                                                                                   FILED
                                                                       United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                           Tenth Circuit

                             FOR THE TENTH CIRCUIT                            October 7, 2016
                         _________________________________
                                                                           Elisabeth A. Shumaker
                                                                               Clerk of Court
BRIAN HICKS,

      Plaintiff - Appellant,

v.                                                           No. 16-1130
                                                 (D.C. No. 1:14-CV-02857-RBJ-MJW)
SPRINT NEXTEL CORPORATION;                                    (D. Colo.)
SPRINT NEXTEL COMPANY, L.P.;
SPRINT COMMUNICATIONS
COMPANY, L.P.; SPRINT SPECTRUM,
L.P.,

      Defendants - Appellees.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

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

      Proceeding pro se,1 Colorado State prisoner Brian Hicks appeals the district

court’s dismissal of his civil action under the Stored Communications Act, 18 U.S.C.

§§ 2701-2712 (SCA). Because the district court correctly concluded Hicks brought

his claim outside the SCA’s two-year limitations period, we affirm.

      *
         After examining the briefs and appellate record, this panel has determined
unanimously that oral argument wouldn’t 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 isn’t binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. But it may be cited for its persuasive value. See Fed. R. App. P. 32.1;
10th Cir. R. 32.1.
       1
         We liberally construe Hicks’ pro se filings, but it’s not our role to act as his
advocate. James v. Wadas, 724 F.3d 1312, 1315 (10th Cir. 2013).
      This civil action arises from Hicks’ 2011 Colorado murder conviction. In that

proceeding, the State alleged that Hicks, while in jail pending other charges, solicited

two gunmen to murder a would-be witness against him. Hicks maintained that the

alleged gunmen’s cell phone records would show they weren’t in the vicinity of the

murder when it was committed and would thus prove Hicks’ innocence.

      The State asserted through grand jury testimony that its efforts to obtain these

records from Sprint2 were unsuccessful. According to Sprint, its internal policy was

to preserve records for only two months. Sprint informed the State that it purged the

requested records before the State made its preservation request. But when Hicks

contacted Sprint sometime before trial to ask about the records, it informed him that

its policy had always been to preserve records for up to two years and that it had, in

fact, provided the cell records to the State. At trial, Sprint representative Kerri Scarbo

testified that Sprint didn’t implement the two-year preservation policy until after the

murder. Thus, contrary to what Sprint previously told Hicks, Scarbo testified that

Sprint purged the records before it received the State’s preservation request and

couldn’t have provided them to the State.

      The jury found Hicks guilty in February 2011. Hicks filed his complaint in this

action on October 20, 2014. His sole claim is that Sprint violated the SCA by failing

to preserve and produce the cell phone records which, according to Hicks, would

have proven his innocence.

      2
        We refer to defendants Sprint Nextel Corporation, Sprint Nextel Company,
L.P., Sprint Communications Company, L.P., and Sprint Spectrum, L.P., collectively
as “Sprint.”
                                            2
      The SCA requires wire or electronic communications service providers, “upon

the request of a governmental entity, [to] take all necessary steps to preserve records

and other evidence in its possession pending the issuance of a court order or other

process.” 18 U.S.C. § 2703(f)(1). The SCA also authorizes governmental entities to

obtain certain cell phone records from providers upon issuance of a warrant.

§ 2703(c)(1)(A). Hicks alleges that Sprint—contrary to Scarbo’s testimony at trial—

hadn’t yet purged the cell phone records when it received the State’s preservation

request.3 Hicks asserts that Sprint either subsequently purged the records in violation

of § 2703(f)(1) or failed to produce them to the State as required by § 2703(c).

      Sprint moved to dismiss Hicks’ claim as time-barred.4 The SCA provides that

“[a] civil action under this section may not be commenced later than two years after

the date upon which the claimant first discovered or had a reasonable opportunity to

discover the violation.” Id. § 2707(f). Sprint argued that Hicks had a reasonable

opportunity to discover the alleged SCA violation on January 31, 2011, when Scarbo

(1) testified that Sprint previously gave Hicks wrong information and (2) maintained

that Sprint never produced the cell records to the State. Sprint thus argued the SCA’s

limitations period expired on January 31, 2013.


      3
        Because this appeal concerns a dismissal under Fed. R. Civ. P. 12(b)(6), we
accept Hicks’ allegations as true and construe them in his favor. Rosenfield v. HSBC
Bank, USA, 681 F.3d 1172, 1178 (10th Cir. 2012).
      4
        Sprint also argued that Hicks has no private cause of action under the SCA
and that he failed to adequately plead a violation of § 2703(f). The district court
declined to reach these arguments in light of its ruling on the limitations issue.
Because we affirm the district court’s ruling that Hicks’ claim is time-barred, we
likewise decline to reach these arguments.
                                           3
      Hicks responded that his SCA claim didn’t accrue until 2013, when he

received a copy of the trial record. He alternatively argued that, even if his claim

accrued in 2011, the limitations period should be tolled under the discovery rule and

the doctrines of equitable estoppel and fraudulent concealment.

      The district court rejected Hicks’ arguments and concluded that he had a

“reasonable opportunity to discover the violation” on January 31, 2011. R. vol. 1,

718. And because Hicks didn’t file his complaint until October 20, 2014—more than

three years later—the district court dismissed his action as time-barred. Hicks then

filed a motion for reconsideration, which the district court denied.

      Hicks appeals, challenging the district court’s dismissal of his claim as time-

barred and renewing the arguments he made in district court. Hicks also argues that

the district court erred in denying his motion for reconsideration.

      “We review de novo the dismissal of an action under Rule 12(b)(6) based on

the statute of limitations.” Braxton v. Zavaras, 614 F.3d 1156, 1159 (10th Cir. 2010).

And “[w]e review the district court’s refusal to apply equitable tolling for an abuse of

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

Although the statute of limitations defense is an affirmative defense, a district court

may grant a Rule 12(b)(6) dismissal when it’s clear from the face of the complaint

that the plaintiff’s claim is time-barred. Sierra Club v. Okla. Gas & Elec. Co., 816




                                            4
F.3d 666, 671 (10th Cir. 2016); Aldrich v. McCulloch Props., Inc., 627 F.2d 1036,

1041 n.4 (10th Cir. 1980).5

      After considering the parties’ arguments, we affirm for substantially the

reasons stated in the district court’s order.6 And we affirm the district court’s denial

of Hicks’ motion for reconsideration for the same reasons.7



                                             Entered for the Court




                                             Nancy L. Moritz
                                             Circuit Judge




      5
         Contrary to Hicks’ assertion, the district court may also decide the
applicability of equitable tolling as a matter of law when, as here, there are no fact
issues for the jury to determine. King & King Enters. v. Champlin Petrol. Co., 657
F.2d 1147, 1155 (10th Cir. 1981).
       6
         We acknowledge Hicks’ argument that the district court applied the wrong
fraudulent-concealment test. But the district court’s conclusion that Hicks had a
“reasonable opportunity to discover” his SCA claim despite Sprint’s alleged
misconduct, R. vol. 1, 718, yields the same result under the applicable test. See King
& King Enters., 657 F.2d at 1154 (requiring party alleging fraudulent concealment to
demonstrate that party didn’t know of, and couldn’t have discovered by due
diligence, potential cause of action). Thus, the district court’s failure to apply the
correct test was harmless.
       7
         Although Hicks takes issue with the brevity of the district court’s minute-
order denial, “a trial court’s decision [denying a Rule 59(e) motion] will not be
disturbed unless the appellate court has a definite and firm conviction that the lower
court made a clear error of judgment or exceeded the bounds of permissible choice in
the circumstances.” Phelps v. Hamilton, 122 F.3d 1309, 1324 (10th Cir. 1997). We
can’t say the district court did so here.
                                            5
