Charles J. Czemerynski, Plaintiff-appellant, v. Bill Wilson, Superintendent of the Centennial Correctionalfacility; Carlos Baca, Assistant Superintendent of Thecentennial Correctional Facility; Lieutenant Mormon,lieutenant of the Centennial Correctional Facility; Andofficer Strong, Control Center Operator of the Centennialcorrectional Facility, Defendants-appellees, 986 F.2d 1427 (10th Cir. 1993)

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); 10th Cir.R. 34.1.9. The cause is therefore ordered submitted without oral argument.

Mr. Czemerynski, a state inmate, commenced a pro se § 1983 action against several penitentiary officials. The district court held the action was barred by the applicable state statute of limitations. Mr. Czemerynski, while confined in a Colorado penitentiary, was stabbed fifteen times by a fellow inmate on April 13, 1986. Mr. Czemerynski commenced his suit on April 22, 1992, approximately six years later, alleging the defendants could have prevented the stabbing and their failure to do so constituted a constitutional violation.

The applicable statute of limitations in a § 1983 action is that of the state in which the federal court is located. Board of Regents v. Tomanio, 446 U.S. 478, 483-84 (1980). In this case, the state law to be applied is that of Colorado. The then existing statute of limitations was Colo.Rev.Stat. § 13-80-108(1) (b) (1973), which provided the action must be brought within three years after the cause of action accrued. See McKay v. Hammock, 730 F.2d 1367, 1370 (1984).

Mr. Czemerynski concedes the applicability of this law but asserts: (1) as he was in prison he was under a legal disability; (2) he was barred from timely commencing this action due to his fear of retaliation by prison officials; (3) the statute of limitations does not apply as the prison officials knew of the risks of assault and took no action to prevent it; and (4) the trial court should have dismissed the action without prejudice with each party to pay their own costs.

Mr. Czemerynski cites several cases holding an inmate is under a legal disability. These cases are not applicable as all involve Kansas law. Colorado law has no provision tolling a statute of limitations for inmates.

Mr. Czemerynski's fears of retaliation are insufficient to toll the statute of limitations. Mr. Czemerynski filed an affidavit stating he is "a sanctioned inmate representative" and he has personal knowledge of incidents that he would testify about at an evidentiary hearing. Conclusory allegations are insufficient. Claims of retaliation must assert something more than fear and must allege specific incidents involving who, what, when, and where.

Mr. Czemerynski's remaining contentions merit no discussion.

The judgment of the district court is AFFIRMED. The mandate shall issue forthwith.