                                                                         FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                   April 30, 2009
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                    Clerk of Court
                                 TENTH CIRCUIT



 DANIEL L. ROSALES,

               Plaintiff - Appellant,                    No. 08-1163
          v.                                             (D. Colorado)
 JOE ORTIZ, Director of D.O.C.;              (D.C. No. 06-cv-02438-EWN-CBS)
 LARRY REID, Centennial
 Correctional Facility (CCF); Case
 Manager WATKINS (CCF); Case
 Manager LINDSEY (CCF);
 ANTHONY DECESARO, D.O.C.
 Grievance Officer; Sergeant MORRIS
 (CCF); Sergeant WARING (CCF);
 Sergeant WILSON (CCF); C/O
 CHASE (CCF); C/O PAUL (CCF);
 C/O CORDOVA (CCF); C/O
 LANGONI (CCF); C/O KEIL (CCF);
 C/O PRICE (CCF); C/O ARGUELLO
 (CCF),

               Defendants - Appellees.


                            ORDER AND JUDGMENT *


Before KELLY, ANDERSON, and BRISCOE, Circuit Judges.




      *
        This order and judgment is not binding precedent except under the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 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.

      Daniel Rosales, an inmate in the custody of the Colorado Department of

Corrections (“CDOC”), appearing pro se, appeals from the dismissal, on statute of

limitations grounds, of his civil rights action 1 against various officials and staff of

the CDOC. We affirm.



                                  BACKGROUND

      On July 11, 2004, Mr. Rosales filed a civil rights action in the federal

district court, naming various officials and personnel of the CDOC (D. Colo.

No. cv-04-ES-1663, hereinafter referred to in this opinion as the 2004 complaint).

The complaint alleged numerous violations of Mr. Rosales’ constitutional rights.

As pertinent here, Mr. Rosales alleged that on November 18, 2003, and on

April 6, 2004, corrections officials entered his cell and confiscated his “adult”

magazines in violation of his First and Fourteenth Amendment rights under the

Federal Constitution. On October 29, 2004, the district court dismissed the




      1
          42 U.S.C. § 1983.

                                           -2-
complaint, without prejudice, for failure to first exhaust administrative remedies.

Mr. Rosales did not appeal that dismissal.

      Subsequently, after traversing a rocky road in which CDOC personnel,

including the grievance officer, allegedly obstructed and delayed a response to his

grievances, Mr. Rosales finally completed the process of exhausting his

administrative remedies on October 6, 2005. Compl. ¶ 76; Appellant’s Op. Br. at

p. 2(a)(2) ¶ 13. Ten and a half months later, on August 21, 2006 (according to

Mr. Rosales), he commenced the process of refiling his civil rights action.

According to court records, his complaint was filed on December 5, 2006. That

complaint, as amended subsequently, is the one underlying this appeal. For

convenience, it is referred to hereafter simply as the complaint.

      Thereafter, the defendants filed motions to dismiss. Following briefing by

both parties, the magistrate judge issued a report and recommendation (“R&R”)

which addressed each of the various issues raised in the complaint. Except for

the adult magazine/First Amendment issue, the R&R resolved each issue on the

merits and recommended dismissal. As for the First Amendment issue, the R&R

recommended dismissal on statute of limitations grounds, reasoning that the

complaint had been filed more than two years after the alleged confiscations on

November 18, 2003, and April 6, 2004. The district court adopted the magistrate

judge’s recommendations and dismissed all issues on the merits except for the




                                         -3-
adult magazine/First Amendment issue, which the court dismissed on statute of

limitations grounds.

      In this appeal, it is important to note that only the adult magazine/First

Amendment issue is argued, 2 including dismissal of that issue on statute of

limitations grounds. Specifically, in the issues section of his appellate brief,

Mr. Rosales lists the following two issues:

      a.     First Issue: The plaintiff is not barred by the statute of
             limitations, and whether Judge Nottingham reviewed the
             plaintiff’s statute of limitations by not completely reviewing
             the entire record.

      b.     Second Issue: Whether the (DOC) confiscated adult
             magazines in violation of the plaintiff’s due process and equal
             protection rights for freedom of speech and press.

Appellant’s Op. Br. at 3.

      Accordingly, our review in this appeal is limited to those issues. The

district court’s merits disposition of the other allegations in the complaint has

become final. For purposes of our review, we construe Mr. Rosales’ pro se

complaint with the special solicitude required by the Supreme Court. See

Erickson v. Pardus, 551 U.S. 89, 127 S. Ct. 2197, 2200 (2007); Haines v. Kerner,


      2
       The notice of appeal identified a number of issues, but none of the issues,
except for the First Amendment issue, is pursued, developed, or argued in
Mr. Rosales’ appellate brief. Issues which are not argued or supported by
reasoning and authorities on appeal are deemed waived. See Bronson v. Swensen,
500 F.3d 1099, 1105 (10th Cir. 2007); Becker v. Kroll, 494 F.3d 904, 913 n.6
(10th Cir. 2007) (“An issue or argument insufficiently raised in the opening brief
is deemed waived.”).

                                         -4-
404 U.S. 519, 521 (1972); Van Deelen v. Johnson, 497 F.3d 1151, 1153 n.1 (10th

Cir. 2007).



                                    DISCUSSION

      We first address the statute of limitations issue because it is dispositive.

“Limitations periods in § 1983 suits are to be determined by reference to the

appropriate state statute of limitations and the coordinate tolling rules. . . .

Hardin v. Straub, 490 U.S. 536, 539 (1989) (further quotation omitted).

Mr. Rosales does not dispute that the limitations period applicable to this § 1983

suit is Colorado’s two-year statute of limitations which, subject to exceptions

discussed below, bars suits filed more than two years after the time the cause of

action accrued. See Colo. Rev. Stat. § 13-80-102; Fogle v. Pierson, 435 F.3d

1252, 1258 (10th Cir. 2006); Blake v. Dickason, 997 F.2d 749, 750-51 (10th Cir.

1993). It is likewise undisputed that the relevant two accrual dates here are the

dates Mr. Rosales alleges his adult magazines were confiscated: November 18,

2003, and April 6, 2004. Finally, under Mr. Rosales’ version of events, the

earliest arguable “filing” date for the specific complaint under review is

August 21, 2006—approximately 33 months and 28-1/2 months, respectively,

from the accrual of Mr. Rosales’ claims. The complaint’s record filing date of

December 5, 2006, is approximately 36-1/2 months and 32 months, respectively,

from the accrual dates. On the face of it, therefore, those claims are barred by the

                                          -5-
two-year statute of limitations unless some exception applies to extend or

otherwise affect the running of the statute.

         Mr. Rosales makes two independent arguments in that regard. First, he

contends that the 2006 complaint is simply a reinstatement or continuation of the

original, timely, but ultimately dismissed, 2004 complaint. Appellant’s Op. Br. at

2(a)(3) ¶ 19. He points to the fact that the dismissal was without prejudice. He

further directs our attention to the language of the district court, in the order

denying reconsideration pursuant to Fed. R. Civ. P. 59(e), stating, among other

things, that the dismissal was without prejudice: “so that Plaintiff may exhaust

his administrative remedies regarding these claims and resubmit the claims to the

Court once he has exhausted.” Order Denying Mot. To Reconsider at 3 (D. Colo.

Dec. 16, 2004) (emphasis added) (attached to Appellant’s Op. Br.).

         Second, Mr. Rosales argues that the statute of limitations does not start

(due to tolling) until the exhaustion of remedies process is completed.

Appellant’s Op. Br. at 3(a). And, finally, Mr. Rosales contends that Younger v.

Chernovetz, 792 F. Supp. 173 (D. Conn. 1992), supports the proposition that an

amendment to a complaint relates back to the date the complaint was originally

filed.

         These arguments are unavailing. The first argument fails simply because,

as stated above, the 2004 complaint was dismissed. As the word implies,

dismissal terminated the proceeding, leaving nothing which could be amended or

                                           -6-
continued. The “without prejudice” qualifier refers to the right to file a new

complaint covering the same claims without facing a defense that they had been

litigated previously and, therefore, could no longer be pursued.

      Mr. Rosales’ second argument is that the two-year statute of limitations

was tolled during his diligent, but allegedly frustrated, attempt to exhaust his

administrative remedies as required by the court. He states that the exhaustion of

remedies process was completed on October 6, 2005, so the two-year statute

either commenced at that time or was extended by the time elapsed during the

exhaustion process. This contention invokes the doctrine of tolling, both legal

and equitable.

      Tolling, like the statute of limitations, is governed by Colorado law. See

Hardin, 490 U.S. at 539; Fogle, 435 F.3d at 1258; Fratus v. DeLand, 49 F.3d 673,

675 (10th Cir. 1995). There are several grounds for tolling under Colorado law,

including a ninety-day extension under certain circumstances, Colo. Rev. Stat.

§ 13-80-111(1), and additional time for a person under a legal disability. Colo.

Rev. Stat. § 13-81-101(3). Neither of those exceptions are helpful to Mr. Rosales.

See Fogle, 435 F.3d at 1258; Russell-El v. United States, 198 F.3d 258, 1999 WL

987350, at **2-3 (10th Cir. Nov. 1, 1999) (unpublished) (cited for illustrative, not

controlling, authority).

      Equitable tolling is also recognized by Colorado “when flexibility is

required to accomplish the goals of justice,” such as “when plaintiffs did not

                                         -7-
timely file their claims because of ‘extraordinary circumstances’ or because

defendants’ wrongful conduct prevented them from doing so,” despite diligent

efforts. Fogle, 435 F.3d at 1258 (quoting Morrison v. Goff, 91 P.3d 1050, 1053

(Colo. 2004) (further citation omitted)); see Dean Witter Reynolds, Inc. v.

Hartman, 911 P.2d 1094, 1099 (Colo. 1996).

      We have declined to apply those tolling provisions in circumstances almost

identical to this case, reasoning that ample time for filing within the two-year

limitations period remained after the exhaustion of remedies, but that the plaintiff

failed to diligently pursue his opportunity to file. Russell-El, 1999 WL 987350.

We stated:

      As the district court found, [plaintiff] also fails to allege any
      extraordinary circumstances that prevented him from bringing his
      claims despite diligent efforts. After [the original complaint] was
      dismissed, [plaintiff] exhausted his administrative remedies on
      October 1, 1997. On October 15, 1998, rather than filing a new
      complaint he filed a motion for continuance in [the original
      complaint] which was denied because that case had already been
      dismissed. Although we understand that a pro se plaintiff may have
      some confusion as to the procedural aspects of the law, [plaintiff]
      provides no explanation for having waited an additional six months
      before filing the instant action on April 16, 1998. Thus, we agree
      with the district court’s determination that equitable tolling is not
      appropriate in this action, “because [plaintiff’s] failure to return
      promptly to federal court following exhaustion of administrative
      remedies does not demonstrate diligent efforts to pursue his claims.”

Id. at *3 (further quotations omitted). We adopt and apply that reasoning and

conclusion here. Mr. Rosales asserts that his administrative remedies were

exhausted on October 6, 2005. On that date, at least six weeks and six months,

                                         -8-
respectively, remained of the original two-year limitations periods (beginning

November 18, 2003, and April 6, 2004). Some argument might be made about the

adequacy of the first available filing period of six weeks, although it would seem

that all Mr. Rosales had to do was mail his original complaint to the court for

filing. But Mr. Rosales’ failure to file within the next six months—waiting

instead, the better part of a year or more to file—fails equitable tolling

qualification. As we said in Russell-El, “[Plaintiff’s] failure to return promptly to

federal court following exhaustion of administrative remedies does not

demonstrate diligent efforts to pursue his claims.” Id.

      Finally, there remains the specific question which Mr. Rosales raises:

whether, separate from the tolling provisions discussed above, Colorado tolls

statutes of limitations during the exhaustion of administrative remedies required

by federal law. No case or statute directly supports that proposition, and we are

disinclined to carve out such an exception here. 3 As just discussed, the two-year

limitations period had not run on Mr. Rosales’ claims when they were

administratively exhausted. There is no equitable or legal reason to search for a

way to make something which was already available even more so.




      3
          In Russell-El, we recognized but found it unnecessary to resolve the issue.

                                           -9-
                                   CONCLUSION

      For the reasons stated above, the district court’s dismissal of the First

Amendment/due process claim on statute of limitations grounds is AFFIRMED. 4

The plaintiff’s motion for leave to proceed without prepayment of fees is

GRANTED. We remind him of his continuing obligation to make partial

payments until the filing fee is paid in full.

                                                 ENTERED FOR THE COURT


                                                 Stephen H. Anderson
                                                 Circuit Judge




      4
       Because we affirm on statute of limitations grounds, it is unnecessary to
address the merits of the adult magazine confiscation issue.

                                          -10-
