                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                   September 29, 2014
                      UNITED STATES COURT OF APPEALS
                                                              Elisabeth A. Shumaker
                                    TENTH CIRCUIT                 Clerk of Court



 DAVID W. VEREN,

          Plaintiff - Appellant,
 v.

 UNITED STATES OF AMERICA,
 DEPARTMENT OF JUSTICE;
 HARLEY G. LAPPIN, Director,
 Federal Bureau of Prisons; MARY                       No. 14-1157
 HERNDON, Administrator, U.S.              (D.C. No. 1:13-CV-00235-RM-MJW)
 Marshal Service; MONA SMITH, ISM                       (D. Colo.)
 Officer, Federal Correctional
 Institution Florence; FNU TSUDA,
 Staff Doctor, Federal Correctional
 Institution, Englewood; FNU KRAUS,
 Staff Doctor, Federal Correctional
 Institution, Englewood; MARK
 IPPOLITO, Health Services
 Administrator, F.D.C., Englewood,

          Defendants - Appellees.


                              ORDER AND JUDGMENT *


Before GORSUCH, MURPHY, and McHUGH, Circuit Judges.



      *
         After examining the briefs and appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2) and 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order and judgment is not binding precedent except under the doctrines of law of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.
      Four years after the statute of limitations expired, David Veren filed suit

seeking damages from prison officials. The district court dismissed his claims as

barred by the statute. Mr. Veren now asks us to overturn that result. He points

primarily to the fact the limitations period for his suit may be statutorily tolled for

persons “under disability.” Colo. Rev. Stat. § 13-81-103. He says he was

disabled within the meaning of the statute for a considerable time and as a result

his lawsuit should be treated as timely filed.

      Like the district court before us, we cannot agree. To invoke the applicable

statutory tolling provision successfully a petitioner must show either that he was

“mentally incompetent” or under a “legal disability” with no legal guardian. See

id. § 13-81-101(3). But this Mr. Veren has failed to do. Mr. Veren claims that he

suffered from (among other things) an affective disorder and clinical depression.

But under Colorado law such conditions generally are not sufficient to establish

mental incompetence. See id. § 27-10.5-135; Southard v. Miles, 714 P.2d 891,

898-99 (Colo. 1986) (noting that the term suggests a disorder that “grossly

impairs judgment or capacity to recognize reality or to control behavior” (quoting

Colo. Rev. Stat. § 27-10-102(7)). Neither has Mr. Veren been declared by a court

to be under a legal disability. See James v. Brookhart Lumber Co., 727 P.2d

1119, 1121 (Colo. App. 1986) (“[I]n order for a person to be deemed ‘under a

disability’ . . . [he] must petition the court for a specific finding as to the


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existence of a legal disability.”). To be sure, Mr. Veren claims that he was

legally disabled because the Social Security Administration deemed him disabled

for purposes of the Social Security Act. But to be found disabled under that Act,

a person need only show that he’s incapable of “substantial gainful activity” — a

standard different than that found in Colorado’s statutory tolling provision. See

42 U.S.C. § 423(d)(2)(A).

      Lacking a basis for statutory tolling, Mr. Veren seeks equitable tolling. But

under that doctrine the statute of limitations may be tolled only if “truly

extraordinary circumstances prevented the plaintiff from filing his or her claim

despite diligent efforts.” Brodeur v. Am. Home Assurance Co., 169 P.3d 139, 149

(Colo. 2007) (quoting Dean Witter Reynolds, Inc. v. Hartman, 911 P.2d 1094,

1096 (Colo. 1996)). We fail to see how Mr. Veren can satisfy that test. During

the period in question he filed a request for an administrative remedy and notified

one of the defendants about alleged illegal behavior. It does not appear that any

extraordinary circumstances prevented him from also timely filing the complaint

he has filed now.




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      The judgment is affirmed and the motion to proceed on appeal in forma

pauperis is denied. Mr. Veren is reminded that he must pay the filing fee in full.




                                       ENTERED FOR THE COURT


                                       Neil M. Gorsuch
                                       Circuit Judge




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