled to equitable tolling because Defendants fraudulently concealed
their conduct, but we will treat it as such. See Hall v. Bellmon, 935 F.2d 1106,
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1110 (10th Cir. 1991) (“A pro se litigant’s pleadings are to be construed liberally
and held to a less stringent standard than formal pleadings drafted by lawyers.”).
Although fraudulent concealment is a basis for equitable tolling, the plaintiff
must show “(1) the concealment of a material existing fact that in equity and good
conscience should be disclosed; (2) knowledge on the part of the party against
whom the claim is asserted that such a fact is being concealed; (3) ignorance of
that fact on the part of the one from whom the fact is concealed; (4) the intention
that the concealment be acted upon; and (5) action on the concealment resulting in
damages.” First Interstate Bank of Fort Collins, N.A. v. Piper Aircraft Corp., 744
P.2d 1197, 1200 (Colo. 1987) (en banc). Herrera-Zamora cannot meet this burden
because, by his own admission, he was fully aware of the facts giving rise to his
claim on the date he was arrested and detained.
Having reviewed the record, Herrera-Zamora’s appellate brief, and the
applicable law, we conclude the dismissal of Herrera-Zamora’s complaint was
proper. Accordingly, finding no reversible error, we affirm the district court’s
dismissal of Herrera-Zamora’s complaint for substantially the reasons stated in
the district court’s order dated October 19, 2018. In light of the district court’s
well-reasoned order and the absence of any coherent argument in Herrera-
Zamora’s appellate brief, this court concludes Herrera-Zamora’s appeal is
frivolous. Accordingly, his motion to proceed in forma pauperis is denied and
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his appeal is dismissed under 28 U.S.C. § 1915(e)(2)(B). Herrera-Zamora is
reminded of his responsibility to immediately remit any unpaid balance of the
appellate filing fee.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
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