                                                                       F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                                                                         NOV 7 2000
                                             PATRICK FISHER
                 UNITED STATES COURT OF APPEALS   Clerk

                                 TENTH CIRCUIT


 KENNETH L. ARMBECK,

          Plaintiff-Appellant,
                                                         No. 00-1021
 v.
                                                    (D.C. No. 99-WM-712)
                                                          (Colorado)
 D. QUINONES, Sgt., #86-17;
 D. WILEY, Off., #94-02,

          Defendants-Appellees.



                          ORDER AND JUDGMENT *


Before SEYMOUR, Chief Judge, EBEL, and BRISCOE, Circuit Judges.


      Kenneth Armbeck, a pro se state prisoner, appeals the dismissal of this

action under 42 U.S.C. § 1983 against the Denver Police Department and two

Denver Police officers, in which he claimed the officers used excessive force

when arresting him. Because Mr. Armbeck is proceeding pro se, his pleadings

must be construed liberally and be read to state a valid claim if it is reasonably


      *
       After examining appellant’s brief and the 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) and 10th Cir. R.
34.1(G). The case is therefore submitted without oral argument. This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, or 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.
possible to do so. Hall v. Belmon, 935 F.2d 1106, 1110 (10th Cir. 1991).

Applying this standard, we reverse and remand for further proceedings.

      The district court adopted the recommendation of the magistrate judge that

the Police Department be dismissed because it was not a legal entity that could be

sued. At a subsequent scheduling conference regarding the remaining claims, the

magistrate judge allegedly told defense counsel that the lawsuit appeared barred

by the applicable statute of limitations. 1 The remaining defendants then filed an

amended answer raising the statute of limitations as an affirmative defense, and a

motion for judgment on the pleadings. Mr. Armbeck filed a response in which he

asserted he had been hospitalized and heavily medicated due to his injuries and

the limitation period should therefore be tolled. The magistrate judge

recommended that defendants’ motion for judgment on the pleadings be granted

on the ground the action was time-barred. Mr. Armbeck objected to the

recommendation, again asserting the right to equitable tolling.

      The district court reviewed the matter de novo, rejecting Mr. Armbeck’s

argument that the limitation period should be tolled due to the injuries he

sustained in the arrest underlying the lawsuit. The court also rejected Mr.

Armbeck’s contention that the magistrate judge showed favoritism to defendants

      1
         Because Mr. Armbeck was incarcerated at the time, the scheduling
conference was conducted by a video hearing and our record does not contain
either a video tape of the proceeding or a transcript. Although defendants point
out that our record therefore does not show the magistrate judge raised the statute
of limitations sua sponte, defendants do not deny he in fact did so.

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by raising the statute of limitations, concluding that because Mr. Armbeck was

proceeding in forma pauperis and the court could have addressed the issue sua

sponte, any prompting of the affirmative defense was not improper.

      Under the standard applicable to pro se litigants, we cannot affirm the

district court’s determination as a matter of law that Mr. Armbeck was not

entitled to the benefit of tolling. “Limitations periods in § 1983 suits are to be

determined by reference to the appropriate state statute of limitations and the

coordinate tolling rules.” Hardin v. Straub, 490 U.S. 536, 539 (1989) (internal

quotations omitted). It is undisputed that Mr. Armbeck’s suit was filed outside

the applicable limitation period. 2 However, Mr. Armbeck asserted below that

tolling was appropriate because defendants had inflicted head injuries which

rendered him unconscious, and that as a result he spent three days in a hospital

and three months in a jail infirmary, during which time he was heavily medicated.

      The district court determined that these allegations were insufficient to

raise a fact issue on tolling because Mr. Armbeck was hospitalized for only three

days and he knew the date on which his claims arose. The court also viewed Mr.

Armbeck’s allegations as asserting that his hospitalization and subsequent

incarceration merely prevented access to the legal resources needed to raise the

      2
        The relevant limitation period for this section 1983 claim is the two-year
Colorado period for personal injury actions. See Hunt v. Bennett, 17 F.3d 1263,
1265-66 (10th Cir. 1994). The incident underlying Mr. Armbeck’s claims took
place on January 8. 1997, and his lawsuit was filed no earlier than March 22,
1999, over two months after the expiration of the applicable period.

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claim, which was inadequate to invoke tolling. In so doing, the court resolved

fact issues contrary to Mr. Armbeck and failed to construe his pleadings liberally.

      We have held that “the district court may consider affirmative defenses sua

sponte only when the defense is obvious from the face of the complaint and [n]o

further factual record [is] required to be developed.” Fratus v. Deland, 49 F.3d

673, 674-75 (10th Cir. 1995) (internal quotations omitted). Colorado law, which

is applicable to the tolling issue here, see Hardin, 490 U.S. at 539, permits

equitable tolling “where the defendant’s wrongful conduct prevented the plaintiff

from asserting his or her claims in a timely manner.” Dean Witter Reynolds, Inc.

v. Hartman, 911 P.2d 1094, 1096 (Colo. 1996) (en banc) (citing Klamm Shell v.

Berg. 441 P.2d 10 (1968)); Garrett v. Arrowhead Improvement Ass’n, 826 P.2d

850, 853 (Colo. 1992) (en banc) (same). In Klamm Shell, the court held the

statute of limitations tolled when the very assault and battery of which the

plaintiff complained rendered her unable to bring a timely action.

      [W]e hold that equity contains within its purview overriding concepts
      which proclaim that a defendant on the basis of plain justice should
      not be allowed to rely on a statute of limitations, where his
      intentional tort has caused mental incapacity arising after the cause
      of action accrued but before the expiration of the period of
      limitation.

Klamm Shell, 441 P.2d at 12. Viewing the record most favorably to Mr.

Armbeck, fact issues exist as to whether defendants’ alleged wrongful conduct

prevented him from being able to timely assert his claims. Accordingly, whether



                                         -4-
he is entitled to equitable tolling under Colorado law is not obvious on the face of

the pleadings and cannot be decided without further development of the facts.

Consequently, we reverse and remand for further proceedings.

      We address briefly Mr. Armbeck’s remaining arguments. He complains

bitterly that the magistrate judge displayed favoritism by calling opposing

counsel’s attention to the statute of limitations. As the district court correctly

pointed out, a judge may in appropriate circumstances dismiss sua sponte a suit

brought in forma pauperis. See Fratus, 49 F.3d at 674-75. The magistrate

judge’s actions were therefore not improper.

      Mr. Armbeck also contends the court erred in dismissing the Denver Police

Department as a defendant without first allowing him to amend his complaint to

add the City and County of Denver as a defendant. Leave to amend is to be

“freely given,” Fed. R. Civ. P. 15(a), and “pro se litigants are to be given

reasonable opportunity to remedy the defects in their pleadings,” Hall, 935 F.2d at

1110 n. 3. Mr. Armbeck’s pleadings, construed liberally, alleged a claim which

could be asserted against the City and County of Denver. On remand, he should

be allowed to pursue a motion to amend to add the City and County as a

defendant.

      REVERSED and REMANDED for further proceedings.

                                        ENTERED FOR THE COURT
                                        Stephanie K. Seymour
                                        Chief Judge


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