Arnold v. Jelmo et al

Filing 12

ORDER Of Dismissal. Complaint and action are dismissed with prejudice pursuant to 28 U.S.C. § 1915A(b)(1) as time-barred. Leave to proceed in forma pauperis on appeal is denied. By Judge Lewis T. Babcock on 6/20/2014. (klyon, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-00618-BNB

KYNAN SCOTT ARNOLD,
Plaintiff,
v.
OFFICER B. STECKLER,
OFFICER LAURILA,
MICHAEL JELMO,
TERRY MAKETA, and
J. PATRICK KELLY,
Defendants.

ORDER OF DISMISSAL

Plaintiff, Kynan Scott Arnold, is in the custody of the Colorado Department of
Corrections at the Buena Vista Correctional Facility in Buena Vista, Colorado. Plaintiff,
acting pro se, initiated this action by filing a Prisoner Complaint pursuant to 42 U.S.C. §
1983 that challenges his detention from his arrest on March 28, 2009, until his first
appearance on April 9, 2009. After review, Magistrate Judge Boyd N. Boland
determined that it is clear from the face of the Complaint that the cause of action
accrued on March 31, 2009, and Plaintiff was aware of the Fourth Amendment violation
based on the judge’s statement to Plaintiff that his Fourth Amendment rights were
violated and he should be released. Magistrate Judge Boland, therefore, directed
Plaintiff to respond and show cause why the action should not be dismissed as timebarred because more than two years have passed since the cause of action accrued.
Plaintiff filed a Response on June 5, 2014. For the following reasons, the Court will

dismiss the Complaint and action pursuant to 28 U.S.C. § 1915A(b)(1) because the
action is time barred.
Plaintiff concedes that within fifty-nine hours he appeared before a judge who
determined the facts in the arresting officer’s affidavit established probable cause for
Plaintiff’s detention. Based on Gerstein v. Pugh, 420 U.S. 103, 114 (1975), a probable
cause determination can be made without an adversary hearing using the same
standard used for an arrest, that there is “probable cause to believe the suspect has
committed a crime,” which traditionally is “decided by a magistrate in a nonadversary
proceeding on hearsay and written testimony,” id. at 120. The Tenth Circuit has found
that a determination of probable cause constitutes the initiation of legal process. See
Young v. Davis, 554 F.3d 1254, 1257 (10th Cir. 2009) (Even though a “probable cause
determination by a judicial officer was not given as one of the examples of legal process
in Wallace, the Court was not providing a complete list of situations that could constitute
the initiation of legal process.”) A claim of false imprisonment accrues when the
defendant becomes held pursuant to legal process. See Wallace v. Kato, 549 U.S. 384,
389-90 (2007).
Plaintiff’s Fourth Amendment claim, therefore, involves a detention that was no
longer than fifty-nine hours and accrued on March 31, 2009, at 10:00 a.m., when he
appeared before a judge and the judge determined probable cause.
In the Order to Show Cause, Magistrate Judge Boland found:
The limitation period for an action under 42 U.S.C. § 1983 is
set by the personal injury statute in the state where the
cause of action accrues. Garcia v. Wilson, 731 F.2d 640,
650-51 (10th Cir. 1984). In Colorado, the limitations period
for a personal injury action is two years. Colo. Rev. Stat. §
13-80-102. Plaintiff filed this action on February 26, 2014,
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almost three years after the two-year statute of limitations
expired on March 31, 2011.
A court may “consider affirmative defenses sua sponte” for
purposes of dismissal under § 1915 “when the defense is
obvious from the face of the complaint and no further factual
record is required to be developed.” Fractus v. Deland, 49
F.3d 673, 674-75 (10th Cir. 1995) (quoting Yellen v. Cooper,
828 F.2d 1471, 1476 (10th Cir. 1987) (internal quotations
omitted)). It is clear from the face of Plaintiff’s Complaint
that the cause of action accrued on March 31, 2009, and
Plaintiff was aware of the Fourth Amendment violation based
on the judge’s statement that Plaintiff’s Fourth Amendment
rights were violated and he should be released.
“[W]hen a federal statute [42 U.S.C. § 1983] is deemed to
borrow a State’s limitations period, the State’s tolling rules
are ordinarily borrowed as well . . . .” See Ehimeshoff v.
Hartford Life & Accident Insurance Co., et al., — U.S. —,
134 S. Ct. 604, 616 (2013) (citing Board of Regents of Univ.
of State of N.Y. v. Tomanio, 446 U.S. 478, 484 (1980) (in §
1983 actions “a state statute of limitations and the coordinate
tolling rules” are “binding rules of law”). The State of
Colorado recognizes the doctrine of equitable tolling, which
applies “when flexibility is required to accomplish the goals of
justice.” Morrison v. Goff, 91 P.3d 1050, 1053 (Colo. 2004)
(quotations omitted). Plaintiff does not allege that equitable
tolling applies. And, “[w]hile the statute of limitations is an
affirmative defense, when the dates given in the complaint
make clear that the right sued upon has been extinguished,
the plaintiff has the burden of establishing a factual basis for
tolling the statute.” Aldrich v. McCulloch Properties, Inc.,
627 F.2d 1036, 1041 n. 4 (10th Cir. 1980). Also, equitable
tolling applies only when “plaintiffs did not timely file their
claims because of ‘extraordinary circumstances' or because
defendants' wrongful conduct prevented them from doing
so.” Morrison, 91 P.3d at 1053. Nothing in the Complaint
suggests any extraordinary circumstances that prevented
Plaintiff from timely filing his § 1983 action.
Show Cause Ord., ECF No. 8, at 4-5.
In the Response, Plaintiff contends that he is entitled to equitable tolling because
his situation is similar to the plaintiff in Gonzalez-Aller Balseyro v. GTE Lenkurt, Inc.,

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702 F.2d 857 (10th Cir. 1983). Resp., ECF No. 11, at 2. Plaintiff asserts that the
circumstances in this case, like the circumstances in Gonzalez, rise to the level of active
deception which might invoke the powers of equity to toll the limitations period. Id.
Plaintiff further asserts that he was misled into believing the alleged clerical error
qualified as an extraordinary circumstance for exceeding the forty-eight hour period in
which a probable cause hearing is required to be held. Id. at 3. Plaintiff also contends
that he was not represented by counsel at the time the release order was vacated and
no findings of facts and conclusions of law were provided for the court’s decision to
vacate the bench release order. Id. at 4.
Plaintiff’s reliance on Gonzalez is misplaced. The plaintiff in Gonzalez relied on
the correspondence from the clerk of the District Court of the District of New Mexico that
stated the filing of a notice of an EEOC right to sue letter in a federal district court tolled
the running of the days by which the plaintiff was required to initiate a cause of action
after receiving the notice of right to sue. Gonzalez, 702 F.2d at 858. Unlike Gonzalez,
the court in Plaintiff’s probable cause hearing did not tell him that any challenge to the
court’s decision would be tolled for a period of time. Second, Plaintiff was notified of a
conceivable violation of his Fourth Amendment rights when he appeared before a judge
on March 31, 2009, and the judge stated that probable cause was established but the
affidavit showing probable cause was not timely reviewed by the court. See Mar.26,
2014 Compl., ECF No. 5, at 4-5.
Under Colorado law, a “limitation period should not be tolled for fraudulent
concealment unless a plaintiff “is unable, by reasonable diligence, to discover the facts
necessary for determining the existence of a claim for relief.’ ” See BP American Prod.

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Co., f/k/a/ Amoco Prod. Co., v. Patterson, et al., 263 P.3d 103, (Colo. 2011) (quoting
First Interstate Bank of Fort Collins, N.A. v. Piper Aircraft Corp., 744 P.2d 1197, 1201
(Colo. 1987)). The subsequent decision to vacate the order for a bench release without
explanation is not a deceptive act by the state court that would lull Plaintiff into inaction.
The judicial decision to vacate an order for a bench release was subject to challenge by
Plaintiff at the time the judge entered the decision. Plaintiff was fully aware of the
factual basis of his claim no later than April 1, 2009.
Furthermore, the lack of representation at the time the order for a bench release
was vacated and the court’s failure to provide a statement of facts and conclusions for
vacating the release order do not support a finding of deceit. Plaintiff also was fully
aware of the factual basis for both of these claims no later than April 1, 2009.
Even if the Court construes Plaintiff’s argument as an ignorance of the law claim,
his ignorance does not warrant equitable tolling. See, e.g., Ormiston v. Nelson, 117
F.3d 69, 72 n. 5 (2d Cir.1997); Taylor v. Plousis, 101 F. Supp.2d 255, 270 (D.N.J.2000);
Crowder v. Master Fin., Inc., 176 Md. App. 631, 933 A.2d 905, 927 (2007); cf. People v.
White, 981 P.2d 624, 626 (Colo. App.1998)(ignorance of time bar contained in section
16–5–402, C.R.S.2007, does not constitute justifiable excuse or excusable neglect to
avoid its application).
As stated above, the judge in the March 31 hearing made Plaintiff aware of a
possible Fourth Amendment violation when he stayed the order for a bench release.
Based on this finding, Plaintiff has failed to assert any deceptive act by the state court
that would support equitable tolling. The Court, therefore, will dismiss the Complaint
and action as time barred.

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The Court also certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from
this Order is not taken in good faith, and in forma pauperis status properly is denied for
the purpose of appeal. See Coppedge v. United States, 369 U.S. 438 (1962). If
Plaintiff files a notice of appeal he must also pay the full $505 appellate filing fee or file a
motion to proceed in forma pauperis in the Tenth Circuit within thirty days in accordance
with Fed. R. App. P. 24. Accordingly, it is
ORDERED that Complaint and action are dismissed with prejudice pursuant to
28 U.S.C. § 1915A(b)(1) as time-barred. It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied.
DATED June 20, 2014, at Denver, Colorado.
BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court

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