*This order and judgment is not binding precedent, except

under the doctrines of law of the case, res judicata, and

collateral estoppel. The court generally disfavors the citation

of orders and judgments; nevertheless, an order and judgment may

be cited under the terms and conditions of the court’s General

Order filed November 29, 1993. 151 F.R.D. 470.

UNITED STATES COURT OF APPEALS

Filed 11/2/95

TENTH CIRCUIT

Steve L. Ciszkowski, )

)

Plaintiff-Appellant, )

) No. 95-7086

v. ) (D.C. No. CV-94-650-B)

) (E. Dist. Okla.)

JOE RECTOR, CO I; MARCUS POGUE, )

Medical Director, Mack Alford )

Correctional Center, )

)

Defendants-Appellees. )

ORDER AND JUDGMENT*

Before, SEYMOUR, Chief Judge, McKAY and HENRY, Circuit Judges.

After examining the briefs and appellate record, this panel has

determined unanimously that oral argument would not materially assist

the determination of this appeal. See Fed. R. App. P. 34(a); 10th

Cir. R. 34.1.9. The cause is therefore ordered submitted without oral

argument.

Steve L. Ciszkowski, a pro se prisoner, brought this action under

42 U.S.C. § 1983 against defendant prison officials. He alleges that

he was subjected to cruel and unusual punishment while an inmate at an

Oklahoma correctional facility when he was injured repairing a

television cable. The district court granted defendants’ motion to
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dismiss, ruling that the action was barred by the applicable statute

of limitations. Mr. Ciszkowski appeals and we affirm.

“Because Congress has not enacted a statute of limitations

expressly applicable to section 1983 claims, the courts must adopt the

most analogous limitations period provided by state law.” Abbitt v.

Franklin, 731 F.2d 661, 663 (10th Cir. 1984) (en banc), aff’d, 471

U.S. 261 (1985). These claims are best characterized as personal

injury actions, and “we therefore apply the relevant state statute of

limitations applicable to such actions.” Hunt v. Bennett, 17 F.3d

1263, 1265 (10th Cir. 1994) (citing Wilson v. Garcia, 471 U.S. 261,

280 (1985)). The most analogous Oklahoma statute is the two-year

limitation period provided in Okla. Stat. tit. 12, § 95 (1991) for

injury to the rights of another. See Abbitt, 731 F.2d at 663. The

Supreme Court has further directed that when we apply a state’s

limitations periods we “should apply that state’s tolling provisions

as well.” Brown v. Hartshorne Pub. Sch. Dist. No. 1, 926 F.2d 959,

962 (10th Cir. 1991). This directive also applies to a state’s saving

provisions. Id.

The events underlying Mr. Ciszkowski’s section 1983 claim took

place on August 13, 1992. He filed the instant action on December 7,

1994, after the applicable two-year period had run. Mr. Ciszkowski

argues that his suit is nonetheless timely, relying on the Oklahoma

saving statute, which provides:

If any action is commenced within due time, and a

judgment thereon for the plaintiff is reversed, or if the

plaintiff fail in such action otherwise than upon the

merits, the plaintiff, or, if he should die, and the cause

of action survive, his representatives may commence a new

action within one (1) year after the reversal or failure
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although the time limit for commencing the action shall have

expired before the new action is filed.

Okla. Stat. tit. 12, § 100 (1991). Mr. Ciszkowski points out that he

filed a timely action in state court based on the same events at issue

here. He further points out that the instant 1983 action was filed

within one year of the dismissal of the prior state court action. The

record reveals that Mr. Ciszkowski’s prior state court suit, based on

the same facts, was a negligence action against the Oklahoma

Department of Corrections and its agents and employers brought

pursuant to the Oklahoma Governmental Tort Claims Act.

In granting defendants’ motion to dismiss, the district court did

not address the Oklahoma saving provision. Defendants contend on

appeal that Mr. Ciszkowski’s reliance on section 100 is misplaced

because he did not file his section 1983 action until after the twoyear period had expired. The Oklahoma Supreme Court, however, has

construed section 100 in light of that state’s transactional approach

to the definition of a cause of action. See Chandler v. Denton, 741

P.2d 855, 862-64 (Okla. 1987). Under this approach, “a plaintiff must

allege the operative events upon which he relies for his theories of

recovery within the time period prescribed by the applicable statute.” 

Id. at 863. If he does so and section 100 is otherwise applicable, he

may assert a new theory of recovery based on those events in his new

action. Id. at 863-64. Because Mr. Ciskowski did allege the

operative events in his first timely suit, his failure to assert his

section 1983 theory of recovery within two years would not bar him

from pursuing that theory now.

We nonetheless conclude that section 100 does not save Mr.
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Ciszkowski’s suit. That section by its terms only applies when the

original action fails otherwise than upon the merits. ”And the burden

rests upon a plaintiff to bring himself within the ambit of the

statute.” Allen v. Garnett, 100 F.2d 555, 557 (10th Cir. 1938). In

this case, the only evidence in the record on this issue, a letter

from Mr. Ciskowski’s lawyer, indicates that Mr. Ciszkowski’s state

action was in fact dismissed on the merits. He has therefore failed

to carry the burden of establishing that section 100 is applicable.

The judge of the district court is AFFIRMED. The mandate shall

issue forthwith.

ENTERED FOR THE COURT

Stephanie K. Seymour

Chief Judge