*

 This order and judgment is not binding precedent, except under the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.

FILED

United States Court of Appeals

Tenth Circuit

March 21, 2011

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JAMES ALISTAR MERCER-SMITH;

JANET MERCER-SMITH,

Plaintiffs-Appellants,

v. No. 10-2053

NEW MEXICO CHILDREN, YOUTH

AND FAMILIES DEPARTMENT, 

Defendant,

and

DEBORAH HARTZ; MARY DALE

BOLSON; DORIAN DODSON;

REBECCA LIGGETT; ANGELA

DOMINGUEZ; ROLAND TRUJILLO;

CARMELLA ALCON; VERONICA

VALLEJOS; LOU ANN HOEPPNER;

TERESA VIGIL; FLORA ARAGON;

KIMBERLY CRESPIN; BETH

REICH, all in their individual and

official capacities,

 Defendants-Appellees.

(D.C. No. CIV-09-00340-JEC)

(D. N.M.)

ORDER AND JUDGMENT*
2

Before BRISCOE, Chief Judge, EBEL and O’BRIEN, Circuit Judges.

Plaintiffs James Mercer-Smith and Janet Mercer-Smith appeal from the

district court’s grant of the individual defendants’ motion to dismiss and

defendant Dr. Beth Reich’s motion for summary judgment. We have jurisdiction

pursuant to 28 U.S.C. § 1291 and affirm. 

I

Factual Background

Dr. James Mercer-Smith and Dr. Janet Mercer-Smith, both of whom work

at the Los Alamos National Laboratory in New Mexico, have three daughters,

Julia, Rachel, and Alison. The Mercer-Smiths adopted Julia in 1987. During the

adoption proceedings, Janet gave birth to Rachel, who is eight months younger

than Julia. In 1992, Janet gave birth to Alison.

In 1989, when Julia was two or three years old, she began having

significant behavioral problems that required treatment by medical professionals. 

While Julia received professional counseling, a former babysitter and Janet

Mercer-Smith’s mother began claiming that James Mercer-Smith had sexually

abused his daughters. In 1989 and again in 1992, Janet’s mother complained to

the New Mexico Children Youth and Families Department (“CYFD”) regarding

James’ alleged sex abuse. CYFD investigated these allegations and ultimately

concluded that Janet’s mother’s allegations were “unsubstantiated” and
3

“unconfirmed.” ROA Vol. 1, at 43–44.

In 2000, then twelve-year old Rachel required medical treatment for major

depression. The Mercer-Smiths took Rachel to Dr. Beth Reich, who placed

Rachel on anti-depressant medication. Rachel’s condition began to worsen,

however, and the Mercer-Smiths became concerned that she was having suicidal

thoughts. The Mercer-Smiths again contacted Dr. Reich, who made arrangements

to have Rachel admitted to the psychiatric ward of an area hospital. While in the

hospital, Rachel attended group therapy sessions and began taking different

medication. Although Rachel denied that she had ever been the victim of sexual

abuse, the attending physician recommended that she reside with her nanny

because he believed “parental stress might be contributing to [her] condition.” Id.

at 44. The Mercer-Smiths agreed to this course of action, and in late January

2001, Rachel was released from the psychiatric ward and placed in the custody of

her nanny.

On February 7, Rachel’s nanny called the Mercer-Smiths and told them that

Rachel was having another psychiatric episode. The Mercer-Smiths immediately

took Rachel back to Dr. Reich, who discussed with them the 1990 and 1992

allegations of sexual abuse. Dr. Reich then met with Rachel and Julia together

and asked them if their father had ever sexually abused them. Rachel and Julia

“did not recall any actual sexual abuse.” Id. “During the drive home with their
1

 The record is not clear on this issue, but it appears that Julia was also

living with the nanny during this time.

2

 Shortly after taking Alison to a safe house, CYFD released her to the

custody of her parents. Unlike Julia and Rachel, CYFD never obtained custody of

Alison.

4

nanny, however, the girls1

 . . . became concerned that they may have been

sexually abused by [their father] as children.” Id. The nanny and the children

immediately returned to Dr. Reich’s home, where the girls “reported memories . .

. that when they were ages four to seven, they would sometimes get into bed at

night with [their father] . . . and [he] would touch them all over including their

private parts.” Id. at 45.

Dr. Reich contacted CYFD that night. A few hours later, at about 3:30

a.m., CYFD representatives went to the Mercer-Smiths’ home, spoke with the

family, and removed Alison (then eight years old) from the home and placed her

with the nanny pending further investigation. On February 20, CYFD officials

conducted interviews of all three daughters at a “safe house.” There, Julia and

Rachel told the medical examiner that their father touched them in inappropriate

ways. Alison, however, denied that her father ever engaged in such conduct with

her.2

In March 2001, Julia was referred to a second psychiatrist, who conducted

five therapy sessions with her. He found Julia to be “untruthful and manipulative

and did not believe her sexual abuse claims.” Id. He was later removed from the
5

case by CYFD, and Dr. Reich was reinstated as the girls’ psychiatrist. Following

additional therapy, Dr. Reich reported that Julia and Rachel recalled memories

indicating that they might have been raped by their father.

James Mercer-Smith “categorically denied ever touching any of his

daughters in an inappropriate manner.” Id. at 46. Nonetheless, James submitted

to psychological testing, including an Abel Screen and a Penile Plethysmography. 

“Neither of these laboratory tests indicated that [James] was sexually attracted to

children.” Id. In addition, the psychiatrist who examined him concluded that

there was no evidence that he suffers from pedophilia.

During the investigation period, CYFD hired an independent psychologist

to render an opinion regarding Julia and Rachel’s situation. The independent

psychologist reviewed Janet’s mother’s allegations of sexual abuse in 1990 and

1992, each psychiatric evaluation of Julia and Rachel, and the results of James’

psychological tests. He also conducted follow-up interviews with every member

of the Mercer-Smith family, their nanny, and the other psychologists who worked

with them. The independent psychologist ultimately concluded that “except for

the claims of [Julia] and [Rachel], there [was] no evidence to support the

allegations of sexual abuse” against James Mercer-Smith. Id. He therefore

recommended that CYFD “facilitate a process of reconciliation and reunifying the

family as soon as possible.” Id.

Despite this report, CYFD moved forward with child custody hearings in
6

New Mexico state court, including possible criminal charges against James for

child sexual abuse. A few weeks before the hearing, Julia and Rachel’s nanny

informed the Mercer-Smiths that the girls did not want to testify in court. After

being told she would have to testify, Rachel apparently “took a large overdose of

ibuprofen requiring her stomach to be pumped at the hospital.” Id. at 47. The

nanny also told the Mercer-Smiths that she was fearful Julia “might harm herself

or run away to avoid testifying.” Id.

On August 30, 2001, James Mercer-Smith entered a plea of no-contest to

the charge that he “touched his children Julia and Rachel in a way that made them

feel uncomfortable and which they reasonably perceived as sexual.” ROA Vol. 2,

at 36. Janet also entered a plea of no contest on the charge that she “knew or

should have known that her husband . . . touched . . . Julia and Rachel in a way

that made them feel uncomfortable and which they reasonably perceived as sexual

and she did not take reasonable steps to protect [them] . . . from further harm.” 

Id. at 37. The Mercer-Smiths allege they pled no contest to these charges because

their daughters did not wish to testify and because a psychologist recommended

they not confront the girls on this matter. The state court accepted James and

Janet’s no-contest pleas, determined that Julia and Rachel were “abused

children,” and ordered the state to take legal custody of the children “for an

indeterminate period [of] up to two years.” Id. at 38. 

For much of the two year period in which the Mercer-Smiths lost custody
3

 As far as the record indicates, the Mercer-Smiths did not object to having

their daughters placed in the Ritters’ home.

7

of Julia and Rachel, the girls were placed in the Casa Mesita Group Home. Gay

Farley, the former executive director of the home, and Jennifer Schmierer, a

former counselor at the home, both worked with Julia and Rachel at Casa Mesita. 

In June 2003, CYFD petitioned the state court to approve a proposed plan to

transfer Julia to foster care with the Schmierer family and Rachel to foster care

with the Farley family. The Mercer-Smiths opposed this plan because placement

with these families would create an improper counselor/patient relationship and

because these families were opposed to reunification of the Mercer-Smith family. 

The state court denied CYFD’s motion in November 2003. The court cited

to the Code of Ethics for Occupational and Professional Licensing, Counselors,

and Therapists, which provides that “licensed or registered individuals shall not

enter into a sexual or other dual relationship with a client.” ROA Vol. 1, at 60. 

The state court concluded that because Gay Farley and Jennifer Schmierer had

counseled with Julia and Rachel at the Mesita Group Home, they were not eligible

to act as the girls’ foster parents. CYFD later obtained the court’s consent to

place Julia and Rachel in the home of the Ritter family, a family that was willing

and able to serve as a foster family for the girls.3

Over the next several months, the Mercer-Smiths became suspicious that

their daughters were actually living with the Farley and Schmierer families, rather
8

than with the Ritters. On July 29, 2004, the Mercer-Smiths filed a motion to hold

CYFD and a number of its employees in contempt of court for ignoring the state

court’s order regarding placement of the children. In their motion, the MercerSmiths alleged CYFD had “created a sham to mask” the fact that the Farleys and

Schmierers were acting as the true foster parents of Rachel and Julia. ROA Vol.

2, at 168. 

On January 3, 2008 (more than three years after the Mercer-Smiths filed

their contempt motion and after Julia and Rachel attained the age of majority), the

state court determined that CYFD had violated the court’s order (1) by permitting

the Farleys and Schmierers to “continue . . . providing transportation to and from

school for the girls, taking Rachel to dance class, and Julia to Santa Fe for her

therapy”; and (2) by asking the Ritters to “provide a place for [the girls] to sleep,

with minimal oversight required.” ROA Vol. 1, at 78. The state court further

stated that “[t]he designation by CYFD of the Ritters as ‘foster parents’ was done

deliberately by CYFD for the purposes of concealing from the Court and James

and Janet Mercer-Smith the fact that Jennifer and Eric Schmierer served the

function of being foster parents for Julia . . . and [that] Gay and Dwain Farley

served the function of being foster parents for Rachel.” Id. at 87.

Procedural History

On April 7, 2009, the Mercer-Smiths filed suit in the district court against

CYFD; CYFD employees Deborah Hartz, Mary-Dale Bolson, Dorian Dodson,
4

 Veronica Vallejos and Lou Ann Hoeppner were never served with process,

and they have not made appearances in this case. The parties agree that Vallejos

and Hoeppner are now non-parties to this action.

5

 Count VI is the only count the district court did not ultimately dismiss. 

The parties agree, however, that compensatory and punitive damages are

remedies, not causes of action.

9

Rebecca Liggett, Angela Dominguez, Roland Trujillo, Carmella Alcon, Veronica

Vallejos, Lou Ann Hoeppner, Teresa Vigil, Flora Aragon, and Kimberly Crespin4

(“the individual defendants”); and Dr. Beth Reich. The Mercer-Smiths named the

individual defendants and Dr. Reich in their individual and official capacities. 

The Mercer-Smiths alleged the following claims against all defendants: (1)

violation of 42 U.S.C. § 1983 (count I); (2) civil conspiracy under 42 U.S.C. §

1985 (count II); (3) continuing violations under § 1983 and § 1985 (count III); (4)

negligence, defamation, malicious abuse of process, professional negligence, and

medical malpractice under the New Mexico Tort Claims Act (count IV); state

common law claims for intentional infliction of emotional distress, invasion of

privacy, defamation, professional negligence, negligence, medical malpractice,

and malicious abuse of process (count V); and compensatory and punitive

damages (count VI).5

On February 8, 2010, the district court granted the individual defendants’

Motion for Qualified Immunity and to Dismiss and dismissed counts I, III, IV,

and V without prejudice. The district court did so because “[a]ll claims against

the State Defendants . . . appear to have expired under the applicable statute of
10

limitations.” ROA Vol. 1, at 239.

Also on February 8, the district court granted Dr. Reich’s motion for

summary judgment on the Mercer-Smiths’ § 1983 claim (counts I and III). The

court granted the motion and dismissed these claims with prejudice because (1)

the Mercer-Smiths had not brought forth evidence indicating that Dr. Reich

violated their § 1983 rights; (2) Dr. Reich is immune from suit; (3) Dr. Reich is

not a state actor and therefore not liable under § 1983; and (4) the statute of

limitations bars the Mercer-Smiths’ § 1983 claim against Dr. Reich. The district

court also sua sponte dismissed with prejudice the Mercer-Smiths’ claims under

the New Mexico Tort Claims Act (count IV), and it dismissed without prejudice

their claims under New Mexico common law (count V).

The Mercer-Smiths timely appealed the district court’s grant of the

individual defendants’ motion to dismiss and Dr. Reich’s motion for summary

judgment.

II

Standard of Review

The court reviews both the grant of a motion to dismiss and the grant of a

motion for summary judgment under a de novo standard. PJ v. Wagner, 603 F.3d

1182, 1192–93 (10th Cir. 2010); Christy Sports, LLC v. Deer Valley Resort Co.,

Ltd., 555 F.3d 1188, 1191 (10th Cir. 2009).
11

Analysis

A. The Individual Defendants’ Motion to Dismiss

The Mercer-Smiths argue the district court erred in dismissing their § 1983

claim and state claims against the individual defendants. We address the federal

claim and the state claims in turn.

1. Section 1983

The district court held that the Mercer-Smiths’ § 1983 claim was barred by

the statute of limitations. The statute of limitations in a § 1983 claim “is drawn

from the personal-injury statute of the state in which the federal district court

sits.” Mondragon v. Thompson, 519 F.3d 1078, 1082 (10th Cir. 2008). In New

Mexico, that statute of limitations is three years. O’Connor v. St. John’s College,

290 Fed. App’x. 137, 140 (10th Cir. 2008) (unpublished). The district court held

that the statute of limitations had run on the Mercer-Smiths’ § 1983 claim because

they filed suit on April 7, 2009, but knew of the facts giving rise to their claim

against the individual defendants when they filed their motion in 2004 to hold

them in contempt. Noting that the Mercer-Smiths’ claims in this lawsuit “are

based on the same conduct as the[ir] 2004 contempt motion,” the district court

held that “it [was] clear” the Mercer-Smiths were “fully aware . . . [of the] facts

in 2004 . . . that should have put them on notice” regarding their claims. ROA

Vol. 1, at 236. 

The Mercer-Smiths claim the district court’s ruling was incorrect based on
6

 We note that the Mercer-Smiths also claim the district court erred in

relying on the substance of their contempt motion to determine that the statute

began to run in 2004. According to the Mercer-Smiths, the district court could

(continued...)

12

the doctrines of (1) accrual, (2) equitable tolling, and (3) continuing violation. 

We are not persuaded by any of these assertions.

a. Accrual

“[F]ederal law governs the question of accrual of federal causes of action,

and thus, dictates when the statute of limitations begins to run for purposes of §

1983.” Smith v. City of Enid ex rel. Enid City Comm’n, 149 F.3d 1151, 1154

(10th Cir. 1998) (citations omitted). “A civil rights action accrues when the

plaintiff knows or has reason to know of the injury which is the basis of the

action.” Id. (quoting Baker v. Bd. of Regents, 991 F.2d 628, 632 (10th Cir.

1993)). “Since the injury in a § 1983 case is the violation of a constitutional

right, such claims accrue when the plaintiff knows or should have known that his

or her constitutional rights have been violated.” Id. (citations and quotation

omitted). “This requires the court to identify the constitutional violation and

locate it in time.” Id. (citation and quotation omitted). 

The Mercer-Smiths argue the district court erred in dismissing their § 1983

claim because the claim did not accrue until 2008 when the state court issued its

contempt order, thereby “confirming [that] the family unit had been destroyed by

unconstitutional conduct.”6

 Aplt. Op. Br. at 31. According to the Mercer-Smiths,
6

(...continued)

not properly rely on the contempt motion because they did not attach it to their

complaint. This argument fails. When a document is “referred to in the

complaint and is central to the plaintiff’s claim, a defendant may submit an

indisputably authentic copy of the court to be considered on a motion to dismiss.” 

GFF Corp. v. Associated Wholesale Grocers, Inc., 130 F.3d 1381, 1384 (10th Cir.

1997). The Mercer-Smiths alleged in the complaint that “CYFD’s and its agents’

conduct continued to be in flagrant violation of the court’s orders, resulting in the

filing of a contempt motion by the Mercer-Smiths.” ROA, Vol. 1 at 10. Because

the Mercer-Smiths referred to the 2004 contempt motion in their complaint and

because the motion is central to the Mercer-Smiths’ claims, it was proper for the

district court to consider it in ruling on the individual defendants’ motion to

dismiss. 

13

while they “may have entertained suspicions of misconduct” by the defendants

prior to 2008, they were not on notice of such conduct until after the state court

issued its order. Id.

We are not persuaded by this argument because the record indicates the

Mercer-Smiths knew of the individual defendants’ unlawful actions no later than

2004 and were therefore on notice that their constitutional rights may have been

violated. For one, the very fact that the Mercer-Smiths filed a motion seeking to

hold the individual defendants in contempt indicates that they believed the

individual defendants were violating the state court’s original placement order. In

addition, the factual assertions the Mercer-Smiths make in their contempt motion

indicate they knew in 2004 that the Farleys and Schmierers were improperly

involved in their daughters’ lives. The Mercer-Smiths cite specific examples in

their motion of incidents which caused them to believe the Farleys and
14

Schmierers were disregarding the state court’s order that they not act as the girls’

foster parents. For example, the Mercer-Smiths allege that from October to

December 2003, Alison would frequently meet her sisters at various restaurants

and see Julia arriving and leaving in a car driven by Mr. or Mrs. Schmierer and

Rachel arriving and leaving with Mr. or Mrs. Farley. ROA Vol. 2, at 162–63. In

addition, the Mercer-Smiths allege that on November 11, they personally saw the

Schmierers and Farleys drop off Julia and Rachel at a restaurant to have lunch

with Alison. Id. at 162.

The 2004 contempt motion further indicates that the Mercer-Smiths acted

affirmatively to confirm their suspicions. First, they allege that James “had a

check done” to determine the origins of two unknown phone numbers from which

Julia and Rachel’s cell phones had been called. Id. at 162–63. According to the

Mercer-Smiths, one phone number belonged to Eric Schmierer and the other

belonged to Gay Farley. Id. In addition, the Mercer-Smiths hired a private

investigator to follow the Schmierers and Farleys. According to the MercerSmiths, the private investigator discovered that each morning the Schmierers

picked up Julia from the Ritters’ house and took her to school, while the Farleys

picked up Rachel every morning and took her to school. Id. at 164-66.

In short, the Mercer-Smiths’ contempt motion contains so many specific

allegations of wrongdoing that it is clear they were on notice in 2004 that the

individual defendants violated their constitutional rights. Smith, 149 F.3d at
15

1154. The Mercer-Smiths allege facts based on their own observations, the work

of their private investigator, and statements by their youngest daughter, Alison. 

Because they were aware of these facts, the Mercer-Smiths cannot reasonably

argue that they were not on notice regarding their constitutional claim against the

individual defendants until the state court issued its contempt order in 2008.

b. Equitable Tolling

The Mercer-Smiths also argue that even if the accrual period started prior

to 2008, their claims should not be time-barred because of the doctrine of

equitable tolling. “[S]tate law governs the application of tolling in a [federal]

civil rights action.” Alexander v. Oklahoma, 382 F.3d 1206, 1217 (10th Cir.

2004). Under New Mexico law, equitable tolling (also known as fraudulent

concealment) tolls the statute of limitations “only when the plaintiff does not

discover the alleged [wrong] within the statutory period as a result of the

defendant’s fraudulent concealment.” Tomlinson v. George, 116 P.3d 105, 106

(N.M. 2005). Thus, “if a plaintiff discovers the injury within the time limit,

fraudulent concealment does not apply because the defendant’s actions have not

prevented the plaintiff from filing the claim within the time period and the

equitable remedy is not necessary.” Id. at 111.

The Mercer-Smiths allege the district court should have applied the

doctrine of equitable tolling because they “could . . . prove that they lacked

essential information necessary to appreciate the existence and cause of the
16

[defendants’] constitutional violation[s].” Aplt. Op. Br. at 37. We are not

persuaded by this argument because the Mercer-Smiths have not specifically

alleged that the individual defendants concealed from them the fact that the

Farleys and Schmierers were the de facto foster parents for Julia and Rachel. 

Instead, the Mercer-Smiths simply allege that they did not know of the full effect

of the Farleys and Schmierers’ actions until 2008, when the state court ruled on

their contempt motion. In the absence of an assertion that the defendants

fraudulently concealed information from the Mercer-Smiths, equitable tolling

does not apply to this case. See Tomlinson, 116 P.3d at 106. 

Moreover, even if the individual defendants fraudulently concealed their

behavior, the Mercer-Smiths’ 2004 contempt motion indicates that they were

aware the individual defendants were acting improperly. As noted, the MercerSmiths allege that they saw the Farleys and Schmierers dropping their daughters

off at a restaurant, that they traced phone calls from the Farleys and Schmierers to

their daughters’ cell phones, and that their private investigator saw the Farleys

and Schmierers pick up the girls from the Ritters’ home and take them to school. 

These allegations are sufficient to indicate that the Mercer-Smiths knew of the

individual defendants’ unlawful behavior. The doctrine of equitable tolling

therefore does not apply to this case. See id. at 111 (a plaintiff cannot claim the

benefits of the equitable tolling doctrine if he or she discovers the injury within

the statutory time period).
17

c. Continuing Harm

Finally, the Mercer-Smiths allege the district court erred by declining to

apply the doctrine of continuing violations. Under this doctrine, a plaintiff may

avoid the statute of limitations when the defendant has acted pursuant to a pattern

or longstanding policy or practice of constitutional violations. E.g., Robinson v.

Maruffi, 895 F.2d 649, 655 (10th Cir. 1990). The Mercer-Smiths’ argument

clearly fails because the doctrine of continuing violations does not apply to §

1983 claims. Hunt v. Bennett, 17 F.3d 1263, 1265 (10th Cir. 1994) (holding that

the doctrine of continuing violations does not “extend[] . . . to a § 1983 claim”);

see also Thomas v. Denny’s, Inc., 111 F.3d 1506, 1514 (10th Cir. 1997) (The

doctrine of continuing violations applies to Title VII claims because “of the need

to file administrative charges,” but does not apply to claims that do “not require

[the] filing of such charges before a judicial action may be brought.”).

2. State Claims

 In addition to dismissing the Mercer-Smiths’ § 1983 claim against the

individual defendants, the district court dismissed their state law claims contained

in count IV (negligence, defamation, malicious abuse of process, professional

negligence, and medical malpractice under the New Mexico Tort Claims Act) and 

count V (state common law claims for intentional infliction of emotional distress,

invasion of privacy, defamation, professional negligence, negligence, medical

malpractice, and malicious abuse of process). In dismissing these claims, the
7

 The statute of limitations for the Mercer-Smiths’ claims in count IV (New

Mexico Tort Claims Act) is two years, while the applicable statute of limitations

for their claims in count V (New Mexico common law) is three years. See ROA

Vol. 1, at 238.

18

district court held that the Mercer-Smiths’ state law claims were time-barred

under the two and three year7

 statutes of limitations “for the same reasons set

forth” in the court’s dismissal of the § 1983 claim. ROA Vol. 1, at 238. 

We affirm the district court’s dismissal of these claims because the latest

factual allegation in the Mercer-Smiths’ complaint supporting any claim for relief

is the allegation that, in 2003, the individual defendants “placed the children with

the Farley and Schmierer families in direct violation of the [state court’s] order.” 

Id. at 8. Because the Mercer-Smiths knew of these actions prior to filing their

contempt motion in 2004, the statute of limitations on each state law claim had

clearly run by 2009, when the Mercer-Smiths filed suit. We therefore affirm the

district court’s dismissal of their state law claims against the individual

defendants. 

3. Leave to Amend

In their response to the individual defendants’ motion to dismiss, the

Mercer-Smiths stated: “If, for any reason, the court deems the present complaint

inadequate, Plaintiffs request thirty (30) days to re-plead.” ROA Vol. 1, at 40. 

The district court did not address this request in its order granting the individual

defendants’ motion to dismiss: it simply dismissed the relevant claims without
19

prejudice. The Mercer-Smiths now argue the district erred in not permitting them

to amend their complaint. We review the refusal of leave to amend for abuse of

discretion. Gohier v. Enright, 186 F.3d 1216, 1218 (10th Cir. 1999). 

We conclude that the district court did not abuse its discretion because the

Mercer-Smiths did not comply with the District of New Mexico’s Local Rules as

they relate to amendments of pleadings. As we have previously noted, New

Mexico’s Local Rules require parties seeking leave to amend to (1) file a motion

stating with particularity the grounds for amendment (Rule 7.1); (2) file a

separate brief in support of the motion to amend (Rule 7.5); and (3) attach a

proposed amended complaint to the motion to amend (Rule 15.1). DeHaan v.

United States, 3 Fed. Appx. 729, 731 (10th Cir. 2001) (unpublished). The

Mercer-Smiths did not comply with any of these rules; instead, they simply added

at the end of their opposition a blanket request for leave to amend if the district

court found the complaint to be inadequate. Because the Mercer-Smiths did not

properly seek leave to amend, the district court did not abuse its discretion by not

granting them leave to amend the complaint. See Garman v. Campbell Cnty. Sch.

Dist. No. 1, 630 F.3d 977, 986 (10th Cir. 2010).

The district court also did not err because amendment in this case would be

futile. “Although [the Federal Rules] provide[] that leave to amend shall be given

freely, the trial court may deny leave to amend where amendment would be

futile.” Grossman v. Novell, Inc., 120 F.3d 1112, 1126 (10th Cir. 1997). It
20

would be futile to permit the Mercer-Smiths to amend their complaint because

amendment will not change the fact that the statute of limitations bars their §

1983 claim and state law claims against the individual defendants. No matter

what allegations the Mercer-Smiths add to their amended complaint, the fact

remains that they knew of the defendants’ alleged unlawful actions when they

filed their motion for contempt in 2004. Because amendment cannot cure this

statute-of-limitations defect, the district court was not required to permit the

Mercer-Smiths to amend their complaint. 

B. Dr. Beth Reich’s Motion for Summary Judgment

The Mercer-Smiths also claim the district court erred in granting Dr.

Reich’s motion for summary judgment on their § 1983 claim and in dismissing

sua sponte their state law claims contained in counts IV and V.

1. § 1983 claim

The Mercer-Smiths argue the district court should not have granted

summary judgment on their § 1983 claim because the evidence indicates that Dr.

Reich “set out to deprive them of their constitutional interest in the integrity of

their family unit.” ROA Vol. 1, at 225. Specifically, the Mercer-Smiths claim

Dr. Reich violated their constitutional rights by relying on a “widely discredited”

theory regarding recovered memories and by “persist[ing]” with her claims that

Julia and Rachel had been sexually abused despite “overwhelming contrary

evidence and opinions from her professional colleagues.” Id. at 5, 9.
8

 We note that the district court also granted Dr. Reich’s motion for

summary judgment (1) because the Mercer-Smiths failed to raise genuine issues

of material fact necessary to defeat summary judgment; (2) because Dr. Reich is

immune from suit; and (3) because Dr. Reich cannot be liable as a non-state actor

under § 1983. Since we affirm the district court’s ruling with respect to the

statute of limitations, we do not address the other reasons the district court

granted summary judgment on the § 1983 claim. 

21

We affirm the district court’s ruling that the statute of limitations bars the

Mercer-Smiths’ § 1983 claim against Dr. Reich.8

 As the Mercer-Smiths state in

their complaint, Dr. Reich’s allegedly unlawful actions—her reckless reliance on

a “widely discredited” scientific theory and her persistent allegations against

James Mercer-Smith despite “overwhelming evidence” of his innocence—all took

place no later than 2002, a full seven years before the Mercer-Smiths filed suit. 

Morever, the record indicates that the Mercer-Smiths knew of Dr. Reich’s

allegedly unlawful actions at that time. By 2002, they knew Dr. Reich had

reported James’ alleged abuse to CYFD, they were aware of the medical

foundation upon which Dr. Reich based her expert opinion, and they were aware

of the reports of other psychologists who disagreed with Dr. Reich’s conclusions. 

Id. at 46–47, 241. Accordingly, the district court correctly granted Dr. Reich’s

motion for summary judgment based on her statute of limitations defense. 

The Mercer-Smiths argue in their opening brief that, at the very least, a

factual question exists regarding whether Dr. Reich engaged in unlawful activity

within the limitations period. In support of this assertion, they note that on
22

November 6, 2006, CYFD’s attorney sent Dr. Reich a subpoena requiring her to

testify at a state court hearing regarding custody of Julia and Rachel. Id. at 160. 

The next day, however, CYFD’s attorney faxed Dr. Reich a letter indicating that

the subpoena had been sent to her in error and that she would not be needed at the

upcoming hearing. Id. at 159. 

Despite the Mercer-Smiths’ assertions to the contrary, the November 2006

notice of subpoena fails to create a factual dispute regarding the running of the

statute of limitations. The fact that CYFD sent Dr. Reich a subpoena (which it

later retracted) in 2006 does not reasonably indicate that Dr. Reich was engaged

in any sort of improper activity at that time. It is not surprising that Dr. Reich

could have been called to testify in 2006—she first contacted CYFD regarding her

suspicions that the girls had been sexually abused and she had been deposed in

2002 regarding her professional opinion on this matter. More important,

however, is the fact that even if CYFD’s 2006 subpoena created some sort of

factual dispute regarding the propriety of Dr. Reich’s conduct, the statute of

limitations still began running no later than 2002 when the Mercer-Smiths learned

fully of Dr. Reich’s involvement in the state of New Mexico’s attempt to obtain

custody of their children. Accordingly, we conclude that the district court’s

decision to grant summary judgment on statute of limitations grounds was correct.

2. State Claims

The Mercer-Smiths also appeal the district court’s dismissal of their state
23

law claims against Dr. Reich. After granting Dr. Reich’s motion for summary

judgment on the § 1983 claim, the district court sua sponte dismissed the

remaining state law claims. The district court dismissed the claims in count IV,

which arise out of the New Mexico Tort Claims Act, “given [its] findings”

regarding the Mercer-Smiths’ § 1983 claim. ROA Vol. 1, at 228. And after

dismissing those claims, the district court declined to accept jurisdiction of the

New Mexico common law claims in count V and dismissed them for lack of

federal jurisdiction. 

We affirm the district court’s dismissal of the state law claims contained in

counts IV and V. As to the claims in count IV, the district court properly

dismissed these claims because, like the Mercer-Smiths’ § 1983 claim, they arise

from Dr. Reich’s allegedly improper report of sexual abuse to CYFD and

improper medical conclusions, both of which the Mercer-Smiths were aware no

later than 2002. Thus, the Mercer-Smiths’ knowledge of Dr. Reich’s actions bar

not only her § 1983 claim, but also her state law claims contained in count IV. 

We also affirm the district court’s refusal to accept jurisdiction of the state

law claims in count V. Because the district court had previously dismissed the

Mercer-Smiths’ § 1983 and §1985 claims against Dr. Reich, federal question

jurisdiction in this case was lacking. Further, because all involved parties in this

case are citizens of New Mexico, diversity jurisdiction in this case does not exist. 

Accordingly, the district court was within its discretion to decline supplemental
9

 We note that the district court could have also dismissed the state law

claims in Count IV for lack of federal jurisdiction.

24

jurisdiction9

 on the remaining state law claims and dismiss them for lack of

subject matter jurisdiction.

III

The judgment of the district court is AFFIRMED.

Entered for the Court

Mary Beck Briscoe

Chief Judge