                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                           JAN 27 1997
                             FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    DAVID L. WOODWARD,

                Plaintiff-Appellant,

    v.                                                   No. 96-3202
                                                    (D.C. No. 93-CV-3228)
    SEDGWICK COUNTY JAIL                                   (D. Kan.)
    ADMINISTRATOR MITCHELL
    PAIGE; MELISSA DAY; MIKE
    HILL,

                Defendants-Appellees.




                             ORDER AND JUDGMENT *



Before TACHA, EBEL, and BRISCOE, 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      This order and judgment is not binding precedent, except under the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.
this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.

      Plaintiff-appellant David L. Woodward appeals the district court’s

dismissal of his civil rights action, brought pursuant to 42 U.S.C. § 1983.

Because plaintiff’s claims are precluded by the Supreme Court’s opinion in Heck

v. Humphrey, 512 U.S. 477, 114 S. Ct. 2364 (1994), and by the statute of

limitations, we affirm.

      On May 23, 1991, plaintiff attempted to commit suicide after being

identified as a suspect in a sexual molestation. While hospitalized, plaintiff made

inculpatory statements during police questioning, and his wife consented to a

search of their home which disclosed incriminating evidence. On May 25, 1991,

plaintiff was arrested and placed in an infirmary cell under suicide watch.

Between this date and June 5, 1991, plaintiff was handcuffed to the bed, clothed

only in a paper gown under cold conditions. Plaintiff made several inculpatory

statements during this time. On May 27, 1991, he was given a blanket and his

dentures. After June 5, 1991, plaintiff was taken off suicide watch, but remained

under observation in administrative segregation. He was permitted standard issue

clothing, bedding, a daily shower, exercise, and standard commissary and

visitation privileges.




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      On May 29, 1991, a public defender was appointed to represent plaintiff,

and on September 6, 1991, plaintiff pled guilty to six felony counts, including

kidnapping, sexual exploitation of a child, rape, and felony murder. Plaintiff is

currently incarcerated in a state correctional facility. His convictions have not

been reversed.

      On June 11, 1993, plaintiff filed this civil rights action against the

Sedgwick County Jail Administrator, the Sedgwick County Sheriff, and his former

attorney, alleging that defendants (1) conspired to deprive him of his Sixth

Amendment right to effective assistance of counsel; (2) conspired to coerce his

confessions and guilty pleas in violation of the Fifth Amendment; (3) illegally

searched his residence and submitted tainted evidence at the preliminary hearing

in violation of the Fourth Amendment; and (4) subjected him to cruel and unusual

punishment by reason of jail conditions and deprivation of medical treatment in

violation of the Eighth Amendment. The district court dismissed the action on the

following grounds: (1) plaintiff’s claims that he was denied his right to effective

assistance of counsel and that his confessions and guilty plea were coerced were

barred by Heck, 114 S. Ct. at 2372-73; and (2) plaintiff’s claims of illegal search

and cruel and unusual punishment were barred by the statute of limitations. This

appeal followed.




                                         -3-
      We review the dismissal of a complaint de novo, accepting well-pleaded

allegations as true and construing them in the light most favorable to plaintiff.

Fuller v. Norton, 86 F.3d 1016, 1020 (10th Cir. 1996). Where a complaint shows

on its face that the applicable statute of limitations has expired, dismissal for

failure to state a claim is appropriate. Aldrich v. McCulloch Properties, Inc.,

627 F.2d 1036, 1041 n.4 (10th Cir. 1980).

      We conclude the district court properly dismissed plaintiff’s damages

claims premised on the deprivation of counsel and the use of coerced confessions

and a coerced guilty plea, because such claims directly challenged the validity of

his convictions. In Heck v. Humphrey, the Supreme Court held that

      [I]n order to recover damages for allegedly unconstitutional
      conviction or imprisonment, or for other harm caused by actions
      whose unlawfulness would render a conviction or sentence invalid, a
      § 1983 plaintiff must prove that the conviction or sentence has been
      reversed on direct appeal, expunged by executive order, declared
      invalid by a state tribunal authorized to make such determination, or
      called into question by a federal court's issuance of a writ of habeas
      corpus, 28 U.S.C. § 2254. A claim for damages bearing that
      relationship to a conviction or sentence that has not been so
      invalidated is not cognizable under § 1983.

114 S. Ct. at 2372 (footnote omitted).

      The only injury identified by plaintiff is the fact of his convictions and

incarceration. To establish that he is entitled to compensation for this injury,

plaintiff necessarily must show that the convictions and incarceration are

unlawful, based on the deprivation of effective assistance of counsel and the use

                                          -4-
of coerced confessions and a coerced plea. This is exactly the situation addressed

by Heck, in which the Court held that such claims are not cognizable unless the

underlying convictions have been reversed, expunged, declared invalid, or called

into question by issuance of a writ of habeas corpus. The fact that plaintiff is

now procedurally barred from raising these challenges to his convictions in a

habeas corpus petition does not change this result, because the focus of our

inquiry is on whether plaintiff has suffered a compensable injury, and not whether

plaintiff is foreclosed from any other avenue of challenging his convictions. 1

      The district court also acted correctly in dismissing plaintiff’s cruel and

unusual punishment claim and his search and seizure claim based on the statute of

limitations. As 42 U.S.C. § 1983 does not contain a statute of limitations, we

look to the underlying state’s statute of limitations governing personal injury

claims. See Hardin v. Straub, 490 U.S. 536, 538, 540 (1989); Hamilton v. City of

Overland Park, 730 F.2d 613, 614 (10th Cir. 1984) (applying Kansas personal

injury limitation). In Kansas, a personal injury action must be brought within two

years after a cause of action accrues. Kan. Stat. Ann. § 60-513(a)(4) & (b). A

civil rights action accrues when the “facts that would support a cause of action


1
       Plaintiff appears to argue that, in regard to his allegedly coerced
confessions, proof of a constitutional violation will not render his convictions
invalid because his convictions are based on a guilty plea. Although this may be
true, plaintiff has not alleged any damage resulting from the allegedly coerced
confessions other than his convictions and incarceration.

                                         -5-
are or should be apparent.” Fratus v. DeLand, 49 F.3d 673, 675 (10th Cir. 1995)

(quotations omitted).

      Plaintiff’s cruel and unusual punishment claim rests on his treatment while

under suicide watch at the Sedgwick County Jail. This treatment was readily

apparent to plaintiff when it occurred. The record shows that plaintiff was taken

off suicide watch on June 5, 1991, and that, although he was still under

observation, he was given standard prisoner clothing and privileges on that date.

Exhibit 6 to Martinez Report, p.2. Although plaintiff alleges in his affidavit that

he was subjected to cruel and unusual conditions “until approximately June 20,"

R. I, doc. 2, he does not allege any facts to support this claim. Because plaintiff

was last subjected to the complained of conditions on June 5, 1991, his lawsuit

brought on June 11, 1993, fell outside the limitations period. The fact that

plaintiff may not have discovered the legal basis for his claim until later did not

extend the time in which he was required to bring his action. See Richards v.

Mileski, 662 F.2d 65, 71 n.10 (D.C. Cir. 1981) (holding “mere ignorance of the

law does not ordinarily toll the statute of limitations”); see also United States v.

Kubrick, 444 U.S. 111, 123-24 (1979) (holding that medical malpractice accrued

upon knowledge of facts, regardless of whether plaintiff knew legal rights had

been invaded).




                                          -6-
      Similarly, plaintiff’s search and seizure claim accrued when it occurred on

May 27, 1991, or at the latest, when he learned of the search within the next few

days. See Johnson v. Johnson County Comm’n Bd., 925 F.2d 1299, 1301 (10th

Cir. 1991) (holding that “[c]laims arising out of police actions toward a criminal

suspect, such as arrest, interrogation, or search and seizure, are presumed to have

accrued when the actions actually occur” unless plaintiff shows why he did not

know of the alleged injury when the actions occurred). His argument that he did

not know of the damage until the illegally seized evidence was used at the

preliminary hearing renders his claim one for damages resulting from his

conviction, which, as explained above, is precluded by Heck.

      Finally, plaintiff’s claim that the statute of limitations was tolled while he

was incarcerated is without merit. State limitations statutes control whether a

plaintiff’s incarceration tolls the time to bring a civil rights action. Hardin, 490

U.S. at 539, 543. Here, section 60-515(a) of the Kansas Statutes specifically

states that the statute of limitations is not tolled for a prisoner who has access to

the court for purposes of bringing an action. Plaintiff has not alleged that he was

denied access to the court during the limitations period. Therefore, his

incarceration did not toll the statute of limitations.




                                           -7-
      Plaintiff’s motion for leave to proceed in forma pauperis is GRANTED.

The judgment of the United States District Court for the District of Kansas is

AFFIRMED. The mandate shall issue forthwith.



                                                    Entered for the Court



                                                    David M. Ebel
                                                    Circuit Judge




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