                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                               NOV 1 1999
                                  TENTH CIRCUIT
                                                                           PATRICK FISHER
                                                                                   Clerk

 ERIC B. RUSSELL-EL,

               Plaintiff-Appellant,                          No. 99-1124
          v.                                            District of Colorado
 UNITED STATES OF AMERICA;                              (D.C. No. 98-D-941)
 UNITED STATES BUREAU OF
 PRISONS; LT. FLOWERS; LT.
 MARAGGA; MS. WILSON, Unit
 Manager; MR. PAYNE, Captain; MR.
 LEE, I.S.M.; MR. HINES, Captain;
 Correctional Officers 1-6 (Unknown),
 Medical P.A. (Unknown), Medical
 Doctor (Unknown); Lt. (Unknown);
 JAMES L. WHEATON, Lt.;
 KATHLEEN M. HAWK, Director.

               Defendants-Appellees.


                            ORDER AND JUDGMENT *


Before SEYMOUR, Chief Judge, and BALDOCK and HENRY, Circuit Judges.




      *
        This order and judgment is not binding precedent, except under the doctrines of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.
      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 cause is

therefore ordered submitted without oral argument.

      Mr. Russell-El initiated this action by filing pro se a complaint pursuant to

Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388

(1971), on April 29, 1998, which he amended on May 28, 1998. He sought money

damages, naming in his complaint several named and unnamed Bureau of Prisons

officials in Florence, Colorado, and Kathleen Hawk, the Director of the United

States Bureau of Prisons. The district court dismissed Mr. Russell-El’s

complaint, holding that the statute of limitations barred his claims. He filed a

timely notice of appeal, asserting that the district court erred as to his Bivens

claim. We review de novo the district court’s determination the claims are time-

barred by the statute of limitations. See Sterlin v. Biomune Systems, 154 F.3d

1191, 1194 (10th Cir. 1998).

      Pursuant to Bivens, Mr. Russell-El must allege that the defendants have

violated his rights under the Constitution and laws of the United States while they

acted under color of federal law. See Adickes v. S.H. Kress & Co., 398 U.S. 144,

150 (1970). Construing the pro se complaint liberally, as we must, see Haines v.

Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th


                                          -2-
Cir. 1991), Mr. Russell-El alleges that prison officials acting under color of

federal law violated his constitutional rights by subjecting him to excessive force,

by displaying deliberate indifference to his serious medical needs, see U.S. Const.

amend. VIII, and by denying him equal protection, see U.S. Const. amend. V, and

the free exercise of his religion, see U.S. Const. amend. I.

      Mr. Russell-El’s claims arose from a disturbance at the Federal Correction

Institution in Florence, Colorado. The district court summarized the allegations

as follows:

             Mr. Russell-El alleges that on October 26, 1995, a prison riot
      occurred on the compound while he was being held in segregation. He
      maintains that on October 29, 1995, he was transported to another
      prison where he was beaten by six unknown correctional officers and
      verbally abused with racial slurs because of his alleged involvement in
      the October 26 riot. He further maintains that an unknown doctor and
      an unknown physician’s assistant failed or refused to treat the injuries
      that he suffered when he was beaten.

             Mr. Russell-El assert that on November 6, 1995, he received an
      incident report charging him with attempting to riot and with inciting
      others to riot. He further asserts that the incident report was issued
      solely because of his race and religious beliefs. Mr. Russell-El
      contends that the incident report later was expunged by a disciplinary
      hearing officer who determined that the plaintiff could not have
      participated in the riot because he was in segregation when the riot
      occurred.

Rec. vol. I, doc. 30, at 2-3 (Dist. Ct. Order, filed Feb. 18, 1999) [hereinafter

“Order of Dismissal”].




                                          -3-
         Bivens actions, like civil rights actions asserted pursuant to 42 U.S.C. §

1983, are subject to the statute of limitations found in the general personal injury

statute of the state in which the action arose. See Industrial Constructors Corp. v.

United States Bureau of Reclamation, 15 F.3d 963, 968 (10th Cir. 1994).

Colorado provides for a two-year statute of limitations for such actions. See

Colo. Rev. Stat. § 13-80-102; Blake v. Dickason, 997 F.2d 749, 750 (10th Cir.

1993) (applying § 13-80-102 to § 1983 claim). Federal law determines when a

cause of action accrues. “The statute of imitations begins to run when the plaintiff

knows or has reason to know of the existence and cause of injury which is the

basis of his action.” Industrial Constructors Corp., 15 F.3d at 969. Here, the bulk

of Mr. Russell-El’s claims accrued in late October 1995, while a few accrued in

November and December of that year.

         Mr. Russell-El signed his complaint and motion seeking leave to proceed in

forma pauperis and mailed them on April 16, 1998. See Rec., doc. 3 at 6. Applying the

mailbox rule, see Houston v. Lack, 487 U.S. 266, 270 (1988) (holding that a pro se

prisoner’s notice of appeal is filed on the date it is deposited in the prison mail system

to be mailed to the court), the earliest date this action was commenced was April 16,

1998. Thus, his action is time-barred unless he can demonstrate a basis for tolling the

statute. See Aldrich v. McCulloch Properties, Inc., 627 F.2d 1036, 1041 n.4 (10th Cir.

1980).




                                             -4-
       Mr. Russell-El acknowledges that he filed this complaint more than two

years after the alleged violations, but contends that the statute of limitations was

tolled by a prior complaint, dismissed by the court without prejudice. See

Russell-El v. Correctional Officers (Unknown), Civ. No. 97-D-1087 (D. Colo.

July 23, 1997). The first complaint raised the same claims and was filed on May

7, 1997. See Order of Dismissal at 5. This case was dismissed for failure to

exhaust administrative remedies and for failure to supply the court with

documentation relating to Mr. Russell-El’s financial status. 1 ( This Circuit

subsequently held that administrative remedies need not be exhausted when a prisoner

brings a Bivens claim seeking only monetary damages. See Garrett v. Hawk, 127 F.3d

1263, 1267 (10th Cir. 1997) ).

       Like the matter of the statute of limitations, the issue of tolling is governed

by Colorado state law. See Hardin v. Straub, 490 U.S. 536, 539 (1989); Fratus v.

Deland, 49 F.3d 673, 675 (10th Cir. 1995). According to Colo. Rev. Stat. § 13-

80-111(1):

       [i]f an action is commenced within the period allowed by this article
       and is terminated because of lack of jurisdiction or improper venue, the
       plaintiff . . . may commence a new action upon the same cause of action


       1
        Mr. Russell-El argues that the district court erred when it dismissed his earlier
complaint. Although he could have    appealed that decision directly, he did not do so.
He may not now attack that final judgment collaterally in this proceeding. See Fed. R.
App. P. 4(a); Chico-Velez v. Roche Products, Inc., 139 F.3d 56, 59 (1st Cir. 1998)
(citing Retail Clerks Local No. 1564 v. Your Food Stores of Santa Fe, Inc., 225 F.2d
659, 663 (10th Cir. 1955)).

                                            -5-
      within ninety days after the termination of the original action or within
      the period otherwise allowed by this article, whichever is later . . . .

In applying this statute to the facts of this case, there is some question as to when

the ninety day grace period starts to run. However, under either alternative

starting date, Mr. Russell-El’s Bivens action is untimely.

      In particular, if the ninety day period started to run on July 23, 1997 (the

date that the district court dismissed the prior action without prejudice), then the

ninety day period would end in October 1997, before two years had passed from

the accrual of Mr. Russell’s claims on October 26, 1995, October 29, 1995, and

November 6, 1995. Under that application of Colo. Rev. Stat. § 13-80-111(1), the

ninety day grace period would not be triggered at all, and Mr. Russell-El’s claims

would be barred because more than two years had elapsed from the date of

accrual and April 1998, the date that Mr. Russell-El filed this action.

      On the other hand, even if the ninety-day grace period started to run on

October 1, 1997 (the date that Mr. Russell-El exhausted his administrative

remedies) his claims are still untimely. 2 Even though beginning the grace period

      2
        It is unclear whether Colorado is among the jurisdictions which toll
statutes of limitations during exhaustion of administrative remedies, if exhaustion
is required before a suit may be filed. See, e.g., Spiegel v. School Dist. No. 1,
Laramie County, Wyoming, 600 F.2d 264, 266-67 (10th Cir. 1979) (discussing
tolling in Wyoming), overruled on other grounds by Garcia v. Wilson, 731 F.2d
640 (10th Cir. 1984); Wagher v. Guy’s Foods, Inc., 885 P.2d 1197, 1205 (Kan.
1994). We need not make such a determination, in this matter. The district court
required exhaustion prior to filing suit, but Mr. Russell-El exhausted his
                                                                          (continued...)

                                          -6-
on that date would extend the permissible date for filing the action beyond the

original two year period (i.e., beyond October and November 1997), the end of

the ninety day period under that method of calculation would still come well

before April 1998.

      Finally, Mr. Russell-El urges that the statute of limitations should be tolled

for equitable reasons because he pursued his claims diligently after 97-D-1087

was dismissed without prejudice. Pursuant to Colorado law, equitable tolling “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 claims despite diligent efforts.”

Dean Witter Reynolds, Inc. v. Hartman, 911 P.2d 1094, 1099 (Colo. 1996).

      As the district court found, “Mr. Russell-El also fails to allege any

extraordinary circumstances that prevented him from bringing his claims despite

diligent efforts.” Order of Dismissal at 6. After 97-D-1087 was dismissed, Mr.

Russell-El exhausted his administrative remedies on October 1, 1997. On

October 15, 1998, rather than filing a new complaint, he filed a motion for

continuance in 97-D-1087, which was denied because that case had already been

dismissed. Although we understand that a pro se plaintiff may have some

      2
          (...continued)
administrative remedies in less than three months. Such tolling would not bring
the filing of the complaint within the limitations period. Under no tolling theory
would the complaint be timely.

                                          -7-
confusion as to the procedural aspects of the law, Mr. Russell-El provides no

explanation for having waited an additional six months before filing the instant

action on April 16, 1998. Thus, we agree with the district court’s determination

that equitable tolling is not appropriate in this action, “because Mr. Russell-El’s

failure to return promptly to federal court following exhaustion of administrative

remedies does not demonstrate diligent efforts to pursue his claims.” Id. at 7.

      In summary, the district court correctly dismissed Mr. Russell-El’s claims,

which are barred by the statute of limitations. Accordingly, we AFFIRM the

district court’s order of dismissal.


                                               Entered for the Court,



                                               Robert H. Henry
                                               Circuit Judge




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