UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ KEITH CUNNINGHAM, Plaintiff - Appellant,

v. CITY OF WAUKOMIS POLICE DEPARTMENT, Defendant - Appellee. No. 18-6064 (D.C. No. 5:17- CV-01294-R) (W.D. Okla.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before PHILLIPS , McKAY , and BALDOCK , Circuit Judges.

________________ _________________ Keith Cunningham, a federal p risoner proceeding pro se, 1 sued the City of Waukomis Police Department under 4 2 U.S.C. § 1983. The district court dismissed his suit as barred by the statute o f limitations. Cunningham now ap peals, and moves to

* After examining the briefs and appellate record, this panel ha s determined unanimously that oral argument would not materially assist in t he determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is th erefore ordered submitted without oral ar gument. This order and judgmen t is not binding precedent, except under the doctr ines of law of the case, res j udicata, and collateral estoppel. It may be cited, howev er, for its persuasive value c onsistent with Fed. R. App. P. 32.1 a nd 10th Cir. R. 32.1.

1 We construe a pro se appella nt’s complaint liberally. Gaines v. Stenseng , 292 F.3d 1222, 1224 (10th Cir. 2002). But this liberal treatment ha s limits. Though we can make allowances for “the [pro se] plain tiff’s failure to ci te proper legal authority, his confusion of various legal t heories, his poor syntax and se ntence construction, or his unfamiliarity with pleading requirements,” we can’t serve a s his advocate. Hall v. Bellmon , 935 F.2d 1106, 1110 (10th Cir. 1991). FILED United States Court of Appeals Tenth Circuit 

### August 22, 2018
Elisabeth A. Shumaker Clerk of Court2 proceed in forma pauperis (IFP). Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
BACKGROUND
A. Facts We take the following facts from Cunningham’s Second Amended Co mplaint. On April 16, 2013, in Waukomis, O klahoma, Cunningham, a then-7 0-year-old man, returned to his motel room a t the Waukomis Country Inn. Un ited States Marshals Service deputies, along with po lice officers from the City of W aukomis, arrived at his room and informed him he was under arrest on a warrant. Cunning ham alleges that as the United States Marshals Service took him into custody, a City of Waukomis police officer tasered him “three times, [and] p laced [him] in a prone positio n in the parking lot of the motel.” R. at 62. Then, “with two officers kneeling on his back while handcuffing him,” a Waukomis officer “kicked him twe nty (20) times in the ribs.” Id. A witness “observed officers ‘smashing’ [his] head int o the large rocks in the park ing lot.” Id. Other officers, “seeing the witness watching from his motel wind ow, pointed the ir weapons at [the witness] and directed [the witn ess] to close the curtains.” Id. He contends that as a result of these beatings, he had seven “broken ribs, a broken shoulder , a concussion, contusions and abrasions to the face and head ; as well as a collapsed lung .” Id. at 23. On January 24, 2014, Cunningham’s sister filed a formal police- misconduct complaint with the C ity of Waukomis on Cunningham’s behalf. The city never responded to her complaint. On April 11, 2 014, his sister filed a “Notice of Tort Claim” against the City of Waukomis with the Oklah oma Municipal Assurance Group. Id. at 50. In her3 “Notice of Tort Claim,” she alleged that Cunningham had “suffer ed severe injuries from being repeatedly kicked by a Wau komis Police Officer after bein g neutralized by law enforcement personnel during the course of an arrest.” Id. And she alleged that Cunningham had suffered seven “b roken ribs, collapsed/punctured lung, concussion, nerve damage, seizure.” Id. That same day, she sent a le tter to the City of Waukomis notifying the city that she had filed the tort claim. She never received a response to her Notice of Tort Claim. On April 2, 2015, Cunningham’s sister sen t a letter to Oklahoma Municipal Assurance Group requ esting a status update on her Not ice of Tort Claim and threatening legal action. With t he letter, she enclosed her Jan uary 24, 2014 policemisconduct claim, and her April 11, 2014, Notice of Tort Claim. 2
B. Procedural history On December 1, 2017, Cunningham sued the City of Waukomis Polic e Department under 42 U.S.C. § 1983, alleging violations of the F ifth and Fourteenth Amendments of the Unite d States Constitution. He alleged that the “Ci[t]y Police of Waukomis . . . assault[ed]” him a nd used excessive force. Id. at 12. On December 26, 2017, he filed his First Amende d Complaint. Still proceeding un der § 1983 against the City of Waukomis Police Departme nt, his First Amended Complaint alleged violations of his Fourth and Fourteenth Amend ment rights. Cunningham provided the district court his inmate-savings statements.

2 The record doesn’t disclose whet her Cunningham’s sister ever r eceived a reply to her April 2, 2015 letter.4 On January 3, 2018, a magistrate judge construed Cunningham’s p roviding his inmate-savings statements as a m otion to proceed IFP. Seeing th at Cunningham had more than $500 in his institutional sa vings account, the magistrate judge determined that Cunningham had “sufficient funds to prepay the $400 filing fee. ” Id. at 27. Further, the magistrate noted that Cunningha m’s “deposits for the six months preceding the filing of his [First] Amended Complaint total[ed] $2104.56.” Id. So the magistrate judge recommended denying Cunningham’s IFP motion. On January 22, 201 8, the district court adopted the magistrate’s recomme ndation and denied Cunningham’s IFP motion. On January 24, 2018, the magistr ate judge screened Cunningham’s First Amended Complaint under 28 U.S.C. § 1915A(a) and recommended dismissing it for failure to state a claim. The magistrate judge concluded that the City of Waukomis Police Department couldn’t b e sued under § 1983. See, e.g., Moore v. Diggins , 633 F. App’x 672, 677 (10th Cir. 2015) (dismis sing claims against Denver She riff’s Department because § 1983 permits suit ag ainst persons and municipalities, not police departments). Soon after, on February 9, 2018 , Cunningham filed a motion to a mend his First Amended Complaint. In his motion, he advised that he wished to add as additional defendants the City of Waukomis and, in their official capaciti es, the Chief of Police, the police shift commander, and “Def endants E, F, G, H, I, J, K, an d all other officers involved in” his arre st on April 16, 2013. R. at 33. On February 12, 2018, the distric t court granted Cunningham’s m otion to amend. On February 26, 2018, Cunningham filed his Second Amended Compl aint. He again5 alleged an excessive-force clai m, contending that the City of W aukomis police officers had violated his Fourth, Fifth, and Eighth Amendment rights. On March 5, 2018, the magistrate judge again reco mmended dismis sing Cunningham’s complaint. This tim e, the magistrate judge recomme nded dismissal under 28 U.S.C. § 1915A(b)(1 )–(2) based on statut e-of-limitations gro unds. Specifically, the magistrate judge noted that Cunni ngham’s claims had expired on April 16, 2015, two years after his claim for relief accrued. And the magistrate ju dge saw no disability or other special circumstance that would justify tolling the statu te of limitations. Cunningham objected to the magi strate judge’s recommendation, a rguing that he had pursued his excessive-force clai ms through his sister, who file d both a police-misconduct complaint and a notice of tort claim with the C ity of Waukomis. The district court, after consid ering the magistrate judge’s re commendation and Cunningham’s objection, dismissed Cunningham’s complaint as tim e barred. Though Cunningham had pursued his exce ssive-force claim through other avenues, he hadn’t timely filed a § 1983 claim, and finding no exception to the st atute of limitations, the court determined that his claims were time-barred. Cunningham now appeals.
DISCUSSION
A. Failure to state a claim We review de novo the district c ourt’s dismissal of Cunningham’ s claims for failure to state a claim under 28 U.S.C. § 1915A. Ames v. Oklahoma , 158 F. App’x 114, 116 (10th Cir. 2005). Dismiss al for failure to state a cla im is proper where the6 allegations in the complaint, tak en as true, show that the stat ute of limitations bars the requested relief. Jones v. Bock , 549 U.S. 199, 215 (2007). Federal law determines when a claim accrues. Beck v. City of Muskogee Police Dep’t , 195 F.3d 553, 557 ( 10th Cir. 1999) (citing Smith v. City of Enid ex rel. Enid City Comm’n , 149 F.3d 1151, 1154 (10th Cir . 1998)). Injuries based on viol ations of constitutional rights accrue “wh en the plaintiff knows or shoul d know that” his rights have been violated. Id. (quoting Smith , 149 F.3d at 1154). Cunn ingham alleges that the City of Waukomis police beat him and violated his rights on April 16, 2013. On that day, Cunningham kne w or should have kno wn the police offic ers had violated his rights. But state law determines the appr opriate limitations period and tolling provisions. Id. (citing Owens v. Okure , 488 U.S. 235, 249–50 (1989), and Arnold v. Duchesne County , 26 F.3d 982, 985 (10th Cir. 1994)); see Braxton v. Zavaras , 614 F.3d 1156, 1159 (10th Cir. 2010) (citing Fratus v. DeLand , 49 F.3d 673, 675 (10th Cir. 1995)). Oklahoma has a two- year statute of limitations for personal-injury claims, which also applies to § 1983 claims. Okla. Stat. Ann. t it. 12, § 95(A)(3). So, barring any tolling provisions, Cun ningham’s claims expired on April 16, 2015. Cunningham alleges he is enti tled to equitable tolling because on January 24, 2014, his sister filed a formal p olice misconduct complaint wit h the City of Waukomis, and on April 11, 2014, h is sister filed a Notice of T ort Claim with the Oklahoma Municipal Assurance Grou p. Under the Oklahoma Governme ntal Tort Claims Act, the City of Waukomis h ad 90 days to respond to his sister’s April 11,7 2014 complaint, or it would be d eemed denied by default. Okla. Stat. Ann. tit. 51, § 157(A); see Mansell v. City of Lawton , 901 P.2d 826, 831 (Okla. 1995) (noting that after 90 days, failure of the ci ty to respond to a tort claim c onstitutes denial by default), superseded by stat ute on other grounds , Okla. Stat. Ann. tit. 51, § 156(D), as recognized in Minie v. Hudson , 934 P.2d 1082, 1085 & n.12 (Okla. 1997). The city never responded to the compl aint. So, beginning July 11, 2 014, Cunningham had 180 days to commence the lawsuit before us. Okla. Stat. Ann. ti t. 51, § 157(B). That 180-day period expire d on January 11, 2015. He filed his compla int on December 1, 2017. So even if his sister’s f iling the Notice of Tort Claim w ith the Oklahoma Municipal Assurance Group tolle d the statute of limitations for the § 1983 claims he seeks to pursue now, he is still too late. And Cunningham hasn’t shown that he suffered a “legal disabilit y” at the time his claims for relief accrued or that “exceptional circumstance s” justify tolling the limitations period here. Young v. Davis , 554 F.3d 1254, 1258 (1 0th Cir. 2009) (citing and quoting Alexander v. Oklahoma , 382 F.3d 1206, 1217, 1219 (10th Cir. 2004)). So we agree with the district court that the statute of limitation s has run on Cunningham’s claims.
B. IFP Motion Cunningham’s financial disclosures show tha t he receives an $80 0 per month pension. When he filed this app eal, his current account balance exceeded the $505 filing fee to proceed with this a ppeal. We find that he has the financial ability to prepay the filing fee. McIntosh v. U.S. Parole Comm’n , 115 F.3d 809, 812–13 (10th8 Cir. 1997) (quoting DeBardeleben v. Quinlan , 937 F.2d 502, 505 (10th Cir. 1991)). So we deny his IFP motion and orde r the immediate payment of th e unpaid balance due.
CONCLUSION We affirm the di strict court.

Entered for the Court

Gregory A. Phillips Circuit Judge