                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          AUG 27 2004
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    GROVER LEE MISKOVSKY,

                Plaintiff-Appellant,

    v.                                                   No. 03-6186
                                                  (D.C. No. CV-02-1684-HE)
    TWYLA MASON GRAY, The                                (W.D. Okla.)
    Honorable District Judge of the
    Seventh Judicial District Court for
    Oklahoma County, State of Oklahoma;
    THERESA REEL, Certified Court
    Reporter for Chambers of the
    Honorable Twyla Mason Gray, District
    Judge, District Court of Oklahoma
    County, State of Oklahoma,

                Defendants-Appellees.


                            ORDER AND JUDGMENT            *




Before HARTZ , McKAY , and PORFILIO , Circuit Judges.



         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral



*
      This order and judgment is not binding precedent, except under the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.
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.

       Plaintiff-appellant Grover Lee Miskovsky, a state inmate in the Oklahoma

prison system, appeals the district court’s order dismissing his complaint under

Fed. R. Civ. P. 12(b)(6). We exercise jurisdiction pursuant to 28 U.S.C. § 1291

and affirm.

       In his complaint, plaintiff asserted federal antitrust, copyright, racketeering,

and civil rights claims against the state district judge who presided over his

criminal case, the Honorable Twyla Mason Gray of the district court in Oklahoma

County, Oklahoma, and the certified court reporter who transcribed the

proceedings, Theresa Reel, seeking damages and declaratory and injunctive relief.

Plaintiff’s claims against defendant Gray are based on a court-ordered seizure of a

trial transcript (the Gregg transcript 1) from his jail cell that occurred while he was

in custody awaiting trial.   2
                                 With respect to defendant Reel, plaintiff claimed that

she unlawfully attempted to create a state-law copyright in the transcript she

prepared of his criminal trial. Plaintiff further claimed that defendant Reel

1
       The Gregg transcript was from a related criminal case in Oklahoma County,
Oklahoma. Plaintiff claims that he obtained a copy of the  Gregg transcript
because three of the witnesses endorsed by the prosecution to testify in his case
were also prosecution witnesses in the    Gregg case. See Aplt. Opening Br. at 2-3.
2
       Mr. Miskovsky claims that he obtained his copy of the   Gregg transcript
from a “lawyer” friend who had checked out the original transcript from the state
court archives and copied it for him.   See Aplt. Opening Br. at 3.

                                              -2-
engaged in a conspiracy with defendant Gray in order to create de facto

copyrights in her original transcripts.

       Both defendants filed motions to dismiss plaintiff’s complaint for failure to

state a claim upon which relief can be granted under Fed. R. Civ. P. 12(b)(6).

The district court granted both motions based on the following analysis:

              The plaintiff’s copyright, antitrust and RICO claims against
       both defendants are specious. The only potentially actionable
       conduct by defendant Gray that is plead in the complaint consists of
       her ordering the seizure of the [ Gregg ] transcript. However, while
       the allegations might otherwise suffice to support a [42 U.S.C.]
       § 1983 claim against her, the court [concludes] . . . that judicial
       immunity shields Judge Gray from liability to the plaintiff . . . .

              The plaintiff cannot succeed on his § 1983 claim against
       Defendant Reel, as there are no allegations that she personally
       participated in the asserted constitutional deprivation. Even if she
       could be linked to the seizure or if Judge Gray were not entitled to
       immunity, the plaintiff’s § 1983 claim still would fail, as it is
       untimely. DiCesare v. Baldridge , 156 F.3d 1243, 1998 WL 476781,
       at *2 (10th Cir. Aug. 11, 1998) (two year statue of limitations for
       § 1983 claims in Oklahoma barred claim based on alleged Fourth
       Amendment violation). The plaintiff alleges that the seizure
       occurred before November 22, 1999, but this action was filed
       November 27, 2002, outside the applicable two year statutory period.

Aplt. App., Vol. 2 at 667-68 (footnotes omitted). The court also denied plaintiff’s

request for leave to file an amended complaint, concluding that “any attempt to

amend would be futile.”    Id. at 669.

       We review the dismissal of plaintiff’s complaint de novo, applying the

same standard as the district court under Rule 12(b)(6).   See Jefferson County


                                            -3-
Sch. Dist. No. R-1 v. Moody’s Investor’s Servs., Inc.   , 175 F.3d 848, 855 (10th Cir.

1999).

         As we have noted, we accept as true all well-pleaded facts and view
         those facts in the light most favorable to the nonmoving party. The
         district court’s dismissal may be upheld only if it appears beyond
         doubt that the plaintiff can prove no set of facts in support of his
         claim which would entitle him to relief.

Id. (citation and quotation omitted). In addition, “[a]lthough Fed. R. Civ. P. 15(a)

provides that leave to amend [a complaint] shall be given freely, the district court

may deny leave to amend where amendment would be futile.”          Id. at 859. Further,

“[w]e review the denial of a motion for leave to amend for abuse of discretion.”

Id. Applying these standards, we conclude that plaintiff has failed to state a claim

upon which relief can be granted, and that the district court did not abuse its

discretion in denying plaintiff’s request for leave to file an amended complaint.

Given plaintiff’s failure to state a claim, we also reject plaintiff’s argument that

the district court erred by refusing to permit him to engage in discovery.

         First, plaintiff has failed to allege any facts that would support a cognizable

claim under the federal antitrust or racketeering laws. Instead, plaintiff has

conceded that his antitrust and racketeering claims are wholly dependent upon his

federal copyright claim.    See Aplt. Opening Br. at 38.

         Second, plaintiff has failed to allege any specific facts that would support a

cognizable claim against defendant Reel under any of the federal statutes he has


                                            -4-
invoked in this case. In fact, as accurately summarized by the district court, the

only specific facts alleged by plaintiff to support his claims against defendant

Reel were the following:

       The plaintiff also claims that defendant Reel learned between January
       20 and July 11, 2002, that his attorney had obtained a copy of the
       plaintiff’s trial transcript from the plaintiff and demanded payment of
       $1 a page. [Defendant Reel] allegedly told plaintiff’s counsel that
       the plaintiff’s copy was illegal, as it had not been obtained from her.

Aplt. App., Vol. 2 at 666. We agree with the district court that these allegations

are insufficient to state a claim against defendant Reel under any of the federal

statutes at issue in this case. As a result, we are left only with plaintiff’s

conclusory allegations concerning the claimed conspiracy between defendant Reel

and defendant Gray, and “we need not accept [plaintiff’s] conclusory allegations

as true.” Southern Disposal, Inc. v. Texas Waste Mgmt.           , 161 F.3d 1259, 1262

(10th Cir. 1998).

       Third, plaintiff is not claiming that “the search of his jail cell, or the    initial

seizure . . . of his copy of the Gregg transcript, was in and of itself illegal.”     Id. at

7; see also Aplt. Reply Br. at 14 (“Appellant Miskovsky does            not challenge the

putative immunity of the Appellee Judge Gray to have ordered a ‘search and

seizure’ (in effect, an   inspection ) of his cell.”). Consequently, plaintiff is

challenging only

       Appellee Judge Gray’s claim to judicial immunity in Her Honor’s
       subsequently confiscating his . . . copy of the Gregg transcript, and

                                               -5-
       especially on the pretext asserted by Her Honor, namely, that in so
       confiscating that copy of the . . . transcript, Her Honor was merely
       ‘enforcing’ the Court Reporter’s ‘exclusive’ right to make copies or
       to authorize copies, thereof – in short, the Court Reporter’s
       ‘copyright’ therein.

Aplt. Reply Br. at 14.

       In light of the above, the only claim at issue in this appeal is plaintiff’s

request for a declaratory judgment under 28 U.S.C. § 2201 “to declare and

determine that the State District Judge’s unilateral and spontaneous confiscation

of Mr. Miskovsky’s copy of the Gregg transcript . . . was in violation of Federal

Copyright Law.” Aplt. Opening Br. at 6. We do not need to address the merits of

plaintiff’s copyright claim, however, because we agree with the district court that,

based on the allegations on the face of plaintiff’s complaint, the claim is time-

barred. See Bullington v. United Air Lines, Inc.     , 186 F.3d 1301, 1311 n.3 (10th

Cir. 1999) (“Rule 12(b)(6) is a proper vehicle for dismissing a complaint that, on

its face, indicates the existence of an affirmative defense such as noncompliance

with the limitations period”),   overruled on other grounds by Nat’l R.R. Passenger

Corp. v. Morgan , 536 U.S. 101 (2002).

       Plaintiff’s copyright claim boils down to his assertions that: (1) the   Gregg

transcript was part of the state court’s public record, and it was not protected by

the federal copyright laws; and (2) as a result, as a matter of federal copyright

law, he had the right to make his own copy of the transcript. As plaintiff readily


                                             -6-
acknowledges, his copyright claim is not a claim for copyright infringement under

17 U.S.C. § 501, as he is instead claiming that the United States Constitution and

the federal copyright laws provide him with a right to copy material that has         not

been copyrighted under federal law.      See, e.g., Compco Corp. v. Day-Bright

Lighting, Inc. , 376 U.S. 234, 237 (1964) (recognizing “the federal policy, found

in Art. I, s 8, cl. 8, of the Constitution and in the implementing federal statutes, of

allowing free access to copy whatever the federal patent and copyright laws leave

in the public domain”). Thus, for statute of limitations purposes, we believe the

claim must be analyzed under § 1983, and not the federal copyright laws.          See

42 U.S.C. § 1983 (providing federal cause of action for persons who have been

deprived of any rights “secured by the Constitution and laws”).       3



       Because § 1983 does not contain its own statute of limitation, federal

courts rely on analogous state statutes for determining the limitations period.         See

Hardin v. Straub , 490 U.S. 536, 538 (1989). Under Oklahoma law, that period

is two years from the date when the action accrues.        See Okla. Stat. tit. 12,

§ 95(A)(3); Meade v. Grubbs , 841 F.2d 1512, 1522-24 (10th Cir. 1988). An

action accrues in a § 1983 case when “the plaintiff knows or should have known



3
        Moreover, even if the three-year limitations period for copyright
infringement actions applied, see 17 U.S.C. § 507(b), plaintiff’s copyright claim
would still be time-barred because he filed his complaint more than three years
after the seizure of the Gregg transcript from his jail cell.

                                             -7-
that his or her constitutional rights have been violated.”      Smith v. City of Enid ex

rel. Enid City Comm’n , 149 F.3d 1151, 1154 (10th Cir. 1998) (quotation omitted).

       In his complaint, plaintiff alleged that defendant Gray had the       Gregg

transcript seized from his jail cell “a couple of days or so” before November 22,

1999. Aplt. App., Vol. 1 at 11. Plaintiff further alleged that defendant Gray

thereby “deprived [him] of his perfectly lawful possession of [the transcript].”        Id.

Given these allegations, we agree with the district court that plaintiff’s copyright

claim accrued before November 22, 1999, and that the claim is therefore barred

by the two-year limitations period, since plaintiff did not file his complaint until

November 27, 2002.

       In an attempt to avoid the bar of the two-year limitations period, plaintiff

claims that, under Okla. Stat. tit. 12, § 96, the limitations period is tolled during

the term of his confinement in prison.    4
                                              Plaintiff also asserts that the doctrine of

equitable tolling should be applied to toll the limitations period, and his equitable

tolling argument is based on his claim that he did not have full access to the

courts due to the conditions of his confinement.      5
                                                          Pursuant to Okla. Stat. tit. 20,

4
       Okla. Stat. tit. 12, § 96, provides a statutory tolling period for persons who
are “under any legal disability,” but the statue does not define the term “legal
disability.”
5
      In addition, plaintiff claims that his copyright claim is not time-barred
because: (1) defendant Gray made a “re-accusation of infringement” during
a court hearing in July 2002; and (2) this case is “ancillary” to his state
                                                                         (continued...)

                                              -8-
§§ 1601-1611, plaintiff has also filed a motion requesting that we certify to the

Oklahoma Supreme Court the questions of whether Oklahoma law contains a

tolling provision for inmates and whether it recognizes equitable tolling in

circumstances such as these.

      We reject plaintiff’s claim that Oklahoma law tolls the two-year limitations

period during his confinement. As plaintiff has conceded, the Oklahoma Supreme

Court has never squarely addressed the prisoner-tolling issue, and we are not

convinced by plaintiff’s arguments regarding Okla. Stat. tit. 12, § 96. We also

note that we have previously rejected similar prisoner-tolling arguments in several

unpublished orders and judgments applying Oklahoma law.     6
                                                                Although these prior

unpublished decisions are not binding precedent, in the absence of any Oklahoma

authority squarely on point, we will continue to follow their reasoning.

      Plaintiff’s argument that the conditions of his confinement warrant

application of equitable tolling principles is also without merit. To begin with,

we are not aware of any Oklahoma authority that would require equitable tolling

5
 (...continued)
post-conviction proceedings, and Oklahoma law does not provide a statute of
limitations for post-conviction proceedings. See Aplt. Opening Br. at 14, 46.
Both of these arguments are frivolous and merit no further consideration.
6
       See Hogan v. Okla. Dep’t of Corr. , No. 98-6127, 1999 WL 84466, at **1
(10th Cir. Feb. 22, 1999); Hill v. Gilliam , No. 98-6138, 1999 WL 41110, at **2
(10th Cir. Feb. 1, 1999); Hudson v. McCormick , No. 94-6006, 1994 WL 237520,
at **1 (10th Cir. June 3, 1994);  Jones v. Williams , No. 93-6225, 1993 WL
344266, at **1 (10th Cir. Sept. 3, 1993).

                                         -9-
under the circumstances of this case. In addition, we note that plaintiff filed a

prior § 1983 action in the district court challenging defendant Gray’s seizure of

the Gregg transcript, and plaintiff filed the prior action in February 2000, well

within the two-year limitations period.   See Case No. 00-CV-403 (filed in the

Western District of Oklahoma on February 28, 2000). Consequently, we see no

reason why plaintiff could not have likewise filed the instant action within the

two-year limitations period.

       Finally, because the legal questions raised by plaintiff are not unusually

difficult, we decline to certify the statutory and equitable tolling questions to the

Oklahoma Supreme Court.        See Armijo v. Ex Cam, Inc. , 843 F.2d 406, 407

(10th Cir. 1988) (“Whether to certify a question of state law to the state supreme

court is within the discretion of the federal court. Certification is not to be

routinely invoked whenever a federal court is presented with an unsettled question

of state law.”) (citations omitted).

       The judgment of the district court is AFFIRMED. Plaintiff’s motion to

certify questions of state law is DENIED.


                                                      Entered for the Court


                                                      John C. Porfilio
                                                      Circuit Judge



                                          -10-
