* 

### This order and judgment is not binding precedent, e xcept

under the doctrines of law of the case, res judicat a, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order andjudgment may be cited under the terms and conditions of the cour t’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, th is panel has determined unanimously that oral argument would notmaterially assist the determination of this appeal. SeeFed. 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 thi s action under 42 U.S.C. § 1983 against defendant prison officials . He alleges that he was subjected to cruel and unusual punishment wh ile an inmate at an Oklahoma correctional facility when he was injured repairing a television cable. The district court granted defen dants’ motion to

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dismiss, ruling that the action was barred by the a pplicable statute of limitations. Mr. Ciszkowski appeals and we affi rm. “Because Congress has not enacted a statute of limi tations expressly applicable to section 1983 claims, the co urts must adopt the most analogous limitations period provided by statelaw.” Abbitt v. Franklin , 731 F.2d 661, 663 (10th Cir. 1984) (en banc), aff’d , 471 U.S. 261 (1985). These claims are best characteriz ed as personal injury actions, and “we therefore apply the relevan t state statute of limitations applicable to such actions.” Hunt v. B ennett , 17 F.3d 1263, 1265 (10th Cir. 1994) (citing Wilson v. Garci a , 471 U.S. 261, 280 (1985)). The most analogous Oklahoma statute i s the two-year limitation period provided in Okla. Stat. tit. 12, § 95 (1991) for injury to the rights of another. SeeAbbitt , 731 F.2d at 663. The Supreme Court has further directed that when we app ly a state’s limitations periods we “should apply that state’s t olling 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 act ion on December 7, 1994, after the applicable two-year period had run. Mr. Ciszkowski argues that his suit is nonetheless timely, relyingon 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 t he merits, the plaintiff, or, if he should die, and th e cause of action survive, his representatives may commencea new action within one (1) year after the reversal or fa ilure

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although the time limit for commencing the action s hall 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 s ame events at issue here. He further points out that the instant 1983 action was filed within one year of the dismissal of the prior statecourt action. The record reveals that Mr. Ciszkowski’s prior state co urt suit, based on the same facts, was a negligence action against theOklahoma Department of Corrections and its agents and employ ers brought pursuant to the Oklahoma Governmental Tort Claims A ct. In granting defendants’ motion to dismiss, the dist rict court did not address the Oklahoma saving provision. Defenda nts contend on appeal that Mr. Ciszkowski’s reliance on section 10 0 is misplaced because he did not file his section 1983 action unt il after the twoyear period had expired. The Oklahoma Supreme Cour t, however, has construed section 100 in light of that state’s tran sactional approach to the definition of a cause of action. SeeChandler v. Denton , 741 P.2d 855, 862-64 (Okla. 1987). Under this approach , “a plaintiff must allege the operative events upon which he relies fo r his theories of recovery within the time period prescribed by the a pplicable statute.” Id. at 863. If he does so and section 100 is otherwis e 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 fail ure to assert his section 1983 theory of recovery within two years wo uld not bar him from pursuing that theory now. We nonetheless conclude that section 100 does not s ave Mr.

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Ciszkowski’s suit. That section by its terms only applies when the original action fails otherwise than upon the merit s. ”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. Cis zkowski’s state action was in fact dismissed on the merits. He has therefore failed to carry the burden of establishing that section 10 0 is applicable. The judge of the district court is AFFIRMED. The mandate shall issue forthwith.

ENTERED FOR THE COURT
Stephanie K. Seymour Chief Judge