United States District Court, D. New Mexico
MICHAEL A. SALAZAR, Plaintiff,
STATE OF NEW MEXICO, NEW MEXICO CORRECTIONS DEPARTMENT, NORTHEASTERN NEW MEXICO DETENTION CENTER, GEO-CORP., CORIZON, and DR. MARK E. WALDEN, Defendants.
MEMORANDUM OPINION AND ORDER DISMISSING
PLAINTIFF'S CIVIL RIGHTS COMPLAINT
Michael Salazar seeks damages following an alleged assault by
prison healthcare provider Dr. Mark Walden. See
PRISONER CIVIL RIGHTS COMPLAINT (Doc. No. 1) (Complaint).
Plaintiff is incarcerated, appears pro se, and is
proceeding in forma pauperis. See ORDER GRANTING
LEAVE TO PROCEED IN FORMA PAUPERIS (Doc. No. 5). After
reviewing the matter sua sponte under 28 U.S.C.
§ 1915(e)(2), the Court will dismiss the Complaint as
filed his Complaint on October 30, 2017. He alleges that on
October 18, 2011, he visited Dr. Mark Walden at the prison
medical unit for a routine physical exam. (Comp. at 2-3).
During the exam, Walden allegedly touched Plaintiff's
genitals without using gloves. Id. Plaintiff did not
report the incident at the time because he thought no one
would believe him. Id. Plaintiff later learned from
news reports and other inmates that Walden conducted the
exams for sexual gratification. Id. The Complaint
seeks unspecified money damages under 42 U.S.C. § 1983
and the Eighth and Fourteen Amendments. (Comp. at 2, 5).
Court screened the Complaint in accordance with 28 U.S.C.
§ 1915 and determined it may be time barred. Civil
rights claims arising in New Mexico under § 1983 are
governed by the three-year statute of limitations contained
in N.M.S.A. 1978 § 37-1-8 (1978). See Varnell v.
Dora Consolidated School District, 756 F.3d 1208, 1212
(10th Cir. 2014) (“[F]or § 1983 claims arising in
New Mexico the limitations period is three years, as provided
in New Mexico's statute of limitations for
personal-injury claims”). “A § 1983 action
accrues when facts that would support a cause of action are
or should be apparent.” Fogle v. Pierson, 435
F.3d 1252, 1258 (10th Cir. 2006) (internal quotation marks
omitted). Plaintiff alleges the injury occurred in 2011, six
years before he filed the Complaint. (Comp. at 2, 7).
MEMORANDUM OPINION AND ORDER TO SHOW CAUSE entered November
7, 2017 (Doc. No. 6), the Court directed Plaintiff to show
cause why the Complaint should not be dismissed. Plaintiff
filed a RESPONSE TO THE COURT'S MEMORANDUM OPINION AND
ORDER TO SHOW CAUSE on December 15, 2017 (Doc. No. 7)
(Response). Three months later, Plaintiff filed SUPPLEMENTAL
EXHIBITS TO THE COMPLAINT (Doc. No. 9) (Supplement), which
support his Response. Plaintiff appears to seek equitable
tolling because his informal grievance was pending during the
three-year limitation period. (Resp. at 2-3).
“[Q]uestions of tolling … are determined by
state law in § 1983 actions.” Varnell v. Dora
Consol. Sch. Dist., 756 F.3d 1208, 1212 (10th Cir.
2014). New Mexico law provides that the limitation period is
tolled while a prisoner is pursuing mandatory grievance
proceedings, but this tolling lasts only as long as the
grievance process “‘continue[s] in
force.'” Roberts v. Barreras, 484 F.3d
1236, 1243 (10th Cir. 2007) (quoting N.M. Stat. Ann. §
case, the three year limitation period started running on
October 18, 2011, when Walden committed the alleged abuse.
(Comp. at 2-3). On March 3, 2014 - with 229 days left in the
limitation period - Plaintiff filed his informal grievance,
thereby stopping the clock. (Resp. at 3). Plaintiff's
“Attachment 5” demonstrates that the grievance
was resolved on April 25, 2014, thereby restarting the clock.
(Supp. at 2). The three-year limitation period expired 229
days later on December 10, 2014. Plaintiff's 2017
Complaint is therefore time-barred.
argument that he is still waiting on results from a global
settlement does not change the result. (Resp. at 2-3; Supp.
at 1). Plaintiff's exhibits demonstrate he previously
submitted a claim and participated in a settlement involving
Walden, and that he now wishes to pursue his own individual
suit. (Supp. at 3-4). However, prison officials made it clear
that the internal grievance process would not “continue
in force” by virtue of that claim. The grievance
This is in response to your correspondence you filed
concerning the investigation of Dr. Walden. The issue is
currently under investigation and there will be no action
taken until it has been completed and resolved. Your name has
been included in that investigation process and once the
legal process is completed, the Court's decision will be
the relief granted to you.
Your complaint is considered resolved.
(Supp. at 2). Therefore, Plaintiff's participation in the
settlement did not extend the grievance process or otherwise
impact the statute of limitations applicable to this suit.
on the forgoing, the Court concludes that Plaintiff's
Complaint is time-barred. The Complaint must be dismissed
under 28 U.S.C. § 1915(e)(2) for failure to state a
claim upon which relief can be granted. See Jones v.
Bock, 549 U.S. 199, 215 (2007) (“If the
allegations, for example, show that relief is barred by the
applicable statute of limitations, the complaint is subject
to dismissal for failure to state a claim.”).
THEREFORE ORDERED that Plaintiffs PRISONER CIVIL RIGHTS
COMPLAINT (Doc. No. 1) is DISMISSED with prejudice under 28
U.S.C. § 1915(e)(2) for failure to state a claim upon
which relief can be granted.
FURTHER ORDERED that a separate JUDGMENT will be entered
disposing of this civil case.