Roberts v. Roe, 10th Cir. (1999)

F I L E D
UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT
United States Court of Appeals

Tenth Circuit
OCT 5 1999
PATRICK FISHER
Clerk
PHILIP ROBERTS,
Plaintiff-Appellant,
v.
PAT ROE; PAULA SAWYER;
RAYMOND EDWARDS; DAVID
BATEMAN; DAVID LAMPH,
No. 98-4190
(D.C. No. 98-CV-168-K)
(D. Utah)
Defendants-Appellees.
ORDER AND JUDGMENT
Before BRORBY, EBEL , and HENRY , 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.

This order and judgment is not binding precedent, except under the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.
Plaintiff Philip Roberts brought this action asserting a variety of claims

under 42 U.S.C. 1983 as well as state law claims relating to his arrest and
incarceration in Spanish Fork, Utah County, Utah in July 1993. Defendants, who
are employees of the Utah County jail and sheriffs office, moved for dismissal of
the federal law claims under Fed. R. Civ. P. 12(b)(6) on the basis that the claims
were time-barred and, alternatively, for summary judgment. Although the district
court indicated there were material issues of fact that would preclude summary
judgment, it agreed with defendants that the statute of limitations had run on
plaintiffs federal law claims, and it granted their motion to dismiss. It also
dismissed plaintiffs state law claims without prejudice for lack of pendant
jurisdiction. Plaintiff appeals. Reviewing de novo the district courts dismissal
pursuant to Rule 12(b)(6),
see Sutton v. Utah State Sch. for the Deaf & Blind
173 F.3d 1226, 1236 (10th Cir. 1999), we affirm in part and reverse in part.
Plaintiff was arrested by a Spanish Fork police officer on July 26, 1993,
and charged by Spanish Fork and Utah County with driving a vehicle without
registration and insurance, operating a vehicle without a drivers license, and
providing false information to a police officer. He was incarcerated in the Utah
County jail until July 30. The charges filed against him by Utah County, which
plaintiff contends are the only ones at issue in this case, were dismissed on
September 27, 1994. In March 1996, plaintiff filed his first 1983 complaint
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against the present defendants plus others, and he voluntarily dismissed that
complaint in April 1997. He filed the instant complaint on March 11, 1998.
The district court held that the four-year statute of limitations provided by
Utah Code Ann. 78-12-25(3) applied to plaintiffs 1983 claims. Because the
court concluded that plaintiffs claims arose no later than July 30, 1993, it
determined that the statute expired on July 30, 1997, and that plaintiffs
subsequently filed complaint was too late. On appeal, plaintiff contends that his
claims are not barred by the statute of limitations because his claims matured
sometime after July 30, 1997; defendants fraudulently concealed facts necessary
to discovery of his claims; the limitations period was extended by the savings
provision of Utah Code Ann. 78-12-40; his claims did not arise until the
criminal charges were dismissed on September 27, 1994; and a longer limitations
period applies to his claims.
We agree with the district court that Utahs four-year limitations period
provided by Utah Code Ann. 78-12-25(3) applies to plaintiffs 1983 claims.
See Arnold v. Duchesne County , 26 F.3d 982, 983 (10th Cir. 1994). To determine
whether the statute has run on his claims, we must first determine what claims
plaintiff asserted in his complaint. In its decision, the district court did not
identify plaintiffs claims, and on appeal the parties disagree on what claims
plaintiff properly presented to the district court.
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Construing plaintiffs pleadings liberally because he appears pro se, as

he did in the district court,
see Haines v. Kerner , 404 U.S. 519, 520 (1972), we
conclude that plaintiff asserted the following claims: false arrest; false
imprisonment; deprivation of property without due process; a challenge to his
conditions of confinement; conspiracy; denial of equal protection, apparently
based on religious grounds; denial of right to counsel; infringement on freedom
of speech and religion; abuse of process; and malicious prosecution. Plaintiff
contends that he also asserted a fraud claim, but his mention of fraud in his papers
refers only to defendants allegedly fraudulent concealment of facts relating to his
claims and to their litigation tactics, and he did not assert a separate claim for
fraud. Defendants contend that he did not assert a claim for malicious
prosecution, but though he did not use that name, his complaint, liberally
construed, includes a malicious prosecution claim.
1
Moreover, in his responses to
Plaintiffs complaint stated that

The case of the State v. Philip Roberts was on 2 counts of False
Information in alleged violation of 53-5-217, for not giving up his
fingerprints and photograph based on a religious conviction and was
filed in August of 1993, in the Fourth Circuit Court in Spanish Fork,
Utah. and later dismissed on motion from the county attorney in the
interest of justice for good and sufficient cause on Sept 27th, 1994.
One could honestly say that their was a malicious Arrest and abuse of
the law.
R. Doc. 3 at 15 (sic generally). While we conclude this is sufficient for present

(continued...)
-4-
defendants motion to dismiss, he referred to a malicious prosecution claim,

including an argument supported by authority regarding when it matured for
statute of limitations purposes.
See R. Doc. 32 at 7.
Section 1983 claims arise when a plaintiff knows or should know that his
constitutional rights have been violated.
See Beck v. City of Muskogee , ___ F.3d
___, No. 98-7171, slip op. at 7 (10th Cir. Sept. 29, 1999). With the exception of
his malicious prosecution claim, all of plaintiffs claims relate to his arrest and
incarceration in late July 1993, and such claims are presumed to have accrued at
the time the actions occurred.
See Johnson v. Johnson County Commn Bd.
, 925
F.2d 1299, 1301 (10th Cir. 1991). Plaintiff has identified no legitimate reason
why he should not have known of the existence of these claims by the time his
incarceration ended. Because he voluntarily dismissed his first action before the
statute had run, he does not fall within the savings provision of Utah Code Ann.
78-12-40. Since he filed his complaint more than four years after his
incarceration ended, we agree with the district court that all of his claims except
for his malicious prosecution claim are time-barred.
Plaintiffs malicious prosecution claim is not time-barred, however. In
situations in which a 1983 plaintiff has been convicted and is challenging the
(...continued)
purposes to raise a claim of malicious prosecution, we express no opinion on
whether plaintiff has asserted all the requisite elements of such a claim.
1
-5-
prosecution leading to that conviction, a malicious prosecution claim does not

mature until the conviction has been invalidated.
See Heck v. Humphrey ,
512 U.S. 477, 486-87 (1994). We recently extended the
Heck rule to situations,
such as this one, in which a malicious prosecution claim relates to charges that
have been dismissed, holding that the claim ripens at the time the charges are
dismissed. See Beck , slip op. at 6. Because the charges against plaintiff were not
dismissed until September 1994, and he filed his complaint in March 1998, his
malicious prosecution claim is not barred by the statute of limitations.
Defendants implicitly argue that we should reject plaintiffs malicious prosecution
claim because he failed to allege pressure or influence by them on the prosecutor
as they contend is required to state a malicious prosecution claim.
See Taylor v.
Meacham , 82 F.3d 1556, 1564 (10th Cir. 1996). Because the district court did not
pass on the substance of this claim, we will not do so in the first instance on
appeal.
-6-
The judgment of the district court is AFFIRMED in part and REVERSED

in part, and the case is REMANDED to the district court for further proceedings
not inconsistent with this order and judgment. Defendants-appellees motion to
strike portions of plaintiff-appellants reply brief and supplemental appendix is
DENIED.
Entered for the Court
Wade Brorby
Circuit Judge
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F I L E D

UNITED STATES COURT OF APPEALS

United States Court of Appeals

ORDER AND JUDGMENT

Before BRORBY, EBEL , and HENRY , Circuit Judges.

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

therefore ordered submitted without oral argument.

Plaintiff Philip Roberts brought this action asserting a variety of claims

Construing plaintiffs pleadings liberally because he appears pro se, as

see Haines v. Kerner , 404 U.S. 519, 520 (1972), we

Moreover, in his responses to

Plaintiffs complaint stated that

R. Doc. 3 at 15 (sic generally). While we conclude this is sufficient for present

defendants motion to dismiss, he referred to a malicious prosecution claim,

See Beck v. City of Muskogee , ___ F.3d

See Johnson v. Johnson County Commn Bd.

prosecution leading to that conviction, a malicious prosecution claim does not

See Heck v. Humphrey ,

512 U.S. 477, 486-87 (1994). We recently extended the

Heck rule to situations,

The judgment of the district court is AFFIRMED in part and REVERSED

Entered for the Court

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