* 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. This order and judgment is

not binding precedent, except under the doctrines of law of the case, res judicata,

and collateral estoppel. It may be cited, however, for its persuasive value

consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

FILED

United States Court of Appeals

Tenth Circuit

August 23, 2010

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

CALVIN EUGENE BARNETT,

Plaintiff-Appellant,

v.

CHARLES RAY, Warden; ROBERT

EZELL, Assistant Warden; BILL

BOYD, Assistant Warden; DENNIS

JOHNSON, Chief of Security;

YANDELL; CARTWRIGHT, Property

Officer; MOORE, Librarian Officer;

BREWER, Unit Manager,

Defendants-Appellees.

No. 10-7007

(D.C. No. 6:09-CV-00176-JHP-SPS)

(E.D. Okla.)

ORDER AND JUDGMENT*

Before TACHA, HOLLOWAY, and ANDERSON, Circuit Judges.

Plaintiff-appellant Calvin Eugene Barnett, appearing pro se and in forma

pauperis, appeals the order of the district court dismissing his 42 U.S.C. § 1983

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complaint as untimely and ruling that other outstanding motions were moot. Our

jurisdiction arises under 28 U.S.C. § 1291. We review the dismissal of a

complaint for failure to comply with the applicable statute of limitations de novo,

Sterlin v. Biomune Sys., 154 F.3d 1191, 1194 (10th Cir. 1998), and we dismiss

this appeal as frivolous.

On April 28, 2008, Mr. Barnett filed his original complaint in the district

court. That action was dismissed without prejudice for failure to pay the initial

partial filing fee, a disposition affirmed by this court on appeal. Barnett v. Ray,

320 F. App’x 823, 823 (10th Cir. 2009). 

In his latest complaint, filed on May 5, 2009, Mr. Barnett charges that

defendants acted under state law but, other than reciting various legal platitudes

and alleging that defendants deprived him of “his personal and legal Property

interest,” R. at 10, the complaint does not tell us what happened to him to

occasion this lawsuit. From the order of the district court and his opening brief

on appeal, however, we learn that defendants, during a shake-down at the prison

in which he was being held, allegedly confiscated Mr. Barnett’s head phones,

damaged them, and then refused to allow him to mail them to his home. 

Mr. Barnett states in his brief that the shake-down occurred on May 4, 2005. 

“In a civil rights action brought under 42 U.S.C. § 1983, we apply the

applicable state statute of limitations.” Price v. Philpot, 420 F.3d 1158, 1162

(10th Cir. 2005). At the time of the alleged incident, Mr. Barnett was an inmate

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of the Oklahoma Department of Corrections, incarcerated in Holdenville,

Oklahoma. We therefore apply Oklahoma’s two-year statute of limitations for

“injury to the rights of another, not arising on contract, and not hereinafter

enumerated.” Okla. Stat. Ann. tit. 12, § 95(3); see also Meade v. Grubbs,

841 F.2d 1512, 1522 (10th Cir. 1988). Thus, to be timely, Mr. Barnett’s

complaint needed to have been filed on or before May 4, 2007. Because

Mr. Barnett’s original complaint was not filed until April 28, 2008, well after the

expiration of the two-year limitations period, the district court did not err in

dismissing this case. 

Mr. Barnett’s argument that the district court was misled by defendants’

attorney is completely unsupported. Because his complaint was untimely,

dismissal was proper, and none of the other issues raised in Mr. Barnett’s briefs

will be addressed. Because Mr. Barnett “has failed to present any legal theory

which could conceivably refute the district court’s disposition, his appeal is

frivolous under 28 U.S.C. § 1915(e)(2)(B)(i).” Davis v. Kan. Dep’t Corr.,

507 F.3d 1246, 1249 (10th Cir. 2007). We therefore assess Mr. Barnett a strike as

provided under 28 U.S.C. § 1915(g) for this frivolous appeal. See Jennings v.

Natrona Cnty. Det. Ctr. Med. Facility, 175 F.3d 775, 781 (10th Cir. 1999).

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This appeal is DISMISSED as frivolous. Mr. Barnett is reminded of his

obligation to continue making partial payments of his appellate filing fee until the

entire balance is paid in full. 

Entered for the Court

Deanell Reece Tacha

Circuit Judge

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