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* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. The court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

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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, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.

Plaintiff, who is pro se, commenced an action under Bivens v. Six

Unknown Named Agents, 403 U.S. 388 (1971), against four federal government

agencies and twenty-two individuals, in both their official and individual

capacities, alleging various constitutional claims relating primarily to access to
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legal materials and the courts, to retaliation, and to his medical needs. The

district court granted the served defendants’ motion to dismiss and dismissed the

action without prejudice as to the unserved defendants. Plaintiff appealed, and

we now affirm. 

Plaintiff first argues the district court abused its discretion by failing to toll

the statute of limitations from the date he filed his complaint until the date the

district court dismissed the complaint without prejudice as to the unserved

defendants. He contends that lack of service should toll the statute of limitations. 

Plaintiff did not ask the district court to toll the 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 without merit. Bivens actions,

like 42 U.S.C. § 1983 actions, are subject to the statute 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 state 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 request for tolling. See also
1 Both in the district court and in his brief on appeal, plaintiff states that he

does not oppose dismissal of the institutional defendants. 

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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 statute to contrary, party cannot

deduct from period of limitations time during which action, later dismissed

without prejudice for failure to perfect service, was 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)(involuntary dismissal

of action without prejudice does not toll running of statute of limitations). 

Accordingly, we conclude the district court did not err in failing to toll the statute

of limitations. 

Plaintiff next argues that the district court abused its discretion in

dismissing his complaint as to the served defendants 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 all of the well-pleaded
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allegations in the complaint as true and construing them in the light most

favorable to the plaintiff, it appears the plaintiff can prove no set of facts

supporting his claims that would entitle him to relief. Roman v. Cessna Aircraft

Co., 55 F.3d 542, 543 (10th Cir. 1995). Although we must determine “whether

the complaint states a conceivable cause of action, we are not required to 

manufacture a party’s argument on appeal when it has failed in its burden to draw

our attention to the error below.” National Commodity & Barter Ass’n v. Gibbs,

886 F.2d 1240, 1244 (10th Cir. 1989). Here, plaintiff’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 properly 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 the June 12, 1995,

recommendation of the magistrate judge adopted by the district court on June 28,

1995. 

Plaintiff’s third argument is that the district court 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. Creamer v. Laidlaw Transit, Inc., 86

F.3d 167, 171 (10th Cir. 1996). Under this standard, the district court must be
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upheld “‘if the proposed amendment could not have withstood 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, amendment would have been futile. 

See Foman v. Davis, 371 U.S. 178, 182 (1962)(futility justifies denial of

amendment). We conclude the district court did not abuse its discretion in

denying amendment of the complaint. 

We also review the district court’s refusal to transfer 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 against 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 in their 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 with 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, and the United States has not

waived sovereign immunity to suits such as this for money damages, see National

Commodity & Barter Ass’n, 886 F.2d at 1245-46. 
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Finally, plaintiff argues the district court erroneously assumed that he was

suing various defendants under the theory of respondeat superior. Contrary to

plaintiff’s assertion on appeal that he specified actual wrongdoing by all

defendants in his complaint, the complaint evidences a lack of pleading of

personal participation by various defendants. We therefore conclude the district

court correctly assumed plaintiff was suing under the theory of respondeat

superior. 

The judgment of the United States District Court for the District of

Colorado is AFFIRMED. The mandate shall issue forthwith. 

Entered for the Court

Michael R. Murphy 

Circuit Judge