                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                   UNITED STATES COURT OF APPEALS                    May 8, 2019
                                                                 Elisabeth A. Shumaker
                                TENTH CIRCUIT                        Clerk of Court



 ELIAS HERRERA-ZAMORA,

              Plaintiff - Appellant,

 v.                                                     No. 19-1032
                                               (D.C. No. 1:18-CV-01913-LTB)
 DAVID CROSBY; CITY AND                                   (D. Colo.)
 COUNTY OF DENVER; SHERIFF
 DEPARTMENT JAIL FACILITIES;
 NORMANDO ROBERTO PACHECO;
 BARBARA SUZANNE SKALLA,

              Defendants - Appellees.


                           ORDER AND JUDGMENT *


Before CARSON, BALDOCK, and MURPHY, Circuit Judges.



      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        This order and judgment is not binding precedent except under the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.
      Elias Herrera-Zamora, a federal prisoner proceeding pro se, appeals the

dismissal of the civil rights complaint he brought pursuant to 42 U.S.C. § 1983

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

U.S. 388 (1971). In the complaint, filed on July 27, 2018, Herrera-Zamora

alleged he was arrested by DEA officers without a valid arrest warrant and was

then unlawfully incarcerated by the Denver County Sheriff’s Department.

      The district court dismissed Herrera-Zamora’s complaint, concluding it was

barred by the two-year Colorado statute of limitations applicable to tort actions.

See Colo. Rev. Stat. § 13-80-102. The district court also concluded Herrera-

Zamora failed to show entitlement to equitable tolling of the limitations period.

Accordingly, the court dismissed the action as untimely under 28 U.S.C.

§ 1915(e)(2)(B)(i). We review de novo the dismissal of an action under Rule

12(b)(6) based on the statute of limitations. 1 Brady v. UBS Fin. Servs., Inc., 538

F.3d 1319, 1323 (10th Cir. 2008). “We review the district court’s refusal to apply

equitable tolling for an abuse of discretion.” Garrett v. Fleming, 362 F.3d 692,

695 (10th Cir. 2004).

      In his appellate brief, Herrera-Zamora asserts the district court erred by

applying Colorado law instead of federal law to determine the statute of


      1
        The district court also denied the motion for reconsideration that Herrera-
Zamora filed on December 3, 2018. Herrera-Zamora does not reference that order
in his appellate brief and, thus, we do not review its denial.

                                         -2-
limitations. It is well-settled, however, that “state law determines the appropriate

statute of limitations and accompanying tolling provisions” for § 1983 and Bivens

claims. Fratus v. DeLand, 49 F.3d 673, 675 (10th Cir. 1995) (§ 1983); Indus.

Constr. Corp. v. U.S. Bureau of Reclamation, 15 F.3d 963, 968 (10th Cir. 1994)

(Bivens). Federal law only controls the issue of when the federal cause of action

accrued. Fratus, 49 F.3d at 675. Here, there is no dispute that the cause of action

accrued on June 16, 2011, the day Herrera-Zamora was arrested by federal

officers and incarcerated by the Denver County Sheriff’s Department. There is

also no dispute that Herrera-Zamora did not file his complaint until more than

seven years later, on July 27, 2018. Accordingly, absent some basis for equitable

tolling, the complaint was untimely under Colo. Rev. Stat. § 13-80-102.

      Herrera-Zamora’s appellate brief does not contain any reasoned explanation

of why he is entitled to equitable tolling. Instead, he makes vague allegations that

a miscarriage of justice will occur if his claims are not addressed on the merits.

These arguments are insufficient to show entitlement to equitable tolling.

Herrera-Zamora also implies that Defendants were obligated to come forward

within the two-year limitations period and admit that they engaged in

unconstitutional conduct. It is unclear whether this is an argument that Herrera-

Zamora is entitled to equitable tolling because Defendants fraudulently concealed

their conduct, but we will treat it as such. See Hall v. Bellmon, 935 F.2d 1106,


                                         -3-
1110 (10th Cir. 1991) (“A pro se litigant’s pleadings are to be construed liberally

and held to a less stringent standard than formal pleadings drafted by lawyers.”).

Although fraudulent concealment is a basis for equitable tolling, the plaintiff

must show “(1) the concealment of a material existing fact that in equity and good

conscience should be disclosed; (2) knowledge on the part of the party against

whom the claim is asserted that such a fact is being concealed; (3) ignorance of

that fact on the part of the one from whom the fact is concealed; (4) the intention

that the concealment be acted upon; and (5) action on the concealment resulting in

damages.” First Interstate Bank of Fort Collins, N.A. v. Piper Aircraft Corp., 744

P.2d 1197, 1200 (Colo. 1987) (en banc). Herrera-Zamora cannot meet this burden

because, by his own admission, he was fully aware of the facts giving rise to his

claim on the date he was arrested and detained.

      Having reviewed the record, Herrera-Zamora’s appellate brief, and the

applicable law, we conclude the dismissal of Herrera-Zamora’s complaint was

proper. Accordingly, finding no reversible error, we affirm the district court’s

dismissal of Herrera-Zamora’s complaint for substantially the reasons stated in

the district court’s order dated October 19, 2018. In light of the district court’s

well-reasoned order and the absence of any coherent argument in Herrera-

Zamora’s appellate brief, this court concludes Herrera-Zamora’s appeal is

frivolous. Accordingly, his motion to proceed in forma pauperis is denied and


                                         -4-
his appeal is dismissed under 28 U.S.C. § 1915(e)(2)(B). Herrera-Zamora is

reminded of his responsibility to immediately remit any unpaid balance of the

appellate filing fee.

                                        ENTERED FOR THE COURT


                                        Michael R. Murphy
                                        Circuit Judge




                                       -5-
