United States District Court, D. New Mexico
KENT E. GREENHALGH Plaintiff,
DR. MARK WALDEN, N.M. DEPT OF CORRECTIONS, GEO CORP. CLAYTON N.M. MEDICAL STAFF, Defendants.
MEMORANDUM OPINION AND ORDER
MATTER is before the Court under Fed.R.Civ.P. 12(b)(6) and 28
U.S.C. § 1915(e)(2)(B) on the Prisoner's Civil
Rights Complaint filed by Plaintiff Kent E. Greenhalgh on
October 4, 2017 (Doc. 1) (“Complaint”). The Court
will dismiss the Complaint as barred by the statute of
Kent Greenhalgh is a prisoner in the custody of the New
Mexico Corrections Department. Greenhalgh has a long history
of criminal charges and convictions for possession of
controlled substances, trafficking, and residential burglary
in the State of New Mexico. See State v. Greenhalgh,
State of New Mexico District Court Nos. D-1116-CR-2005-00666,
D-1329-CR-2012-00408, D-202-CR-2013-02771, and
D-202-CR-2015-01357. Greenhalgh is proceeding pro se and
in forma pauperis.
was incarcerated at the “Geo Prison” in Clayton,
New Mexico from “9-2008 to 1-2010”. (Doc. 1 at 1,
3). During the time he was incarcerated at the Clayton
facility, Greenhalgh suffered an injury to his left thumb and
requested a medical practitioner's help. (Doc. 1 at 3).
Greenhalgh alleges that he was seen by Defendant, Dr. Mark
Walden, on three occasions and, during each examination, was
subjected to a prostate exam by Dr. Walden. (Doc. 1 at 3-4).
Greenhalgh claims that the prostate examinations were
unnecessary and caused him to suffer physical and emotional
trauma. (Doc. 1 at 3). Greenhalgh complained about the
prostate examinations to Dr. Walden at the time of the
examinations. (Doc. 1 at 3). Greenhalgh seeks $118, 000 in
damages for each visit to Dr. Walden and “punitive
damages for future medical concerns plaintiff has due to lung
cancer.” (Doc. 1 at 4).
March 22, 2018 the Court entered an Order to Show Cause.
(Doc. 42). The Court stated that “[i]t appears on the
face of the Complaint and the record that Greenhalgh's
claims are barred by the applicable statute of
limitations.” (Doc. 8 at 1). The Court ordered
Greenhalgh to show cause within thirty days why the Complaint
should not be dismissed as untimely. (Doc. 8 at 2).
Greenhalgh did not respond to the Order to Show Cause.
Complaint is for civil rights violations under 42 U.S.C.
§ 1983. (Doc. 1 at 2). Greenhalgh's Complaint
alleges claims arising out of medical examinations by
healthcare provider Dr. Mark Walden in violation of
Greenhalgh's 8th Amendment constitutional
rights. (Doc. 1 at 2-9). Civil rights claims arising in New
Mexico under § 1983 are governed by the three-year
personal injury statute of limitations contained in
N.M.Stat.Ann. § 37-1-8 (1978). Varnell v. Dora
Consol. Sch. Dist., 756 F.3d 1208, 1212 (10th
Cir. 2014); Wilson v. Garcia, 471 U.S. 261, 269
37-1-8 applies to Greenhalgh's claims and bars personal
injury actions “not brought within three years of
accrual of the cause of action.” Maestas v.
Zager, 2007-NMSC-003, ¶ 15, 152 P.3d 141 (internal
quotation marks and citation omitted). The cause of action
accrues when “the plaintiff knows or with reasonable
diligence should have known of the injury and its
cause.” Maestas, 2007-NMSC-003, ¶ 18, 152
P.3d 141 (internal quotation marks and citation omitted);
Varnell, 756 F.3d at1216. The extent of the injury
is irrelevant to the analysis and, instead, the statute of
limitations commences as soon as the plaintiff has been
apprised of the general nature of the injury. Wallace v.
Kato, 549 U.S. 384, 391 (2007); Harvey v. United
States, 685 F.3d 939, 949 (10th Cir. 2012);
Bolden v. Village of Corrales, 111 N.M. 721, 722,
809 P.2d 635, 636 (Ct.App.1990).
pleading may be subject to dismissal when an affirmative
defense, such as statute of limitations, appears on the face
of the complaint or petition. Jones v. Bock, 549
U.S. 199, 214-15 (2007) (noting that a complaint may be
subject to dismissal under Rule 12(b)(6) when an affirmative
defense appears on its face); Vasquez Arroyo v.
Starks, 589 F.3d 1091, 1096 (10thCir. 2009).
In this case, it appears on the face of the Complaint that
the events giving rise to Greenhalgh's claim occurred,
and his cause of action accrued, more than three years prior
to filing of the Complaint. Greenhalgh specifically alleges
that the events giving rise to his claims took place between
September 2008 and January, 2010. (Doc. 3). The allegations
of the Complaint establish that Greenhalgh thought the
examinations were improper and complained to Dr. Walden about
them at the time of the examinations. (Doc. 1 at 3).
Greenhalgh's Complaint was not filed until October 4,
2017, more than seven years after he knew or should have
known of the wrongful events underlying his claims.
Maestas, 2007-NMSC-003, ¶ 18, 152 P.3d 141. On
the face of Greenhalgh's Complaint, his claims are barred
by the three-year statute of limitations of § 37-1-8.
Absent tolling of the statute of limitations,
Greenhalgh's claims are subject to dismissal as
time-barred. Varnell v. Dora Consol. Sch. Dist., 756
F.3d at 1212.
of tolling, like the limitation period, are determined by
state law in § 1983 actions. Wilson v. Garcia,
471 U.S. at 269; Sain v. City of Bend, 309 F.3d
1134, 1138 (9th Cir.2002); Varnell v. Dora Consol. Sch.
Dist., 756 F.3d at 1212-13. Under New Mexico law,
equitable tolling is a non-statutory tolling principle that
provides relief in cases when exceptional circumstances
beyond the plaintiff's control preclude filing suit
within the statute of limitations. See Snow v. Warren
Power & Mach., Inc., 2015-NMSC-026, ¶ 24, 354
P.3d 1285. “Generally, a litigant seeking equitable
tolling bears the burden of establishing two elements: (1)
that he has been pursuing his rights diligently, and (2) that
some extraordinary circumstance stood in his way.”
Slusser v. Vantage Builders, Inc., 2013-NMCA-073,
¶ 16, 306 P.3d 524 (internal quotation marks and
citation omitted). Exceptional circumstances require that a
plaintiff demonstrate “an extraordinary event beyond
his or her control.” Ocana v. Am. Furniture
Co., 2004-NMSC-018, ¶ 15, 91 P.3d 58; Little v.
Baigas, 2017-NMCA-027, ¶ 12, 390 P.3d 201, 207.
Court's Order to Show Cause directed “Greenhalgh to
show cause why the Complaint should not be dismissed as
time-barred, including addressing any arguments that
Greenhalgh may have for tolling of the statute of
limitations.” (Doc. 8 at 2) (emphasis added).
Greenhalgh did not respond to the Court's Order to Show
Cause. Greenhalgh's Complaint asserts that he reported
the events involving Dr. Walden to prison officials and was
informed that an investigation was underway. (Doc. 1 at 4-5).
He claims that “PREA and GEO failed Mr. Greenhalgh by
saying his claim was unfounded.” (Doc. 1 at 4).
Greenhalgh's allegations do not demonstrate that he was
diligent in pursing his rights or that any extraordinary
circumstance beyond his control prevented his filing of a
timely complaint. Little v. Baigas, 2017-NMCA-027,
¶ 12. There is no basis in the record for tolling of the
statute of limitations in this case and Greenhalgh's
claims are barred by the three-year statute of
limitations. Little v. Baigas, 2017 NMCA-027,
¶ 12, 390 P.3d at 207. The Court will dismiss
Greenhalgh's Complaint as time-barred. Jones v.
Bock, 549 U.S. at 214-15.
ORDERED that the Prisoner's Civil Rights Complaint filed
by Plaintiff Kent E. Greenhalgh on October 4, 2017 (Doc. 1)
is DISMISSED under Fed.R.Civ.P. 12(b)(6) and 28 U.S.C. §
1915(e)(2)(B) as barred by the statute of limitations.
Plaintiff Greenhalgh does not expressly
allege any state-law claims, but does mention the word
“tort.” (Doc. 1 at 5, ¶ 3). Any New Mexico
tort claims would be barred by the shorter, two-year statute