                                                           F I L E D
                                                   United States Court of Appeals
                                                           Tenth Circuit
                                  PUBLISH
                                                        October 26, 2006
                UNITED STATES CO URT O F APPEALS      Elisabeth A. Shumaker
                                                          Clerk of Court
                             TENTH CIRCUIT



PAUL K RIPP,

           Plaintiff-Appellant,
     v.                                      No. 05-7062
JOHN DAVID LUTON, District
Attorney, M uskogee County, in his
individual and official capacities,
GARY STURM , Chief Investigator,
M uskogee County, in his individual
and official capacities, RICHARD
H U ITT, R IC HA RD M O RR IS, SAM
TA Y LO R, JA SO N BR AD LEY ,
Officers, M uskogee County District
Attorney Drug Task Force, as
individuals, RICHARD SLADER, Fort
Gibson Chief of Police, in his
individual capacity, and the TOW N
O F FO RT G IB SO N ,

           Defendants-Appellees.



       A PPE AL FR OM T HE UNITED STATES DISTRICT COURT
           FO R TH E EASTERN DISTRICT O F O K LAH O M A
                      (D .C . N O. C IV -04-460-W H )
Submitted on the briefs: *

Robert J. Haupt and Rachel L. M or, Oklahoma City, Oklahoma, for Plaintiff-
Appellant.

Elizabeth R. Sharrock, Assistant Attorney General, Oklahoma City, Oklahoma,
and Betty Outhier W illiams, Gage & W illiams Law Firm, M uskogee, Oklahoma,
for Defendants-Appellees.


Before TA CH A, Chief Circuit Judge, EBEL, Circuit Judge, and CASSELL,
District Judge. **


CASSELL, District Judge.


      This case requires us to determine when the statute of limitations begins to

run for federal civil rights actions challenging a law enforcement seizure and

subsequent forfeiture of property. The district court below dismissed appellant

Paul Kripp’s complaint challenging the seizure and forfeiture of property he

alleges is his. The district court found that he filed all of his causes of action

outside the time prescribed by the applicable statutes of limitations because they

all accrued when law enforcement seized his property, not later when the

forfeiture proceedings occurred. W e agree with the district court that M r. Kripp’s


      *
       After examining the briefs and appellate record, this panel has determined
to grant the parties’ request for a decision on the briefs without oral argument.
See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered
submitted without oral argument.
      **
         The Honorable Paul G. Cassell, District Judge of the United States
District Court for the District of Utah, sitting by designation.

                                          -2-
causes of action regarding the initial seizure of his property accrued at the time of

the seizure and thus are time-barred. But we disagree that his claims challenging

the forfeiture process itself accrued so early. Rather, we hold that these causes of

action accrued at the time the forfeiture proceedings were held. Because M r.

Kripp timely filed these claims, we affirm in part and reverse in part.

                          FA CTS A ND PR OC EED IN GS

      Because the district court dismissed M r. Kripp’s complaint as time-barred,

we accept the allegations in his complaint as true. 1 Proceeding on that basis, M r.

Kripp alleges that in the late 1990s, he loaned his son-in-law, Sean Hornback,

about $30,000 worth of automotive repair tools, machinery, trailers, and other

auto supplies for use in M r. Hornback’s shop. On February 8, 2000, Fort Gibson

police officers searched that shop, believing M r. Hornback was running a “chop

shop” to dispose of stolen auto parts. During the search, the police officers seized

cars, equipment, and all of the tools located in the shop. The next day, on

February 9, 2000, M r. Kripp’s wife reported to the M uskogee County District

Attorney’s O ffice that the auto repair tools and machinery seized in the raid

belonged to M r. K ripp, thereby making a claim for the return of the property.

      On July 17, 2000, the M uskogee County District Attorney’s Office filed a

notice of forfeiture and seizure of property pursuant to certain Oklahoma “chop



      1
       Edwards v. Int’l Union, United Plant Guard Workers of America, 46 F.3d
1047, 1050 (10th Cir. 1995).

                                          -3-
shop” forfeiture statutes. 2 Although M r. Kripp had made a claim for the return of

the property (through his wife), he was never served with the notice of forfeiture.

On September 8, 2000, M r. Kripp learned of the pending forfeiture action and

filed a timely claim for return of his property.

      In M arch 2003, the M uskogee County District Attorney’s Office dropped

its pending criminal charges against M r. Hornback. It did not, however, return

the property it had seized. M r. Kripp allegedly made numerous demands on the

District Attorney’s Office to return his property. He also allegedly never received

any written notice of any forfeiture action for any of his property. During this

time, M r. Slader apparently stored the property at the request of M uskogee

County.

      On M arch 4, 2004, the M uskogee County District Court held a forfeiture

hearing regarding the seized property. Although most of his property was

forfeited at this hearing, M r. Kripp never received any notice the hearing was

being held. In A pril 2004, the D istrict Attorney’s Office verbally notified M r.

Kripp that the M uskogee County District Court would hold another forfeiture

hearing. In M ay 2004, M r. Kripp went to that hearing and discovered that most

of his property had been previously either sold or destroyed, resulting in only a

few items remaining in the District A ttorney’s and M r. Slader’s custody.




      2
          Okla. Stat. tit. 47, §§ 1501-1508 (2000).

                                          -4-
      On O ctober 12, 2004, M r. Kripp filed a federal civil rights action against

(among others) John David Luton (the M uskogee County District Attorney),

certain named police officers, Richard Slader and the town of Fort Gibson. His

complaint first alleged claims under 42 U.S.C. §§ 1983 and 1985 3 against the

defendants for violating his Fourth and Fourteenth Amendment rights by

conducting an illegal search and seizure. Second, he alleged §§ 1983 and 1985

claims against the defendants for “deprivation of property.” Specifically, he

complained that certain defendants had failed to establish appropriate policies,

practices, and procedures regarding the forfeiture proceedings. This was

essentially a Fifth Amendment due process claim, alleging procedural and

substantive due process violations from the search, seizure and subsequent

forfeiture proceeding. Third, M r. Kripp alleged RICO claims under 18 U.S.C. §§

1962(c) and 1964 4 against the defendants for both the seizure of his property and

his subsequent treatment in the forfeiture process. On February 1, 2005, M r.

Kripp filed an amended complaint changing some of the defendants but otherwise

not altering the substance of his complaint.




      3
          42 U.S.C. §§ 1983, 1985 (2003).
      4
          18 U.S.C. §§ 1962(c), 1964 (2000).

                                         -5-
      A fter briefing by the parties and a hearing, the district court entered two

orders effectively dismissing the case. 5 The first order dismissed the claims

against the Tow n of Fort Gibson and M r. Slader. The second order mirrored the

first order, dismissing the claims against M r. Luton (the District Attorney) and

M essrs. Sturm, Huitt, M orris, Taylor and Bradley (all investigators in the County

Drug Task Force Unit). The district court found that M r. Kripp’s §§ 1983 and

1985 claims were subject to Oklahoma’s two-year statute of limitations. The

court also found that M r. Kripp’s cause of action accrued on either February 8,

2000 (the date of the search), or February 9, 2000 (the date on which his wife

sought return of his property from the police). Because M r. Kripp filed his suit

more than two years later on October 13, 2004, the district court held that his

complaint was time-barred. In these two orders, the district court also dismissed

M r. Kripp’s RICO claims under 18 U.S.C. §§ 1962(c) and 1964 due to the

passage of the statute of limitations. Specifically, the court found that the “4-year

statute of limitations . . . [is] the most appropriate limitations period for RICO

actions.” 6 Because M r. Kripp “had at least constructive knowledge of the source


      5
       Order Granting Defendants’ M otion to Dismiss Plaintiff’s Amended
Complaint [Docket No. 57], Case No. CIV-04-460-W H (M ay 19, 2005)
(dismissing Town of Fort Gibson and Richard Slader); Order Granting
Defendants’ M otion to D ismiss Plaintiff’s A mended Complaint [Docket No. 59],
Case No. CIV-04-460-W H (M ay 19, 2005) (dismissing John Luton, Gary Sturm,
Richard Huitt, Richard M orris, Sam Taylor and Jason Bradley).
      6
          Agency Holding Corp. v. M alley-Duff & Assocs., 483 U.S. 143, 156
                                                                     (continued...)

                                         -6-
of the injury at the very latest on February 9, 2000, and demonstrated actual

knowledge on September 8, 2000,” 7 the district court found that M r. Kripp’s

RICO claims contained in the October 13, 2004 complaint were also time-barred.

      M r. Kripp took a timely appeal to this court.

                                   D ISC USSIO N

      To decide the statute of limitations issues presented in this case, we find it

convenient to divide M r. Kripp’s complaint into three separate parts: (1)

challenges to the initial seizure of his property; (2) challenges to the forfeiture

process; and (3) challenges to an alleged law enforcement conspiracy under

RICO. Because the district court dismissed M r. Kripp’s complaint as time-barred

on its face, w e review the decision below de novo. 8

      A. M r. Kripp’s Search and Seizure Claims.

      M r. Kripp’s complaint alleged a § 1983 action for an illegal search and

seizure of his property. For a § 1983 action, state law determines the applicable

statute of limitations. 9 Oklahoma law prescribes a two-year statute of limitations




      6
       (...continued)
(1987).
      7
          Order at 5, Case No. CIV -04-460-W H (M ay 19, 2005).
      8
          See Colo. Envtl. Coal. v. Wenker, 353 F.3d 1221, 1227 (10th Cir. 2004).
      9
       Beck v. City of Muskogee Police Dep’t, 195 F.3d 553, 557 (10th Cir.
1999); Fratus v. Deland, 49 F.3d 673, 675 (10th Cir. 1995).

                                          -7-
period for “an action for injury to the rights of another.” 10 Thus, the salient issue

regarding M r. Kripp’s search and seizure claims is whether he brought them

within two years of when they accrued.

      M r. Kripp’s search and seizure claims alleged that various named

defendants illegally searched and seized his property by conducting a warrantless

search. M r. Kripp contends that this claim accrued not at the time of the initial

seizure of his property, but only later when the final forfeiture had occurred and

he had been notified of that forfeiture. Determining when his claim accrued

requires “identify[ing] the constitutional violation and locat[ing] it in time.” 11

Although state law determines the applicable statute of limitations period, federal

law governs the particular point in time at which a claim accrues. 12 W e have

previously explained that “[s]ection 1983 claims accrue, for the purposes of the

statute of limitations, ‘when the plaintiff knows or has reason to know of the

injury which is the basis of his action.’” 13



      10
        Okla. Stat. tit. 12, § 95 (2000); see also Owens v. Okure, 488 U.S. 235,
242 n.5 (1989); M eade v. Grubbs, 841 F.2d 1512, 1523 (10th Cir. 1988).
      11
        Smith v. City of Enid ex rel. Enid City Comm’n, 149 F.3d 1151, 1154
(10th Cir. 1998) (citation omitted).
      12
         Smith v. Gonzales, 222 F.3d 1220, 1222 (10th Cir. 2000); Fratus, 49 F.3d
at 675; Newcomb v. Ingle, 827 F.2d 675, 678 (10th Cir. 1987).
      13
        Johnson v. Johnson County Comm’n Bd., 925 F.2d 1299, 1301 (10th Cir.
1991) (quoting Singleton v. City of New York, 632 F.2d 185, 191 (2d Cir. 1980)).


                                           -8-
      The district court found that M r. Kripp’s § 1983 claim accrued on either

February 9, 2000 (the date on which M r. Kripp had constructive notice of the

search and seizure of his property), or September 9, 2000 (the date on which M r.

Kripp filed a claim for return of property and thus indisputably had actual notice

of the search and seizure of his property). M r. Kripp argues that the district

court’s “evaluation [of his claim] was incorrect because the true injury . . . was

not the seizure[,] but the forfeiture of his property without due process.” 14

      The district court properly analyzed this issue. As w e have previously

explained, § 1983 “claims arising out of police actions toward a criminal suspect,

such as arrest, interrogation, or search and seizure, are presumed to have accrued

when the actions actually occur.” 15 Additionally, for Bivens actions (the federal

analogue to § 1983 claims), we have held that a claimant’s cause of action

accrues when the claimant knew or had reason to know “of the existence and

cause of injury which is the basis for his action.” 16 Other courts have reached

similar conclusions. 17


      14
           Appellant’s Open. Br. at 8 (A ug. 11, 2005).
      15
           Johnson County Comm’n Bd., 925 F.2d at 1300.
      16
        Indus. Constructors Corp. v. United States Bureau of Reclamation, 15
F.3d 963, 969 (10th Cir. 1994).
      17
         See Brooks v. City of Winston-Salem, 85 F.3d 178, 182 (4th Cir. 1996);
see also Davis v. Ross, 995 F.2d 137, 138 (8th Cir. 1993) (per curiam); Rose v.
Bartle, 871 F.2d 331, 350-51 (3d Cir. 1989); M cCune v. City of Grand Rapids,
                                                                     (continued...)

                                          -9-
      The gravamen of M r. Kripp’s search and seizure claim is that the state

illegally seized his property, preventing him from using his tools and other

property. As the district court properly explained, that claim accrued around

February 8, 2000, when the police seized his tools following the search of M r.

Hornback’s shop, a fact that M r. Kripp apparently learned of quickly. At the very

latest, M r. Kripp’s claim would have accrued several months later, on September

9, 2000, when he filed for return of his property. In either event, he filed his

claim outside the applicable two-year statute of limitations, and the district court

therefore properly dismissed it.

      B. M r. Kripp’s Claims Regarding the Forfeiture Process.

      M r. Kripp’s complaint also alleged violations of his due process rights

during the forfeiture process. His second cause of action alleged that the state

defendants had “failed to establish a policy, practice and procedure to ensure that

the proper and legal process for the . . . legal forfeiture of property.” 18 The

district court found this claim was not timely filed because it accrued at the time

of the original search and seizure.




      17
        (...continued)
842 F.2d 903, 906 (6th Cir. 1988); M ack v. Varelas, 835 F.2d 995, 999-1000 (2d
Cir. 1987); Davis v. Harvey, 789 F.2d 1332, 1333 n.1 (9th Cir. 1986); Rinehart v.
Locke, 454 F.2d 313, 315 (7th Cir. 1971).
      18
           Compl. at 5.

                                          -10-
       W e conclude that the district court took too narrow a view of M r. Kripp’s

complaint. The second cause of action challenges not only the initial seizure of

his property, but also its subsequent forfeiture. In particular, this cause of action

contends that the forfeiture process operated in violation of M r. Kripp’s due

process right, by failing to give him fair notice of the proceedings (among other

things). Because this cause of action raises a challenge to this later process

instead of the initial seizure, it w as timely filed.

       This court’s decision in United States v. Rodriguez-Aguirre 19 is instructive.

There, plaintiffs (convicted drug dealers) sought return of their personal property

taken by the United States during a criminal investigation. The plaintiffs brought

their action in 2000, almost eight years after the property at issue had been seized

by federal agents pursuant to search warrants issued in 1992. 20 M uch like the

current case, the United States argued that the plaintiffs’ cause of action accrued

“at the time when the property was seized.” 21 The United States argued (as do the

appellees here) that “[t]he bottom line is that [the plaintiffs] knew in . . . 1992

that the property they claim, if it exists, had been seized.” 22 This court rejected

the position of the United States, and sided with the plaintiffs. Quoting the


       19
            264 F.3d 1195 (10th Cir. 2001).
       20
            Id. at 1200.
       21
            Id. at 1210.
       22
            Id.

                                            -11-
Second Circuit’s decision in Polanco v. United States Drug Enforcement

Administration, 23 we noted that “‘the specific constitutional violation alleged –

the permanent deprivation of [the claimant’s] property without notice – did not

occur until sometime later, when the property was forfeited.’” 24    W e concluded

that

       [t]he accrual date [for a forfeiture claim] is the date on which [the
       claimant] was on reasonable inquiry notice about the forfeiture, i.e., the
       earlier of the following: when he first became aw are that the
       government had declared the currency forfeited, or when an inquiry that
       he could reasonably have been expected to make would have made him
       aware of the forfeiture. 25

       Other circuits appear to agree with this view. In discussing federal

forfeiture actions under the Federal Rule of Criminal Procedure, the Second

Circuit in Polanco held that a cause of action seeking return of forfeited property

accrued “when [the plaintiff] discovered or had reason to discover that his

property had been forfeited without sufficient notice.” 26 In Polanco, the “district

court assumed that the cause of action accrued when the currency was seized . . . .



       23
            158 F.3d 647 (2d Cir. 1998).
       24
         Rodriguez-Aguirre, 264 F.3d at 1210 (quoting Polanco, 158 F.3d at 654
(citing Bay Area Laundry & Dry Cleaning Pension Trust Fund v. Ferbar Corp.,
522 U.S. 192, 195 (1997) (stating that a cause of action accrues when the plaintiff
has a “complete and present” cause of action and “can file suit and obtain
relief”))).
       25
            Id. at 1211.
       26
            Polanco, 158 F.3d at 654.

                                           -12-
But the specific constitutional violation alleged – the permanent deprivation of

[the plaintiff’s] property without notice – did not occur until sometime later,

when the property was forfeited.” 27 And the Third, Fourth, Fifth and Seventh

Circuits have also followed this general approach. 28

      Concluding that a claim challenging a forfeiture proceeding accrues only at

the time of that proceeding – not earlier – makes considerable practical sense. It

permits a claimant to property to seek return of that property through an

established forfeiture proceeding. If the claim for return of property is

successful, there may be no need for any litigation. M oreover, concerns about

due process violations (such as lack of notice) can often be addressed in those

proceedings themselves. On the other hand, if the cause of action were to accrue

when the property is initially seized, claimants might be forced to file challenges

to the forfeiture proceedings even before they had run their course.

      Treating M r. Kripp’s cause of action as accruing at the time of the

forfeiture proceedings, it is clear that they were timely filed. M r. Kripp’s

complaint alleges he received no notice of the state forfeiture hearing. The

complaint also contends that



      27
           Id.
      28
         See, e.g., United States v. Wright, 361 F.3d 288, 289 (5th Cir. 2004) (per
curiam); M antilla v. United States, 302 F.3d 182, 186 (3d Cir. 2002); United
States v. Duke, 229 F.3d 627, 630 (7th Cir. 2000); United States v. M inor, 228
F.3d 352, 359 (4th Cir. 2000).

                                         -13-
      [s]ometime in April of 2004, [M r.] Kripp was verbally notified that his
      property was the subject of a forfeiture action in the M uskogee County
      District Court. . . . In the Spring of 2004, the M uskogee County District
      Court held several forfeiture hearings on property claimed by [M r.
      K ripp] . . . [and at one of these hearings, M r. Kripp] discovered that
      most of his property had been converted. 29

Furthermore, M r. Kripp alleges in his complaint that certain defendants “failed to

establish a policy, practice and procedure to ensure . . . the proper and legal

process for the . . . legal forfeiture of property . . . and developed a custom of

operation and policy, which violates the Plaintiff’s constitutional rights . . . .” 30

These claims regarding the forfeiture proceedings accrued at the earliest on M arch

4, 2004, the date the state declared his property forfeited, or on M ay 5, 2004, the

date M r. Kripp became aware that his property had already been forfeited. Either

date puts the filing of his complaint clearly within the two-year statute of

limitations for bringing § 1983 actions. Accordingly, the district court erred in

dismissing M r. Kripp’s § 1983 action alleging due process violations from the

state forfeiture process.

      C. M r. Kripp’s RICO Claims.

      M r. Kripp’s R ICO claims essentially reprise his other claims in his

complaint. Of particular importance here, M r. Kripp alleges that some of the

defendants “conducted their illegal enterprise by violating [Okl. Stat. tit. 63, § 2-



      29
           Am. Compl. at 4.
      30
           Id. at 5.

                                          -14-
506(B) (2000)], which requires notice of seizure and the intended forfeiture of

property to be given to Plaintiff.” 31 These claims are subject to a four-year statute

of limitations. 32 The Supreme Court has suggested variously that the clock starts

running in RICO cases when the plaintiff was actually injured, knew of his injury,

or should have known of his injury. 33

      No matter which specific accrual test is applied, it is clear that M r. Kripp

timely filed his claims against the appellees arising out of the state forfeiture

proceedings. The earliest his claims regarding the forfeiture process could have

accrued would have been M arch 4, 2004, when his property was finally forfeited.

It was on this date that M r. Kripp was actually injured by the forfeiture process

by losing any legal title to his property. M ore specifically, it was on this date that

the fact he had received no notice of the forfeiture proceedings had some real

world consequence. Given that M r. Kripp filed his complaint on October 13,

2004, his RICO claims regarding the state forfeiture proceedings clearly fall

within the four-year statute of limitations.

      W ith respect to M r. Kripp’s RICO claims surrounding the initial search and

seizure, however, w e agree with the district court that he filed them out of time.



      31
           Id. at 8.
      32
           Agency Holding Corp. v. M alley-Duff & Assocs., 483 U.S. 143, 156
(1987).
      33
           Rotella v. Wood, 528 U.S. 549, 553, 554 n.2 (2000).

                                         -15-
The search and seizure took place more than four years before M r. Kripp filed his

complaint. These claims are not brought within the statute of limitations merely

by being packaged with the timely-filed claims regarding the forfeiture

proceedings. The Supreme Court has plainly rejected a “last predicate act” rule

for RICO claims because it “creates a limitations period that is longer than

Congress could have contemplated” as “there are significant differences between

civil and criminal RICO actions.” 34 As the Court has explained, “[b]ecause a

series of predicate acts . . . can continue indefinitely, such an interpretation, in

principle, lengthens the limitations period dramatically. It thereby conflicts with a

basic objective – repose – that underlies limitations periods.” 35 Since M r. Kripp

filed his RICO claims regarding the initial search and seizure outside the

applicable four-year statute of limitations, we find they were properly dismissed

by the district court.

                                   C ON CLU SIO N

      For the foregoing reasons, we AFFIRM the district court’s dismissal of

M r. Kripp’s claims based on the alleged unconstitutional search and seizure of his

property. W e REV ER SE the district court’s dismissal of M r. Kripp’s claims

challenging the forfeiture process. Finally, we AFFIRM the dismissal of M r.

Kripp’s R ICO claims challenging the initial search and seizure, but REV ER SE


      34
           Klehr v. A.O. Smith Corp., 521 U.S. 179, 187-88 (1997).
      35
           Id.

                                          -16-
the dismissal of M r. Kripp’s RICO claims challenging the state forfeiture

proceedings. W e remand this case for further proceedings consistent with this

opinion, including consideration of any other defenses that the appellees may

properly raise.




                                       -17-
