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

                             FOR THE TENTH CIRCUIT                          October 7, 2015
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
DEMARCO DEON WILLIAMS,

      Plaintiff - Appellant,

v.                                                          No. 15-5002
                                               (D.C. No. 4:11-CV-00469-TCK-FHM)
CITY OF TULSA; RON PALMER,                                  (N.D. Okla.)

      Defendants - Appellees,

and

JEFFREY MICHAEL HENDERSON,

      Defendant.
                         _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before KELLY, BALDOCK, and GORSUCH, Circuit Judges.
                  _________________________________

      Plaintiff DeMarco Deon Williams appeals from two district court orders that

together dismissed all claims asserted against defendants City of Tulsa and Tulsa

Police Chief Ron Palmer arising out of alleged misconduct by Tulsa Police Officers,


      *
        After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 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 This order and judgment is not binding precedent,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, 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.
particularly defendant Jeffrey Michael Henderson, in connection with Mr. Williams’

now-vacated federal conviction for drug and firearm offenses. In the first order, the

district court ruled on summary judgment that Mr. Williams’ false-imprisonment

claim1 against the City was time-barred and that Mr. Williams had failed to

demonstrate a triable issue as to the City’s municipal liability on his timely claim for

malicious prosecution. In the second order, the district court dismissed as

time-barred a claim for violation of the Oklahoma Constitution asserted under Bosh

v. Cherokee County Building Authority, 305 P.3d 994 (Okla. 2013). The district

court entered judgment for the City and Chief Palmer under Fed. R. Civ. P. 54(b),

and Mr. Williams brought this appeal challenging the cited rulings. We affirm for

the reasons explained below.

                                 I. BACKGROUND

      A little background should suffice to put the following legal analysis in

context. Mr. Williams was convicted (in 2004 and, after a reversal on Speedy Trial

Act grounds, again in 2008) of drug and firearm offenses based on evidence

developed by Tulsa Police Officer Henderson. See United States v. Williams,

576 F.3d 1149 (10th Cir. 2009) (affirming Williams’ second conviction). In April

2010, his convictions were vacated and his indictment dismissed at the government’s

request after an FBI investigation exposed corruption in the Tulsa Police Department

      1
         For present purposes, we refer to Mr. Williams’ claim for illegal detention
prior to his formal arraignment as one for “false imprisonment,” without any need to
distinguish between the conceptually overlapping claims of false imprisonment and
false arrest. See Wallace v. Kato, 549 U.S. 384, 388-89 (2007).

                                           2
implicating Officer Henderson and undermining confidence in Mr. Williams’ federal

prosecution. In July 2012, Mr. Williams filed this action invoking 42 U.S.C. § 1983

and claiming that Officer Henderson had violated his constitutional rights by lying in

an affidavit used to procure a warrant for a search that led to his arrest, inducing him

to sign a blank confession that Officer Henderson falsely completed, and committing

perjury in his ensuing prosecution. He also asserted a derivative § 1983 claim

against the City, alleging that it was responsible for Officer Henderson’s conduct on

various theories of municipal liability.2 The district court eventually dismissed the

derivative § 1983 claim against the City (in part) as time-barred and (in its entirety)

for lack of evidence creating a genuine issue of fact as to the City’s liability.

Thereafter, Mr. Williams amended his complaint to include the state constitutional

“Bosh claim” noted above, for which he added Chief Palmer as a named defendant.

The district court dismissed the Bosh claim as time-barred as well. This interlocutory

appeal challenging those two rulings followed.

                                    II. ANALYSIS

      We review de novo the dismissal of a claim as time-barred, whether the ruling

is made pursuant to Fed. R. Civ. P. 12(b)(6), Braxton v. Zavaras, 614 F.3d 1156,

1159 (10th Cir. 2010), or on summary judgment, Bass v. Potter, 522 F.3d 1098, 1102

(10th Cir. 2008). We also review de novo the grant of summary judgment to the City


      2
        Two additional claims against the City under the Oklahoma Governmental
Tort Claims Act were dismissed for failure to comply with its notice requirements.
The disposition of these claims is not challenged on appeal.

                                            3
on Mr. Williams’ unsubstantiated claim for municipal liability. See Haines v. Fisher,

82 F.3d 1503, 1507 (10th Cir. 1996).

A. LIMITATIONS ANALYSIS OF § 1983 CLAIMS: FALSE IMPRISONMENT
   AND MALICIOUS PROSECUTION

      The limitations period for civil rights claims under 42 U.S.C. § 1983 “is

that which the State provides for personal-injury torts.” Wallace v. Kato, 549 U.S.

384, 387 (2007). In Oklahoma, that is the two-year limitations provided in

Okla. Stat. tit. 12, § 95(A)(3). McCarty v. Gilchrist, 646 F.3d 1281, 1289 (10th Cir.

2011). The date of accrual is determined by federal law, under which the limitations

period begins “when the plaintiff has a complete and present cause of action, that is

when the plaintiff can file suit and obtain relief.” Wallace, 549 U.S. at 388 (citations

and internal quotation marks omitted). For a false-imprisonment claim, the

distinctive feature of which is “detention without legal process,” id. at 389, that

occurs “when legal process was initiated” to authorize detention, id. at 390.3 The

district court held that Mr. Williams’ claims seeking redress “for any periods of

imprisonment prior to his receipt of legal process, i.e., his arraignment dates for that

particular indictment, are time-barred because they accrued, at the latest, on March

10, 2008.” Aplt. App. at 228. But, as the district court recognized, claims alleging


      3
         A false-imprisonment claim accrues “either when the victim is released or
when the victim’s imprisonment becomes pursuant to legal process.” Mondragon v.
Thompson, 519 F.3d 1078, 1082-83 (10th Cir. 2008) (brackets and internal quotation
marks omitted). The operative date is the earlier of these events; while Mr. Williams
insists his claim did not accrue until his ultimate release, “[i]t ended much earlier,
when legal process was initiated against him.” Wallace, 549 U.S. at 390.

                                            4
wrongful detention after initiation of process, properly deemed malicious-prosecution

claims, do not accrue “until the criminal proceedings have terminated in the

plaintiff’s favor.” Myers v. Koopman, 738 F.3d 1190, 1194 (10th Cir. 2013),

cert. denied, 134 S. Ct. 2842 (2014); see also Mondragon v. Thompson, 519 F.3d

1078, 1082-83 (10th Cir. 2008). Thus, the district court held that to the extent

Mr. Williams sought redress “for periods of imprisonment following his

arraignments”—the vast majority of the detention he complains about—his claims

“accrued on his release date in April 2010 and were therefore timely filed.” Aplt.

App. at 228.4 For that reason, the district court proceeded to consider the merits of

Mr. Williams’ claim of municipal liability, which we take up shortly.

      While we agree in broad outline with the district court’s limitations analysis,

we decline to rely on this ruling for several reasons. On its own terms it would

dispose of only a small part of the § 1983 claim against the City (for the short period

before legal process transformed false imprisonment into malicious prosecution).

And a critical procedural fact reduces the practical effect of the ruling even further.

The district court pegged the initiation of legal process to Mr. Williams’ arraignment,

leaving a clear period of post-arrest and pre-process detention. But arraignment is

not the only relevant form of legal process. “The issuance of an arrest warrant


      4
        To the extent Mr. Williams may seek redress for the stand-alone violation of
his Fourth Amendment rights relating to the search of his home per se, distinct from
any subsequent detention based thereon, that claim “is presumed to have accrued
when the actions actually occur[red]” in 2004, Johnson v. Johnson Cty. Comm’n Bd.,
925 F.2d 1299, 1301 (10th Cir. 1991).

                                            5
represents a classic example of the institution of legal process.” Myers, 738 F.3d

at 1195 (brackets and internal quotation marks omitted). While Mr. Williams’ initial

detention on the day of the search (for a matter of hours) was without legal process,

his subsequent arrest and continued detention was pursuant to an arrest warrant based

on the search and resultant confession. Aplt. App. at 219. Thus nearly all of his

detention—under allegedly wrongful but not absent legal process—falls under the

rubric of malicious prosecution for which his complaint is timely. Finally, as to the

remaining sliver of detention time that would fall outside the limitations period for a

false-imprisonment claim, the parties debate at length whether the claim might still

be saved by the deferred-accrual rule recognized in Heck v. Humphrey, 512 U.S. 477,

486-87 (1994), and elaborated on in Wallace, 549 U.S. at 392-95. Because, as we

hold below, Mr. Williams’ § 1983 claim against the City fails in its entirety due to

the deficiency of his case on municipal liability, we choose to rely for our affirmance

on that straightforward basis and decline to parse out and definitively resolve the

various factual and legal matters surrounding the district court’s alternative (and only

partial) reliance on the limitations period for dismissing the claim.

B. MUNICIPAL LIABILITY

      It is well-established that a municipality is not vicariously liable under § 1983

for the misconduct of its employees, but may be held derivatively liable for such

misconduct in only limited circumstances. See Connick v. Thompson, 563 U.S 51,

131 S. Ct. 1350, 1359 (2011). The only such circumstance argued on appeal by

Mr. Williams required him to show that Officer Henderson’s alleged misconduct was

                                            6
the result of “action pursuant to official municipal policy,” evidenced by a “practice[]

so persistent and widespread as to practically have the force of law.” Id. (internal

quotation marks omitted). The sole supporting citation to the record provided by

Mr. Williams refers us generally to the district court’s discussion of two internal

administrative complaints that he contends put the City on notice of a need to provide

“a mechanism to verify the veracity of the statements [Officer Henderson] made in a

search warrant affidavit.” Aplt. Op. Br. at 20 (citing Aplt. App. at 232-34). As the

district court explained, these complaints established but one single incident at all

similar to the allegations here, in which (several years prior to events in this case)

Officer Henderson “potentially omitted information from a probable cause affidavit”

by “possibly omitt[ing] the presence of an individual” at a crime scene. Aplt. App.

at 234.5 This evidence clearly fails to indicate a persistent and widespread practice of

falsification by Officer Henderson (or Tulsa Police officers in general) sufficient to

impute liability for his alleged misconduct to the City.

C. UNTIMELINESS OF BOSH CLAIM

      Confirming the Oklahoma Court of Appeals’ decision in Bryson v. Oklahoma

County ex rel. Oklahoma County Detention Center, 261 P.3d 627 (Okla. Civ. App.


      5
         Mr. Williams also submitted to the district court a document that was filed in
the criminal case brought against Officer Henderson, which indicated he had been the
subject of numerous other internal administrative investigations. The district court
discounted this evidence for lack of information regarding the date, subject matter, or
outcome of the investigations. Aplt. App. at 235. Mr. Williams does not challenge
that determination and we therefore do not pursue the matter further.


                                            7
2011), which in turn “followed the legal ground which had been plowed by”

Washington v. Barry, 55 P.3d 1036 (Okla. 2002), the Oklahoma Supreme Court held

in Bosh that “Okla. Const. art. 2, § 30 provides a cause of action for excessive force,

notwithstanding the requirements and limitations of the [Oklahoma Governmental

Tort Claims Act (OGTCA)]” and that this cause of action “applies to citizens who are

seized—arrestees and pre-incarcerated detainees” as well as convicted prisoners.6

Bosh, 305 P.3d 1001-02. The Bosh court added that its “decision shall be given

retroactive application to all matters which were in the litigation pipeline, state and

federal, when Bryson . . . was decided as well as any claims which arose when

Bryson was decided.” Id. at 1002. While not disputing that the allegations of his

Bosh claim (asserted against the City, Police Chief Palmer, and Officer Henderson)

would otherwise fall outside the applicable limitations period, Mr. Williams argued

in the district court, as he does here, that the Bosh claim did not accrue until the


      6
        The Oklahoma Court of Appeals has since held that this cause of action is not
limited to the excessive-force claims considered in Bosh but contemplates “a broader
scope of actionable claims based upon violations of constitutional rights.” GJA v.
Okla. Dep’t of Human Servs., 347 P.3d 310, 316 (Okla. Civ. App. 2015). For our
analysis here, we assume the Oklahoma Supreme Court would take the same view
and bring the violations at issue here within Bosh’s scope.

       We also note that the City has brought to our attention the Oklahoma Supreme
Court’s decision in Perry v. City of Norman, 341 P.3d 689, 689 (Okla. 2014), which
held that a Bosh claim would not be available if the allegations of constitutional
wrong were remediable under the OGTCA. The City suggests this holding provides
an alternative basis for affirming the dismissal of Mr. Williams’ Bosh claim. But the
City does not make any effort to explain how all of Mr. Williams’ allegations are in
fact remediable under the OGTCA. We decline to develop this argument for the City
and express no opinion as to the effect of Perry on the viability of the Bosh claim.

                                            8
Oklahoma Supreme Court recognized such a claim and made its decision retroactive

to cases in the litigation pipeline.

       The district court rejected Mr. Williams’ argument as conflating retroactivity

with limitations principles. As the district court noted, the Oklahoma Supreme Court

made it clear in Sholer v. State ex rel. Department of Public Safety, 945 P.2d 469

(Okla. 1995), that a ruling made retroactive remains “subject to the proper statute of

limitations,” id. at 474, and thus a claim based on such a ruling will be time-barred if

not brought within the requisite period following its accrual based on the underlying

injury—“not the date . . . [of] the [retroactive] decision,” id. at 475. This approach is

indeed “overwhelmingly the norm,” under which a fully retroactive decision applies

“to all [parties] by and against whom claims may be pressed, consistent with res

judicata and procedural barriers such as statutes of limitations.” James B. Beam

Distilling Co. v. Georgia (Beam), 501 U.S. 529, 535 (1991) (emphasis added). In

other words, the retroactivity of a decision recognizing a right and the timeliness of a

claim seeking redress for a violation of that right are independent inquiries. As Beam

explained, “retroactivity in civil cases must be limited by the need for finality” and

hence “once suit is barred . . . by statutes of limitation or repose, a new rule cannot

reopen the door.” Id. at 541.

       On appeal Mr. Williams does not even mention Sholer, and he concedes that

Oklahoma has followed Beam when interpreting the effect of decisions (like Bosh)

made retroactively applicable to cases in the “litigation pipeline,” see, e.g., City of

Okla. City v. State ex rel. Okla. Dep’t of Labor, 918 P.2d 26, 31 n.1, 33 & n.8

                                            9
(Okla. 1995) (per curiam). Yet he continues to argue that Bosh’s retroactive

application to cases in the litigation pipeline when Bryson was decided rescues his

claim because he “had a valid suit or case at the time Bryson was decided.”7 Aplt.

Op. Br. at 21-22 (footnotes omitted). This argument just returns us to the conflation

of retroactivity and limitations principles that the district court properly rejected.

       Mr. Williams objects that the application of established limitations principles

negates the benefit of Bosh’s retroactivity for plaintiffs like him who fall within the

designated litigation pipeline but (1) seek redress for wrongs that were temporally

remote by the time Bosh was decided and (2) had not anticipated Bosh by filing their

claims before they became stale. That, of course, is a consequence of the separation

of retroactivity and limitations principles and precisely what Beam explains (and

Sholer reflects) is the balance struck between the remedial policy behind retroactivity

and the finality concern behind the limitations defense. We are not in a position to

reweigh such matters and strike a balance that diverges from that chosen for a state

law claim by the courts of Oklahoma.

       Finally, Mr. Williams invokes a faulty syllogism: (1) accrual is generally

defined as the date “when a litigant could first maintain an action to a successful

conclusion,” City of Tulsa v. Bank of Okla., N.A., 280 P.3d 314, 320 (Okla. 2011)

(internal quotation marks omitted); (2) a Bosh-type claim could not have succeeded


       7
         Actually, this case was not filed until after Bryson was decided. But this
point is not material to Bosh’s retroactive application to the case or to our conclusion
that such retroactivity does not affect the limitations analysis.

                                            10
until Bosh definitively recognized the viability of such a claim; hence, (3) his claim

did not accrue until Bosh was decided. As for the major premise, Mr. Williams does

not cite any authority holding that the general definition postpones accrual until a

decision definitively recognizing a claim (and making it retroactive to the plaintiff’s

case) comes along—perhaps many years or even decades after the underlying events.

That is not surprising, as such a holding would undermine finality on an

unprecedented scale—and do so, again, by effectively using retroactivity to trump

limitations principles contrary to the balance struck in Sholer and Beam. The minor

premise of the argument is also unpersuasive. A litigant could very well have

successfully pursued a Bosh-type claim prior to Bosh’s definitive confirmation of

such a claim, and in fact did so in Bryson (and in Bosh itself). With defective major

and minor premises, Mr. Williams’ conclusion here necessarily fails.

                                 III. CONCLUSION

      In sum, Mr. Williams has failed to demonstrate a triable case against the City

for municipal liability under § 1983 or shown that his state-law claim under Bosh was

timely.

      The judgment entered by the district court in favor of the City of Tulsa and

Tulsa Police Chief Palmer is affirmed.


                                            Entered for the Court


                                            Paul J. Kelly, Jr.
                                            Circuit Judge


                                           11
