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Rodriguez v. Serna

United States District Court, D. New Mexico

June 3, 2019



         THIS 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 PART.


         Plaintiff 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:[2]

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 Barcelo.
Count VII: Assault and Battery against Brandi Cordova, Ryan Cordova, Mario Caetano, John Waters, and Andy Romero.

         The fifteen defendants include Northern New Mexico College, the NNMC Board of Regents, and employees or officers thereof.

         This 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 motions.


         Federal 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.


         I. Statute of Limitations issues for § 1983 claims.

         Plaintiff asserted First Amendment retaliation claims against various Defendants. These Defendants moved to dismiss on the basis of the statute of limitations.

         A. Law on Statute of Limitations.

         In New 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).

         B. Equitable Tolling and Estoppel.

         Plaintiff 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).

         Equitable 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).

         The 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 146).

         C. Matthew Martinez and Patricia Trujillo (Doc. 129).

         Plaintiff 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.

         Plaintiff alleges that Defendant Trujillo retaliated against her by sending an email accusing her of being “unprofessional, inappropriate and targeting members of the Historias committee.”[3] 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 retaliatory action.

         Initially, 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.

         Alternatively, 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 of limitations.

         Therefore, the First Amendment claims (Counts II and III) are DISMISSED as to Defendants Patricia Trujillo and Matthew Martinez.

         D. Defendant Ricky Serna and Defendant Nancy Barcelo.

         Plaintiff 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.

         As to 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.

         II. Procedural Due Process Claim (Count IV).

         Plaintiff 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.

         To 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. 2016).

         In 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 Bailey.[4]

         Similarly, 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 ...

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