                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                         February 3, 2006
                             FOR THE TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                           Clerk of Court


    PATRICIA A. ARPS,

                 Plaintiff-Appellant,

     v.                                                   No. 04-6354
                                                    (D.C. No. CV-03-1755-C)
    ROBERT SCOTT CORMACK,                                 (W.D. Okla.)
    Officer; DONALD JACKSON; THE
    OKLAHOMA CITY POLICE
    DEPARTMENT; KIRK
    HUMPHREYS, Mayor; M. T. BERRY,
    Police Chief; JOHN WHETSEL,
    Sheriff,

                 Defendants-Appellees.


                             ORDER AND JUDGMENT *


Before HENRY, McKAY, and MURPHY, Circuit Judges.


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

unanimously that oral argument would not materially assist the determination of




*
      This order and judgment is not binding precedent, except under the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.
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      Plaintiff-appellant Patricia Ann Arps, an Oklahoma state prisoner appearing

pro se, appeals the district court’s dismissal of her 42 U.S.C. § 1983 complaint.

Her complaint, filed in December 2003, alleged that various state officials

violated her constitutional rights in connection with her arrest and conviction for

assaulting a police officer in 1999. Acting under 28 U.S.C. § 1915A, the district

court dismissed her complaint prior to service for failure to state a claim. It ruled

that her claims were barred by the applicable statute of limitations, or by

principles of immunity.

                                           I.

      We first examine our jurisdiction. Several defendants-appellees contend

this court lacks jurisdiction over plaintiff’s appeal because her notice of appeal

was untimely. See Fed. R. App. P. 4(a)(1)(A) ((requiring notice of appeal to be

filed within thirty days of judgment). The district court’s order of dismissal was

entered on April 14, 2004. On April 26, 2004, plaintiff filed a document in the

district court entitled as an application for certificate of appealability (the “COA

notice”). R. Doc. 30. The district court struck the COA notice on May 13, 2004,

explaining that a certificate of appealability is not required in order to appeal a

civil rights action, but to appeal the denial of a petition for a writ of habeas


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corpus. 1 R. Doc. 33. The district court did observe, however, that plaintiff

wished to appeal the dismissal of her civil rights complaint. Id. Six months later,

plaintiff filed a formal notice of appeal, which was docketed as such in both this

court and the district court.

      Appellees contend plaintiff’s appeal is untimely because her COA notice

was stricken by the court and the second notice of appeal was filed more than

thirty days after entry of judgment. We conclude, however, that the district court

erred in striking plaintiff’s COA notice, and should, instead, have accepted it as

the functional equivalent of a notice of appeal. The Supreme Court has held that

notices of appeal are to be construed liberally, and that a timely filed pro se

document may serve as the functional equivalent of a notice of appeal if it gives

the notice required by Fed. R. App. P. 3(c). Smith v. Barry, 502 U.S. 244, 248-49

(1992). Rule 3 requires that a notice of appeal must specify the party or parties

taking the appeal, designate the judgment or order being appealed, and name the

court to which the appeal is taken. Rule 3(c)(1). The Rule further provides that

an appeal must not be dismissed for informality of form or title. Id. at 3(c)(4).

The advisory notes state that, “the rule makes it clear that dismissal of an appeal




1
      Plaintiff may have been confused by the district court’s order of dismissal,
which incorrectly characterized plaintiff’s § 1983 complaint as an action seeking
habeas corpus relief. R. Doc. 27, at 1.

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should not occur when it is otherwise clear from the notice that the party intended

to appeal.” Fed. R.App. P. 3(c), 1993 Advisory Committee Notes.

      Here, plaintiff’s timely-filed COA notice identified the parties to the

appeal, adequately identified the order of dismissal being appealed, and identified

the Tenth Circuit as the court to which the appeal was being taken. Moreover, as

the district court recognized, it was clear from the COA notice that plaintiff

intended to appeal the dismissal of her complaint. Therefore, it constituted the

functional equivalent of a notice of appeal under Smith v. Barry. See Rodgers v.

Wyo. Att'y Gen., 205 F.3d 1201, 1205 (10th Cir. 2000), overruled on other

grounds as recognized by Moore v. Marr, 254 F.3d 1235, 1239 (10th Cir. 2001)

(“Applying the Smith v. Barry standard . . . , this court has often permitted an

application for a certificate of probable cause or a certificate of appealability to

serve as a notice of appeal.” (citing cases)); see also Ray v. Cowley, 975 F.2d

1478, 1479 (10th Cir. 1992) (application for certificate of probable cause was

functional equivalent of a notice to appeal). Because the COA notice constituted

a timely notice of appeal, we have jurisdiction over this appeal.

                                          II.

      In her § 1983 complaint, plaintiff alleged that in February 1999, an

Oklahoma City policeman, Officer Cormack, used unconstitutionally excessive

force against her in removing her from a courtroom, and that the Oklahoma City


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Police Department, its mayor and former police chief were liable for Officer

Comack’s conduct. Plaintiff was convicted for assaulting Officer Cormack as a

result of the February 1999 courtroom incident, and her complaint alleges that the

conviction was obtained because a witness against her, defendant Donald Jackson,

committed perjury.

      The complaint was referred to a magistrate judge, who ordered plaintiff to

show cause why her complaint should not be summarily dismissed under

28 U.S.C. § 1915(e)(2)(B)(ii), and § 1915A. After considering plaintiff’s

response, the magistrate judge issued a report recommending that the complaint

be dismissed, which was the adopted by the district court.

      We review a § 1915 dismissal for failure to state a claim de novo, accepting

all allegations in the complaint as true and construing them in the light most

favorable to the plaintiff. See Perkins v. Kan. Dep't of Corr., 165 F.3d 803, 806

(10th Cir. 1999). “Dismissal of a pro se complaint for failure to state a claim is

proper only where it is obvious that the plaintiff cannot prevail on the facts he has

alleged and it would be futile to give him an opportunity to amend.” Id.

      We have reviewed the complaint, as well as plaintiff’s response to the show

cause order, her objections to the magistrate judge’s report and recommendation

and her arguments on appeal. We conclude from our review of the record that all

of plaintiff’s claims against all of the defendants involve allegations of


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unconstitutional conduct occurring more than two years prior to the filing of the

complaint and are, therefore, barred by the two-year statute of limitations

applicable to § 1983 claims brought in Oklahoma. See Price v. Philpot, 420 F.3d

1158, 1162 (10th Cir. 2005) (holding that Oklahoma’s two-year statute of

limitations applies to § 1983 cases arising in that state). Accordingly, the district

court properly dismissed the action for failure to state a claim on which relief may

be granted under § 1915(e). Because we uphold the district court’s dismissal of

the complaint on statute of limitation grounds, we need not address its additional

and alternative grounds for dismissing plaintiff’s complaint.

      The judgment of the district court is AFFIRMED.



                                                     Entered for the Court



                                                     Michael R. Murphy
                                                     Circuit Judge




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