Herrera v. City of Espanola

• Decision Date: 27 April 2022
• Docket Number: 21-2030
• Parties: Darren HERRERA; Paula Garcia, Plaintiffs - Appellants. v. CITY OF ESPANOLA, a Municipality; Jane Roes 1-3 and John Does 1-2, in their individual capacities, Defendants - Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

32 F.4th 980

Darren HERRERA; Paula Garcia, Plaintiffs - Appellants.

v.CITY OF ESPANOLA, a Municipality; Jane Roes 1-3 and John Does 1-2, in their individual capacities, Defendants - Appellees.

No. 21-2030

United States Court of Appeals, Tenth Circuit.

FILED April 27, 2022

Richard Rosenstock (Jamison Barkley with him on the briefs), Santa Fe, New Mexico, for Plaintiffs – Appellants.

Jessica L. Nixon, Robles, Rael & Anaya, P.C. (Douglas E. Gardner with her on the brief), Albuquerque, New Mexico, for Defendants – Appellees.

Before HOLMES, McHUGH, and CARSON, Circuit Judges.

McHUGH, Circuit Judge.

Darren Herrera and Paula Garcia (collectively "Appellants") purchased a home in the City of Espanola, New Mexico (the "City"). At the time Appellants purchased the home, the existing owner, Charlotte Miera, was not current on her water and sewer bill. Although the City initially provided water service to Appellants, it discontinued that service in February 2017, and declined to recommence it until someone paid Ms. Miera's water and sewer bill. For over three years, Appellants routinely contacted the City requesting water service. The City consistently told Appellants that it would not recommence water service until someone paid Ms. Miera's bill.

In June 2020, Appellants initiated this action, raising claims under 42 U.S.C. § 1983 and the New Mexico Tort Claims Act ("NMTCA") based on the City's refusal to provide them water service unless someone paid Ms. Miera's bill. In the Complaint, Appellants also advance § 1983 claims against unidentified City employees in their individual capacities. The City filed a Federal Rule of Civil Procedure 12(b)(6) motion, arguing the statute of limitations had elapsed before Appellants filed their action. Although Appellants conceded a three-year statute of limitations governed their § 1983 claims and a two-year statute of limitations governed their NMTCA claim, they argued the limitations period had not expired on their claims because the City repeatedly denied their requests for water service between February 2017 and February 2020. They expressly relied on the continuing violation doctrine to extend the limitations period, and also argued facts consistent with the related repeated violations doctrine.

The district court granted the City's motion to dismiss, concluding (1) Appellants’ claims accrued no later than March 2017; (2) the continuing violation doctrine was not available within the § 1983 or NMTCA contexts; and (3) even if the continuing violation doctrine was available in the § 1983 or NMTCA contexts, it would not save Appellants’ claims because Appellants suffered only a continuing injury from the City's initial alleged wrongful act of terminating water service. The district court did not consider whether the repeated violation doctrine was applicable.

On appeal, Appellants advance arguments under the continuing violation and repeated violation doctrines. We affirm in part, vacate in part, and reverse in part. We agree with the district court that Appellants’ action first accrued no later than March 2017. Further, although we hold that the continuing violation doctrine is available within the § 1983 context, we also agree with the district court that it does not save Appellants’ § 1983 claims against the City or their NMTCA claim. However, Appellants’ § 1983 claims against the City premised on the City's alleged policy of conditioning water service to new property owners on the payment of bills owed by prior property owners is not time-barred under the repeated violation doctrine and our decision in Hamer v. City of Trinidad , 924 F.3d 1093 (10th Cir. 2019). Further, as to the § 1983 claims against the individual defendants in their individual capacities, no Rule 12(b)(6) motion raising a statute of limitations defense pended before the district court where Appellants had yet to identify and serve the individual defendants.

I. BACKGROUND

A. Factual Allegations

This case comes to us following the district court's grant of the City's motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). Therefore, we take the following allegations from the Complaint as true. Moore v. Guthrie , 438 F.3d 1036, 1039 (10th Cir. 2006).

In 2015, Appellants started renting a mobile home at 1106 North Riverside Drive, Espanola, New Mexico, "from the family of Charlotte Miera." App. at 8. Appellants rented the mobile home through December 2016. During the rental period, the City sent bills for water and sewer service to the 1106 North Riverside Drive residence, addressing the bills to Ms. Miera. Appellants, through an arrangement with their landlords, would review the water bills and send a member of Ms. Miera's family money for their water usage. Appellants allege they mailed payments to Ms. Miera's family member in accordance with this arrangement. As of November or December 2016, however, there was an unpaid balance of $1,760 on Ms. Miera's water account.

On December 1, 2016, the City terminated water service to the 1106 North Riverside Drive residence. Shortly after the termination of service, Appellants purchased the home from Ms. Miera. On December 22, 2016, Appellants submitted a "Utility Permit Application" to the City and provided the City with deposits for water service and sewer service. The City created a new account in Appellants’ names, closed Ms. Miera's account with an outstanding balance of $1,760, and recommenced water service to 1106 North Riverside Drive. Appellants received their first water bill, which was due on February 20, 2017.¹

All, however, was not well with the water service to 1106 North Riverside Drive. On February 13, 2017, Appellants "discovered" the City had turned off water service to the residence. Id. at 10. Mr. Herrera went to the City Water Department that day to investigate the reason for discontinuation of service. A Water Department employee, identified in the Complaint as a Jane Roe defendant, advised Mr. Herrera that water service had been discontinued because of Ms. Miera's overdue bill. The employee further advised that water service would not be restored until the City received $1,760 to cover the outstanding bill. The employee also provided Mr. Herrera with a "Termination Order" and instructed him to sign the document to receive a partial refund of his deposits for water and sewer service. Mr. Herrera signed the "Termination Order" and provided the 1106 North Riverside Drive address as the location where the City could send Appellants a partial refund of their deposit.

On March 1, 2017, Mr. Herrera spoke with City employees at the Water Department, identified as additional Jane Roe and John Doe defendants. During this conversation, Mr. Herrera objected to the termination of service, claiming it violated his rights. The City employees advised Mr. Herrera the City would not recommence water service to 1106 North Riverside Drive until the City received payment on the balance of Ms. Miera's bill. In April, May, July, November, and December of 2017, Mr. Herrera again contacted the Water Department, each time being told that water service would not recommence until someone paid Ms. Miera's bill.² In January 2018, Mr. Herrera called the Water Department manager about the termination of service, but he was able only to leave a voice message and never received a return call from the manager. In July 2018, Mr. Herrera contacted an employee at City Hall who informed him the City would review the file pertaining to water service at 1106 North Riverside Drive. Having not received an update by January 2019, Mr. Herrera again contacted City Hall. This time, a City employee informed him that the account records were stored in boxes and it would take some time to locate the records for review. Beginning in February 2019 and running through October 2019, Appellants called City Hall once or twice a week to inquire about the review of their account file and the reinstatement of water service. In September and October 2019, an employee at City Hall informed Appellants the file for their account could not be located. Ever persistent, Appellants again contacted City Hall in November 2019 and February 2020, being told both times that water service would not be reinstated until the City received payment on Ms. Miera's outstanding bill.

In February 2020, Appellants retained counsel, who sent the City a letter demanding the reinstatement of water service. Initially, counsel's letter did not result in the City restoring water service to 1106 North Riverside Drive. However, in March 2020, the State of New Mexico issued a public health order in connection with COVID-19 that precluded the termination of utility services based on unpaid bills. In accord with the public health order, the City reinstated water service to 1106 North Riverside Drive, on March 18, 2020, more than three years after terminating service.

B. Procedural History

On June 4, 2020, Appellants commenced this action. In their Complaint, Appellants allege "water service is an essential life service for persons who have no well or other source of running water." Id. at 8. They further allege the City provides water service to residents and New Mexico law prohibits a municipality from shifting a prior owner's unpaid utility bill to a new owner and further prohibits the arbitrary denial of service, only permitting a municipal unit to terminate water service if the account holder is delinquent in payment. Appellants additionally allege the City (1) failed to train its employees on the rights of citizens to water and the limitations on the termination of water service and (2) has an unwritten practice of forcing new owners to pay outstanding water bills from prior owners/account holders at an address. In their Complaint, Appellants advance four causes of action: (1) a § 1983 claim alleging Fourteenth Amendment procedural due process violations by all defendants, (2) a § 1983 claim alleging Fourteenth Amendment...