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

                            FOR THE TENTH CIRCUIT                            January 29, 2019
                        _________________________________
                                                                           Elisabeth A. Shumaker
                                                                               Clerk of Court
 WILLIAM D. JENKINS, JR.; TOBIE
 JENKINS,

       Plaintiffs - Appellants,

 v.                                                           No. 18-1216
                                                     (D.C. No. 1:17-CV-02761-STV)
 COREY CHANCE; MICHAEL                                          (D. Colo.)
 HEIDINGER; ATTILA DENES;
 NICHOLAS ARNONE; DOUGLAS
 COUNTY SHERIFF’S OFFICE,

       Defendants - Appellees.
                      _________________________________

                            ORDER AND JUDGMENT*
                        _________________________________

Before McHUGH, BALDOCK, and O’BRIEN, Circuit Judges.
                  _________________________________

      Williams D. Jenkins, Jr. and Tobie Jenkins brought a pro se civil action under

42 U.S.C. § 1983 arising out of the death of their twenty-three-year-old son, Jayson.

They alleged one of the defendants fired a taser at Jayson, which caused Jayson to

pull the trigger of a rifle he was pointing at his head, resulting in Jayson’s death.



      *
        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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
Defendants moved to dismiss under Federal Rule of Civil Procedure 12(b)(6). The

district court1 dismissed the complaint because it was time-barred by the applicable

statute of limitations. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

                                I. BACKGROUND

A.    Factual background2

       In the early morning hours of February 3, 2015, Jayson discussed suicide with

a friend before traveling to a nearby park in Highlands Ranch, Colorado, where he sat

in a tree grove. While there, he fired a pistol into the ground. Defendants Corey

Chance, Michael Heidinger, Attila Denes, and Nicholas Arnone, deputies with the

Douglas County Sheriff’s Department, responded to a report of shots fired. Deputy

Chance found Jayson sitting with a rifle between his legs and talking to his mother on

the telephone. Deputy Chance approached Jayson with his gun drawn and ordered

Jayson to put the rifle down. Jayson asked Deputy Chance to move back, explaining

that he was trying to talk to his mother. Deputy Chance told Jayson he could talk to

his mother shortly and suggested Jayson could first talk to him. According to Deputy

Chance, Jayson at one point said he was not going to shoot Deputy Chance or point

the rifle toward him, so Deputy Chance switched from his gun to his Taser.


      1
       With the consent of the parties, this case was assigned for decision to
Magistrate Judge Scott T. Varholak, as permitted by 28 U.S.C. § 636(c)(1).
      2
        Because this appeal involves a Rule 12(b)(6) dismissal, we draw the facts
from the allegations in the complaint and exhibits submitted with it. See Smith v.
United States, 561 F.3d 1090, 1098 (10th Cir. 2009) (“In evaluating a Rule 12(b)(6)
motion to dismiss, courts may consider not only the complaint itself, but also
attached exhibits . . . .”).
                                          2
      At least once during this encounter, Jayson placed the rifle’s muzzle in or near

his mouth with his thumb on the trigger. Despite this, the complaint alleges, Deputy

Chance never meaningfully attempted to deescalate the situation or radio that

defendants were dealing with a potential suicide; he instead continued to pressure

Jayson. While Jayson’s thumb was on the trigger and the muzzle was near his

mouth, Deputy Chance fired his Taser, the prongs of which struck Jayson’s leg and

shoulder. The rifle and Taser went off “basically at the same time.” Doc. 5-1 at ¶ u.3

Jayson died at the scene.

      The next day, forensic pathology consultant Dr. Michael Burson performed an

autopsy and issued a report. In the report, Dr. Burson noted Jayson’s alleged history

of “suicidal ideations and attempts” and a “thermal injury” on his leg, but he

concluded the manner of death was suicide and listed the cause of death as a

“self-inflicted gunshot wound of the head.” Doc. 5-16, subfolder 16-ATT-FR1 1st

Inv Rqst-Report, 16-ATT-FR1-2(B), AUTOPSY REPORT, at 4, 5, 7.4 On



      3
         The Jenkinses submitted numerous exhibits with their complaint in digital
form on a thumb drive, which was assigned docket number 5. The digital files are
organized in folders numbered 01 through 23 and another called “MISC,” some of
which have subfolders. Where the top-level folder contains only one document in
.pdf format, we identify the document by referring to the docket number (5) followed
by the folder number (omitting the zero for folders 1–9); e.g., “Doc. 5-1” refers to the
single .pdf file in folder 1. Folder 1 contains an identical document in both .pdf and
Microsoft Word formats; we cite to the .pdf version. Where a folder contains
subfolders or two or more documents, we add additional identifying information
derived from the documents or subfolders themselves.
      4
         We cite to the .pdf page numbers of this document, which presents the pages
of the report out of order.
                                           3
February 19, 2015, the Douglas County Coroner completed a report reaching the

same conclusions about the cause and manner of death.

      On October 21, 2015, the Jenkinses submitted a “Request for Further

Investigation and Information” to the Coroner and Dr. Burson. Id., 16-ATT-FR1-1

REQUEST FOR FURTHER INVESTIGATION, at 1 (Request) (some capitalization

omitted). Among other things, they asked the Coroner to reopen the investigation

and both the Coroner and Dr. Burson to amend the cause of death “if there is doubt as

to whether or not the Taser X2 had a part in the firing of the rifle.” Id. at 22 (some

capitalization omitted). They also asked for reconsideration of references to Jayson’s

suicidal history, claiming there was no evidence of such a history. The Jenkinses

supported their Request with extensive evidence, some of which they quoted at

length, including the Taser’s product manual and video-recorded interviews of all

four individual defendants. On February 3, 2016, the Jenkinses filed an Addendum

to the Request.

      On some unknown date in 2016, Dr. Burson issued an amended autopsy report,

retaining his conclusion that the cause of death was a self-inflicted gunshot wound to

the head but removing the references to Jayson’s suicidal history and changing the

manner of death from suicide to “undetermined.” Doc. 5-4-ATT-AR AUTOPSY

REPORT at 2 (Amended Autopsy Report). Dr. Burson opined that “there remain

questions as to the precise timing of events which [led] up to the firing of the

weapon,” including whether use of the Taser “contributed to the firing of the

weapon.” Id. Dr. Burson deferred the final determination of the manner of death to

                                           4
the Coroner. The Jenkinses did not receive the Amended Autopsy Report until

January 10, 2017.

      Meanwhile, on February 9, 2016, after considering the Jenkinses’ evidence in

detail, the Coroner concluded the manner of death remained suicide. She noted that,

although the Taser may have contacted Jayson’s leg, she could not determine the

probability that it did, and she suggested the Taser did not make complete contact

because that would have precluded reflex ability, rendering Jayson unable to pull the

trigger. See Doc. 5-6-ATT-CM Coroner’s Memo P-1 through P-3.

B.    District court proceedings

      The Jenkinses filed their § 1983 action on November 17, 2017, asserting

violations of the Second, Fourth, Fifth, and Eighth Amendments. Defendants filed a

Rule 12(b)(6) motion to dismiss based on several grounds, including statute of

limitations. The magistrate judge granted the motion, reasoning that the applicable

two-year statute of limitations began to run no later than October 21, 2015, when the

Jenkinses submitted the Request. The Jenkinses’ cause of action accrued at that

point, he said, because the Request made clear they “knew of the facts necessary to

sue and recover damages arising out of Jayson’s death.” R. at 84. The magistrate

judge rejected the argument that the claims did not accrue until the Jenkinses

received Dr. Burson’s Amended Autopsy Report on January 10, 2017, because the

report “merely gave potential support to [their] previously-held belief that Jayson did

not commit suicide” and did “not change the fact that [their] theory of the cause of

Jayson’s death was well known to them by at least October 21, 2015.” Id. at 85.

                                           5
Because the Jenkinses filed their complaint more than two years later, their claims

were time-barred.

       The magistrate judge also rejected the Jenkinses’ reliance on equitable tolling,

concluding they had not shown any of the defendants “wrongfully impeded them

from filing [their] lawsuit or that truly extraordinary circumstances prevented them

from filing their claims despite diligent efforts.” Id. at 89. The Amended Autopsy

Report, he said, “at most leant minimal support to Plaintiffs’ already-held belief that

Jayson did not commit suicide,” id. at 88, and he concluded there was no evidence

the Coroner, who was not a defendant in the case, was part of a cover up.

       The magistrate judge did not reach the other grounds for dismissal defendants

advanced in their motion. This appeal followed.

                                  II. DISCUSSION

A.     Standard of review

       “We review de novo the dismissal of an action under Rule 12(b)(6) based on

the statute of limitations.” Braxton v. Zavaras, 614 F.3d 1156, 1159 (10th Cir.

2010). Under this standard, we “accept as true all well-pleaded facts, as

distinguished from conclusory allegations, and view those facts in the light most

favorable to the nonmoving party.” Maher v. Durango Metals, Inc., 144 F.3d 1302,

1304 (10th Cir. 1998). “We review the district court’s refusal to apply equitable

tolling for an abuse of discretion.” Braxton, 614 F.3d at 1159 (internal quotation

marks omitted). Because the Jenkinses are proceeding pro se, we liberally construe

their filings. See id.

                                           6
B.     Analysis

       1. Statute of limitations

       “The Reconstruction Civil Rights Acts do not contain a specific statute of

limitations governing § 1983 actions . . . .” Wilson v. Garcia, 471 U.S. 261, 266

(1985) (superseded by 28 U.S.C. § 1658 on unrelated grounds). “Because ‘§ 1983

claims are best characterized as personal injury actions,’” the Supreme Court has

“held that a [forum] State’s personal injury statute of limitations should be applied to

all § 1983 claims.” Owens v. Okure, 488 U.S. 235, 240–41 (1989) (quoting Wilson,

471 U.S. at 280). “[W]here state law provides multiple statutes of limitations for

personal injury actions, courts considering § 1983 claims should borrow the general

or residual statute for personal injury actions.” Id. at 249–50.

       “Colorado has multiple personal injury statutes of limitations. In Colorado,

the residual statute of limitations for all actions, including personal injury actions,

provides a two-year limitations period.” Blake v. Dickason, 997 F.2d 749, 750

(10th Cir. 1993) (citations omitted); see Colo. Rev. Stat. § 13-80-102(1)(i) (providing

a two-year statute of limitations for “[a]ll other actions of every kind for which no

other period of limitation is provided”). We apply that limitations period to § 1983

claims. See Blake, 997 F.2d at 750–51 (finding § 1983 claims barred under

§ 13-80-102(1)(i); see also Fogle v. Pierson, 435 F.3d 1252, 1258 (10th Cir. 2006)

(“We have made clear that the statute of limitations for § 1983 actions brought in

Colorado is two years from the time the cause of action accrued.”).



                                            7
      Despite this long-held line of precedent, the Jenkinses raise several challenges

to the application of a two-year limitations period to their claims: (1) it violates

equal protection because the residual limitations period is longer in other states;

(2) the states should not be able to restrict when § 1983 claims can be filed because

states are the very entities § 1983 is supposed to control; (3) federal courts lack

power to dismiss due solely to an arbitrary state limitations period; (4) § 1983

litigants have no notice that a state limitations period applies; and (5) Colorado’s

three-year statute of limitations “for fraud, misrepresentation, concealment, or

deceit,” Colo. Rev. Stat. § 13-80-101(1)(c), should apply because in their complaint

the Jenkinses referred to misrepresentation, concealment, and deceit. But they raised

none of these arguments in the district court, and none involves subject-matter

jurisdiction or sovereign immunity. Nor have they advanced any argument in this

court for plain-error review. Accordingly, they have failed to preserve these

challenges for our review. See Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1131

(10th Cir. 2011) (“[T]he failure to argue for plain error and its application on appeal

. . . surely marks the end of the road for an argument for reversal not first presented

to the district court.”); Daigle v. Shell Oil Co., 972 F.2d 1527, 1539 (10th Cir. 1992)

(“As a general rule we refuse to consider arguments raised for the first time on appeal

unless sovereign immunity or jurisdiction is in question.”).

      2. Accrual

      Although state law governs the length of the limitations period for filing a

§ 1983 claim, federal law determines the accrual of a federal cause of action.

                                            8
Alexander v. Oklahoma, 382 F.3d 1206, 1215 (10th Cir. 2004). The Jenkinses’

reliance on Colorado accrual authority is, therefore, inapposite.

       We agree with the magistrate judge: the Jenkinses’ § 1983 claims accrued no

later than October 21, 2015, when they submitted the Request for further

investigation to Dr. Burson and the Coroner. “[U]nder the federal discovery rule,

claims accrue and the statute of limitations begins to run when the plaintiff knows or

has reason to know of the existence and cause of the injury which is the basis of his

action.” Alexander, 382 F.3d at 1215 (brackets and internal quotation marks

omitted). “In particular, a civil rights action accrues when facts that would support a

cause of action are or should be apparent.” Id. (brackets and internal quotation marks

omitted). But “a plaintiff need not have conclusive evidence of the cause of an injury

in order to trigger the statute of limitations.” Id. at 1216. We instead “focus on

whether the plaintiff knew of facts that would put a reasonable person on notice that

wrongful conduct caused the harm.” Id.

       The Request indisputably shows the Jenkinses had sufficient factual

knowledge to file § 1983 claims against all five defendants no later than October 21,

2015. In the Request, they cited scholarly works explaining that electrical burns

result in skin injury at the “points of contact to the electrical source,” and that

exposure to a temperature of “65℃ for two seconds” is “sufficient to produce burns.”

Request at 6–7 (emphasis and internal quotation marks omitted). They asserted

“[t]he Taser prongs undoubtedly arched [sic] for the full five seconds preprogrammed

into the Taser-X-2 as recalled by Deputy Arnone and Deputy Heidinger on the

                                             9
interview videos.” Id. at 6 (some capitalization omitted). They then posited the

thermal burn to Jayson’s leg could have occurred if a taser prong or the electricity

arcing from it to Jayson’s skin reached 65℃.

      Turning to the Taser manual, the Jenkinses noted the Taser Deputy Chance

used was capable of two shots and suggested that if it had no effect on Jayson as

Deputy Chance alleged, he would have fired a second shot. They also provided a

Taser log reflecting Deputy Chance’s deployment of the Taser’s second shot “each

and every time within a second of the first except on the day he deployed the Taser

on [Jayson.]” Id. at 21 (some capitalization omitted). They concluded that if Deputy

Chance had deployed the Taser while Jayson “had the rifle in his mouth and the rifle

fired, then there would be no need for the second set of prongs to be deployed,” firing

the Taser while Jayson had the gun in his mouth was “at a minimum reckless,” and

“such use of the Taser X2 would be in violation of the Douglas County Sheriff’s

Office[’s]” policies. Id. (some capitalization omitted). They asserted they were

“unclear” if Deputy Chance had “been trained in the use of the Taser X-2 per [the

manufacturer’s] instructions.” Id. at 8 (some capitalization omitted).

      The Jenkinses next quoted portions of the manual explaining the Taser X-2’s

electrical pulses “are designed to affect the sensory and motor functions of the

peripheral nervous system and cause involuntary muscle contractions,” id. at 8–9

(emphasis and internal quotation marks omitted), and are able “to cause involuntary

stimulation of both [the] sensory nerves and the motor nerves,” id. at 9 (emphasis and

internal quotation marks omitted). Significantly, they interpreted this functionality to

                                          10
mean “the Taser X2 could have inadvertently caused [Jayson] to push the trigger.”

Id. (emphasis added).

      The Jenkinses also discussed the manual’s explanation that “[e]lectricity must

be able to flow between the probes or the electrodes to deliver an electrical charge

and will generally follow the path of least resistance.” Id. at 9 (emphasis and internal

quotation marks omitted). They then claimed it was “undeniable that the electricity

flowed between the probes attached to [Jayson],” and “[t]he facts in this case indicate

that the path of least resistance was undoubtedly [Jayson’s] body.”

Id. (capitalization, emphasis, and internal quotation marks omitted). They further

quoted the manual’s statement that “[e]lectricity can arc through most clothing, and

even some bullet-resistant materials,” which they read as making “perfectly clear that

[Jayson’s] clothing was not an obstacle to the electricity being emitted from the

Taser” because Jayson was not wearing anything “bullet-resistant.” Id. (some

capitalization, emphasis, and internal quotation marks omitted).

      The Jenkinses then quoted from interview statements by Deputies Arnone,

Heidinger, and Chance that they heard the Taser arcing. They also cited one

Deputy’s statement that he saw the prongs make contact with Jayson’s leg and “the

shoulder area of the pretty thick puffy jacket the kid had on,” id. at 12; and Deputy

Chance’s statement that he “saw one good Taser probe in his leg the other one came

up and got him in the arm but must not have made contact [because of] . . . the baggy

clothes,” id. at 20 (emphasis and internal quotation marks omitted).



                                          11
      Regarding the timing of the Taser and rifle shots, they quoted Deputies Arnone

and Heidinger as saying the two shots were “kind of simultaneous,” id. at 15

(emphasis and internal quotation marks omitted), and “basically at the same time,”

id. at 17 (emphasis and internal quotation marks omitted).

      All of these observations, allegations, and assertions clearly demark the

critical tipping point: as of the date they filed their Request, October 21, 2015, the

Jenkinses “knew of facts that would put a reasonable person on notice that wrongful

conduct caused the harm.” Alexander, 382 F.3d at 1216. A complaint filed on

November 17, 2017, more than two years after their cause of action accrued, is barred

by Colo. Rev. Stat. § 13-80-102(1)(i)’s two-year statute of limitations.

      The Jenkinses, however, insist that their cause of action did not accrue until

February 3, 2016, when they allegedly completed their investigation and submitted

the Addendum to their Request, or until even later, when they finally received

Dr. Burson’s Amended Autopsy Report on January 10, 2017. But nothing in the

Addendum shows they had insufficient factual knowledge on October 21, 2015—it

generally reiterates what the Jenkinses asserted in their initial Request by reference to

a different document from the Taser manufacturer. See generally Doc. 5-17,

17-ATT-SR2 2nd Inv Rqst-Report. And in relevant part, the Amended Autopsy

Report simply changed the manner of death from “suicide” to “undetermined,”

leaving the final determination to the Coroner. Amended Autopsy Report at 2. That

“fact” was not necessary for the Jenkinses to file their complaint. See Alexander,

382 F.3d at 1216 (“[A] plaintiff need not have conclusive evidence of the cause of an

                                           12
injury in order to trigger the statute of limitations.”). In short, the Jenkinses’

arguments do not persuade us that their § 1983 cause of action accrued any later than

October 21, 2015.

       3. Equitable tolling

       State law governs equitable tolling in a § 1983 action. Id. at 1217. Under

Colorado law, “equitable tolling of a statute of limitations is limited to situations in

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

claim or truly extraordinary circumstances prevented the plaintiff from filing his or

her claim despite diligent efforts.” Brodeur v. Am. Home Assur. Co., 169 P.3d 139,

149 (Colo. 2007) (en banc) (internal quotation marks omitted). Neither condition

exists here. The Jenkinses argue that the Coroner maliciously withheld Dr. Burson’s

Amended Autopsy Report as part of a cover-up, but as we just concluded, nothing in

the Amended Autopsy Report was necessary for them to file suit. Any alleged

withholding, therefore, did not impede their ability to do so. The Jenkinses complain

“they are being prejudiced for exercising due diligence and for not engaging

[judicial] resources until [they] knew the Defendants’ actions or lack of actions

contributed [to] or caused [Jayson’s] death.” Aplt. Reply Br. at 5. We are

sympathetic to their effort to avoid filing a lawsuit until they were “fully convinced”

they had cause of action. Id. at 4 (emphasis omitted). But again, “conclusive

evidence of the cause of an injury” is not necessary to trigger a limitations period.

Alexander, 382 F.3d at 1216. We therefore see no abuse of discretion in the

magistrate judge’s refusal to apply equitable tolling.

                                            13
                          III. CONCLUSION

The judgment of the district court is affirmed.


                                     Entered for the Court


                                     Terrence L. O’Brien
                                     Circuit Judge




                                   14
