Mercer-Smith v. New Mexico Children, Youth & Families Department , 416 F. App'x 704 ( 2011 )

FILED
United States Court of Appeals
Tenth Circuit
March 21, 2011
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
JAMES ALISTAR MERCER-SMITH;
JANET MERCER-SMITH,
Plaintiffs-Appellants,
v. No. 10-2053
NEW MEXICO CHILDREN, YOUTH (D.C. No. CIV-09-00340-JEC)
AND FAMILIES DEPARTMENT, (D. N.M.)
Defendant,
and
DEBORAH HARTZ; MARY DALE
BOLSON; DORIAN DODSON;
REBECCA LIGGETT; ANGELA
DOMINGUEZ; ROLAND TRUJILLO;
CARMELLA ALCON; VERONICA
VALLEJOS; LOU ANN HOEPPNER;
TERESA VIGIL; FLORA ARAGON;
KIMBERLY CRESPIN; BETH
REICH, all in their individual and
official capacities,
Defendants-Appellees.
ORDER AND JUDGMENT *
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
Before BRISCOE, Chief Judge, EBEL and O’BRIEN, Circuit Judges.
Plaintiffs James Mercer-Smith and Janet Mercer-Smith appeal from the
district court’s grant of the individual defendants’ motion to dismiss and
defendant Dr. Beth Reich’s motion for summary judgment. We have jurisdiction
pursuant to 28 U.S.C. § 1291 and affirm.
I
Factual Background
Dr. James Mercer-Smith and Dr. Janet Mercer-Smith, both of whom work
at the Los Alamos National Laboratory in New Mexico, have three daughters,
Julia, Rachel, and Alison. The Mercer-Smiths adopted Julia in 1987. During the
adoption proceedings, Janet gave birth to Rachel, who is eight months younger
than Julia. In 1992, Janet gave birth to Alison.
In 1989, when Julia was two or three years old, she began having
significant behavioral problems that required treatment by medical professionals.
While Julia received professional counseling, a former babysitter and Janet
Mercer-Smith’s mother began claiming that James Mercer-Smith had sexually
abused his daughters. In 1989 and again in 1992, Janet’s mother complained to
the New Mexico Children Youth and Families Department (“CYFD”) regarding
James’ alleged sex abuse. CYFD investigated these allegations and ultimately
concluded that Janet’s mother’s allegations were “unsubstantiated” and
2
“unconfirmed.” ROA Vol. 1, at 43–44.
In 2000, then twelve-year old Rachel required medical treatment for major
depression. The Mercer-Smiths took Rachel to Dr. Beth Reich, who placed
Rachel on anti-depressant medication. Rachel’s condition began to worsen,
however, and the Mercer-Smiths became concerned that she was having suicidal
thoughts. The Mercer-Smiths again contacted Dr. Reich, who made arrangements
to have Rachel admitted to the psychiatric ward of an area hospital. While in the
hospital, Rachel attended group therapy sessions and began taking different
medication. Although Rachel denied that she had ever been the victim of sexual
abuse, the attending physician recommended that she reside with her nanny
because he believed “parental stress might be contributing to [her] condition.” Id.
at 44. The Mercer-Smiths agreed to this course of action, and in late January
2001, Rachel was released from the psychiatric ward and placed in the custody of
her nanny.
On February 7, Rachel’s nanny called the Mercer-Smiths and told them that
Rachel was having another psychiatric episode. The Mercer-Smiths immediately
took Rachel back to Dr. Reich, who discussed with them the 1990 and 1992
allegations of sexual abuse. Dr. Reich then met with Rachel and Julia together
and asked them if their father had ever sexually abused them. Rachel and Julia
“did not recall any actual sexual abuse.” Id. “During the drive home with their
3
nanny, however, the girls 1 . . . became concerned that they may have been
sexually abused by [their father] as children.” Id. The nanny and the children
immediately returned to Dr. Reich’s home, where the girls “reported memories . .
. that when they were ages four to seven, they would sometimes get into bed at
night with [their father] . . . and [he] would touch them all over including their
private parts.” Id. at 45.
Dr. Reich contacted CYFD that night. A few hours later, at about 3:30
a.m., CYFD representatives went to the Mercer-Smiths’ home, spoke with the
family, and removed Alison (then eight years old) from the home and placed her
with the nanny pending further investigation. On February 20, CYFD officials
conducted interviews of all three daughters at a “safe house.” There, Julia and
Rachel told the medical examiner that their father touched them in inappropriate
ways. Alison, however, denied that her father ever engaged in such conduct with
her. 2
In March 2001, Julia was referred to a second psychiatrist, who conducted
five therapy sessions with her. He found Julia to be “untruthful and manipulative
and did not believe her sexual abuse claims.” Id. He was later removed from the
1
The record is not clear on this issue, but it appears that Julia was also
living with the nanny during this time.
2
Shortly after taking Alison to a safe house, CYFD released her to the
custody of her parents. Unlike Julia and Rachel, CYFD never obtained custody of
Alison.
4
case by CYFD, and Dr. Reich was reinstated as the girls’ psychiatrist. Following
additional therapy, Dr. Reich reported that Julia and Rachel recalled memories
indicating that they might have been raped by their father.
James Mercer-Smith “categorically denied ever touching any of his
daughters in an inappropriate manner.” Id. at 46. Nonetheless, James submitted
to psychological testing, including an Abel Screen and a Penile Plethysmography.
“Neither of these laboratory tests indicated that [James] was sexually attracted to
children.” Id. In addition, the psychiatrist who examined him concluded that
there was no evidence that he suffers from pedophilia.
During the investigation period, CYFD hired an independent psychologist
to render an opinion regarding Julia and Rachel’s situation. The independent
psychologist reviewed Janet’s mother’s allegations of sexual abuse in 1990 and
1992, each psychiatric evaluation of Julia and Rachel, and the results of James’
psychological tests. He also conducted follow-up interviews with every member
of the Mercer-Smith family, their nanny, and the other psychologists who worked
with them. The independent psychologist ultimately concluded that “except for
the claims of [Julia] and [Rachel], there [was] no evidence to support the
allegations of sexual abuse” against James Mercer-Smith. Id. He therefore
recommended that CYFD “facilitate a process of reconciliation and reunifying the
family as soon as possible.” Id.Despite this report, CYFD moved forward with child custody hearings in
5
New Mexico state court, including possible criminal charges against James for
child sexual abuse. A few weeks before the hearing, Julia and Rachel’s nanny
informed the Mercer-Smiths that the girls did not want to testify in court. After
being told she would have to testify, Rachel apparently “took a large overdose of
ibuprofen requiring her stomach to be pumped at the hospital.” Id. at 47. The
nanny also told the Mercer-Smiths that she was fearful Julia “might harm herself
or run away to avoid testifying.” Id.On August 30, 2001, James Mercer-Smith entered a plea of no-contest to
the charge that he “touched his children Julia and Rachel in a way that made them
feel uncomfortable and which they reasonably perceived as sexual.” ROA Vol. 2,
at 36. Janet also entered a plea of no contest on the charge that she “knew or
should have known that her husband . . . touched . . . Julia and Rachel in a way
that made them feel uncomfortable and which they reasonably perceived as sexual
and she did not take reasonable steps to protect [them] . . . from further harm.”
Id. at 37. The Mercer-Smiths allege they pled no contest to these charges because
their daughters did not wish to testify and because a psychologist recommended
they not confront the girls on this matter. The state court accepted James and
Janet’s no-contest pleas, determined that Julia and Rachel were “abused
children,” and ordered the state to take legal custody of the children “for an
indeterminate period [of] up to two years.” Id. at 38.
For much of the two year period in which the Mercer-Smiths lost custody
6
of Julia and Rachel, the girls were placed in the Casa Mesita Group Home. Gay
Farley, the former executive director of the home, and Jennifer Schmierer, a
former counselor at the home, both worked with Julia and Rachel at Casa Mesita.
In June 2003, CYFD petitioned the state court to approve a proposed plan to
transfer Julia to foster care with the Schmierer family and Rachel to foster care
with the Farley family. The Mercer-Smiths opposed this plan because placement
with these families would create an improper counselor/patient relationship and
because these families were opposed to reunification of the Mercer-Smith family.
The state court denied CYFD’s motion in November 2003. The court cited
to the Code of Ethics for Occupational and Professional Licensing, Counselors,
and Therapists, which provides that “licensed or registered individuals shall not
enter into a sexual or other dual relationship with a client.” ROA Vol. 1, at 60.
The state court concluded that because Gay Farley and Jennifer Schmierer had
counseled with Julia and Rachel at the Mesita Group Home, they were not eligible
to act as the girls’ foster parents. CYFD later obtained the court’s consent to
place Julia and Rachel in the home of the Ritter family, a family that was willing
and able to serve as a foster family for the girls. 3
Over the next several months, the Mercer-Smiths became suspicious that
their daughters were actually living with the Farley and Schmierer families, rather
3
As far as the record indicates, the Mercer-Smiths did not object to having
their daughters placed in the Ritters’ home.
7
than with the Ritters. On July 29, 2004, the Mercer-Smiths filed a motion to hold
CYFD and a number of its employees in contempt of court for ignoring the state
court’s order regarding placement of the children. In their motion, the Mercer-
Smiths alleged CYFD had “created a sham to mask” the fact that the Farleys and
Schmierers were acting as the true foster parents of Rachel and Julia. ROA Vol.
2, at 168.
On January 3, 2008 (more than three years after the Mercer-Smiths filed
their contempt motion and after Julia and Rachel attained the age of majority), the
state court determined that CYFD had violated the court’s order (1) by permitting
the Farleys and Schmierers to “continue . . . providing transportation to and from
school for the girls, taking Rachel to dance class, and Julia to Santa Fe for her
therapy”; and (2) by asking the Ritters to “provide a place for [the girls] to sleep,
with minimal oversight required.” ROA Vol. 1, at 78. The state court further
stated that “[t]he designation by CYFD of the Ritters as ‘foster parents’ was done
deliberately by CYFD for the purposes of concealing from the Court and James
and Janet Mercer-Smith the fact that Jennifer and Eric Schmierer served the
function of being foster parents for Julia . . . and [that] Gay and Dwain Farley
served the function of being foster parents for Rachel.” Id. at 87.
Procedural History
On April 7, 2009, the Mercer-Smiths filed suit in the district court against
CYFD; CYFD employees Deborah Hartz, Mary-Dale Bolson, Dorian Dodson,
8
Rebecca Liggett, Angela Dominguez, Roland Trujillo, Carmella Alcon, Veronica
Vallejos, Lou Ann Hoeppner, Teresa Vigil, Flora Aragon, and Kimberly Crespin 4
(“the individual defendants”); and Dr. Beth Reich. The Mercer-Smiths named the
individual defendants and Dr. Reich in their individual and official capacities.
The Mercer-Smiths alleged the following claims against all defendants: (1)
violation of 42 U.S.C. § 1983 (count I); (2) civil conspiracy under 42 U.S.C. §
1985 (count II); (3) continuing violations under § 1983 and § 1985 (count III); (4)
negligence, defamation, malicious abuse of process, professional negligence, and
medical malpractice under the New Mexico Tort Claims Act (count IV); state
common law claims for intentional infliction of emotional distress, invasion of
privacy, defamation, professional negligence, negligence, medical malpractice,
and malicious abuse of process (count V); and compensatory and punitive
damages (count VI). 5
On February 8, 2010, the district court granted the individual defendants’
Motion for Qualified Immunity and to Dismiss and dismissed counts I, III, IV,
and V without prejudice. The district court did so because “[a]ll claims against
the State Defendants . . . appear to have expired under the applicable statute of
4
Veronica Vallejos and Lou Ann Hoeppner were never served with process,
and they have not made appearances in this case. The parties agree that Vallejos
and Hoeppner are now non-parties to this action.
5
Count VI is the only count the district court did not ultimately dismiss.
The parties agree, however, that compensatory and punitive damages are
remedies, not causes of action.
9
limitations.” ROA Vol. 1, at 239.
Also on February 8, the district court granted Dr. Reich’s motion for
summary judgment on the Mercer-Smiths’ § 1983 claim (counts I and III). The
court granted the motion and dismissed these claims with prejudice because (1)
the Mercer-Smiths had not brought forth evidence indicating that Dr. Reich
violated their § 1983 rights; (2) Dr. Reich is immune from suit; (3) Dr. Reich is
not a state actor and therefore not liable under § 1983; and (4) the statute of
limitations bars the Mercer-Smiths’ § 1983 claim against Dr. Reich. The district
court also sua sponte dismissed with prejudice the Mercer-Smiths’ claims under
the New Mexico Tort Claims Act (count IV), and it dismissed without prejudice
their claims under New Mexico common law (count V).
The Mercer-Smiths timely appealed the district court’s grant of the
individual defendants’ motion to dismiss and Dr. Reich’s motion for summary
judgment.
II
Standard of Review
The court reviews both the grant of a motion to dismiss and the grant of a
motion for summary judgment under a de novo standard. PJ v. Wagner, 603 F.3d
1182, 1192–93 (10th Cir. 2010); Christy Sports, LLC v. Deer Valley Resort Co.,
Ltd., 555 F.3d 1188, 1191 (10th Cir. 2009).
10
Analysis
A. The Individual Defendants’ Motion to Dismiss
The Mercer-Smiths argue the district court erred in dismissing their § 1983
claim and state claims against the individual defendants. We address the federal
claim and the state claims in turn.
1. Section 1983
The district court held that the Mercer-Smiths’ § 1983 claim was barred by
the statute of limitations. The statute of limitations in a § 1983 claim “is drawn
from the personal-injury statute of the state in which the federal district court
sits.” Mondragon v. Thompson, 519 F.3d 1078, 1082 (10th Cir. 2008). In New
Mexico, that statute of limitations is three years. O’Connor v. St. John’s College,
290 Fed. App’x. 137, 140 (10th Cir. 2008) (unpublished). The district court held
that the statute of limitations had run on the Mercer-Smiths’ § 1983 claim because
they filed suit on April 7, 2009, but knew of the facts giving rise to their claim
against the individual defendants when they filed their motion in 2004 to hold
them in contempt. Noting that the Mercer-Smiths’ claims in this lawsuit “are
based on the same conduct as the[ir] 2004 contempt motion,” the district court
held that “it [was] clear” the Mercer-Smiths were “fully aware . . . [of the] facts
in 2004 . . . that should have put them on notice” regarding their claims. ROA
Vol. 1, at 236.
The Mercer-Smiths claim the district court’s ruling was incorrect based on
11
the doctrines of (1) accrual, (2) equitable tolling, and (3) continuing violation.
We are not persuaded by any of these assertions.
a. Accrual
“[F]ederal law governs the question of accrual of federal causes of action,
and thus, dictates when the statute of limitations begins to run for purposes of §
1983.” Smith v. City of Enid ex rel. Enid City Comm’n, 149 F.3d 1151, 1154
(10th Cir. 1998) (citations omitted). “A civil rights action accrues when the
plaintiff knows or has reason to know of the injury which is the basis of the
action.” Id. (quoting Baker v. Bd. of Regents, 991 F.2d 628, 632 (10th Cir.
1993)). “Since the injury in a § 1983 case is the violation of a constitutional
right, such claims accrue when the plaintiff knows or should have known that his
or her constitutional rights have been violated.” Id. (citations and quotation
omitted). “This requires the court to identify the constitutional violation and
locate it in time.” Id. (citation and quotation omitted).
The Mercer-Smiths argue the district court erred in dismissing their § 1983
claim because the claim did not accrue until 2008 when the state court issued its
contempt order, thereby “confirming [that] the family unit had been destroyed by
unconstitutional conduct.” 6 Aplt. Op. Br. at 31. According to the Mercer-Smiths,
6
We note that the Mercer-Smiths also claim the district court erred in
relying on the substance of their contempt motion to determine that the statute
began to run in 2004. According to the Mercer-Smiths, the district court could
(continued...)
12
while they “may have entertained suspicions of misconduct” by the defendants
prior to 2008, they were not on notice of such conduct until after the state court
issued its order. Id.
We are not persuaded by this argument because the record indicates the
Mercer-Smiths knew of the individual defendants’ unlawful actions no later than
2004 and were therefore on notice that their constitutional rights may have been
violated. For one, the very fact that the Mercer-Smiths filed a motion seeking to
hold the individual defendants in contempt indicates that they believed the
individual defendants were violating the state court’s original placement order. In
addition, the factual assertions the Mercer-Smiths make in their contempt motion
indicate they knew in 2004 that the Farleys and Schmierers were improperly
involved in their daughters’ lives. The Mercer-Smiths cite specific examples in
their motion of incidents which caused them to believe the Farleys and
6
(...continued)
not properly rely on the contempt motion because they did not attach it to their
complaint. This argument fails. When a document is “referred to in the
complaint and is central to the plaintiff’s claim, a defendant may submit an
indisputably authentic copy of the court to be considered on a motion to dismiss.”
GFF Corp. v. Associated Wholesale Grocers, Inc., 130 F.3d 1381, 1384 (10th Cir.
1997). The Mercer-Smiths alleged in the complaint that “CYFD’s and its agents’
conduct continued to be in flagrant violation of the court’s orders, resulting in the
filing of a contempt motion by the Mercer-Smiths.” ROA, Vol. 1 at 10. Because
the Mercer-Smiths referred to the 2004 contempt motion in their complaint and
because the motion is central to the Mercer-Smiths’ claims, it was proper for the
district court to consider it in ruling on the individual defendants’ motion to
dismiss.
13
Schmierers were disregarding the state court’s order that they not act as the girls’
foster parents. For example, the Mercer-Smiths allege that from October to
December 2003, Alison would frequently meet her sisters at various restaurants
and see Julia arriving and leaving in a car driven by Mr. or Mrs. Schmierer and
Rachel arriving and leaving with Mr. or Mrs. Farley. ROA Vol. 2, at 162–63. In
addition, the Mercer-Smiths allege that on November 11, they personally saw the
Schmierers and Farleys drop off Julia and Rachel at a restaurant to have lunch
with Alison. Id. at 162.
The 2004 contempt motion further indicates that the Mercer-Smiths acted
affirmatively to confirm their suspicions. First, they allege that James “had a
check done” to determine the origins of two unknown phone numbers from which
Julia and Rachel’s cell phones had been called. Id. at 162–63. According to the
Mercer-Smiths, one phone number belonged to Eric Schmierer and the other
belonged to Gay Farley. Id. In addition, the Mercer-Smiths hired a private
investigator to follow the Schmierers and Farleys. According to the Mercer-
Smiths, the private investigator discovered that each morning the Schmierers
picked up Julia from the Ritters’ house and took her to school, while the Farleys
picked up Rachel every morning and took her to school. Id. at 164-66.
In short, the Mercer-Smiths’ contempt motion contains so many specific
allegations of wrongdoing that it is clear they were on notice in 2004 that the
individual defendants violated their constitutional rights. Smith, 149 F.3d at
14
1154. The Mercer-Smiths allege facts based on their own observations, the work
of their private investigator, and statements by their youngest daughter, Alison.
Because they were aware of these facts, the Mercer-Smiths cannot reasonably
argue that they were not on notice regarding their constitutional claim against the
individual defendants until the state court issued its contempt order in 2008.
b. Equitable Tolling
The Mercer-Smiths also argue that even if the accrual period started prior
to 2008, their claims should not be time-barred because of the doctrine of
equitable tolling. “[S]tate law governs the application of tolling in a [federal]
civil rights action.” Alexander v. Oklahoma, 382 F.3d 1206, 1217 (10th Cir.
2004). Under New Mexico law, equitable tolling (also known as fraudulent
concealment) tolls the statute of limitations “only when the plaintiff does not
discover the alleged [wrong] within the statutory period as a result of the
defendant’s fraudulent concealment.” Tomlinson v. George, 116 P.3d 105, 106
(N.M. 2005). Thus, “if 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.” Id. at 111.
The Mercer-Smiths allege the district court should have applied the
doctrine of equitable tolling because they “could . . . prove that they lacked
essential information necessary to appreciate the existence and cause of the
15
[defendants’] constitutional violation[s].” Aplt. Op. Br. at 37. We are not
persuaded by this argument because the Mercer-Smiths have not specifically
alleged that the individual defendants concealed from them the fact that the
Farleys and Schmierers were the de facto foster parents for Julia and Rachel.
Instead, the Mercer-Smiths simply allege that they did not know of the full effect
of the Farleys and Schmierers’ actions until 2008, when the state court ruled on
their contempt motion. In the absence of an assertion that the defendants
fraudulently concealed information from the Mercer-Smiths, equitable tolling
does not apply to this case. See Tomlinson, 116 P.3d at 106.
Moreover, even if the individual defendants fraudulently concealed their
behavior, the Mercer-Smiths’ 2004 contempt motion indicates that they were
aware the individual defendants were acting improperly. As noted, the Mercer-
Smiths allege that they saw the Farleys and Schmierers dropping their daughters
off at a restaurant, that they traced phone calls from the Farleys and Schmierers to
their daughters’ cell phones, and that their private investigator saw the Farleys
and Schmierers pick up the girls from the Ritters’ home and take them to school.
These allegations are sufficient to indicate that the Mercer-Smiths knew of the
individual defendants’ unlawful behavior. The doctrine of equitable tolling
therefore does not apply to this case. See id. at 111 (a plaintiff cannot claim the
benefits of the equitable tolling doctrine if he or she discovers the injury within
the statutory time period).
16
c. Continuing Harm
Finally, the Mercer-Smiths allege the district court erred by declining to
apply the doctrine of continuing violations. Under this doctrine, a plaintiff may
avoid the statute of limitations when the defendant has acted pursuant to a pattern
or longstanding policy or practice of constitutional violations. E.g., Robinson v.
Maruffi, 895 F.2d 649, 655 (10th Cir. 1990). The Mercer-Smiths’ argument
clearly fails because the doctrine of continuing violations does not apply to §
1983 claims. Hunt v. Bennett, 17 F.3d 1263, 1265 (10th Cir. 1994) (holding that
the doctrine of continuing violations does not “extend[] . . . to a § 1983 claim”);
see also Thomas v. Denny’s, Inc., 111 F.3d 1506, 1514 (10th Cir. 1997) (The
doctrine of continuing violations applies to Title VII claims because “of the need
to file administrative charges,” but does not apply to claims that do “not require
[the] filing of such charges before a judicial action may be brought.”).
2. State Claims
In addition to dismissing the Mercer-Smiths’ § 1983 claim against the
individual defendants, the district court dismissed their state law claims contained
in count IV (negligence, defamation, malicious abuse of process, professional
negligence, and medical malpractice under the New Mexico Tort Claims Act) and
count V (state common law claims for intentional infliction of emotional distress,
invasion of privacy, defamation, professional negligence, negligence, medical
malpractice, and malicious abuse of process). In dismissing these claims, the
17
district court held that the Mercer-Smiths’ state law claims were time-barred
under the two and three year 7 statutes of limitations “for the same reasons set
forth” in the court’s dismissal of the § 1983 claim. ROA Vol. 1, at 238.
We affirm the district court’s dismissal of these claims because the latest
factual allegation in the Mercer-Smiths’ complaint supporting any claim for relief
is the allegation that, in 2003, the individual defendants “placed the children with
the Farley and Schmierer families in direct violation of the [state court’s] order.”
Id. at 8. Because the Mercer-Smiths knew of these actions prior to filing their
contempt motion in 2004, the statute of limitations on each state law claim had
clearly run by 2009, when the Mercer-Smiths filed suit. We therefore affirm the
district court’s dismissal of their state law claims against the individual
defendants.
3. Leave to Amend
In their response to the individual defendants’ motion to dismiss, the
Mercer-Smiths stated: “If, for any reason, the court deems the present complaint
inadequate, Plaintiffs request thirty (30) days to re-plead.” ROA Vol. 1, at 40.
The district court did not address this request in its order granting the individual
defendants’ motion to dismiss: it simply dismissed the relevant claims without
7
The statute of limitations for the Mercer-Smiths’ claims in count IV (New
Mexico Tort Claims Act) is two years, while the applicable statute of limitations
for their claims in count V (New Mexico common law) is three years. See ROA
Vol. 1, at 238.
18
prejudice. The Mercer-Smiths now argue the district erred in not permitting them
to amend their complaint. We review the refusal of leave to amend for abuse of
discretion. Gohier v. Enright, 186 F.3d 1216, 1218 (10th Cir. 1999).
We conclude that the district court did not abuse its discretion because the
Mercer-Smiths did not comply with the District of New Mexico’s Local Rules as
they relate to amendments of pleadings. As we have previously noted, New
Mexico’s Local Rules require parties seeking leave to amend to (1) file a motion
stating with particularity the grounds for amendment (Rule 7.1); (2) file a
separate brief in support of the motion to amend (Rule 7.5); and (3) attach a
proposed amended complaint to the motion to amend (Rule 15.1). DeHaan v.
United States, 3 Fed. Appx. 729, 731 (10th Cir. 2001) (unpublished). The
Mercer-Smiths did not comply with any of these rules; instead, they simply added
at the end of their opposition a blanket request for leave to amend if the district
court found the complaint to be inadequate. Because the Mercer-Smiths did not
properly seek leave to amend, the district court did not abuse its discretion by not
granting them leave to amend the complaint. See Garman v. Campbell Cnty. Sch.
Dist. No. 1, 630 F.3d 977, 986 (10th Cir. 2010).
The district court also did not err because amendment in this case would be
futile. “Although [the Federal Rules] provide[] that leave to amend shall be given
freely, the trial court may deny leave to amend where amendment would be
futile.” Grossman v. Novell, Inc., 120 F.3d 1112, 1126 (10th Cir. 1997). It
19
would be futile to permit the Mercer-Smiths to amend their complaint because
amendment will not change the fact that the statute of limitations bars their §
1983 claim and state law claims against the individual defendants. No matter
what allegations the Mercer-Smiths add to their amended complaint, the fact
remains that they knew of the defendants’ alleged unlawful actions when they
filed their motion for contempt in 2004. Because amendment cannot cure this
statute-of-limitations defect, the district court was not required to permit the
Mercer-Smiths to amend their complaint.
B. Dr. Beth Reich’s Motion for Summary Judgment
The Mercer-Smiths also claim the district court erred in granting Dr.
Reich’s motion for summary judgment on their § 1983 claim and in dismissing
sua sponte their state law claims contained in counts IV and V.
1. § 1983 claim
The Mercer-Smiths argue the district court should not have granted
summary judgment on their § 1983 claim because the evidence indicates that Dr.
Reich “set out to deprive them of their constitutional interest in the integrity of
their family unit.” ROA Vol. 1, at 225. Specifically, the Mercer-Smiths claim
Dr. Reich violated their constitutional rights by relying on a “widely discredited”
theory regarding recovered memories and by “persist[ing]” with her claims that
Julia and Rachel had been sexually abused despite “overwhelming contrary
evidence and opinions from her professional colleagues.” Id. at 5, 9.
20
We affirm the district court’s ruling that the statute of limitations bars the
Mercer-Smiths’ § 1983 claim against Dr. Reich. 8 As the Mercer-Smiths state in
their complaint, Dr. Reich’s allegedly unlawful actions—her reckless reliance on
a “widely discredited” scientific theory and her persistent allegations against
James Mercer-Smith despite “overwhelming evidence” of his innocence—all took
place no later than 2002, a full seven years before the Mercer-Smiths filed suit.
Morever, the record indicates that the Mercer-Smiths knew of Dr. Reich’s
allegedly unlawful actions at that time. By 2002, they knew Dr. Reich had
reported James’ alleged abuse to CYFD, they were aware of the medical
foundation upon which Dr. Reich based her expert opinion, and they were aware
of the reports of other psychologists who disagreed with Dr. Reich’s conclusions.
Id. at 46–47, 241. Accordingly, the district court correctly granted Dr. Reich’s
motion for summary judgment based on her statute of limitations defense.
The Mercer-Smiths argue in their opening brief that, at the very least, a
factual question exists regarding whether Dr. Reich engaged in unlawful activity
within the limitations period. In support of this assertion, they note that on
8
We note that the district court also granted Dr. Reich’s motion for
summary judgment (1) because the Mercer-Smiths failed to raise genuine issues
of material fact necessary to defeat summary judgment; (2) because Dr. Reich is
immune from suit; and (3) because Dr. Reich cannot be liable as a non-state actor
under § 1983. Since we affirm the district court’s ruling with respect to the
statute of limitations, we do not address the other reasons the district court
granted summary judgment on the § 1983 claim.
21
November 6, 2006, CYFD’s attorney sent Dr. Reich a subpoena requiring her to
testify at a state court hearing regarding custody of Julia and Rachel. Id. at 160.
The next day, however, CYFD’s attorney faxed Dr. Reich a letter indicating that
the subpoena had been sent to her in error and that she would not be needed at the
upcoming hearing. Id. at 159.
Despite the Mercer-Smiths’ assertions to the contrary, the November 2006
notice of subpoena fails to create a factual dispute regarding the running of the
statute of limitations. The fact that CYFD sent Dr. Reich a subpoena (which it
later retracted) in 2006 does not reasonably indicate that Dr. Reich was engaged
in any sort of improper activity at that time. It is not surprising that Dr. Reich
could have been called to testify in 2006—she first contacted CYFD regarding her
suspicions that the girls had been sexually abused and she had been deposed in
2002 regarding her professional opinion on this matter. More important,
however, is the fact that even if CYFD’s 2006 subpoena created some sort of
factual dispute regarding the propriety of Dr. Reich’s conduct, the statute of
limitations still began running no later than 2002 when the Mercer-Smiths learned
fully of Dr. Reich’s involvement in the state of New Mexico’s attempt to obtain
custody of their children. Accordingly, we conclude that the district court’s
decision to grant summary judgment on statute of limitations grounds was correct.
2. State Claims
The Mercer-Smiths also appeal the district court’s dismissal of their state
22
law claims against Dr. Reich. After granting Dr. Reich’s motion for summary
judgment on the § 1983 claim, the district court sua sponte dismissed the
remaining state law claims. The district court dismissed the claims in count IV,
which arise out of the New Mexico Tort Claims Act, “given [its] findings”
regarding the Mercer-Smiths’ § 1983 claim. ROA Vol. 1, at 228. And after
dismissing those claims, the district court declined to accept jurisdiction of the
New Mexico common law claims in count V and dismissed them for lack of
federal jurisdiction.
We affirm the district court’s dismissal of the state law claims contained in
counts IV and V. As to the claims in count IV, the district court properly
dismissed these claims because, like the Mercer-Smiths’ § 1983 claim, they arise
from Dr. Reich’s allegedly improper report of sexual abuse to CYFD and
improper medical conclusions, both of which the Mercer-Smiths were aware no
later than 2002. Thus, the Mercer-Smiths’ knowledge of Dr. Reich’s actions bar
not only her § 1983 claim, but also her state law claims contained in count IV.
We also affirm the district court’s refusal to accept jurisdiction of the state
law claims in count V. Because the district court had previously dismissed the
Mercer-Smiths’ § 1983 and §1985 claims against Dr. Reich, federal question
jurisdiction in this case was lacking. Further, because all involved parties in this
case are citizens of New Mexico, diversity jurisdiction in this case does not exist.
Accordingly, the district court was within its discretion to decline supplemental
23
jurisdiction 9 on the remaining state law claims and dismiss them for lack of
subject matter jurisdiction.
III
The judgment of the district court is AFFIRMED.
Entered for the Court
Mary Beck Briscoe
Chief Judge
9
We note that the district court could have also dismissed the state law
claims in Count IV for lack of federal jurisdiction.
24