UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

MICHAEL E.D. GILYARD, 

 Plaintiff - Appellant, 

v. 

THOMAS GIBSON, Federal DEA 

Agent; CHRIS GABEAU, Federal 

DEA Agent; JERE HOLT, Federal 

DEA Agent, 

 Defendants - 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 the Fourth Amendment 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 the complaint, Mr. Gilyard asserted 

jurisdiction based on both 42 U.S.C. § 1983 and Bivens. 

FILED 

United States Court of Appeals

Tenth Circuit 

May 5, 2015

Elisabeth A. Shumaker 

Clerk of Court
2 

But a two-year period of limitations applied, and Mr. Gilyard waited four 

years to sue. Thus, the district court dismissed the suit. 

Mr. Gilyard appeals, urging tolling based on a legal disability. We 

ask: Did the district court 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 tolling 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) (setting forth a two-year period of 

limitations for “an action for injury to the rights of another, not arising on 

contract”). 

Mr. Gilyard states in the complaint that the wrongdoing occurred in 

February 2010. He sued less than a year later, but the district court ordered 

dismissal without prejudice. Mr. Gilyard then waited 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 is 
3 

The issue of timeliness would ordinarily involve two factors: (1) 

when the cause of action accrued, and (2) whether Mr. Gilyard is entitled 

to equitable tolling. But the first factor is not at issue because the 

complaint states that the wrongdoing and injury occurred in February 2010. 

There is no question that the cause of action accrued at that point. Thus, 

timeliness turns on the second factor: equitable tolling. 

When we review summary dismissal 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 created 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 grounds for equitable tolling. Mr. Gilyard alleges a 

legal disability based on a learning disability and lack of competency. To 

determine whether these allegations justify tolling, we consider Oklahoma 

law. See Alexander v. Oklahoma, 382 F.3d 1206, 1217 (10th Cir. 2004). 

In Oklahoma, tolling may be permissible based on a legal disability. 

See id. (“[T]he existence of a ‘legal disability’ provides 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 action 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 (stating that when claimants 

suffer a legal disability, they can ordinarily wait up to one year to sue after 

removal of their disabilities). But Mr. Gilyard bears the burden 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 limitations period).3

 The U.S. Magistrate Judge directed 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 grounds, identifying 

possible reasons such as the application of equitable tolling). In 

responding, Mr. Gilyard did not mention a disability. 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 recommendation, Mr. Gilyard asserted that (1) his 

educational testing in 2010 had shown a severe learning disability and (2) 

he was unable to comprehend his financial affairs. Objection to Report and 

Recommendation at 1-2 (Nov. 3, 2014) (Doc. 17). But Mr. Gilyard did not 

explain why his learning disability or inability to understand financial 

 

3

 Oklahoma law governs the burden of proof for equitable tolling. See 

Roberts v. Barreras, 484 F.3d 1236, 1240 (10th Cir. 2007) (holding that 

state law governs the burden of proof on equitable tolling in a Bivens

action). 
5 

affairs would prevent him from filing a complaint. Indeed, in 2011, after 

the alleged test results showing a severe learning disability, Mr. Gilyard 

was able to file a complaint 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 discretion in concluding that Mr. Gilyard had 

not proven a legal disability. See, e.g., Laurson v. Leyba, 507 F.3d 1230, 

1232 (10th Cir. 2007) (holding that dyslexia was not a ground to toll the 

limitations period for a federal habeas action). 

Request for an Evidentiary Hearing 

On appeal, Mr. Gilyard argues that he has evidence to show his 

disability and should have had an opportunity for an evidentiary hearing. 

We review the denial of an evidentiary hearing for abuse of discretion. 

United States v. Clingman, 288 F.3d 1183, 1187 n.4 (10th Cir. 2002). 

Mr. Gilyard had an opportunity to submit written evidence to explain 

his legal disability, but failed to take advantage of that opportunity. See, 

e.g., Lyons v. Potter, 521 F.3d 981, 983 (8th Cir. 2008) (stating that an 

evidentiary hearing was not necessary when a complainant had failed to 

take advantage of an opportunity to present evidence justifying equitable 

tolling). Mr. Gilyard points out that this opportunity did not include an 

evidentiary hearing, but he had not asked for one in district court. In light 

of the absence of a request, the district court acted within its discretion in 
6 

declining to order an evidentiary hearing. See Robinson v. City of Edmond, 

160 F.3d 1275, 1286 (10th Cir. 1998) (“Ordinarily, a district court does not 

abuse its discretion in deciding 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 the remainder of his filing fees in 

installments, as required by the Prison Litigation Reform Act, 28 U.S.C. 

§ 1915(b). 

 Entered for the Court 

 Robert E. Bacharach 

 Circuit Judge