                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit
                     UNITED STATES COURT OF APPEALS October 13, 2010

                            FOR THE TENTH CIRCUIT              Elisabeth A. Shumaker
                                                                   Clerk of Court



    ERIC ADAMS,

                Plaintiff-Appellant,

    v.                                                   No. 10-1052
                                            (D.C. No. 1:09-CV-00612-MSK-KMT)
    R. WILEY; D. ROY; T. HERMAN;                          (D. Colo.)
    R. MARTINEZ; MICHAEL
    K. NALLEY; HARRELL WATTS,

                Defendants-Appellees.


                             ORDER AND JUDGMENT *


Before TYMKOVICH, BALDOCK, and HOLMES, Circuit Judges.



         Eric Adams appeals from the district court’s order dismissing as untimely

his pro se complaint brought pursuant to Bivens v. Six Unknown Named Agents of

Federal Bureau of Narcotics, 403 U.S. 388 (1971). We affirm the dismissal.




*
       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not binding precedent, except under the doctrines of law of the case, res judicata,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.
                                 BACKGROUND

      Mr. Adams’ complaint recites that he is an inmate at the ADMAX facility

administered by the Federal Bureau of Prisons (BOP). He subscribes to a

magazine entitled American Curves. He complains that defendants Roy, Herman,

and Martinez, who are BOP prison mailroom staff, violated his constitutional

rights by impounding his issues of American Curves. He further alleges that

defendant Wiley, the warden at the ADMAX facility, violated his constitutional

rights by failing to retain the magazine at the facility pending the resolution of his

administrative appeal, and that defendants Nalley and Watts, who are BOP

officials, violated his constitutional rights by denying his grievance appeals

without reviewing the magazines.

      The impoundments allegedly occurred between October 2006 and January

2007, and Mr. Adams was notified of them between December 8, 2006 and

February 28, 2007. He finished exhausting his administrative remedies in May

2007 and filed his complaint in district court on March 23, 2009.

      The district court reviewed Mr. Adams’ complaint and the attachments

thereto. After surveying the applicable law, it reached the following conclusions:

(1) the limitations period for this Bivens action, borrowed from Colorado state

law, was two years; (2) Mr. Adams knew of his injury no later than December 8,

2006, and therefore had two years from that date to file suit; (3) under applicable

Colorado law, Mr. Adams was not entitled to automatic tolling of the statute of

                                         -2-
limitations during the period he was exhausting his administrative remedies; and

(4) Mr. Adams failed to show any impediment that prevented him from filing this

suit during the year and a half between the time he finished exhausting his

administrative remedies and the expiration of the statute of limitations. The

district court therefore determined that Mr. Adams was not entitled to equitable

tolling and that his complaint was untimely under the two-year statute of

limitations.

      We review de novo the legal issue of whether the district court properly

applied the statute of limitations. See Sterlin v. Biomune Sys., 154 F.3d 1191,

1194 (10th Cir. 1998). “In conducting our review, we accept all well-pleaded

allegations in the Complaint as true and construe them in the light most favorable

to Plaintiff.” Id. at 1195. We review the district court’s refusal to apply

equitable tolling, however, for an abuse of discretion. Garrett v. Fleming,

362 F.3d 692, 695 (10th Cir. 2004).

      1. Claims Against Mailroom Staff

      Mr. Adams argues that his claims against the mailroom staff did not accrue

for statute of limitations purposes until he had finished exhausting his

administrative remedies under the procedures provided by the BOP, in May 2007.

We disagree.

      Under federal law, a Bivens cause of action accrues “when the plaintiff

knows or has reason to know of the existence and cause of the injury which is the

                                         -3-
basis of his action.” Hoang Van Tu v. Koster, 364 F.3d 1196, 1199 (10th Cir.

2004) (quotation omitted). Mr. Adams’ claims against the mailroom staff accrued

when he was first notified of the impoundments. The fact that the impoundment

decision could later have been reversed through the grievance process did not

extend the accrual date of these claims. The injury resulting from the actions of

the mailroom staff was complete when they withheld the magazines and returned

them to the publisher.

      To the extent the requirement of exhausting his administrative remedies

interfered with Mr. Adams’ ability to file a timely complaint in district court, his

remedy was to seek equitable tolling of the statute of limitations. See, e.g.,

Roberts v. Barreras, 484 F.3d 1236, 1240 (10th Cir. 2007). The district court

denied Mr. Adams equitable tolling because he failed to show any impediment to

filing between May 2007 and December 2008. We agree with its reasoning on

this issue. See Braxton v. Zavaras, 614 F.3d 1156, No. 10-1053, 2010 WL

2991382, at *3-*5 (10th Cir. Aug. 2, 2010) (discussing due diligence requirement

for equitable tolling under Colorado law). We therefore affirm the district court’s

order dismissing his complaint against these defendants, for substantially the

reasons stated in its Opinion and Order Granting Motions to Dismiss, dated

February 10, 2010.




                                          -4-
      2. Claims Against Warden and BOP Personnel

      Mr. Adams’ claims against defendants Wiley, Nalley, and Watts require a

slightly different analysis. To the extent that he complains of actions that the

warden took that were known or apparent to Mr. Adams at the time the magazines

were impounded, his claims clearly are time-barred, for the reasons we have

stated. To the extent that he complains about allegedly unconstitutional actions

taken during the administrative appeals process, however, his claims may not be

untimely. See Kripp v. Luton, 466 F.3d 1171, 1174-77 (10th Cir. 2006) (holding

claims relating to unconstitutional seizure accrued at time of seizure; but claims

about denial of due process during forfeiture process pertaining to seized property

accrued when property was declared forfeited as result of administrative

procedure). Nevertheless, they fail as a matter of law.

      Mr. Adams’ claim against the warden, Mr. Wiley, that he violated BOP

regulations by returning the magazines to the publisher rather than retaining them

for appellate review, lacks merit even if it were construed as timely. The

magazines were rejected for sexually explicit content or nudity. In the case

of materials rejected on that basis, the warden is not required to retain the

magazine for purposes of appeal; instead he must return it to the publisher.

BOP Program Statement 5266.10(7)(a)(7), (9). Mr. Adams’ complaint therefore

fails to state a claim as a matter of law.




                                             -5-
      Nor are Mr. Adams’ claims against Messrs. Nalley and Watts, who rejected

his grievances, adequate to survive dismissal, even if these claims only arose

when the grievances were ruled upon. As the district court noted, denial of a

grievance alone does not constitute “personal participation” in the denial of a

constitutional right sufficient to support a Bivens claim against these individuals.

See Gallagher v. Shelton, 587 F.3d 1063, 1069 (10th Cir. 2009) (holding “denial

of a grievance, by itself without any connection to the violation of constitutional

rights alleged by plaintiff, does not establish personal participation under

[42 U.S.C.] § 1983”). See also Ashcroft v. Iqbal, 129 S. Ct. 1937, 1948 (2009)

(requiring personal participation to support Bivens claim). Mr. Adams asserts that

the defendants denied him due process by failing to review the entire magazines

as required before denying his appeal. Even assuming that this constitutes

sufficient personal participation to state a claim, the claim fails because the

Program Statement did not require these defendants to review the entire

magazines.

      We AFFIRM the dismissal for untimeliness of Mr. Adams’ claims based on

the seizure of his magazines. To the extent he has alleged any timely claims

relating to the administrative process against defendants Wiley, Nalley, or Watts,




                                          -6-
we AFFIRM the dismissal on the basis that such allegations fail to state a claim.

Mr. Adams’ motion to proceed in forma pauperis is GRANTED.


                                                   Entered for the Court



                                                   Bobby R. Baldock
                                                   Circuit Judge




                                        -7-
