                                                                               FILED
                                                                   United States Court of Appeals
                     UNITED STATES COURT OF APPEALS                        Tenth Circuit

                            FOR THE TENTH CIRCUIT                        August 23, 2016
                        _________________________________
                                                                       Elisabeth A. Shumaker
                                                                           Clerk of Court
SOLOMON PANICKER,

     Plaintiff - Appellant,

v.                                                       No. 16-6114
                                                  (D.C. No. 5:15-CV-01178-R)
CITY OF OKLAHOMA CITY; JOE                               (W.D. Okla.)
CASE; LARRY WALL,

     Defendants - Appellees.
                     _________________________________

                            ORDER AND JUDGMENT*
                        _________________________________

Before HARTZ, MURPHY, and PHILLIPS, Circuit Judges.
                  _________________________________

      Plaintiff, Solomon Panicker, appearing pro se, asserts that Oklahoma City and

two of its employees discriminated against him while he was employed at a city-

owned water plant in 2006–2007. The district court dismissed Panicker’s claims

against Oklahoma City based on the applicable statute of limitations and dismissed

the individual defendants for failure to obtain service of process on the individual

defendants. Although he doesn’t identify any error in the district court’s decisions,


      *
        After examining the briefs 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
and doesn’t dispute that the claims are barred by the applicable statute of limitations,

Panicker appeals the district court’s orders dismissing all of his claims. Exercising

jurisdiction under 28 U.S.C. § 1291, we affirm.

                                  BACKGROUND

      On October 19, 2015, Panicker filed suit against Oklahoma City. On December

28, 2015, in response to the district court’s order allowing Panicker additional time to

file an Amended Complaint, Panicker filed an Amended Complaint asserting claims

against Oklahoma City, Joe Case, and Larry Wall. If we construe Panicker’s

Amended Complaint broadly,1 we understand Panicker to plead that the Defendants

discriminated against him based on his Asian heritage and created a hostile work

environment that led to his termination. The Amended Complaint asserts that all of

the alleged conduct occurred in July and August of 2006. Panicker never served

process on Case or Wall.

      Oklahoma City sought dismissal under Fed. R. Civ. P. 12(b)(6), arguing that

the applicable statute of limitations barred Panicker’s claims. In his response,

Panicker attached his right-to-sue letter from the Equal Employment Opportunity

Commission (EEOC), dated November 21, 2007, and argued the merits of his claims.

After reviewing Panicker’s response, the district court dismissed Panicker’s claims,

concluding that “[a]ny claim, whether based on negligence, 42 U.S.C. § 1983, or

Title VII has been barred for many years.” R. Vol. 1 at 46. After issuing an order to


      1
        In considering Panicker’s appeal, we construe his pleadings liberally, but we
do not serve as his advocate. James v. Wadas, 724 F.3d 1312, 1315 (10th Cir. 2013).
                                           2
show cause why the claims against Case and Wall should not be dismissed for failure

to serve Case and Wall, the Court dismissed Panicker’s claims against Case and Wall

without prejudice.

                                     DISCUSSION

      The court may grant a Rule 12(b)(6) motion to dismiss based on a statute of

limitations defense “when the dates given in the complaint make clear that the right

sued upon has been extinguished.” Aldrich v. McCulloch Props., Inc., 627 F.2d 1036,

1041 n.4 (10th Cir. 1980). “We review de novo ‘a district court’s ruling regarding the

applicability of a statute of limitations.’” Sierra Club v. Okla. Gas and Elec. Co., 816

F.3d 666, 671 (10th Cir. 2016) (quoting Plaza Speedway, Inc. v. United States, 311

F.3d 1262, 1266 (10th Cir. 2002)).

      State law determines the statute of limitations for claims under 42 U.S.C. §

1983. Mondragon v. Thompson, 519 F.3d 1078, 1082 (10th Cir. 2008); Beck v. City

of Muskogee Police Dept., 195 F.3d 553, 557 (10th Cir. 1999) (“State statutes of

limitations applicable to general personal injury claims supply the limitations periods

for § 1983 claims.”). Under Oklahoma law, Panicker had two years to file his claims

under § 1983. See Beck, 195 F.3d at 557 (Oklahoma’s two-year statute of limitations

applies to § 1983 claims). Panicker’s Amended Complaint confirms that he waited

about nine years to file his claims. Therefore, his claims under § 1983 are untimely

and barred.

      To the extent we construe his Amended Complaint as asserting a claim under

Title VII, those claims also expired long before Panicker filed suit in this case. See

                                           3
EEOC v. W.H. Braum, Inc., 347 F.3d 1192, 1197 (10th Cir. 2003) (explaining that

under Title VII, “the employee has ninety days from receipt of the right to sue letter

in which to file suit.”).

       Panicker doesn’t claim the district court erred in holding that his claims are

barred by the applicable statute of limitations. Instead, Panicker once again attempts

to argue the merits of his claim. But statutes of limitations ‘“promote justice by

preventing surprises through . . . revival of claims that have been allowed to slumber

until evidence has been lost, memories have faded, and witnesses have disappeared.’”

CTS Corp. v. Waldburger, 134 S. Ct. 2175, 2183 (2014) (quoting Railroad

Telegraphers v. Railway Express Agency, Inc., 321 U.S. 342, 348–349 (1944)).

Because the claims are barred by the applicable statute of limitations, we need not

address the merits of Panicker’s claims.

       Finally, the district court did not abuse its discretion in dismissing Case and

Wall for lack of service. See Espinoza v. United States, 52 F.3d 838, 840 (10th Cir.

1995) (explaining that we review the district court’s dismissal for failure to serve

defendants for abuse of discretion). The district court provided Panicker an

opportunity to show cause for the failure to effect service and Panicker failed to do

so. Panicker has never argued that he properly served Case or Wall and has never

provided any reason for failing to do so. Therefore, the district court didn’t abuse its

discretion in dismissing the claims against Case and Wall.




                                           4
                          CONCLUSION

The district court’s orders dismissing Panicker’s claims are AFFIRMED.


                                  Entered for the Court


                                  Gregory A. Phillips
                                  Circuit Judge




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