FILED

United States Court of Appeals

Tenth Circuit

March 31, 2011

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JUAN MATA,

Plaintiff - Appellant,

v.

RON ANDERSON, Sgt.,

Defendant - Appellee.

 

No. 10-2031

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

(D.C. No. 1:08-CV-00046-JB-RLP)

Dennis Montoya of Montoya Law, Inc., Rio Rancho, New Mexico, for Plaintiff -

Appellant.

Alex Walker, (Lisa Mann and Erin E. Langenwalter of Modrall, Sperling, Roehl,

Harris & Sisk, P.A., with him on the brief), Albuquerque, New Mexico, for

Defendant - Appellee.

Before KELLY, HOLLOWAY, and TACHA, Circuit Judges.

KELLY, Circuit Judge.

Plaintiff-Appellant Juan Mata appeals from the district court’s grant of

summary judgment in favor of Defendant-Appellee Sergeant Ron Anderson of the

Farmington Police Department on his civil rights complaint pursuant to 42 U.S.C.
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§ 1983. Mr. Mata alleged First Amendment retaliatory prosecution and Fourth

Amendment malicious prosecution. We have jurisdiction pursuant to 28 U.S.C.

§ 1291, and we affirm.

Background

Mr. Mata and several of his family members filed a civil rights lawsuit

against the City of Farmington, New Mexico and several of its police officers on

November 28, 2004, arising out of an incident with the police that occurred on

November 29, 2002. Aplt. App. at 70, 188. Specifically, Mr. Mata alleged that

his civil rights were violated when he was arrested and pepper sprayed by Officer

Mike Briseno of the Farmington Police Department. Id. at 70. Mr. Mata and his

family settled the lawsuit on November 16, 2005 for $75,000 (“November 2005

Settlement Agreement”). Id. at 73. The agreement expressly states that “[t]his

Agreement therefore shall be construed to extinguish and discharge all claims

included in the Action and any and all claims that Plaintiffs now have or could

hereafter assert against any of the Released Parties of any nature whatsoever.” 

Aplee. Supp. App. at 3. The Released Parties include the defendants, as well as

their “agents, predecessors and successors, employees, insurers, representatives

and attorneys.” Id. Sergeant Anderson—the defendant in the current action—is

an employee of the City of Farmington; thus, as we explain below, he was

covered by the November 2005 Settlement Agreement.
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On May 12, 2003, the Farmington Police Department received a letter from

Mr. Mata’s mother, signed by Mr. Mata and others, alleging that Officer Briseno

had engaged in illegal stops and searches. Aplt. App. at 70. On May 20 and 23,

2003, Sergeant Anderson received interoffice memoranda from Officer Briseno

regarding a potential death threat against Briseno by Mr. Mata. Id. at 71. On

September 9, 2004, the Farmington Police Department received a letter from an

attorney acting on behalf of Mr. Mata accusing Officer Briseno of having

committed eleven felonies. Id. On October 28, 2004, Mr. Mata appeared outside

the Farmington Police Department displaying signs accusing Officer Briseno of

being “dirty” and a “liar.” Id. at 72. In response, Sergeant Anderson filed a

criminal complaint against Mr. Mata on January 11, 2005, alleging criminal libel. 

Aplee. Supp. App. at 40-41. Sergeant Anderson filed an amended criminal

complaint on February 1, 2005, adding harassment and stalking. Id. at 44-45.

Mr. Mata learned of the criminal charges when he received a letter in the

mail advising him to appear in court. Aplt. App. at 72. He was never arrested,

handcuffed, or taken into custody. Id. When he appeared for the proceeding in

magistrate court, he was shown a video informing him not to leave the county. 

Id. at 60. In magistrate court, Mr. Mata was convicted on all three counts. Id. at

194. Mr. Mata exercised his right to a trial de novo in state district court. Id. at

13. The state district court dismissed the criminal libel charge, and a jury

acquitted Mr. Mata of the harassment and stalking charges on July 17, 2006. Id.
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at 73, 194.

On February 2, 2009, Mr. Mata filed a Second Amended Complaint in

federal court. Id. at 8. The federal claims included three counts of First

Amendment retaliatory prosecution and three counts of Fourth Amendment

malicious prosecution—based upon the criminal libel, harassment, and stalking

charges previously filed by Sergeant Anderson. Id. at 13-22. Also included were

four counts of malicious abuse of process pursuant to state law. Id. at 22-27. In

granting summary judgment in favor of Sergeant Anderson, the district court held

that the November 2005 Settlement Agreement released the First Amendment

claims because those claims accrued at the latest in February 2005, when Sergeant

Anderson filed the amended criminal complaint against Mr. Mata, and Mr. Mata

had not brought forth any evidence that Sergeant Anderson engaged in new

retaliatory acts after the filing of the amended criminal complaint. Id. at 235-36. 

In addition, the court held that Mr. Mata had failed to show that he suffered a

seizure, as required for a Fourth Amendment malicious prosecution claim. Id. at

260. Finally, the court held that the state malicious abuse of process claims were

released by the November 2005 Settlement Agreement and, regardless, were

barred by the statute of limitations. Id. at 238, 266.

On appeal, Mr. Mata argues that the district court erred in (1) holding that

his First Amendment claims accrued in February 2005, (2) declining to recognize

the continuing violations doctrine for First Amendment retaliatory-prosecution
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claims, (3) determining that the November 2005 Settlement Agreement released

Sergeant Anderson from liability on the First Amendment claims, and (4) holding

that Mr. Mata was not seized under the Fourth Amendment. Aplt. Br. at 9-19. He

does not appeal the dismissal of his state tort claims. Id. at 3 n.1. We review de

novo a grant of summary judgment. Lauck v. Campbell Cnty., 627 F.3d 805, 809

(10th Cir. 2010). “The court shall grant summary judgment if the movant shows

that there is no genuine dispute as to any material fact and the movant is entitled

to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

Discussion

A. Accrual of First Amendment Retaliatory-Prosecution Claims

Mr. Mata first argues that the district court erred in holding that his First

Amendment retaliatory-prosecution claims accrued at the time of the filing of the

criminal charges against him and contends that they accrued when the charges

were dismissed. Aplt. Br. at 9-11.

“While state law governs limitations and tolling issues, federal law

determines the accrual of 1983 claims.” Fratus v. Deland, 49 F.3d 673, 675 (10th

Cir. 1995). This court has not specifically addressed when a First Amendment

retaliatory-prosecution claim accrues. We have, however, held that a First

Amendment retaliation claim—where the alleged retaliation was a poor

employment evaluation, as opposed to a criminal charge—accrues when the
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plaintiff knows or has reason to know of the injury that is the basis for the action. 

Workman v. Jordan, 32 F.3d 475, 482 (10th Cir. 1994) (citations omitted). We

reject Mr. Mata’s argument that his First Amendment retaliatory-prosecution

claim did not accrue until the charges against him were dismissed. We note that a

§ 1983 malicious prosecution claim, which requires favorable termination as an

element, does not accrue until the alleged malicious prosecution terminates in

favor of the plaintiff. Wilkins v. DeReyes, 528 F.3d 790, 801 n.6 (10th Cir.

2008) (citing Heck v. Humphrey, 512 U.S. 477, 484-86 (1994)). Unlike a

malicious prosecution claim, however, a First Amendment retaliatory-prosecution

claim does not require a favorable termination of the underlying action. See

Becker v. Kroll, 494 F.3d 904, 925 (10th Cir. 2007).

Under Workman, Mr. Mata’s First Amendment retaliatory-prosecution

claims accrued when he knew or had reason to know of the alleged retaliatory

prosecution; thus, they accrued at the latest in February 2005, when he learned

that Sergeant Anderson filed the amended criminal complaint against him. See

Aplt. App. at 236; Aplee. Supp. App. at 44-45.

B. Continuing Violation Doctrine

Mr. Mata next argues that his First Amendment retaliatory-prosecution

claims did not accrue in February 2005 because Sergeant Anderson’s participation

in the criminal proceedings—in the form of testifying and maintaining the action

against him—amounted to continuing violations of his First Amendment rights. 
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Aplt. Br. at 15.

We need not address whether the continuing violation doctrine applies to

§ 1983 claims because we agree with the district court that Mr. Mata has failed to

establish that Sergeant Anderson engaged in any new retaliatory acts after the

filing of the criminal complaint. We have concluded that “[a]ssuming the

continuing violation doctrine applies to § 1983 claims, the doctrine is triggered

‘by continual unlawful acts, not by continual ill effects from the original

violation.’” Parkhurst v. Lampert, 264 F. App’x 748, 749 (10th Cir. 2008)

(unpublished) (quoting Bergman v. United States, 751 F.2d 314, 317 (10th Cir.

1984)). Mr. Mata has alleged one unlawful act—the filing of the criminal

complaint against him; accordingly, his First Amendment retaliatory-prosecution

claims accrued in February 2005. 

C. November 2005 Settlement Agreement

Mr. Mata argues that even if the First Amendment retaliatory-prosecution

claims accrued in February 2005, the district court erred in holding that the

November 2005 Settlement Agreement precluded those claims because the

settlement involved a separate case. Aplt. Br. at 11. This argument is not

supported by the record.

The November 2005 Settlement states:

Plaintiffs hereby expressly release, forever discharge, and acquit

Defendants and their agents, predecessors and successors, employees,

insurers, representatives and attorneys (“Released Parties”) from all
1

 At oral argument Mr. Mata’s counsel argued that Sergeant Anderson was

sued in his individual capacity and thus was not covered by the November 2005

Settlement Agreement. This argument was raised for the first time at oral

argument and is meritless. The November 2005 Settlement Agreement waived all

claims “against any of the Released Parties of any nature whatsoever.” Aplee.

Supp. App. at 3.

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claims, suits, costs, debts, demands, actions and causes of action which

they had or might have had against the Released Parties, arising out of

or in any way related to the claims which were made or could have been

made in the Action or in any way arising out of the facts or occurrences

that could or did form the basis of the Action, or for any other reason

including, but not limited to, any and all claims based in tort, contract,

statute, ordinance, or law of any nature whatsoever, and any and all

claims under any other federal, state or local statute, ordinance, or law.

This Agreement therefore shall be construed to extinguish and discharge

all claims included in the Action and any and all claims that Plaintiffs

now have or could hereafter assert against any of the Released Parties

of any nature whatsoever.

Aplee. Supp. App. at 3. The plain language precludes the First Amendment

retaliatory-prosecution claims at issue here, as Sergeant Anderson is an employee

covered by the release,1

 and the release precludes Action-related claims as well as

“any and all claims under any other federal, state or local statute, ordinance, or

law.” Id. In addition, Mr. Mata has offered no evidence tending to show any

ambiguity in this language. In particular, he has offered no evidence showing that

he did not intend for the release to be as broad as it is. See Mark V, Inc. v.

Mellekas, 845 P.2d 1232 (N.M. 1993) (holding that a court may consider extrinsic

evidence to determine whether a contract is ambiguous). Indeed, Mr. Mata

asserted in a deposition that he believed that by signing the settlement, he
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released not only the claims arising from the November 2002 incident, but also

“any claims that [he] had up until that time.” Aplt. App. at 56. 

Mr. Mata also argues that enforcing the terms of the November 2005

Settlement Agreement violates public policy. Aplt. Br. at 14-15. The New

Mexico Court of Appeals, however, recently enforced a broad settlement

agreement that similarly waived the right to sue on all accrued claims that were

covered by the settlement. See Branch v. Chamisa Dev. Corp., Ltd., 223 P.3d

942, 949 (N.M. Ct. App. 2009) (enforcing settlement agreement releasing parties

“from any and all claims, known or unknown, at law or in equity, and of any kind

or nature whatsoever”). The First Amendment claims are released by the

November 2005 Settlement Agreement, as the settlement contains no language

limiting the release to the claims related to the 2002 incident. We reject Mr.

Mata’s argument that enforcing a settlement that waives his right to sue on

accrued claims of which he was fully aware violates public policy. The First

Amendment claims are barred.

D. Fourth Amendment Malicious Prosecution Claims

The district court held that the Fourth Amendment malicious prosecution

claims were not released by the 2005 Settlement Agreement because under New

Mexico law, the scope of the November 2005 Settlement Agreement was limited

to claims that had accrued at the time the parties entered the Settlement, and the

Fourth Amendment claims did not accrue until the termination of the criminal
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proceedings in July 2006. Aplt. App. at 232, 236-37. Instead, the district court

granted summary judgment because no seizure was involved.

To prevail on this claim, Mr. Mata must show that he was seized under the

Fourth Amendment. Nielander v. Bd. of Cnty. Comm’rs, 582 F.3d 1155, 1164-65

(10th Cir. 2009). We have declined “to expand Fourth Amendment liability in

cases where the plaintiff has not been arrested or incarcerated.” Becker, 494 F.3d

at 915. Mr. Mata admits that he was never arrested or imprisoned, but he

contends that the travel restrictions placed upon him are sufficient to constitute a

seizure. Aplt. Reply Br. at 6. Restrictions on travel, however, are not sufficient

to constitute Fourth Amendment seizure under our precedent. See Nielander, 582

F.3d at 1165 (rejecting argument that plaintiff was seized under the Fourth

Amendment because a criminal summons restricted his freedom of movement by

preventing him from starting an out-of-state job) (citing Becker, 494 F.3d at

915)). Because Mr. Mata has not shown that he was seized, his Fourth

Amendment claims must fail.

AFFIRMED.