                                                                         FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                                                                     June 24, 2009
                   UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                                      Clerk of Court
                          FOR THE TENTH CIRCUIT


    KENNEDY McDOW, SR.,

              Plaintiff-Appellant,

    v.                                           Nos. 08-2202 & 08-2264
                                            (D.C. No. 1:07-CV-01266-JB-WPL)
    CHRISTINE M. GONZALES;                               (D. N.M.)
    ROBERTA (ROBIN) NORTON;
    THE STATE OF NEW MEXICO;
    ROXEANNE B. ESQUIBEL;
    MELISSA ARMSTRONG; CANON
    STEVENS; MICHAEL
    KWASNIEWSKI; NEW MEXICO
    STATE POLICE; GEORGE BENAL;
    OTERO COUNTY SHERIFF’S
    OFFICE; JOHN BLANSETT;
    NORBERT SANCHEZ; WILLIAM
    WOLTZ; LEON LEDBETTER; LISA
    DELORM; EDUARDO MEDRANO;
    ROBBIE VIRDEN; SERIOLOGICAL
    INSTITUTE; THOMAS FEDOR,

              Defendants-Appellees.


                           ORDER AND JUDGMENT *




*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
Before BRISCOE, BALDOCK, and HOLMES, Circuit Judges.



      Plaintiff Kennedy McDow, Sr., a former prisoner of the State of

New Mexico appearing pro se, appeals from the district court’s orders dismissing

his claims against all of the defendants in this civil rights suit brought pursuant to

42 U.S.C. § 1983. We have jurisdiction under 28 U.S.C. § 1291 and affirm.

      In November 2003, plaintiff was arrested pursuant to an arrest warrant in

Otero County, New Mexico, and charged with nine criminal counts. A jury

convicted him of one count of false imprisonment and one count of tampering

with evidence, and the trial court sentenced him to three years’ incarceration. His

attempts to overturn his conviction were unsuccessful on direct appeal and on

both state and federal habeas review. He was released from jail in March 2006.

      Plaintiff filed this suit in December 2007, alleging that defendants violated

his civil rights in connection with his state-court arrest and conviction. The

defendants include the Otero County Sheriff’s Office and various County officials

(the “County Defendants” 1); the State of New Mexico, the New Mexico State

Police, and various State officials (the “State Defendants” 2); Ms. Gonzales (the

1
     The County Defendants are: Otero County Sheriff’s Office, John Blansett,
Norbert Sanchez, William Woltz, Leon Ledbetter, Lisa Delorm, Eduardo
Medrano, and Robbie Virden.
2
      The State Defendants are: the State of New Mexico, the New Mexico State
Police, Roxanne B. Esquibel, Melissa Armstrong, George Bernal, Canon Stevens,
                                                                 (continued...)

                                         -2-
victim); and the Seriological Research Institute (a forensic laboratory) and

Mr. Fedor, one of its employees.

      The district court noted that this is the third suit plaintiff has filed against

these or other defendants to assert essentially the same claims. R., Doc. 40, at 2. 3

The court noted that plaintiff’s allegations in this suit were general and

encompassed all of the defendants. Id. at 7. The court concluded after a thorough

analysis of the complaint that “[a]ll of [plaintiff’s] claims are brought under

§ 1983 and all challenge the validity of his convictions. Because he was arrested

with legal process, i.e., with a warrant, [plaintiff’s] § 1983 claims based on his

arrest are for due-process violations analogous to malicious prosecution.”

R., Doc. 40, at 23; id., Doc. 48, at 19-20.

      All of the defendants either filed or joined in a motion to dismiss, which

the district court considered under the standards applicable to motions brought

under Fed. R. Civ. P. 12(b)(6). See R., Doc. 40, at 10-12; id., Doc. 48, at 11-13.

On June 23, 2008, the court issued a memorandum opinion and order dismissing

plaintiff’s claims against the County Defendants, the Seriological Research

Institute, and Mr. Fedor. Id., Doc. 40. The court also denied plaintiff’s motion to

amend his complaint. Id. at 27-30. No. 08-2202 is plaintiff’s appeal from the



2
 (...continued)
and Michael Kwasniewski
3
      All references are to the district court record in No. 08-2264.

                                          -3-
court’s June 23, 2008, decision. On September 30, 2008, the court issued a

memorandum opinion and order dismissing plaintiff’s claims against the

remaining defendants. R., Doc. 48. No. 08-2264 is plaintiff’s appeal from that

decision.

      The district court dismissed plaintiff’s claims against the Seriological

Research Institute and Mr. Fedor because plaintiff asserted no facts against them

to show how they had any involvement in his arrest and prosecution, but the

dismissal was without prejudice because plaintiff’s allegations against these

defendants were so vague that “there [wa]s nothing to give meaningful preclusive

effect.” R., Doc. 40, at 18-19. “We review a dismissal under

Fed. R. Civ. P. 12(b)(6) [for “failure to state a claim upon which relief can be

granted”] de novo.” Moss v. Kopp, 559 F.3d 1155, 1161 (10th Cir. 2009). With

respect to the Seriological Research Institute and Mr. Fedor, the district court

denied plaintiff’s motion to amend his complaint without prejudice because

plaintiff’s allegations against these defendants were so unclear that the court

could not determine whether amendment would be futile. See R., Doc. 40,

at 29-30. “We ordinarily review a denial of a motion to amend a pleading for

abuse of discretion.” Miller ex rel. S.M. v. Bd. of Educ. of Albuquerque Pub.

Sch., 565 F.3d 1232, 1249 (10th Cir. 2009).

      The district court dismissed plaintiff’s claims against the County

Defendants without prejudice, holding that because plaintiff had not overturned

                                         -4-
his conviction, his § 1983 claims for malicious prosecution against the County

Defendants had not accrued. R., Doc. 40, at 26 (citing Heck v. Humphrey,

512 U.S. 477, 486-87 (1994)). The court dismissed plaintiff’s claims against the

State Defendants without prejudice on the same grounds. Id., Doc. 48, at 17-22.

Because the court dismissed plaintiff’s claims against the County and State

Defendants under Fed. R. Civ. P. 12(b)(6), we review these dismissals de novo.

Moss, 559 F.3d at 1161. The court rejected as irrelevant plaintiff’s argument that

the discovery rule applied to extend the statute of limitations on his § 1983

claims. R, Doc. 40, at 24-26; id., Doc. 48, at 20-22. The court also noted that

plaintiff did not allege any state tort claims, but that such claims would most

likely be barred by the applicable statutes of limitations. Id., Doc. 40, at 26;

id., Doc. 48, at 22 n.5. With respect to the County and State Defendants, the

court denied plaintiff’s motion to amend the complaint (with prejudice, it

appears) because he offered neither facts to support amendment nor a proposed

amended complaint, and because it was not apparent that there was any additional

claim for him to assert that would not be barred under Heck or by the applicable

statute of limitations, so amendment “would likely be futile.” R., Doc. 40,

at 27-29. Although “[w]e ordinarily review a denial of a motion to amend a

pleading for abuse of discretion[,] . . . our review for abuse of discretion includes

de novo review of the legal basis for the finding of futility.” Miller ex rel. S.M.,

565 F.3d at 1249.

                                          -5-
      The district court dismissed plaintiff’s claims against Ms. Gonzales because

she is a private individual, not a state actor, and plaintiff failed to allege facts

showing that she acted under color of state law to support a claim against her

under § 1983. R., Doc. 48, at 23-25. Because the court dismissed plaintiff’s

claims against Ms. Gonzales under Fed. R. Civ. P. 12(b)(6), we review this

dismissal de novo. Moss, 559 F.3d at 1161. Because plaintiff is representing

himself, we construe his pleadings liberally. See Haines v. Kerner, 404 U.S. 519,

520-21 (1972) (per curiam).

      To the extent that we can discern plaintiff’s arguments, he argues on appeal

that the district court: (1) erred in dismissing his § 1983 claims; (2) erred by not

putting defendants to the burden of asserting their qualified immunity defense;

(3) erred by holding that the discovery rule did not apply to extend the statute of

limitations on his § 1983 claims. We have carefully reviewed the parties’

materials and the record on appeal. We find no error or abuse of discretion, and

affirm for substantially the same reasons as those clearly and thoroughly set forth

by the district court in its June 23 and September 30, 2008 orders.

      The judgment of the district court is AFFIRMED.

                                                       Entered for the Court



                                                       Bobby R. Baldock
                                                       Circuit Judge


                                           -6-
