UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ JOSE ALEMAR, Plaintiff - Appellant,

v. RICK RAEMISCH, Colorado Department of Corrections Executive Director, Defendant - Appellee. No. 18-1245 (D.C. No. 1:17- CV-03183-LTB) (D. Colo.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before HARTZ , McKAY , and MORITZ , Circuit Judges.

________________ _________________ Jose Alemar, a pro se Colorado inmate, appeals th e dismissal o f his civil rights action brought under 42 U.S.C. § 1 983. We affirm the district court’s judgment.
I On December 29, 2017, Alemar sent the district court a letter seeking an unspecified injunction. The court initiated this action but di rected Alemar to file a complaint, explaining it could not issue an injunction without a complaint. On

* 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 t herefore ordered submitted without oral ar gument. This order and judgme nt is not binding precedent, except under the doctr ines of law of the case, res j udicata, and collateral estoppel.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. FILED United States Court of Appeals Tenth Circuit 

### February 4, 2019
Elisabeth A. Shumaker Clerk of Court2 March 19, 2018, Alemar filed an a mended complaint, alleging tha t on May 3, 2012, he was terminated from Colorado’ s inmate sex offender treatment and monitoring program in violation of his due process rights. He alleged tha t he was told he could re-enter the program within 60 da ys, but instead he was placed on restricted privileges and transferred to a nother facility. He sought an i njunction to stop the program and $75,000 in damages f or every month he remained in p rison. On screening, a magistrate judg e directed Alemar to show cause why the action should not be dismissed un der the governing 2-year statu te of limitations, noting the statute of limitati ons defense was obvious from the face of the complaint. Alemar responded that he was unawa re of the statute of limitati ons, he was preoccupied with challenging his conviction, he had to research his case and file multiple grievances, his prison la w library was inadequate, and he was repeatedly transitioned between different c ells and units. The district c ourt rejected this explanation, dismissed the suit as time-barred, and ruled that Alemar’s claim for damages was premature under Heck v. Humphrey , 512 U.S. 477, 487 (1994). Alemar appealed, but he does not contest the district court’s decision. Rather, he simply reargues the merits o f his claims, without addressing the court’s holdings that his suit was untimely, to lling was unavailable, and his cl aim for damages was premature under Heck

. II We review the district cour t’s dismissal de novo. Young v. Davis , 554 F.3d 1254, 1256 (10th Cir. 2009). “Th e first task of an appellant i s to explain to us why3 the district court’s de cision was wrong.” Nixon v. City & Cty. of Denver , 784 F.3d 1364, 1366 (10th Cir. 2015). Alt hough we afford a pro se litig ant’s materials a liberal construction, we cannot ser ve as his attorney by crafti ng arguments on his behalf. See Garrett v. Selby Connor Maddux & Janer , 425 F.3d 836, 840-41 (10th Cir. 2005). The failure to advance adequate legal argume nts, with proper citations to the record and gove rning legal authorities, ordina rily waives appellate review, even for pro se litigants. See id. Alemar’s failure to pr esent any proper legal argument waives ou r consideration of the district court’s conclusions. But even if we considered those conclusions, there was no error . The court recognized the stat ute of limitations for a § 1983 action is set by state law, although federal law prescri bes when the action accrued. See Wallace v. Kato , 549 U.S. 384, 387-88 (2007). I n Colorado, the statute of limitations for a § 1 983 action is 2 years. Braxton v. Zavaras , 614 F.3d 1156, 1160 (10th Cir. 2010). A § 1983 action “accrues when the facts that would support a cause of action are or should be apparent.” Fratus v. DeLand , 49 F.3d 673, 675 (10th Cir. 1995) (internal quotation marks omitted). As the district court explained , Alemar alleged he was terminat ed from the inmate sex offender program on Ma y 3, 2012, and he was not read mitted within 60 days. His claim accrued at that time, when he knew or should h ave known of his alleged injuries. Yet he waite d until December 2017 to initiat e this action and did not file his amended complaint until March 2018, well beyond th e 2-year statute of limitations. Under these circumst ances, the suit was untimely.4 Moreover, the district court co rrectly determined that equitabl e tolling did not save the action. The court noted that Colorado authorizes equi table tolling “when plaintiffs did not timely file t heir claims because of extraord inary circumstances or because defendants’ wrongful co nduct prevented them from doing so,” Fogle v.
Pierson , 435 F.3d 1252, 1258 (10th Cir . 2006) (internal quotation mark s omitted). But the court recognized that none of Alemar’s explanations for his delayed filing suggested wrongful conduct by de fendant or extraordinary circum stances. Cf. id. at 1258-59 (holding allegations tha t defendants locked plaintiff “ in his cell 23 hours a day for 5 days a week and 24 hours the other [2] days with no a ccess to, inter alia , law library clerks or prison lawy ers” might qualify as extraord inary circumstances to justify equitable tolling). Fur ther, the court correctly obser ved that Colorado requires a litigant to diligently pursue his claims, see Braxton , 614 F.3d at 1161, though none of Alemar’s allegations demonstr ated he did so. Thus, the dist rict court properly concluded that tolli ng was unavailable and the suit was time-ba rred. To the extent Alemar sought inj unctive relief, the district cou rt recognized he sought “to halt the DOC sex offe nder treatment program because it is not designed to rehabilitate offenders .” R. at 108. Under Ex parte Young , 209 U.S. 123 (1908), “[t]he Eleventh Ame ndment does not . . . bar a suit brought in federal court seeking to prospectively enjoin a state official from violating federal law.” Johns v. Stewart , 57 F.3d 1544, 1552 (10th Cir. 1995). Although Alemar has never fully developed this issue, his plead ings in the district court suggest the cla im is premised upon the notion that the program doesn’t c omport with or effectuate stat e law, which is beyond5 the scope of Young

. See id. at 1553 (holding tha t, notwithstanding Young , “the Eleventh Amendment bars suits bro ught in federal court seeking to enjoin a state official from violating state law”). Alemar cites Young in his brief on appeal, see Aplt. Br. at 17, but he merely r easserts his claim without expl aining how it seeks prospective injunctive relief under Young

. See Bronson v. Swensen , 500 F.3d 1099, 1104 (10th Cir. 2007) ( holding that failure to adequately prese nt argument in opening brief forfeits appellate consider ation of the issue). Given th ese circumstances and Alemar’s limited allegations, the claim is barred by the Eleven th Amendment. Additionally, Alemar sought $75,0 00 for every month he remained in prison, but the district court correctly concluded his claim for damage s was premature under
Heck . In Heck , the Supreme Court held that “h abeas corpus is the exclusive r emedy for a state prisoner who challe nges the fact or duration of his confinement and seeks immediate or speedier release, e ven though such a claim may com e within the literal terms of § 1983.” 512 U.S. a t 481. As a consequence, when a state prisoner seeks dama ges in a § 1983 suit, the distr ict court must consider whether a judgment in favor of the plaintiff woul d necessarily imply the invalidity o f his conviction or sentence; if it would, the complaint must be dis missed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated.
Id. at 487. Under Heck , the accrual of a claim for d amages is deferred until the conviction or sentence has been invalidated. See Wallace , 549 U.S. at 392-93. Applying Heck , the district court correctly recognized th at Alemar’s damages claim for his alleged wrongful i ncarceration neces sarily implie s that his conviction6 and sentence are invalid. And b ecause his conviction and sente nce have not been set aside, the court properl y determined the dam ages claim was prem ature. Accordingly, the court correctly dis missed the claim under Heck

. III The district court’s judgment is affirmed. Alemar’s “Motion t o Drops Claims against C.D.O.C. ‘Providing: Cons equences of termination from p rogram[’]” [sic] is denied as moot, as is his plead ing entitled, “Emergency-Amendme nt in form of Mandamus.” To the extent Alema r requests that we appoint couns el, his request is denied. See Rachel v. Troutt , 820 F.3d 390, 397 (10th Ci r. 2016) (noting court may only request counsel to take a cas e contingent on “the merits o f the claims, the nature of the claims, [the litigant’s ] ability to present the claims, and the complexity of issues”). Finally, Ale mar’s motion to proce ed on appeal withou t prepayment of fees is granted. The relevant statut e, 28 U.S.C. § 1915(a)(1), does not permit litigants to avoid payment of filing and docketing fees, only prepayment of those fees. Though we have disposed of this matter on the merits, Ale mar remains o bligated to pay all filing and docketing fees, and he m ust continue making partial payments until the entire fee is paid in full. Judge Hartz concurs in the result. Entered for the Court

Nancy L. Moritz Circuit Judge