                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                  August 23, 2010
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                   Clerk of Court
                            FOR THE TENTH CIRCUIT


    CALVIN EUGENE BARNETT,

                Plaintiff-Appellant,

    v.                                                   No. 10-7007
                                             (D.C. No. 6:09-CV-00176-JHP-SPS)
    CHARLES RAY, Warden; ROBERT                          (E.D. Okla.)
    EZELL, Assistant Warden; BILL
    BOYD, Assistant Warden; DENNIS
    JOHNSON, Chief of Security;
    YANDELL; CARTWRIGHT, Property
    Officer; MOORE, Librarian Officer;
    BREWER, Unit Manager,

                Defendants-Appellees.


                             ORDER AND JUDGMENT *


Before TACHA, HOLLOWAY, and ANDERSON, Circuit Judges.



         Plaintiff-appellant Calvin Eugene Barnett, appearing pro se and in forma

pauperis, appeals the order of the district court dismissing his 42 U.S.C. § 1983



*
       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not binding precedent, except under the doctrines of law of the case, res judicata,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.
complaint as untimely and ruling that other outstanding motions were moot. Our

jurisdiction arises under 28 U.S.C. § 1291. We review the dismissal of a

complaint for failure to comply with the applicable statute of limitations de novo,

Sterlin v. Biomune Sys., 154 F.3d 1191, 1194 (10th Cir. 1998), and we dismiss

this appeal as frivolous.

      On April 28, 2008, Mr. Barnett filed his original complaint in the district

court. That action was dismissed without prejudice for failure to pay the initial

partial filing fee, a disposition affirmed by this court on appeal. Barnett v. Ray,

320 F. App’x 823, 823 (10th Cir. 2009).

      In his latest complaint, filed on May 5, 2009, Mr. Barnett charges that

defendants acted under state law but, other than reciting various legal platitudes

and alleging that defendants deprived him of “his personal and legal Property

interest,” R. at 10, the complaint does not tell us what happened to him to

occasion this lawsuit. From the order of the district court and his opening brief

on appeal, however, we learn that defendants, during a shake-down at the prison

in which he was being held, allegedly confiscated Mr. Barnett’s head phones,

damaged them, and then refused to allow him to mail them to his home.

Mr. Barnett states in his brief that the shake-down occurred on May 4, 2005.

      “In a civil rights action brought under 42 U.S.C. § 1983, we apply the

applicable state statute of limitations.” Price v. Philpot, 420 F.3d 1158, 1162

(10th Cir. 2005). At the time of the alleged incident, Mr. Barnett was an inmate

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of the Oklahoma Department of Corrections, incarcerated in Holdenville,

Oklahoma. We therefore apply Oklahoma’s two-year statute of limitations for

“injury to the rights of another, not arising on contract, and not hereinafter

enumerated.” Okla. Stat. Ann. tit. 12, § 95(3); see also Meade v. Grubbs,

841 F.2d 1512, 1522 (10th Cir. 1988). Thus, to be timely, Mr. Barnett’s

complaint needed to have been filed on or before May 4, 2007. Because

Mr. Barnett’s original complaint was not filed until April 28, 2008, well after the

expiration of the two-year limitations period, the district court did not err in

dismissing this case.

      Mr. Barnett’s argument that the district court was misled by defendants’

attorney is completely unsupported. Because his complaint was untimely,

dismissal was proper, and none of the other issues raised in Mr. Barnett’s briefs

will be addressed. Because Mr. Barnett “has failed to present any legal theory

which could conceivably refute the district court’s disposition, his appeal is

frivolous under 28 U.S.C. § 1915(e)(2)(B)(i).” Davis v. Kan. Dep’t Corr.,

507 F.3d 1246, 1249 (10th Cir. 2007). We therefore assess Mr. Barnett a strike as

provided under 28 U.S.C. § 1915(g) for this frivolous appeal. See Jennings v.

Natrona Cnty. Det. Ctr. Med. Facility, 175 F.3d 775, 781 (10th Cir. 1999).




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      This appeal is DISMISSED as frivolous. Mr. Barnett is reminded of his

obligation to continue making partial payments of his appellate filing fee until the

entire balance is paid in full.


                                                    Entered for the Court


                                                    Deanell Reece Tacha
                                                    Circuit Judge




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