F I L E D

United States Court of Appeals

Tenth Circuit

AUG 8 2000

PATRICK FISHER

Clerk

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

FREDRICK J. LAURINO,

Plaintiff-Appellant,

v.

KEITH O. TATE; KELLY G.

MCINTOSH; MICHAEL R. BERRY;

JEFFREY A. WEINMAN; STEVEN

HISER; CITY OF WICHITA;

WICHITA POLICE DEPARTMENT,

Defendants-Appellees.

No. 99-3170

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS

(D.C. No. 98-CV-1074-MLB)

Submitted on the briefs:

Thomas C. McDowell of McDowell & Edingfield, Wichita, Kansas, for

Plaintiff-Appellant.

Gary E. Rebenstorf, City Attorney, and Blaise Plummer, Assistant City Attorney,

Wichita, Kansas, for Defendants-Appellees Tate, McIntosh, Berry, Weinman and

Hiser, and Edward L. Keeley of McDonald, Tinker, Skaer, Quinn & Herrington,

P.A., Wichita, Kansas, for Defendant-Appellee City of Wichita. 

Before BRORBY , ANDERSON , and MURPHY , Circuit Judges.
1 After examining the briefs and appellate record, this panel has

determined unanimously 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. 

-2-

BRORBY , Circuit Judge.

Plaintiff-appellant Fredrick J. Laurino appeals from the district court’s

order dismissing his claims brought against the defendants pursuant to 42 U.S.C.

§ 1983. Mr. Laurino’s counsel also challenges Fed. R. Civ. P. 11 sanctions

imposed against him as part of this appeal.1

 We affirm. 

On July 21, 1995, Mr. Laurino was arrested for obstruction of legal process

under a Wichita, Kansas municipal ordinance. Mr. Laurino was initially

convicted in municipal court of the charge, but received a bench trial in state

district court on March 13, 1996, at which time he was acquitted. On March 3,

1998, he brought this action pursuant to § 1983, seeking damages and injunctive

and declaratory relief against the officers involved in his arrest, the City of

Wichita, and its police department. His complaint asserted claims against the

defendants for warrantless arrest without probable cause, unlawful deprivation of

liberty, malicious prosecution, intentional interference with a business interest,

and outrageous conduct. The district court denied Mr. Laurino’s request for
2 The district court appears to have denied defendants’ motion to

dismiss the claim for malicious prosecution on statute of limitations grounds

because the claim accrued at the time Mr. Laurino was acquitted and was arguably

subject to a two-year statute of limitations.

-3-

injunctive and declaratory relief and dismissed each of his claims, except for the

claim for malicious prosecution, 2 as barred by the statute of limitations.

The district court converted the motion to dismiss on the malicious

prosecution claim to a summary judgment motion and ordered a briefing schedule. 

In its order setting the briefing schedule, the court noted with concern

Mr. Laurino’s statement in his brief in response to the City of Wichita’s motion

to dismiss that: 

there were inconsistent statements, perhaps even some statements

rising to the level of perjury, between the officers’ police reports and

the officers’ subsequent testimony under oath in the Sedgwick

County District Court trial of Mr. Laurino in which he was acquitted. 

Thus, if the Plaintiff was tried in municipal court on stipulated facts

and, if the Plaintiff is correct and the inconsistencies between the

officers’ reports and the officers’ testimony rise to the level of

“material, intentional misstatements of fact”, Plaintiff’s previous

conviction in municipal court may have been “obtained by fraud,

perjury or other corrupt means.”

Appellant’s App. at 56-57 (quoting Mr. Laurino’s brief); see Appellees’ Supp.

App. at 40.

The district court admonished counsel that this was a “serious accusation,”

and reminded him of his duties under Fed. R. Civ. P. 11. Appellant’s App. at 57. 

It instructed counsel that if he wished to pursue the contention involving fraud,
-4-

perjury or corruption, it should be supported by affidavits or other evidence

admissible in a summary judgment proceeding. See id. 

The defendants subsequently filed their motions for summary judgment

within the deadline set by the district court. Mr. Laurino did not respond. When

the court clerk contacted his counsel about the lack of response, counsel stated

that Mr. Laurino had instructed him not to file a response, and to appeal instead. 

On March 4, 1999, the district court, finding this response unsatisfactory, entered

an order requiring Mr. Laurino and his counsel to show cause why Rule 11

sanctions should not be imposed for their previous accusations of fraud, perjury

or corruption against the officers.

The district court held a hearing on the order to show cause. At the

hearing, Mr. Laurino’s attorney explained the factual basis for the claim of

perjury, fraud or other corrupt means against Officer Tate. He admitted, however,

that he was unable to provide any evidence that the other officers named had

committed acts of fraud, perjury or corruption. See Appellant’s App. at 218-20. 

Counsel explained that he “was making a broad sweeping statement and I may

have overstepped my bounds.” Id. at 220. 

The district court agreed. It entered summary judgment against

Mr. Laurino on the remaining claim and imposed Rule 11 sanctions against his

attorney, ordering him to pay $825.00 based upon time expended by the counsel
-5-

for the officers, and $714.82 based upon time expended by counsel for the City of

Wichita. The district court subsequently entered an order inviting defendants to

file a motion for sanctions if they wished to have the sanctions paid to them. 

The defendants filed a joint motion for sanctions, and the district court entered an

amended judgment awarding the sanctions to them.

I.

We consider first whether Mr. Laurino’s claims were barred by the statute

of limitations. We review de novo the district court’s determination of this issue. 

See Sterlin v. Biomune Sys. , 154 F.3d 1191, 1194 (10th Cir. 1998). The district

court determined that Mr. Laurino’s claims for warrantless arrest without

probable cause, unlawful deprivation of liberty, intentional interference with

a business interest, and outrageous conduct accrued on the day of his arrest and

release from jail, July 21, 1995. It then borrowed and applied the two-year

Kansas statute of limitations for injury to the rights of another. See Kan. Stat.

Ann. § 60-513(a)(4); Wilson v. Garcia , 471 U.S. 261, 280 (1985). Under the

district court’s reasoning, Mr. Laurino’s complaint was filed more than seven

months after the statute of limitations had expired and was therefore time-barred.

On appeal, Mr. Laurino raises two arguments that his claims were not

time-barred. He argues that he could not have brought his claim for wrongful

arrest without probable cause until he had been acquitted of the underlying
-6-

offense of obstructing legal process. He also argues that the statute of limitations

for § 1983 claims is four years, not two years as the district court determined.

A.

Mr. Laurino argues that his claim for arrest without probable cause did not

accrue until he was acquitted, citing Heck v. Humphrey , 512 U.S. 477 (1994). 

Heck requires a court considering a § 1983 damage claim relating to a plaintiff’s

conviction to determine whether a judgment in favor of the plaintiff would

necessarily imply the invalidity of the conviction; if so, then the plaintiff must

obtain invalidation of the conviction before pursuing his action for damages. 

See id. at 487. 

Mr. Laurino’s Heck argument is foreclosed by our decision in Beck v. City

of Muskogee Police Department , 195 F.3d 553 (10th Cir. 1999). There, we held

that “nothing in Heck changes the general rule that causes of action relating to an

allegedly illegal arrest arise at the time of arrest.” Id. at 558. This is because

a suspect’s proof that police lacked probable cause to arrest him does not

necessarily imply the invalidity or unlawfulness of his conviction for the
3 Contrary to Mr. Laurino’s arguments, this case does not fall within

any of the exceptions to the Beck rule, such as when a plaintiff convicted of

resisting arrest challenges the underlying arrest, see Beck , 195 F.3d at 558, or

where all the evidence to be presented was obtained as the result of an illegal

arrest, see id. at 559 n.4.

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underlying offense. See Brooks v. City of Winston-Salem , 85 F.3d 178, 182

(4th Cir. 1996). 3

Mr. Laurino’s challenge to his arrest does not implicate any of the elements

of his conviction for obstructing legal process. We conclude that the accrual of

his claim for arrest without probable cause is unaffected by Heck . 

B.

Mr. Laurino also argues that the district court improperly borrowed a state

statute of limitations and that a four-year federal “catch-all” statute of limitations

should instead apply to his § 1983 claims. Section 1983 is silent concerning the

applicable statute of limitations, leading federal courts to borrow the analogous

state statute for personal injury. Mr. Laurino cites 28 U.S.C. § 1658, however,

which reads as follows:

Except as otherwise provided by law, a civil action arising under an

Act of Congress enacted after the date of the enactment of this

section [December 1, 1990] may not be commenced later than 4 years

after the cause of action accrues.

By its terms, § 1658’s four-year statute of limitations applies only to

statutes enacted after December 1, 1990. Section 1983 was enacted prior to
4 Mr. Laurino also raises an argument based upon Albright v. Oliver ,

510 U.S. 266 (1994), that a seizure continues for § 1983 purposes until the

defendant has been acquitted. He failed to show that he made this argument

in the district court, and we therefore decline to consider it. See Oyler v.

(continued...)

-8-

December 1, 1990. Mr. Laurino argues, however, that an “enactment” occurs for

purposes of § 1658 anytime Congress amends a statute. Section 1983 was

amended on October 19, 1996, to limit injunctive relief against judicial officers. 

See Federal Courts Improvement Act of 1996, Pub. L. 104-317, Title III,

§ 309(c), 100 Stat. 3853. We must therefore determine whether this amendment

made § 1983 actions subject to the four-year statute of limitations provision of

§ 1658. 

We have found no circuit decisions addressing this specific issue. 

Our review of the legislative history of § 1658, however, convinces us that

Mr. Laurino’s position lacks merit. The House Report states that § 1658 was

intended to be “applicable to legislation enacted after the effective date of this

Act, which creates a cause of action but is silent as to the applicable limitations

period.” H.R. Rep. No. 101-734, at 24 (1990), reprinted in 1990 U.S.C.C.A.N.

6860, 6870 (emphasis added). The 1996 amendment to § 1983 did not create

a cause of action, and none of Mr. Laurino’s causes of action are based upon it in

any way. The district court therefore appropriately applied the two-year Kansas

state statute of limitations to his claims. 4 
4

(...continued)

Allenbrand , 23 F.3d 292, 299 n.8 (10th Cir. 1994).

-9-

II.

We turn to the appeal from the Rule 11 sanctions. Appellees argue that we

lack jurisdiction over this portion of the appeal. They note that the sanctions

were entered solely against appellant’s attorney, Thomas C. McDowell, who

failed to file a separate notice of appeal. See, e.g. , Cabrera v. City of Huntington

Park , 159 F.3d 374, 382 (9th Cir. 1998) (holding that client lacks standing to

appeal order imposing sanctions against his attorney).

Mr. McDowell responds that he intended the notice of appeal in this case to

include his personal appeal from the order of sanctions. The notice of appeal

nowhere mentions Mr. McDowell, except for being signed by him as attorney for

appellant. See Appellant’s App. at 13. Appeals should not be dismissed,

however, “for failure to name a party whose intent to appeal is otherwise clear

from the notice.” Fed. R. App. P. 3(c)(4); see also Cole v. Ruidoso Mun. Sch. ,

43 F.3d 1373, 1385 (10th Cir. 1994). The notice of appeal here specifically

purports to appeal, among other things, from an order entered on May 18, 1999,

that only concerns the sanctions entered against Mr. McDowell. Designation of

this order provides sufficient evidence, by implication, of Mr. McDowell’s

intention to take an appeal from the order of sanctions. See Garcia v. Wash ,
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20 F.3d 608, 609-10 (5th Cir. 1994). We therefore proceed to consider the

merits of his arguments. 

Mr. McDowell raises both substantive and procedural arguments against the

sanctions. We review all aspects of the district court’s Rule 11 determination for

abuse of discretion. See Cooter & Gell v. Hartmarx Corp. , 496 U.S. 384, 405

(1990). We conclude that none of Mr. McDowell’s arguments provides a basis

for reversal. 

A.

In Mr. McDowell’s first substantive argument, he contends that he should

not have been sanctioned because he raised a nonfrivolous argument for reversal

of existing law. The district court sanctioned Mr. McDowell because he “had no

evidentiary support for his factual assertions that Officers McIntosh, Berry,

Weinman and Hiser may have committed perjury or that such contentions were

likely to have evidentiary support after a reasonable opportunity for further

investigation or discovery.” Appellant’s App. at 75 (footnote omitted). 

Mr. McDowell argues that under a minority view taken by some other courts,

a plaintiff who pursues a malicious prosecution action is not obligated to show

that an overturned conviction in municipal court was the product of fraud, perjury

or other corrupt means. Therefore, he argues, he should not have been sanctioned

for failure to make such a showing. 
-11-

This argument lacks merit. Mr. McDowell was not sanctioned for

attempting to modify existing law. He was sanctioned for making an allegation

that individual defendants in this case other than Officer Tate may have

committed perjury, when he had no evidentiary support for the allegation, and he

failed to show that investigation or discovery would lead to any evidence to

support his allegation. See Fed. R. Civ. P. 11(b)(3). Whether he could have also

established the elements of his claim without the unsubstantiated allegation is

irrelevant to the district court’s basis for imposing sanctions.

B.

Mr. McDowell next argues that he had a factual basis for arguing that

Officer Tate committed perjury. The district court conceded this might be true,

but concluded that his argument still deserved sanction because it accused the

other officers of perjury without a factual basis. Mr. McDowell presents no

argument in response to the district court’s conclusion concerning the other

officers. His argument therefore provides no basis for reversal of the district

court’s decision.

C.

Finally, Mr. McDowell attacks the procedural basis for the award of

sanctions. The district court initially assessed sanctions sua sponte, then, upon

invited motion by counsel, directed that the sanctions be paid to counsel rather
5 The district court correctly recognized that it required a motion for

sanctions before awarding them to defendants. See Hutchinson , 208 F.3d at 1184. 

Where sanctions are ordered on motion, however, the “safe harbor” provision

does apply. See Fed. R. Civ. P. 11(c)(1)(A). It is therefore questionable whether

(continued...)

-12-

than to the court clerk. Mr. McDowell contends that neither the initial nor the

amended award of sanctions can stand, because he withdrew the offending

pleading before the first order of sanctions was entered and thereby complied with

the “safe harbor” provisions of Rule 11. 

We consider first the initial award of sanctions. Mr. McDowell argues that

he implicitly brought himself within the “safe harbor” provision by failing to

respond to the defendants’ motion for summary judgment. We need not determine

whether his nonresponse constituted a “withdraw[al]” within the meaning of Rule

11(c)(1)(A), however, because the “safe harbor” provision does not apply when a

court awards sanctions on its own initiative. See Rule 11(c)(1)(B); Hutchinson v.

Pfeil , 208 F.3d 1180, 1184 (10th Cir. 2000). Instead, a sua sponte award of

sanctions requires the issuance of a show cause order, with reasonable

opportunity to respond. See Hutchinson , 208 F.3d at 1184. As these procedural

requirements were complied with in this instance, Mr. McDowell’s procedural

argument for reversal of the initial award of sanctions fails.

Mr. McDowell has a stronger argument for application of the “safe harbor”

provision with respect to the amended judgment. 5 Defendants suggest that the
5

(...continued)

the district court could entertain defendants’ motion for Rule 11 sanctions after

final judgment, because at that point McDowell could no longer withdraw his

pleading pursuant to the “safe harbor” provision. See Hutchinson , 208 F.3d

at 1183-84.

6 The notice of appeal purports to appeal from “any and all other

subsequent amendments to or other final judgments entered in the above named

case after this notice of appeal has been filed.” Appellant’s App. at 13. This

designation was ineffective to appeal from the amended judgment. See Fed. R.

App. P. 3(c)(1)(B) (requiring specific designation in notice of appeal of order

appealed from).

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“safe harbor” rule may be flexible in circumstances where sanctions have already

been awarded on the court’s own initiative. We need not resolve this issue,

however, because we hold we lack jurisdiction over Mr. McDowell’s appeal from

the amended order of sanctions.

At the time the notice of appeal in this case was filed, on May 28, 1999,

defendants’ motion seeking to amend the judgment to award Rule 11 sanctions to

them had been filed but not decided. The district court did not grant the motion

until June 18, 1999, after the notice of appeal had been filed. At that time, the

appeal from the award of sanctions ripened, and we gained jurisdiction over the

initial award of sanctions. Mr. McDowell failed to file an amended notice of

appeal from the district court’s amended judgment, however. We therefore lack

jurisdiction over his challenge to the amended judgment. 6

 See Fed. R. App. P.

4(a)(4)(B)(ii); Breeden v. ABF Freight Sys., Inc. , 115 F.3d 749, 752 (10th Cir.

1997).
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The judgment of the United States District Court for the District of Kansas

is therefore AFFIRMED.