Tomlin v. State of New Mexico et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
RENESHA TOMLIN,
Plaintiff,
v. Civ. No. 24-1163 JB/GBW
STATE OF NEW MEXICO, et al.,
Defendants.
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
THIS MATTER comes before me on Defendant Peter Tasso’s Motion to Dismiss
Plaintiff’s Claims Pursuant to Fed. R. Civ. P. 12(b)(6) and the Law of the Case Doctrine
(doc. 53) and pursuant to the Order of Reference (doc. 51). I RECOMMEND that the
motion be granted for the reasons explained below.
I. Background
Plaintiff filed this action in the Second Judicial District Court on October 9, 2024.
Doc. 1-1. It was removed on November 15, 2024. Doc. 1. The complaint variously
alleges claims under the New Mexico Civil Rights Act (NMCRA), New Mexico Tort
Claims Act (NMTCA), 42 U.S.C §§ 1983 and 1985, New Mexico Religious Freedom
Restoration Act (NMRFRA), and the common law. See generally doc. 1-1. It also appears
to allege claims under the New Mexico Code of Judicial Conduct and the Racketeer
Influence and Corrupt Organizations Act (RICO). See id. at 55–57, 68. All claims arise
from an investigation and legal proceedings that began in 2013 and culminated in the
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removal of Plaintiff’s children and termination of her parental rights in 2016. See id. at
53–85.
The factual allegations involving Defendant Tasso are as follows. Defendant
Tasso “was the children’s court appointed attorney whose responsibility in this role was
to represent the legal interests and rights of the children involved in the case.” Id. at 4 ¶
7. He “failed to do so impartially, harassed and intimidated [Plaintiff] by trespassing on
[her] property, and suppressed exculpatory evidence and manufactured evidence.” Id.
at 15 ¶ 66. He “presented biased reports and supported unwarranted actions by CYFD
without proper investigation or justification.” Id. He “told lies and misrepresentations
in court,” id. at 16 ¶ 68, including making “various assertions about [Plaintiff’s]
interactions with her children and neighbors,” id. at 16 ¶ 67, and informing the court
that Plaintiff had not “complied with [her] case plan,” id. at 43 ¶ 94. He “refused to
adequately investigate[ . . . ,] fabricated evidence, and acted outside the scope of his
employment in his personal capacity, to come to [Plaintiff’s] home and harass,
intimidate, and threaten [her] into not being a witness in [her] own case.” Id. at 16 ¶ 73.
On September 30, 2025, the Court granted all then-pending motions to dismiss
(docs. 5, 8, 9, 42) and dismissed the claims against Defendants Bernalillo County, John E.
Brown Juvenile Justice Center, State of New Mexico, Michelle Lujan Grisham, Susana
Martinez, Melory Harper, Andrea Gonzales, Ana Fox, Nicole Mayer, Alysse Hodgins,
Dana Oskins, Brianna Chavez, State Bar of New Mexico, and Elizabeth Han. See doc. 50.
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The claims against Defendant Tasso were not dismissed because, at the time of the
order, he had not filed a motion to dismiss or other responsive pleading. See id. at 29.
Defendant Tasso was served on July 9, 2025. Doc. 39. On August 21, 2025, he moved
the Court for leave to file an untimely answer, doc. 44, which was granted on February
6, 2026, doc. 52. He filed the instant motion to dismiss on February 13, 2026. Doc. 53.
Plaintiff did not timely respond, and, as of the date of this PFRD, has not responded.
II. Legal Standard
To survive a motion to dismiss, the complaint “must contain sufficient factual
matter, accepted as true, ‘to state a claim to relief that is plausible on its face.’”
Leverington v. City of Colorado Springs, 643 F.3d 719, 723 (10th Cir. 2011) (quoting Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009)). This standard does not require “detailed factual
allegations,” but it does require more than “labels and conclusions” or “a formulaic
recitation of the elements of a cause of action.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555 (2007). When ruling on a 12(b)(6) motion, the court must “assume the truth of all
well-pleaded facts in the complaint, and draw all reasonable inferences therefrom in the
light most favorable to the plaintiffs.” Leverington, 643 F.3d at 723 (quoting Dias v. City
& Cnty. Of Denver, 567 F.3d 1169, 1178 (10th Cir. 2009)). The court need not accept the
truth of any legal conclusions. Iqbal, 556 U.S. at 678.
When a party proceeds pro se, a court construes her pleadings liberally and
holds them “to a less stringent standard than formal pleadings drafted by lawyers.”
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Hall v. Bellmon, 935 F.2d at 1110 (citing Haines v. Kerner, 404 U.S. 519, 520–21 (1972)).
Therefore, “if the court can reasonably read the pleadings to state a valid claim on
which the plaintiff could prevail, it should do so despite the plaintiff’s failure to cite
proper legal authority, his confusion of various legal theories, his poor syntax and
sentence construction, or his unfamiliarity with pleading requirements.” Id. However,
courts should not assume the role of advocate for a pro se litigant and “are not required
to fashion [a pro se party’s] arguments for him where his allegations are merely
conclusory in nature and without supporting factual averments.” United States v. Fisher,
38 F.3d 1144, 1147 (10th Cir. 1994) (citation omitted).
III. Analysis
Defendant Tasso argues the claims against him are time-barred or, in the
alternative, unsupported by factual allegations. See doc. 53 at 2–5. In addition,
Defendant Tasso argues the “law of the case” doctrine precludes a contrary finding
because the same law that warranted dismissal of the claims against the other
defendants applies with equal measure to the claims against him. See Major v. Benton,
647 F.2d 110, 112 (10th Cir. 1981) (“When a court enunciates a rule of law in the course
of a given case, the law of the case doctrine generally requires the court to adhere to the
rule throughout the proceedings.” (citation omitted)).
The undersigned agrees that the claims against Defendant Tasso should be
dismissed for substantially the same reasons articulated in the Court’s prior
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Memorandum Opinion and Order (doc. 50).1 First, the claims are time-barred. The
complaint alleges no actions by Defendant Tasso after 2016, when Plaintiff’s parental
rights were terminated. Plaintiff was aware of Defendant Tasso’s actions at the time
they occurred. Therefore, the claims accrued in 2016 at the latest. This action was not
filed until 2024, approximately eight years after accrual. Consequently, as explained in
the previous order, the limitations period for the claims alleged had long expired. See
NMSA § 41-4A-7 (three-year statute of limitations for NMCRA claims); NMSA § 41-4-15
(two-year statute of limitations for NMTCA claims); Varnell v. Dora Consol. Sch. Dist.,
756 F.3d 1208, 1212 (10th Cir. 2014) (three-year statute of limitations for § 1983 claims);
O’Connor v. St. John’s College, 290 F. App’x 137, 141 (10th Cir. 2008) (three-year period
also applies to § 1985 claims (citing Robinson v. Maruffi, 895 F.2d 649, 653–54 (10th Cir.
1990))); NMSA § 37-1-4 (four-year statute of limitations for claims of fraud and “all
other actions not herein otherwise provided for”); Jaramillo v. Hood, 601 P.2d 66, 66
(N.M. 1979) (applying the four-year limitations period of § 37-1-4 to legal malpractice
claims); NMSA § 37-1-8 (three-year statute of limitations for breach of fiduciary duties,
personal injury, and injuries to reputation). As the Court previously explained, the
allegations do not support application of the continuing violation doctrine to delay
1 As Defendant Tasso notes, the exact nature of the claims against him is somewhat difficult to
ascertain. The undersigned construes Plaintiff’s pleading liberally and includes all claims in this analysis,
even those that do not appear to be asserted against Defendant Tasso. See, e.g., doc. 1-1 at 53 (claims
under the NMCRA are asserted only against “Defendants State of New Mexico, Bernalillo County, and
the New Mexico State Bar Association”); id. at 78 (claims of gross negligence, legal malpractice and breach
of fiduciary duty are asserted only against “Individual Elizabeth Hahn [sic]”).
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accrual or of fraudulent concealment to toll the limitations period. See doc. 50 at 10–14.
The Court’s previous analysis applies equally to the claims against Defendant Tasso
and is incorporated herein by reference.
Second, to the extent Plaintiff alleges claims against Defendant Tasso based on
participation in a conspiracy that remained ongoing after termination of her parental
rights, the Court has explained that no “overt acts” in furtherance of the conspiracy are
alleged after 2016. See doc. 50 at 18. The Court’s prior analysis applies equally to
Defendant Tasso and is incorporated herein. Therefore, in accordance with the three-
year limitations period of §§ 1983 and 1985, any claims against Defendant Tasso based
on the alleged conspiracy are time-barred.
Third, any claims asserted against Defendant Tasso under the NMRFRA, the
New Mexico Code of Judicial Conduct, or RICO fail as a matter of law because no relief
can be granted. See NMSA § 28-22-4(A) (NMRFRA authorizes suits only against “a
government agency”); Code of Judicial Conduct, 21-002(G) (“The Code is not designed
or intended as a basis for civil or criminal liability.”); Gillmor v. Thomas, 490 F.3d 791,
797 (10th Cir. 2007) (a “plaintiff has standing to bring a RICO claim only if he was
injured in his business or property by reason of the defendant’s violation of § 1962”
(quotation omitted)). Accordingly, for the same reasons explained in the previous
order, see doc. 50 at 19, 22–24, these claims against Defendant Tasso must be dismissed.
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IV. Conclusion
For the foregoing reasons, the undersigned RECOMMENDS that the Court
GRANT Defendant Peter Tasso’s Motion to Dismiss Plaintiff’s Claims Pursuant to Fed.
R. Civ. P. 12(b)(6) and the Law of the Case Doctrine (doc. 53) and DISMISS WITH
PREJUDICE all claims against Defendant Tasso.
_____________________________________________
GREGORY B. WORMUTH
CHIEF UNITED STATES MAGISTRATE JUDGE
THE PARTIES ARE NOTIFIED THAT WITHIN 14 DAYS OF SERVICE of a copy of
these Proposed Findings and Recommended Disposition they may file written
objections with the Clerk of the District Court pursuant to 28 U.S.C. § 636(b)(1). A party
must file any objections with the Clerk of the District Court within the fourteen-day
period if that party wants to have appellate review of the proposed findings and
recommended disposition. If no objections are filed, no appellate review will be
allowed.
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