                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                       May 22, 2007
                                 TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                        Clerk of Court


 CO RTEZ N ATH ANIEL M EA DOW S,

               Plaintiff-Appellant,                      No. 06-6211
          v.                                            (W .D. of Okla.)
 JOHN W HETSEL and THE BOARD                      (D.C. No. CIV-06-206-W )
 OF CO UNTY CO M M ISSIONERS,

               Defendants-Appellees.



                            OR D ER AND JUDGM ENT *


Before HA RTZ, EBEL, and T YM KOVICH, Circuit Judges. **




      Cortez M eadows, appearing pro se, appeals the district court’s dismissal of

his 42 U.S.C. § 1983 action against Oklahoma state officials. M eadows also

seeks to proceed in forma pauperis (IFP) in this appeal, which the district court

denied. Concluding that the applicable statute of limitations has run on certain of



      *
        This order and judgment is not binding precedent except under the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.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
M eadows’s claims but may not have on others, we AFFIRM in part and

REM AND.

                                  I. Background

      On M ay 29, 2002, M eadows was arrested for driving while under the

influence of alcohol and driving while his license was revoked. He was held in

Oklahoma County jail for the next ten days, and then released on June 7.

M eadows admits his blood alcohol level was found to be above the legal limit

shortly after the arrest, but he maintains that he w as merely a passenger in the car,

and not the driver. 1 The criminal case languished for several years; finally, in

2005 an Oklahoma state court determined that police lacked probable cause to

arrest M eadows and dismissed the case against him based on insufficient

evidence.

      M eadows filed suit in federal court in February 2006, seeking damages for

alleged police misconduct stemming from his M ay 2002 arrest. The county filed

a motion to dismiss on the grounds that M eadows’s claims were time-barred by

the applicable statute of limitations, which it determined to be two years based on

the closest analogous state limitation statute. Finding M eadows’s claims accrued

at the time the police conduct actually occurred (i.e., M ay 29–June 7, 2002), the

      1
        At the time of the arrest, police were responding to a call in reference to
a drunk driver at a M cD onald’s Drive-Thru. The first officer on the scene saw a
vehicle m atching the description in the call and found M eadows inside. M eadow s
maintains he was only a passenger, however, and denies driving the car w hile
under the influence.

                                         -2-
district court agreed that M eadows’s action was untimely and granted defendants’

motion to dismiss.

      M eadows subsequently filed a motion for reconsideration, arguing his claim

did not accrue until 2005 when the state court made its finding on probable cause

and, thus, the district court erred in starting the statute of limitations in 2002.

Citing Tenth Circuit case law that police misconduct claims are “presumed to

have accrued when the actions actually occur,” Johnson v. Johnson County

Comm’n Bd., 925 F.2d 1299, 1301 (10th Cir. 1991), the district court denied the

motion for reconsideration. M eadows now appeals to this court.

                                    II. Discussion

      Because § 1983 does not specify a statute of limitations, the United States

Supreme Court requires us to apply the law of the state where the action arose.

Wilson v. Garcia, 471 U.S. 261 (1985). That is, the state’s limitations period

most applicable to the conduct at issue (e.g., police misconduct/tort claim) is

adopted to govern the § 1983 claim. Abbitt v. Franklin, 731 F.2d 661, 663 (10th

Cir. 1984) (en banc). See also Oliveros v. M itchell, 449 F.3d 1091, 1093–94

(10th Cir. 2006).

      In this case, the district court correctly applied Oklahoma law to determine

the appropriate statute of limitations because the action arose in Oklahoma. The

court was likewise faithful to our precedents requiring a § 1983 claim to be

treated as a personal injury action for statute of limitations purposes. Garcia v.

                                           -3-
Wilson, 731 F.2d 640, 650–51 (10th Cir. 1984). Thus, the district court correctly

applied the limitations period from Okla. Stat. tit. 12, § 95(A)(3), which provides

(1) a two-year statute of limitations for personal injury actions, and (2) that such

actions must be brought within two years “after the cause of action shall have

accrued, and not afterwards.”

      M eadows does not dispute that Okla. Stat. tit. 12, § 95(A)(3) furnishes the

applicable statute of limitations for his case. Instead, he takes issue with the

district court’s determination that his cause of action “accrued” in 2002 when the

alleged police misconduct took place. “Since the injury in a § 1983 case is the

violation of a constitutional right, such claims accrue when the plaintiff knows or

should know that his or her constitutional rights have been violated.” Beck v.

City of Muskogee Police Dep’t, 195 F.3d 553, 557 (10th Cir. 1999) (quoting Smith

v. City of Enid, 149 F.3d 1151, 1154 (10th Cir. 1998)).

      Reading M eadows’s pro se complaint liberally, see Haines v. Kerner, 404

U.S. 519, 520 (1972), we find he raises the following claims: (1) false arrest and

false imprisonment in violation of the Fourth and Fourteenth Amendments; (2)

suspension of his driving license in violation of the due process clause of the

Fourteenth Amendment; 2 (3) failure to provide a probable cause hearing after his



      2
        This claim is not properly alleged against the current defendants, Sheriff
John W hetsel and the Board of County Commissioners, who have no control over
Oklahoma drivers licenses which are under the exclusive jurisdiction of the
Oklahoma Department of Public Safety.

                                          -4-
arrest also in violation of due process; and (4) malicious prosecution in violation

of the Fourth and Fourteenth Amendments.

      To the extent M eadows alleges constitutional violations based on his arrest

and imprisonment on M ay 29 to June 7, 2002, these claims are barred by the two-

year statute of limitations. W e have held previously that “[c]laims arising out of

police actions toward a criminal suspect, such as arrest, interrogation, or search

and seizure, are presumed to have accrued when the actions actually occur.”

Price v. Philpot, 420 F.3d 1158, 1162 (10th Cir. 2005) (quoting Johnson County

Comm’n Bd., 925 F.2d at 1301. Recently, the Supreme Court clarified that the

statute of limitations for false imprisonment claims begins to accrue w hen “a false

imprisonment ends,” namely “once the victim becomes held pursuant to [legal]

process— when, for example, he is bound over by a magistrate or arraigned on

charges.” Wallace v. Kato, 127 S. Ct. 1091, 1096 (2007). M eadows was

arraigned on June 7, 2002 and therefore his false imprisonment claim is clearly

time-barred.

      Next, M eadows contends police did not have probable cause to arrest him

on M ay 29, 2002 and subsequently violated his rights to due process by holding

him in custody for ten days without filing formal charges. In addition, he claims

he was entitled to, but never received, a prompt judicial determination on

probable cause under the Supreme Court’s ruling in Gerstein v. Pugh, 420 U.S.




                                         -5-
103, 114 (1975). 3 Under the applicable precedents, these claims are barred by the

two-year statute of limitations since they stem from police action that occurred

roughly four years before M eadows filed his complaint. See, e.g., Wallace, 127

S.Ct. at 1096 (claim accrues w hen victim arraigned); Price, 420 F.3d at 1162

(claims relating to arrest and incarceration are presumed to accrue at time actions

occur).

      But to the extent we construe M eadows’s complaint as alleging a claim for

malicious prosecution, that claim may not be time-barred. In Heck v. Humphrey,

512 U.S. 477 (1994), the Supreme Court held that where a § 1983 plaintiff has

been convicted and is challenging the prosecution leading to that conviction, a

malicious prosecution claim does not mature until the conviction has been

invalidated. Id. at 486–87. W e have extended the Heck rule to situations like this

one in which a malicious prosecution claim relates to charges that have been

dismissed, holding that the claim does not ripen until the charges are dismissed.

Beck, 195 F.3d at 560. It is unclear exactly when the charges were dismissed, but

      3
          Gerstein found the Fourth Amendment requires a judicial finding on
probable cause to justify an extended period of incarceration before trial. Though
there is some confusion in the record concerning how long M eadows w as actually
held after his 2002 arrest (M eadows’s opening brief claims he was jailed for 45
days, while the record elsewhere indicates the duration was only 10 days), there is
no dispute that formal charges w ere filed against M eadows w ithin ten days of his
arrest. M oreover, it appears that M eadows only takes issue with the fact that he
did not receive a probable cause hearing within that period. Given that ten days
of jail time arguably does not qualify as an “extended restraint on liberty” within
the meaning of Gerstein, M eadows’s reliance on that case is misplaced.


                                        -6-
the record suggests the state court did not formally dismiss them until February

2005. He filed his complaint in February 2006. Thus, his malicious prosecution

claim may not be barred by the two-year statute of limitations. 4 Because the

district court did not address the merits of the malicious prosecution claim and w e

decline to do so for the first time on appeal, we remand this issue to the district

court.

                                    III. Conclusion

         For substantially the same reasons set forth by the district court, we find

M eadows’s claims relating to his arrest and detention are untimely and AFFIRM

w ith respect to those claims. A s to M eadows’s malicious prosecution claim, we

REM AND for further proceedings. In addition, we GRANT M eadows’s motion to

proceed IFP in this appeal.

                                   Entered for the Court,

                                   Timothy M . Tymkovich
                                   Circuit Judge




         4
           The state also argues that the malicious prosecution claim is a pendant
state claim over which the district court may decline jurisdiction. That is a
question for the district court on remand.

                                           -7-
