UNITED STATES COURT OF APPEALS

Filed 10/7/96 FOR THE TENTH CIRCUIT

GUST MARION JANIS,

Plaintiff-Appellant,

v. JANET RENO, United States Attorney General; KATHLEEN HAWKS, Director, Federal Bureau of Prisons; PATRICK W. KEOHANE, Warden; PATRICK WHALEN, Warden; ED YORK, Unit Manager; J. JOHNSON, Case Manager; MATT EASTERBROOK, Correctional Counselor; KARL BELFONTI, Unit Manager; TYRONE RODRIGUEZ, Case Manager; REIDA HENDERSON, Correctional Counselor; T.L. HINES, Captain; OFFICER GAIBREATH, Correctional Counselor; JESUS GONZALEZ, Lieutenant; ROBERT E. WILLIAMS, Clinical Director; TERRY FINNEGAN, Health Services Director; B.R. LANGE, Physicians Assistant; E. VINCENT, Security Officer; BILLY WILLIAMS, Security Officer; DWAYNE ROBERSON, Education Supervisor; J. GRECO, Associate Warden; D. P. IVERSON, Security Officer; OFFICER AIRINGTON, Security Officer; DOES 1-100; all sued individually and in their official capacities; UNITED STATES DEPARTMENT OF JUSTICE; FEDERAL BUREAU OF No. 95-1299 (D.C. No. 94-C-1202) (D. Colo.)* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. -2- PRISONS; UNITED STATES PENITENTIARY - LOMPOC; UNITED STATES PENITENTIARY - FLORENCE HIGH SECURITY,

Defendants-Appellees.

ORDER AND JUDGMENT *

Before ANDERSON, LOGAN, and MURPHY, Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument. Plaintiff, who is pro se, commenced an action underBivens v. Six Unknown Named Agents , 403 U.S. 388 (1971), against four federal governm ent agencies and twenty-two individuals, in both their official and individual capacities, alleging various constitutional claims relating primarily to access to-3-

legal materials and the courts, to retaliation, and to his medical needs. The district court granted the served defendants’ motio n to dismiss and dismissed the action without prejudice as to the unserved defenda nts. Plaintiff appealed, and we now affirm. Plaintiff first argues the district court abused it s discretion by failing to toll the statute of limitations from the date he filed h is complaint until the date the district court dismissed the complaint without prej udice as to the unserved defendants. He contends that lack of service shoul d toll the statute of limitations. Plaintiff did not ask the district court to toll th e statute of limitations. Generally, this court does not consider issues on appeal that were not raised in the district court. Walker v. Mather (In re Walker) , 959 F.2d 894, 896 (10th Cir. 1992). Nonetheless, we conclude plaintiff’s argument is wi thout merit. Bivens actions, like 42 U.S.C. § 1983 actions, are subject to the s tatute of limitations of the general personal injury statute of the state where the action arose. Industrial Constructors Corp. v. United States Bureau of Reclamation , 15 F.3d 963, 968 (10th Cir. 1994). In addition to applying the stat e statute of limitations, questions of tolling are also governed by state law. Hardin v. Straub , 490 U.S. 536, 539 (1989); Fratus v. Deland , 49 F.3d 673, 675 (10th Cir. 1995). Plaintiff has not identified any state law indicating that his action should have been tolled, and we have found no state or federal law to support his r equest for tolling. See also1 Both in the district court and in his brief on appe al, plaintiff states that he

does not oppose dismissal of the institutional defe ndants. -4- Brown v. Hartshorne Pub. Sch. Dist. No. 1 , 926 F.2d 959, 961 (10th Cir. 1991)(“In the absence of a statute to the contrary, the limitation period is not tolled during the pendency of the dismissed action. ”); Wilson v. Grumman Ohio Corp. , 815 F.2d 26, 27-28 (6th Cir. 1987)(without statut e to contrary, party cannot deduct from period of limitations time during which action, later dismissed without prejudice for failure to perfect service, w as pending); Stein v. Reynolds Sec., Inc ., 667 F.2d 33, 33-34 (11th Cir. 1982)(dismissal of suit without prejudice does not authorize later suit brought outside otherwise binding limitation period); Dupree v. Jefferson , 666 F.2d 606, 610-11 (D.C. Cir. 1981)(involuntarydismissal of action without prejudice does not toll running o f statute of limitations). Accordingly, we conclude the district court did noterr in failing to toll the statute of limitations. Plaintiff next argues that the district court abuse d its discretion in dismissing his complaint as to the served defendant s for failure to state a claim upon which relief can be granted. 1 See Fed. R. Civ. P. 12(b)(6). We review de novo the district court’s dismissal for failure to state a claim upon which relief may be granted. Industrial Constructors Corp. , 15 F.3d at 967. We uphold a dismissal under Rule 12(b)(6) if, after accepting a ll of the well-pleaded-5-

allegations in the complaint as true and construing them in the light most favorable to the plaintiff, it appears the plaintif f can prove no set of facts supporting his claims that would entitle him to rel ief. Roman v. Cessna Aircraft
Co. , 55 F.3d 542, 543 (10th Cir. 1995). Although we m ust determine “whether the complaint states a conceivable cause of action, we are not required to manufacture a party’s argument on appeal when it ha s failed in its burden to draw our attention to the error below.” National Commod ity & Barter Ass’n v. Gibbs , 886 F.2d 1240, 1244 (10th Cir. 1989). Here, plaint iff’s assertions to support this argument are conclusory. Upon consideration of the briefs, record on appeal, and relevant case law, we conclude the district court p roperly dismissed the claims against the served defendants for failure to state a claim. We affirm as to this argument for substantially the reasons stated in th e June 12, 1995, recommendation of the magistrate judge adopted by t he district court on June 28,
1995. Plaintiff’s third argument is that the district cou rt abused its discretion in denying his motion to amend his original complaint to split his action into two parts and refusing to transfer the part over which the district court lacked personal jurisdiction to the proper jurisdiction. We review the district court’s denial of the motion to amend for an abuse of discretion. Creame r v. Laidlaw Transit, Inc. , 86 F.3d 167, 171 (10th Cir. 1996). Under this standar d, the district court must be-6-

upheld “‘if the proposed amendment could not have w ithstood a motion to dismiss or otherwise failed to state a claim.’” Ketchum v. Cruz , 961 F.2d 916, 920 (10th Cir. 1992)(quoting Schepp v. Fremont County , 900 F.2d 1448, 1451 (10th Cir. 1990)). Under the circumstances of this case, amen dment would have been futile.
See Foman v. Davis , 371 U.S. 178, 182 (1962)(futility justifies denia l of amendment). We conclude the district court did notabuse its discretion in denying amendment of the complaint. We also review the district court’s refusal to tran sfer a portion of the action for an abuse of discretion. Scheidt v. Klein , 956 F.2d 963, 965 (10th Cir. 1992). Because plaintiff also failed to state a claim agai nst all defendants, we conclude the district court did not abuse its discretion in failing to transfer part of the case. Fourth, plaintiff argues the district court abused its discretion in failing to substitute the United States for defendants sued intheir official capacities. The defendants counter that there was no error because plaintiff failed to show the United States waived sovereign immunity and because plaintiff never requested that the United States be substituted. We agree wi th defendants. Plaintiff never requested substitution in the district court, see Walker , 959 F.2d at 896, but even if he had, plaintiff makes no showing of waiver, an d the United States has not waived sovereign immunity to suits such as this formoney damages, see National Commodity & Barter Ass’n , 886 F.2d at 1245-46.-7-

Finally, plaintiff argues the district court errone ously assumed that he was suing various defendants under the theory of respon deat superior. Contrary to plaintiff’s assertion on appeal that he specified a ctual wrongdoing by all defendants in his complaint, the complaint evidence s a lack of pleading of personal participation by various defendants. We t herefore conclude the district court correctly assumed plaintiff was suing under the theory of respondeat superior. The judgment of the United States District Court fo r the District of Colorado is AFFIRMED. The mandate shall issue forthwith.

Entered for the Court

Michael R. Murphy Circuit Judge