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

### AUG 18 2000 

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

RICH BRELO,

Plaintiff-Appellant, and THOMAS LEE GATES,

Plaintiff,

v. FRANK KEATING, Governor; SGT. DON KING; LT. VICTOR ANDERSON; RON WARD, Warden; DR. CLIFF URANGA; FRED COOK, Unit Manager; JIM FOSTER; SGT. W.O. MOODY; A. DE LA ROSA, aka Dr. Delarosa,

Defendants-Appellees.

RICH BRELO,

Plaintiff-Appellant,

v. MR. BRAKENSAK, Law Library Supervisor; BILLIE JAMES, Account Clerk II or III; MIKE MARTIN, Sergeant; CEAZER, Sergeant; SOCKIE, Sergeant; JOHN DOE #1, Sergeant a/k/a M. Cook, Sgt.; Nos. 98-7174 & 99-7003 (D.C. No. 97-CV-623-S) (E.D. Okla.)

99-7123 (D.C. No. 97-CV-683-B) (E.D. Okla.)* This order and judgment is not binding precedent, e xcept under the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. -2- BRINGINHAM, C/O; RANDY LEAPER, Sergeant; HANDCOCK, Sergeant; HOOD, Sergeant; FRANK HUMPHERY; NOLAN, Lieutenant; REA, Lieutenant; FATKIN, Chief of Security; MARTIN; SPEARS, C/O; HARRIS, C/O,

Defendants-Appellees.

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 these appeals. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he cases are therefore ordered submitted without oral argument. Rich Brelo, an inmate incarcerated in the Oklahoma State Penitentiary, appeals from the district court’s dismissal of two complaints he filed against prison officials under 42 U.S.C. § 1983 alleging vi olation of his constitutional-3-

rights. We have jurisdiction under 28 U.S.C. § 129 1 and affirm the dismissal of both complaints. In October and December 1987, Brelo filed separate pro se complaints against various prison officials alleging generallysimilar violations of his rights under the First, Eighth, and Fourteenth Amendments regarding free speech, excessive force, and treatment of medical needs. T he complaints sought unidentified injunctive and declaratory relief and $6,000,000 in compensatory and punitive damages. The complaints were filed as sep arate cases and were assigned to different district judges. Defendants filed a combined Martinez report for both cases, and then moved for dismissal on various grou nds and/or for summary judgment. Following Brelo’s response, the district court issu ed almost identical orders dismissing the two complaints. Because many of the individual claims involved allegations of unconstitutional conduct occurring m ore than two years prior to the filing of the complaints, the court held these clai ms barred by Oklahoma’s two-year statute of limitations. See Meade v. Grubbs , 841 F.2d 1512, 1522 (10th Cir. 1988). The court next found that Brelo failed to exhaust his administrative remedies, and failed to present any legitimate reason for not doing so, and concluded that the complaints must be dismi ssed under 42 U.S.C. § 1997e. Finally, and apparently alternatively, the court de termined that the allegations in-4-

Brelo’s complaints were vague and conclusory and hi s claims did not rise to the level of constitutional violations. It therefore d ismissed the complaints pursuant to 28 U.S.C. § 1915(e). We review de novo the district court’s determinatio n that Brelo’s claims are barred by the statute of limitations. See Sterlin v. Biomune Sys. , 154 F.3d 1191, 1194-95 (10th Cir.1998). On appeal, Brelo contends that he alleged a continuing conspiracy and that his claims are therefore not ba rred by the statute of limitations. His allegations, however, are conclus ory and insufficient to state a claim for conspiracy. See Durre v. Dempsey , 869 F.2d 543, 545 (10th Cir. 1989). His contention that the statute of limitati ons should have been tolled because he suffers from post traumatic stress disor der is also unpersuasive. Oklahoma’s two-year limitations period may be tolle d until one year after the removal of a disability if the “person entitled to bring an action . . . at the time the cause of action accrued [was] under any legal disab ility.” Okla. Stat. tit. 12, § 96. Brelo never alleged or showed in the district courtthat he suffered from this impairment or any legal disability at the time his causes of action accrued such that the statute could be tolled. The district cou rt thus correctly determined that Brelo’s claims accruing more than two years prior t o the time he filed his complaints, which comprise the majority of his clai ms, are barred.1 Because we conclude the district court correctly di smissed Brelo’s claims

on statute of limitations and § 1915(e) grounds, we need not address whether these claims should also have been dismissed on exh austion grounds. We note, however, that Brelo’s claims sought monetary damage s, in addition to declaratory and injunctive relief, and we have held that claims seeking monetary damages are not subject to 42 U.S.C. § 1997e’s exhaustion requi rement where prison administrative procedures do not allow for such relief. See Miller v. Menghini , 213 F.3d 1244, 1246 (10th Cir. 2000); Garrett v. Hawk , 127 F.3d 1263, 1266-67 (10th Cir. 1997). -5- As to the remainder of Brelo’s claims, we construe the district court’s decisions as dismissing Brelo’s complaints under § 1915(e)(2)(B)(ii), and we review those dismissals de novo. See Perkins v. Kansas Dep’t of Corrections , 165 F.3d 803, 806 (10th Cir. 1999). After consider ing Brelo’s arguments and reviewing the record, we agree with the district co urt that these claims contain vague and conclusory allegations that do not rise t o the level of constitutional violations. They therefore failed to state claims on which relief may be granted and were appropriately dismissed. See § 1915(e)(2)(B)(ii). 1
We conclude the remainder of Brelo’s contentions onappeal are without merit. The judgments of the district court are AFF IRMED. All outstanding motions are DENIED. The mandate shall issue forthw ith. Entered for the Court

Mary Beck Briscoe Circuit Judge-6-

Nos. 98-7174, 99-7003 and 99-7123, Brelo v. Gates, et al. EBEL, Circuit Judge, dissenting.
I respectfully dissent. I have reviewed Brelo’s co mplaints, and in my opinion, they are sufficient to allege a violation of his constitutional rights and a conspiracy. In my opinion, it was error to dismiss Brelo’s pro se complaints pursuant to 28 U.S.C. § 1915(e), given our obligation to construe pro se pleadings liberally. Brelo ultimately may not be able to prove his claim s, but his claims should be resolved on the evidence and not the pleadings. Accordingly, I would REVERSE and REMAND this case.