	
                                                                                           FILED	
                                                                               United	States	Court	of	Appeals	
                                            UNITED STATES COURT OF APPEALS             Tenth	Circuit	
                                                                                              	
                                                 FOR THE TENTH CIRCUIT                May	26,	2016	
                                             _________________________________                	
                                                                                  Elisabeth	A.	Shumaker	
                                                                                       Clerk	of	Court	
NIGEL GILLINGS,

            Plaintiff - Appellant,

v.                                                                            No. 15-1486
                                                                     (D.C. No. 1:15-CV-00172-LTB)
LT. BANVELOS; LT. YAGAR; H.                                                     (D. Colo.)
WALKER; LT. HART,

            Defendants - Appellees.
                            _________________________________

                                                    ORDER AND JUDGMENT*
                                                _________________________________

Before KELLY, HOLMES, and MORITZ, Circuit Judges.
                  _________________________________

             Nigel Gillings—then a federal prisoner—brought suit under Bivens v. Six

Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971),

alleging, inter alia, an Eighth Amendment violation. The district court sua sponte ordered

Gillings to show cause why the court shouldn’t dismiss the action based on Gillings’




																																																								
             *
         After examining the brief and the 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 This order and judgment is not binding precedent,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. See Fed. R. App. P. 32.1; 10th Cir. R. 32.1.


	
	



failure to comply with Colorado’s two-year statute of limitations.1 See Roberts v.

Barreras, 484 F.3d 1236, 1238 (10th Cir. 2007) (“A Bivens action is subject to the

limitation period . . . set by the personal injury statute in the state where the cause of

action accrues.”).

             In response, Gillings asserted that the district court should equitably toll the statute

of limitations because Bureau of Prisons (BOP) employees allegedly interfered with his

efforts to exhaust his administrative remedies. See 42 U.S.C. § 1997e(a) (requiring

prisoners to exhaust administrative remedies before filing suit under federal law);	Porter

v. Nussle, 534 U.S. 516, 524 (2002) (explaining that § 1997e(a)’s exhaustion requirement

applies to Bivens actions). The district court rejected Gillings’ equitable-tolling argument

and dismissed his action with prejudice. See 28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b)(1);

42 U.S.C. § 1997e(c)(1). Gillings appeals, arguing the district court abused its discretion

in determining that he isn’t entitled to equitable tolling. See Alexander v. Oklahoma, 382

F.3d 1206, 1215 (10th Cir. 2004) (“We review the district court’s refusal to apply


																																																								
             1
         At the outset, Gillings suggests that the district court erred in sua sponte invoking
the statute-of-limitations defense. See Fratus v. DeLand, 49 F.3d 673, 675 (10th Cir.
1995) (holding that district court improperly dismissed pro se prisoner’s civil rights
complaint by sua sponte raising “statute of limitations defense that was neither patently
clear from the face of the complaint nor rooted in adequately developed facts”). But here,
the district court “issue[d] a show cause order giving [Gillings] an opportunity to explain
why the statute of limitations should be tolled.” Vasquez Arroyo v. Starks, 589 F.3d 1091,
1097 (10th Cir. 2009). Accordingly, we reject this argument. See id. (noting district court
may sua sponte dismiss a prisoner’s civil rights action on the basis of the statute of
limitations if court provides prisoner “notice and an opportunity to be heard on the
issue”).

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equitable tolling for an abuse of discretion.” (quoting Garrett v. L.E. Fleming, 362 F.3d

692, 695 (10th Cir. 2004))).

       Under Colorado law, “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). And “when exhaustion is a necessary condition precedent to

filing suit,” the exhaustion requirement may constitute an extraordinary circumstance that

prevents a plaintiff from timely filing his or her claim. Braxton v. Zavaras, 614 F.3d

1156, 1162 (10th Cir. 2010) (citing Dean Witter Reynolds, Inc., 911 P.2d at 1097).

Nevertheless, the district court concluded that Gillings isn’t entitled to equitable tolling

because, according to the district court, Gillings “failed to diligently pursue his

opportunity to file.” R. 180 (citing Braxton, 614 F.3d at 1161-63; Rosales v. Ortiz, 325 F.

App’x 695, 699 (10th Cir. 2009) (unpublished)).

       In Rosales, we declined to equitably toll the statute of limitations under

Colorado’s extraordinary-circumstances doctrine because “ample time for filing within

the two-year limitations period remained after the exhaustion of remedies, but . . . the

plaintiff failed to diligently pursue his opportunity to file.” 325 F. App’x at 699-700.

Likewise, in Braxton, we held that the plaintiffs weren’t entitled to equitable tolling

under Colorado’s extraordinary-circumstances doctrine because, even though they “had

over a year remaining to file their action in federal court” after they “receiv[ed] the


                                              3
	
	



responses to their final administrative appeals,” the plaintiffs “waited approximately two

years to file suit.” 614 F.3d at 1162.

             Braxton and Rosales stand for the proposition that plaintiffs who fail to diligently

pursue their claims after exhausting their administrative remedies are not entitled to

equitable tolling under Colorado’s extraordinary-circumstances doctrine. See id.; Rosales,

325 F. App’x at 699-700; see also Dean Witter Reynolds, Inc., 911 P.2d at 1098 (“The

extraordinary circumstances basis for applying equitable tolling requires good faith

efforts on the part of the plaintiff to pursue his or her claims.”). But, as the district court

noted, Gillings never exhausted his administrative remedies.2 Thus, this isn’t a case

where Gillings’ “failure to return promptly to federal court following exhaustion of

administrative remedies” constitutes a failure to “demonstrate diligent efforts to pursue

his claims.” Rosales, 325 F. App’x at 700 (quoting Russell-El v. United States, No. 99-

1124, 1999 WL 987350, at *3 (10th Cir. Nov. 1, 1999) (unpublished)). Accordingly, the

																																																								
             2
         To the extent Gillings may have failed to exhaust his administrative remedies, he
points out that “[w]here prison officials prevent, thwart, or hinder a prisoner’s efforts to
avail himself of an administrative remedy, they render that remedy ‘unavailable’ and a
court will excuse the prisoner’s failure to exhaust.” Little v. Jones, 607 F.3d 1245, 1250
(10th Cir. 2010). Gillings argues he is entitled to relief under Little because BOP staff
members repeatedly assured him that his administrative claims were “under
investigation” and that he should “wait 6 months” for a response. Aplt. Br. 17. Although
Gillings raised these same allegations below, the district court failed to address them.
Accordingly, we take no position on whether these allegations—if true—are sufficient to
excuse Gillings’ failure to exhaust. See Welch v. Unum Life Ins. Co. of Am., 382 F.3d
1078, 1087-88 (10th Cir. 2004) (noting that we generally refrain from considering issues
not passed on below and remanding case to give district court an opportunity to address
issue in first instance).
	

                                                           4
	
	



district abused its discretion in relying on Braxton and Rosales to conclude that Gillings

isn’t entitled to equitable tolling. We therefore reverse the district court’s order

dismissing this action and remand to the district court for further proceedings. We also

grant Gillings’ motion to proceed in forma pauperis on appeal. But we remind him of his

obligation to pay the filing fee in full.

                                               Entered for the Court,



                                               Nancy L. Moritz
                                               Circuit Judge




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