Birch v. Sprint/Nextel Corporation

Opinion

FILED

United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT March 23, 2018

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Elisabeth A. Shumaker

Clerk of Court

SHUN BIRCH,

Plaintiff - Appellant,

v. No. 17-3221 (D.C. No. 5:17-CV-03028-SAC-DJW)

SPRINT/NEXTEL CORPORATION; (D. Kans.) SPRINT NEXTEL COMPANY, LP; SPRINT COMMUNICATIONS COMPANY, LP; SPRINT SPECTRUM, LP,

Defendants - Appellees.

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ORDER AND JUDGMENT *

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Before BACHARACH, MURPHY, and MORITZ, Circuit Judges.

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This is an action under 42 U.S.C. § 1983, which grew out of a

criminal investigation that resulted in Mr. Shun Birch’s conviction for

*

We conclude that oral argument would not materially help us to decide this appeal. As a result, we are deciding the appeal based on Mr. Birch’s appeal brief and the record. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).

This order and judgment does not constitute binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. But the order and judgment may be cited for its persuasive value under Fed. R. App. P. 32.1(a) and 10th Cir. R. 32.1(A).

first-degree murder and conspiracy. Mr. Birch sued his cell-service

provider, Sprint/Nextel Corp., for failing to provide the government with

potentially exculpatory data in response to a subpoena. Sprint obtained

dismissal based on timeliness and failure to state a valid claim.

In reviewing the dismissal, we engage in de novo review. Childs v.

Miller, 713 F.3d 1262, 1264 (10th Cir. 2013). Exercising de novo review,

we conclude that the suit was untimely.

On timeliness, the district court reasoned that

 a two-year period of limitations exists,

 Mr. Birch admittedly learned by 2014 what Sprint had done, requiring suit by 2016 at the latest, and

 Mr. Birch waited until 2017 to sue. 1

On appeal, Mr. Birch contends that a four-year period of limitations

exists under 28 U.S.C. § 1658(a). But we have held that § 1658 does not

apply to § 1983 actions. Laurino v. Tate, 220 F.3d 1213, 1217-18 (10th

1 For failure to state a valid claim, the district court reasoned that § 1983 did not apply based on the failure to adequately allege facts reflecting concerted actions between Sprint and the State, the failure to allege a mens rea greater than negligence, and the absence of civil liability under 18 U.S.C. § 2703(e). We need not address this reasoning because we conclude that the action was untimely.

3

Cir. 2000). Mr. Birch has not provided any other reason to question the

district court’s disposition on timeliness. Thus, we affirm the dismissal. 2

Entered for the Court

Robert E. Bacharach Circuit Judge

2 We grant Mr. Birch’s request for leave to proceed in forma pauperis.