* This order and judgment is not binding precedent, e xcept under the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

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

### JAN 27 1997 

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

DAVID L. WOODWARD,

Plaintiff-Appellant,

v. SEDGWICK COUNTY JAIL ADMINISTRATOR MITCHELL PAIGE; MELISSA DAY; MIKE HILL, Defendants-Appellees. No. 96-3202 (D.C. No. 93-CV-3228) (D. Kan.)

ORDER AND JUDGMENT *

Before TACHA, EBEL, and BRISCOE, Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of-2-

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-appellant David L. Woodward appeals the d istrict court’s dismissal of his civil rights action, brought pursu ant to 42 U.S.C. § 1983. Because plaintiff’s claims are precluded by the Sup reme Court’s opinion in Heck v. Humphrey , 512 U.S. 477, 114 S. Ct. 2364 (1994), and by the statute of limitations, we affirm. On May 23, 1991, plaintiff attempted to commit suic ide after being identified as a suspect in a sexual molestation. While hospitalized, plaintiff made inculpatory statements during police questioning, and his wife consented to a search of their home which disclosed incriminating evidence. On May 25, 1991, plaintiff was arrested and placed in an infirmary c ell under suicide watch. Between this date and June 5, 1991, plaintiff was h andcuffed to the bed, clothed only in a paper gown under cold conditions. Plaint iff made several inculpatory statements during this time. On May 27, 1991, he w as given a blanket and his dentures. After June 5, 1991, plaintiff was taken off suicide watch, but remained under observation in administrative segregation. H e was permitted standard issue clothing, bedding, a daily shower, exercise, and st andard commissary and visitation privileges.-3-

On May 29, 1991, a public defender was appointed to represent plaintiff, and on September 6, 1991, plaintiff pled guilty to six felony counts, including kidnapping, sexual exploitation of a child, rape, a nd felony murder. Plaintiff is currently incarcerated in a state correctional faci lity. His convictions have not been reversed. On June 11, 1993, plaintiff filed this civil rights action against the Sedgwick County Jail Administrator, the Sedgwick Co unty Sheriff, and his former attorney, alleging that defendants (1) conspired to deprive him of his Sixth Amendment right to effective assistance of counsel; (2) conspired to coerce his confessions and guilty pleas in violation of the Fi fth Amendment; (3) illegally searched his residence and submitted tainted eviden ce at the preliminary hearing in violation of the Fourth Amendment; and (4) subje cted him to cruel and unusual punishment by reason of jail conditions and deprivation of medical treatment in violation of the Eighth Amendment. The district co urt dismissed the action on the following grounds: (1) plaintiff’s claims that he w as denied his right to effective assistance of counsel and that his confessions and guilty plea were coerced were barred by Heck , 114 S. Ct. at 2372-73; and (2) plaintiff’s claims of illegal search and cruel and unusual punishment were barred by the statute of limitations. This appeal followed.-4-

We review the dismissal of a complaint de novo, acc epting well-pleaded allegations as true and construing them in the light most favorable to plaintiff. Fuller v. Norton , 86 F.3d 1016, 1020 (10th Cir. 1996). Where a complaint shows on its face that the applicable statute of limitati ons has expired, dismissal for failure to state a claim is appropriate. Aldrich v. McCulloch Properties, Inc. , 627 F.2d 1036, 1041 n.4 (10th Cir. 1980). We conclude the district court properly dismissed p laintiff’s damages claims premised on the deprivation of counsel and the use of coerced confessions and a coerced guilty plea, because such claims dire ctly challenged the validity of his convictions. In Heck v. Humphrey , the Supreme Court held that [I]n order to recover damages for allegedly unconst itutional conviction or imprisonment, or for other harm cause d by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive or der, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus, 28 U.S.C. § 2254. A claim for damages bear ing that relationship to a conviction or sentence that has n ot been so invalidated is not cognizable under § 1983. 114 S. Ct. at 2372 (footnote omitted). The only injury identified by plaintiff is the factof his convictions and incarceration. To establish that he is entitled to compensation for this injury, plaintiff necessarily must show that the conviction s and incarceration are unlawful, based on the deprivation of effective ass istance of counsel and the use1 Plaintiff appears to argue that, in regard to his a llegedly coerced

confessions, proof of a constitutional violation wi ll not render his convictions invalid because his convictions are based on a guil ty plea. Although this may be true, plaintiff has not alleged any damage resultin g from the allegedly coerced confessions other than his convictions and incarcer ation. -5- of coerced confessions and a coerced plea. This is exactly the situation addressed by Heck , in which the Court held that such claims are not cognizable unless the underlying convictions have been reversed, expunged , declared invalid, or called into question by issuance of a writ of habeas corpu s. The fact that plaintiff is now procedurally barred from raising these challeng es to his convictions in a habeas corpus petition does not change this result, because the focus of our inquiry is on whether plaintiff has suffered a comp ensable injury, and not whether plaintiff is foreclosed from any other avenue of ch allenging his convictions. 1 The district court also acted correctly in dismissi ng plaintiff’s cruel and unusual punishment claim and his search and seizure claim based on the statute of limitations. As 42 U.S.C. § 1983 does not contain a statute of limitations, we look to the underlying state’s statute of limitatio ns governing personal injury claims. See Hardin v. Straub , 490 U.S. 536, 538, 540 (1989); Hamilton v. City o f Overland Park , 730 F.2d 613, 614 (10th Cir. 1984) (applying Kans as personal injury limitation). In Kansas, a personal injury a ction must be brought within two years after a cause of action accrues. Kan. Stat. Ann. § 60-513(a)(4) & (b). A civil rights action accrues when the “facts that wo uld support a cause of action-6-

are or should be apparent.” Fratus v. DeLand , 49 F.3d 673, 675 (10th Cir. 1995) (quotations omitted). Plaintiff’s cruel and unusual punishment claim rest s on his treatment while under suicide watch at the Sedgwick County Jail. T his treatment was readily apparent to plaintiff when it occurred. The record shows that plaintiff was taken off suicide watch on June 5, 1991, and that, althou gh he was still under observation, he was given standard prisoner clothin g and privileges on that date. Exhibit 6 to Martinez Report, p.2. Although plaint iff alleges in his affidavit that he was subjected to cruel and unusual conditions “u ntil approximately June 20," R. I, doc. 2, he does not allege any facts to suppo rt this claim. Because plaintiff was last subjected to the complained of conditions on June 5, 1991, his lawsuit brought on June 11, 1993, fell outside the limitati ons period. The fact that plaintiff may not have discovered the legal basis f or his claim until later did not extend the time in which he was required to bring h is action. See Richards v. Mileski , 662 F.2d 65, 71 n.10 (D.C. Cir. 1981) (holding “m ere ignorance of the law does not ordinarily toll the statute of limitat ions”); see also United States v. Kubrick , 444 U.S. 111, 123-24 (1979) (holding that medical malpractice accrued upon knowledge of facts, regardless of whether plai ntiff knew legal rights had been invaded).-7-

Similarly, plaintiff’s search and seizure claim acc rued when it occurred on May 27, 1991, or at the latest, when he learned of the search within the next few days. See Johnson v. Johnson County Comm’n Bd. , 925 F.2d 1299, 1301 (10th Cir. 1991) (holding that “[c]laims arising out of p olice actions toward a criminal suspect, such as arrest, interrogation, or search and seizure, are presumed to have accrued when the actions actually occur” unless pla intiff shows why he did not know of the alleged injury when the actions occurre d). His argument that he did not know of the damage until the illegally seized e vidence was used at the preliminary hearing renders his claim one for damag es resulting from his conviction, which, as explained above, is precludedby Heck

. Finally, plaintiff’s claim that the statute of limi tations was tolled while he was incarcerated is without merit. State limitatio ns statutes control whether a plaintiff’s incarceration tolls the time to bring acivil rights action. Hardin , 490 U.S. at 539, 543. Here, section 60-515(a) of the K ansas Statutes specifically states that the statute of limitations is not tolle d for a prisoner who has access to the court for purposes of bringing an action. Plai ntiff has not alleged that he was denied access to the court during the limitations p eriod. Therefore, his incarceration did not toll the statute of limitatio ns.-8-

Plaintiff’s motion for leave to proceed in forma pauperis is GRANTED. The judgment of the United States District Court fo r the District of Kansas is AFFIRMED. The mandate shall issue forthwith.

Entered for the Court

David M. Ebel Circuit Judge