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

### JAN 2 2003 

### PATRICK FISHER Clerk PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT
FRANK LEVI KIRTDOLL,

Plaintiff-Appellant,
v. CITY OF TOPEKA, KANSAS; JOAN WAGNON; DUANE F. POMEROY; PETER TAVERES; JAMES A. MCCLINTON; BETTY M. DUNN; SAMUEL CARKHUFF; JIM REARDON; FRAN LEE; VINCE COOK; and JAMES GARDNER,

Defendants-Appellees. No. 02-3229

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS (D.C. No. 01-CV-2329-KHV)
Submitted on the briefs: Frank L. Kirtdoll, pro se , Topeka, Kansas. Mary Beth Mudrick, City of Topeka, Kansas, for Defe ndants-Appellees.
Before KELLY , McKAY , and MURPHY , Circuit Judges.
McKAY , Circuit Judge.-2-

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of 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, appearing pro se, filed a § 1983 action against the City of Topeka and several City officers alleging that Defendants violated his Fifth and Fourteenth Amendment rights by demolishing his prop erty. He also asserted state law claims of trespass and conversion. The distric t court sustained Defendants’ motion to dismiss and overruled Plaintiff’s motion for summary judgment. The district court found that Plaintiff’s action was untimely and that his complaint did not plead a factual predicate for any tolling theory. However, the court granted Plaintiff leave to file a motion to amend his compl aint to allege grounds for tolling the statute of limitations. Plaintiff thenfiled a motion to amend, which the court overruled but, the court granted Plaintiff pe rmission to file an amended complaint. Plaintiff then filed a motion for recon sideration and another motion to amend, both of which the court overruled. The court found that Plaintiff’s proposed amendment did not state an adequate factua l basis for tolling the statute of limitations. Therefore, the district court dism issed the action on May 23, 2002. Plaintiff appeals to this court.-3-

Plaintiff concedes that his claims are barred by a two-year statute of limitations unless saved by K.S.A. § 60-518 which p rovides a plaintiff with additional time to bring a second action if he (1) timely commenced the first action, (2) failed in the first action other than o n the merits after the expiration of the statute, and (3) commenced the new action withi n six months of the failure. In order to take advantage of K.S.A. § 60-518, Plai ntiff must have served Defendants in the state court suit before he dismis sed it. Otherwise, the state court suit never “commenced.” Plaintiff’s amended complaint alleges that he filed the state court action on January 4, 2001, an d that he dismissed it the very next day on January 5, 2001. Plaintiff also allege s that he served the Defendants within ninety days of filing the action; however, h e does not allege that he served the Defendants before he dismissed the case. There fore, the state court action was never “commenced.” After a thorough review of the briefs and the recor d, and for substantially the same reasons set forth in the district court’s January 28, 2002, and May 23, 2002, Orders, we hold that no relief is available t o Mr. Kirtdoll pursuant to § 1983 because he did not state an adequate factual b asis for tolling the statute of limitations. The decision of the trial court is AFFIRMED
.