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

                        FOR THE TENTH CIRCUIT                May 14, 2018
                      _________________________________
                                                          Elisabeth A. Shumaker
                                                              Clerk of Court
MICHAEL WAYNE EIKENBERRY,

       Plaintiff - Appellant,
                                                  No. 17-3278
v.                                       (D.C. No. 5:17-CV-03150-SAC)
                                                    (D. Kan.)
SEWARD COUNTY, KANSAS, a
municipal corporation; HUBERT C.
PETERSON, Seward County
Coroner, in his individual and
official capacity; FRED SMALLS,
Seward County Sheriff Deputy, in
his individual capacity; JIMMY
SELLARS, Seward County Sheriff
Deputy, in his individual capacity;
ROB GNAT, Seward County
Captain, in his individual capacity;
GENE WARD, Seward County
Undersheriff, in his individual and
official capacity; R. ROEHR,
Seward County Sheriff Deputy, in
his individual and official capacity;
RYAN MCVEY, Detective, Seward
County Sheriff’s Department, in his
individual capacity; JEFF
KEATING, Seward County Sheriff
Deputy (deceased); JASON LARUE,
Senior Special Agent, Kansas
Bureau of Investigation, in his
individual and official capacity;
CLINT HAWKINS, Senior Special
Agent, Kansas Bureau of
Investigation, in his individual and
official capacity; LYNN KOEHN,
Seward County Prosecutor, in his
individual and official capacity;
JOHN DOE,
          Defendants - Appellees.
                       _________________________________

                          ORDER AND JUDGMENT *
                       _________________________________

Before BACHARACH, MURPHY, and MORITZ, Circuit Judges.
               _________________________________

      This appeal arises out of searches at Mr. Michael Eikenberry’s house

and his subsequent conviction for involuntary manslaughter. Following the

conviction, Mr. Eikenberry sued under 42 U.S.C. § 1983, 1 claiming

             illegality in the searches of his house,

             excessive force,

             an unauthorized strip search and taking of nude photographs,

             a conspiracy to frame him,

             concealment of exculpatory evidence, and

             creation of false evidence.

Mr. Eikenberry attributed these misdeeds to not only the officers

themselves but also

*
     We conclude that oral argument would not materially aid our
consideration of the appeal. See Fed. R. App. P. 34(a)(2)(C); 10th Cir. R.
34.1(G). Thus, we have decided the appeal based on the record and Mr.
Eikenberry’s appeal brief.

      Our order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But the order and judgment may be cited for its persuasive value under
Fed. R. App. P. 32.1(a) and 10th Cir. R. 32.1(A).
1
      Mr. Eikenberry also asserted state-law claims, but his appeal brief
did not address these claims.
                                         2
           their supervisors (based on inadequate training and
            supervision) and

           Seward County (based on policies governing the execution of
            search warrants).

The district court summarily dismissed the complaint for failure to state a

valid claim, concluding that any potential theories of liability were either

premature or untimely.

      Mr. Eikenberry challenges the dismissal, arguing on appeal that

           the action was neither premature nor untimely and

           the district court committed procedural error.

We reject these challenges and affirm the dismissal.

I.    Standard of Review

      In considering Mr. Eikenberry’s challenges, we engage in de novo

review. Kay v. Bemis, 500 F.3d 1214, 1217 (10th Cir. 2007). In conducting

this review, we “accept the facts alleged in the complaint as true and view

them in the light most favorable to the plaintiff.” Mayfield v. Bethards, 826

F.3d 1252, 1255 (10th Cir. 2016).

II.   Prematurity: Claims for Creation of False Evidence, Concealment
      of Exculpatory Evidence, and Conspiracy to Frame Mr.
      Eikenberry

      Mr. Eikenberry contends that the district court erred in characterizing

some of the claims as premature. We reject this contention for the claims

involving creation of false evidence, concealment of exculpatory evidence,

and conspiracy to frame Mr. Eikenberry.
                                      3
      In addressing prematurity, the district court applied Heck v.

Humphrey, 512 U.S. 477 (1994). In Heck, the Supreme Court held that a

§ 1983 claim is not ordinarily cognizable if a favorable judgment would

necessarily imply the invalidity of the plaintiff’s conviction unless the

conviction had been invalidated elsewhere. 512 U.S. at 486-87 & n.6. Mr.

Eikenberry does not assert that his conviction has been invalidated.

Therefore, his § 1983 claims would be subject to dismissal if a judgment in

his favor would imply the invalidity of his conviction for involuntary

manslaughter. In our view, his conviction would necessarily be invalid if

Mr. Eikenberry were to prevail on his causes of action for the creation of

false evidence, concealment of exculpatory evidence, or conspiracy to

frame Mr. Eikenberry.

      He observes that the claims would be premature only if they related

to the validity of his conviction. Based on this observation, he argues that

Heck does not apply because his conviction would not have been affected

by the evidence that was concealed or fabricated. According to Mr.

Eikenberry, the conviction was based solely on the fact that he and the

victim had been present at the same location. This argument fails as a

matter of law.

      Mr. Eikenberry was convicted after a trial, and we cannot assume

that the verdict was unaffected by the evidence introduced at trial. If law-

enforcement officers had created false evidence, concealed exculpatory

                                      4
evidence, or conspired to frame Mr. Eikenberry, the conviction for

involuntary manslaughter would necessarily have been invalid. See Heck v.

Humphrey, 512 U.S. 477, 478-79, 486-90 (1994) (holding that claims

involving destruction of exculpatory evidence were premature because they

implied the invalidity of a conviction for voluntary manslaughter); see also

Okoro v. Callaghan, 324 F.3d 488, 489-90 (7th Cir. 2003) (applying Heck

to a claim that the plaintiff had been framed). Therefore, a judgment for

Mr. Eikenberry on these claims would necessarily imply that his conviction

was invalid. Under Heck, this implication required the district court to

dismiss the claims for creating false evidence, concealing exculpatory

evidence, and conspiring to frame Mr. Eikenberry. The court did not err in

dismissing these claims.

III.   Timeliness: Claims for Excessive Force and Illegality in
       Conducting the House Searches, the Strip Search, and the
       Photography of Mr. Eikenberry’s Nude Body

       The district court also acted correctly in dismissing the claims for

excessive force, illegality of the house searches, 2 illegality of the strip

search, and taking of nude photographs. In dismissing these claims, the

court relied on the statute of limitations. Mr. Eikenberry presents two

arguments:

       1.    The district court applied the wrong statute of limitations.

2
      It is unclear whether Mr. Eikenberry also meant to challenge the
searches based on the introduction of evidence at his criminal trial. Any
such challenge would have been premature under Heck. See Part II, above.
                                        5
     2.    The claims accrued less than two years before initiation of the
           suit.

We reject both arguments.

     A.    The Applicable Statute of Limitations

     First, Mr. Eikenberry argues that the district court applied the wrong

statute of limitations. We disagree.

     In a claim under § 1983, we apply the period of limitations from the

state’s personal-injury statute. Mondragón v. Thompson, 519 F.3d 1078,

1082 (10th Cir. 2008). Kansas has a two-year period of limitations for

personal-injury claims. Kan. Stat. Ann. § 60-513(a)(4). Thus, the two-year

limitations period governed. See Johnson v. Johnson Cty. Comm’n Bd., 925

F.2d 1299, 1301 (10th Cir. 1991) (“[T]he appropriate statute of limitations

for § 1983 actions arising in Kansas is two years, under Kan. Stat. Ann.

§ 60-513(a)(4).”).

     Mr. Eikenberry disagrees, urging application of Kansas’s ten-year

statute of repose. The ten-year period is based on a Kansas law stating that

a claim ordinarily accrues when

          the act giving rise to the claim first causes substantial injury or

          the fact of injury becomes reasonably ascertainable to the
           injured party.




                                       6
Kan. Stat. Ann. § 60-513(b). But the law sets an outer cap of ten years

from the date of the underlying act. Id. Mr. Eikenberry insists that this law

creates a ten-year period of limitations for his claims. We disagree.

      The outer cap of ten years applies only when the fact of an injury is

not reasonably ascertainable until after a substantial injury has been

inflicted. Kinell v. N.W. Dible Co., 731 P.2d 245, 248 (Kan. 1987). When

triggered, the outer cap of ten years serves to limit—not extend—the time

period for the plaintiff to sue. Gilger v. Lee Constr., Inc., 820 P.2d 390,

397 (Kan. 1991). Thus, Kansas’s ten-year statute of repose does not extend

the two-year limitations period for Mr. Eikenberry to sue.

      B.    The Accrual Date

      The alleged conduct (excessive force, house searches, strip search,

and taking of nude photographs) took place in 2013, and Mr. Eikenberry

did not sue until August 2017. But he argues that his claims did not accrue

until either June 2016 or May-June 2017, when he obtained certain

affidavits from some of the police officers, allegedly alerting him to the

defendants’ fraud and the full extent of his injuries.

      Determining the accrual date for a § 1983 claim is a question of

federal law. Mondragón v. Thompson, 519 F.3d 1078, 1082 (10th Cir.

2008). The claim accrues when the plaintiff knows, or should know, that

his or her rights have been violated. Kripp v. Luton, 466 F.3d 1171, 1175

(10th Cir. 2006). And “‘[c]laims arising out of police actions toward a

                                      7
criminal suspect, such as arrest, interrogation, or search and seizure, are

presumed to have accrued when the actions actually occur.’” Beck v. City

of Muskogee Police Dep’t, 195 F.3d 553, 558 (10th Cir. 1999) (quoting

Johnson v. Johnson Cty. Comm’n Bd., 925 F.2d 1299, 1301 (10th Cir.

1991)). Thus, Mr. Eikenberry’s claims (excessive force, illegal house

searches, improper strip search, and taking of nude photographs)

presumptively accrued when the actions took place, which was more than

two years before Mr. Eikenberry sued.

      But Mr. Eikenberry insists that his claims did not accrue until he

obtained the affidavits. These affidavits recounted the details of the

searches, but Mr. Eikenberry does not explain the relevance of the

affidavits. To the extent that Mr. Eikenberry is arguing that the affidavits

support his underlying claims, the argument would fail because he does not

explain why he could not have known of his injuries until years after the

searches, why he could not have obtained the affidavits earlier, or even

how the affidavits provided him with any new information. 3 Therefore, the

district court correctly concluded that Mr. Eikenberry has not justified

postponement of the accrual date for the claims of excessive force, illegal

house searches, improper strip search, and taking of nude photographs.

3
      To the extent that he is instead asserting that the affidavits support
his claims involving the creation of false evidence, concealment of
exculpatory evidence, or conspiracy to frame Mr. Eikenberry, these
assertions would be premature. See Part II, above. Therefore, accrual under
the statute of limitations is irrelevant to these claims.
                                      8
Because Mr. Eikenberry filed the complaint more than two years after the

alleged wrongdoing, these claims were untimely.

IV.   Procedural Requirements

      Finally, Mr. Eikenberry urges two procedural errors in district court.

      The first alleged procedural error is that the district court should

have notified Mr. Eikenberry of the deficiencies in his complaint and

allowed him to amend. The court notified Mr. Eikenberry of the

deficiencies in an order to show cause, but the court did not sua sponte tell

him that he could amend his complaint. Even if this omission had

constituted error, the error would have been harmless in light of the futility

of amendment. See Perkins v. Kan. Dep’t of Corr., 165 F.3d 803, 806 (10th

Cir. 1999) (stating that dismissal of a pro se complaint for failure to state a

claim is proper if “it is obvious that the plaintiff cannot prevail on the

facts he has alleged and it would be futile to give him an opportunity to

amend”). 4

      As discussed, the complaint lacked factual allegations that would

overcome the hurdles of prematurity and timeliness. Mr. Eikenberry has

not offered any additional information—either in the district court or on

appeal—that would cure these defects. Nor can we conceive of any. Indeed,


4
      The district court did not address whether amendment would have
been futile. But we may affirm the district court’s ruling on any ground
supported by the record. Stillman v. Teachers Ins. & Annuity Ass’n Coll.
Ret. Equities Fund, 343 F.3d 1311, 1321 (10th Cir. 2003).
                                       9
even now Mr. Eikenberry does not say how he would amend the complaint

to cure the pleading defects. See Switzer v. Coan, 261 F.3d 985, 989-90

(10th Cir. 2001). It would therefore be futile to give Mr. Eikenberry an

opportunity to amend the complaint, and any error in the district court’s

failure to sua sponte provide such an opportunity would have been

harmless.

      Mr. Eikenberry also argues that the district court needed to request a

response from the defendants before dismissing the complaint. But the

district court had a statutory obligation to screen the complaint for failure

to state a valid claim. See 28 U.S.C. §§ 1915(e)(2) (stating that the district

court must dismiss a case brought in forma pauperis “at any time” if the

action fails to state a valid claim), 1915A(a)-(b)(1) (setting forth a similar

requirement in prisoner suits against a governmental entity or employee).

In light of this statutory obligation, we reject Mr. Eikenberry’s second

argument.

                                     * * *

      We draw four conclusions:

      1.    The district court did not err in dismissing the claims for
            creation of false evidence, concealment of exculpatory
            evidence, and conspiracy to frame Mr. Eikenberry. These
            claims were premature.

      2.    The district court did not err in dismissing the claims for
            excessive force, illegal house searches, unauthorized strip
            search, and taking of nude photographs. These claims were
            untimely.

                                      10
      3.    The district court did not commit reversible error by failing to
            sua sponte offer an opportunity to amend the complaint.

      4.    The district court did not err in dismissing the complaint
            without requesting a response from the defendants.

Accordingly, we affirm.

V.    Motions for a Certificate of Appealability and to Proceed In
      Forma Pauperis

      Mr. Eikenberry made two additional sets of motions.

      First, he filed two motions for a certificate of appealability. But a

certificate of appealability is not required for an action brought under

§ 1983; therefore, we deny these motions as moot. Reyes v. New Mexico,

415 F. App’x 856, 857 (10th Cir. 2011) (unpublished).

      Second, Mr. Eikenberry filed a motion for leave to proceed in forma

pauperis. We grant Mr. Eikenberry’s motion. But we remind Mr.

Eikenberry of his obligation to continue making partial payments until the

entire filing fee has been paid in full.

                                     Entered for the Court



                                     Robert E. Bacharach
                                     Circuit Judge




                                       11
