* This order and judgment is not binding precedent, except under the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

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.

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 for 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 applicable 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 statute of limitation should be

tolled because he suffered a serious head injury that left him too incoherent to

realize that his injuries had been wrongfully inflicted, and because the Denver

District Attorney’s Office misled him into forgoing his right to file suit against

the officers who allegedly injured him. He also contends that the district court

erred by finding that the defendants had not waived their statute of limitations

defense, and by failing to recognize the district court’s bias against him.

Our jurisdiction arises under 28 U.S.C. § 1291. We review 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 entitled to judgment as a matter of
-3-

law.” Id.; Fed. R. Civ. P. 56(c). “We review the district court’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 se, we construe his pleadings

liberally. Hammons , 348 F.3d at 1254.

The parties are familiar with the facts and the extensive procedural history

underlying this appeal. We therefore restate neither 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 supplement the record with the

affidavit of Mr. Armbeck’s “jailhouse lawyer.” Because 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 judgment 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 likewise deny Mr. Armbeck’s

motion dated April 19, 2004, asking this court to supplement the record with

police reports that were not offered to or considered by the district court. Id.

Accordingly, neither the affidavit nor the police reports influence our disposition

today.
-4-

Having carefully considered the parties’ briefs, the record, and applicable

law, we conclude that the district court correctly decided this case. We therefore

AFFIRM its judgment dated August 15, 2003, for substantially 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 outstanding motions are denied.

Entered for the Court

Wade Brorby 

Senior Circuit Judge