*This order and judgment is not binding precedent, except under the doctrines of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

F I L E D

United States Court of Appeals

Tenth Circuit

JUN 7 2001

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ERVIN LEE McCOY,

Plaintiff-Appellant,

v. No. 01-6030

GARY DAMRON; M. CORY; JEFF

WHITE; LT. DUGAN; LT. HOLT; J.

CALLAGHAN,

Defendants-Appellees.

(D.C. No. CIV-00-1811-R)

(W.D.Okla.)

ORDER AND JUDGMENT*

Before HENRY, BRISCOE and MURPHY, Circuit Judges.

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.

Plaintiff Ervin Lee McCoy, appearing pro se, appeals the district court's
2

dismissal of his 42 U.S.C. § 1983 and state-law false imprisonment claims. We affirm.

McCoy was arrested shortly after a shooting in downtown Oklahoma City on

July 22, 1998. He was transported to the Oklahoma City detention center and booked

on charges of shooting with intent to kill. On September 1, 1999, a jury found him not

guilty of the charge.

McCoy filed his § 1983 action in state court on August 28, 2000, against Gary

Damron, M. Cory, Jeff White, Lt. Dugan, Lt. Holt (Holtz), and J. Callaghan, seeking

$1,000,000 in punitive damages for wrongful incarceration, $500,000 for the “bogus

charges,” and “all back pay that he would have earned and any other relief this

Honorable Court deems appropriate.” Complaint at 6. The defendants removed the

case to the United States District Court for the Western District of Oklahoma. Five of

the defendants (Damron, Cory, White, Dugan, and Holtz) moved to dismiss, arguing

the action was time-barred because it was filed more than two years after McCoy's

arrest. On November 30, 2000, the district court dismissed McCoy's complaint as to

Damron, Cory, White, Dugan, and Holtz as time-barred, rejecting McCoy's arguments

that the statute of limitations should be equitably tolled until the state court charges

were terminated and for the period he was without access to a law library while he was

a state court pretrial detainee. On December 1, 2000, Callaghan also moved to dismiss

the claim against him as time-barred and the district court granted the motion on

January 4, 2001. McCoy filed his notice of appeal from the district court's November
3

30, 2000, ruling on December 28, 2000. We will treat this notice of appeal as a

premature notice of appeal which became effective upon the court's dismissal of the

remaining claim against Callaghan. Lewis v. B.F. Goodrich Co., 850 F. 2d 641, 645

(10th Cir. 1988) (en banc).

On appeal, McCoy again argues the statute of limitations should be equitably

tolled because of lack of access to legal materials and ignorance of the law. As his

issues on appeal, McCoy asserts:

Was Appellant entitled to a judicial probable cause determination

hearing upon completion of administrative steps incident to his arrest?

Was the on-the-scene assessment of a Police Officer's affidavit and

signed by a Magistrate and/or judge constitutionally valid to restrain

Appellant in jail for several months without affording him a judicial

probable cause determination hearing when Appellant had no knowledge

of such a Police Officer's affidavit signed by a Magistrate Judge?

Is Appellant entitled to redress and/or “monetary” relief as a

compensation for the 13 months and 10 days he spent in jail after he was

found not guilty, unanimously, by a trial jury that lasted 3 1⁄2 days and in

less than an hour after their deliberation?

Br. at 2-3. As appellees note, McCoy is raising the first two issues for the first time on

appeal. “The matter of what questions may be taken up and resolved for the first time

on appeal is one left primarily to the discretion of the courts of appeals, to be exercised

on the facts of individual cases.” Lyons v. Jefferson Bank & Trust, 994 F.2d 716, 721

(10th Cir. 1993). However, we need reach only the jurisdictional issue of whether

McCoy's action is barred by the statute of limitations.

“For section 1983 actions, state law determines the appropriate statute of
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limitations and accompanying tolling provisions.” Fratus v. Deland, 49 F.3d 673, 675

(10th Cir. 1995). McCoy points to no Oklahoma authority that supports his argument

that the statute of limitations should be tolled. Rather, he contends that his failure to

file should be excused on the grounds of hardship and ignorance. In Oklahoma,

“[e]xceptions to statutes of limitation are strictly construed and are not enlarged on

consideration of apparent hardship or inconvenience.” Resolution Trust Corp. v.

Grant, 901 P.2d 807, 813 (Okla. 1995) (emphasis added). Further, “it is well

established that ignorance of the law, even for an incarcerated pro se petitioner,

generally does not excuse prompt filing.” Marsh v. Soares, 223 F.3d 1217, 1220 (10th

Cir. 2000) (internal citation omitted). Absent a litigant raising a convincing reason

why the court should depart from this general rule, ignorance of the law is not grounds

for tolling the statute of limitations. See id.

AFFIRMED.

Entered for the Court

Mary Beck Briscoe

Circuit Judge