UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

SOLOMON PANICKER, 

 Plaintiff - Appellant, 

v. 

CITY OF OKLAHOMA CITY; JOE 

CASE; LARRY WALL, 

 Defendants - Appellees. 

No. 16-6114 

(D.C. No. 5:15-CV-01178-R) 

(W.D. Okla.) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before HARTZ, MURPHY, and PHILLIPS, Circuit Judges. 

_________________________________ 

Plaintiff, Solomon Panicker, appearing pro se, asserts that Oklahoma City and 

two of its employees discriminated against him while he was employed at a cityowned water plant in 2006–2007. The district court dismissed Panicker’s claims 

against Oklahoma City based on the applicable statute of limitations and dismissed 

the individual defendants for failure to obtain service of process on the individual 

defendants. Although he doesn’t identify any error in the district court’s decisions, 

 *

 After examining the briefs and appellate record, this panel has 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. This order and judgment is not binding 

precedent, except under the doctrines of law of the case, res judicata, and collateral 

estoppel. It may be cited, however, for its persuasive value consistent with 

Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

FILED 

United States Court of Appeals

Tenth Circuit 

August 23, 2016

Elisabeth A. Shumaker 

Clerk of Court
2 

and doesn’t dispute that the claims are barred by the applicable statute of limitations, 

Panicker appeals the district court’s orders dismissing all of his claims. Exercising 

jurisdiction under 28 U.S.C. § 1291, we affirm. 

BACKGROUND 

On October 19, 2015, Panicker filed suit against Oklahoma City. On December 

28, 2015, in response to the district court’s order allowing Panicker additional time to 

file an Amended Complaint, Panicker filed an Amended Complaint asserting claims 

against Oklahoma City, Joe Case, and Larry Wall. If we construe Panicker’s 

Amended Complaint broadly,1

 we understand Panicker to plead that the Defendants 

discriminated against him based on his Asian heritage and created a hostile work 

environment that led to his termination. The Amended Complaint asserts that all of 

the alleged conduct occurred in July and August of 2006. Panicker never served 

process on Case or Wall. 

 Oklahoma City sought dismissal under Fed. R. Civ. P. 12(b)(6), arguing that 

the applicable statute of limitations barred Panicker’s claims. In his response, 

Panicker attached his right-to-sue letter from the Equal Employment Opportunity 

Commission (EEOC), dated November 21, 2007, and argued the merits of his claims. 

After reviewing Panicker’s response, the district court dismissed Panicker’s claims, 

concluding that “[a]ny claim, whether based on negligence, 42 U.S.C. § 1983, or 

Title VII has been barred for many years.” R. Vol. 1 at 46. After issuing an order to 

 1

 In considering Panicker’s appeal, we construe his pleadings liberally, but we 

do not serve as his advocate. James v. Wadas, 724 F.3d 1312, 1315 (10th Cir. 2013). 
3 

show cause why the claims against Case and Wall should not be dismissed for failure 

to serve Case and Wall, the Court dismissed Panicker’s claims against Case and Wall 

without prejudice. 

DISCUSSION 

The court may grant a Rule 12(b)(6) motion to dismiss based on a statute of 

limitations defense “when the dates given in the complaint make clear that the right 

sued upon has been extinguished.” Aldrich v. McCulloch Props., Inc., 627 F.2d 1036, 

1041 n.4 (10th Cir. 1980). “We review de novo ‘a district court’s ruling regarding the 

applicability of a statute of limitations.’” Sierra Club v. Okla. Gas and Elec. Co., 816 

F.3d 666, 671 (10th Cir. 2016) (quoting Plaza Speedway, Inc. v. United States, 311 

F.3d 1262, 1266 (10th Cir. 2002)). 

State law determines the statute of limitations for claims under 42 U.S.C. § 

1983. Mondragon v. Thompson, 519 F.3d 1078, 1082 (10th Cir. 2008); Beck v. City 

of Muskogee Police Dept., 195 F.3d 553, 557 (10th Cir. 1999) (“State statutes of 

limitations applicable to general personal injury claims supply the limitations periods 

for § 1983 claims.”). Under Oklahoma law, Panicker had two years to file his claims 

under § 1983. See Beck, 195 F.3d at 557 (Oklahoma’s two-year statute of limitations 

applies to § 1983 claims). Panicker’s Amended Complaint confirms that he waited 

about nine years to file his claims. Therefore, his claims under § 1983 are untimely 

and barred. 

To the extent we construe his Amended Complaint as asserting a claim under 

Title VII, those claims also expired long before Panicker filed suit in this case. See 
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EEOC v. W.H. Braum, Inc., 347 F.3d 1192, 1197 (10th Cir. 2003) (explaining that 

under Title VII, “the employee has ninety days from receipt of the right to sue letter 

in which to file suit.”). 

Panicker doesn’t claim the district court erred in holding that his claims are 

barred by the applicable statute of limitations. Instead, Panicker once again attempts 

to argue the merits of his claim. But statutes of limitations ‘“promote justice by 

preventing surprises through . . . revival of claims that have been allowed to slumber 

until evidence has been lost, memories have faded, and witnesses have disappeared.’” 

CTS Corp. v. Waldburger, 134 S. Ct. 2175, 2183 (2014) (quoting Railroad 

Telegraphers v. Railway Express Agency, Inc., 321 U.S. 342, 348–349 (1944)). 

Because the claims are barred by the applicable statute of limitations, we need not 

address the merits of Panicker’s claims. 

Finally, the district court did not abuse its discretion in dismissing Case and 

Wall for lack of service. See Espinoza v. United States, 52 F.3d 838, 840 (10th Cir. 

1995) (explaining that we review the district court’s dismissal for failure to serve 

defendants for abuse of discretion). The district court provided Panicker an 

opportunity to show cause for the failure to effect service and Panicker failed to do 

so. Panicker has never argued that he properly served Case or Wall and has never 

provided any reason for failing to do so. Therefore, the district court didn’t abuse its 

discretion in dismissing the claims against Case and Wall. 
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CONCLUSION 

The district court’s orders dismissing Panicker’s claims are AFFIRMED. 

Entered for the Court 

Gregory A. Phillips 

Circuit Judge