Parker v. Bruce

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
SEP 16 2004
TENTH CIRCUIT
PATRICK FISHER
Clerk
LaVETTE J. PARKER,
Plaintiff-Appellant, No. 04-3207
v. District of Kansas
L. E. BRUCE, Warden, in his official (D.C. No. 04-CV-3079-GTV)
and individual capacity; DON
BALLARD, Sergeant, in his official
and individual capacity; (FNU)
LANGFORD, Lieutenant, in his
official and individual capacity; DON
MOORE, Unit Team Counselor, in his
official and individual capacity;
JOHN/JANE DOES, Segregation
Review Board Members serving from
on or about 09/01/01 to 11/01/01, in
their official and individual capacities,
Defendants - Appellees.
ORDER AND JUDGMENT *
Before EBEL , MURPHY , and McCONNELL , Circuit Judges.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
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). This case is
therefore submitted without oral argument.
Plaintiff LaVette J. Parker, an inmate proceeding pro se , appeals the district
court’s dismissal of his 42 U.S.C. § 1983 claim as time-barred. Mr. Parker
alleges various Kansas Department of Corrections officials violated his Eighth
Amendment rights by depriving him “of a basic human need[,] the right to
exercise and the right to fresh air.” Appellant’s Br. at 3. Exercising jurisdiction
pursuant to 28 U.S.C. § 1291, we AFFIRM.
I. Background
A. Facts
On December 20, 2001, while imprisoned at Hutchinson Correctional
Facility (“HCF”), Mr. Parker filed a grievance against multiple HCF staff
members, including “Seg[regation] Review Board Members (09-01 to 11-01),”
claiming they violated his Eighth Amendment rights by denying him yard
privileges. The officer reviewing Mr. Parker’s grievance determined his
privileges were restricted only after he was “heard threatening an inmate
indirectly while at the yard” and “reportedly telling other inmates to get another
inmate, threatening inmates and attempting to intimidate inmates with threats of
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violence if they did not comply with [his] directives.” R. Doc. No. 1 at 20. The
prison warden agreed with these findings. Mr. Parker appealed to the office of
the Kansas Secretary of Corrections. The secretary determined Parker’s loss of
yard privileges was “appropriate” and noted Parker “offer[ed] no evidence or
argument that suggests the response rendered by staff at [HCF] is wrong.” Id. at
9.
In addition, on December 17, 2001, Mr. Parker filed a separate grievance
against Sergeant Don Ballard for allegedly “lying and altering and
misrepresenting a I&I investigation, and using intimidating tactics.” Id. at 14.
Specifically, Mr. Parker accused Sergeant Ballard of tampering with Parker’s mail
to his fiancee—a problem that “started way back in the month of May [2001]” but
“was definitely at its peak during the months of July and August [2001].” Id. at
16. Mr. Parker also claimed that, during a confrontation that occurred sometime
between August and December of 2001, Sergeant Ballard said he had “a license”
to disregard Parker’s rights because Parker was in prison and he could “stick
[Parker] . . . in the hole right now.” Id. at 17-18.
The reviewing officer determined Mr. Parker’s allegations were
“unfounded.” Id. at 11. She noted the “information on [Mr. Parker’s]
Segregation Report was compiled from several different reports” and Sergeant
Ballard “only had a small part in the information that was considered in” denying
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Parker yard privileges. Id. The report concluded Mr. Parker’s “segregation
report [was] not invalid, fictitious, or unfounded, but based on [Parker’s] . . .
history, narratives, and other official documents, a very good reflection of [his]
inappropriate behavior.” Id. As with Parker’s December 20 grievance, the prison
warden and secretary of corrections agreed with the report’s findings and found
no further action was warranted. Id. at 10, 13. The secretary again noted Mr.
Parker “offer[ed] no evidence or argument that suggests the response rendered by
staff at [HCF] is wrong.” Id. at 10.
B. Procedural Posture
Parker filed this § 1983 complaint in the United States District Court for
the District of Kansas on March 5, 2004. [R. Doc. No. 1.] The district court
allowed Parker to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. [R.
Doc. No. 5 at 1.] Before issuing summonses to the Defendants, however, the
district court dismissed Parker’s complaint sua sponte , finding it was filed outside
of the applicable statute of limitations period. Id. at 2. This appeal followed.
II. Analysis
A. Statute of Limitations
On appeal, Mr. Parker renews his Eighth Amendment claim and, for the
first time, argues we should toll the statute of limitations so his complaint will be
timely. Generally, we will not consider an issue raised for the first time on
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appeal. Ross v. United States Marshall , 168 F.3d 1190, 1195 n.5 (10th Cir.
1999), quoting Lyons v. Jefferson Bank & Trust , 994 F.2d 716, 721 (10th Cir.
1993). We have discretion, however, based on the facts of the individual case, to
consider issues not presented to the trial court . Id. We are more likely to address
such issues if their proper resolution is certain. Id. , quoting Singleton v. Wulff ,
428 U.S. 106, 121 (1976). Here, the district court’s sua sponte actions prevented
Parker from arguing, prior to the dismissal, that the statute should be tolled.
Because the proper resolution of Parker’s tolling claim is certain, we exercise our
discretion to address it.
We review a district court’s order dismissing an action on statute of
limitations grounds de novo . Plaza Speedway, Inc. v. United States , 311 F.3d
1262, 1266 (10th Cir. 2002); Sterlin v. Biomune Sys. , 154 F.3d 1191, 1194-95
(10th Cir. 1998). “For section 1983 actions, state law determines the appropriate
statute of limitations and accompanying tolling provisions.” Fratus v. Deland , 49
F.3d 673, 675 (10th Cir. 1995). We have held that “the appropriate statute of
limitations for § 1983 actions arising in Kansas is two years, under Kan. Stat.
Ann. § 60-513(a)(4).” Johnson v. Johnson County Comm’n Bd. , 925 F.2d 1299,
1300-01 (10th Cir. 1991), citing Hamilton v. City of Overland Park , 730 F.2d 613
(10th Cir. 1984) (en banc), cert. denied , 471 U.S. 1052 (1985). Additionally, the
Kansas Legislature has provided that section 60-513(a)(4)’s two-year limitation
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period may be tolled for inmates “imprisoned for a term less than [their] natural
life” if they do not have “access to the court for purposes of bringing an action.”
Kan. Stat. Ann. § 60-515(a). These inmates may file an action “within one year
after” their release from prison. Id. But the Kansas Legislature has expressly
instructed that any inmate who has access to the court is not entitled to any tolling
of the limitation period. Id. Kansas’s “legislative choices in this regard [are] . . .
‘binding rules of law,’” Hardin v. Straub , 490 U.S. 536, 539 (1989), quoting Bd.
of Regents, Univ. of N.Y. v. Tomanio , 446 U.S. 478, 484 (1980), which we must
apply.
Though statutes of limitation and tolling issues in section 1983 cases are
matters of state law, the accrual of a section 1983 claim is a matter of federal law.
Fratus , 49 F.3d at 675, citing Baker v. Bd. of Regents , 991 F.2d 628, 632 (10th
Cir. 1993). “A civil rights action accrues when facts that would support a cause
of action are or should be apparent.” Id. (internal quotation marks and citations
omitted).
In light of these rules, we conclude the district court correctly held that Mr.
Parker filed his § 1983 claim outside the limitations period. By his handwritten
admission, Mr. Parker was aware of the facts on which he bases his Eighth
Amendment claim as early as May of 2001. His alleged mail problem peaked in
either July or August of 2001, and his alleged confrontation with Sergeant Ballard
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occurred between August and December of 2001. Parker does not specify the
exact date his yard privileges were terminated, but this apparently occurred before
his alleged run-in with Sergeant Ballard. Moreover, Mr. Parker’s December 20,
2001, grievance named only those HCF Segregation Review Board members
serving between September and November of 2001. Mr. Parker’s § 1983 claim
thus accrued no later than November of 2001. Accordingly, his March 5, 2004,
complaint fell well outside Kansas’s two-year limitations period and was untimely
unless Mr. Parker is entitled to tolling.
The plain language of Kansas’s tolling statute, however, demonstrates it is
inapplicable to Mr. Parker’s claim. Kan. Stat. Ann. § 60-515(a) prohibits tolling
for any inmate who “has access to the court for purposes of bringing” a civil
rights action. Mr. Parker does not allege, nor does he provide evidence to show,
that he was ever denied access to the courts. To the contrary, Parker states it was
Defendants’ “complete disregard for plaintiff’s condition that resulted in
[Parker’s] fear to timely file” his complaint. Appellant’s Br. at 3. But after the
district court dismissed his claim, Parker filed a Motion for Enlargement of Time
[R. Doc. No. 7], in which he requested a 30-day extension to file a Notice of
Appeal. In support of his motion, Parker stated he “has a current case load of a
60-1501, 1507 and two ongoing civil actions in the state court of Shawnee
County, KS and currently in pursuit of an addendum federal case, all as a pro se
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litigant.” R. Doc. No. 7 at 1. These admissions cast doubt on the sincerity of
Parker’s fear and demonstrate any claim that Parker has been denied access to the
courts would be groundless. Thus, we conclude Parker is not entitled to tolling
and the district court properly dismissed his § 1983 complaint as time-barred.
Because we affirm the district court’s dismissal on statute of limitations grounds,
we need not address the merits of Parker’s Eighth Amendment claim. See Smith
v. City of Enid ex. rel. Enid City Comm’n , 149 F.3d 1151, 1156 (10th Cir. 1998).
In addition, we conclude that this appeal is frivolous under 28 U.S.C. §
1915(e)(2)(B)(i) for purposes of counting “prior occasions” under § 1915(g). Mr.
Parker failed to raise a single specific allegation of error by the district court and
does not point to any evidence that would allow us to reverse. Moreover, Parker
would have discovered he was not entitled to tolling had he simply read the
statute of limitations. Thus, though we must liberally construe Parker’s pro
se pleadings, see Perkins v. Kan. Dep’t of Corrections , 165 F.3d 803, 806 (10th
Cir. 1999), we hold that Parker’s appeal is frivolous.
B. Parker’s Post-Brief Motions
After filing his appellate brief, Mr. Parker submitted additional motions to
this Court seeking various forms of relief. We briefly address each issue.
First, Mr. Parker seeks an “enlargement of time to correct any and all
mistakes made by failing to docket appeal.” Since we resolve this case on
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grounds independent of any appellate docketing mistakes, we DENY this motion
as moot.
Mr. Parker next asks us to appoint counsel. We have previously held “the
right to counsel in a civil case is not a matter of constitutional right under the
Sixth Amendment.” MacCuish v. United States , 844 F.2d 733, 735 (10th Cir.
1998) (internal quotation marks and citation omitted). We have applied this
holding to prisoners’ § 1983 cases. See Bishop v. Romer , 1999 WL 46688, at *3
(10th Cir. Feb. 3, 1999) (unpublished opinion), cert. denied , 527 U.S. 1008 and
528 U.S. 844 (1999); see also Wendell v. Asher, 162 F.3d 887, 892 (5th Cir.
1998) (“Absent exceptional circumstances, there is no automatic right to
appointment of counsel in a civil rights case.”); Abdur-Rahman v. Mich. Dep't of
Corr., 65 F.3d 489, 492 (6th Cir. 1995) (holding failure to appoint counsel in a
section 1983 case was not error because an inmate “has no constitutional right to
appointed counsel in a civil case”); Poole v. Lambert, 819 F.2d 1025, 1028 (11th
Cir. 1987) (“A civil litigant, including a prisoner pursuing a section 1983 action,
has no absolute constitutional right to the appointment of counsel.”). Since Mr.
Parker is not constitutionally entitled to an attorney’s assistance, and since no
attorney, regardless of talent, could turn back time and file Parker’s complaint
within the limitations period, we DENY his motion.
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Finally, Parker asks us to rescind the district court’s order garnishing his
account to pay his appellate filing fees and costs, claiming his mother paid the
remaining $250.00 balance in full without his knowledge. The Tenth Circuit
clerk’s office does not show a $250.00 payment toward Mr. Parker’s outstanding
balance. Accordingly, this motion is DENIED.
The judgment of the United States District Court for the District of Kansas
is AFFIRMED .
Mr. Parker’s motion to proceed in forma pauperis was granted by the
District Court. He is reminded that he is obligated to continue making partial
payments toward the balance of his assessed fees and costs, until they are paid in
full.
Entered for the Court
Michael W. McConnell
Circuit Judge
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