Appellate Case: 24-1185 Document: 19 Date Filed: 09/17/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT September 17, 2024 _________________________________ Christopher M. Wolpert Clerk of Court SCOTT WHITEFIELD,
Plaintiff - Appellant,
v. No. 24-1185 (D.C. No. 1:23-CV-02676-LTB-SBP) EXECUTIVE DIRECTOR OF THE (D. Colo.) COLORADO DEPARTMENT OF CORRECTIONS; THE STATE OF COLORADO,
Defendants - Appellees. _________________________________
ORDER AND JUDGMENT* _________________________________
Before MORITZ, BALDOCK, and MURPHY, Circuit Judges. _________________________________
Scott Whitefield, a Colorado prisoner proceeding pro se, appeals the dismissal
of his 42 U.S.C. § 1983 complaint alleging constitutional violations stemming from
the loss of a pair of prison-issued pants.1 Because the district court correctly
* After examining the brief 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. But it may be cited for its persuasive value. See Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A). 1 We liberally construe Whitefield’s pro se filings, but we do not act as his advocate. See Greer v. Moon, 83 F.4th 1283, 1292 (10th Cir. 2023). Appellate Case: 24-1185 Document: 19 Date Filed: 09/17/2024 Page: 2
dismissed Whitefield’s complaint as barred by the applicable statute of limitations,
we affirm.
Background
Whitefield’s operative complaint alleges that in May 2019, he sent one of his
three pairs of prison-issued pants to the prison’s laundry department.2 When the pants
were not returned, he submitted a form for lost or stolen property to the laundry
department, but to no avail: although funds were later withdrawn from his inmate
account for a pair of replacement pants, he never received the replacement and was
then unable to obtain a refund. The prison denied each of Whitefield’s administrative
grievances; he received the final denial in January 2020. He also unsuccessfully
sought relief in state court.
In October 2023, Whitefield filed this action in federal district court, alleging
that the loss of his pants violated his due-process, equal-protection, and Eighth
Amendment rights. A magistrate judge granted Whitefield’s motion to proceed in
forma pauperis (IFP); screened his complaint under 28 U.S.C. § 1915(e)(2)(B) for
frivolousness, failure to state a claim, and immunity; and ordered him to file an
amended complaint that complied with the pleading guidelines in Federal Rule of
Civil Procedure 8. In so doing, the magistrate judge specifically noted that
Whitefield’s claims premised on events that took place in 2019 might be barred by
the applicable two-year statute of limitations. Whitefield filed an amended complaint
2 At this stage, we accept Whitefield’s well-pleaded allegations as true. See Kay v. Bemis, 500 F.3d 1214, 1217 (10th Cir. 2007). 2 Appellate Case: 24-1185 Document: 19 Date Filed: 09/17/2024 Page: 3
that evidently did not fix his Rule 8 issues, and the magistrate judge recommended
dismissing the amended complaint on that basis. But the magistrate judge later
granted Whitefield’s motion to file a second amended complaint and withdrew the
recommendation to dismiss the first amended complaint.
After Whitefield filed his second amended complaint, the magistrate judge
issued an order directing him to show why his claims were not barred by the statute
of limitations or why the statute of limitations should be tolled. Whitefield responded
and admitted he knew of his injury in October 2109, but he asserted that his injury
was ongoing. The magistrate judge rejected Whitefield’s arguments and
recommended dismissing the complaint for failure to state a claim under
§ 1915(e)(2)(B)(ii) based on the statute of limitations. The district court adopted the
recommendation over Whitefield’s objections and denied his motion to proceed IFP
on appeal.
Whitefield appeals.
Analysis
Whitefield argues that the district court erred in dismissing his complaint as
barred by the statute of limitations. Our review is de novo. See Kay, 500 F.3d at
1217.
Ordinarily, the statute of limitations is an affirmative defense that must be
raised by a defendant. Fed. R. Civ. P. 8(c)(1). But if “the defense is ‘obvious from
the face of the complaint’” and no additional factual development is needed, a court
may sua sponte dismiss the claim as untimely. Fratus v. DeLand, 49 F.3d 673, 674–
3 Appellate Case: 24-1185 Document: 19 Date Filed: 09/17/2024 Page: 4
75 (10th Cir. 1995) (quoting Yellen v. Cooper, 828 F.2d 1471, 1476 (10th Cir.
1987)).
We determine the statute of limitations in § 1983 actions like this one by
looking “to the appropriate state statute of limitations and the coordinate tolling
rules.” Fogle v. Pierson, 435 F.3d 1252, 1258 (10th Cir. 2006) (quoting Hardin v.
Straub, 490 U.S. 536, 539 (1989)). “[T]he statute of limitations for § 1983 actions
brought in Colorado is two years from the time the cause of action accrued.” Id.; see
also Colo. Rev. Stat. § 13-80-102. And accrual occurs “when facts that would
support a cause of action are or should be apparent.” Fogle, 435 F.3d at 1258
(quoting Fratus, 49 F.3d at 675). But equitable tolling can pause a “limitations period
when ‘flexibility is required to accomplish the goals of justice.’” Morrison v. Goff,
91 P.3d 1050, 1053 (Colo. 2004) (quoting Dean Witter Reynolds, Inc. v. Hartman,
911 P.2d 1094, 1096 (Colo. 1996)). Tolling is typically available when “defendants’
wrongful conduct prevented” timely filing or in other “‘extraordinary
circumstances.’” Id. (quoting Dean Witter, 911 P.2d at 1096–97). Critically, in either
instance, a plaintiff seeking to benefit from equitable tolling must “make[] good[-
]faith efforts to pursue the claims when possible.” Dean Witter, 911 P.2d at 1097.
Here, the district court determined that Whitefield’s cause of action related to
the loss of his pants accrued no later than January 2020, when the prison denied his
final grievance. To do so, it relied on Whitefield’s admissions that he “became aware
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Appellate Case: 24-1185 Document: 19 Date Filed: 09/17/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT September 17, 2024 _________________________________ Christopher M. Wolpert Clerk of Court SCOTT WHITEFIELD,
Plaintiff - Appellant,
v. No. 24-1185 (D.C. No. 1:23-CV-02676-LTB-SBP) EXECUTIVE DIRECTOR OF THE (D. Colo.) COLORADO DEPARTMENT OF CORRECTIONS; THE STATE OF COLORADO,
Defendants - Appellees. _________________________________
ORDER AND JUDGMENT* _________________________________
Before MORITZ, BALDOCK, and MURPHY, Circuit Judges. _________________________________
Scott Whitefield, a Colorado prisoner proceeding pro se, appeals the dismissal
of his 42 U.S.C. § 1983 complaint alleging constitutional violations stemming from
the loss of a pair of prison-issued pants.1 Because the district court correctly
* After examining the brief 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. But it may be cited for its persuasive value. See Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A). 1 We liberally construe Whitefield’s pro se filings, but we do not act as his advocate. See Greer v. Moon, 83 F.4th 1283, 1292 (10th Cir. 2023). Appellate Case: 24-1185 Document: 19 Date Filed: 09/17/2024 Page: 2
dismissed Whitefield’s complaint as barred by the applicable statute of limitations,
we affirm.
Background
Whitefield’s operative complaint alleges that in May 2019, he sent one of his
three pairs of prison-issued pants to the prison’s laundry department.2 When the pants
were not returned, he submitted a form for lost or stolen property to the laundry
department, but to no avail: although funds were later withdrawn from his inmate
account for a pair of replacement pants, he never received the replacement and was
then unable to obtain a refund. The prison denied each of Whitefield’s administrative
grievances; he received the final denial in January 2020. He also unsuccessfully
sought relief in state court.
In October 2023, Whitefield filed this action in federal district court, alleging
that the loss of his pants violated his due-process, equal-protection, and Eighth
Amendment rights. A magistrate judge granted Whitefield’s motion to proceed in
forma pauperis (IFP); screened his complaint under 28 U.S.C. § 1915(e)(2)(B) for
frivolousness, failure to state a claim, and immunity; and ordered him to file an
amended complaint that complied with the pleading guidelines in Federal Rule of
Civil Procedure 8. In so doing, the magistrate judge specifically noted that
Whitefield’s claims premised on events that took place in 2019 might be barred by
the applicable two-year statute of limitations. Whitefield filed an amended complaint
2 At this stage, we accept Whitefield’s well-pleaded allegations as true. See Kay v. Bemis, 500 F.3d 1214, 1217 (10th Cir. 2007). 2 Appellate Case: 24-1185 Document: 19 Date Filed: 09/17/2024 Page: 3
that evidently did not fix his Rule 8 issues, and the magistrate judge recommended
dismissing the amended complaint on that basis. But the magistrate judge later
granted Whitefield’s motion to file a second amended complaint and withdrew the
recommendation to dismiss the first amended complaint.
After Whitefield filed his second amended complaint, the magistrate judge
issued an order directing him to show why his claims were not barred by the statute
of limitations or why the statute of limitations should be tolled. Whitefield responded
and admitted he knew of his injury in October 2109, but he asserted that his injury
was ongoing. The magistrate judge rejected Whitefield’s arguments and
recommended dismissing the complaint for failure to state a claim under
§ 1915(e)(2)(B)(ii) based on the statute of limitations. The district court adopted the
recommendation over Whitefield’s objections and denied his motion to proceed IFP
on appeal.
Whitefield appeals.
Analysis
Whitefield argues that the district court erred in dismissing his complaint as
barred by the statute of limitations. Our review is de novo. See Kay, 500 F.3d at
1217.
Ordinarily, the statute of limitations is an affirmative defense that must be
raised by a defendant. Fed. R. Civ. P. 8(c)(1). But if “the defense is ‘obvious from
the face of the complaint’” and no additional factual development is needed, a court
may sua sponte dismiss the claim as untimely. Fratus v. DeLand, 49 F.3d 673, 674–
3 Appellate Case: 24-1185 Document: 19 Date Filed: 09/17/2024 Page: 4
75 (10th Cir. 1995) (quoting Yellen v. Cooper, 828 F.2d 1471, 1476 (10th Cir.
1987)).
We determine the statute of limitations in § 1983 actions like this one by
looking “to the appropriate state statute of limitations and the coordinate tolling
rules.” Fogle v. Pierson, 435 F.3d 1252, 1258 (10th Cir. 2006) (quoting Hardin v.
Straub, 490 U.S. 536, 539 (1989)). “[T]he statute of limitations for § 1983 actions
brought in Colorado is two years from the time the cause of action accrued.” Id.; see
also Colo. Rev. Stat. § 13-80-102. And accrual occurs “when facts that would
support a cause of action are or should be apparent.” Fogle, 435 F.3d at 1258
(quoting Fratus, 49 F.3d at 675). But equitable tolling can pause a “limitations period
when ‘flexibility is required to accomplish the goals of justice.’” Morrison v. Goff,
91 P.3d 1050, 1053 (Colo. 2004) (quoting Dean Witter Reynolds, Inc. v. Hartman,
911 P.2d 1094, 1096 (Colo. 1996)). Tolling is typically available when “defendants’
wrongful conduct prevented” timely filing or in other “‘extraordinary
circumstances.’” Id. (quoting Dean Witter, 911 P.2d at 1096–97). Critically, in either
instance, a plaintiff seeking to benefit from equitable tolling must “make[] good[-
]faith efforts to pursue the claims when possible.” Dean Witter, 911 P.2d at 1097.
Here, the district court determined that Whitefield’s cause of action related to
the loss of his pants accrued no later than January 2020, when the prison denied his
final grievance. To do so, it relied on Whitefield’s admissions that he “became aware
of the injury in October of 2019” and “became aware that the injury would not be
relieved in January of 2020.” R. 65–66 (quoting id. at 56). The district court further
4 Appellate Case: 24-1185 Document: 19 Date Filed: 09/17/2024 Page: 5
concluded that equitable tolling was not available because Whitefield failed to show
that he made a good-faith effort to pursue his claims within the limitations period.
Challenging these conclusions, Whitefield first argues that his injury is
continually accruing because each time prison officials search and inventory his cell,
as periodically required by prison policy, they learn that he has only two pairs of
pants—at which point they must decide “to either take action to get [him] a pair [of]
pants or . . . do nothing and let the injury occur . . . again.” Aplt. Br. 10. But a claim
accrues at a fixed point in time: “when the plaintiff has ‘a complete and present cause
of action.’” Wallace v. Kato, 549 U.S. 384, 388 (2007) (quoting Bay Area Laundry &
Dry Cleaning Pension Tr. Fund v. Ferbar Corp. of Cal., 522 U.S. 192, 201 (1997)).
And we agree with the district court that this point occurred when Whitefield’s final
administrative grievance was denied, in January 2020. Even though Whitefield’s
injury continues to exist, it accrued no later than when the prison denied his final
administrative grievance.
Whitefield relatedly asserts that the ongoing nature of his injury justifies
equitable tolling of the two-year limitations period, but this argument lacks merit.
Whitefield points to no facts indicating extraordinary circumstances, conduct by
defendants that prevented him from filing his claims within the limitations period, or
his own good-faith efforts to file these claims within the limitations period. See Dean
Witter, 911 P.2d at 1096–97. In short, equitable tolling exists to avoid “penaliz[ing]
[a] plaintiff for circumstances outside [their] control,” and Whitefield points to no
such circumstances. Id. Thus, Whitefield is not entitled to equitable tolling, and his
5 Appellate Case: 24-1185 Document: 19 Date Filed: 09/17/2024 Page: 6
October 2023 complaint was untimely under the applicable two-year statute of
limitations.
Conclusion
Because the statute of limitations bars Whitefield’s claims, we affirm the
district court’s dismissal for failure to state a claim under § 1915(e)(2)(B)(ii). But we
grant Whitefield’s motion to proceed IFP on appeal and remind him that he is
obligated to continue making partial payments until the entire filing fee has been
paid.
Entered for the Court
Nancy L. Moritz Circuit Judge