FILED
                                                      United States Court of Appeals
                       UNITED STATES COURT OF APPEALS         Tenth Circuit

                                FOR THE TENTH CIRCUIT                     September 25, 2017

                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
REJEANIA LOUISE MILLER,

       Plaintiff - Appellant,

v.                                                           No. 16-6289
                                                      (D.C. No. 5:14-CV-01124-R)
TRACY FORD; JACQUELINE                                       (W.D. Okla.)
GARRETT-KING; RICKEY W.
MOHAM, Warden presiding in lieu of
previous Warden; MILLICENT
NEWTON-EMBRY,

       Defendants - Appellees.


                                ORDER AND JUDGMENT*


Before PHILLIPS, McKAY, and McHUGH, Circuit Judges.
                   _________________________________

       This is a pro se §1983 civil rights appeal. Plaintiff Rejeania Miller was an inmate

at the Mabel Bassett Correctional Center (MBCC) in McCloud, Oklahoma. (Plaintiff has

since been transferred.) Plaintiff filed a complaint in October 2014 against several

MBCC employees. Plaintiff presented several claims, stemming from incidents—some

quite serious, some less so—that allegedly occurred between 2010 and 2012.

       *
         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 This order and judgment is not binding precedent,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. It may
be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and
10th Cir. R. 32.1.
       The case was referred to a magistrate judge, who screened Plaintiff’s complaint

sua sponte pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b). The magistrate judge

issued a Report and Recommendation (R&R), recommending that the complaint be

dismissed for failure to state a claim because Plaintiff’s claims were barred by the statute

of limitations. Plaintiff filed an objection and an amended complaint. After reviewing

the amended complaint, the magistrate judge made the same recommendation for the

same reason: dismissal, because the claims were time-barred. The district court adopted

the recommendation and dismissed the case. Plaintiff filed this timely appeal.

       “Like dismissals under Rule 12(b)(6), we review de novo a district court’s sua

sponte dismissal pursuant to 28 U.S.C. § 1915(e)(2) in an in forma pauperis proceeding.”

Vasquez Arroyo v. Starks, 

, 1094 (10th Cir. 2009). Under § 1915(e)(2), the

district court “shall dismiss the case at any time if the court determines that . . . the action

. . . fails to state a claim on which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).

However, the “district court may not sua sponte dismiss a prisoner’s § 1983 action on the

basis of the statute of limitations unless it is clear from the face of the complaint that

there are no meritorious tolling issues, or the court has provided the plaintiff notice and

an opportunity to be heard on the issue.” Vasquez 

(emphasis

added). “When a district court believes it is likely that a pro se prisoner’s § 1983

complaint is dismissible on the basis of the state’s statute of limitations, the court may

[give] the plaintiff an opportunity to explain why the statute of limitations should be

tolled.” 

Plaintiff’s complaint was clearly not filed within the two-year statute of

limitations. See McCarty v. Gilchrist, 

, 1289 (10th Cir. 2011) (“The statute

of limitations period for a § 1983 claim is dictated by the personal injury statute of

limitations in the state in which the claim arose . . . and in Oklahoma, that period is two

years. 12 Okla. Stat. tit. 12, § 95(A)(3).” (internal citation omitted)). However, the

complaint does not on its face foreclose the possibility of equitable tolling. Thus, the

court was required to provide Plaintiff with notice and an opportunity to explain why the

statute of limitations should be tolled before dismissing the complaint for failure to state a

claim under § 1915(e)(2). The court fulfilled this requirement; Plaintiff was provided

with such an opportunity. In the first R&R, the magistrate judge advised Plaintiff of her

right to file an objection, and specifically noted that “Plaintiff may present any arguments

she has for tolling of the statute of limitations and, at that time, provide any documents or

other evidence that would support those arguments.” Miller v. Ford, No. CIV-14-1124-R

(W.D. Okla. Nov. 26, 2014). As noted above, Plaintiff filed an objection and, shortly

thereafter, an amended complaint. Neither, however, was responsive to this instruction.

       Out of an abundance of caution, and construing the amended complaint liberally,

the magistrate judge nonetheless addressed an argument for equitable tolling for the time

Plaintiff spent exhausting her administrative remedies. There were two problems with

this potential argument: First, Oklahoma law, which governs, permits tolling only in

limited situations, none of which are applicable. Second, even if Oklahoma law did

permit tolling under these circumstances, Plaintiff’s claims would still be untimely. On



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appeal, Plaintiff does not present any arguments against these dual determinations. Nor

do we, reviewing them de novo, find any fault.

       Plaintiff also sought to enjoin future violations of the constitutional and natural

rights of female inmates at MBCC. The magistrate judge recommended dismissing this

claim because, among other reasons, Plaintiff failed to allege an ongoing problem. Since

the filing of the complaint, Plaintiff has been transferred from MBCC. “When a prisoner

files suit against prison officials who work in the institution in which he is incarcerated,

seeking declaratory and injunctive relief on the basis of alleged wrongful conduct by

those officials, and then that prisoner is subsequently transferred to another prison or

released from the prison system, courts are presented with a question of possible

mootness.” Jordan v. Sosa, 

, 1027 (10th Cir. 2011). “Mootness is a

threshold issue because the existence of a live case or controversy is a constitutional

prerequisite to federal court jurisdiction. Moreover, this requirement exists at all stages

of federal judicial proceedings, and it is therefore not enough that the dispute was alive

when the suit was filed.” Ind v. Colo. Dep’t of Corr., 

, 1213 (10th Cir.

2015) (internal quotation marks, citation, and brackets omitted). “Where the prisoner’s

claims for declaratory or injunctive relief relate solely to the conditions of confinement at

the penal institution at which the prisoner is no longer incarcerated, courts have

concluded that they are unable to provide the prisoner with effective relief.” 

. That is the case here. We, therefore, dismiss this claim as moot.




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      Accordingly, we AFFIRM the district court’s order. We GRANT Plaintiff’s

motion to proceed in forma pauperis.

                                             Entered for the Court



                                             Monroe G. McKay
                                             Circuit Judge




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