PUBLISH 

UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

DUSTIN ROBERT EASTOM, 

 Plaintiff - Appellant 

v. 

CITY OF TULSA, a municipal 

corporation; JEFFREY MICHAEL 

HENDERSON, individually and in his 

official capacity; 

 Defendants - Appellees, 

and 

BRANDON J. McFADDEN, individually 

and in his official capacity; BUREAU OF 

ALCOHOL, TOBACCO, FIREARMS 

AND EXPLOSIVES, an agency of the 

United States of America, 

 Defendants. 

No. 14-5132 

_________________________________ 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF OKLAHOMA 

(D.C. No. 4:11-CV-581-HE-PJC)

_________________________________ 

Submitted on the briefs:*

 *

 After examining the briefs and appellate record, this panel determined 

unanimously that oral argument would not materially assist in the determination of 

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore 

ordered submitted without oral argument. 

FILED 

United States Court of Appeals

Tenth Circuit 

April 20, 2015

Elisabeth A. Shumaker 

Clerk of Court
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Stanley D. Monroe and Kirsten Louise Palfreyman, Monroe & Associates, Tulsa, 

Oklahoma, for Appellant. 

Clark O. Brewster, Guy A. Fortney, and Mark B. Jennings, Brewster & De Angelis, 

P.L.L.C., Tulsa, Oklahoma; and Gerald M. Bender, Litigation Division Manager, City 

Hall, Tulsa, Oklahoma, for Appellee. 

_________________________________ 

Before HARTZ, HOLMES, and MATHESON, Circuit Judges. 

_________________________________ 

For the second time, Dustin Eastom attempts to appeal the district court’s order 

granting summary judgment to the City of Tulsa and Jeffrey Henderson, a Tulsa police 

officer. Mr. Eastom attempted to appeal the same order in 2014, but we dismissed for 

lack of jurisdiction. See Eastom v. City of Tulsa, 563 F. App’x 595, 595 (10th Cir. 2014) 

(unpublished). We again dismiss Mr. Eastom’s appeal for lack of jurisdiction because 

the district court’s order is still not final. 

I. BACKGROUND

In 2011, Mr. Eastom filed claims for, inter alia, malicious prosecution under 42 

U.S.C. § 1983 against the City of Tulsa, Mr. Henderson, and Brandon McFadden, who 

was an agent with the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”). 

Mr. Eastom also alleged a negligence claim under Oklahoma’s Governmental Tort 

Claims Act against the City of Tulsa.1

 1

 Mr. Eastom also lodged a § 1983 claim against the ATF and Federal Tort 

Claims Act claims against the United States and the ATF. The district court 

dismissed each of these claims with prejudice on July 3, 2012, so they do not affect 

our jurisdictional analysis. 
- 3 - 

After Mr. Eastom filed suit, Mr. McFadden filed for Chapter 7 bankruptcy. Mr. 

McFadden notified the district court that Mr. Eastom’s claim against him was thereby 

automatically stayed under 11 U.S.C. § 362.2

The district court entered summary judgment for the City of Tulsa and Mr. 

Henderson, dismissing Mr. Eastom’s § 1983 claims with prejudice. It also declined to 

exercise supplemental jurisdiction over his state law claim against the City of Tulsa and 

therefore dismissed it without prejudice. All that remained was Mr. Eastom’s § 1983 

claim against Mr. McFadden, which continued to be stayed under 11 U.S.C. § 362. 

Mr. Eastom appealed the district court’s summary judgment order, and we ordered 

Mr. Eastom to show cause why his appeal should not be dismissed for lack of jurisdiction 

because there was no final judgment as to all parties. Eastom, 563 F. App’x at 596. Mr. 

Eastom returned to the district court, and voluntarily dismissed his claim against Mr. 

McFadden without prejudice, and the district court re-entered judgment. Mr. Eastom 

then responded to our order to show cause, arguing his voluntary dismissal of the claim 

against Mr. McFadden made the district court’s summary judgment order final because 

he was time-barred from refiling the claim. Id.

We concluded Mr. Eastom’s voluntary dismissal without prejudice was 

insufficient to render the district court’s order a final judgment as to all parties because 

Mr. Eastom could refile his claim against Mr. McFadden. Id. We noted Mr. Eastom 

 2

 Filing a bankruptcy petition automatically stays the “continuation . . . of a 

judicial . . . action or proceeding against the debtor that was or could have been 

commenced before the commencement of the case under this title.” 11 U.S.C. 

§ 362(a)(1). 
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conceded the stay was still in place as to his claim against Mr. McFadden. Id.3

 We 

explained Mr. Eastom could refile this claim due to Oklahoma’s savings statute, Okla. 

Stat. tit. 12, § 100, which allows civil plaintiffs an additional year to refile claims that fail 

on a ground other than on the merits, even if the claim’s original statute of limitations has 

expired at the time of refiling. Eastom, 563 F. App’x at 596. The savings statute 

therefore allowed Mr. Eastom to refile against Mr. McFadden for one year after the 

voluntary dismissal without prejudice. We limited our analysis to Oklahoma’s savings 

statute and did not discuss whether the automatic stay tolled the statute of limitations 

applicable to Mr. Eastom’s claim against Mr. McFadden. Id. at 595-97. 

Since Mr. Eastom’s first appeal, there has been no new activity in the case before 

the district court. Mr. Eastom has simply waited for time to pass, and he filed this second 

appeal after one year had elapsed from when he voluntarily dismissed his claim against 

Mr. McFadden. He has not demonstrated the stay has been lifted, and the bankruptcy 

court’s docket reveals no activity since his prior appeal. See In re McFadden, Ch. 7 Case 

No. 12-50013-rjl7 (Bankr. N.D. Tex. filed Jan. 13, 2012). It therefore appears the § 362 

stay still remains in place. 

In response to his second appeal, we again ordered Mr. Eastom to show cause why 

his appeal should not be dismissed for lack of jurisdiction. He contends the district 

court’s order is final as to all parties because his voluntary dismissal is effectively with 

 3

 Before either of Mr. Eastom’s appeals, Mr. Eastom and Mr. McFadden 

stipulated to lifting the § 362 stay as to Mr. Eastom’s claim, but Mr. Eastom has not 

provided us or the district court with a bankruptcy court order lifting the stay. 
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prejudice now that the extra time provided by Oklahoma’s savings statute has elapsed. 

Appellees subsequently filed a motion to dismiss the appeal for lack of jurisdiction. 

II. DISCUSSION

Whether we have jurisdiction depends on whether Mr. Eastom can refile his claim 

against Mr. McFadden. If he can refile the claim, then the district court’s summary 

judgment order is not final and we do not have jurisdiction. But if Mr. Eastom cannot 

refile the claim, the district court’s order is final and we have jurisdiction. 

Whether Mr. Eastom can refile his claim against Mr. McFadden depends on the 

interplay among three statutes: (1) the applicable statute of limitations, (2) Oklahoma’s 

savings statute, and (3) the bankruptcy stay statute. In Mr. Eastom’s first appeal, we 

relied exclusively on the savings statute to determine Mr. Eastom could refile his claim 

against Mr. McFadden. We again rely on the savings statute to conclude we lack 

jurisdiction because of the relationship between the savings statute and the bankruptcy 

stay. 

Under 28 U.S.C. § 1291, we have jurisdiction to review “all final decisions of 

the district courts of the United States.” “A decision is ‘final when it ends the 

litigation on the merits and leaves nothing for the court to do but execute the 

judgment.’” United States v. Copar Pumice Co., Inc., 714 F.3d 1197, 1204 (10th Cir. 

2013) (quoting In re Motor Fuel Temperature Sales Practices Litig., 641 F.3d 470, 

481 (10th Cir. 2011)). “The critical determination as to whether an order is final is 

whether plaintiff has been effectively excluded from federal court under the present 
- 6 - 

circumstances.” Amazon, Inc. v. Dirt Camp, Inc., 273 F.3d 1271, 1275 (10th Cir. 

2001) (quoting Facteau v. Sullivan, 843 F.2d 1318, 1319 (10th Cir. 1988)). 

“Our general rule is that a party cannot obtain appellate jurisdiction where the 

district court has dismissed at least one claim without prejudice because the case has 

not been fully disposed of in the lower court.” Jackson v. Volvo Trucks N. Am., Inc., 

462 F.3d 1234, 1238 (10th Cir. 2006). Similarly, “[p]arties may not confer appellate 

jurisdiction upon us by obtaining a voluntary dismissal without prejudice of some 

claims so that others may be appealed.” Heimann v. Snead, 133 F.3d 767, 769 (10th 

Cir. 1998); see also Cook v. Rocky Mtn. Bank Note Co., 974 F.2d 147, 148 (10th Cir. 

1992). 

Mr. Eastom argues the district court’s summary judgment has ripened into a final 

judgment because the time allowed by the savings statute has expired for his claim 

against Mr. McFadden, meaning the claim is now effectively dismissed with prejudice. 

He is wrong because the bankruptcy stay continues to toll the running of the statute. 

Oklahoma’s savings statute provides, 

If any action is commenced within due time, and . . . the plaintiff fail[s] in 

such action otherwise than upon the merits, the plaintiff . . . may commence 

a new action within one (1) year after the . . . failure although the time limit 

for commencing the action shall have expired before the new action is filed. 

Okla. Stat. tit. 12, § 100. In Brown v. Hartshorne Public School District No. 1, 926 

F.2d 959, 962 (10th Cir. 1991), abrogated on other grounds by Nat’l R.R. Passenger 

Corp. v. Morgan, 536 U.S. 101, 114 (2002), we held the Oklahoma savings statute 

applies to § 1983 claims. Accord Williams v. City of Guthrie, 109 F. App’x 283, 286 
- 7 - 

(10th Cir. 2004) (unpublished) (cited for persuasive value, see Fed. R. App. P. 32.1; 

10th Cir. R. 32.1(A)). 

In Don Huddleston Construction Co. v. United Bank & Trust Co., 933 P.2d 944 

(Okla. Civ. App. 1996), the Court of Civil Appeals of Oklahoma interpreted the interplay 

between an automatic stay under 11 U.S.C. § 362 and Oklahoma’s savings statute. The 

court interpreted Oklahoma law as follows: “[W]henever a person is prevented from 

exercising his legal remedy by some paramount authority, the time during which he is 

thus prevented is not to be counted against him in determining whether the statute of 

limitations has barred his right.” Id. at 947. Because the automatic stay imposed by 

§ 362 prevents plaintiffs from exercising legal remedies against a debtor, the court held 

“Oklahoma law prevents the running of the period set forth in § 100”—the savings 

statute—while the automatic stay is in place. Id. at 947-48. “The refiling period thus 

[does] not begin to run against [Mr. Eastom] until the restraint of the bankruptcy stay 

[has] lifted with the dismissal of the bankruptcy case.” Id. at 948. 

Mr. Eastom’s claim against Mr. McFadden is not time-barred because the stay is 

still in place, and Oklahoma law tolls the savings statute until the § 362 automatic stay is 

lifted. The district court’s summary judgment order therefore remains non-final. We still 

lack jurisdiction.4

 

 4

 We need not examine the interplay between the bankruptcy stay and Oklahoma’s 

two-year statute of limitations for § 1983 claims. But we note this is a potential 

alternative basis for our lack of jurisdiction. To calculate the statute of limitations 

applicable to a § 1983 claim, including any tolling rules, we generally look to state law. 

Wallace v. Kato, 549 U.S. 384, 394 (2007). The statute of limitations for Mr. Eastom’s 

claim against Mr. McFadden is based on Oklahoma law, which provides for a two-year 
- 8 - 

III. CONCLUSION

We grant the Appellees’ motion to dismiss Mr. Eastom’s appeal. Without a 

final judgment, we lack jurisdiction. 

ENTERED FOR THE COURT 

Scott M. Matheson, Jr. 

Circuit Judge 

 

statute of limitations. Beck v. City of Muskogee Police Dept., 195 F.3d 553, 557 (10th 

Cir. 1999). Although Don Huddleston’s holding involved the tolling of Oklahoma’s 

savings statute, the reasoning of that case indicates the bankruptcy stay also would toll 

the statute of limitations. 

Additionally, 11 U.S.C. § 108(c) provides a minimum 30-day extension of the 

statute of limitations once the bankruptcy stay is lifted. 11 U.S.C. § 108(c) (“[If] an order 

entered in a nonbankruptcy proceeding . . . fixes a period for commencing or continuing a 

civil action in a court other than a bankruptcy court on a claim against the debtor . . . and 

such period [had] not expired before the date of the filing of the petition, then such period 

does not expire until the later of . . . (1) the end of such period, including any suspension 

of such period . . . or (2) 30 days after the notice of the termination or expiration of the 

stay . . . with respect to such claim.”).