DiCesare v. Cherokee Nation

• Court: Court of Appeals for the Tenth Circuit
• Decided: March 13, 2025
• Docket: 24-5085
• Status: Unpublished

Opinion

Appellate Case: 24-5085 Document: 6 Date Filed: 03/13/2025 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT March 13, 2025 ___________________________________________ Christopher M. Wolpert Clerk of Court JOSEPH DiCESARE,

Plaintiff - Appellant,

v. No. 24-5085 (D.C. No. 4:24-CV-00295-CVE-MTS) CHEROKEE NATION; DAVID (N.D. Okla.) BECK; DAVID POINDEXTER; JAKE CALLIHAN,

Defendants - Appellees. ____________________________________________

ORDER AND JUDGMENT * _____________________________________________

Before HARTZ, KELLY, and BACHARACH, Circuit Judges. _____________________________________________

This appeal stems from a dispute that took place in 1986 and 1987.

The dispute allegedly began when two members of the Cherokee Nation

(Jerry Staller and Bryan Budder) assaulted Joseph DiCesare. He responded,

and the Cherokee Nation then allegedly harassed Mr. DiCesare and his

* This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Appellate Case: 24-5085 Document: 6 Date Filed: 03/13/2025 Page: 2

family. In 2024, Mr. DiCesare sued the Cherokee Nation and Delaware

County. 1

We held in Nero v. Cherokee Nation of Oklahoma that the Cherokee

Nation enjoys sovereign immunity. 892 F.2d 1457, 1461 (10th Cir. 1989).

So the district court dismissed the claims against the Cherokee Nation on

jurisdictional grounds. Mr. DiCesare questions that ruling, but doesn’t say

how the district court misapplied our precedent recognizing the Cherokee

Nation’s sovereign immunity.

This ruling left the claims against Delaware County. For these

claims, Mr. DiCesare invoked numerous civil and criminal statutes. But he

didn’t say how they applied. So the district court tried to discern the basis

for the claims. Many of the claims involved allegations of discrimination,

and Mr. DiCesare referred to a denial of equal protection. So the district

court interpreted the complaint to arise under 42 U.S.C. § 1983 and

concluded that the claims were barred by a two-year period of limitations.

On appeal, Mr. DiCesare insists that he didn’t sue under § 1983,

contending that he had pleaded claims under 42 U.S.C. § 1985(2),

§ 1985(3), and § 1986 by listing them in the complaint under a heading

titled Jurisdiction. But these statutory claims carry a limitations period of

1 In the complaint, Mr. DiCesare named Delaware County as a defendant “c/o” three commissioners, David Beck, David Poindexter, and Jake Callihan.

2 Appellate Case: 24-5085 Document: 6 Date Filed: 03/13/2025 Page: 3

two years or less. See Alexander v. Oklahoma, 382 F.3d 1206, 1212

(10th Cir. 2004) (stating that Oklahoma’s two-year statute of limitations

applies to § 1985 actions); 42 U.S.C. § 1986 (stating that actions under this

section must be “commenced within one year after the cause of action has

accrued”). So even if the district court should have considered § 1985(2),

§ 1985(3), or § 1986, Mr. DiCesare’s claims would still be time-barred

because

 the incidents underlying the claims occurred in 1986 and 1987 and

 he did not file the complaint until 2024.

In our view, the district court didn’t err in dismissing the claims

against the Cherokee Nation or Delaware County. So we affirm the

dismissal.

Entered for the Court

Robert E. Bacharach Circuit Judge