* This order and judgment is not binding precedent, except under the doctrines of law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 10th Cir. R. 36.3. 

UNITED STATES COURT OF APPEALS

Filed 6/4/96

FOR THE TENTH CIRCUIT

JIM R. HOUSLEY,

Plaintiff-Appellant,

v.

LARRY BURROWS, Sheriff of Washita

County; ALFRED MILLER, County

Commissioner; GENE ETRIS, Washita

County Commissioner; FRANK HOHKE,

Washita County Commissioner; BOBBY

BOONE, Warden of MACC,

Defendants-Appellees.

No. 95-7088

(D.C. No. CV-94-298)

(E.D. Okla.)

ORDER AND JUDGMENT*

Before ANDERSON, LOGAN, and MURPHY, 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.
1

In addition to his complaints against the authorities of the Washita County Jail,

plaintiff also complained that the warden for the Mack Alford Correctional Center, where

he was later transferred, similarly deprived him of library access. The district court, finding

that this allegation lacked an arguable basis either in fact or in law, dismissed that portion of

plaintiff’s complaint under the authority of 28 U.S.C. § 1915(d). Plaintiff does not appeal

this portion of the district court’s judgment.

2

See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered submitted

without oral argument.

Plaintiff Jim R. Housley, appearing pro se, appeals the dismissal of his claims brought

under 42 U.S.C. § 1983. Plaintiff argues that, contrary to the holding of the district court,

his claims are not barred by the applicable statute of limitations. We have reviewed the

judgment of the district court de novo, see Trustees of Wyo. Laborers Health & Welfare Plan

v. Morgen & Oswood Constr. Co., 850 F.2d 613, 617 (10th Cir. 1988), and we reverse.

Plaintiff’s complaint stated that he was arrested on September 7, 1991, and was held

in the Washita County Oklahoma Jail for four and one-half months. He alleged that, during

his confinement, he was deprived of the use of the law library and prevented from exercising

outside his cell.1 Based on a fair reading of the complaint, the district court calculated that

plaintiff was in the Washita County Jail for a continuous four and one-half month period

beginning on September 7, 1991, and was therefore released on or around January 21, 1992.

On this reading, plaintiff’s complaint, filed May 18, 1994, was barred by Oklahoma’s twoyear statute of limitations. See Meade v. Grubbs, 841 F.2d 1512, 1522 (10th Cir. 1988). 
3

The district court may dismiss a complaint if, after examining only the complaint and

taking all allegations contained therein as true, it cannot find any set of facts as pleaded upon

which relief may be granted. Jackson v. Integra Inc., 952 F.2d 1260, 1261 (10th Cir. 1991).

Under this standard, the district court was technically correct to dismiss plaintiff’s complaint.

Plaintiff is proceeding pro se, however, and is entitled to a liberal construction of his

pleadings. Haines v. Kerner, 404 U.S. 519, 520-521 (1972). This means that 

if the court can reasonably read the pleadings to state a valid claim on which

the plaintiff could prevail, it should do so despite the plaintiff’s failure to cite

proper legal authority, his confusion of various legal theories, his poor syntax

and sentence construction, or his unfamiliarity with pleading requirements. At

the same time, we do not believe it is the proper function of the district court

to assume the role of advocate for the pro se litigant.

Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). A court “will not supply additional

facts, [or] construct a legal theory for plaintiff that assumes facts that have not been pleaded.”

Dunn v. White, 880 F.2d 1188, 1197 (10th Cir. 1989), cert. denied, 493 U.S. 1059 (1990).

Here, in addition to the allegations in the complaint, plaintiff also filed an “Objection

to [Defendants’] Motion to Dismiss and Brief,” I. R. tab 9, in which he more specifically

alleges his exact dates of confinement. There he states that he was in the Washita County

Jail from September 7 through December 3, 1991, was transferred to the Custer County Jail

for trial, and then reincarcerated in the Washita County Jail from May 18 through July 15,

1992. Thus, contrary to the impression given in his complaint, plaintiff’s stay in the Washita

County Jail was not a continuous one. While claims arising from plaintiff’s initial
2 We note that this case may be affected by the recently enacted Prison Litigation

Reform Act, Pub. L. No. 104-134, 110 Stat. 1321, and commend resolution of any issues

raised by that Act to the consideration of the district court on remand.

4

incarceration in the Washita County Jail still run afoul of the statute of limitations, claims

stemming from his second stay there are within the two-year period and are not barred.

We view plaintiff’s objection as an attempt to amend his complaint -- a procedure

recommended by Hall in cases in which “the plaintiff[’s] factual allegations are close to

stating a claim but are missing some important element that may not have occurred to him.”

Hall, 935 F.2d at 1110. As such, we hold that the district court should have considered the

clarification contained in plaintiff’s objection when making its decision.

We thus reverse the district court’s judgment that plaintiff’s claims are time-barred.

We remand for further proceedings in accordance with this order and judgment and in light

of this court’s holdings in Housley v. Dodson, 41 F.3d 597 (10th Cir. 1994), and Beville v.

Ednie, 74 F.3d 210 (10th Cir. 1996).2

REVERSED.

Entered for the Court

James K. Logan

Circuit Judge