                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                         MAY 19 2005
                                 TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                              Clerk

 JOSEPH CURIALE,

               Plaintiff - Appellant,                   No. 04-4289
          v.                                   (D.C. No. 2:03-CV-1086 PGC)
 UINTAH COUNTY SHERIFF RICK                               (D. Utah)
 HAWKINS, and CHIEF UINTAH
 COUNTY DEPUTY ROBERT
 VANDERBUSSE,

               Defendants - Appellees.


                            ORDER AND JUDGMENT *


Before SEYMOUR, HARTZ, and McCONNELL, Circuit Judges.


      Joseph Curiale, proceeding pro se and in forma pauperis, appeals from the

district court’s dismissal of his claims. He seeks injunctive relief under 42 U.S.C.

§ 1983, alleging that Defendants, Uintah County Sheriff Rick Hawkins and Chief



      *
        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not binding precedent, except under the doctrines of law of the case, res judicata,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. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
Deputy Robert Vanderbusse, violated his civil rights. We have jurisdiction under

28 U.S.C. § 1291 and affirm.

I. BACKGROUND

      Mr. Curiale claims that Defendants violated his civil rights by (1) framing

him for unnamed actions and having him committed to a mental hospital in 1996

and 1997 and (2) making threatening statements. He alleges that on

December 15, 2003, Vanderbusse threatened him by saying, “Go in your house

now or I’ll take you in,” Aplt. Br. at 3, and on October 9, 2003, Hawkins told him

to “move out to Vernal City.” Id.

      Mr. Curiale’s suit was referred to a magistrate judge, who recommended

that Defendants’ motion to dismiss be granted. The magistrate judge found that

any claims relating to Mr. Curiale’s 1996-97 commitment to the Utah State

Mental Hospital were time-barred under Utah Code Ann. § 78-12-25(2) See

Arnold v. Duchesne County, 26 F.3d 982, 985 (10th Cir. 1994); Mismash v.

Murray City, 730 F.2d 1366, 1367 (10th Cir. 1984) (“[A]ll section 1983 claims

brought in federal court in Utah are subject to the four-year limitations period

provided in Utah Code Ann. § 78-12-25.”). She also found that the alleged

threats made by Defendants were “insufficient to state a claim upon which relief

may be granted.” R. Vol. I, doc. 50 at 4. See Collins v. Cundy, 603 F.2d 825,

827 (10th Cir. 1979) (“Verbal harassment or abuse [by law enforcement] . . . is


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not sufficient to state a constitutional deprivation under 42 U.S.C. § 1983.”). The

district court adopted the magistrate judge’s Report and Recommendation and

granted Defendants’ motion to dismiss.

II. DISCUSSION

      “We review de novo a district court's ruling on a motion to dismiss for

failure to state a claim upon which relief can be granted. Allegations in the

plaintiff's complaint are presumed true.” Miller v. Glanz, 948 F.2d 1562, 1565

(10th Cir. 1991) (internal citation omitted). We also review de novo “the district

court’s application of the statute of limitations[.]” Van Tu v. Koster, 364 F.3d

1196, 1198 (10th Cir. 2004). In applying this standard, “[w]e construe a pro se

litigant’s pleadings liberally.” Miller, 948 F.2d at 1565.

      On appeal Mr. Curiale restates the same claims under 28 U.S.C. § 1983,

arguing that the magistrate judge was biased and unfair in recommending they be

dismissed. We find no error in either the magistrate judge’s application of the

statute of limitations to the claims based on Mr. Curiale’s 1996-97 commitment or

her recommendation to dismiss his claims that Defendants’ statements violated his

civil rights. These unfavorable rulings are insufficient to demonstrate judicial

bias. See Liteky v. United States, 510 U.S. 540, 555 (1994) (“[J]udicial rulings

alone almost never constitute a valid basis for a bias or partiality motion.”).




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      Mr. Curiale also appeals the denial of his motions for appointment of

counsel. “We review the denial of appointment of counsel in a civil case for an

abuse of discretion.” Rucks v. Boergermann, 57 F.3d 978, 979 (10th Cir. 1995).

“The burden is upon the applicant to convince the court that there is sufficient

merit to his claim to warrant the appointment of counsel.” McCarthy v.

Weinberg, 753 F.2d 836, 838 (10th Cir. 1985). In determining whether to appoint

counsel, the court should consider the following factors: “the merits of the

litigant’s claims, the nature of the factual issues raised in the claims, the litigant’s

ability to present his claims, and the complexity of the legal issues raised by the

claims.” Rucks, 57 F.3d at 979 (internal quotation marks omitted). The

magistrate judge concluded “that (1) it is not clear yet whether [Mr. Curiale] has

asserted a colorable claim; (2) the issues involved are not complex; and (3)

[Mr. Curiale] is able to adequately pursue this matter.” R. Vol. I, doc. 31 at 2-3.

We find no abuse of discretion in her denial of Mr. Curiale’s motion to appoint

counsel.

III. CONCLUSION

      For substantially the same reasons set forth in the district court’s

November 17, 2004, Order and the magistrate judge’s October 25, 2004, Report




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and Recommendation, we AFFIRM. Any pending motions are DENIED.


                                ENTERED FOR THE COURT


                                Harris L Hartz
                                Circuit Judge




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