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.; 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.

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.)

ORDER AND JUDGMENT*

Before TACHA, EBEL, and BRISCOE, Circuit Judges.

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of these appeals. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The 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 violation of his constitutional rights. We have jurisdiction under 28 U.S.C. § 1291 and affirm the dismissal of both complaints.

In October and December 1987, Brelo filed separate pro se complaints against various prison officials alleging generally similar violations of his rights under the First, Eighth, and Fourteenth Amendments regarding free speech, excessive force, and treatment of medical needs. The complaints sought unidentified injunctive and declaratory relief and $6,000,000 in compensatory and punitive damages. The complaints were filed as separate cases and were assigned to different district judges. Defendants filed a combined Martinez report for both cases, and then moved for dismissal on various grounds and/or for summary judgment.

Following Brelo's response, the district court issued almost identical orders dismissing the two complaints. Because many of the individual claims involved allegations of unconstitutional conduct occurring more than two years prior to the filing of the complaints, the court held these claims 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 dismissed under 42 U.S.C. § 1997e. Finally, and apparently alternatively, the court determined that the allegations in Brelo's complaints were vague and conclusory and his claims did not rise to the level of constitutional violations. It therefore dismissed the complaints pursuant to 28 U.S.C. § 1915(e).

We review de novo the district court's determination 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 barred by the statute of limitations. His allegations, however, are conclusory 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 limitations should have been tolled because he suffers from post traumatic stress disorder is also unpersuasive. Oklahoma's two-year limitations period may be tolled 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 disability." Okla. Stat. tit. 12, § 96. Brelo never alleged or showed in the district court that 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 court thus correctly determined that Brelo's claims accruing more than two years prior to the time he filed his complaints, which comprise the majority of his claims, are barred.

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 considering Brelo's arguments and reviewing the record, we agree with the district court that these claims contain vague and conclusory allegations that do not rise to 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 on appeal are without merit. The judgments of the district court are AFFIRMED. All outstanding motions are DENIED. The mandate shall issue forthwith.

Entered for the Court

Mary Beck Briscoe

Circuit Judge

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 complaints, 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 claims, but his claims should be resolved on the evidence and not the pleadings.

Accordingly, I would REVERSE and REMAND this case.