                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                 February 10, 2016
                                TENTH CIRCUIT                   Elisabeth A. Shumaker
                                                                    Clerk of Court

 RANDOLPH GRAHAM,

              Plaintiff - Appellant,

 v.                                                     No. 15-1286
                                               (D.C. No. 1:15-CV-00006-LTB)
 KIRK TAYLOR, FRAN LePAGE,                              (D. of Colo.)
 LIGHTCAP (FNU), BINFORD (FNU),
 ZIOLKOWSKI (FNU), KIESTER
 (FNU), SOSA (FNU), GONZALEZ
 (FNU), GALLARDO (FNU), and
 ANNA CIODORIA,

              Defendants - Appellees.


                           ORDER AND JUDGMENT *


Before TYMKOVICH, Chief Judge, HARTZ, and MORITZ, 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         This order and judgment is not binding precedent except under the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 the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.
      Randolph Graham, a state prisoner appearing pro se, 1 appeals the district

court’s sua sponte dismissal of his civil rights case against various Colorado

correctional officers as frivolous. We have jurisdiction under 28 U.S.C. § 1291

and AFFIRM.

                                I. Background

      Graham is a prisoner of the State of Colorado. On January 2, 2015, he filed

a 42 U.S.C. § 1983 civil action, which, liberally construed, alleges three

constitutional claims: (1) Appellees violated Graham’s right of access to the

courts by denying his request to use the prison law library; (2) Appellees violated

his right of access to the courts by refusing to provide him a grievance form so he

could report the incident; and (3) Appellees racially discriminated against him in

their distribution of grievance forms. Graham’s complaint makes apparent the

relief he requests concerns events that occurred from July 2011 to January 2012.

      Because Graham filed his case in forma pauperis (IFP), and consistent with

its screening obligation under 28 U.S.C. § 1915, the district court ordered Graham

to show cause why his case should not be dismissed as untimely. Graham

responded to the order and also filed an amended complaint, setting forth the

same factual allegations. In a written order, the district court concluded




      1
        We construe pro se filings liberally. Standifer v. Ledezma, 635 F.3d
1276, 1277 n.1 (10th Cir. 2011).

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Graham’s claims were barred by the applicable statute of limitations and

dismissed his complaint as frivolous under § 1915(e)(2)(B)(i).

                                     II. Analysis

      “[W]e review de novo a district court’s sua sponte dismissal pursuant to 28

U.S.C. § 1915(e)(2) in an in forma pauperis proceeding.” Vasquez Arroyo v.

Starks, 589 F.3d 1091, 1094 (10th Cir. 2009). We review frivolous

determinations for abuse of discretion. Fratus v. Deland, 49 F.3d 673, 674 (10th

Cir. 1995).

      Federal courts in IFP cases “shall dismiss the case at any time if the court

determines that . . . the action or appeal . . . (i) is frivolous or malicious; [or] (ii)

fails to state a claim on which relief may be granted . . . .” 28 U.S.C.

§ 1915(e)(2)(B). A claim is frivolous if it is “based on an indisputably meritless

legal theory” or founded on “clearly baseless” factual allegations. Neitzke v.

Williams, 490 U.S. 319, 327 (1989). Moreover, if the allegations, taken as true,

show the requested relief is barred by the statute of limitations, dismissal for

failure to state a claim is proper. See Jones v. Bock, 549 U.S. 199, 215 (2007).

The statute of limitations defense, however, must be “patently clear from the face

of the complaint” or “rooted in adequately developed facts.” Fogle v. Pierson,

435 F.3d 1252, 1258 (10th Cir. 2006) (citation omitted).

      The statute of limitations for § 1983 actions is borrowed from state statute.

Mondragón v. Thompson, 519 F.3d 1078, 1082 (10th Cir. 2008). In Colorado, the

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relevant statute prescribes a two-year statute of limitations for federal civil rights

actions. Colo. Rev. Stat. § 13-80-102(1). “A civil rights action accrues when

facts that would support a cause of action are or should be apparent.” Fratus, 49

F.3d at 675 (citation omitted).

      Graham does not dispute that the conduct he alleges is unlawful occurred

outside the two-year limitations period. Instead, he asserts the nature of his

claims alters the applicable period. First, Graham argues his conspiracy claim

under 42 U.S.C. § 1985(3) is not subject to the two-year limitations. As an initial

matter, Graham has not pleaded a conspiracy claim. In his 20-page complaint, he

references § 1985 twice in passing and never mentions the word “conspiracy.”

See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556–57 (2007) (conclusory

allegations of a conspiracy will not suffice). Nonetheless, even if pleaded,

§ 1985(3) conspiracy claims are subject to the same two-year statute of

limitations. See Lyons v. Kyner, 367 F. App’x 878, 881 (10th Cir. 2010)

(collecting cases) (“For conspiracy claims under § 1985(3), courts have also

applied the forum state’s personal-injury statute of limitations.”). And, as

Graham alleges, the last act of the purported conspiracy occurred in January 2012,

which is outside the limitations period. Therefore, whether Graham actually

pleaded a § 1985(3) claim does nothing to alter the fact that his claims are

untimely.



                                          -4-
      Second, Graham relies on the continuing violation doctrine, which permits

courts to consider continuing wrongs as a whole, “so long as an injurious act falls

within the statute of limitations period.” Burkley v. Corr. Healthcare Mgmt. of

Okla., Inc., 141 F. App’x 714, 716 (10th Cir. 2005) (citations omitted). Even if

we accept Graham’s invocation of the doctrine, 2 Graham has failed to allege any

unlawful conduct by Appellees that occurred two years prior to his filing of this

case (i.e., post-January 2013). Accordingly, it is patently clear from Graham’s

complaint that his claims are barred by the statute of limitations and the district

court’s dismissal was warranted.

      Graham lastly challenges the district court’s characterization of his claims

as frivolous. Although the district court indicated it was dismissing Graham’s

complaint under § 1915(e)(2)(B)(i)’s frivolous standard, instead, the court

appears to have dismissed the complaint because Graham failed to state a timely

claim for relief—that is, under the § 1915(e)(2)(B)(ii) standard. Importantly,

here, the district court’s characterization of the standard for dismissal is not

dispositive. 3 We therefore conclude Graham’s complaint was properly dismissed



      2
        This court has never formally adopted the continuing violation doctrine
for § 1983 actions. Canfield v. Douglas Cnty., 619 F. App’x 774, 778 (10th Cir.
2015) (“[T]his court has never held that the continuing-violation doctrine applies
to § 1983 cases.”).
      3
          A federal court shall dismiss an IFP case if the action is frivolous or the
plaintiff fails to state a claim for relief. § 1915(e)(2)(B)(i)–(ii). And either
ground for dismissal subjects the IFP plaintiff to a “strike” under § 1915(g).

                                          -5-
because he failed to state a claim not otherwise barred by the statute of

limitations.

      Because we conclude Graham’s complaint fails to state a claim for relief,

see § 1915(e)(2)(B)(ii), we impose a strike against him under the Prisoner

Litigation Reform Act (PLRA). § 1915(g). In addition, because of the frivolity

of Graham’s appeal, we impose a second strike. Jennings v. Natrona Cnty. Det.

Ctr., 175 F.3d 775, 780–81 (10th Cir. 1999), overruled on other grounds by

Coleman v. Tollefson, 135 S. Ct. 1759 (2015). We remind Graham that if he

accrues three strikes, he may not proceed IFP in civil actions before federal courts

unless he is under imminent danger of serious physical injury. § 1915(g).

      We also deny Graham’s request to proceed IFP on appeal because he has

failed to advance a reasoned, nonfrivolous argument in support of the issues

raised. Therefore, he must pay the balance of the appellate filing fee

immediately.

                                III. Conclusion

      We AFFIRM the district court’s dismissal of Graham’s § 1983 action

because he failed to state a timely claim for relief and DISMISS his appeal. We

also DENY Graham’s request to proceed IFP and impose two strikes against him




                                         -6-
under the PLRA.

                  ENTERED FOR THE COURT

                  Timothy M. Tymkovich
                  Chief Judge




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