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

                       FOR THE TENTH CIRCUIT                        May 5, 2015
                       _________________________________
                                                                Elisabeth A. Shumaker
                                                                    Clerk of Court
MICHAEL E.D. GILYARD,

      Plaintiff - Appellant,

v.                                                  No. 14-6229
                                             (D.C. No. 5:14-CV-00923-D)
THOMAS GIBSON, Federal DEA                        (W.D. Oklahoma)
Agent; CHRIS GABEAU, Federal
DEA Agent; JERE HOLT, Federal
DEA Agent,

      Defendants - Appellees.
                   _________________________________

                       ORDER AND JUDGMENT *
                    _________________________________

Before GORSUCH, McKAY, and BACHARACH, Circuit Judges.
                _________________________________


     In 2014, Mr. Michael Gilyard sued under 42 U.S.C. § 1983 and

Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403

U.S. 388 (1971), 1 claiming violation of the Fourth Amendment in 2010.



*
      The Court has determined that oral argument would not materially
aid our consideration of the appeal. See Fed. R. App. P. 34(a)(2); 10th Cir.
R. 34.1(G). Thus, we have decided the appeal based on the briefs. Our
order and judgment does not constitute binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel.
1
      Mr. Gilyard filed the complaint on a form for actions brought under
42 U.S.C. § 1983. But in the body of the complaint, Mr. Gilyard asserted
jurisdiction based on both 42 U.S.C. § 1983 and Bivens.
But a two-year period of limitations applied, and Mr. Gilyard waited four

years to sue. Thus, the district court dismissed the suit.

      Mr. Gilyard appeals, urging tolling based on a legal disability. We

ask: Did the district court err in declining to toll the limitations period?

We conclude that the district court did not err because Mr. Gilyard failed

to satisfy his burden of proof for tolling under Oklahoma law. As a result,

we affirm.

                                  Timeliness

      Under § 1983 or Bivens, timeliness is determined through the state’s

limitations period for a personal injury claim. See Wilson v. Garcia, 471

U.S. 261, 276 (1985) (actions under 42 U.S.C. § 1983); Indus.

Constructors Corp. v. U.S. Bureau of Reclamation, 15 F.3d 963, 968 (10th

Cir. 1994) (Bivens actions). Under Oklahoma law, this period is two years.

See Okla. Stat. tit. 12 § 95(A)(3) (setting forth a two-year period of

limitations for “an action for injury to the rights of another, not arising on

contract”).

      Mr. Gilyard states in the complaint that the wrongdoing occurred in

February 2010. He sued less than a year later, but the district court ordered

dismissal without prejudice. Mr. Gilyard then waited until 2014 to file a

new complaint. 2


2
      Under Oklahoma law, Mr. Gilyard could file a new action within one
year of the dismissal. See Okla. Stat. tit. 12 § 100 (“If any action is
                                       2
      The issue of timeliness would ordinarily involve two factors: (1)

when the cause of action accrued, and (2) whether Mr. Gilyard is entitled

to equitable tolling. But the first factor is not at issue because the

complaint states that the wrongdoing and injury occurred in February 2010.

There is no question that the cause of action accrued at that point. Thus,

timeliness turns on the second factor: equitable tolling.

      When we review summary dismissal based on timeliness, we

ordinarily engage in de novo review. See Perkins v. Kan. Dep’t of Corrs.,

165 F.3d 803, 806 (10th Cir. 1999). But we have created a special rule for

equitable tolling, confining our review to the abuse-of-discretion standard.

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

      In considering whether the district court abused its discretion, we

consider the asserted grounds for equitable tolling. Mr. Gilyard alleges a

legal disability based on a learning disability and lack of competency. To

determine whether these allegations justify tolling, we consider Oklahoma

law. See Alexander v. Oklahoma, 382 F.3d 1206, 1217 (10th Cir. 2004).

      In Oklahoma, tolling may be permissible based on a legal disability.

See id. (“[T]he existence of a ‘legal disability’ provides proper grounds for


commenced within due time, and . . . the plaintiff fail in such action
otherwise than upon the merits, the plaintiff . . . may commence a new
action within one (1) year after the reversal or failure although the time
limit for commencing the action shall have expired before the new action is
filed.”). Mr. Gilyard acknowledges that he did not file a new action within
one year, but urges equitable tolling.
                                       3
    equitable tolling.”); Okla. Stat. tit. 12 § 96 (stating that when claimants

    suffer a legal disability, they can ordinarily wait up to one year to sue after

    removal of their disabilities). But Mr. Gilyard bears the burden of showing

    this disability. See Ray v. Oklahoma Furniture Mfg. Co., 40 P.2d 663, 668

    (Okla. 1934) (stating that under Oklahoma law, the plaintiff bears the

    burden of proof on tolling of the limitations period). 3

          The U.S. Magistrate Judge directed Mr. Gilyard to explain if he

    thought he was entitled to equitable tolling. See Order to Show Cause at 1-

    2 (Sept. 16, 2014) (Doc. 9) (directing Mr. Gilyard to state why the action

    should not be summarily dismissed on timeliness grounds, identifying

    possible reasons such as the application of equitable tolling). In

    responding, Mr. Gilyard did not mention a disability. Instead, he argued

    that the complaint had “related back” to his 2011 suit. The magistrate

    judge rejected this argument and recommended dismissal.

          In objecting to this recommendation, Mr. Gilyard asserted that (1) his

    educational testing in 2010 had shown a severe learning disability and (2)

    he was unable to comprehend his financial affairs. Objection to Report and

    Recommendation at 1-2 (Nov. 3, 2014) (Doc. 17). But Mr. Gilyard did not

    explain why his learning disability or inability to understand financial


3
           Oklahoma law governs the burden of proof for equitable tolling. See
    Roberts v. Barreras, 484 F.3d 1236, 1240 (10th Cir. 2007) (holding that
    state law governs the burden of proof on equitable tolling in a Bivens
    action).
                                           4
affairs would prevent him from filing a complaint. Indeed, in 2011, after

the alleged test results showing a severe learning disability, Mr. Gilyard

was able to file a complaint against the same defendants for the same

wrongdoing. See Compl., Gilyard v. Gibson, Case No. CIV-11-22-D (W.D.

Okla. Jan. 6, 2011) (Doc. 1). In these circumstances, we conclude that the

district court acted within its discretion in concluding that Mr. Gilyard had

not proven a legal disability. See, e.g., Laurson v. Leyba, 507 F.3d 1230,

1232 (10th Cir. 2007) (holding that dyslexia was not a ground to toll the

limitations period for a federal habeas action).

                   Request for an Evidentiary Hearing

      On appeal, Mr. Gilyard argues that he has evidence to show his

disability and should have had an opportunity for an evidentiary hearing.

We review the denial of an evidentiary hearing for abuse of discretion.

United States v. Clingman, 288 F.3d 1183, 1187 n.4 (10th Cir. 2002).

      Mr. Gilyard had an opportunity to submit written evidence to explain

his legal disability, but failed to take advantage of that opportunity. See,

e.g., Lyons v. Potter, 521 F.3d 981, 983 (8th Cir. 2008) (stating that an

evidentiary hearing was not necessary when a complainant had failed to

take advantage of an opportunity to present evidence justifying equitable

tolling). Mr. Gilyard points out that this opportunity did not include an

evidentiary hearing, but he had not asked for one in district court. In light

of the absence of a request, the district court acted within its discretion in

                                       5
declining to order an evidentiary hearing. See Robinson v. City of Edmond,

160 F.3d 1275, 1286 (10th Cir. 1998) (“Ordinarily, a district court does not

abuse its discretion in deciding not to hold an evidentiary hearing when no

such request is ever made.”).

                  Leave to Proceed in Forma Pauperis

     We grant Mr. Gilyard’s request for leave to proceed in forma

pauperis. But Mr. Gilyard must pay the remainder of his filing fees in

installments, as required by the Prison Litigation Reform Act, 28 U.S.C.

§ 1915(b).

                                   Entered for the Court



                                   Robert E. Bacharach
                                   Circuit Judge




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