                                                             FILED
                                                  United States Court of Appeals
                                                          Tenth Circuit

                                                         April 8, 2011
                UNITED STATES COURT OF APPEALS
                                             Elisabeth A. Shumaker
                                                         Clerk of Court
                       FOR THE TENTH CIRCUIT


RONALD JENNINGS FOGLE,

           Plaintiff-Appellant,

v.                                                 No. 10-1335
                                      (D.C. No. 1:05-CV-01211-KHV-CBS)
CATHY SLACK, C.D.O.C.,                              (D. Colo.)
Administrative Head at (C.S.P.); V.
RIDDLE, C.D.O.C., Committee
Chairperson at (C.S.P.); J. HUNTER,
C.D.O.C., Case Manager, Committee
Member at (C.S.P.); J. CARROLL,
C.D.O.C., Committee Chairperson at
(C.S.P.); D. COMB, C.D.O.C., Case
Manager, Committee Member at
(C.S.P.),

           Defendants-Appellees,

and

CAPTAIN PIERSON, C.D.O.C.,
Committee Member and Chairperson
at (D.R.D.C); WILLIAM BOKROS,
C.D.O.C., Administrative
Head/Director at (D.R.D.C.);
GEORGE MESKIMEN, Lt., C.D.O.C.,
Initiating Employee at (D.R.D.C.);
FOSNOT, C.D.O.C., Case Manager,
Committee Member of (D.R.D.C.); S.
EGAN, C.D.O.C., Case Manager,
Committee Member at (D.R.D.C.); LT.
NORTON, C.D.O.C., Programmer at
(D.R.D.C.); UNKNOWN
DEFENDANT #1, C.D.O.C.
Correctional Officer at (D.R.D.C.);
UNKNOWN DEFENDANT #2,
    C.D.O.C. Correctional Officer at
    (D.R.D.C.); UNKNOWN
    DEFENDANT #3, C.D.O.C.
    Correctional Officer at (D.R.D.C.);
    JOHN R. CLARKSON, C.D.O.C.,
    Committee Member at (S.C.F.); C.
    WIERZHICKI, C.D.O.C., Committee
    Member at (S.C.F.); MCMONAGLE,
    C.D.O.C., Case Manager, Committee
    Member at (S.C.F.); PAUL
    WILLIAMS, C.D.O.C., Committee
    Member at (S.C.F.); T. CHASE,
    C.D.O.C., Administrative Head at
    (S.C.F.); NICHELS, C.D.O.C., Case
    Manager, Committee Member at
    (S.C.F.); M. EMILY, C.D.O.C.,
    Administrative Head at (S.C.F.); JOE
    ORTIZ, C.D.O.C., Executive Director,

               Defendants.


                             ORDER AND JUDGMENT *


Before HOLMES and McKAY, Circuit Judges, PORFILIO, Senior
Circuit Judge.




*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 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.

                                           -2-
                                INTRODUCTION

      Ronald Fogle, a state prisoner appearing pro se, appears before this court

for a second time in pursuit of relief on his 42 U.S.C. § 1983 civil rights claims

based on alleged constitutional violations associated with his placement in

administrative segregation while an inmate of the Colorado Department of

Corrections (DOC). After a series of orders, the district court entered judgment

denying all relief and dismissed the complaint and the action with prejudice.

R. Vol. 2 at 319-21. Mr. Fogle appeals, and we AFFIRM.

                                 BACKGROUND

      After walking out of the Denver County Jail while a pretrial detainee,

Mr. Fogle was apprehended, returned to that facility, and made to serve time in

punitive segregation. He was eventually sentenced on the original felony counts

for which he had been charged and then spent from September 2000 until August

2003 in administrative segregation at three different state facilities. His original

§ 1983 complaint, naming various DOC officials as defendants, was dismissed by

the district court as legally frivolous under 28 U.S.C. § 1915(e)(2)(B)(i). On

appeal, this court affirmed in part, reversed in part, and remanded. See Fogle v.

Pierson, 435 F.3d 1252, 1265 (10th Cir. 2006). In that opinion, we identified five

issues that should have survived dismissal under § 1915(e)(2)(B)(i):

      his claim that he was not given proper due process before being
      assigned to administrative segregation; his claim of cruel and unusual
      punishment stemming from the denial of all outdoor recreation for

                                         -3-
      three years; his claim of retaliation for the exercise of his First
      Amendment rights; his claim of denial of “Christian fellowship”; and
      his claim of denial of access to the law library.

Id.

      On remand, the district court granted the motion to dismiss all

individual-capacity claims against DOC director Joseph Ortiz because the

complaint did not allege any personal actions by Mr. Ortiz that violated

Mr. Fogle’s rights. 1 The court further dismissed the official capacity claims

against Mr. Ortiz and all other defendants because of their immunity from damage

claims, and because Mr. Fogle did not seek injunctive relief. R. Vol. 1 at 164-67.

After this order, the lawsuit consisted only of individual-capacity claims against

the remaining defendants for compensatory and punitive damages.

      Defendants then filed a motion for summary judgment that the district court

granted in part and denied in part. See id. Vol. 2 at 48. The court determined that

Mr. Fogle was advancing only three claims:

      (1) that he was not given proper due process before he was assigned
      to administrative segregation, which resulted in him being denied all
      outdoor recreation and religious services throughout his assignment
      to administrative segregation; (2) that prison staff sent him to
      long-term administrative segregation in retaliation for his exercise of
      First Amendment rights because he complained about his assignment
      to administrative segregation and threatened to file a lawsuit; and
      (3) that he was denied access to the law library in preparing his case.




1
      Mr. Fogle did not object to this dismissal.

                                         -4-
Id. at 31-32 (footnote omitted). The court identified two issues for decision:

whether some or all of the remaining claims were barred by the statute of

limitations, and, if some claims were not barred, whether a trial was required to

decide them. Id. at 32.

      “[T]he statute of limitations for § 1983 actions brought in Colorado is two

years from the time the cause of action accrued. A § 1983 action accrues when

facts that would support a cause of action are or should be apparent.” Fogle,

435 F.3d at 1258 (quotation and citation omitted). Mr. Fogle was kept in

administrative segregation from September 2000 through August 2003. He

commenced this case on June 20, 2005. Thus, claims based on actions that

occurred in the early part of his nearly three-year stint in segregation are barred

unless a tolling provision applies. See id.

      In an effort to avoid having claims dismissed because they were time

barred, Mr. Fogle argued that the continuing violation doctrine should be applied

to his case. The district court held that, aside from the fact that this court has yet

to decide whether the continuing violation doctrine applies to § 1983 claims, the

decisions made by various defendants at various facilities were insufficiently

related to group them into one big due process bundle by virtue of the continuing

violation doctrine. See R. Vol. 2 at 39-41. Similarly, because discrete conduct

formed the basis for his retaliation claim, the court concluded “even if the




                                          -5-
continuing violation doctrine could apply to a § 1983 claim, it would not apply to

the claims asserted in this lawsuit.” Id. at 41.

      The court then applied the two-year statute of limitations to Mr. Fogle’s

claims. The only claims to fall within the limitations period were: (1) the due

process claim based on “Defendant Slack’s approval [sometime after June 20,

2003] of two recommendations by Defendants Comb and Carroll to keep

Mr. Fogle in administrative segregation pending a behavioral review,” id. at

41-42; and (2) the retaliation claim against Defendants Slack, Comb, and Carroll

based on their decisions of June 20 and July 21, 2003, to keep Mr. Fogle in

administrative segregation, id. at 42.

      After examining the record and considering the arguments of the parties

regarding whether equitable tolling could save any of the time-barred claims, the

court concluded:

      [c]ontingent upon a showing at trial that the statute of limitations is
      subject to equitable tolling, the sole claims remaining in this action
      are that: (a) Defendants Slack, Riddle, Hunter, Carroll and Comb
      deprived Mr. Fogle of due process when they recommended or
      decided to keep him in administrative segregation; (b) Defendant
      Hunter retaliated against Mr. Fogle for his exercise of First
      Amendment rights; and (c) Defendant Hunter deprived Mr. Fogle of
      access to the law library and other legal assistance, impeding his
      right of access to the courts. [2]

Id. at 48 (footnote added).

2
      Defendant Hunter worked at the Colorado State Penitentiary as a case
manager. Mr. Fogle alleged that he asked Mr. Hunter for law library access so he
could file this § 1983 complaint, but Mr. Hunter refused him such access.

                                          -6-
      Mr. Fogle’s remaining claims came to trial in a bifurcated proceeding

where the parties first presented the equitable tolling evidence to the court. At

the conclusion of that proceeding, the court ruled Mr. Fogle was not entitled to

equitable tolling and dismissed the due process claims against defendants Slack,

Riddle, Hunter, Carroll, and Comb arising from their participation, before

June 20, 2003, in the decisions to keep Mr. Fogle in administrative segregation.

The court refused to toll Mr. Fogle’s legal access claim against defendant Hunter

and further found that Mr. Fogle “offered no evidence that his mental illness

(paranoid schizophrenia in remission) or any other mental condition in any way

prevented him from timely asserting claims in this litigation.” Id. at 306.

      The court then ordered Mr. Fogle to show cause “why defendants should

not be entitled to qualified immunity for any violation of plaintiff’s rights to

procedural due process” and “why all claims against [defendant] Hunter on or

after June 20, 2003 should not be dismissed.” Id. at 311. In his response to the

show cause order, Mr. Fogle’s counsel stated that he was “unable to show cause .

. . as to why all claims against all the remaining Defendants should not be

dismissed.” Id. at 314. The court entered judgment in favor of all remaining

defendants and dismissed the claims with prejudice. This appeal followed.

                                     ANALYSIS

      Our jurisdiction arises under 28 U.S.C. § 1291. On appeal, Mr. Fogle

contends the district court erred in dismissing his claims involving (1) court

                                          -7-
access; (2) First Amendment retaliation; (3) due process; and (4) the Eighth

Amendment. He argues that the court further erred in its decisions regarding the

continuing violation doctrine and equitable tolling and dismissed defendant Ortiz

prematurely.

Statute of Limitations

       We first consider the district court’s conclusion that most of Mr. Fogle’s

claims were time barred and that he was not entitled to equitable tolling. As

mentioned, Mr. Fogle did not commence his case until June 20, 2005. Therefore,

pursuant to the two year statute of limitations set forth in Colo. Rev. Stat.

§ 13-80-102(g), any acts occurring prior to June 20, 2003, are time barred and

must be dismissed unless Mr. Fogle establishes the continuing violation doctrine

applies, see generally Hunt v. Bennett, 17 F.3d 1263, 1266 (10th Cir. 1994)

(discussing application of doctrine), or the limitations period is subject to tolling,

a matter controlled in this § 1983 case by Colorado law, see Fratus v. DeLand,

49 F.3d 673, 675 (10th Cir. 1995). Mr. Fogle bore the burden to show that the

limitations period should be equitably tolled. See Escobar v. Reid, 668 F. Supp.

2d 1260, 1287 (D. Colo. 2009) (noting that “once a defendant satisfies his initial

burden to show that a claim is untimely, the burden shifts to Plaintiff to . . . show

that there is a basis to toll the accrual date”).




                                            -8-
      Continuing Violation Doctrine

      “The continuing violation doctrine permits a Title VII plaintiff to challenge

incidents that occurred outside the statutory time limitations of Title VII if such

incidents are sufficiently related and thereby constitute a continuing pattern of

discrimination.” Hunt, 17 F.3d at 1266. Mr. Fogle argues that each of

defendants’ decisions to keep him in administrative segregation should be

grouped together to constitute a continuing violation of his civil rights. As the

district court noted, however, this court has yet to decide whether the continuing

violation doctrine applies in § 1983 cases, and we decline to do so now. Instead,

we agree with the district court that each segregation decision was of a discrete

nature and that, in many instances, segregation decisions were made by different

decision makers across three different correctional facilities, thus making it

inappropriate to aggregate all such decisions into one continuing violation for

limitations purposes. The same reasoning applies to Mr. Fogle’s retaliation

claims because each claim involved discrete decisions or discrete conduct making

the continuing violation doctrine inapplicable.

      Equitable Tolling

      Colorado courts allow equitable tolling only rarely. Escobar, 668 F. Supp.

2d at 1272 (citing Noel v. Hoover, 12 P.3d 328, 330 (Colo. Ct. App. 2000), which

had noted “[t]he doctrine of equitable tolling is limited to situations in which

either the defendant’s wrongful conduct prevented the plaintiff from asserting the

                                          -9-
claims in a timely manner or truly exceptional circumstances prevented the

plaintiff from filing the claim despite diligent efforts”). Whether a statute of

limitations should be equitably tolled is a question of fact we review for clear

error, see Fratus, 49 F.3d at 675-76, giving “due regard to the trial court’s

opportunity to judge the witnesses’ credibility,” Fed. R. Civ. P. 52(a)(6). As

noted, after a hearing the district court determined that equitable tolling was not

available to Mr. Fogle. We agree.

      Mr. Fogle argues that equitable tolling should have saved his claims. He

particularly focuses on his right-to-access claims that the district court refused to

toll finding:

              The essence of a denial of access claim is that official action
      denied plaintiff an opportunity to litigate that claim. Christopher v.
      Harbury, 536 U.S. 403, 414 (2002). Based on the evidence, the
      Court cannot conclude Hunter deprived plaintiff of any opportunity
      to litigate the Section 1983 claims which plaintiff later brought in
      this case. As noted, plaintiff filed his complaint nearly two years
      after he was released from administrative segregation and transferred
      from CSP [Colorado State Penitentiary]. Furthermore plaintiff
      testified that he made numerous requests – which were granted – to
      access the library and other legal materials at other facilities.
      Plaintiff’s testimony that at CSP he made weekly requests which
      someone ignored is not credible. Plaintiff is not entitled to equitable
      tolling on the theory that Hunter, or anyone else, impeded his access
      to legal materials or the courts.

R. Vol. 2 at 305. These findings of fact are supported by the record, and we are

not definitely and firmly convinced that the court erred. See United States v.

Jarvison, 409 F.3d 1221, 1224 (10th Cir. 2005).


                                         -10-
      We specifically reject Mr. Fogle’s contention that he could have made his

case if he had had the documents he requested in discovery documenting his

numerous unanswered requests for access to legal materials. A plaintiff who has

not acted on his rights in a timely manner will not be heard to complain when the

evidence he needs for his cause is unavailable due to his tardiness. Statutes of

limitations reflect a balancing of the interest favoring the vindication of valid

claims and the interest barring the prosecution of stale ones. Sun Oil Co. v.

Wortman, 486 U.S. 717, 736 (1988) (Brennan, J., concurring). “[T]here comes a

point at which the delay of a plaintiff in asserting a claim is sufficiently likely

either to impair the accuracy of the fact-finding process or to upset settled

expectations that a substantive claim will be barred without respect to whether it

is meritorious.” Bd. of Regents v. Tomanio, 446 U.S. 478, 487 (1980), abrogation

on other grounds recognized by Farrell v. McDonough, 966 F.2d 279, 280

(7th Cir. 1992). Statutes of limitations assist the courts by making the

adjudication process more efficient. This process is otherwise “hampered by stale

evidence and absent witnesses.” Ohio v. Peterson, Lowry, Rall, Barber & Ross,

651 F.2d 687, 694 (10th Cir. 1981).

      Mr. Fogle also argues that the combination of his mental illness and his

placement in administrative segregation should, as a matter of law, demand the

equitable tolling of his claims. He cites no authority for this proposition, and we

have found none. On the contrary, we find no error in the findings of the district

                                          -11-
court in its order granting, in part, defendants’ motion for summary judgment and

stating:

            As for Mr. Fogle’s contention that the statute of limitations
      should be equitably tolled because of his mental illness, the only
      evidence before this Court is that Mr. Fogle suffers from paranoid
      schizophrenia and auditory hallucinations, and that he takes
      psychotropic medications. There is no evidence that his illness or
      medications prevented him from timely asserting his claims. As is
      evident from Mr. Fogle’s numerous court filings during the time
      when he was in administrative segregation, his mental illness did not
      prevent him from filing documents with a court.

R. Vol. 2 at 44; see also id. at 306 (Mem. & Order & Order to Show Cause)

(“plaintiff offered no evidence that his mental illness (paranoid schizophrenia in

remission) or any other mental condition in any way prevented him from timely

asserting claims in this litigation”).

      With regard to any denial-of-access claims based on conduct that was not

time barred, Mr. Fogle’s counsel conceded he was “unable to show cause . . . as

to why all claims against all the remaining Defendants should not be dismissed.”

Id. at 314. 3 In general, a client “is bound by the actions of his lawyer,” and the

lawyer must be given free rein to manage the conduct of a trial. Young v.

Workman, 383 F.3d 1233, 1240 (10th Cir. 2004). In this instance, while

Mr. Fogle may disagree with his lawyer’s action, that fact does not rescue his




3
      This concession also applied to Mr. Fogle’s First Amendment retaliation
claim against Mr. Hunter.

                                         -12-
right-to-access claims particularly where the court allowed him to speak to this

issue before rendering judgment. Supp. R. Vol. 1 at 271-76.

      Because all of Mr. Fogle’s claims were either time barred or were

dismissed when he could not show cause why they should be considered viable,

we do not reach the merits of the other arguments in Mr. Fogle’s briefs. We do

pause, however, to explain that, our prior opinion remanding certain claims that

had an arguable basis in law or fact so that the district court could consider

whether Colorado’s statute of limitations could be tolled, see Fogle, 435 F.3d at

1259, 1265, did not mean that this court considered Mr. Fogle’s case to be clothed

with the extraordinary circumstances required to justify such equitable tolling.

And it certainly did not establish that there was merit in any of Mr. Fogle’s

claims per se.

      All pending motions filed by Mr. Fogle are DENIED. The judgment of the

district court is AFFIRMED.



                                                     Entered for the Court


                                                     John C. Porfilio
                                                     Senior Circuit Judge




                                         -13-
