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

                             FOR THE TENTH CIRCUIT                             March 11, 2016
                         _________________________________
                                                                             Elisabeth A. Shumaker
                                                                                 Clerk of Court
DANIEL PAUL STARR,

      Plaintiff - Appellant,

v.                                                            No. 15-6219
                                                       (D.C. No. 5:13-CV-00700-F)
OFFICER KOBER, Correctional Officer;                          (W.D. Okla.)
SERGEANT BASHEAR; SERGEANT
HAUNG, grievance officer; H.A. RIOS, JR.,
Security Warden; R. WHITTEN, Executive
Warden; B. GIBSON, Ex-Warden;
LIEUTENANT JOHNS; C. BARNARD;
FNU RIVERA; FNU PLUME; POPPEL;
DAVE MILLER; C. CHESTER; H. RIOS;
B.R. GIBSON, Wardens and Ex-Wardens;
GEO GROUP, INC.; OKLAHOMA
DEPARTMENT OF CORRECTIONS;
GUILFOYLE, Director’s Designee;
DEBBIE MORTON, Director’s Designee;
MELINDA FLEENER, Medical HSA;
REID, Warden’s Secretary;
DIAMONDBACK CORRECTIONAL
FACILITY; CIMMARON
CORRECTIONAL FACILITY; GREAT
PLAINS CORRECTIONAL FACILITY;
LAWTON CORRECTIONAL FACILITY;
ROBERT PATTON, Director ODOC,

      Defendants - Appellees.
                      _________________________________

                               ORDER AND JUDGMENT*

       *
        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. This order and judgment is not binding precedent,
                                                                             Continued . . .
                         _________________________________

Before LUCERO, MATHESON, and BACHARACH, Circuit Judges.
                 _________________________________

       Daniel Paul Starr appeals from the district court’s dismissal of his complaint for

failure to state a claim and the dismissal of one of his claims as time-barred under 28

U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1). Exercising jurisdiction under 28 U.S.C.

§ 1291, we affirm.

                                   I. BACKGROUND

       In July 2013, Mr. Starr, an Oklahoma state prisoner, filed a pro se complaint

against Officer Kober and other officials at the Lawton Correctional Facility, where he

was being held.1 The complaint alleged, among other things, that Officer Kober slammed

a cell door against Mr. Starr’s shoulder, causing his other shoulder to hit the cell wall.

Mr. Starr sued under 42 U.S.C. § 1983, alleging 1) excessive force, 2) conspiracy, 3)

retaliation, and 4) other unspecified claims. He also alleged state law claims.

       On August 21, 2013, Mr. Starr filed a “Motion to Amend” his complaint, which

the district court construed as a supplement because it included allegations of facts that



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.
       1
         Although we liberally construe a pro se litigant’s filings, see Erickson v. Pardus,
551 U.S. 89, 94 (2007) (per curiam), we may not “assume the role of advocate,” Yang v.
Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008) (quotations omitted); see also United
States v. Pinson, 584 F.3d 972, 975 (10th Cir. 2009), and we do not “fashion . . .
arguments for him,” United States v. Fisher, 38 F.3d 1144, 1147 (10th Cir. 1994).



                                              -2-
happened after Mr. Starr filed his original complaint. See Fed. R. Civ. P. 15(d) (“On

motion and reasonable notice, the court may, on just terms, permit a party to serve a

supplemental pleading setting out any transaction, occurrence, or event that happened

after the date of the pleading to be supplemented.”).

       Mr. Starr subsequently filed several other documents, in which he attempted to

add new allegations. On December 10, 2013, the district court, acknowledging these

filings, determined Mr. Starr could amend his original complaint, but only if it

“contain[ed]—in one document—all claims and allegations Mr. Starr intends to pursue.”

Doc. 14 at 7-8 (emphasis in original). The district court admonished Mr. Starr that if he

failed to comply with this order by December 31, 2013, the district court would consider

only Mr. Starr’s original complaint and the supplement.

       On December 31, 2013, Mr. Starr filed an amended complaint, which the district

court struck for failure to comply with the December 10, 2013 order. The court reiterated

its instructions and allowed Mr. Starr until January 21, 2014, to file a complaint

complying with its order.

       On February 21, 2014, after Mr. Starr was granted additional time, he filed another

amended complaint, which was referred to a magistrate judge.

       On October 6, 2015, the magistrate judge recommended that Mr. Starr’s February

21, 2014 amended complaint be stricken for its failure to comply with 1) the district

court’s order requiring a single document, and 2) Federal Rule of Civil Procedure 8. He

then considered whether Mr. Starr’s original complaint and the August 21, 2013

supplement should be dismissed under 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1).


                                             -3-
       The magistrate judge construed Mr. Starr’s first claim for assault and battery to be

an Eighth Amendment excessive force claim and recommended it be dismissed as time-

barred under Oklahoma’s two-year statute of limitations and for failure to state a claim.

He noted that, although Mr. Starr dated the complaint July 5, 2013, it was filed in district

court on July 9, 2013, more than two years after July 6, 2011, the date of the alleged

incident. And Mr. Starr failed to “allege either that he used the prison’s legal mail system

or timely used the prison’s regular mail system,” ROA, Vol. 1 at 315, as required by

Price v. Philpot, 420 F.3d 1158 (10th Cir. 2005).

       The magistrate judge also recommended against equitable tolling of the limitations

deadline for Mr. Starr absent a proper showing in his objection to the report and

recommendation that tolling should be allowed.

       The magistrate judge further recommended dismissal of Mr. Starr’s conspiracy,

retaliation, and other unspecified federal claims because they were conclusory and failed

to allege specific facts.

       The district court adopted the magistrate judge’s report and recommendation in

full over Mr. Starr’s objection and entered judgment.2 The district court also dismissed

Mr. Starr’s pendent state claims, to the extent he raised any, without prejudice.


       2
        The district court adopted in full the magistrate judge’s recommendation to
1) dismiss Mr. Starr’s federal claims and 2) dismiss Mr. Starr’s pendent state claims
without prejudice. Because neither the magistrate judge nor the district court specified
whether the federal claims were dismissed with or without prejudice, we treat the
dismissal of those claims as with prejudice. See Cohen v. Longshore, 621 F.3d 1311,
1314 (10th Cir. 2010) (noting “the district court did not indicate in its order whether it
was dismissing Plaintiff’s complaint with or without prejudice, and thus the court’s
                                                                                Continued . . .

                                              -4-
                                      II. DISCUSSION

       On appeal, Mr. Starr contends his Eighth Amendment claim should not be

considered time-barred, the limitations period should have been equitably tolled, his

claims were adequately pled, and he was denied the right to amend his complaint.3

       We affirm the dismissal of Mr. Starr’s Eighth Amendment claim as time-barred

because the limitations period had run and the district court did not abuse its discretion in

declining to apply equitable tolling.4 We affirm the dismissal of Mr. Starr’s other federal

claims for failure to state a claim. We also affirm the striking of Mr. Starr’s amended

complaints because the court gave Mr. Starr ample opportunity and direction to comply

with Rule 8 and he failed to do so.

                                A. Standards of Review

       “We review de novo the district court’s decision to dismiss an IFP complaint

under 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim.” Kay v. Bemis, 500 F.3d

1214, 1217 (10th Cir. 2007). A district court may dismiss a pro se complaint for failure

to state a claim under 28 U.S.C. § 1915 when 1) “it is obvious that the plaintiff cannot

prevail on the facts he has alleged” and 2) “it would be futile to give him an opportunity


dismissal must be treated as a dismissal with prejudice”). The district court entered
judgment against Mr. Starr, showing the district court dismissed not only Mr. Starr’s
federal claims, but also his entire action.
       3
        Mr. Starr also raises arguments regarding discovery and damages, which we do
not address because they do not pertain to whether he properly stated a claim.
       4
        We need not consider whether Mr. Starr’s Eighth Amendment claim was
otherwise insufficient because the statute of limitations disposes of this claim.



                                             -5-
to amend.” Id. (quotation omitted). “In determining whether dismissal is proper, we

must accept the allegations of the complaint as true and we must construe those

allegations, and any reasonable inferences that might be drawn from them, in the light

most favorable to the plaintiff.” Trujillo v. Williams, 465 F.3d 1210, 1224 (10th Cir.

2006) (quotation omitted).

       “We apply the same standard of review for dismissals under § 1915(e)(2)(B)(ii)

that we employ for Federal Rule of Civil Procedure 12(b)(6) motions to dismiss for

failure to state a claim.” Kay, 500 F.3d at 1217. This includes the Twombly plausibility

standard. Id. at 1218 (applying Twombly to a § 1915 dismissal). We therefore “look to

the specific allegations in the complaint to determine whether they plausibly support a

legal claim for relief,” Alvarado v. KOB–TV, L.L.C., No. 06–2001, 493 F.3d 1210, 1215

(10th Cir.2007), and consider adequate only those claims that “raise a right to relief

above the speculative level,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

       Under this standard, “[i]f the allegations [in the complaint] show that relief is

barred by the applicable statute of limitations, the complaint is subject to dismissal for

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

       “We review the district court’s refusal to apply equitable tolling for an abuse of

discretion.” Braxton v. Zavaras, 614 F.3d 1156, 1159 (10th Cir. 2010) (quotation

omitted).

       We also review for abuse of discretion the district court’s decision to strike Mr.

Starr’s amended complaints. See Gripe v. City of Enid, 312 F.3d 1184, 1188 (10th Cir.




                                              -6-
2002) (“We review for an abuse of discretion the district court’s decision to impose the

sanction of dismissal for failure to follow court orders and rules.”).

1. Eighth Amendment Claim

       We affirm the district court’s dismissal of Mr. Starr’s claim as time-barred

because 1) he has not made the necessary showing of timeliness to invoke the prison

mailbox rule, and 2) he has not shown the district court abused its discretion in declining

to apply equitable tolling.

       a. Statute of Limitations and the Prison Mailbox Rule

       The district court accepted the magistrate judge’s recommendation to dismiss the

Eighth Amendment claim. One of the bases on which it did so is that Mr. Starr failed to

file his complaint within the statute of limitations.

       “A complaint may be dismissed sua sponte under § 1915 based on an affirmative

defense—such as statute of limitations—only when the defense is obvious from the face

of the complaint and no further factual record is required to be developed.” Fogle v.

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

       Oklahoma law establishes the relevant two-year statute of limitations for Mr.

Starr’s excessive force claim. See Beck v. City of Muskogee Police Dep’t, 195 F.3d 553,

557 (10th Cir. 1999) (“State statutes of limitations applicable to general personal injury

claims supply the limitations periods for § 1983 claims.”); Okla. Stat. tit. 12, § 95(A)(3)

(two-year statute of limitations). The door-slamming incident with Officer Kober

occurred on July 6, 2011. Mr. Starr dated his complaint July 5, 2013, but it was filed in




                                              -7-
district court on July 9, 2013. Mr. Starr argues the complaint was timely filed under the

prison mailbox rule.

       Under the prison mailbox rule “an inmate who places a federal civil rights

complaint in the prison’s internal mail system will be treated as having ‘filed’ that

complaint on the date it is given to prison authorities for mailing to the court.” Price, 420

F.3d at 1165. A prisoner can establish timely submission of legal filings to a prison

official under the mailbox rule by “either (1) alleging and proving that he or she made

timely use of the prison’s legal mail system if a satisfactory system is available, or (2) if a

legal system is not available, then by timely use of the prison’s regular mail system in

combination with a notarized statement or a declaration under penalty of perjury of the

date on which the documents were given to prison authorities and attesting that postage

was prepaid.” Id. at 1166.

       When a prisoner fails to make this showing, and the district court receives his

complaint after the statute of limitations has expired, his claims are subject to dismissal.

See id. at 1166; Sweets v. Martin, 625 F. App’x 362, 363-64 (10th Cir. 2015)

(unpublished).5 But before dismissing, courts typically give prisoners notice of the

timeliness issue and an opportunity to provide the necessary showing. See Price, 420

F.3d at 1166 (“[O]nce the timeliness of Price’s complaint became an issue, Price failed to


       5
        Although not precedential, we find the reasoning of this and other unpublished
opinions cited here to be instructive. See 10th Cir. R. 32.1 (“Unpublished decisions are
not precedential, but may be cited for their persuasive value.”); see also Fed. R. App. P.
32.1.



                                              -8-
document his use of the legal mail system before the district court reached its decision on

the merits.”); Sweets, 625 F. App’x at 363 (before dismissing appeal as untimely, “[w]e

alerted Mr. Sweets to the timeliness issue and directed him to explain how we could treat

the appeal as timely”); United States v. Spence, 625 F. App’x 871, 874 (10th Cir. 2015)

(unpublished) (remanding the defendant’s 28 U.S.C. § 2255 motion to allow him to show

he complied with the requirements of the mailbox rule because we could not “say that

[the] [d]efendant had fair notice of that requirement”).

       Mr. Starr received such notice here. After the magistrate judge concluded Mr.

Starr failed to “allege either that he used the prison’s legal mail system or timely used the

prison’s regular mail system” and recommended dismissal of his Eighth Amendment

claim as time-barred, Mr. Starr was on notice that the timeliness of his complaint was at

issue. ROA, Vol. 1 at 315. But in his objection to the magistrate judge’s report and

recommendation, Mr. Starr failed to provide any factual showing or even argue that his

complaint was timely filed. He offers no explanation or justification for this failure in his

appellate brief.

       Because it was “obvious from the face of the complaint” that his Eighth

Amendment claim was time-barred and “no further factual record [wa]s required to be

developed” by the district court, Fogle, 435 F.3d at 1258 (quotation omitted), the district

court properly concluded that Mr. Starr had not satisfied the statute of limitations.

       b. Equitable Tolling

       On appeal, Mr. Starr contends the district court should have allowed his claim to

proceed under the doctrine of equitable tolling.


                                             -9-
       In his complaint, Mr. Starr alleged interference with his ability to pursue remedies

through the prison grievance system. The magistrate judge construed this allegation to be

an argument that the statute of limitations should be tolled to allow Mr. Starr to exhaust

his administrative remedies. But Mr. Starr exhausted his administrative remedies in

2011, long before the limitations period had run.

       In such circumstances, equitable tolling is typically not available absent a showing

of diligence after the administrative remedies were exhausted. See Braxton, 614 F.3d at

1161-63 (10th Cir. 2010); Rosales v. Ortiz, 325 F. App’x 695, 700 (10th Cir. 2009)

(“[T]he two-year limitations period had not run on Mr. Rosales’ claims when they were

administratively exhausted. There is no equitable or legal reason to search for a way to

make something which was already available even more so.”).

       The magistrate judge allowed Mr. Starr to “describe[] with specificity why

equitable tolling should apply” in his objection to the report and recommendation. ROA,

Vol. 1 at 318. But in his objection, Mr. Starr provided only conclusory statements that he

was denied access to the prison law library and had disabilities, without explaining why

he was late in filing his complaint. On appeal, he makes the same conclusory allegations

without explaining why his complaint was late.

       The district court did not abuse its discretion in declining to toll the limitations

period.

                                       *    *      *     *

       The district court properly dismissed Mr. Starr’s Eighth Amendment excessive

force claim as time-barred.


                                                - 10 -
2. Mr. Starr’s Other Claims

       After carefully reviewing Mr. Starr’s complaint, we affirm the dismissal of Mr.

Starr’s conspiracy, retaliation, and other claims for substantially the same reasons stated

by the magistrate judge and the district court: these claims are conclusory and fail to

allege specific injury. See Tonkovich v. Kan. Bd. of Regents, 159 F.3d 504, 533 (10th

Cir. 1998) (“Conclusory allegations of conspiracy are insufficient to state a valid § 1983

claim.” (quotation omitted)); Whitney v. State of N.M., 113 F.3d 1170, 1173-74 (10th Cir.

1997) (“This court . . . will not supply additional factual allegations to round out a

plaintiff’s complaint or construct a legal theory on a plaintiff’s behalf.”).

       Further, without a viable federal claim, the district court properly dismissed Mr.

Starr’s state claims without prejudice. See Brooks v. Gaenzle, 614 F.3d 1213, 1229 (10th

Cir. 2010) (stating “if federal claims are dismissed before trial, leaving only issues of

state law, the federal court should decline the exercise of jurisdiction by dismissing the

case without prejudice” (quotations and alterations omitted)).

3. Right to Amend

       Mr. Starr finally argues he was denied an adequate opportunity to amend his

complaint.

       The court gave Mr. Starr two opportunities to file an amended complaint that

complied with Rule 8 and that “contain[ed]—in one document—all claims and

allegations Mr. Starr intends to pursue.” Doc. 14 at 7 (emphasis in original). Mr. Starr

failed to do so. The district court did not abuse its discretion in striking the amended

complaints and dismissing the original complaint and supplement with prejudice.


                                              - 11 -
                                  III. CONCLUSION

       We affirm. We deny Mr. Starr’s request to proceed in forma pauperis; he is

therefore responsible for immediate payment of the unpaid balance of his appellate filing

fee.


                                            ENTERED FOR THE COURT,



                                            Scott M. Matheson, Jr.
                                            Circuit Judge




                                           - 12 -
