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

                           FOR THE TENTH CIRCUIT                      December 16, 2013

                                                                      Elisabeth A. Shumaker
                                                                          Clerk of Court
CECIL BYNUM,

             Plaintiff-Appellant,

v.                                                         No. 13-1109
                                              (D.C. No. 1:12-CV-00064-WYD-MJW)
MUNICIPALITY, CITY AND COUNTY                               (D. Colo.)
OF DENVER; KERI JOHNSON; DAVID
RYAN; A.P. RICHMOND; J. CASIAS;
J. ANDREWS; J. SIMMONS; ROBERT
HART,

             Defendants-Appellees.


                            ORDER AND JUDGMENT*


Before LUCERO, Circuit Judge, BRORBY, Senior Circuit Judge, and
BACHARACH, Circuit Judge.


      Mr. Cecil Bynum, a Colorado prisoner, sued under 42 U.S.C. § 1983 for events

occurring over six years earlier. The district court concluded that the claims were


*
      After examining the briefs and appellate record, the Court 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 does not constitute binding precedent except under
the doctrines of law of the case, res judicata, and collateral estoppel. Nonetheless,
the order and judgment may be cited for its persuasive value under Fed. R. App. P.
32.1 and 10th Cir. R. 32.1.
time-barred and dismissed the action. Mr. Bynum appeals the dismissal and seeks

leave to proceed in forma pauperis. We affirm the dismissal, but allow Mr. Bynum to

proceed in forma pauperis.

I.    THE ALLEGATIONS AND THE TIMING OF THE UNDERLYING
      EVENTS

      Mr. Bynum brought the present action no earlier than January 9, 2012.1 In the

suit, he claims that law enforcement personnel: (1) seized his belongings on April

14, 2004, and failed to return them for roughly thirteen months, and (2) committed an

assault on January 27, 2005.

      The Defendants moved for dismissal under Fed. R. Civ. P. 12(b)(6), arguing

that the complaint failed to state a valid claim because the allegations in the

complaint were untimely. The district court agreed and dismissed the action.

II.   THE STATUTE OF LIMITATIONS

      We review de novo a district court’s determination on timeliness. Sterlin v.

Biomune Sys., 154 F.3d 1191, 1194 (10th Cir. 1998). Because Mr. Bynum is pro se,

we liberally construe his pleadings, but do not act as his advocate. See Yang v.

Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008).




1
       The complaint was file-stamped on January 11, 2012. But it was mailed to the
court clerk on January 9, 2012. If Mr. Bynum used the prison-mail system, the
complaint would have been deemed “filed” on January 9, 2012. See Hoggro v.
Boone, 150 F.3d 1223, 1226 n.3 (10th Cir. 1998). Otherwise, the “filing date” would
have been January 11, 2012, when the complaint was file-stamped by the court clerk.


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      The limitations period is two years. See Workman v. Jordan, 32 F.3d 475, 482

(10th Cir. 1994). Because Mr. Bynum did not sue before January 9, 2012, we must

decide whether the cause of action accrued before January 9, 2010.

      The claims accrued when Mr. Bynum knew, or had reason to know, of the

injury that formed the basis of the suit. See id. “Claims arising out of police actions

toward a criminal suspect, such as arrest, interrogation, or search and seizure, are

presumed to have accrued when the actions actually occur.” Johnson v. Johnson

Cnty. Comm’n Bd., 925 F.2d 1299, 1301 (10th Cir. 1991). For the sake of argument,

we consider the accrual date to be the latest of the events giving rise to Mr. Bynum’s

claims (January 27, 2005), when one of the defendants allegedly used excessive force

while arresting him. By then, Mr. Bynum certainly knew or should have known that

he had been beaten and that his belongings had been seized. Still, he waited until

January 9, 2012 (at the earliest) to initiate the present action. Therefore, the claims

would be untimely unless the limitations period is tolled.

      Mr. Bynum urges equitable tolling. The district court decided that Mr. Bynum

was not entitled to equitable tolling, and we review that decision for an abuse of

discretion. See Braxton v. Zavaras, 614 F.3d 1156, 1159 (10th Cir. 2010). In doing

so, we conclude that the district court acted within its discretion by declining the

request.

      Equitable tolling is governed by Colorado law. See id. (“In a § 1983 action,

state law governs issues regarding the statute of limitations and tolling.”). For


                                          -3-
equitable tolling in Colorado, claimants must show that extraordinary circumstances

prevented them from filing the suit within the limitations period. See Dean Witter

Reynolds, Inc. v. Hartman, 911 P.2d 1094, 1097 (Colo. 1996) (stating that equitable

tolling rests on the principle “that it is unfair to penalize the plaintiff for

circumstances outside his or her control, so long as the plaintiff makes good faith

efforts to pursue the claims when possible”).

       The district court acted within its discretion in concluding that Mr. Bynum’s

circumstances did not prevent him from suing. Indeed, he sued on the same cause of

action in state court on January 3, 2006, which was within the two-year limitations

period for his federal claims. The state district court dismissed the action without

prejudice, and that suit did not toll the limitations period. See King v. W.R. Hall

Transp. & Storage Co., 641 P.2d 916, 920 (Colo. 1982).

       Mr. Bynum argues that the state district court should not have dismissed this

suit or two others. But Mr. Bynum did not need to sue in state court before suing in

federal court under § 1983. See Coleman v. Faulkner, 697 F.2d 1347, 1349

(10th Cir. 1982) (per curiam) (“Section 1983 does not require exhaustion of state

judicial remedies.”). He chose to do so. And if the state courts mishandled his prior

suits, he cannot use the errors in state court to extend his time to sue in federal court.

       Finally, Mr. Bynum argues in his reply brief that he had no way of learning

about the two-year period of limitations because of the scarcity of legal materials

where he was housed. But this argument was omitted in Mr. Bynum’s opening brief.


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Thus, we decline to address this argument. See United States v. Murray, 82 F.3d 361,

363 n.3 (10th Cir. 1996) (“We decline to consider arguments raised for the first time

in a reply brief.”).

       Without tolling, the limitations period started on January 27, 2005 (at the

latest) and ended by January 27, 2007. But Mr. Bynum did not begin the present suit

until January 9, 2012, at the earliest. This filing was almost five years too late, and

the federal district court properly dismissed the action on the ground of timeliness.

As a result, we affirm.2

III.   MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS

       Though we affirm, we grant Mr. Bynum’s motion for leave to proceed in

forma pauperis. With this leave, Mr. Bynum need not prepay the filing fee. But, he

remains obligated to make partial payments on his filing fee until it is paid in full.


                                         Entered for the Court



                                         Robert E. Bacharach
                                         Circuit Judge




2
       Mr. Bynum also argues that the district court erred in concluding that he failed
to state a claim for municipal liability. But the district court’s dismissal rested on
timeliness, not insufficiency of the allegations for municipal liability. As a result, we
need not address this argument.


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