Klein v. Albuquerque Police Department et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
KENNETH F. KLEIN, III,
Plaintiff,
v. No. 1:25-cv-01037-MIS-LF
CITY OF ALBUQUERQUE and
NICHOLAS ACREE,
Defendants.
ORDER OF DISMISSAL
On October 20, 2025, pro se Plaintiff Kenneth F. Klein, III, filed a Civil Rights Complaint
Pursuant to 42 U.S.C. § 1983 (“Complaint”) asserting claims for wrongful arrest, a due process
violation, false allegations in a police report, and excessive force arising from Plaintiff’s arrest by
Defendant Albuquerque Police Officer Nicholas Acree in March 2022. See ECF No. 1 at 3-5.
Plaintiff also asserted claims against the Albuquerque Police Department (“APD”) alleging that
APD failed to adequately train its officers and that APD’s policies and practices were the moving
force behind the constitutional violations. See id. at 5.
On October 22, 2025, United States Magistrate Judge Laura Fashing issued an Order to
Show Cause notifying Plaintiff that it appears Plaintiff’s claims pursuant to 42 U.S.C. § 1983 are
barred by the statute of limitations. See ECF No. 5 at 3 (“[F]or § 1983 claims arising in New
Mexico the limitations period is three years, as provided in New Mexico’s statute of limitations
for personal-injury claims”) (quoting Varnell v. Dora Consol. Sch. Dist., 756 F.3d 1208, 1212 (10th
Cir. 2014). Judge Fashing ordered Plaintiff to show cause why the Court should not dismiss this
case and to file an amended complaint. See id. at 6.
Case 1:25-cv-01037-MIS-LF Document 7 Filed 11/18/25 Page 1 of 3

2
On November 14, 2025, Plaintiff filed an Amended Complaint asserting that the statute of
limitations should be equitably tolled. See ECF No. 6 at 4.
Equitable tolling is a non-statutory tolling principle that provides relief in cases
when exceptional circumstances beyond the plaintiff’s control preclude filing suit
within the statute of limitations. See Snow v. Warren Power & Mach., Inc., 2015–
NMSC–026, ¶ 24, 354 P.3d 1285. “Generally, a litigant seeking equitable tolling
bears the burden of establishing two elements: (1) that he has been pursuing his
rights diligently, and (2) that some extraordinary circumstance stood in his way.”
Slusser, 2013–NMCA–073, ¶ 16, 306 P.3d 524 (internal quotation marks and
citation omitted). Exceptional circumstances require that a plaintiff demonstrate
“an extraordinary event beyond his or her control.” Ocana v. Am. Furniture Co.,
2004–NMSC–018, ¶ 15, 135 N.M. 539, 91 P.3d 58. The doctrine does not “assume
a wrongful—or any—effort by the defendant to prevent the plaintiff from suing.”
Slusser, 2013–NMCA–073, ¶ 14, 306 P.3d 524 (internal quotation marks and
citation omitted). Where a plaintiff fails to produce sufficient facts showing that
either element has been met, equitable tolling should not be applied. Id. ¶ 17.
Little v. Baigas, 390 P.3d 201, 207 (N.M. Ct. App. 2016).
Plaintiff asserts:
Plaintiff was in reasonable fear for his personal safety and faced a credible risk of
retaliation from the APD and Officer Acree, should he file or pursue this lawsuit. . .
Plaintiff acted diligently and filed this Complaint promptly once he believed he
could do so safely as soon as the statute of limitations tolled on the false felony
allegations as the charges w[]ere dismissed without prejudice and had the ability to
be refiled by the district attorney[’]s office. . . Furthermore plaintiff had requested
these documents during the legal proceedings but was never gained [sic] access to
them and therefore plaintiff was unaware that his constitu[]tional and civil rights
w[]ere violated. . . Plaintiff further asserts that factors such as Plaintiff’s
insufficient legal knowledge, reliance on legal text, and absence of notice should
not bar relief where Defendants’ affirmative concealment or misrepresentations
prevented timely filing.
Am. Compl. at 4. Plaintiff’s reference to “these documents” apparently refers to the police report
of his arrest which Plaintiff alleges was false and omitted information. See id. at 3.
Plaintiff has failed to produce sufficient facts showing that equitable tolling should be
applied. Plaintiff has not provided any facts showing that there was a credible risk to his personal
safety. Plaintiff did not pursue his rights diligently. Plaintiff waited until the statute of limitations
Case 1:25-cv-01037-MIS-LF Document 7 Filed 11/18/25 Page 2 of 3

3
ran on his criminal charges, which were dismissed without prejudice, apparently concerned that
filing a lawsuit may cause the criminal charges to be refiled. The fact that the criminal charges
were dismissed without prejudice and could be refiled was not an extraordinary event beyond
Plaintiff’s control that prevented him from filing this lawsuit. Plaintiff does not explain how “these
documents” that he requested but never received prevented him from becoming aware that his civil
rights were violated during his alleged wrongful arrest and Defendant Acree’s alleged use of
excessive force. Plaintiff also does not identify when he requested “these documents,” does not
describe his efforts to obtain the documents, and does not describe Defendants’ “affirmative
concealment or misrepresentations” which prevented Plaintiff from timely filing his Complaint.
IT IS ORDERED that this case is DISMISSED without prejudice.
………………………………………….
MARGARET STRICKLAND
UNITED STATES DISTRICT JUDGE
Case 1:25-cv-01037-MIS-LF Document 7 Filed 11/18/25 Page 3 of 3