                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                    UNITED STATES CO URT O F APPEALS
                                                                 October 31, 2007
                                                   Elisabeth A. Shumaker
                             TENTH CIRCUIT             Clerk of Court



 ISSIA K A I. N A MO K O ,

               Plaintiff - Appellant,                    No. 07-1171
          v.                                            (D. Colorado)
 M ILG A RD M A N U FA CTU RIN G             (D.C. No. 06-cv-2031-W DM -M EH)
 IN CO RPO RA TED ,

               Defendant - Appellee.



                             OR D ER AND JUDGM ENT *


Before L UC ER O, HA RTZ, and GORSUCH, Circuit Judges.


      Issiaka Namoko appeals pro se from the district court’s dismissal of his

Title VII complaint as barred by the statute of limitations. W e conclude that his

complaint was timely because under the peculiar facts of this case, the limitations

period should have been tolled during the pendency of his application to proceed

in form a pauperis. W e agree with the district court, however, that his claims



      *
       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not binding precedent except under the doctrines of law of the case, res judicata,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. It may be cited, however, for its persuasive value
consistent w ith Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
arising out of a prior consent decree were improper in this case. W e therefore

affirm in part, reverse in part, and remand for further proceedings.

I.      B ACKGR OU N D

        On December 11, 2005, M r. Namoko filed a discrimination charge with the

Equal Employment Opportunity Commission (EEOC). He alleged that M ilgard

M anufacturing, Inc. (M ilgard) had unlaw fully refused to hire him based on his

race, color, and national origin. He received a notice of right to sue on June 29,

2006.

        On July 28, 2006, M r. Namoko submitted to the United States District

Court for the District of Colorado both a complaint and an amended complaint.

On August 3, per order of the magistrate judge, the court clerk commenced a civil

action, filing both complaints under case number 06-cv-1512. The order also

directed M r. Namoko to cure deficiencies in his pleadings, giving him 30 days to

resubmit his complaint on the proper form and to submit either a filing fee or an

application for leave to proceed in forma pauperis (IFP). In response to this

order, M r. Namoko on September 1, 2006, submitted a third draft of the complaint

and an IFP motion and affidavit. Although the new complaint was on the proper

form, the district court dismissed it without prejudice on September 15, 2006,

because the form containing his IFP motion and affidavit w as missing a page.

        On September 29, 2006, M r. Namoko submitted his fourth draft of the

complaint and a new IFP application with a motion requesting reconsideration of

                                         -2-
the district court’s decision to dismiss the earlier complaints, or, in the

alternative, requesting that the court file the new complaint with “a new case

number.” M ot. for Recons., No. 06-cv-1512, Sept. 29, 2006. In an order dated

October 11, 2006, the court construed the motion as a motion under Federal Rule

of Civil Procedure 59(e), w hich it denied, and commenced a new civil action.

The new case number was No. 06-cv-2031. The October 11 order was filed and

docketed on October 12 in both case numbers 06-cv-1512 and 06-cv-2031. The

fourth complaint and the IFP application were filed in No. 06-cv-2031 on

October 12.

      The complaint alleged the following: W hen M r. Namoko called to check

the status of employment applications that he had filed with M ilgard, M ilgard

employees made fun of him, mimicked his accent, placed him on hold

indefinitely, and hung up on him. W hen he arrived in person, he was asked to

leave. In contrast, applicants of other races w ere treated w ith respect, were

permitted to meet with human resources personnel, and were offered jobs

“automatically.” R. Vol. I Doc. 3 at 3–4. The complaint stated that M r. Namoko

had received his right-to-sue notice from the EEOC on June 29, 2006. It also

mentioned a consent decree entered in Colorado federal district court in M ay 2004

in a case brought by the EEOC against M ilgard. The complaint alleged that he

was an “approve[d] class member,” id. at 6, and sought a fairness hearing, as

provided in the consent decree.

                                           -3-
      On December 28, 2006, M ilgard filed a M otion to Dismiss, or in the

Alternative, M otion to Strike (M ilgard’s M otion). First, it sought dismissal of

M r. Namoko’s complaint as time-barred. Title VII of the Civil Rights Act of

1964 gives an aggrieved person 90 days from the date of receiving the right-to-

sue notice to file a complaint. See 42 U.S.C. § 2000e-5(f)(1). M ilgard argued

that because M r. Namoko had received the right-to-sue notice on June 29, 2006,

he had until September 27, 2006, to file the lawsuit; so the complaint submitted

on September 29 and filed on October 12 was too late. In the alternative,

M ilgard’s M otion asked the district court to strike the portions of the complaint

relating to the consent decree. Insofar as M r. Namoko sought a fairness hearing

afforded by the consent decree, asserted M ilgard, he could submit a petition in the

case in which the decree was entered.

      On January 4, 2007, M r. Namoko filed a response apparently asserting (the

response is difficult to comprehend) that his complaint had been filed within 90

days after he received the right-to-sue notice, but he did not contradict the

statement in his complaint that he had received the right-to-sue notice on June 29,

2006. M r. Namoko also opposed the motion to strike and argued that he was

entitled to a hearing because M ilgard was not complying with the consent decree.

      The magistrate judge recommended that M ilgard’s M otion be granted

because M r. Namoko’s complaint was untimely. The magistrate judge explained

that M r. Namoko w as not entitled to tolling of the 90-day limitations period,

                                          -4-
because the earlier lawsuit (No. 06-cv-1512) did not toll the limitations period

and there was no evidence that M ilgard had engaged in any wrongdoing that

would entitle M r. Namoko to equitable tolling. The magistrate judge

recommended in the alternative that M r. Namoko’s allegations regarding the

consent decree be stricken as immaterial to his Title VII complaint. On April 6,

2007, the district court issued an order accepting the magistrate judge’s

recommendation on M ilgard’s M otion. M r. Namoko filed a timely notice of

appeal. W e have jurisdiction under 28 U.S.C. § 1291.

II.   D ISC USSIO N

      M r. Namoko’s brief on appeal is very difficult to understand. M uch of it

appears to relate to his claims arising out of the consent decree. Also, he seems

to argue that his Rule 59(e) motion in case No. 06-cv-1512 was timely and should

have been granted.

      As for any claims that M r. Namoko m ay have arising out of the consent

decree, he must file a pleading in the case in which it was entered, because the

court in that case has sole jurisdiction to enforce the consent decree. See Figures

v. Bd. of Pub. Utils. of Kansas City, Kan., 967 F.2d 357, 361 (10th Cir. 1992).

W e therefore affirm the district court’s decision insofar as it dismisses all claims

arising out of the consent decree.

      Turning to the timeliness of M r. Namoko’s complaint in this case, we agree

with the district court that the complaint was not filed within 90 days of the right-

                                          -5-
to-sue notice. The sole issue is w hether M r. Namoko is entitled to equitable

tolling. Although M r. Namoko’s briefs are particularly difficult to understand, he

has argued, both before us and during district-court proceedings, his belief that

his filings were timely. Aware of this, the magistrate judge expressly considered

the question whether his suit could be saved by application of the doctrine of

equitable tolling. So did the district court. M indful of our obligations to pro se

litigants, we follow suit. In doing so, we note that, on notice of the potential

applicability of equitable tolling, M ilgard had the opportunity to address the

question both before the district court and our own, and it has done so at length.

      W e have held that the limitations period is tolled in a Title VII case while

an IFP application is pending before the district court. See Jarrett v. US Sprint

Commc’ns Co., 22 F.3d 256, 259 (10th Cir. 1994). Here, unlike in Jarrett, the

period that would be tolled— from the submission of the IFP application on

September 1, 2006, until denial of the application on September 15— was in an

earlier case, not the case dismissed with prejudice as untimely. But the ultimately

accepted request for IFP w as submitted in the original case, albeit with a motion

for reconsideration. If the district court had granted that request in the original

case, Jarrett would have required tolling and the complaint submitted on

September 29, 2006, would have been timely. (The 90-day period would have

expired on September 27, 2006, but the period was tolled from September 1 to

September 15 while the IFP application was pending before the court.) W e do not

                                          -6-
think that M r. Namoko’s fourth complaint should be rendered untimely simply

because the district court exercised its discretion to order that it be filed in a new

case rather than in the one in w hich it was originally submitted. W e therefore

conclude that M r. Namoko’s complaint was timely. W e need not address

M r. Namoko’s contentions regarding discovery, because they can be revisited on

remand.

III.   C ON CLU SIO N

       W e AFFIRM the district court’s ruling striking the claims of the complaint

arising out of the consent decree, REVERSE the court’s dismissal of

M r. Namoko’s lawsuit as untimely, and REM AND for further proceedings.



                                                 ENTERED FOR THE COURT



                                                 Harris L Hartz
                                                 Circuit Judge




                                           -7-
