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 NORTHE RN DISTRICT OF OKLAHOMA (D.C. No. 4:11-CV-581-HE-PJC)

________________ _________________ Submitted on the briefs: *

* After examining the brie fs and appellate record, this panel determined unanimously that oral argument would not ma terially 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- 2 - Stanley D. Monroe and Kirs ten Louise Palfreyman, Monr oe & Associates, Tulsa, Oklahoma, for Appellant. Clark O. Brewster, Guy A. Fortney, and Ma rk B. Jennings, Brewster & De Angelis, P.L.L.C., Tulsa, Oklahoma; and Gerald M. Bender, Litigation Di vision Manager, City Hall, Tulsa, Oklahoma, for Appellee.

________________ _________________ Before HARTZ , HOLMES , and MATHESON , Circuit Judges.

________________ _________________ For the second time, Dustin Eastom attempts to appe al 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 th e 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 See Eastom v. City of Tulsa , 563 F. App’x 595, 595 (10th Cir. 2014) (unpublished).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 dism iss 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 Br andon McFadden, who was an agent with the Bureau of Alcohol, Tobacco, Fire arms, and Explosives (“ATF”). Mr. Eastom also alleged a negligence cl aim under Oklahoma’s Governmental Tort Claims Act against the City of Tulsa. 1

1 Mr. Eastom also lodged a § 1983 clai m against the ATF and Federal Tort Claims Act claims against the United States and the AT F. The district court dismissed each of these claims with prejudice on July 3, 20 12, 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 ju dgment for the City of Tulsa and Mr. Henderson, dismissing Mr. Eastom’s § 1983 clai ms with prejudice. It also declined to exercise supplemental jurisdiction over his stat e law claim against the City of Tulsa and therefore dismissed it without prejudice. A ll 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 shou ld not be dismissed fo r lack of jurisdiction because there was no final judg ment as to all parties. Eastom , 563 F. App’x at 596. Mr. Eastom returned to the district court, a nd 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 c ourt’s summary judgment order final because he was time-barred from refiling the claim. Id. We concluded Mr. Eastom’s volunta ry dismissal without prejudice was insufficient to render the district court’s orde r 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 pro ceeding against the debtor that was or could have been commenced before the co mmencement of the case unde r this title.” 11 U.S. C. § 362(a)(1).- 4 - conceded the stay was still in place as to his claim against Mr. McFadden. Id. 3 We explained Mr. Eastom could refile this clai m due to Oklahoma’s savings statute, Okla. Stat. tit. 12, § 100, which allows civil plaintiffs an additional year to re file claims that fail on a ground other than on the me rits, even if the claim’s origin al 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 ag ainst 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 automa tic 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 wa ited for time to pass, and he filed this second appeal after one year had el apsed 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 activ ity since his prior appeal. See In re McFadden , Ch. 7 Case No. 12-50013-rjl7 (Bankr. N.D. Tex. filed Jan. 13, 2012). It theref ore appears the § 362 stay still rema ins in place. In response to his second appeal, we agai n ordered Mr. Eastom to show cause why his appeal should not be dism issed for lack of jurisdiction. He contends the district court’s order is final as to all parties becau se his voluntary dismissal is effectively with

3 Before either of Mr. Eastom’s a ppeals, 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.- 5 - prejudice now that the extra tim e provided by Oklaho ma’s savings statute has elapsed. Appellees subsequently filed a motion to dism iss 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 dist rict court’s summary judgment order is not final a nd we do not have jurisdiction. But if Mr. Eastom cannot refile the claim, the district court’s or der is final and we have jurisdiction. Whether Mr. Eastom can refile his clai m against Mr. McFadden depends on the interplay among three statutes: (1) the app licable 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 th e savings statute to conclude we lack jurisdiction because of the relationship betw een 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 nothi ng for the court to do but execute the judgment.’” United States v. Copar Pumice Co., Inc. , 714 F.3d 1197, 12 04 (10th Cir. 2013) (quoting In re Motor Fuel Temperat ure Sales Practices Litig. , 641 F.3d 470, 481 (10th Cir. 2011)). “The cr itical determination as to wh ether an order is final is whether plaintiff has been effectively excluded from fede ral 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 ju risdiction where the district court has di smissed at least one claim wit hout 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 volunta ry 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 su mmary judgment has ripened into a final judgment because the time al lowed 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 bankr uptcy stay continues to toll the running of the statute. Oklahoma’s savings statute provides, If any action is commenced within due tim e, and . . . the plaintiff fail[s] in such action otherwise than upon the merits, the pl aintiff . . . may commence a new action within one (1) year after th e . . . failure alt hough the time limit for commencing the action shall have expi red before the new action is filed. Okla. Stat. tit. 12, § 100. In Brown v. Hartshorne Pub lic 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 he ld the Oklahoma savings statute applies to § 1983 claims. Accord Williams v. City of Guthrie , 109 F. App’x 283, 286- 7 - (10th Cir. 2004) (unp ublished) (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 paramo unt authority, the time during which he is thus prevented is not to be counted agains t him in determining whether the statute of limitations has barred his right.” Id. at 947. Because the au tomatic stay imposed by § 362 prevents plaintiffs from exercising lega l 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 agai nst [Mr. Eastom] until the restra int of the bankruptcy stay [has] lifted with the dismissa l 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 savi ngs 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 examin e 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 jurisdicti on. To calculate the statute of limitations applicable to a § 1983 claim, including any to lling rules, we generally look to state law. Wallace v. Kato , 549 U.S. 384, 394 (2007). The stat ute of limitations for Mr. Eastom’s claim against Mr. McFadden is based on Oklahoma law, whic h provides for a two-year- 8 - III. CONCLUSION We grant the Appellees’ motion to dism iss 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) provi des 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 be fore 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.”).