* After examining appellant’s brief and the appellate record, this panel has

determined unanimously that oral argument would notmaterially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). The case is therefore submitted without o ral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, or collateral estoppel. The court ge nerally disfavors the citation of orders and judgments; nevertheless, an order and ju dgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit NOV 7 2000 

### PATRICK FISHER Clerk 

### UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

KENNETH L. ARMBECK, Plaintiff-Appellant,

v. D. QUINONES, Sgt., #86-17; D. WILEY, Off., #94-02, Defendants-Appellees. No. 00-1021 (D.C. No. 99-WM-712) (Colorado)



### ORDER AND JUDGMENT *

Before SEYMOUR , Chief Judge, EBEL , and BRISCOE , Circuit Judges.
Kenneth Armbeck, a pro se state prisoner, appeals the dismissal of this action under 42 U.S.C. § 1983 against the Denver Po lice Department and two Denver Police officers, in which he claimed the off icers used excessive force when arresting him. Because Mr. Armbeck is proceed ing pro se, his pleadings must be construed liberally and be read to state a valid claim if it is reasonably1 Because Mr. Armbeck was incarcerated at the time, the scheduling

conference was conducted by a video hearing and ourrecord does not contain either a video tape of the proceeding or a transcri pt. Although defendants point out that our record therefore does not show the mag istrate judge raised the statute of limitations sua sponte, defendants do not deny h e in fact did so. -2- possible to do so. Hall v. Belmon , 935 F.2d 1106, 1110 (10th Cir. 1991). Applying this standard, we reverse and remand for f urther proceedings. The district court adopted the recommendation of th e magistrate judge that the Police Department be dismissed because it was n ot a legal entity that could be sued. At a subsequent scheduling conference regard ing the remaining claims, the magistrate judge allegedly told defense counsel that the lawsuit appeared barred by the applicable statute of limitations. 1 The remaining defendants then filed an amended answer raising the statute of limitations a s an affirmative defense, and a motion for judgment on the pleadings. Mr. Armbeck filed a response in which he asserted he had been hospitalized and heavily medic ated due to his injuries and the limitation period should therefore be tolled. The magistrate judge recommended that defendants’ motion for judgment onthe pleadings be granted on the ground the action was time-barred. Mr. Armb eck objected to the recommendation, again asserting the right to equita ble tolling. The district court reviewed the matter de novo, rej ecting Mr. Armbeck’s argument that the limitation period should be tolle d due to the injuries he sustained in the arrest underlying the lawsuit. Th e court also rejected Mr. Armbeck’s contention that the magistrate judge show ed favoritism to defendants2 The relevant limitation period for this section 19 83 claim is the two-year

Colorado period for personal injury actions. See Hunt v. Bennett , 17 F.3d 1263, 1265-66 (10th Cir. 1994). The incident underlying Mr. Armbeck’s claims took place on January 8. 1997, and his lawsuit was filedno earlier than March 22, 1999, over two months after the expiration of the applicable period. -3- by raising the statute of limitations, concluding t hat because Mr. Armbeck was proceeding in forma pauperis and the court could have addressed the issue sua sponte, any prompting of the affirmative defense wa s not improper. Under the standard applicable to pro se litigants, we cannot affirm the district court’s determination as a matter of law t hat Mr. Armbeck was not entitled to the benefit of tolling. “Limitations p eriods in § 1983 suits are to be determined by reference to the appropriate state st atute of limitations and the coordinate tolling rules.” Hardin v. Straub , 490 U.S. 536, 539 (1989) (internal quotations omitted). It is undisputed that Mr. Arm beck’s suit was filed outside the applicable limitation period. 2 However, Mr. Armbeck asserted below that tolling was appropriate because defendants had infl icted head injuries which rendered him unconscious, and that as a result he s pent three days in a hospital and three months in a jail infirmary, during which time he was heavily medicated. The district court determined that these allegatio ns were insufficient to raise a fact issue on tolling because Mr. Armbeck w as hospitalized for only three days and he knew the date on which his claims arose . The court also viewed Mr. Armbeck’s allegations as asserting that his hospita lization and subsequent incarceration merely prevented access to the legal resources needed to raise the-4-

claim, which was inadequate to invoke tolling. In so doing, the court resolved fact issues contrary to Mr. Armbeck and failed to c onstrue his pleadings liberally. We have held that “the district court may consider affirmative defenses sua sponte only when the defense is obvious from the fa ce of the complaint and [n]o further factual record [is] required to be develope d.” Fratus v. Deland, 49 F.3d 673, 674-75 (10th Cir. 1995) (internal quotations o mitted). Colorado law, which is applicable to the tolling issue here, see Hardin , 490 U.S. at 539, permits equitable tolling “where the defendant’s wrongful c onduct prevented the plaintiff from asserting his or her claims in a timely manner .” Dean Witter Reynolds, Inc.
v. Hartman , 911 P.2d 1094, 1096 (Colo. 1996) (en banc) (citin g Klamm Shell v. Berg . 441 P.2d 10 (1968)); Garrett v. Arrowhead Improvement Ass’n , 826 P.2d 850, 853 (Colo. 1992) (en banc) (same). In Klamm Shell , the court held the statute of limitations tolled when the very assaultand battery of which the plaintiff complained rendered her unable to bring atimely action. [W]e hold that equity contains within its purview o verriding concepts which proclaim that a defendant on the basis of pla in justice should not be allowed to rely on a statute of limitations, where his intentional tort has caused mental incapacity arisi ng after the cause of action accrued but before the expiration of the period of limitation. Klamm Shell , 441 P.2d at 12. Viewing the record most favorabl y to Mr. Armbeck, fact issues exist as to whether defendants ’ alleged wrongful conduct prevented him from being able to timely assert his claims. Accordingly, whether-5-

he is entitled to equitable tolling under Colorado law is not obvious on the face of the pleadings and cannot be decided without furtherdevelopment of the facts. Consequently, we reverse and remand for further pro ceedings. We address briefly Mr. Armbeck’s remaining argument s. He complains bitterly that the magistrate judge displayed favori tism by calling opposing counsel’s attention to the statute of limitations. As the district court correctly pointed out, a judge may in appropriate circumstanc es dismiss sua sponte a suit brought in forma pauperis. See Fratus , 49 F.3d at 674-75. The magistrate judge’s actions were therefore not improper. Mr. Armbeck also contends the court erred in dismis sing the Denver Police Department as a defendant without first allowing hi m to amend his complaint to add the City and County of Denver as a defendant. Leave to amend is to be “freely given,” Fed. R. Civ. P. 15(a), and “pro se litigants are to be given reasonable opportunity to remedy the defects in the ir pleadings,” Hall , 935 F.2d at 1110 n. 3. Mr. Armbeck’s pleadings, construed libe rally, alleged a claim which could be asserted against the City and County of De nver. On remand, he should be allowed to pursue a motion to amend to add the C ity and County as a defendant.
REVERSED and REMANDED for further proceedings.
ENTERED FOR THE COURT Stephanie K. Seymour Chief Judge