                                                                            F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                          January 10, 2007
                                     TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                            Clerk of Court


 KEITH E. FRAZIER,

           Plaintiff-Appellant,
 v.                                                          No. 06-1333
 ED JORDAN, Sheriff of Weld County;               (D.C. No. 04-CV-1914-LTB-BNB)
 DR. FLOWER, Weld County Centennial                         (D. Colorado)
 Jail Physician; JANE DOE #1, Weld
 County Centennial Jail Dietician; LEON
 WIKOFF, Weld County Centennial Jail
 Correctional Officer; JOHN DOES #3
 through #7 and JOHN DOE #9, Weld
 County Centennial Jail Personnel;
 KENNETH LEACH, Weld County
 Centennial Jail Correctional Officer, each
 in their individual and official capacities;
 and THE MUNICIPALITY OF WELD
 COUNTY, by and through THE BOARD
 OF COUNTY COMMISSIONERS OF
 THE COUNTY OF WELD.

           Defendants-Appellees.




                                  ORDER AND JUDGMENT *


Before HENRY, BRISCOE, and O’BRIEN, 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         This order and judgment is not binding precedent, except under the doctrines of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 (eff. Dec. 1, 2006) and 10th Cir. R.
32.1 (eff. Jan. 1, 2007).
      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.

      Plaintiff Keith Frazier (“Frazier”) appeals the district court’s dismissal of his pro

se action filed pursuant to 42 U.S.C. § 1983. We have jurisdiction pursuant to 28 U.S.C.

§ 1291 and affirm.

      Frazier, who is currently incarcerated with the Colorado Department of

Corrections, filed his complaint on September 7, 2004, against Ed Jordan (“Jordan”), the

former sheriff of Weld County, the Board of County Commissioners of Weld County

(“BOCC”), and ten Jane/John Doe defendants for violations of his Eighth and Fourteenth

Amendment rights. After learning the identity of two of his John Doe defendants, Dr.

Thomas Flower (“Flower”) and Leon Wikoff (“Wikoff”), Frazier submitted an amended

complaint against Jordan, Flower, Wikoff, the BOCC, and eight remaining Jane/John

Does on December 17, 2004. On July 18, 2005, the district court granted Frazier’s

motion to identify John Doe #8 as correctional officer Kenneth Leach (“Leach”).

      In his amended complaint, Frazier alleges that during his pretrial detention at the

Weld County Centennial Jail (“WCCJ”) he was denied a sufficient amount of food in

violation of the Eighth Amendment’s prohibition against cruel and unusual punishment

and the substantive due process clause of the Fourteenth Amendment. He claims that

                                            -2-
Flower, a physician at WCCJ, ignored his requests for additional food. He also asserts

that Wikoff, a correctional officer, “purposefully misinterpret[ed] a frivolous and rarely-

used rule” to confiscate excess ramen soup packets from his cell. Record on Appeal

(“ROA”), Tab 35 at 4d. He alleges that Jordan denied his request for an additional review

of his excess soup infraction “on a technicality.” Id. at 4e. Finally, Frazier asserts that

Leach, while conducting an evening cell inspection, found a cheeseburger he had hidden

in a bowl in his room. Frazier “tricked the officer into letting him examine what he’d

found, and once he had the food back in his hands, he quickly tried to eat it.” Id. at 4g.

He contends that Leach then “went berserk and attacked [him] in an effort to prevent him

from eating his own food.” Id. He claims that Leach tackled him and wrestled with him,

while attempting to pull food out of his mouth, resulting in “minor injuries” to Frazier.

Id. Frazier fails to allege any facts related to any action taken or a policy implemented by

the BOCC that caused or led to the alleged violations of his constitutional rights.

       On October 15, 2004, the district court denied Frazier’s motion for appointment of

counsel. On August 31, 2005, the district court dismissed Frazier’s claims against Flower

and Jordan for failure to state a claim and failure to file within the statute of limitations.

It dismissed the claim against the BOCC and its current sheriff, John Cook (“Cook”), for

failure to adequately allege a governmental policy or custom causing deprivation of a

constitutional right. The district court also dismissed Frazier’s claims against Wikoff,

concluding that Frazier’s claim was time-barred and he was not entitled to equitable

tolling of the statute of limitations. On September 21, 2005, the court dismissed Frazier’s

                                              -3-
claims against his remaining Jane/John Doe defendants. Finally, on July 18, 2006, the

district court adopted the recommendation of the magistrate judge, which concluded that

Frazier’s claim against Leach was barred by the statute of limitations, Frazier was not

entitled to equitable tolling, and recommending dismissal of Frazier’s claim against Leach

and Frazier’s suit in its entirety.

       Although Frazier lists sixteen issues for review in his notice of appeal, several of

the issues are redundant. To summarize, Frazier argues that the district court erred in: (1)

denying his motion to appoint counsel and, in the process, exhibiting bias towards him;

(2) dismissing his case against Jordan and Flower as barred by the statute of limitations

and for failure to state a claim, concluding that he was not entitled to equitable tolling,

and dismissing his claims against Wikoff and Leach as time-barred; (3) concluding that

the continuing violations doctrine was inapplicable to his case; (4) dismissing his suit

before allowing sufficient time for discovery and dismissing his suit against unnamed

Jane/John Doe defendants; (5) dismissing his claim against the BOCC and the current

sheriff of WCCJ for failure to state a claim; and (6) neglecting to address his request for

injunctive relief. Because Frazier is a pro se litigant, his “pleadings are to be construed

liberally and held to a less stringent standard than formal pleadings drafted by lawyers.”

Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).

       We “review a district court’s refusal to appoint counsel for an indigent prisoner in

a civil case for an abuse of discretion. The burden is on the applicant to convince the

court that there is sufficient merit to his claim to warrant the appointment of counsel.”

                                              -4-
Steffey v. Orman, 461 F.3d 1218, 1223 (10th Cir. 2006) (citations omitted). The district

court’s decision to deny counsel will only be overturned “in those extreme cases where

the lack of counsel results in fundamental unfairness.” Id. “In evaluating a prisoner’s

request for appointed counsel, the court should consider ‘the merits of the prisoner’s

claims, the nature and complexity of the factual and legal issues, and the prisoner’s ability

to investigate the facts and present his claims.’” Id. at 1224.

       In evaluating Frazier’s motion for appointment of counsel, the magistrate judge

considered the proper factors and determined that Frazier adequately presented his claims,

his factual and legal issues were not complex, and the allegations in the complaint did not

indicate a strong chance of success on the merits. We cannot conclude that Frazier’s lack

of counsel resulted in fundamental unfairness. Frazier’s complaint demonstrates that he

adequately and thoroughly presented his factual claims and legal arguments and the

magistrate judge noted that he would construe Frazier’s pleadings liberally in light of his

pro se status. Finally, Frazier fails to demonstrate that the court was biased against him.

The magistrate judge did not abuse his discretion in denying Frazier appointed counsel.

       The district court dismissed Frazier’s claims against Flower, Jordan, Wikoff, and

Leach as time-barred. On appeal, Frazier concedes that he filed his complaint outside the

limitations period, but argues that he was entitled to equitable tolling of the statute of

limitations and application of the continuing violations doctrine. We review a district

court’s determination that a plaintiff’s claims are barred by the statute of limitations de

novo. Cisneros v. ABC Rail Corp., 217 F.3d 1299, 1304 (10th Cir. 2000).

                                              -5-
       Section 1983 claims are subject to the relevant state statute of limitations for

personal injury actions. Hunt v. Bennett, 17 F.3d 1263, 1265 (10th Cir. 1994). In

Colorado, personal injury actions are subject to a two-year statute of limitations. Id. at

1266; Colo.Rev.Stat. § 13-80-102. Because his cause of action arose in Colorado,

Frazier’s § 1983 suit was governed by a two-year statute of limitations. “Section 1983

claims accrue, for the purpose of the statute of limitations, when the plaintiff knows or

has reason to know of the injury which is the basis of his action.” Hunt, 17 F.3d at 1266.

       According to Frazier’s amended complaint, his claim against Flower accrued in

November of 2001. His claims against Wikoff and Jordan accrued in January of 2002

and his claim against Leach accrued in March of 2002. Frazier had two years from the

accrual of each of his claims to file his complaint. Frazier did not file his complaint until

September 7, 2004, which was between five and ten months after the requisite limitation

period had run for his claims against each of these defendants. Frazier argues that he is

entitled to equitable tolling because he was denied access to the WCCJ’s law library. He

asserts that he did not have access to a law library until October of 2002 when he was

transferred to the general population of the Sterling Correctional Facility. He contends

that he requested use of the WCCJ’s law library on August 10, 2001, but was denied

access by a correctional officer not named in his complaint.

       The issue of tolling is governed by state law. Fratus v. DeLand, 49 F.3d 673, 675

(10th Cir. 1995). In Colorado, an “equitable tolling of a statute of limitations is limited to

situations in which either the defendant has wrongfully impeded the plaintiff’s ability to

                                             -6-
bring the claim or truly extraordinary circumstances prevented the plaintiff from filing his

or her claim despite diligent efforts.” Dean Witter Reynolds, Inc. v. Hartman, 911 P.2d

1094, 1099 (Colo. 1996). Frazier asserts that the defendants at issue wrongfully impeded

his ability to bring his claim because they denied him access to the WCCJ’s law library.

While acknowledging that the identity of the officer who denied him access to the library

is unknown and that this officer is not a named defendant in his case, he asserts that this

fact is irrelevant because the officer claimed to be following jail policy. Frazier also

alleges that extraordinary circumstances prevented him from filing his complaint despite

his diligent efforts. He notes that he had only two to four hours a week to spend in the

law library and that, at that time, he had no experience with litigation.

       “Because tolling is an equitable remedy, its application involves an examination of

the facts and circumstances of individual cases to determine when equity requires such a

remedy.” Morrison v. Goff, 91 P.3d 1050, 1057 (Colo. 2004). Frazier’s complaint does

not allege that Flower, Jordan, Wikoff, or Leach was involved in any way with denying

him access to the WCCJ’s library. Because none of these defendants were involved with

denying Frazier access to the law library, he cannot argue that they “wrongfully impeded”

his ability to bring a claim. Dean Witter, 911 P.2d at 1099. In addition, even if Frazier

was not granted access to a law library until October of 2002, he still had at the very least

thirteen months to file his complaint and Frazier acknowledged that he had between two

and four hours a week to spend in the prison’s law library. In light of this, Frazier fails to

demonstrate that there were truly extraordinary circumstances preventing him from timely

                                             -7-
filing his complaint.

       Frazier also argues that the continuing violations doctrine should apply to his case.

The continuing violation theory “is a creation of federal law that arose in Title VII cases”

and “recognizes that certain violations are continuing in nature and provides that a claim

asserting such a violation is timely if administrative charges are filed within the period

applicable to the last act in the continuing series.” Thomas v. Denny’s, Inc., 111 F.3d

1506, 1513 (10th Cir. 1997). To establish a continuing violation, a plaintiff must show

that the claimed discriminatory acts that occurred outside the limitations period were

sufficiently related to at least one act occurring within the relevant filing period, thereby

constituting a continuing pattern of discrimination. Furr v. AT&T Tech., Inc., 824 F.2d

1537, 1543 (10th Cir. 1987). Frazier asserts that he was underfed during his entire stay at

the WCCJ and that he was denied access to the WCCJ’s law library during the duration of

his confinement, triggering the continuing violations doctrine. As a preliminary matter,

Frazier has failed to provide any authority in which this circuit has applied the continuing

violations doctrine to a § 1983 claim. See Hunt, 17 F.3d at 1266 (declining to determine

if continuing violations doctrines applies to § 1983 suits); Thomas, 111 F.3d at 1514

(declining to apply continuing violations doctrine to § 1981 claims because the doctrine

“is a creature of the need to file administrative charges” and is not applicable to § 1981

claims, which do not require such charges).

       Additionally, Frazier misconstrues the purpose and application of the doctrine.

First, Frazier fails to assert any violation that occurred within the two-year statutory

                                              -8-
period preceding his complaint. Second, he actually argues that he was subjected to

continuing ill effects (continuous undernourishment and lack of access to the law library)

from the defendants’ original actions, not that the defendants committed further

constitutional violations against him within the two-year statutory period preceding the

filing of his complaint. The continuing violations doctrine is triggered by continual

unlawful acts, not by continual ill effects from the original violation. Bergman v. U.S.,

751 F.2d 314, 317 (10th Cir. 1984).

       Frazier’s claims against Jordan, Wikoff, and Leach refer to specific incidents, each

of which occurred outside the statutory period. Nowhere does Frazier allege that any of

these defendants continued to harass him after these specific incidents. Frazier asserts

that Flower denied him extra food rations on several occasions, but the last time Flower

denied him extra food was in November of 2001. Frazier asserts no other violations

committed by Flower after this date. In addition, Frazier asserts that he was informed on

August 10, 2001, that he was denied access to the law library. Nowhere in his amended

complaint does he allege that he continued to seek and was denied access to the library.

In fact, in his reply brief, he admits that he did not seek further access to the law library

because it would have been pointless. Because Frazier is actually arguing continual ill

effects from the defendants’ prior actions (which fall outside the statutory period), the

continuing violation doctrine is inapplicable to this claim.

       On September 21, 2005, the district court dismissed Frazier’s claims against Jane

Doe #1, John Does #3 through #7 and #9 for failure to show cause for his failure to serve

                                              -9-
process upon these defendants within 120 days as required by Federal Rule of Civil

Procedure 4(m).1 “The preliminary inquiry to be made under Rule 4(m) is whether the

plaintiff has shown good cause for the failure to timely effect service.” Espinoza v.

United States, 52 F.3d 838, 841 (10th Cir. 1995). “If good cause is shown, the plaintiff is

entitled to a mandatory extension of time. If the plaintiff fails to show good cause, the

district court must still consider whether a permissive extension of time may be

warranted. At that point the district court may in its discretion either dismiss the case

without prejudice or extend the time for service.” Id. We review a district court’s

dismissal for failure to effect service for abuse of discretion. Scott v. Hern, 216 F.3d 897,

912 (10th Cir. 2000).

       Frazier filed his complaint in September of 2004. The district court ordered him to

show cause for his failure to serve his Jane/John Doe defendants in September of 2005.

Prior to this order, the district court had twice granted Frazier time extensions to serve

defendants and Frazier was given the opportunity to conduct discovery to identify the

Jane/John Doe defendants. He received answers to his first set of interrogatories in

January of 2005, nearly seven months before he was ordered to show cause for failing to



       1
           Federal Rule of Civil Procedure 4(m) states:

       If service of the summons and complaint is not made upon a defendant within 120
       days after the filing of the complaint, the court, upon motion or on its own
       initiative after notice to the plaintiff, shall dismiss the action without prejudice as
       to that defendant or direct that service be effected within a specified time; provided
       that if the plaintiff shows good cause for the failure, the court shall extend the time
       for service for an appropriate period. Fed. R. Civ. P. 4(m).

                                              -10-
serve the unnamed defendants. Despite this, Frazier asserts on appeal that he was not

given a fair opportunity to conduct discovery as to the unnamed defendants because the

defendants failed to make a good faith effort to answer his interrogatories.

       In its order dismissing Frazier’s claims against the Jane/John Doe defendants, the

district court did not state whether it considered a permissive extension of time. “If the

plaintiff fails to show good cause, the district court must still consider whether a

permissive extension of time may be warranted.” Espinoza, 52 F.3d at 841. However,

the court had previously allowed Frazier at least two extensions of time for service and

permitted him to conduct discovery as to the identities of the unnamed defendants. “A

pro se litigant is still obligated to follow the requirements of Fed.R.Civ.P. 4.” DiCesare

v. Stuart, 12 F.3d 973, 980 (10th Cir. 1993). Because the rule does not require the district

court to grant Frazier yet another permissive extension of time to file service and Frazier

had adequate time to identify the unnamed defendants, we conclude that the district court

did not abuse its discretion in dismissing the remaining Jane/John Doe defendants.

       On August 31, 2005, the district court dismissed Frazier’s claims against the

BOCC and WCCJ’s current sheriff, Cook, pursuant to Federal Rule of Civil Procedure

12(b)(6), because Frazier failed to adequately allege a governmental policy or custom

causing any deprivation of a constitutional right against either party. In addition, the

district court noted that Frazier failed to name Cook as a party defendant and had

admitted in his objection to the magistrate judge’s report and recommendation that “John

Cook is not legally responsible for any liability that was incurred by Ed Jordan during his

                                             -11-
tenure as Sheriff of Weld County, and as such, the Plaintiff would have no intention of

pursuing any legal action against John Cook.” ROA, Tab 58 at 1-2.

       “Because the sufficiency of a complaint is a question of law, we review de novo

the district court’s grant of a motion to dismiss pursuant to Federal Rule of Civil

Procedure 12(b)(6), applying the same standards as the district court.” Moore v. Guthrie,

438 F.3d 1036, 1039 (10th Cir. 2006). Dismissal of a complaint is proper only if “it

appears to a certainty that plaintiff is entitled to no relief under any state of facts which

could be proved in support of the claim.” Id. “The court’s function on a Rule 12(b)(6)

motion is not to weigh potential evidence that the parties might present at trial, but to

assess whether the plaintiff’s complaint alone is legally sufficient to state a claim for

which relief may be granted.” Sutton v. Utah State Sch. for Deaf & Blind, 173 F.3d

1226, 1236 (10th Cir. 1999) (citation omitted).

       On appeal, Frazier argues that the court erred in dismissing his claim against Cook

because he established the sheriff of Weld County, in his official capacity, as a defendant

in his action. Frazier’s complaint names Jordan, the former WCCJ sheriff, as a defendant

in his individual and official capacities. The complaint does not name Cook as a

defendant or assert any allegations against him. In fact, Frazier admits in his reply brief

on appeal that he could not allege a specific violation against Cook because he was never

employed as a sheriff during the time he was incarcerated at WCCJ. In addition, Frazier

fails to describe any policy or custom implemented by the WCCJ that violated his

constitutional rights.

                                              -12-
       Frazier argues that he adequately stated a claim against the BOCC, although he

admits that he could only make assumptions as to relevant policies or customs because he

was denied discovery on this issue. Despite a liberal reading of Frazier’s complaint, he

fails to describe any policy or custom in place at the WCCJ or implemented by the BOCC

that violated his constitutional rights. “A local government may not be sued under § 1983

for an injury inflicted solely by its employees or agents. Instead, it is when execution of a

government’s policy or custom, whether made by its lawmakers or by those whose edicts

or acts may fairly be said to represent official policy, inflicts the injury that the

government as an entity is responsible under § 1983.” Monell v. Dep’t of Soc. Servs.,

436 U.S. 658, 694 (1978).

       In the section of his amended complaint entitled “Parties,” Frazier lists the BOCC

and cites to Colorado state statutes that allegedly impose responsibilities upon the BOCC

to correct improprieties in prisons located in its county. Frazier never mentions the

BOCC at any other time in his complaint. Colorado statute § 17-26-126, C.R.S. 2001,

states that the BOCC has a duty to examine “the jail of its county, its sufficiency, and the

management thereof during each session of the board and to correct all irregularities and

improprieties therein found.” Terry v. Sullivan, 58 P.3d 1098, 1102 (Colo. Ct. App.

2002). However, because “the commissioners and sheriff are separately elected officials”

and “the Board does not exercise managerial control over either the sheriff or the

detention center and its staff,” a board of county commissioners does not have a duty to

ensure an inmate’s safety at the detention center. Id. Colorado state law does not hold

                                              -13-
the BOCC responsible for the acts of the sheriff or staff of a detention center in its county.

Because Frazier’s amended complaint fails to describe any policy or custom in place at

the WCCJ or implemented by the BOCC that violated his constitutional rights, the district

court properly dismissed his claim pursuant to Rule 12(b)(6).

       Finally, Frazier asserts that the district court erred in failing to address his motions

for injunctive relief. It is unclear if Frazier is appealing the district court’s failure to

address the injunctive relief he requested in his amended complaint or if he is referring to

his later motions for emergency injunctions. Neither claim has merit. If Frazier is

referring to the injunctive relief requested in his complaint, the district court has no duty

to address this issue because it dismissed his suit in its entirety.

       Additionally, the district court addressed Frazier’s later motions for emergency

injunctive relief and denied them. Because Frazier did not object to the magistrate

judge’s report and recommendation, which recommended a denial of these motions,

within the required ten-day time period, this issue is waived on appeal. Key Energy Res.,

Inc. v. Merrill, 230 F.3d 1197, 1199-1200 (10th Cir. 2000). Even if we were to consider

this issue, Frazier’s claim fails because his motions for injunctive relief did not implicate

any of the defendants in his suit, but alleged violations occurring at the Kit Carson

Correctional Center, which was not a party in his suit.




                                               -14-
      Based on the foregoing analysis, we AFFIRM the district court.2


                                                Entered for the Court


                                                Mary Beck Briscoe
                                                Circuit Judge




      2
         We GRANT Frazier’s motion to proceed on appeal without prepayment of costs
and fees and remind him that he is obligated to continue making partial payments until
the entire fee has been paid.

                                         -15-
