                                                                         FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                                                                   February 12, 2008
                    UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                                      Clerk of Court
                           FOR THE TENTH CIRCUIT


    DERRICK R. PARKHURST,

               Plaintiff-Appellant,

    v.                                                  No. 07-8030
                                                 (D.C. No. 06-CV-60-CAB)
    ROBERT LAMPERT, in his official                      (D. Wyo.)
    capacity; ROBERT LAMPERT;
    ROBERT ORTEGA; PATRICK
    ANDERSON; JUDITH UPHOFF;
    SCOTT ABBOTT; VANCE
    EVERETT, all in their individual
    capacities,

               Defendants-Appellees.


                            ORDER AND JUDGMENT *


Before KELLY, McKAY, and ANDERSON, 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not binding precedent, except under the doctrines of law of the case, res judicata,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. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      Derrick R. Parkhurst, a state prisoner proceeding pro se, appeals the district

court’s order dismissing his complaint under 42 U.S.C. § 1983 as time barred.

We have jurisdiction under 28 U.S.C. § 1291 and affirm.

      The parties are familiar with the facts. Mr. Parkhurst, an inmate at the

Wyoming State Penitentiary, claims that beginning no later than July, 2001, the

prison was overcrowded, and as such, the defendants violated his civil rights. His

federal court lawsuit was filed on March 9, 2006. The district court dismissed the

complaint as time barred under Wyoming’s statute of limitations.

      “Whether a court properly applied a statute of limitations and the date a

statute of limitations accrues under undisputed facts are questions of law we

review de novo.” Nelson v. State Farm Mut. Auto. Ins. Co., 419 F.3d 1117, 1119

(10th Cir. 2005). “State statutes of limitations applicable to general personal

injury claims supply the limitations periods for § 1983 claims[.]” Beck v. City of

Muskogee Police Dep’t, 195 F.3d 553, 557 (10th Cir. 1999). However, “federal

law governs the time of accrual of § 1983 claims[.]” Id. Wyoming’s state of

limitations for personal injury claims is four years, WYO. STAT. ANN.

§ 1-3-105(a)(iv)(C) (1977), and the cause of action accrued when Mr. Parkhurst

knew or should have known that his constitutional rights had allegedly been

violated. Beck, 195 F.3d at 557.

      According to the allegations in Mr. Parkhurst’s complaint, the

overcrowding (alleged violation) existed no later than July, 2001. However, he

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did not file suit until more than four years after July, 2001, and his suit therefore

is time barred. We also reject Mr. Parkhurst’s argument that Wyoming’s saving

statute applies for the simple reason, among others, that his “action [was not]

commenced in due time[.]” WYO. STAT. ANN. § 1-3-118 (1977). Similarly, he

cannot avoid the four-year statute of limitations under the theory of continuing

tort. Assuming the continuing violation doctrine applies to § 1983 claims, the

doctrine is triggered “by continual unlawful acts, not by continual ill effects from

the original violation.” Bergman v. United States, 751 F.2d 314, 317 (10th Cir.

1984) (quotation omitted). Because Mr. Parkhurst alleged the same ill effect from

the day the alleged overcrowding first existed, the doctrine does not apply.

      We have carefully examined the parties’ briefs, the record, and the district

court’s order in light of the governing law. We conclude that the court correctly

dismissed the complaint, and we affirm for substantially the same reasons as

those in the court’s order dated March 8, 2007. The judgment is AFFIRMED.

We GRANT Mr. Parkhurst’s motion to proceed without prepayment of the entire

filing fee and remind him of his continuing obligation to make partial payments

until the fee has been paid in its entirety.

                                                      Entered for the Court


                                                      Paul J. Kelly, Jr.
                                                      Circuit Judge




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