DEVARGAS V. STATE EX REL. NEW MEXICO DEP'T OF CORS., 1981-NMCA-109, 97 N.M. 447, 640 P.2d
1327 (Ct. App. 1981)
ANTONIO "IKE" DeVARGAS,
Plaintiff-Appellee,
vs.
STATE OF NEW MEXICO, ex rel. NEW MEXICO DEPARTMENT OF
CORRECTIONS, CLYDE O. MALLEY, EDWIN T. MAHR, MICHAEL
HANRAHAN, JOHN DOES 1 through 10,
Defendants-Appellants.
COURT OF APPEALS OF NEW MEXICO
1981-NMCA-109, 97 N.M. 447, 640 P.2d 1327
APPEAL FROM THE DISTRICT COURT OF SANTA
FE COUNTY, GARCIA, Judge
Motion for Rehearing Denied October 20,
1981
MARK C. MEIERING, RODEY, DICKASON, SLOAN,
AKIN & ROBB, P.A., Albuquerque, New Mexico, Attorneys for Appellants.
ROBERT SENA, Santa Fe, New Mexico,
RICHARD ROSENSTOCK, Chama, New Mexico, PICKARD & SINGLETON, Santa Fe, New
Mexico, Attorneys for Appellee.
Wood, J., wrote the opinion. I CONCUR:
Mary C. Walters, J., Lewis R. Sutin, J., (Specially Concurring in the result
only)
{1} The incident on which the
original complaint was based occurred on September 21, 1976. The incident,
according to plaintiff, was a beating he received by employees of the
Department of Corrections (named as John Doe defendants), while plaintiff was
incarcerated at the penitentiary. The original complaint was filed July 6,
1977. The amended complaint was filed approximately August 5, 1980 (the
district court filing stamp cannot be read). The trial court denied defendants'
motion to dismiss the amended complaint. We granted an interlocutory appeal. A
determination of whether the trial court's ruling was correct involves: (1)
whether a claim was stated under 42 U.S.C. § 1983 (hereinafter referred to as §
1983); (2) relation back of the amended complaint under R. Civ. Proc. 15(c);
(3) the applicable statutes of limitation; (4) the John Doe claims in the
original complaint. Because the issues differ as to the defendants, we discuss
the defendants separately.
A. The State and Its Department of Corrections
{2} The original complaint
sought damages from the State and its Department of Corrections under § 1983
for alleged deprivation of constitutional rights. Section 1983 applies to
persons. The State and its Department of Corrections are not persons within the
meaning of § 1983.
Williford v. People of California, 352 F.2d 474 (9th
Cir. 1965);
Taylor v. Mitzel, 82 Cal. App.3d 665, 147 Cal. Rptr. 323
(1978). Not being subject to suit, the original complaint was a nullity as to
the State and its Department of Corrections.
{3} The amended complaint did
not seek relief from the State and its Department of Corrections under § 1983;
thus this § 1983 claim was abandoned in the amended complaint.
Biebelle v.
Norero, 85 N.M. 182,
510 P.2d 506 (1973).
{4} The amended complaint
sought damages against the State and its Department of Corrections under the
Tort Claims Act. See §
41-4-12, N.M.S.A. 1978. The limitation period for such a
claim is two years. Section
41-4-15, N.M.S.A. 1978. The claim made in the
amended complaint was barred unless the amended complaint related back to the
date of the original complaint. The original complaint being a nullity, there
was no relation back.
Mercer v. Morgan, 86 N.M. 711,
526 P.2d 1304 (Ct.
App. 1974).
{*450} B. Malley,
Mahr and Hanrahan
{5} These three defendants
were named as defendants in the original complaint -- Malley as Warden of the
Penitentiary; Mahr and Hanrahan as Secretaries of Correction. The original
complaint does not assert that these three defendants had anything to do with
the alleged beating. The original complaint alleged that Malley, as Warden, was
responsible for the daily management of the penitentiary, and that Mahr and
Hanrahan, as Secretaries of Correction, were responsible for the daily
administration of the Department of Corrections.
{6} The original complaint
sought damages from these three defendants under § 1983. The fact that these
defendants had some administrative responsibility over the place where the
alleged beating occurred, and over the John Does who allegedly did the beating,
provides no basis for relief under § 1983.
Respondeat superior does not
apply to § 1983 claims seeking monetary damages.
Johnson v. Glick, 481
F.2d 1028 (2d Cir. 1973);
Jennings v. Davis, 476 F.2d 1271 (8th Cir.
1973). To state a claim under § 1983, plaintiff must allege that the defendants
deprived plaintiff of some constitutional right, privilege or immunity; that
is, some personal responsibility is required.
Johnson v. Glick, id.;
Clark
v. People of State of Mich., 498 F. Supp. 159 (E.D. Mich., S.D. 1980). The
original complaint did not assert any personal responsibility against these
defendants for the alleged beating and, thus, failed to state a claim for
relief. The original complaint was a nullity as to these three defendants.
{7} Apart from Claim II,
which is discussed separately, the amended complaint made no claim against Mahr
or Hanrahan. Except as stated in Claim II of the amended complaint, plaintiff
has abandoned his claims against Mahr and Hanrahan.
Biebelle v. Norero,
supra.
{8} Apart from Claim II, the
amended complaint asserts that Malley should have known that the
employee-guards who allegedly beat plaintiff were not qualified to be guards,
that Malley failed to take adequate action to remove these employees from their
positions as guards and, generally, was negligent in his training, supervision
and disciplining of these employees. Inasmuch as the claims against Malley in
the original complaint were a nullity, the claims against Malley in the amended
complaint did not relate back.
Mercer v. Morgan, supra.
{9} Assuming, but not
deciding, that the claims against Malley in the amended complaint were
sufficient allegations of Malley's personal responsibility so as to state a
claim under § 1983, the question is whether these claims, first asserted more
than three years after the alleged beating, were barred under a statute of
limitation.
{10} The parties agree that
there is no federal statute of limitation governing claims under § 1983; thus,
the controlling limitation period is the most appropriate one provided by state
law.
Gipson v. Township of Bass River, 82 F.R.D. 122 (D.N.J. 1979). An
applicable state limitation period may be disregarded only if the state law is
inconsistent with the Constitution and laws of the United States. "In
order to gauge consistency, of course, the state and federal policies which the
respective legislatures sought to foster must be identified and compared."
Board of Regents v. Tomanio, 446 U.S. 478, 64 L. Ed. 2d 440, 100 S. Ct.
1790 (1980).
{11} The trial court ruled
that the applicable limitation period was four years. This is incorrect. The
four-year period, stated in §
37-1-4, N.M.S.A. 1978, applies only to actions
"not * * * otherwise provided for".
{12} Section
37-1-8, N.M.S.A.
1978, provides a three-year limitation period for injury to the person.
Plaintiff seeks damages for physical pain and discomfort, mental anguish,
trauma, humiliation, embarrassment and medical bills, all allegedly resulting
from a violation of his civil rights. Section 37-1-8, supra, is a more
appropriate limitation period than § 37-1-4, supra.
{13} Section 41-4-15, supra,
provides a two-year period for plaintiff's claims against
{*451}
Malley, a public employee. Plaintiff refers us to cases holding that the limitation
period under a tort claims act is not applicable to a claim under § 1983. We
disagree with those decisions. Section 1983 provides liability for the
deprivation of any rights, privileges or immunities secured by the Constitution
and laws of the United States. Section 41-4-12, supra, provides for liability
(by a waiver of immunity) for a deprivation of any rights, privileges or
immunities secured by the Constitution and laws of the United States. Liability
under § 1983 and § 41-4-12, supra, is consistent, not inconsistent. Section
41-4-12, supra, is a more appropriate limitation period than § 37-1-4, supra.
{14} Gunther v. Miller, 498
F. Supp. 882 (D.N.M. 1980), states that a § 1983 claim is not analogous to a
cause of action brought under a state tort claims act because tort claims acts
are based on state concepts of sovereign immunity alien to the purposes to be
served by the Civil Rights Act. We disagree with this reasoning; New Mexico's
Tort Claims Act is based on a waiver of immunity and such a waiver, as pointed
out in the preceding paragraph, provides for liability for law enforcement
officers which is consistent with the purposes of § 1983. The reasoning of
Gunther,
supra, is incorrect and is not to be followed.
{15} Either the three-year
period of § 37-1-8, supra, or the two-year period of § 41-4-15, supra, is a
more appropriate limitation period than the four-year period of § 37-1-4,
supra. In our opinion, the two-year period is the applicable limitation period
to plaintiff's claims against Malley under § 1983. However, a choice between
the three-year and two-year period need not be made in this case; plaintiff's
claims are barred under either period.
{16} The original complaint
asserted that the alleged beating was by John Does 1 through 10 who "at
all times material hereto, [were] employed by the Department of Corrections * *
* and are sued in their official capacity." The amended complaint added
seven persons as parties and, to avoid the statute of limitations as to these
seven, plaintiff argues that the amendment naming these parties relates back to
the John Doe defendants of the original complaint.
{17} The requirements for
relation back in this situation are stated in R. Civ. Proc. 15(c). For relation
back to apply, the added party, within the limitation period, must know
"or should have known that, but for a mistake concerning the identity of
the proper party, the action would have been brought against him."
Plaintiff's motion to amend, of July 30, 1980, alleged that each of the
defendants added in the amended complaint "knew that but for the inability
of the Plaintiff to identify him correctly, each said Defendant would have been
sued in this cause of action as originally filed."
{18} There is nothing in this
record supporting the statement made in plaintiff's motion. The original
complaint identified the John Does as employees of the Department of
Corrections. There is nothing indicating that plaintiff could not identify the
seven added defendants within either a two-or-three-year limitation period, and
nothing indicating that the added defendants knew or should have known that
there was a mistake as to their identity.
{19} The showing in this
record is that plaintiff made little or no effort to identify the seven added
defendants. In 1977, when the original complaint was filed, R. Civ. Proc. 4(a)
authorized the issuance of summons within one year after the filing of the
complaint. See § 21-1-1(4)(a), N.M.S.A. 1953 Comp. (Repl. Vol. 4). There is
nothing indicating a summons was issued for any John Doe defendant. Section
21-1-1(4)(e)(5), supra, provided that service shall be made with reasonable
diligence. This requirement, of service with reasonable diligence, was
continued in the 1979 amendment to the rule; the requirement is in the last
sentence of R. Civ. Proc. 4(e). See Judicial Pamphlet 5, page 8, N.M.S.A. 1978.
There is nothing indicating
any attempt to serve process on the John Doe
defendants; thus, nothing was done through the device of process to identify
persons known to be
{*452} employees of
the Department of Corrections. The record indicates that the earliest discovery
undertaken by plaintiff was in October, 1979, more than three years after the
incident giving rise to this lawsuit.
{20} Under the foregoing
circumstances, relation back did not apply. Compare
Ames v. Vavreck, 356
F. Supp. 931 (D. Minn. 1973). Another way of stating the result is that in the
circumstances of this case, the filing of the original complaint, naming John
Doe defendants, did not toll the running of the statute of limitation against
the seven defendants added in the amended complaint. The reason is that the
lack of reasonable diligence in proceeding against the John Doe defendants
required a dismissal as to the John Does; the seven defendants added in the
amended complaint became parties, for the first time, by the amended complaint.
See
Dewey v. Farchone, 460 F.2d 1338 (7th Cir. 1972).
{21} The seven defendants
added by the amended complaint were Deputy Warden Montoya and guards Gonzales,
Romero, Lynch, Peperas, Lujan and Padilla. At the time they were added as
parties, the limitation period for a claim under § 1983, whether two or three
years, had run. If the amended complaint seeks damages from these seven
defendants under the state Tort Claims Act, the limitation period under that
Act has also run.
{22} Claim II of the amended
complaint was against all defendants. This claim sought § 1983 relief on the
basis of events occurring in September and October, 1976,
after the
incident of September 21, 1976. Being based on subsequent events, this claim
did not relate back to the original complaint.
Raven v. Marsh, 94 N.M.
116,
607 P.2d 654 (Ct. App. 1980). Claim II, asserted for the first time in
August, 1980, was barred, whether the limitation period is two or three years.
{23} The order of the trial
court is reversed and the trial court is directed to dismiss the amended
complaint with prejudice.
{24} Defendants are to
recover their appellate costs from plaintiff.
I CONCUR: Mary C. Walters, J., Lewis R. Sutin, J., (Specially
Concurring in the result only)
SUTIN, Judge (Specially Concurring).
{26} I concur in the result.
{27} This is an interlocutory
appeal from an Order which denied defendants' motions to dismiss plaintiff's
amended complaint growing out of an alleged assault and battery committed by
defendants while plaintiff was an inmate of the state penitentiary.
{28} The chronology of events
and proceedings follow:
(1) On September 21, 1976, plaintiff was incarcerated in the
state penitentiary on which date the alleged assault and battery occurred.
(2) On July 6, 1977, plaintiff filed a complaint against
State ex rel., The New Mexico Department of Corrections, Malley, the Warden,
Mahr and Hanrahan, Secretaries of Corrections and John Does 1 through 10, based
upon a violation of § 1983 of the Civil Rights Act of the United States Code.
(3) On August 12, 1977, defendants filed an answer, the third
affirmative defense of which was to be treated as a motion to dismiss. The
memorandum attached to the motion claimed that the State was not a
"person" within the meaning of § 1983; that the "John Does"
were not disclosed and were not served with process.
(4) On July 30, 1980, 3 years and 10 months after the alleged
assault and battery and 3 years after the initial complaint was filed,
plaintiff moved for leave to file an amended complaint under Rule 15 of the
Rules of Civil Procedure because plaintiff had not been able to establish the
identities of the various "John Does."
(5) Around August 5, 1980, plaintiff filed an amended
complaint. Listed as additional defendants were "Gonzales, Romero, Lynch,
Paperas, Lujan and Padilla... employed by the State of New Mexico as guards at
the New Mexico State Penitentiary," and Montoya, Deputy Warden at the
penitentiary.
(a) Claim I and Claim II were directed against additional
defendants and Malley as Warden. These claims were based upon a deprivation of
rights guaranteed by the First, Fourth, Fifth, Sixth and Fourteenth Amendments
to the United States Constitution and 42 U.S.C. § 1983.
(b) Claim III, excluding defendants Malley, Mahr and
Hanrahan, was based upon assault and battery committed by the remaining
defendants.
(c) Claim IV sued the State for a violation of the New Mexico
Tort Claims Act.
(6) On September 18, 1980, defendants Montoya, Gonzales,
Romero, Lynch and Lujan (Paperas and Padilla not having been served with
process) moved to dismiss plaintiff's amended complaint based upon the statute
of limitations and laches. Malley, Mahr and Hanrahan answered with nine
defenses.
(7) On January 18, 1981, defendants moved to dismiss Claim II
because it concerned events not a part of the original complaint and pleadings.
(8) On February 23, 1981, a final Order was entered. It
denied the motion to dismiss the State as a party, and denied the motions to
dismiss the individual defendants. The motions were denied on two grounds. The
court found:
(a) the applicable statute of limitations is four years, and,
thus, no bar to the amended complaint filed against the individual defendants,
and,
(b) the amended complaint filed against the State relates
back to the original complaint against the State since the original complaint was
not null, void and ineffective with respect to the State.
A. The initial complaint was a nullity and the amended
complaint was a new cause of action.
{29} Plaintiff's initial
complaint sued the State of New Mexico ex rel. New Mexico Department of Corrections,
Malley, as Warden of the penitentiary, Mahr and Hanrahan, Secretaries of the
Department in their official capacities and John Does 1 to 10, for a
deprivation of civil rights under 42 U.S.C. § 1983.
Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State or Territory, subjects,
or causes to be subjected, any citizen of the United States or other person
within the jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws, shall be
liable to the party injured in an action at law, suit in equity, or other
proper proceeding for redress. [Emphasis added.]
Every person who subjects plaintiff to the deprivation of any
secured rights under color of state statute shall be liable to plaintiff.
{32} "To state a claim
under the statute, a plaintiff must allege: (1) that the defendant was acting
under color of State law at the time of the acts in question, and (2) that the
defendant deprived the plaintiff of a right, privilege or immunity secured by
the Constitution or laws of the United States...."
Zarcone v. Perry,
434 N.Y.S.2d 437, 439 (1980). As to defendant Malley, Warden of the
Penitentiary, plaintiff must allege and show more than mere authority by Malley
over others who have violated plaintiff's right. Plaintiff must allege at least
one specific act or omission of Malley which was a causative factor depriving
plaintiff of his civil rights.
Clark v. People of State of Mich., 498 F.
Supp. 159 (D. Mich. 1980).
{33} No allegations were made
of any conduct of the Department, its secretaries or the warden that were
related to the assault and battery committed by the "John Does"
except that the "John Does" were employed by the Department.
{34} The complaint stated a
claim against the "John Doe" defendants but not against the
Department, the Secretaries or the Warden. Under § 1983, the doctrine of
respondeat
superior is not applicable.
Knipp v. Weikle, 405 F. Supp. 782 (D.
Ohio 1975);
Bolden v. Mandel, 385 F. Supp. 761 (D. Md. 1974);
State
v. Hall, 411 N.E.2d 366 (Ind. App. 1980);
Privitera v. Town of Phelps,
435 N.Y.S.2d 402 (1981).
{35} In addition, the State
was not subject to suit under § 1983.
Taylor v. Mitzel, 82 Cal. App.3d
665, 147 Cal. Rptr. 323 (1978);
State v. Hall, supra. In
Taylor,
a civil rights suit was brought against the State, county and various public
officials for damages allegedly arising from a wrongful denial of medical
services. The court said:
The causes alleged as to the state insofar as they are
founded upon asserted violations of the federal Civil Rights Act (42 U.S.C. §
1983, et seq.), are a nullity. A state cannot be sued as a "person"
under the Act in circumstances such as alleged or shown here. [Id. 325.]
{36} This rule is uniform in
the federal courts.
Florida Businessmen, Etc. v. State of Fla., 499 F.
Supp. 346 (D. Fla. 1980);
Clark v. People of State of Mich., 498 F.
Supp. 159 (D. Mich. 1980);
Stenson v. State of N.Y., 422 F. Supp. 38 (D.
N.Y. 1976);
Duisen v. Administrator & Staff, Fulton St. Hosp., No.
1, Mo., 332 F. Supp. 125 (D. Mo. 1971). It is interesting to note that in a
case arising in our federal district court, plaintiff admitted "that the
Regents of the University of California are not a 'person' subject to suit
under Section 1983."
Hansbury v. Regents of Univ. of Cal., 596 F.2d
944, 949 (Note 14) (10th Cir. 1979).
{37} Section 1983 did not
pre-empt the jurisdiction of New Mexico courts. See,
Gonzales v. Oil,
Chemical and Atomic Workers Int. U., 77 N.M. 61,
419 P.2d 257 (1966).
Jurisdiction affords this State the right to interpret the meaning of the word
"person" as it applies to claims under the Civil Rights Act. In
Rapp.
v. New Mexico State Highway Department, 87 N.M. 177, 178,
531 P.2d 225 (Ct.
App. 1975) we said:
The New Mexico State Highway Commission is a constitutional
state agency composed of appointed members who "shall have such power and
shall perform such duties as may be provided by law." N.M. Const. Art. V,
§ 14. The State Highway Commission is not a "firm, association,
copartnership, contractor or corporation," within the meaning of § 55-7-1.
It is not a "person" within the meaning of § 55-7-2.
{38} We feel bound by
Southern
Union Gas Co. v. New Mexico Pub. Serv. Com'n, 82 N.M. 405, 406,
482 P.2d
913, 914 (1971), which states:
There are many statutes in which neither the U.S. nor States
of the Union are considered as a "person." When the legislature has
wanted to include sovereigns or other governmental bodies in its statutes, it
has known how to do so. * * *
{39} We have held that the
Health and Social Services Department is not a "person" within the
meaning of the Children's Code.
Matter of Doe, 88 N.M. 632,
545 P.2d 491
(Ct. App. 1976).
{40} In New Mexico, under
rules of statutory construction, "[t]he word 'person' may be extended to
firms, associations and corporations.'
Rapp, supra, [Id. 178]. It would
require interpretive juggling to create a "person" out of a
"state" for litigation purposes.
{41} We hold that the
"State" is not a "person" under § 1983. The original
complaint was a nullity with respect to the State to which an amended complaint
cannot relate back. The trial court erred in holding that "the original
complaint was not null, void and ineffective with respect to the State."
{42} Plaintiff claims the
amended complaint which substituted named parties for "John Does"
related back to the initial complaint because the former were employees of the
State. Plaintiff is mistaken.
{43} The trial court ruled
"that the amended complaint filed against
the State relates back to
the original complaint against
the State since the latter complaint was
not null, void and ineffective with respect to
the State."
[Emphasis added.] No reference was made in the Order to the "John
Does" in the initial complaint because the "John Does" were
included within the meaning of the "State." The original complaint
filed "against the State" included the "John Does." The
original complaint "with respect to
the State" was null and
void. The State included the "John Does." Since the complaint against
the State is null and void, there is no complaint to which an amended complaint
could relate back.
{44} Even though we treat the
Order as holding that the named parties relate back to the "John
Does," the Order is ineffective because there was noncompliance with Rule
15(c) of the Rules of Civil Procedure. It reads:
Whenever the claim... asserted in the amended pleading arose
out of the conduct, transaction or occurrence set forth or attempted to be set
forth in the original pleading, the amendment relates back to the date of the
original pleading. An amendment changing the party against whom a claim
is asserted relates back if the foregoing provision is satisfied and, within
the period provided by law for commencing the action against him, the party
to be brought in by amendment (1) has received such notice of the institution
of the action that he will not be prejudiced in maintaining his defense on the
merits, and (2) knew or should have known that, but for a mistake concerning
the identity of the proper party, the action would have been brought against
him. [Emphasis added.]
{45} In the initial
complaint, "John Does 1 through 10" which appeared in the caption
only, were fictitious names of nonexistent parties. No allegations appeared
that plaintiff could not ascertain the true names of the "John Does"
nor was a summons issued with the words "real name unknown." Section
38-2-6, N.M.S.A. 1978. No process was issued or served on "John Does"
and these fictitious names did not in fact become parties defendant.
We follow the general rule that a suit brought against a
defendant who is already deceased is a nullity and of no legal effect.
A deceased is a nonexisting party. A fictitious name is also
a nonexistent party. A suit brought against a defendant who is nonexistent is a
nullity. There were in fact no parties defendant in the initial complaint.
Furthermore, infra, we shall point out that the
amended complaint, which charged the known parties, was not brought
"within the period provided by law for commencing the action against"
the named parties.
When an initial complaint is a nullity, an amended complaint
is a new action and Rule 15(c) of the Rules of Civil Procedure is not
applicable. The limitation statute begins to run from the time of filing of the
amended complaint. Mercer v. Morgan, supra.
B. The amended complaint against individual named
defendants is barred.
{47} The amended complaint
was filed around August 5, 1980.
Claims I and III are directed against
the individual defendants for assault and battery that occurred on September
21, 1976. Three years and ten months passed between the occurrence and the
filing of the amended complaint.
{48} The trial court found
that the "catch-all" limitation period applied; that "all other
actions not herein otherwise provided for and specified [must be brought]
within four years." Section
37-1-4, N.M.S.A. 1978. The trial court is
mistaken. New Mexico has no statutory limitation period for assault and
battery. The question is: Which New Mexico statute of limitations is most
appropriate here? A "catch-all provision is not applied if the liability
existed in any form at common law."
De Malherbe v. Intern. U. of
Elevator Constructors, 449 F. Supp. 1335, 1344 (D. Cal. 1978). Liability
for assault and battery existed at common law. Restatement of the Law, Torts
2d, 13, Comment (a);
Conway v. Reed, 66 Mo. 346 (1877): 6 Am. Jur.2d,
Assault and Battery 1 (1963). The use of the "catch-all" provision
was erroneous.
{49} Congress did not
establish a statute of limitations applicable to actions brought under § 1983
of the federal code. As a result, federal courts borrow the state law of
limitations governing an analogous cause of action.
Board of Regents v.
Tomanio, 446 U.S. 478, 100 S. Ct. 1790, 64 L. Ed. 2d 440 (1980). We must
apply the New Mexico limitations period for tort to torts most analogous to the
conduct of defendants alleged in the amended complaint.
Wilkinson v. Ellis,
484 F. Supp. 1072 (D.C. Pa. 1980).
{50} For a summary and
comment upon the uncertainty of what statutes of limitations are applicable,
see, Annot.
What Statute of Limitations is Applicable to Civil Rights Action
Brought Under 42 USCS § 1983, 45 A.L.R. Fed. 548 (1979); Brophy,
Statutes
of Limitations in Federal Civil Rights Litigation, 1976 Ariz. St. L.J. 97
(1976).
{51} For assault and battery,
we have two periods of limitations to consider: (1) Section
41-4-15, N.M.S.A.
1978 of the "Tort Claims Act" and (2) Section
37-1-8, N.M.S.A. 1978
for "personal injury." The former is a two year limitation period and
the latter is three years. Under either statute, the claim of assault and
battery is barred.
{52} Generally, it has been
held that the limitation period in a Tort Claims Act is not applicable in a
case filed under § 1983.
Gunther v. Miller, 498 F. Supp. 882 (D.C. N.M.
1980);
Donovan v. Reinbold, 433 F.2d 738 (9th Cir. 1970);
Gipson v.
Township of Bass River, 82 F.R.D. 122 (D. N.J. 1979);
Rossiter v.
Benoit, 88 Cal. App.3d 706, 152 Cal. Rptr. 65 (1979);
Klein v.
Springborn, 327 F. Supp. 1289 (D. Ill. 1971);
Skrapits v. Skala, 314
F. Supp. 510 (D. Ill. 1970);
Shouse v. Pierce County, 559 F.2d 1142 (9th
Cir. 1977).
{53} We have reviewed these
cases and find no basic reason why the New Mexico Tort Claims Act limitation
period should not be applied. The federal courts generally say what appears in
Shouse,
supra:
Because no federal statute of limitations has been enacted,
the federal law has adopted those state limitations provisions which the
federal court deems applicable to the federal cause of action. When we select
the state statute from the available candidates, we try to choose that statute
which applies to those state actions that resemble our Section 1983 action and
that are sufficiently generous in the time periods to preserve the remedial
spirit of federal civil rights actions. [Id. 1146.]
{54} We applaud the avenues
that federal courts travel to determine applicable state limitation periods.
But federal courts do not dominate state courts. State courts have concurrent
jurisdiction for the assertion of § 1983 claims.
Rosacker v. Multnomah
County, 43 Or. App. 583, 603 P.2d 1216 (1979). State courts determine the
applicable limitation period. "The applicable limitation period is the one
prescribed in the forum state for suits seeking similar relief in state
court."
Branden v. Texas A & M University System, 636 F.2d 90,
92 (5th Cir. 1981).
{55} Section 1983 creates a
tort claim directed "to the deprivation of any rights, privileges or
immunities secured by the Constitution and laws." In New Mexico, "The
Tort Claims Act... [is] the exclusive remedy against a governmental entity or
public employee
for any tort for which immunity has been
waived...." Section
41-4-17(A), N.M.S.A. 1978. The district court has
exclusive original jurisdiction for any claim under the Tort Claims Act.
Section 41-4-18(A). "When liability is alleged against any public
employee...
for a violation of...
any rights, privileges or
immunities secured by the constitution and laws of the United States....
the governmental entity shall provide a defense...." [Emphasis added.]
Section 41-4-4(C). Law enforcement officers are public employees, § 41-4-3(E),
and are denied immunity for "liability for personal injury, bodily
injury... resulting from
assault, battery... violation of...
deprivation
of any rights, privileges or immunities secured by the constitution and laws of
the United States... when caused by law enforcement officers while acting
within the scope of their duties." [Emphasis added.] Section 41-4-12.
"Actions against a governmental entity or a public employee for torts
shall be forever barred, unless such action is commenced within two years after
the date of occurrence resulting in... injury.... Section 41-4-15(A). The
emphasized language,
supra, is equivalent to a statutory provision which
reads:
"... As used in ORS 30.260 to 30.300, 'tort' includes
any violation of 42 U.S.C. section 1983."
Rosacker, supra [603 P.2d 1217].
{56} The date of the
occurrence was September 21, 1976. The amended complaint was filed about August
5, 1980, just short of four years thereafter.
{57} When we speak in terms
of a state law of limitation governing an analogous cause of action, the Tort
Claims Act has specifically provided a limitation period for assault and battery
which is analogous to that stated in the amended complaint. We decline to
follow
Gunther, supra, a federal New Mexico district court opinion to
the contrary.
{58} Another analogous
limitation statute which has been held applicable is §
37-1-8, N.M.S.A. 1978.
It provides that "for an injury to the person [an action must be brought]
within three years."
Walden, III, Inc. v. Rhode Island, 576 F.2d
945 (1st Cir. 1978), 45 A.L.R. Fed. 543 (1979); A.L.R. Fed. 563, 6;
Skousen
v. Nidy, 90 Ariz. 215, 367 P.2d 248 (1962) (assault and battery);
Rosales
v. Lewis, 454 F. Supp. 956 (D. Iowa 1978) (excessive force);
Taylor v.
Mitzel, supra; Polite v. Diehl, 507 F.2d 119 (3d Cir. 1974) (assault and
battery);
Wilkinson, supra (assault and battery);
Paschall v. Mayonea,
454 F. Supp. 1289 (D.C. N.Y. 1978).
{59} Claims I and III of the
amended complaint are barred by the statute of limitations.
{60} Claim IV is based upon
the Tort Claims Act.
Claim IV is directed to the liability of the
defendant State of New Mexico ex rel. Department of Corrections, a governmental
agency within the meaning of the Tort Claims Act; that the State employed the
defendants as penitentiary guards who committed assault and battery upon
plaintiff, and the State is liable to plaintiff as a result of the acts
committed by its employees. It cannot be reasonably gainsaid that when a
defendant is sued under the Tort Claims Act, the most analogous statute of
limitations is that stated in the Tort Claims Act. It is applicable. The
limitation period is two years. Section 41-4-15. This claim also falls by the
wayside because the State is not a "person" and cannot be sued as a
party defendant.
{61} Claim II does not set
forth any deprivation of rights "secured by the constitution and
laws." It alleges that the individual defendants supplied the district
attorney with false information which caused the district attorney to attempt
to indict plaintiff, but the grand jury refused to indict plaintiff on any
charge. As a result, "Plaintiff suffered mental anguish, embarrassment and
humiliation, damage to his reputation as a political leader in Rio Arriba
County and in the State of New Mexico and in violation of his civil
rights."
{62} "First, mere claims
of emotional distress, harassment, mental anguish, humiliation, or
embarrassment are not actionable under the Civil Rights Act."
Taylor v.
Nichols, 409 F. Supp. 927, 936 (D. Kan. 1976).
{63} This claim does not show
any deprivation of civil rights. If it can be labeled a defamation claim, it
does not implicate any federally protected rights and is therefore not
cognizable under the Civil Rights Act. Not every tort recognized under state
law is sufficient to pass the constitutional threshold as to allow the
maintenance of an action under § 1983.
Brainerd v. Potratz, 421 F. Supp.
836 (D. Ill. 1976);
Ray v. Time, Inc., 452 F. Supp. 618 (D. Tenn. 1976);
Williams v. Gorton, 529 F.2d 668 (9th Cir. 1976).
{64} Having been deprived of
no rights secured under the United States Constitution, plaintiff had no claim
cognizable under § 1983.
{65} In any event, this claim
would be barred by the three year limitation period."An action for
protection of reputational interest would be governed by the... limitation
period provided... for suits claiming injury done to the person of
another."
Braden, supra [636 F.2d 93].
C. The limitation statute was not tolled.
{66} We have searched for
some basis upon which the statute of limitations might be tolled. We find none.
{67} The three year
limitation period for personal injury is not tolled while a plaintiff is
assaulted and battered during his incarceration.
Musgrave v. McManus, 24
N.M. 227,
173 P. 196 (1918); Annot.
Imprisonment of Party to Civil Action as
Tolling Statute of Limitations, 77 A.L.R.3d 735 (1977).
{68} Neither is the statute
tolled when the names of defendants are unknown and not properly pled in the
initial complaint.
{69} Section
38-2-6, N.M.S.A.
1978 provides that to amend a complaint when the true names are discovered,
"The plaintiff in such case must state in his complaint that he could not
ascertain the true name, and the summons must contain the words, 'real name
unknown.'" Plaintiff did not comply with these mandatory duties. The
purpose of this statute is to provide plaintiff a means to toll the statute of
limitations when he does not yet know the proper designation of the defendant.
Motor
City Sales v. Superior Court of Kern County, 31 Cal. App.3d 342, 107 Cal.
Rptr. 280 (1973).
{70} Plaintiff's initial
complaint made no reference to "John Does 1 through 10." It did
allege that "[a]ll remaining Defendants [excluding Mahr, Malley and
Hanrahan] are now, and at all times material hereto, [were] employed by the
Department of Corrections, State of New Mexico, and are sued in their official
capacity." This allegation was a reference to defendants "John Does 1
through 10" and identified them except by their true names. But plaintiff
did not allege "that he could not ascertain the true name," and no
summons was issued as to "John Does I through 10."
{71} Mandatory requirements
must be met before plaintiff can claim the benefits of the statute.
Stephens
v. Berry, 57 Cal. Rptr. 505 (1967). These benefits are denied plaintiff.
D. The warden and deputy warden were not subject to suit.
{72} Plaintiff's amended
complaint alleged that defendants Malley, as Warden, and Montoya, as Deputy
Warden, knew or should have known that these penitentiary guards were not
qualified or emotionally suited and failed to remove them or otherwise prevent
them from violating constitutional rights; that they acted in a grossly
negligent and/or reckless manner.
{73} There was no allegation
that these defendants personally participated in the alleged assault and
battery or were even aware of it. The doctrine of
respondeat superior is
inapplicable in actions brought under 42 U.S.C. § 1983. The complaint must
allege that a named defendant personally subjected plaintiff to a deprivation
of constitutional rights or caused the conduct complained of or, in some
manner, participated in the allegedly unlawful actions of an employee or
subordinate officer.
Knipp v. Weikle, supra; Bolden v. Mandel, supra.
{74} Baker v. McCollan, 443
U.S. 137, 99 S. Ct. 2689, 61 L. Ed. 2d 433 (1979) held that a claim against a
sheriff resulting from incarceration of the wrong person due to negligent
mistaken identification was not cognizable under § 1983. The Court of Appeals held
that the sheriff had a duty to exercise due diligence in making sure that the
person arrested and detained was actually the person sought. In reversing, the
Court said:
Section 1983 imposes liability for violations of rights
protected by the Constitution, not for violations of duties of care arising out
of tort law. Remedy for the latter type of injury must be sought in state court
under traditional tort-law principles.... [F]alse imprisonment does not become
a violation of the Fourteenth Amendment merely because the defendant is a state
official. [61 L. Ed. 443.]
{75} Negligent conduct on the
part of Malley and Montoya, public employees, was not sufficient upon which to
base a claim under § 1983.
{76} For these reasons,
plaintiff's complaint should be dismissed with reference to Malley and Montoya.
{77} The Order of the trial
court is reversed. This case is remanded to the district court to vacate its
Order which denied defendants' motion to dismiss plaintiff's amended complaint
and enter judgment that plaintiff's complaint be dismissed with prejudice.
{78} Plaintiff shall pay the
costs of this appeal.
{79} I would grant the Motion
for Rehearing upon one point.
{80} DeVargas' Motion for
Rehearing states "that Defendant Malley never claimed that plaintiff's
Claim I was barred by the statute of limitations.... that defendant Malley was
not a party to this appeal."
{81} The "Application
for Interlocutory Appeal states:
The individual Defendants by their attorney... petition
the... Court of Appeals to grant an interlocutory appeal....
{82} The application is
signed by the attorney for defendants Montoya, Romero, Gonzales, Lynch,
Peparas, Lujan and Padilla. Malley was not mentioned.
{83} The application also
stated "the State of New Mexico by the Attorney General petition... to
grant an interlocutory appeal...." The relator is the Department of
Corrections. Malley, as warden, was a state officer separate from this
Department.
{84} The challenge made by
DeVargas involves a jurisdictional issue. This is a serious question that
deserves the consideration of this Court.
SUTIN, J., specially concurs in the result only.