DeVargas v. Montoya

• Citation: 796 F.2d 1245
• Decision Date: 08 July 1986
• Docket Number: 85-1038,Nos. 83-2481,s. 83-2481
• Parties: Antonio DeVARGAS, Plaintiff-Appellant, v. Robert MONTOYA, et al., Defendants-Appellees, Antonio DeVARGAS, Plaintiff-Appellant, v. Clyde MALLEY, Defendant-Appellee, Roberto Montoya, et al., Defendants.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 1245

796 F.2d 1245

Antonio DeVARGAS, Plaintiff-Appellant, v. Robert MONTOYA, et al., Defendants-Appellees, Antonio DeVARGAS, Plaintiff-Appellant, v. Clyde MALLEY, Defendant-Appellee, Roberto Montoya, et al., Defendants.

Nos. 83-2481, 85-1038.

United States Court of Appeals Tenth Circuit.

July 8, 1986.

Richard Rosenstock, Chama, N.M. (Steven G. Farber, Santa Fe, N.M. and Philip Davis, Albuquerque, N.M., with him on briefs), for plaintiff-appellant.

Mark C. Meiering of Rodey, Dickason, Sloan, Akin & Robb, P.A., Albuquerque, N.M., for defendants-appellees.

Before BARRETT, McWILLIAMS and ANDERSON, Circuit Judges.

ANDERSON, Circuit Judge.

Plaintiff, Antonio DeVargas, brought an action in the state courts of New Mexico generally alleging a violation of his civil rights under 42 U.S.C. Sec. 1983 (1982), as well as a violation of his constitutional rights. The court eventually dismissed the action as time-barred, and that dismissal was, for practical purposes, affirmed by the New Mexico Supreme Court. DeVargas v. State ex rel. New Mexico Department of Corrections, 97 N.M. 563, 642 P.2d 166 (1982). Plaintiff did not seek review by the United States Supreme Court. Subsequently, plaintiff filed a motion to reinstate his claims and for permission to file a second amended complaint in state court alleging various reasons in avoidance of the judgment dismissing his suit. The state court determined it was without jurisdiction to hear the motions because of prior appellate court rulings, and plaintiff did not appeal. Thereafter, plaintiff filed his same basic complaint, again with certain added claims, in federal district court. Upon defendant's motion to dismiss or for summary judgment, on both statute of limitations and res judicata grounds, the district court dismissed the action. On appeal from that judgment, plaintiff once again asserts various theories in avoidance of the final state court judgment; he also seeks to avoid the consequences of his untimely filing in federal court. We reject plaintiff's arguments and affirm.

This case is consolidated with a companion case in which plaintiff asserts his right to proceed against a single defendant, Clyde Malley, on various procedural grounds. We also affirm the district court's dismissal of that action.

BACKGROUND

The event from which plaintiff's basic cause of action arose, and against which the statute of limitations commenced to run, occurred on September 21, 1976. On that date, plaintiff allegedly was assaulted and injured by prison guards at the New Mexico state penitentiary where plaintiff was being held temporarily while awaiting release on bond following an arrest. The following chronology of the central occurrences of record ensued.

On July 6, 1977, plaintiff filed a complaint in the Santa Fe District Court for the State of New Mexico, alleging a violation of various constitutional rights and of his civil rights under 42 U.S.C. Sec. 1983 (1982). Named as defendants were the State, the Department of Corrections and its Secretary (present and past), the warden of the penitentiary, and Does I through X. The complaint was wholly defective on its face, a fact later confirmed by the New Mexico Court of Appeals and not seriously contested by plaintiff in these proceedings. A motion to dismiss followed, to which plaintiff never responded, ¹ and the case remained quiescent as to any development in court until October 1979 when plaintiff noticed up the deposition of Tom Trujillo, custodian of records at the New Mexico state penitentiary.

Plaintiff attributes this twenty-eight month delay in prosecuting his action in court to an alleged oral agreement with opposing counsel to forebear costly formal development of the case while settlement possibilities were explored. Plaintiff advances the same reason in support of an argument that the statute of limitations was extended by waiver or estoppel.

Additional depositions were taken, along with discovery of documents, and on or about August 5, 1980, plaintiff filed a pleading entitled "Amended Complaint," later determined by the state courts to be an original complaint. The new complaint, filed more than three years and ten months after the alleged assault on September 21, 1976, altered the parties defendant, named prison guards for the first time, and added causes of action. One of those causes, claim II of the complaint, R. Vol. I at 80 Defendants promptly filed a motion to dismiss on statute of limitations grounds. The trial court denied the motion and certified the question for interlocutory appeal to the New Mexico Court of Appeals. That court, in a detailed opinion, held that plaintiff's action was time-barred under state statutes limiting actions to two or three years, depending on the nature of the particular claim. DeVargas v. State ex rel. New Mexico Department of Corrections, 97 N.M. 447, 640 P.2d 1327 (Ct.App.1981), cert. quashed, 97 N.M. 563, 642 P.2d 166 (1982). The New Mexico Supreme Court first granted then issued an order quashing plaintiff's petition for a writ of certiorari. Its opinion accompanying that order held that the applicable statute of limitations was two years, and that plaintiff's complaint was barred. DeVargas v. State ex rel. New Mexico Department of Corrections, 97 N.M. 563, 642 P.2d 166 (1982). Plaintiff made no attempt to seek review by the United States Supreme Court.

constitutes the second alleged overt act of injury in this case, that of a malicious prosecution. The conduct allegedly occurred between September 23, 1976 and mid-October of that year. R. Vol. I at 80-81.

Plaintiff next filed a motion in state district court to reinstate his claims and for permission to file a second amended complaint, all on the grounds that defendants' conduct either estopped them from asserting the statute of limitations as a defense or caused them to waive it, or that the statute was extended due to fraudulent concealment of facts. The court held that the prior appellate court rulings precluded it from exercising jurisdiction to hear the motions. Plaintiff did not appeal that ruling.

Undeterred, plaintiff commenced this action in federal court by filing, on May 11, 1982, a complaint identical in its essentials to the claims brought in state court. The complaint added opposing counsel, Assistant Attorney General Muxlow, as a party and added a conspiracy count. It also asserted reasons why plaintiff's claims were not time-barred, and why the state appellate courts' decisions were improper. Once again, defendants moved to dismiss or for summary judgment on grounds of res judicata and collateral estoppel, statute of limitations, and failure to state a claim against Muxlow. Except for the claims against defendants Muxlow and Malley, the district court held that plaintiff's complaint was barred by the doctrine of res judicata. The court dismissed the complaint against Malley for lack of prosecution. R. Vol. I at 280. On plaintiff's motion, the action against Muxlow was dismissed with prejudice. R. Vol. I at 283. This appeal followed against all defendants except Muxlow.

Different standards of review apply to the various issues presented in this appeal. We review on a de novo basis questions of law presented to and decided by the district court. The district court's decisions regarding plaintiff's Rule 60(b) motion as it relates to Malley are reviewed under an abuse of discretion standard. To the extent any other issues involve a review of the factual record, the usual summary judgment standard applies.

I INTRODUCTION

Absolute bars of res judicata and statute of limitations have been asserted against plaintiff's complaint in federal court. Both apply in varying degrees.

The complaint is untimely on its face with respect to the basic causes of action, unless extended by one of plaintiff's argued exceptions. The alleged incidents of personal injury and malicious prosecution occurred prior to November 1976. Plaintiff filed his complaint on May 11, 1982, almost five and one-half years later and beyond any cognizable statutory period for commencing litigation.

Principles of res judicata apply more directly to subsidiary issues of tolling, waiver, and estoppel for purposes of evaluating the timeliness of plaintiff's filing in federal court, rather than as a complete bar to plaintiff's action.

It is axiomatic that state court judgments are generally to be given full faith and credit in federal courts. 28 U.S.C. Sec. 1738 (1982). The state court judgment is entitled to the same preclusive effect in federal court as it would be given in the New Mexico courts. Marrese v. American Academy of Orthopedic Surgeons, 470 U.S. 373; 105 S.Ct. 1327, 84 L.Ed.2d 274 (1985); Migra v. Warren City School District Board of Education, 465 U.S. 75, 104 S.Ct. 892, 79 L.Ed.2d 56 (1984); Kremer v. Chemical Construction Corp., 456 U.S. 461, 102 S.Ct. 1883, 72 L.Ed.2d 262 (1982); Allen v. McCurry, 449 U.S. 90, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980); see also Haring v. Prosise, 462 U.S. 306, 103 S.Ct. 2368, 76 L.Ed.2d 595 (1983). Furthermore, the Supreme Court in Allen and Migra established that this principle is no less applicable in section 1983 cases. See also Carpenter v. Reed, 757 F.2d 218 (10th Cir.1985); Spence v. Latting, 512 F.2d 93 (10th Cir.), cert. denied, 423 U.S. 896, 96 S.Ct. 198, 46 L.Ed.2d 129 (1975); Brown v. DeLayo, 498 F.2d 1173 (10th Cir.1974).

The problem here is a theoretical one. If the federal court in New Mexico applied the four year limitation period arguably permissible under Gunther v. Miller, 498 F.Supp. 882 (D.N.M.1980), we could have, in theory, been faced with a situation in which a New Mexico state court action dismissed as untimely under a two or three year statute might thereafter have been timely filed in federal court. The bar of res judicata, therefore, might not have automatically precluded the second action. ² And, since the state court judgment did not address the merits of...