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

                             FOR THE TENTH CIRCUIT                              March 11, 2016
                         _________________________________
                                                                             Elisabeth A. Shumaker
                                                                                 Clerk of Court
RAY NUNN,

      Plaintiff - Appellant,

v.                                                            No. 15-1483
                                                     (D.C. No. 1:15-CV-02166-LTB)
JAMES RELICH, Lt., JEREMIAH                                     (D. Colo.)
HANSEN; ARCHULETA, Warden of
Fremont Correctional Facility; JOHN
DOES,

      Defendants - Appellees.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before LUCERO, MATHESON, and BACHARACH, Circuit Judges.
                 _________________________________

       Ray Nunn appeals from the district court’s dismissal of his complaint as time-

barred under 28 U.S.C. § 1915(e)(2)(B)(ii). Exercising jurisdiction under 28 U.S.C.

§ 1291, we affirm.




       *
         After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in 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 This order and judgment is not binding precedent,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.
                                   I. BACKGROUND

       On September 30, 2015, Mr. Nunn, a Colorado state prisoner, filed a pro se

complaint against prison officials at the Fremont Correctional Facility, where he was

being held.1 Mr. Nunn alleged that on July 11, 2013, Officers James Relich and Jeremiah

Hansen confiscated his personal property. He sued under § 1983, alleging equal

protection and due process violations.

       On October 7, 2015, a magistrate judge determined Mr. Nunn’s § 1983 claims

were time-barred and ordered Mr. Nunn to show cause within 30 days why his complaint

should not be dismissed.2

       On November 17, 2015 the district court held Mr. Nunn’s claims were time-barred

and dismissed his complaint with prejudice.

       That same day, in response to the magistrate judge’s October 7, 2015 order to

show cause, Mr. Nunn filed a proposed amended complaint.

                                    II. DISCUSSION

       On appeal, Mr. Nunn argues he did not receive the magistrate judge’s order until

October 12, 2015, and that he responded within 30 days on November 11, 2015.




       1
        Mr. Nunn signed the complaint on September 23, 2015, which does not affect
our analysis regarding the statute of limitations.
       2
       The magistrate judge also recommended that the complaint be dismissed because
Mr. Nunn’s claims were insufficiently pled. We need not consider whether Mr. Nunn’s
complaint failed to state a claim because the statute of limitations disposes of this claim.



                                              -2-
       We affirm because 1) Mr. Nunn’s complaint was time-barred, and 2) even if we

consider his proposed amended complaint in response to the magistrate judge’s order, he

failed to show there or on appeal why his complaint should not be considered time-

barred.

       “We review de novo the district court’s decision to dismiss an IFP complaint

under 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim.” Kay v. Bemis, 500 F.3d

1214, 1217 (10th Cir. 2007). A district court may dismiss a pro se complaint for failure

to state a claim under 28 U.S.C. § 1915 when 1) “it is obvious that the plaintiff cannot

prevail on the facts he has alleged” and 2) “it would be futile to give him an opportunity

to amend.” Id. (quotations omitted). “We apply the same standard of review for

dismissals under § 1915(e)(2)(B)(ii) that we employ for Federal Rule of Civil Procedure

12(b)(6) motions to dismiss for failure to state a claim.” Id. Under this standard, “[i]f the

allegations [in the complaint] show that relief is barred by the applicable statute of

limitations, the complaint is subject to dismissal for failure to state a claim.” Jones v.

Bock, 549 U.S. 199, 215 (2007).

          “A complaint may be dismissed sua sponte under § 1915 based on an affirmative

defense—such as statute of limitations—only when the defense is obvious from the face

of the complaint and no further factual record is required to be developed.” Fogle v.

Pierson, 435 F.3d 1252, 1258 (10th Cir. 2006) (quotations omitted).

       Colorado law establishes the relevant two-year statute of limitations for Mr.

Nunn’s § 1983 claims. See Beck v. City of Muskogee Police Dep’t, 195 F.3d 553, 557

(10th Cir. 1999) (“State statutes of limitations applicable to general personal injury


                                              -3-
claims supply the limitations periods for § 1983 claims.”); Colo. Rev. Stat. § 13-80-102

(two-year statute of limitations). The incident giving rise to Mr. Nunn’s complaint

occurred in July 2013, more than two years before he filed his complaint in September

2015. Even if we consider Mr. Nunn’s amended complaint filed in response to the

magistrate judge’s order to show cause, he provided no reason why the complaint should

not be considered time-barred. He similarly fails to show on appeal why his complaint

was not time-barred.

                                  III. CONCLUSION

       We affirm. We also deny Mr. Nunn’s request to proceed in forma pauperis; he is

therefore responsible for immediate payment of the unpaid balance of his appellate filing

fee.


                                             ENTERED FOR THE COURT,



                                             Scott M. Matheson, Jr.
                                             Circuit Judge




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