FILED

United States Court of Appeals

Tenth Circuit

January 31, 2012

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JANICE L. SCHRADER,

Plaintiff-Appellant,

v. No. 11-2191

WILLIAM RICHARDSON, a/k/a Bill

Richardson; ARTHUR PEPIN; KAREN

JANES; SARA JASSO; PRISCILLA

PENA; HILDA GIRON; DEBBIE

ALMANZA, individually and in their

official capacities; STATE OF NEW

MEXICO - New Mexico Administrative

Office of the Courts,

Defendants-Appellees.

(D.C. No. 2: CIV-10-01219-JB-CG)

(D. N.M.)

ORDER AND JUDGMENT*

Before BRISCOE, Chief Judge, MURPHY and BRORBY, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination of this

appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is, therefore,

submitted without oral argument. 

*

 This order and judgment is not binding precedent, except under the doctrines of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.
 Appellant Janice L. Schrader, a pro se litigant, appeals the district court’s grant of

summary judgment against her on claims she brought pursuant to 42 U.S.C. § 1983 and

the New Mexico Tort Claims Act. Schrader also seeks leave to proceed in forma pauperis

(“IFP”). We have jurisdiction under 28 U.S.C. § 1291, and we deny her request to

proceed IFP and affirm the district court’s decision.

I.

This is Schrader’s third appeal to this court, all arising out of a default judgment

entered against her in 2007 in Luna County, New Mexico. ROA at 175. In that case,

Schrader’s landlord brought a claim for back rent against Schrader, but failed to serve the

necessary notice and summons. Id. The magistrate court, apparently unaware that

Schrader did not receive the notice and summons, entered a default judgment against

Schrader when she failed to attend a scheduled hearing. Id. Schrader filed a motion to

set aside the default judgment, but before the hearing on her motion, she appealed the

default judgment to the New Mexico District Court, thereby stripping the magistrate court

of jurisdiction to consider her motion. Id. at 176. The district court, mistakenly believing

that the default judgment had been set aside, dismissed the appeal and remanded the case

to the magistrate court. Id. Schrader appealed the district court’s ruling to the New

Mexico Court of Appeals, the New Mexico Supreme Court, and the United States

Supreme Court to no avail. Id.; see Schrader v. Allen, 555 U.S. 869 (2008) (denying

certiorari). The magistrate court has not to date addressed Schrader’s motion to set aside

the judgment. ROA at 178.

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After the United States Supreme Court denied Schrader’s petition for a writ of

certiorari, Schrader began a series of federal suits under 42 U.S.C. § 1983, first against

her landlord’s attorney and process server, Schrader v. Turner, 338 F. App’x 761 (10th

Cir. 2009) (unpublished) [hereinafter Schrader I] and then against the State of New

Mexico and assorted state and state court employees. Schrader v. New Mexico, 361 F.

App’x 971 (10th Cir. 2010) (unpublished) [hereinafter Schrader II]. Her first suit failed

because the defendants were not state actors, Schrader I, 338 F. App’x at 762, and the

second failed because the state was protected from suit under Eleventh Amendment

immunity and the individual defendants had quasi-judicial immunity. Schrader II, 361 F.

App’x at 973. 

In the present case, Schrader filed suit against the same defendants who were

named in Schrader II (Sara Jasso, Priscilla Pena, Hilda Giron, Debbie Almanza, in their

individual and official capacities, and the State of New Mexico Administrative Office of

the Courts) and she added Richard “Bill” Richardson, former governor of New Mexico;

Arthur Pepin, director of the New Mexico Administrative Office of the Courts; and Karen

Janes, the division director of the New Mexico Magistrate Courts (together, Defendants). 

ROA at 178. Schrader, an African American woman, claims that racism motivated the

entry of the default judgment, and has sued for damages under 42 U.S.C. § 1983 and the

New Mexico Tort Claims Act, N.M. Stat. Ann. § 41-4-1 et seq. 

The Defendants filed a motion to dismiss, which the district court converted to a

motion for summary judgment and referred to a federal magistrate judge, who

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recommended dismissal of Schrader’s claims with prejudice as time-barred. ROA at

174–75, 182–83. The district court adopted the findings and recommendations, with one

exception. Id. at 240. While the district court dismissed the individual capacity claims

with prejudice, as recommended, it relied on Eleventh Amendment immunity to dismiss

the official capacity claims without prejudice, in keeping with our precedent in Korgich v.

Regents of N.M. Sch. of Mines, 582 F.2d 549, 550 (10th Cir. 1978). ROA at 232, 240. 

Schrader has timely appealed.

II. 

We review de novo the district court’s determination that the complaint was barred

by the statute of limitations and the Eleventh Amendment. Lang v. Aetna Life Ins. Co.,

196 F.3d 1102, 1104 (10th Cir. 1999); Steadfast Ins. Co. v. Agric. Ins. Co., 507 F.3d

1250, 1253 (10th Cir. 2007).

We must address Eleventh Amendment immunity before addressing the statute of

limitations because it is “jurisdictional in nature.” Wyoming v. United States, 279 F.3d

1214, 1225 (10th Cir. 2002). We analyzed Schrader’s similar § 1983 claims in Schrader

II:

We agree with the district court that New Mexico was

immune from suit under the Eleventh Amendment. That

amendment bars a suit for damages against a state unless

Congress abrogates the state’s sovereign immunity or the state

consents to suit. In enacting § 1983, Congress did not

abrogate New Mexico’s sovereign immunity, and there is no

indication in the record that New Mexico consented to suit. 

Because the defense of sovereign immunity is jurisdictional in

nature, the district court correctly concluded that it lacked

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subject matter jurisdiction over Schrader’s claim against the

state of New Mexico.

361 F. App’x at 973 (internal citations and quotations omitted). The same analysis

applies to bar Schrader’s current § 1983 claims against the State of New Mexico

Administrative Office of the Courts and former Governor Bill Richardson, in his official

capacity. Kentucky v. Graham, 473 U.S. 159, 166 (1985) (“Official-capacity suits . . .

generally represent only another way of pleading an action against an entity of which an

officer is an agent.”).

We next turn to the district court’s statute-of-limitations ruling. After thoroughly

reviewing Schrader’s brief and the record on appeal, we conclude that the district court

did not err in dismissing Schrader’s complaint on these grounds. As the district court

correctly concluded, the statute of limitations for a § 1983 claim in New Mexico is three

years. Wilson v. Garcia, 471 U.S. 261, 280 (1985) (holding that the statute of limitations

in § 1983 claims is governed by state law, and that New Mexico allows only three years

for the filing of claims) (superseded by statute on other grounds). Schrader argues her

injury resulting from entry of the default judgment did not become actionable until

November 2010, when she fully understood the financial impact of the default judgment

against her. Aplt. Br. at 9. Her view of the law regarding the accrual of a claim is

mistaken. “[T]he accrual date of a § 1983 cause of action is a question of federal law that

is not resolved by reference to state law.” Wallace v. Kato, 549 U.S. 384, 388 (2007). 

“[I]t is the standard rule that accrual occurs when the plaintiff has a complete and present

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cause of action, that is, when the plaintiff can file suit and obtain relief.” Id. (internal

citations, brackets, and quotations omitted). “A plaintiff need not know the full extent of

his injuries before the statute of limitations begins to run.” Indus. Constructors Corp. v.

U.S. Bureau of Reclamation, 15 F.3d 963, 969 (10th Cir. 1994). 

Similarly, the New Mexico Tort Claims Act requires potential plaintiffs to

commence an action “within two years after the date of occurrence resulting in loss.” 

N.M. Stat. Ann. § 41-4-15(A). “[A] cause of action brought under [the New Mexico Tort

Claims Act] will accrue regardless of whether or not the plaintiff is aware of the full

extent of his or her injury.” Maestas v. Zager, 152 P.3d 141, 147 (N.M. 2007). “Once a

plaintiff has discovered his or her injury and the cause of that injury, the statute of

limitations begins to run.” Id. at 148. “It is not required that all the damages resulting

from the negligent act be known before the statute of limitations begins to run.” Id.

Schrader’s cause of action accrued no later than October 1, 2007, when she

indicated she was aware of the judgment entered against her by entering a motion to set

the judgment aside. ROA at 95, 235. Schrader initiated this suit by filing her complaint

on December 20, 2010, more than three years after her cause of action accrued; her delay

in filing places her firmly outside of the statute of limitations for a claim under either §

1983 or the New Mexico Tort Claims Act.

III. 

We therefore AFFIRM the dismissal of Schrader’s complaint for substantially the

same reasons stated by the district court. Schrader’s motion to proceed on appeal IFP is

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DENIED because she has failed to advance “a reasoned, nonfrivolous argument on the

law and facts in support of the issues raised on appeal.” DeBardeleben v. Quinlan, 937

F.2d 502, 505 (10th Cir. 1991). 

Entered for the Court

Mary Beck Briscoe

Chief Judge 

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