                                                                           FILE D
                                                                United States Court of Appeals
                                                                        Tenth Circuit

                      U N IT E D STA T E S C O U R T O F A PPE A L S June 10, 2008
                                                                   Elisabeth A. Shumaker
                             FO R T H E TE N T H C IR C U IT           Clerk of Court



    JILL COIT,

                 Plaintiff-Appellant.
                                                          No. 07-1370
    v.                                          (D.C. No. 98-cv-2031-LTB-M EH )
                                                           ( D. Colo.)
    ARISTEDES ZAVARAS; M IKE
    W ILLIAM S; W AYNE M AIDEN;
    JUANITA NOVAK,

                 Defendants-Appellees.



                             O R D E R A N D JU D G M E N T *


Before B R ISC O E , PO R FIL IO , and B A L D O C K , Circuit Judges.




         Plaintiff Jill Coit appeals from the district court’s order for summary

judgment in favor of the defendants that dismissed, as time barred, the only

remaining claim in her suit under 42 U.S.C. § 1983. W e exercise jurisdiction

pursuant to 28 U.S.C. § 1291 and affirm.


*
       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not binding precedent, except under the doctrines of law of the case, res judicata,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 with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      M s. Coit, a Colorado state prisoner, filed suit on September 21, 1998. Her

amended complaint, filed February 2, 2000, alleged for the first time that she had

been sexually assaulted by a prison employee, Joseph Smith, between June 1995

and December 1996, and despite her reports of the attacks, the defendants,

Aristedes Zavaras, M ike W illiams, W ayne M aiden, and Juanita Novak, failed to

protect her from further assaults. Defendants filed motions to dismiss and for

summary judgment, which were granted by the district court. On appeal, we

affirmed the court’s orders with the exception of M s. Coit’s claim of deliberate

indifference, and remanded the case for further proceedings. Coit v. Zavaras, No.

05-1045, 2006 W L 895309 (10th Cir. Apr. 7, 2006).

      On remand, the defendants filed a renewed motion for summary judgment

in which they argued that M s. Coit’s deliberate indifference claim was barred by

the statute of limitations. In a thorough and well-reasoned recommendation, the

magistrate judge held that the claim was time barred. Over M s. Coit’s objection,

the district court entered an order adopting the recommendation and entered an

order dismissing the amended complaint with prejudice.

      “W e review the district court’s grant of summary judgment de novo,

applying the same legal standard used by the district court.” Hutchinson v. Pfeil,

105 F.3d 562, 564 (10th Cir. 1997). It is equally well established that

      [a] defendant may use a motion for summary judgment to test an
      affirmative defense which entitles that party to a judgment as a

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      matter of law. The defendant making such a motion must
      demonstrate that no disputed material fact exists regarding the
      affirmative defense asserted. If the defendant meets this initial
      burden, the plaintiff must then demonstrate with specificity the
      existence of a disputed material fact. If the plaintiff fails to make
      such a showing, the affirmative defense bars his claim, and the
      defendant is then entitled to summary judgment as a matter of law.

Id. at 564 (citations omitted).

      “Limitations periods in § 1983 suits are to be determined by reference to

the appropriate state statute of limitations and the coordinate tolling rules[.] W e

have made clear that the statute of limitations for § 1983 actions brought in

Colorado is two years from the time the cause of action accrued. A § 1983 action

accrues when facts that would support a cause of action are or should be

apparent.” Fogle v. Pierson, 435 F.3d 1252, 1258 (10th Cir. 2006) (citations and

quotation marks omitted).

      M s. Coit’s opening brief does not address the statute of limitations; instead,

the first mention of the issue is in her reply brief in which she claims that her

original complaint contained allegations of M r. Smith’s abuse and the defendants’

failure to protect her, but those pages were removed by prison officials. She

appears also to argue that the deliberate indifference claim in the amended

complaint is saved by the doctrines of equitable tolling and relation back.

Ordinarily, “we do not review issues raised for the first time in a reply brief,”

Stump v. Gates, 211 F.3d 527, 533 (10th Cir. 2000), because, among other things,



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it denies the appellee “the opportunity to demonstrate that the record does not

support an appellant’s factual assertions and to present an analysis of the

pertinent legal precedent that may compel a contrary result.” Id. However,

because both M s. Coit and the defendants addressed these arguments in the

district court, we exercise our discretion to review them on appeal.

      According to M s. Coit, she reported M r. Smith’s assaults to the defendants

when they began in June 1995, and she continued to do so through December

1996, when he was transferred to another facility. Thus, her cause of action

accrued at the latest in December 1996, and she had until December 1998, to file

suit. Fogle, 435 F.3d at 1258. Although the original complaint, filed September

21, 1998, includes claims arising from assaults during 1997, by a different prison

employee, it contains no mention of M r. Smith whatsoever. Thus, unsurprisingly,

likewise it contains no allegations of any reports of such misconduct to any of the

defendants. In fact, the first mention of M r. Smith and the defendants’ alleged

failure to protect appears in a motion to amend the complaint, filed in October

1999, which was denied on procedural grounds. Eventually, a proper amended

complaint was filed February 2, 2000.

      There is no merit to M s. Coit’s first argument that the pages concerning

M r. Smith and the defendants’ concomitant failure to protect were removed from

the original complaint. In his written recommendation, the magistrate judge



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thoroughly reviewed the original complaint, including its pagination, paragraph

numbering, caption, and request for relief, and determined that no pages were

missing. Further, various court orders issued prior to February 2000, discussed

the claims contained in the original complaint, and M s. Coit never voiced any

concern that her claim of deliberate indifference had been overlooked.

      W e also agree with the magistrate judge that the deliberate indifference

claim in M s. Coit’s amended complaint does not relate back to filing of the

original complaint on September 21, 1998. “An amendment to a pleading relates

back to the date of the original pleading when[,]” among other things, “the

amendment asserts a claim or defense that arose out of the conduct, transaction or

occurrence set out – or attempted to be set out – in the original pleading[.]” Fed.

R. Civ. P. 15(c)(1)(B) (formerly Fed. R. Civ. P. 15(c)(2)). “W e review de novo

the district court’s application of Rule 15(c) to undisputed facts, a purely legal

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

(quotation marks omitted). A comparison of the deliberate indifference claim in

the amended complaint reveals that it bears no relation to the claims, either “set

out – or attempted to be set out –,” Fed. R. Civ. P. 15(c)(1)(B), in the original

complaint. The original complaint contains allegations regarding a different

prison employee at a different time. Because the claim in the amended complaint

is not “grounded on the same nucleus of operative facts,” Gilles v. United States,



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906 F.2d 1386, 1390 (10th Cir. 1990), as the original complaint, it does not

“ar[i]se out of the same conduct, transaction, or occurrence[.]” Id. (quotation

marks omitted).

      Last, we agree that equitable tolling does not apply. “W e review the

district court’s refusal to apply equitable tolling for an abuse of discretion,”

applying “Colorado’s equitable tolling rules[.]” Garrett, 362 F.3d at 697. Under

Colorado law, “an equitable tolling of a statute of limitations is limited to

situations in which either the defendant has wrongfully impeded the plaintiff’s

ability to bring the claim or truly extraordinary circumstances prevented the

plaintiff from filing his or her claim despite diligent efforts.” Dean Witter

Reynolds, Inc. v. Hartman, 911 P.2d 1094, 1099 (Colo. 1996). “Once the statute

of limitations is raised as an affirmative defense, the burden shifts to the plaintiff

to show that the statute has been tolled.” Garrett v. Arrowhead Improvement

Ass’n, 826 P.2d 850, 855 (Colo. 1992). M s. Coit offers nothing to prove that the

doctrine should apply other than a reprise of the argument that the defendants

removed the pages of her original complaint, which we previously rejected as

lacking merit.

      W e GRANT M s. Coit’s motion to file her reply brief out of time. The

judgment of the district court is AFFIRM ED.




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      Entered for the Court




      M ary Beck Briscoe
      Circuit Judge




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