                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                 UNITED STATES COURT OF APPEALS                          JUL 27 2001

                                 TENTH CIRCUIT                      PATRICK FISHER
                                                                              Clerk



 VERNON L. ROBINSON,

          Plaintiff-Appellant,

 v.
                                                       No. 00-1474
                                                   (D.C. No. 98-D-2589)
 CITY AND COUNTY OF DENVER;
                                                         (D. Colo.)
 OFFICER JAMES DEMPSEY; and
 OFFICER THOMAS McKIBBEN, in
 their individual capacities,

          Defendants-Appellees.




                          ORDER AND JUDGMENT *


Before SEYMOUR and McKAY, Circuit Judges, and BRORBY, Senior Circuit
Judge.


      Vernon Robinson brought this pro se action under 42 U.S.C. § 1983 against

two Denver police officers alleging that they used excessive force in violation of

      *
       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judgment is not binding precedent, except under the doctrines of law of the case,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.
his constitutional rights when they responded to a noise complaint at Mr.

Robinson’s residence. The district court granted defendants’ motion for summary

judgment on the ground that Mr. Robinson’s action was barred by the applicable

limitation period. Mr. Robinson appeals and we affirm.

      We review the district court’s grant of summary judgment de novo,

applying the same standards used by that court. MacDonald v. Delta Air Lines,

Inc., 94 F.3d 1437, 1440 (10th Cir. 1996). Summary judgment is appropriate only

if the material on file, together with any affidavits, shows that no dispute of

material fact exists and that the moving party is entitled to judgment as a matter

of law. Id. We review the evidence and the reasonable inferences to be drawn

therefrom in the light most favorable to the nonmoving party. Id.

      Congress has provided no specific limitations period for civil rights

actions, see Arnold v. Duchesne County, 26 F.3d 982, 983-84 (10th Cir. 1994),

and we therefore adopt a state limitation period, provided that it is not

inconsistent with federal law or policy, see Wilson v. Garcia, 471 U.S. 261, 266-

67 (1985). The Supreme Court in Wilson held that section 1983 actions are to

characterized for purposes of selecting the appropriate state period as “conferring

a general remedy for injuries to personal rights.” Id. at 278. Consistent with this

directive, the district judge here applied the two year period provided in C OLO .

R EV . S TAT . § 13-80-102. See Blake v. Dickason, 997 F.2d 749, 750 (10th Cir.


                                          -2-
1993)

        The incident underlying Mr. Robinson’s claim took place on September 29,

1995. Mr. Robinson did not file the instant action until November 27, 1998, over

three years later and thus well after the two year period had expired. In response

to defendants’ motion for summary judgment below, Mr. Robinson stated in an

unverified pleading that at the time of the incident he had not been taking his

medication (prolixin) for five months and that his thoughts were racing and

irrational. The district court construed Mr. Robinson’s response as an argument

that the period should have been tolled due to a mental incapacity under C OLO .

R EV . S TAT . § 13-81-103(1)(c), but rejected it on the ground that Mr. Robinson had

offered no evidence or specific facts to support it. Indeed, other than Mr.

Robinson’s conclusory statement, the record before the district court contained no

evidence that he had been prescribed medication for a mental condition, that the

condition rendered him incompetent within the meaning of the tolling statute, or

evidence concerning the periods during which he was and was not medicated.

The party alleging the disability bears the burden to prove that the condition

existed. Overheiser v. Safeway Stores, Inc. 814 P.2d 12, 13 (Colo. Ct. App.

1991). Mr. Robinson clearly did not shoulder this burden in district court.

        On appeal, Mr. Robinson asserts in his pro se brief that he was diagnosed

with severe paranoid schizophrenia at a state mental health hospital in 1982, and


                                         -3-
that this condition resulted in a mental disability which, while suppressed by

medication, still exists. These assertions are unsupported by any evidentiary

showing and made for the first time on appeal. Moreover, even if we could

properly consider this material, it does not raise a fact issue with respect to

whether Mr. Robinson is entitled to tolling.

      The tolling of the limitation period in a section 1983 action is governed by

state law. Wilson, 471 U.S. at 269. The state provision at issue here tolls the

period for the commencement of an action by a person suffering from a disability.

See C OLO . R EV . S TAT . § 13-81-103. A person with a disability, in turn, is defined

as “a mental incompetent.” Id. § 13-81-101(3). Mr. Robinson’s diagnosis as a

paranoid schizophrenic in 1982 does not, by itself, tend to show that he was

mentally incompetent in 1995, particularly in view of the lack of evidence

concerning the periods during which Mr. Robinson was and was not taking

medication. In fact, it appears from the record that Mr. Robinson was tried and

convicted for his part in the incident, a fact tending to show that he was in fact

competent during that period.

      The judgment of the district court is AFFIRMED.


                                                ENTERED FOR THE COURT

                                                Stephanie K. Seymour
                                                Circuit Judge


                                          -4-
