FILED

United States Court of Appeals

Tenth Circuit

August 2, 2010

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JAMES BRAXTON; TROY GRAVES;

RONALD JOHNSON; PAUL

PALECECK,

Plaintiffs-Appellants,

and

MICHAEL DAVID JOHNSON, 

 Plaintiff,

v. No. 10-1053

ARISTEDES ZAVARAS, the

Executive Director of the C.D.O.C.;

KEVIN MILYARD; TERRY

BARTRUFF; LLOYD WAIDE; JEFF

REVORD; RAYMOND HIGGINS;

GARY LITTLE; ROBERT KEISEL;

SHAWN REWOLDT; ASSOCIATE

WARDEN CAROL SOARES; MAJOR

MARY OX-BERGMAN, all in their

official and individual capacities,

Defendants-Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

(D.C. No. 09-CV-01147-LTB-KMT,

consolidated with 09-CV-01218-LTB-KMT; 09-CV-01313-LTB-KMT;

09-CV-01352-LTB-KMT; and 1:09-CV-01153-LTB-KMT)

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1

 The district court also included in the consolidated action a suit filed by a

fifth prisoner, Michael Johnson. He is not participating in this appeal. 

2

 After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is,

therefore, submitted without oral argument.

2

Submitted on the briefs:

James Braxton, Troy Graves, Ronald Johnson, and Paul Palececk, pro se.

John W. Suthers, Attorney General and Nicole S. Gellar, Assistant Attorney

General, Denver, Colorado, for Defendants-Appellees.

Before BRISCOE, Chief Judge, TACHA, and O’BRIEN, Circuit Judges.

BRISCOE, Chief Judge.

Plaintiffs-Appellants James Braxton, Troy Graves, Ronald Johnson, and

Paul Palececk (collectively “plaintiffs”), Colorado prisoners proceeding pro se,

brought this civil rights action under 42 U.S.C. § 1983, alleging that DefendantsAppellees violated their civil rights during a public strip search at Sterling

Correctional Facility. Plaintiffs appeal the district court’s dismissal of their

consolidated action as untimely filed.1

 Exercising jurisdiction pursuant to 28

U.S.C. § 1291, we conclude that under the fact pattern presented, the statute of

limitations should not be tolled, and affirm.2

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 Plaintiffs also argued for statutory tolling, relying on Colo. Rev. Stat. §

13-17.5-104, which provides that while an inmate grievance procedure is pending,

the “court shall stay the state civil action until . . . the grievance procedure is

completed and all rights of appeal have been exhausted.” The district court

concluded that the statute was inapplicable, as it pertained to staying a civil

action rather than tolling the statute of limitations. On appeal, plaintiffs have

abandoned the argument that statutory tolling applies. See Appellants’ Br. at 3

(“Colorado does not have any statutory tolling provisions which would control

this case.”). 

3

I

On August 1, 2006, officers at the Sterling Correctional Facility conducted

a public strip search during which plaintiffs were required to expose themselves

to other inmates and prison staff. Plaintiffs filed internal grievances, following

the prison’s three-step procedure, and they received final responses to their Step 3

grievances on May 24 (Braxton), June 21 (Graves and Ronald Johnson), and July

5, 2007 (Palececk).

Individual lawsuits were filed on May 19 (Braxton), May 27 (Graves), June

4 (Ronald Johnson), and June 10, 2009 (Palececk), naming as defendants various

officials of the Colorado Department of Corrections (CDOC) and employees of

Sterling Correctional Facility. The district court then consolidated the cases. 

Defendants filed motions to dismiss under Federal Rule of Civil Procedure

12(b)(6), arguing in part that plaintiffs’ claims were barred by Colorado’s twoyear statute of limitations. Plaintiffs responded that in Colorado, the statute of

limitations is tolled pending the exhaustion of administrative remedies.3

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Specifically, they argued that the statute of limitations was tolled until they

received responses to their Step 3 grievances. The magistrate judge

recommended that the action be dismissed, reasoning that under Colorado law the

statute of limitations is not automatically tolled while plaintiffs pursue the

exhaustion of administrative remedies, and plaintiffs had not demonstrated that

they were entitled to equitable tolling. The district court agreed and granted

defendants’ motions to dismiss.

II

A

We review de novo the dismissal of an action under Rule 12(b)(6) based on

the statute of limitations. Brady v. UBS Fin. Servs., Inc., 538 F.3d 1319, 1323

(10th Cir. 2008). “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 plaintiffs are proceeding pro se, we liberally construe their

pleadings. Gallagher v. Shelton, 587 F.3d 1063, 1067 (10th Cir. 2009).

In a § 1983 action, state law governs issues regarding the statute of

limitations and tolling, although federal law governs the determination of when a

§ 1983 action accrues. Fratus v. DeLand, 49 F.3d 673, 675 (10th Cir. 1995). 

Under Colorado law, plaintiffs bear the burden of demonstrating that the statute

of limitations should be tolled. See Lake Canal Reservoir Co. v. Beethe, 227 P.3d

882, 886 (Colo. 2010). 

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 It is undisputed that this action accrued on August 1, 2006. Because “the

statute of limitations for § 1983 actions brought in Colorado is two years from the

time the cause of action accrued,” Fogle v. Pierson, 435 F.3d 1252, 1258 (10th

Cir. 2006), the limitations period expired on August 1, 2008. Thus, this action,

which was brought by the individual plaintiffs on various dates in May and June

of 2009, is subject to dismissal as untimely filed unless tolling applies. 

Although plaintiffs recognize that “Colorado does not have any statutory

tolling provisions which would control this case,” they contend that the statute of

limitations is tolled “during the time a person is involved in any administrative

review process.” Appellants’ Br. at 3. Liberally construing their briefs, plaintiffs

make two separate arguments: (1) Colorado automatically tolls the statute of

limitations whenever a plaintiff attempts to resolve a claim with any

administrative body, and (2) they are entitled to equitable tolling because they

were prevented from bringing their claims in federal court until they had

exhausted their administrative remedies. As discussed more fully in the sections

that follow, we disagree. First, Colorado does not recognize an “administrative

exhaustion” tolling doctrine apart from equitable tolling. Second, plaintiffs are

not entitled to equitable tolling because they have not diligently pursued their

claims. 

B

We begin by considering plaintiffs’ argument that “tolling is applied to

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arrest the running of statutes of limitations during the time a person is involved in

any administrative review process.” Appellants’ Br. at 3. In support of their

argument, they rely on London Guarantee & Accident Co. v. Sauer, 22 P.2d 624

(Colo. 1933). However, Sauer is inapposite. In that case, the Colorado Supreme

Court held the statute of limitations did not prevent the Industrial Commission

from reopening or reviewing a claim for workers’ compensation after

compensation had been paid when all parties had committed an error. See id. at

626. Thus, contrary to plaintiffs’ assertion, the Colorado Supreme Court has not

held that the statute of limitations is automatically tolled whenever a person is

involved in any administrative review process. 

Because there are no decisions from the Colorado Supreme Court on point,

we “must endeavor to predict how that high court would rule.” Johnson v.

Riddle, 305 F.3d 1107, 1118 (10th Cir. 2002). The Colorado Supreme Court

“attempt[s] to interpret statutes of limitations consistent with their purposes of

promoting justice, avoiding unnecessary delay, and preventing the litigation of

stale claims.” Morrison v. Goff, 91 P.3d 1050, 1052 (Colo. 2004). In that vein,

the Colorado Supreme Court has previously rejected a bright-line tolling rule that

“does not require plaintiffs to bring claims as expediently as possible.” Id. at

1056. 

Moreover, Colorado law favors a case-by-case approach to tolling, rather

than automatically tolling the statute of limitations for entire classes of cases. 

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See id. at 1058 (rejecting an approach to tolling in part “because it tolls the

statute of limitations for an entire class of claims”). “Because tolling involves the

exercise of equitable jurisdiction, Colorado courts have repeatedly stated that

tolling determinations require an examination of the specific facts and

circumstances of each case.” Id. at 1057. Accordingly, we conclude that under

Colorado law, the statute of limitations is not automatically tolled whenever an

individual pursues administrative remedies. See Ferrel v. Colo. Dep’t of Corr.,

179 P.3d 178, 188–89 (Colo. App. 2007) (rejecting the argument that the statute

of limitations should be tolled pending exhaustion of administrative remedies

where exhaustion was not a prerequisite to filing suit). 

C

Next, we consider whether plaintiffs are entitled to equitable tolling. 

Colorado recognizes that “equity may require a tolling of the statutory period

where flexibility is required to accomplish the goals of justice.” Dean Witter

Reynolds, Inc. v. Hartman, 911 P.2d 1094, 1096 (Colo. 1996). At the same time,

“statutes of limitations compel litigants to pursue their claims in a timely

manner.” Id. at 1099. Thus, equitable tolling is limited “to situations in which

either the defendant has wrongfully impeded the plaintiff’s ability to bring the

claim or truly extraordinary circumstances prevented the plaintiff from filing his

or her claim despite diligent efforts.” Id.

The Colorado Supreme Court has yet to find a case that qualifies as an

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“extraordinary circumstance” that would justify tolling. However, that court has

relied on cases from other jurisdictions to illustrate that tolling may apply when a

plaintiff is truly precluded from filing suit: Hanger v. Abbott, 73 U.S. (6 Wall.)

532 (1867) (courts in southern states were closed during the Civil War), Seattle

Audubon Society v. Robertson, 931 F.2d 590 (9th Cir. 1991) (district court’s

erroneous enforcement of an unconstitutional statute barred plaintiff from filing),

rev’d on other grounds, 503 U.S. 429 (1992), and Osbourne v. United States, 164

F.2d 767 (2d Cir. 1947) (plaintiff held by Japan during World War II). See Dean

Witter, 911 P.2d at 1097. 

Under the Prison Litigation Reform Act (PLRA), plaintiffs were required to

exhaust all available administrative remedies prior to filing this suit in federal

court. 42 U.S.C. § 1997e(a). Failure to do so could have resulted in the dismissal

of their action. See, e.g., Jernigan v. Stuchell, 304 F.3d 1030, 1032–33 (10th Cir.

2002). Accordingly, the PLRA’s exhaustion requirement could constitute a

circumstance “mak[ing] it impossible for [a] plaintiff to file his or her claims

within the statutory period,” thus entitling a plaintiff to equitable tolling, “so long

as [he or she] makes good faith efforts to pursue the claims when possible.” See

Dean Witter, 911 P.2d at 1097.

Plaintiffs direct our attention to a line of cases from the Colorado Court of

Appeals holding that the statute of limitations may be tolled during the time that a

claim is presented to a board of county commissioners. See CAMAS Colo., Inc.

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v. Bd. of County Comm’rs, 36 P.3d 135, 140–41 (Colo. App. 2001) (citing Bd. of

Comm’rs v. Flanagan, 122 P. 801 (Colo. App. 1912)). Similar to the PLRA,

Colorado law prohibits the filing of an action against a county until a claim has

been presented and rejected by the board of county commissioners. See Colo.

Rev. Stat. § 30-25-110(1). In CAMAS, the court of appeals reasoned that because

there was “no suggestion that [the plaintiff] failed to prosecute its claims in good

faith and with diligence,” the statute of limitations should be tolled during the

period when the claims were presented to the board of county commissioners. 

CAMAS, 36 P.3d at 141. 

Although CAMAS does not explicitly rely on equitable tolling, we think it

is best understood under that doctrine. As the Colorado Supreme Court has

recognized, “tolling is an equitable remedy . . . .” Morrison, 91 P.3d at 1057. 

Moreover, the “extraordinary circumstances” aspect of equitable tolling is based

on the reasoning “that it is unfair to penalize the plaintiff for circumstances

outside his or her control, so long as the plaintiff makes good faith efforts to

pursue the claims when possible.” Dean Witter, 911 P.2d at 1097. The statute of

limitations in CAMAS was tolled precisely because the statutory presentment

requirement made it impossible for the plaintiff to bring suit until the board had

rejected the claim, and the plaintiff had diligently pursued its claim. See

CAMAS, 36 P.3d at 141 (citing Dean Witter, 911 P.2d 1094) (“In such a

situation, a plaintiff should not be penalized for circumstances beyond his or her

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control, provided that good faith efforts are made to pursue the claim.”). Thus,

CAMAS can be read as supporting equitable tolling under “extraordinary

circumstances” when exhaustion is a necessary condition precedent to filing suit,

and a plaintiff has been diligent in pursuing the claim following exhaustion.

Even if the administrative exhaustion requirement constitutes an

“extraordinary circumstance” preventing plaintiffs from filing suit, plaintiffs still

must “make[] good faith efforts to pursue the claims when possible.” See Dean

Witter, 911 P.2d at 1097; cf. CAMAS, 36 P.3d at 140–41. Thus, whether

plaintiffs are entitled to equitable tolling depends on whether they diligently

pursued their claims following the exhaustion of their administrative remedies.

We recently discussed equitable tolling under Colorado law pending

exhaustion of administrative remedies in an unpublished decision in Rosales v.

Ortiz, 325 F. App’x 695 (10th Cir. 2009). Although Rosales is not controlling

authority, the facts of that case are very similar to the case at bar, and thus, we

find it persuasive. Rosales, a Colorado state prisoner, had previously filed a §

1983 action, which was dismissed for his failure to exhaust his administrative

remedies. Id. at 697. Upon completing the grievance process, plaintiff had six

months to refile his action before the statute of limitations expired. However, he

did not refile his action in federal court until more than ten months after

exhausting his administrative remedies, and thus, over four months too late. We

noted that we had “declined to apply [equitable tolling] in circumstances almost

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 Because we conclude that plaintiffs’ claims are not entitled to equitable

(continued...)

11

identical to this case, reasoning that ample time for filing within the two-year

limitations period remained after the exhaustion of remedies, but that the plaintiff

failed to diligently pursue his opportunity to file.” Id. at 699 (citing Russell-El v.

United States, No. 99-1124, 1999 WL 987350 (10th Cir. Nov. 1, 1999)). We then

held that by failing to file suit within six months after exhausting administrative

remedies, Rosales was not entitled to equitable tolling. Id.

We find the reasoning of Rosales persuasive. After receiving the responses

to their final administrative appeals, plaintiffs had over a year remaining to file

their action in federal court—twice as long as the time remaining in Rosales—but

they waited approximately two years to file suit. See id. (“[W]aiting . . . the

better part of a year or more to file[] fails equitable tolling qualification.”). 

Plaintiffs have not offered an explanation for why they did not file this action in

the year remaining on the limitations period, let alone why they waited almost

two years to file suit after receiving the final response from the grievance process. 

Because plaintiffs did not pursue their claims with diligence, they are not entitled

to equitable tolling. “Neither the defendants nor extraordinary circumstances

stood in the way of [plaintiffs’] filing suit within the statutory period. Only

[their] own inaction prevented [them] from filing in a timely manner.” See Dean

Witter, 911 P.2d at 1099.4

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(...continued)

tolling, we do not consider defendants’ alternative argument that the statute of

limitations was tolled only until forty-five days after plaintiffs filed their Step 3

grievances, when the grievances were “effectively exhausted.” See Whitington v.

Ortiz, 472 F.3d 804, 808 (10th Cir. 2007). 

12

D

Plaintiffs also argue that they are entitled to tolling because the CDOC sent

letters to the plaintiffs encouraging them to wait for the resolution of the

grievance process. However, plaintiffs did not raise this issue or allege any

wrongful conduct on the part of defendants before the district court. Accordingly,

we will not consider this argument on appeal. See Beaudry v. Corr. Corp. of Am.,

331 F.3d 1164, 1166 (10th Cir. 2003) (per curiam) (refusing to consider issues

pro se plaintiffs did not raise in district court). Additionally, plaintiffs have

attached to their reply brief copies of memos regarding the resolution of their

Step 3 grievances. On appeal, we review only the record presented to the district

court. See United States v. Kennedy, 225 F.3d 1187, 1191 (10th Cir. 2000)

(“This court will not consider material outside the record before the district

court.”). 

III

We AFFIRM the judgment of the district court and GRANT Braxton,

Graves, and Palececk’s motion to proceed without prepayment of fees. They are

reminded that they are each obligated to continue making partial payments until

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 Ronald Johnson has already paid his portion of the filing fee to the district

court.

13

his respective portion of the fee has been paid.5

 

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