                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                         FEB 12 2003
                               TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                               Clerk

 CHRISTOPHER JOHNSTON,

             Plaintiff - Appellant,

 v.                                                    No. 02-1409
                                                D.C. No. 01-N-1405 (MJW)
 DONALD YOUNG; JAMES                                  (D. Colorado)
 EDINGER; GARY SALAZAR,

             Defendants - Appellees.


                          ORDER AND JUDGMENT *


Before EBEL, LUCERO, and O’BRIEN, Circuit Judges.



      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        This order and judgment is not binding precedent except under the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. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      Christopher Johnston, acting pro se, 1 appeals the district court’s dismissal

of his civil rights action filed under 42 U.S.C. § 1983. The district court

dismissed his claim under F ED . R. C IV . P. 12( C ) because it was time-barred by the

applicable statute of limitations. Exercising jurisdiction under 28 U.S.C. § 1291,

we affirm.

      Mr. Johnston was arrested by Denver police detectives on November 6,

1997. On June 10, 1999, he timely filed claims arising out of this incident in

state court. On July 23, 2001, based on the same incident but following it by

more than three years and eight months, Mr. Johnston filed his civil rights claims

in federal court. The defendants named in the federal action were not named in

the state action. 2 Accepting the recommendation of the magistrate judge, the

federal district court on August 23, 2002, entered judgment on the pleadings in

favor of Messrs. Young, Edinger and Salazar because Mr. Johnston filed his

federal complaint outside the two-year statute of limitations governing the action. 3



      1
       We liberally construe a pro se appellate brief. Cummings v. Evans, 161
F.3d 610, 613 (10th Cir. 1998), cert. denied, 526 U.S. 1052 (1999).
      2
        See Civil Action No. 99-CV-3555, District Court, City and County of
Denver, Colorado, where the state court granted summary judgment to defendants
on all grounds on September 7, 2001.
      3
        Mr. Johnston concedes his 42 U.S.C. § 1983 claim is subject to Colorado’s
two-year statute of limitations period for personal injury. See Workman v.
Jordan, 32 F.3d 475, 482 (10th Cir. 1994), cert. denied, 514 U.S. 1015 (1995);
C OLO . R EV . S TAT . § 13-80-102 (1997).

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      We treat a motion for judgment on the pleadings under F ED . R. C IV . P.

12( C ) like we do a motion to dismiss under F ED . R. C IV . P. 12(b)(6), and we

review the decision of the district court de novo. Atlantic Richfield Co. v. Farm

Credit Bank of Wichita, 226 F.3d 1138, 1160 (10th Cir. 2000). “Statute of

limitations questions may . . . be appropriately resolved on a Fed. R. Civ. P. 12(b)

motion.” Aldrich v. McCulloch Properties, Inc., 627 F.2d 1036, 1041 n.4 (10th

Cir. 1980).

      Mr. Johnston argues his federal complaint was timely under the “relation

back” provisions of F ED . R. C IV . P. 15( C ). He errs. The “relation back” language

of F ED . R. C IV . P. 15( C ) allows an amendment to a pleading, when otherwise

permitted by the rule, to relate back to the date of filing of the original pleading

under certain circumstances. Mr. Johnston seeks to have his federal complaint

“relate back” to his state filing, thereby making it timely. Such a unique

application of the “relation back” doctrine, for which Mr. Johnston offers no

authority, violates a fair reading of F ED . R. C IV . P. 15( C ) and offends accepted

principles of federal-state comity. 4

      Mr. Johnston claims the magistrate judge was biased and inappropriately


      4
       Mr. Johnston attributes his tardy federal claim to a tortured discovery
process in his state case that delayed discovery of the identities of the three
defendants he later named in the federal case. He does not explain why he failed
to timely file his federal claim with unnamed defendants and later move to amend
under F ED . R. C IV . P. 15 after the defendants were identified.

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suggested the “statute of limitations” strategy to the defendants. The argument is

without merit and warrants no discussion. Similarly, his claim that the magistrate

judge omitted certain factual data in his recommendation to the district court

judge is not supported by the record and is otherwise undeveloped. We therefore

decline to consider it. Murrell v. Shalala, 43 F.3d 1388, 1389 n.2 (10th Cir.

1994). He further contends the magistrate judge erred by failing to remove his

claims from state court to federal court. This argument is unpersuasive for two

reasons. First, removal is the prerogative of the defendant only (28 U.S.C. §

1441(a)); and second, the state court action was already concluded when the

magistrate judge filed his recommendation to the district court judge.

      Judgment AFFIRMED.



                                       Entered by the Court:

                                       TERRENCE L. O’BRIEN
                                       United States Circuit Judge




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