                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                             DEC 19 2000
                                 TENTH CIRCUIT
                            __________________________                   PATRICK FISHER
                                                                                  Clerk

 SONNY LAUREN HARMON,

          Plaintiff-Appellant,

 v.                                                             No. 00-6233
                                                               (W.D. Okla.)
 BOB DAVIS; TIM D. KUYKENDALL, in his                    (D.Ct. No. 99-CV-405-C)
 official capacity as Garvin County District
 Attorney,

          Defendants-Appellees.
                        ____________________________

                             ORDER AND JUDGMENT *


Before BRORBY, KELLY, and MURPHY, Circuit Judges.



      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          This order and judgment is not binding precedent except under the doctrines of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.
      Appellant Sonny Lauren Harmon, a state inmate appearing pro se, appeals

the district court’s order dismissing his 42 U.S.C. § 1983 action. We exercise our

jurisdiction under 28 U.S.C. § 1291 and affirm.



      This § 1983 action arises following Mr. Harmon’s guilty plea to charges of

operating a chop shop, conspiracy to operate a chop shop and possession of a

motor vehicle with an altered vehicle identification number. The State of

Oklahoma also initiated civil forfeiture proceedings against Mr. Harmon under

Oklahoma’s Motor Vehicle Chop Shop, Stolen and Altered Property Act (Chop

Shop Act), Okla Stat. tit. 47, §§ 1501 - 1508, and seized certain property. Mr.

Harmon filed the instant § 1983 action, claiming certain state officials violated

his constitutional rights in initiating the civil forfeiture proceeding and seizing his

property. Two of the state officials named in Mr. Harmon’s § 1983 complaint –

i.e., the county sheriff and a district attorney – filed motions to dismiss the action.



      The district court referred the matter to a magistrate judge who issued an

exceedingly thorough and exhaustive Report and Recommendation,

recommending the district court grant the county sheriff’s and district attorney’s

motions to dismiss the complaint under Fed. R. Civ. Proc. 12(b)(6) and 12(b)(1),

respectively. The magistrate judge began by noting Mr. Harmon voluntarily


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dismissed without prejudice two other named defendants – to wit, a private

attorney and the “O.S.B.I.(Agent in Charge)” Next, the magistrate judge found

Mr. Harmon’s action against the other defendants barred by the statute of

limitations, and that no statutory tolling provisions or equitable tolling applied in

his case. The magistrate judge also concluded that Mr. Harmon’s damage claim

against the district attorney in his official capacity was barred by the Eleventh

Amendment. Finally, the magistrate judge noted Mr. Harmon failed to identify or

serve the county sheriff’s deputies whom he generically referred to in his action.

Although the period for serving the deputies had expired, the district court

nevertheless considered several relevant factors before determining Mr. Harmon

failed to show “good cause” warranting an extension of time to serve the deputies.



      After Mr. Harmon filed objections thereto, the district court adopted the

magistrate judge’s Report and Recommendation and dismissed the action with

prejudice against the district attorney and sheriff, and without prejudice against

the unnamed sheriff’s deputies. On appeal, Mr. Harmon raises the same issues

raised in his § 1983 complaint and addresses the merits of those issues. He also

argues the district court improperly applied the Oklahoma’s statute of limitations

and failed to toll the limitation period.




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      Regarding the issue of Eleventh Amendment immunity, we review de novo

a district court’s dismissal pursuant to Rule 12(b)(1) for lack of jurisdiction. See

Redmon v. United States, 934 F.2d 1151, 1155 (10th Cir. 1991). As to the district

court’s dismissal under Rule 12(b)(6), we take instruction from our decision in

Riddle v. Mondragon, 83 F.3d 1197 (10th Cir. 1996), in which we set forth the

appropriate standard in reviewing dismissal of a pro se complaint filed under 42

U.S.C. § 1983. Accordingly, we review de novo dismissal of Mr. Harmon’s

§ 1983 complaint for failure to state a claim on which relief may be granted. Id.

at 1201. Mr. Harmon’s complaint should not be dismissed under Rule 12(b)(6)

unless it appears beyond doubt he can prove no set of facts supporting his claim

for relief. Id. In reviewing the sufficiency of the complaint, we presume all of

Mr. Harmon’s factual allegations are true and construe them in the light most

favorable to him. Id. at 1202.



      As to the unidentified sheriff’s deputies, we review for abuse of discretion

the district court’s dismissal for failure to effect service. See Scott v. Hern, 216

F.3d 897, 912 (10th Cir. 2000). Because Mr. Harmon is proceeding pro se, we

also construe his pleadings liberally and hold his pleadings to a less stringent

standard than formal pleadings drafted by lawyers. Riddle, 83 F.3d at 1201.

However, a broad reading of his complaint does not relieve him of the burden of


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alleging sufficient facts on which a recognized legal claim can be based. Id.



      We have conducted a de novo review of Mr. Harmon’s arguments, the

magistrate judge’s recommendation and propositions of law on which he relied,

and the entire record on appeal. Our review leads us to conclude Mr. Harmon

alleged no facts that, even if true, would support his claim for relief. This is due,

in part, because the magistrate judge correctly determined Mr. Harmon’s action is

barred by the statute of limitations, and that no statutory or equitable tolling

provisions apply in his case. Further, the magistrate judge also properly applied

the well-established doctrine of Eleventh Amendment immunity in dismissing Mr.

Harmon’s complaint against the district attorney named therein. As to the

unidentified and unserved sheriff’s deputies, we agree with the district court’s

decision to dismiss the action against them without prejudice.



      Accordingly, for substantially the same reasons set forth by the magistrate

judge in the May 31, 2000 Report and Recommendation, and adopted by the

district court in its June 26, 2000 Order of Dismissal, we AFFIRM the district

court’s dismissal of Mr. Harmon’s § 1983 action. We remind Mr. Harmon of his

obligation to continue making partial payments until the entire appeal fee is paid.




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Entered by the Court:

WADE BRORBY
United States Circuit Judge




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