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 agains t him while he was employed at a cityowned water plant in 2006–2007. The dist rict court dismissed Panicker’s claims against Oklahoma City based on the applicab le statute of limitations and dismissed the individual defendants for failure to ob tain 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 appella te record, this panel has 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 Ci r. R. 34.1(G). The case is therefore ordered submitted without or al argument. This order a nd judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasi ve 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 Court2 and doesn’t dispute that the claims are barre d by the applicable statute of limitations, Panicker appeals the district court’s orde rs 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 di strict court’s order allowing Panicker additional time to file an Amended Complaint, Panicker file d an Amended Complain t asserting claims against Oklahoma City, Joe Case, and La rry Wall. If we construe Panicker’s Amended Complaint broadly, 1 we understand Panicker to plead that the Defendants discriminated against him based on his As ian 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 Fe d. R. Civ. P. 12(b)(6), arguing that the applicable statute of limitations barre d Panicker’s claims. In his response, Panicker attached his right-to-sue lett er from the Equal Em ployment Opportunity Commission (EEOC), dated Nove mber 21, 2007, and argued th e merits of his claims. After reviewing Panicker’s re sponse, the district court di smissed Panicker’s claims, concluding that “[a]ny claim, whether ba sed 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 a nd Wall should not be dismissed for failure to serve Case and Wall, the Court dismissed Panicker’s claims ag ainst Case and Wall without prejudice. DISCUSSION The court may grant a Rule 12(b)(6) mo tion to dismiss based on a statute of limitations defense “when the dates given in the complaint make clear that the right sued upon has b een extinguished.” Aldrich v. McCulloch Props., Inc. , 627 F.2d 1036, 1041 n.4 (10th Cir. 198 0). “We review de novo ‘a distri ct 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 in jury claims supply th e limitations periods for § 1983 claims.”). Under Oklahoma law, Pa nicker had two years to file his claims under § 1983. See Beck , 195 F.3d at 557 (Oklahoma’s tw o-year statute of limitations applies to § 1983 claims). Panicker’s Am ended Complaint confirms that he waited about nine years to file hi s claims. Therefore, his cl aims under § 1983 are untimely and barred. To the extent we construe his Amende d Complaint as asserting a claim under Title VII, those claims also expired long before Panicker filed suit in this case. See4 EEOC v. W.H. Braum, Inc. , 347 F.3d 1192, 1197 (10th Ci r. 2003) (explaining that under Title VII, “the employee has ninety da ys from receipt of the right to sue letter in which to file suit.”). Panicker doesn’t claim the district cour t erred in holding that his claims are barred by the applicable statute of limitati ons. Instead, Panicker once again attempts to argue the merits of his claim. But stat utes of limitations ‘“promote justice by preventing surprises through . . . revival of claims that ha ve been allowed to slumber until evidence has been lost, me mories 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 applicab le statute of limitations, we need not address the merits of Panicker’s claims. Finally, the district court did not abus e 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 distri ct court’s dismissal for failure to serve defendants for abuse of discretion). The district court provided Panicker an opportunity to show cause fo r the failure to effect serv ice and Panicker failed to do so. Panicker has never argued that he pr operly served Case or Wall and has never provided any reason for failing to do so. Theref ore, the district c ourt didn’t abuse its discretion in dismissing the cl aims against Case and Wall.5 CONCLUSION The district court’s orders dismissi ng Panicker’s claims are AFFIRMED.

Entered for the Court
Gregory A. Phillips Circuit Judge