United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS' MOTIONS TO DISMISS
MATTER comes before the Court upon ten motions to dismiss
filed by Defendants on October 19, 2018 (Docs.
81-82) and April 18, 2019 (Docs.
125-132). Having reviewed the parties' pleadings
and the applicable law, the Court finds that Defendants'
motions are well-taken in part and, therefore, are
GRANTED IN PART and DENIED IN
was an adjunct faculty member at Northern New Mexico College.
She alleges that she was retaliated against after she began
questioning alleged financial improprieties and misuse of
federal grant money, violating her First Amendment and Due
Process rights. She also alleges that Defendants violated New
Mexico's Inspection of Public Records act, and improperly
claimed copyrights to take down her website that exposed
NNMC's improprieties, in violation of the Digital
Millennium Copyright Act. The claims and relevant Defendants
are as follows:
Count I: Inspection of Public Records Act
(“IPRA”) Violations against NNMC, Brandi Cordova,
Ricky Serna, Trujillo, Martinez, Sena.
Count II: Deprivation of First Amendment Speech Rights,
against NNMC, the NNMC Board of Regents, Patricia Trujillo,
Matthew Martinez, Nancy “Rusty” Barcelo, Ricky
Serna, Bernie Padilla, Pedro Martinez, Brandi Cordova, Ryan
Cordova, and Rick Bailey.
Count III: Deprivation of First Amendment Rights of Free
Association, against NNMC, Brandi Cordova, Rusty Barcelo,
Ricky Serna, and Ricky Bailey.
Count IV: Deprivation of Due Process Rights, against NNMC,
Ricky Serna, and Rick Bailey.
Count V: Violation of the Digital Millennium Copyright Act
(“DMCA”) against Ricky Serna.
Count VI: Common Law Libel, Slander, and Defamation against
Patricia Trujillo, Matthew Martinez, Ricky Serna, and Rusty
Count VII: Assault and Battery against Brandi Cordova, Ryan
Cordova, Mario Caetano, John Waters, and Andy Romero.
fifteen defendants include Northern New Mexico College, the
NNMC Board of Regents, and employees or officers thereof.
case was removed from the Second Judicial District,
Bernalillo County, New Mexico, on November 17, 2017.
Doc. 1. All Defendants filed motions to
dismiss asserting qualified immunity and statute of
limitations issues, and asserting that Plaintiff failed to
state a claim as a matter of law pursuant to Fed.R.Civ.P.
12(b)(6). Plaintiff agreed to voluntarily dismiss without
prejudice her claims against Defendant Anthony Sena and
Bernie Padilla. Therefore, the Court will not address those
Rule of Civil Procedure 12(b)(6) allows a party to move for
dismissal of a case for failure to state a claim upon which
relief can be granted. Rule 8(a)(2), in turn, requires a
complaint to contain “a short and plain statement of
the claim showing that the pleader is entitled to
relief.” Thus, “[t]o survive a motion to dismiss,
a complaint must contain sufficient factual matter, accepted
as true, to ‘state a claim to relief that is plausible
on its face.'” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)). Although a court must accept all
the complaint's factual allegations as true, the same is
not true of legal conclusions. See Id. Mere
“labels and conclusions” or “formulaic
recitation[s] of the elements of a cause of action”
will not suffice. Twombly, 550 U.S. at 555.
Statute of Limitations issues for § 1983
asserted First Amendment retaliation claims against various
Defendants. These Defendants moved to dismiss on the basis of
the statute of limitations.
Law on Statute of Limitations.
Mexico, the limitations period for § 1983 actions is
three years. Varnell v. Dora Consol. Sch. Dist., 756
F.3d 1208, 1212 (10th Cir. 2014). “[I]f the
allegations, taken as true, show the requested relief is
barred by the statute of limitations, dismissal for failure
to state a claim is proper. The statute of limitations
defense, however, must be patently clear from the face of the
complaint or rooted in adequately developed facts.”
Graham v. Taylor, 640 Fed.Appx. 766, 768-69 (10th
Cir. 2016) (internal citations and quotation marks omitted).
Where the statute of limitations violation is clear on the
face of the complaint, Plaintiff bears the burden of
establishing a factual basis for tolling or estoppel.
Chrisco v. Holubek, 711 Fed.Appx. 885, 888 (10th
Cir. 2017); see also Aldrich v. McCulloch Properties,
Inc., 627 F.2d 1036, 1041 n. 4 (10th Cir. 1980)
(“While the statute of limitations is an affirmative
defense, when the dates given in the complaint make clear
that the right sued upon has been extinguished, the plaintiff
has the burden of establishing a factual basis for tolling
the statute.”) (citations omitted).
Equitable Tolling and Estoppel.
argues that the statute of limitations should be tolled or
estoppel should apply. Generally, state law governs
limitations and tolling issues for § 1983 claims and
federal law determines accrual. Fratus v. Deland, 49
F.3d 673, 675 (10th Cir.1995).
tolling of the statute of limitations must be determined on a
case by case basis. Gardner v. Prison Health Servs.,
Inc., 985 F.Supp. 1257, 1258 (D. Kan. 1997).
“Generally, equitable tolling requires a litigant to
establish two elements: (1) that he has been pursuing his
rights diligently, and (2) that some extraordinary
circumstance stood in his way.” Yang v.
Archuleta, 525 F.3d 925, 928 (10th Cir.2008) (quotations
omitted). Conduct by a defendant may qualify as an
extraordinary event. See Roberts v. Barreras, 484
F.3d 1236, 1241 (10th Cir.2007) (applying New Mexico law)
(equitable tolling “typically applies in cases where a
litigant was prevented from filing suit because of an
extraordinary event beyond his or her control”).
Equitable tolling may be appropriate where “the
defendant has actively misled the plaintiff respecting the
cause of action, or where the plaintiff has in some
extraordinary way been prevented from asserting his rights.
Million v. Frank, 47 F.3d 385, 389 (10th Cir. 1995).
Such “extraordinary event[s] include conduct by a
defendant that caused the plaintiff to refrain from filing an
action during the applicable period.” Roberts v.
Barreras, 484 F.3d 1236, 1241 (10th Cir. 2007) (applying
New Mexico law).
doctrine of equitable estoppel applies where a party has
“(1) made a statement or action that amounted to a
false representation or concealment of material facts, or
intended to convey facts that are inconsistent with those a
party subsequently attempts to assert, with (2) the intent to
deceive the other party, and (3) knowledge of the real facts
other than conveyed” and the other party does
“(1) not know the real facts, and (2) change[s] his or
her position in reliance on the estopped party's
representations.” Blea, 2005-NMSC-029, ¶
20, 138 N.M. 348');">138 N.M. 348, 120 P.3d 430 (citing Lopez v.
State, 1996-NMSC-071, ¶ 18, 122 N.M. 611, 930 P.2d
Matthew Martinez and Patricia Trujillo (Doc.
did not plead that Defendants Matthew Martinez or Patricia
Trujillo took any action against her within the three-year
statute of limitations. Therefore, as Plaintiff admits, she
has the burden of asserting some factual basis for tolling or
estopping the statute of limitations, because the statute of
limitations violation appears on the face of the complaint.
alleges that Defendant Trujillo retaliated against her by
sending an email accusing her of being “unprofessional,
inappropriate and targeting members of the Historias
committee.” Doc. 73, ¶ 26(b).
She alleges that Defendant Trujillo was potentially involved
in her contract not being renewed in April or May 2014.
Id. ¶ 27. Plaintiff does not
allege that Defendant Trujillo was involved in any other
the Court notes that equitable estoppel does not appear to
apply, because she does not allege that Defendants'
actions caused her to refrain from filing an action until
after the limitations period has expired. She does not point
to any actions by Defendant Trujillo or Matthew Martinez that
justify tolling the statute of limitations or applying
estoppel. Rather, she states she met with Dr. Bailey in
January 2017, and he said he would do a top down review. But
she does not allege or argue that Defendant Bailey made her
any promises or made any statements that would cause her to
forbear filing a suit. In re Drummond,
1997-NMCA-094, ¶ 13, 123 N.M. 727, 945 P.2d 457. This is
the same for her equitable tolling argument. Roberts v.
Barreras, 484 F.3d 1236, 1242 (10th Cir. 2007) (New
Mexico equitable tolling only applies when the defendant is
prevented from filing throughout the entire length of the
statutory period), citing Tomlinson v. George, 138
N.M. 34, 116 P.3d 105, 111 (2005) (“[I]f a plaintiff
discovers the injury within the time limit, fraudulent
concealment does not apply because the defendant's
actions have not prevented the plaintiff from filing the
claim within the time period and the equitable remedy is not
necessary.”). Therefore, it appears that
Plaintiff still had time to file an action within the statute
of limitations. This is the same for her incapacitation
argument, in which she appears to admit she was not
incapacitated when the statute of limitations period ran.
the Court finds there are no extraordinary circumstances that
would toll or estop the statute of limitations as to
Defendant Trujillo and Matthew Martinez. Plaintiff now argues
that the Court should assume that the Defendants acted in
concert or in a conspiracy to hide the claims. But she did
not plead this allegation in her First Amendment Complaint.
Rather, as to Defendant Trujillo, she knew about her
retaliatory actions as early as February 2014, or as late as
April or May 2014. Even assuming they acted in concert with
Dr. Bailey, his statement to do a top down review does not
qualify as an extraordinary circumstance to toll the statute
the First Amendment claims (Counts II and III) are
DISMISSED as to Defendants Patricia Trujillo
and Matthew Martinez.
Defendant Ricky Serna and Defendant Nancy
alleges that she does not seek to hold Defendant Serna or
Defendant Barcelo liable for any First Amendment Retaliatory
conduct (Count II) that occurred prior to November 2014.
Defendant Barcelo did not address this argument, while
Defendant Serna in his reply appears to have dropped his
statute of limitations argument as to conduct occurring after
November 2014. Therefore, the Court cannot conclude that any
statute of limitations violation is clear on the face of the
complaint, or that there are no set of facts which could
assert a viable claim.
the due process claim, neither Defendant Serna nor Plaintiff
appears to have addressed when her due process claim accrues.
Defendant appears to argue that Plaintiff's due process
claim accrued as late as May or June 2014, when her contract
was not honored and she filed her grievances. However, her
due process claim is predicated in part on the college's
inaction on her grievances. It is unclear when she should
have realized her due process claim accrued, i.e., when she
should have realized Defendant Serna would ignore her
grievances. Therefore, it is unclear on the face of the
complaint when her due process claim accrued, and dismissal
is not appropriate.
Procedural Due Process Claim (Count IV).
argues that her procedural due process rights were violated
when Defendant Bailey and Defendant Serna failed to honor her
employment contract or act on her grievances.
establish a procedural due process claim, Plaintiff must
plausibly allege “(1) a constitutionally cognizable
liberty or property interest, (2) a deprivation of this
interest, and (3) a lack of constitutionally adequate notice
and a hearing.” Martin Marietta Materials, Inc. v.
Kansas Dept. of Transp., 810 F.3d 1161, 1172 (10th Cir.
January 2017, Plaintiff met with Defendant Bailey and she
alleges he stated he would do a top down review of her
grievances, which were submitted to the college in May 2014
but unaddressed. She received no follow up from Defendant
Bailey. Defendant Bailey's sole ground for dismissal is
that the grievances from 2014 are too old, and Plaintiff
cannot raise them again with Dr. Bailey. The Court notes
these grievances are based on a failure to honor an alleged
executed employment contract. Defendant did not cite to any
law to support this claim, therefore the Court declines to
dismiss Plaintiff's procedural due process claim against
Defendant Serna wrote one paragraph on the due process issue,
without citing to any case law. Plaintiff alleged that she
had a property interest in her employment contract, which was
signed and executed, but Defendant Serna refused to honor it.
She also filed eight grievances, which she asserts were
unaddressed. The Court finds Defendant Serna's motion
insufficient to shift the ...