* 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)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

FILED

United States Court of Appeals

Tenth Circuit

February 3, 2009

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ADAM FLETCHER YOUNG,

Plaintiff-Appellant,

v.

JOEL DAVIS, Agent/FBI and/or DEA;

RANDALL R. RIEGER, Agent, ICE,

Defendants.

No. 07-6271

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF WESTERN OKLAHOMA

(D.C. No. 5:07-CV-00761-D)

Submitted on the brief:*

Adam Fletcher Young, Pro Se.

Before BALDOCK, BRORBY, and EBEL, Circuit Judges.

EBEL, Circuit Judge.
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Adam Fletcher Young, an Oklahoma state prisoner appearing pro se,

appeals the dismissal of his claim for false arrest/false imprisonment brought

pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics,

403 U.S. 388 (1971). The district court determined that Mr. Young’s claim was

time-barred. Exercising jurisdiction under 28 U.S.C. § 1291, we AFFIRM the

dismissal of his claim. 

I. Background

On July 9, 2007, Mr. Young filed his complaint, alleging that his Fourth

Amendment rights were violated by federal agents Joel Davis and Randall Reiger. 

He asserted that, on January 26, 2005, defendants falsely arrested and imprisoned

him at Enid Municipal Airport in Enid, Oklahoma, and then forced him to submit

to continuing arrest and imprisonment by local Enid police officers. Mr. Young

alleged also that Defendant Davis gave false and misleading testimony at his

preliminary hearing in the ensuing criminal case, which caused him to be bound

over for trial on July 18, 2005. 

A magistrate judge screened Mr. Young’s complaint pursuant to 28 U.S.C.

§ 1915A and issued a report recommending that the complaint be dismissed as

time-barred. In his report, the magistrate judge explained that the public docket

sheet for the criminal case resulting from Mr. Young’s arrest, which is a matter of

public record, showed that Mr. Young’s first appearance before a magistrate

occurred on January 28, 2005, at which time bond was set at $500,000. The
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magistrate judge used this date as the accrual date for Mr. Young’s claim. 

Mr. Young acknowledged in his objections that he received a bail hearing on

January 28 during which he was informed of the charges against him and his bond

amount was set. The district court agreed with the magistrate judge that this was

the point at which “legal process was initiated against [Mr. Young],” and the

statute of limitations began to run from that date. R. Doc. 13 at 4. The district

court concluded that Mr. Young’s claim was time-barred because he had not filed

it within two years from January 28, 2005, the date that he appeared before a

judicial officer and was lawfully detained. The district court dismissed

Mr. Young’s complaint for failure to state a claim upon which relief can be

granted pursuant to 28 U.S.C. § 1915A(b)(1). Mr. Young appeals from that

decision.

II. Standard of Review 

Dismissal for failure to state a claim is a legal question we review de novo.

McBride v. Deer, 240 F.3d 1287, 1289 (10th Cir. 2001). “We must accept all the

well-pleaded allegations of the complaint as true and must construe them in the

light most favorable to the plaintiff.” Alvarado v. KOB-TV, L.L.C., 493 F.3d

1210, 1215 (10th Cir. 2007) (quotation omitted). “We review the complaint for

plausibility; that is, to determine whether the complaint includes enough facts to

state a claim to relief that is plausible on its face.” KT & G Corp. v. Att’y Gen.,

535 F.3d 1114, 1134 (10th Cir. 2008) (quotations and citation omitted).
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III. Discussion

“A Bivens action is subject to the limitation period for an action under

42 U.S.C. § 1983, and that limitation period is set by the personal injury statute in

the state where the cause of action accrues.” Roberts v. Barreras, 484 F.3d 1236,

1238 (10th Cir. 2007). In Oklahoma, the limitations period for a personal injury

action is two years. See Okla. Stat. tit. 12, § 95(A)(3).

Mr. Young argues that his claim did not accrue until July 18, 2005, when

he was bound over for trial, relying on Wallace v. Kato, 549 U.S. 384, 389

(2007). In Wallace, the Supreme Court held that a claim for false arrest/false

imprisonment accrues when the victim becomes held pursuant to legal process,

“for example, [when] he is bound over by a magistrate or arraigned on charges.” 

See id. at 389-90. Mr. Young argues alternatively that the accrual date should be

tolled until July 18, 2005, because he did not have access to a law library or other

legal resources during the time period from his arrest on January 26 to the hearing

on July 18. 

In Wallace, the Court explained that the tort of false arrest/false

imprisonment arises out of detention without legal process, whereas the tort of

malicious prosecution arises out of detention after the wrongful institution of

legal process. Id. The district court concluded that Mr. Young’s allegation

regarding Defendant Davis’s false testimony at the July 18 hearing, which caused

him to be bound over for trial, did not support his claim for false arrest but,
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instead, would be attributable to a claim for wrongful institution of legal process. 

The district court noted, however, that Mr. Young made clear in his objections to

the magistrate judge’s report and recommendation that he was not raising a claim

based on any torts other than false arrest/false imprisonment. Mr. Young has not

raised any issue on appeal with respect to the district court’s conclusion on this

matter. 

A. Claim Accrual Date

The district court correctly decided that Mr. Young became held pursuant

to legal process on January 28, 2005. Mr. Young was arrested without a warrant. 

In a warrantless arrest situation, “the Fourth Amendment requires a judicial

determination of probable cause as a prerequisite to extended restraint of liberty

following arrest.” Gerstein v. Pugh, 420 U.S. 103, 113-14 (1975). The public

docket sheet from Mr. Young’s criminal case, which he attached to his objections

to the magistrate judge’s report, shows that on January 28, the same day he

received his bond hearing, a judge made a finding of probable cause to further

detain him. Although a probable cause determination by a judicial officer was not

given as one of the examples of legal process in Wallace, the Court was not

providing a complete list of situations that could constitute the initiation of legal

process. See Wallace, 549 U.S. at 389.

In Wilkins v. DeReyes, 528 F.3d 790, 799 (10th Cir. 2008), this court

identified another example of the institution of legal process–an arrest warrant.
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An arrest warrant and the probable cause determination by a judicial officer after

a warrantless arrest are essentially the same legal process, except that one occurs

prior to arrest and the other occurs after. See Gerstein, 420 U.S. at 125 (holding

that states must provide a probable cause determination “for any significant

pretrial restraint of liberty, and this determination must be made by a judicial

officer either before or promptly after arrest.”); cf. Baker v. McCollan, 443 U.S.

137, 143 (1979) (“Since an adversary hearing is not required, and since the

probable cause standard for pretrial detention is the same as that for arrest, a

person arrested pursuant to a warrant issued by a magistrate on a showing of

probable-cause is not constitutionally entitled to a separate judicial determination

that there is probable cause to detain him pending trial.”). Because there was a

judicial determination of probable cause on January 28, 2005, Mr. Young became

lawfully detained pursuant to legal process at that point, and the statute of

limitations began to run on his false arrest/false imprisonment claim. 

Mr. Young’s complaint was not filed until July 9, 2007, more than two years after

his cause of action accrued. Accordingly, the district court was correct in

dismissing his claim as being barred by the applicable statute of limitations. 

B. Equitable Tolling

The district court correctly concluded that Mr. Young did not present any

factual circumstances that would justify equitable tolling. “[S]tate law governs

the application of tolling in a [federal] civil rights action.” Alexander v.
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Oklahoma, 382 F.3d 1206, 1217 (10th Cir. 2004). “In general, Oklahoma permits

the tolling of a statute of limitations in two circumstances.” Id. The first

circumstance is the existence of a legal disability, which has been applied in cases

where a plaintiff’s competency is impaired or where the plaintiff has not yet

reached the age of majority. Id. The second circumstance is when “defendants

engage in false, fraudulent or misleading conduct calculated to lull plaintiffs into

sitting on their rights.” Id. (quotation omitted). This court noted also that “[i]n

the appropriate case, exceptional circumstances may justify tolling a statute of

limitations.” Id. at 1219. Mr. Young’s allegations do not fit within any of these

circumstances.

Mr. Young argues on appeal that he did not know either the elements of the

crime with which he was charged or the requirements for a warrantless arrest until

July 18, and, therefore, his cause of action for false arrest/false imprisonment

could not accrue until that date. Mr. Young’s insufficient knowledge of these

issues has no bearing on the accrual date for his claim. See id. at 1219 n.6. 

Mr. Young’s cause of action accrued at the earliest when he was arrested, see

Wallace, 549 U.S. at 388, and at the latest when legal process was initiated

against him two days later, see id. at 389-90. There is nothing about these factual

circumstances that would trigger tolling under Oklahoma law–no legal disability,

no fraudulent concealment, and no exceptional circumstances. 

Mr. Young argues that the statute of limitations should be tolled for the
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period that he did not have access to a law library from January 26, 2005, until

July 18, 2005. As this court explained in Alexander, “the Oklahoma discovery

rule tolls the statute of limitations until an injured party knows of, or in the

exercise of reasonable diligence, should have known of or discovered the injury,

and resulting cause of action.” 382 F.3d at 1217 (quotation omitted). Mr. Young

fails to explain how his lack of access to a law library during this six-month

period prevented him from timely filing his complaint eighteen months later,

before the statute of limitations expired on January 28, 2007. He has not shown

that he pursued his claims with reasonable diligence and therefore is not entitled

to equitable tolling.

In the federal habeas context, as with the Oklahoma discovery rule, this

court has concluded that the statute of limitations may be tolled for extraordinary

circumstances, but tolling is only appropriate when an inmate diligently pursues

his claim. Miller v. Marr, 141 F.3d 976, 978 (10th Cir. 1998). In Miller, the

petitioner argued that he could not timely file his claim because he lacked access

to federal statutes and Colorado case law during the two-year period of time that

he was housed in a private correctional facility in Minnesota. This court noted

that “this did not explain Mr. Miller’s lack of pursuit of his federal claims before

the transfer from Colorado to Minnesota, from October 4, 1993 until January 20,

1995.” Id. This court affirmed the dismissal of Mr. Miller’s complaint as

untimely because Mr. Miller had not provided any “specificity regarding the
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alleged lack of access and the steps he took to diligently pursue his federal

claims.” Id. As in Miller, Mr. Young has not provided sufficient specificity

about the alleged lack of access and his attempts to diligently pursue his claims. 

Mr. Young’s alleged lack of law library access during six months of the two-year

statute of limitations period does not present circumstances establishing eligibility

for equitable tolling. 

IV. Conclusion

The judgment of the district court is AFFIRMED. Mr. Young’s motion to

proceed in forma pauperis is GRANTED. Mr. Young is reminded that he must 

continue making partial payments until the filing fee is paid in full.