* This order and judgment is not binding precedent, e xcept under the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. 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)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JUN 14 2004 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

KENNETH L. ARMBECK,

Plaintiff-Appellant,

v. DENVER POLICE DEPARTMENT; D. QUINONES, Sergeant; D. WILEY, Officer; CITY OF DENVER; WELLINGTON WEBB, as Mayor for the City of Denver; BUTCH MONTOYA, as Manager of Department of Public Safety for the City of Denver; DAVID MICHAUD, as Chief of Police for the City and County of Denver,

Defendants-Appellees. No. 03-1394 (D.C. No. 99-RB-712 (BNB))

(D. Colo.)

ORDER AND JUDGMENT *

Before KELLY , Circuit Judge, BRORBY , Senior Circuit Judge, and BRISCOE , Circuit Judge.1 Mr. Armbeck has apparently abandoned his state law claim of assault and

battery, and we therefore need not address it. See United States v. Seminole Nation of Okla. , 321 F.3d 939, 946 n.5 (10th Cir. 2002) (refusing to address a matter that a party had abandoned on appeal). -2- Kenneth L. Armbeck, a state prisoner proceeding pro se, appeals from the district court’s order granting summary judgment fo r the defendants on Mr. Armbeck’s excessive force claim brought under 42 U.S.C. § 1983. 1 Mr. Armbeck concedes that he filed this action outside the appl icable two-year statute of limitations, Aplt. Br. at 11, but asserts that the district court erred by not finding him entitled to equitable tolling. He claims the s tatute of limitation should be tolled because he suffered a serious head injury th at left him too incoherent to realize that his injuries had been wrongfully infli cted, and because the Denver District Attorney’s Office misled him into forgoinghis right to file suit against the officers who allegedly injured him. He also co ntends that the district court erred by finding that the defendants had not waivedtheir statute of limitations defense, and by failing to recognize the district c ourt’s bias against him. Our jurisdiction arises under 28 U.S.C. § 1291. Wereview the district court’s grant of summary judgment de novo, viewing the evidence in the light most favorable to the nonmovant. Hammons v. Saffle , 348 F.3d 1250, 1254 (10th Cir. 2003). “Summary judgment is only appropriate when there is no genuine issue of material fact and the moving party is enti tled to judgment as a matter of-3-

law.” Id. ; Fed. R. Civ. P. 56(c). “We review the district c ourt’s refusal to apply equitable tolling for an abuse of discretion.” Garrett v. Fleming , 362 F.3d 692, 695 (10th Cir. 2004). Because Mr. Armbeck is pro s e, we construe his pleadings liberally. Hammons , 348 F.3d at 1254. The parties are familiar with the facts and the ext ensive procedural history underlying this appeal. We therefore restate neith er here. We do note, however, that on March 22, 2004, Mr. Armbeck filed with this court a “Motion for Affidavit” that we construe as a motion to suppleme nt the record with the affidavit of Mr. Armbeck’s “jailhouse lawyer.” Bec ause the affidavit, dated February 4, 2004, was not offered to or considered by the district court, we deny Mr. Armbeck’s motion to supplement the record with this material. See Magnum Foods, Inc. v. Continental Cas. Co. , 36 F.3d 1491, 1502 n.12 (10th Cir. 1994) (court of appeals’ “review of a grant of summary ju dgment is limited to the record before the trial court at the time it made its ruling”); accord Allen v. Minnstar,
Inc. , 8 F.3d 1470, 1475 n.4 (10th Cir. 1993). We likew ise deny Mr. Armbeck’s motion dated April 19, 2004, asking this court to s upplement the record with police reports that were not offered to or considered by the district court. Id. Accordingly, neither the affidavit nor the police r eports influence our disposition today.-4-

Having carefully considered the parties’ briefs, th e record, and applicable law, we conclude that the district court correctly decided this case. We therefore AFFIRM its judgment dated August 15, 2003, for subs tantially the same reasons set forth in its August 8, 2003, order adopting the magistrate judge’s thorough and well-reasoned recommendation dated July 3, 2003. R ., Docs. 165, 164, 161. We GRANT Mr. Armbeck’s motion to proceed without prepayment of costs and remind Mr. Armbeck that he is obligated to continue making partial payments until the fee has been paid in full. All outstandi ng motions are denied.

Entered for the Court

Wade Brorby Senior Circuit Judge