                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                October 26, 2009
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                   Clerk of Court
                            FOR THE TENTH CIRCUIT


    JAMES E. STEVENSON, JR.,

               Plaintiff-Appellant,

    v.                                                  No. 09-7000
                                              (D.C. No. 6:08-CV-00264-RAW)
    KEN GRACE, Carter County Sheriff;                   (E.D. Okla.)
    SHANNON DAVIS, Deputy,

               Defendants-Appellees,

         and

    D. ENGLISH, Deputy,

               Defendant.


                            ORDER AND JUDGMENT *


Before TACHA, ANDERSON, and EBEL, 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 appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
      James E. Stevenson, Jr., appeals pro se from a district court order that

dismissed his civil-rights complaint as time barred. We have jurisdiction under

28 U.S.C. § 1291, and we affirm.

                                   B ACKGROUND

      Mr. Stevenson filed his 42 U.S.C. § 1983 complaint pro se on June 11,

2008. He alleged that he was falsely arrested and beaten by deputies of the Carter

County, Oklahoma, Sheriff’s Office on March 5, 2006, as he exited a bar.

Documents attached to, and cited in, the complaint revealed that Mr. Stevenson

posted bond and was released within hours of his arrest.

      Two of the defendants moved to dismiss the complaint, arguing that the

two-year statute of limitations had expired before the complaint was filed. For

reasons not apparent in the record, Mr. Stevenson did not respond. 1 A month

after the motion to dismiss was filed, the district court dismissed Mr. Stevenson’s

complaint as time barred as to all of the defendants.

      Mr. Stevenson appeals.

                                   D ISCUSSION

      Ordinarily, we review a district court’s dismissal on statute-of-limitations

grounds de novo. Sterlin v. Biomune Sys., 154 F.3d 1191, 1194 (10th Cir. 1998).

But since Mr. Stevenson did not raise any arguments in the district court, our


1
     Mr. Stevenson does not contend that he was not served with a copy of the
motion.

                                         -2-
review is only for plain error. See Hinds v. Gen. Motors Corp., 988 F.2d 1039,

1045 (10th Cir. 1993). “To show plain error, Mr. [Stevenson] would have to

show (1) error, (2) that is plain, which (3) affects substantial rights, and which

(4) seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” Duffield v. Jackson, 545 F.3d 1234, 1238 (10th Cir. 2008)

(quotation omitted). In any event, we construe his pro se pleadings liberally. See

Haines v. Kerner, 404 U.S. 519, 520-21 (1972).

      A § 1983 claim arising in Oklahoma is subject to a two-year statute of

limitations. See Meade v. Grubbs, 841 F.2d 1512, 1522, 1524 (10th Cir. 1988);

Okla. Stat. tit. 12, § 95(3). And “[s]ince the injury in a § 1983 case is the

violation of a constitutional right, such claims accrue when the plaintiff knows or

should know that his or her constitutional rights have been violated.” Beck v.

City of Muskogee Police Dep’t, 195 F.3d 553, 557 (10th Cir. 1999) (quotation

omitted). Specifically, a Fourth Amendment claim for false arrest/false

imprisonment accrues when the victim is released from custody or when the

victim is bound over on charges, whichever occurs first. See Mondragon v.

Thompson, 519 F.3d 1078, 1082-83 (10th Cir. 2008); see also Wallace v. Kato,

549 U.S. 384, 389-90 (2007). “A § 1983 claim for excessive force in effectuating

an arrest accrues at the time of arrest.” Fox v. DeSoto, 489 F.3d 227, 233

(6th Cir. 2007); accord Cabrera v. City of Huntington Park, 159 F.3d 374, 381

(9th Cir. 1998) (per curiam).

                                           -3-
      Here, Mr. Stevenson’s § 1983 claims accrued on March 5, 2006, when he

was arrested by sheriff’s deputies and released on bond. But he did not sue

within two years of that date. Instead, he waited until June 11, 2008, to file his

complaint.

      Mr. Stevenson advances two arguments against the dismissal of his lawsuit.

First, he argues that the district court should have given him an opportunity to

prove his false-arrest and excessive-force allegations prior to dismissal. But

because it was clear from the documents attached to, and cited in, the complaint

that Mr. Stevenson’s arrest and release on bond occurred more than two years

before he filed the complaint, the district court was justified in dismissing it

without considering any evidence that may have supported Mr. Stevenson’s

allegations. See Am. Pipe & Constr. Co. v. Utah, 414 U.S. 538, 554 (1974)

(observing that “[t]he theory [underlying statutes of limitations] is that even if

one has a just claim it is unjust not to put the adversary on notice to defend within

the period of limitation and that the right to be free of stale claims in time comes

to prevail over the right to prosecute them”) (quotation omitted).

      Second, Mr. Stevenson argues that the statute of limitations was tolled

while he was under a doctor’s care for his injuries. Tolling is a matter of state

law. See Fratus v. DeLand, 49 F.3d 673, 675 (10th Cir. 1995). Oklahoma

recognizes tolling when the injured party is under a legal disability, such as

infancy or mental incapacity. See Okla. Stat. tit. 12, § 96. Tolling is also

                                          -4-
appropriate when the “defendants engage in false, fraudulent or misleading

conduct calculated to lull plaintiffs into sitting on their rights,” or when there are

“exceptional circumstances [that] justify tolling a statute of limitations.” Young

v. Davis, 554 F.3d 1254, 1258 (10th Cir. 2009) (quotations omitted). The

documents before this court indicate that when Mr. Stevenson was examined by a

neurologist within the limitations period his “[m]ental [s]tatus [wa]s completely

normal.” Aplt. Reply to Mot. to Dismiss Appeal at 3. And while he suffers from

“[s]pastic left hemiparesis,” 2 id., he does not explain how this condition

constitutes an exceptional circumstance that prevented him from timely filing his

lawsuit. In short, we see no grounds that would toll the two-year statute of

limitations.




2
     Muscle spasms and weakness on one side of the body. See Stedman’s
Medical Dictionary 800, 1662 (27th ed. 2000).

                                          -5-
                                   C ONCLUSION

      Because the district court did not commit error, let alone plain error, in

dismissing Mr. Stevenson’s lawsuit as time barred, we AFFIRM the district

court’s judgment. Mr. Stevenson’s motion for leave to proceed on appeal in

forma pauperis is GRANTED. See 28 U.S.C. § 1915. Appellees’ motion to

dismiss this appeal for Mr. Stevenson’s failure to pay filing fees and to timely file

the opening brief is DENIED.

                                                    Entered for the Court


                                                    Stephen H. Anderson
                                                    Circuit Judge




                                         -6-
