UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

__________________ _______________ MICHAEL E.D. GILYARD,
Pl aintiff - Appellant,

v. THOMAS GIBSON, Federal DEA Agent; CHRIS GABEAU, Federal DEA Agent; JERE HOLT, Federal DEA Agent,
De fendants - Appellees. No. 14-6229 (D.C. No. 5:14-CV-00923-D) (W.D. Oklahoma)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before GORSUCH , McKAY , and BACHARACH , Circuit Judges.

________________ _________________ In 2014, Mr. Michael Gilyard sued under 42 U.S. C. § 1983 and Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics , 403 U.S. 388 (1971), 1 claiming violation of th e Fourth Ame ndment in 2010.

* The Court has determined that oral argument would not materially aid our consideration of the appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). Thus, we have decided the appeal based on the briefs. Our order and judgment does not constitute binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.

1 Mr. Gilyard filed the complaint on a form for actions brought under 42 U.S.C. § 1983. But in the body of th e complaint, Mr. Gilyard asserted jurisdiction based on bo th 42 U.S.C. § 1983 and Bivens

. FILED United States Court of Appeals Tenth Circuit 

### May 5, 2015
Elisabeth A. Shumaker Clerk of Court2 But a two-year period of limitations applied, and Mr. Gilyard waited four years to sue. Thus, the distri ct court dismissed the suit. Mr. Gilyard appeals, urging tolling based on a legal disability. We ask: Did the district c ourt err in declining to toll the limitations period? We conclude that the district court did not err because Mr. Gilyard failed to satisfy his burden of proof for tolli ng under Oklahoma law. As a result, we affirm. Timeliness Under § 1983 or Bivens , timeliness is determined through the state’s limitations period for a personal injury claim. See Wilson v. Garcia, 471 U.S. 261, 276 (1985) (actions under 42 U.S.C. § 1983); Indus. Constructors Corp. v. U.S. Bureau of Reclamation , 15 F.3d 963, 968 (10th Cir. 1994) ( Bivens actions). Under Oklahoma law, this period is two years.
See Okla. Stat. tit. 12 § 95(A)(3) (set ting forth a two-ye ar period of limitations for “an action for injury to the rights of anot her, not arising on contract”). Mr. Gilyard states in the compla int that the wrongdoing occurred in February 2010. He sued less than a year late r, but the district court ordered dismissal without prejudic e. Mr. Gilyard then wait ed until 2014 to file a new complaint. 2

2 Under Oklahoma law, Mr. Gilyard could file a new action within one year of the dismissal. See Okla. Stat. tit. 12 § 100 (“ If any action is3 The issue of timeliness would ordi narily involve tw o factors: (1) when the cause of action accrued, and (2) whethe r Mr. Gilyard is entitled to equitable tolling. But the first factor is no t at issue because the complaint states that the wrongdoing an d injury occurred in February 2010. There is no question that the cause of action a ccrued at that point. Thus, timeliness turns on th e second factor: equitable tolling. When we review summary dismi ssal based on timeliness, we ordinarily engage in de novo review. See Perkins v. Kan. Dep’t of Corrs. , 165 F.3d 803, 806 (10th Cir. 1999). But we have creat ed a special rule for equitable tolling, confining our review to the abuse-of-discretion standard. Garrett v. Fleming , 362 F.3d 692, 695 (10th Cir. 2004). In considering whether the district court abused its discretion, we consider the asserted gr ounds for equitable tolling . Mr. Gilyard alleges a legal disability based on a learning di sability and lack of competency. To determine whether these a llegations justify tolling, we consider Oklahoma law. See Alexander v. Oklahoma , 382 F.3d 1206, 1217 (10th Cir. 2004). In Oklahoma, tolling ma y be permissible based on a legal disability.
See id. (“[T]he existence of a ‘legal disability’ prov ides proper grounds for

commenced within due time, and . . . the plaintiff fail in such action otherwise than upon the merits, the plaintiff . . . may commence a new action within one (1) year after the reversal or failure although the time limit for commencing the actio n shall have expired before the new action is filed.”). Mr. Gilyard acknowledges that he did not file a new action within one year, but urges equitable tolling.4 equitable tolling.”); Okla . Stat. tit. 12 § 96 (statin g that when claimants suffer a legal disability, they can ordina rily wait up to one year to sue after removal of their disabilities). But Mr. Gilyard bears the bu rden of showing this disability. See Ray v. Oklahoma Furniture Mfg. Co. , 40 P.2d 663, 668 (Okla. 1934) (stating that under Oklahoma law, the plaintiff bears the burden of proof on tolling of the lim itations period). 3 The U.S. Magistrate Judge direct ed Mr. Gilyard to explain if he thought he was entitled to equitable tolling. See Order to Show Cause at 1- 2 (Sept. 16, 2014) (Doc. 9) (directing Mr. Gilyard to state why the action should not be summarily dismissed on timeliness ground s, identifying possible reasons such as the application of equitable tolling). In responding, Mr. Gilyard di d not mention a disabil ity. Instead, he argued that the complaint had “related back” to his 2011 suit. The magistrate judge rejected this argument and recommended dismissal. In objecting to this reco mmendation, Mr. Gilyard asserted that (1) his educational testing in 2010 had shown a severe learni ng disabili ty and (2) he was unable to comprehend his financia l affairs. Objectio n to Report and Recommendation at 1-2 (N ov. 3, 2014) (Doc. 17). But Mr. Gilyard did not explain why his learning disability or inability to und erstand financial

3 Oklahoma law governs the burden of proof for equitable tolling. See Roberts v. Barreras , 484 F.3d 1236, 1240 (10th Ci r. 2007) (holding that state law governs the burden of proof on eq uitable tolling in a Bivens action).5 affairs would prevent him from filing a complaint. Inde ed, in 2011, after the alleged test results showing a severe learning disability, Mr. Gilyard was able to file a comp laint against the same defendants for the same wrongdoing. See Compl., Gilyard v. Gibson , Case No. CIV-11-22-D (W.D. Okla. Jan. 6, 2011) (Doc. 1). In these circumstances , we conclude that the district court acted within its discreti on in concluding th at Mr. Gilyard had not proven a le gal disability. See, e.g. , Laurson v. Leyba , 507 F.3d 1230, 1232 (10th Cir. 2007) (holdi ng that dyslexia was not a ground to toll the limitations period for a federal habeas action). Request for an Ev identiary Hearing On appeal, Mr. Gilyard argues that he has ev idence to show his disability and should have had an opport unity for an evidentiary hearing. We review the denial of an evidentia ry hearing for abuse of discretion. United States v. Clingman, 288 F.3d 1183, 1187 n. 4 (10th Cir. 2002). Mr. Gilyard had an opport unity to submit written evidence to explain his legal disability, but failed to take advantag e of that opportunity. See,

e.g. , Lyons v. Potter , 521 F.3d 981, 983 (8th Cir. 2008) (s tating that an evidentiary hearing was not necessary when a complain ant had failed to take advantage of an oppo rtunity to presen t evidence justif ying equitable tolling). Mr. Gilyard points out that this opportunity di d not include an evidentiary hearing, but he had not aske d for one in district court. In light of the absence of a request, the district court acted within its discretion in6 declining to or der an evidentia ry hearing. See Robinson v. City of Edmond , 160 F.3d 1275, 1286 (10th Ci r. 1998) (“Ordinarily, a di strict court does not abuse its discretion in deci ding not to hold an evidentiary hearing when no such request is ever made.”).
Leave to Proceed in Forma Pauperis We grant Mr. Gilyard’s request for leave to proceed in forma pauperis. But Mr. Gilyard must pay th e remainder of his filing fees in installments, as required by the Prison Li tigation Reform Act, 28 U.S.C. § 1915(b). Entered for the Court

Robert E. Bacharach Circuit Judge