                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                        UNITED STATES COURT OF APPEALS
                                                                                DEC 7 2000
                                    TENTH CIRCUIT
                                                                          PATRICK FISHER
                                                                                       Clerk

 WALTER LEE GRASHEIM,

          Plaintiff-Appellant,
 v.

 EDWIN CORR, Individually and in his
                                                             No. 99-6259
 official capacity as Ambassador to El
                                                     (D.C. No. CIV-98-1246-W)
 Salvador; CELERINO CASTILLO, III,
                                                    (Western District of Oklahoma)
 Individually, and in his capacity as a
 Special Agent for the Drug Enforcement
 Administration,

          Defendants-Appellees.


                                 ORDER AND JUDGMENT*


Before BALDOCK and McWILLIAMS, Circuit Judges, and SHADUR, District
Judge.**


      In a 23-page complaint filed on September 9, 1998, in the United States District

Court for the Western District of Oklahoma, Walter Lee Grasheim (“Grasheim”) brought

suit against the United States of America, four of its governmental agencies, eleven


      *
         This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3
      **
        Honorable Milton I. Shadur, District Judge, United States District Court for the
Northern District of Illinois, sitting by designation.
named individuals and six John Does. Two of the named individual defendants were

Edwin Corr (“Corr”), the ambassador to El Salvador when the events which formed the

basis for the complaint occurred, and Celerino Castillo, III (“Castillo”), a special agent

for the Drug Enforcement Administration assigned to El Salvador at the time of the

underlying events. In this appeal we are only concerned with Corr and Castillo, who,

collectively, will hereinafter be referred to as “the Defendants.”

       In his complaint Grasheim, who apparently was a United States citizen, alleged

that from 1984 through September 1, 1986, he was residing in and doing business in El

Salvador and, at the same time, was under contract with the Department of Defense to

provide equipment in the form of night vision equipment and expertise as well as training

the Salvadoran Armed Forces. He further alleged that, when he was temporarily in the

United States, the Defendants unlawfully conspired with themselves and others to have

the local Salvadoran authorities raid his residence in El Salvador, ostensibly for drugs,

which they did on September 1, 1986. In that search, in which no drugs were apparently

found, Grasheim alleged that numerous of his personal effects were illegally seized.

Based thereon, Grasheim asserted a Bivens claim under Bivens v. Six Unknown Named

Agents, 403 U.S. 388 (1971) and a RICO claim under 18 U.S.C. § 1964, et seq., against

Defendants and others. Grasheim then went on to allege that after September 1, 1986, the

Defendants “fraudulently concealed” their participation in the raid, tolling any statute of

limitations, and that he didn’t become aware of the true facts until “late 1996” when he


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learned that Castillo had published a book wherein he admitted “orchestrating” the raid.

Grasheim sought actual damages in the amount of $2,500,000.00, treble damages for his

RICO claim and punitive damages in excess of $1,000,000.00.

       Corr and Castillo filed motions to dismiss or, alternatively, for summary judgment

based on the applicable statutes of limitations. (It is agreed that the Bivens claim has a

two year statute of limitations and the RICO claim a four year statute.) At the hearing on

Corr’s and Castillo’s motions to dismiss, matters were relied on which were outside the

pleadings, whereupon the district court elected to treat the motion to dismiss as a motion

for summary judgment under Fed. R. Civ. P. 56, and allowed the parties time within

which to file “all material” pertinent to a Rule 56 motion.1 On June 21, 1999, after

argument, the district court granted summary judgment for both Corr and Castillo,

holding that both the Bivens claim and the RICO claim were time barred. In so holding,

the district court concluded that on the record before it, “Grasheim knew, or should have

known, at least by 1990 the critical facts giving rise to his causes of action.” The district

court further stated that “because Grasheim was aware of sufficient facts at least by 1990



       1
         On motion, the district court first dismissed Grasheim’s claim against the United
States and the agency defendants. Individual defendants severally filed motions to
dismiss under Fed. R. Civ. P. 12(b), alleging, inter alia, that Grasheim’s claims were time
barred. Grasheim filed a response to those motions. The district court granted those
motions for all individual defendants except Corr and Castillo. At the same time, the
district court noted that since Corr and Castillo had presented matters outside the
pleadings, it would treat their motions to dismiss as motions for summary judgment under
Fed. R. Civ. P. 56. As indicated, we are here only concerned with Corr and Castillo.

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to pursue his lawsuit, the court finds no grounds to support Grasheim’s argument that the

limitation periods should be equitably tolled until 1996.” Grasheim appeals the judgment

thus entered.

       As stated, the district court concluded that on the record before it Grasheim either

knew or should have known “at least by 1990 the critical facts giving rise to his causes of

action,” which would mean that the complaint, filed in 1998, was well beyond both the

two year and four year statutes of limitations. On appeal, Grasheim’s position is that he

didn’t really know of any cause of action he might have against Corr and Castillo until

late 1996, when he learned of Castillo’s book implicating Castillo, Corr, and others in the

unlawful raid of Grasheim’s home in El Salvador, which, if correct, would mean that the

complaint, filed in 1998, would be within the two year and four year statutes of

limitations. The Defendants argue that the district court’s determination that Grasheim

“knew or should have known” by 1990 is amply supported by the record, and suggest that

actually Grasheim “knew or should have known” as early as the fall of 1986.

       For purpose of a statute of limitations, a cause of action accrues when the plaintiff

knows or has reason to know of the injury which is the basis for the action and its cause.

Baker v. Board of Regents, 991 F.2d 628, 632 (10th Cir. 1993); Arvayo v. United States,

766 F.2d 1416, 1419 (10th Cir. 1985). We reject any suggestion that a plaintiff must

“conclusively” know of the injury and its cause before a statute of limitations is triggered.

Chasteen v. Unisia Jecs Corp., 216 F.3d 1212, 1218 (10th Cir. 2000); Baker, 991 F.2d at


                                            -4-
632. Our study of the record convinces us that the district court did not err in holding that

Grasheim knew or should have known at least by 1990 the “critical facts,” and, indeed,

such is amply supported by the record. Events occurring between 1986 and 1990, which

are enumerated by the district court in its order, support its determination that Grasheim’s

claims are time barred and preclude him from asserting claims made some 12 years after

the fact.2

       Judgment affirmed.



                                           ENTERED FOR THE COURT

                                           Robert H. McWilliams
                                           Circuit Judge




       2
         In addition to the matter mentioned by the district court in its order, we also note
that on December 13, 1990, Grasheim, when interviewed by an FBI agent, stated, inter
alia, that he had learned that a few days before the September 1, 1986, raid on his house,
Castillo and others met with Corr and discussed raiding his house for drugs and that he
(Grasheim) believed that the drug charge was “totally trumped up to get him out of the
picture for some unknown reason.” To counter this and other evidence tending to show
“knowledge” by at least 1990, Grasheim by affidavit suggested that he was only
“bluffing” in an effort to establish the true facts.

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