Bautista et al v. City of Ruidoso Downs et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
BERNADETTE BAUTISTA and
ANIUWOLF NOHELY BAUTISTA,
Plaintiffs,
v. 	Civ. No. 25‐775 GBW/KRS
CITY OF RUIDOSO DOWNS, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
THIS MATTER is before the Court on Plaintiff’s Motion to Amend. Doc. 19.
Having reviewed the briefing and relevant law, the Court will deny the motion for the
reasons stated below.
I. 	BACKGROUND
Plaintiffs filed this action in the Twelfth Judicial District Court on June 14, 2025.
Doc. 1‐1. The case was removed on August 13, 2025. Doc. 1. On December 22, 2025, the
Court granted Defendants’ motion to dismiss all claims. Doc. 18. The Court granted
Plaintiffs thirty days to file a motion to amend. Id. at 20.
The proposed First Amended Civil Complaint (doc. 19‐1) alleges many of the
same facts as the original complaint (doc. 1‐1). These are as follows. Plaintiffs own and
inhabit a house in Ruidoso Downs, NM. Doc. 19‐1 at ¶ 26. On January 26, 2021,
approximately one day after contractors hired by the City of Ruidoso Downs (“City”)
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began a project on the sewer lines, Plaintiffs’ toilets began to “erupt” and overflow with
sewage. Id. at ¶¶ 31–32. The contractors used a “jetter” to force extremely high
amounts of pressure into the lines, which caused the overflow of sewage into Plaintiffs’
home and blew the cap off a “cleanout” pipe in Plaintiffs’ front yard, resulting in the
formation of a standing pool of sewage. Id. at ¶¶ 32.
City employees and officials were aware of the sewage problem. On October 12,
2021, Plaintiff Bernadette went to the City office to pay a $1,700 water bill and an
employee said, “Oh, I thought you’d be in here sooner.” Id. at ¶ 42. Later that same
month, Bernadette “bumped into” City Council Member Judy Miller and explained the
situation, including how “the work done by SAK [the City contractor] had damaged the
house.” Id. at ¶ 43.
In March 2022, a plumber advised Plaintiffs that their sewage problems were
caused by “work done to the lines” by the City, id. at ¶ 33, and a contractor advised
Bernadette that the damage to the house was too extensive to be repaired, id. at ¶ 59.
Around May 2023, former City clerk Blythe Bowen overheard Director of Public
Works Joey Jarvis and Director of Finance Mary Casteneda discussing how they knew
the damage to Plaintiffs’ home was the City’s fault, but “were going to avoid and try to
‘get out of’ doing anything” to compensate Plaintiffs or their neighbors. Id. at ¶ 72. At
that time, “everyone” who worked for the City knew that the work done by SAK to the
sewage lines had caused the damage to Plaintiffs’ home, id. at ¶ 73, and the City had a
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“standing instruction” that if Bernadette came into the City’s offices, no one was
allowed to help her or give her any information, id. at ¶ 74. When Bowen spoke with
Bernadette on the phone, Giron and Castaneda “were by her side, whispering to her
what to say.” Id. at ¶ 75.
Plaintiffs sent tort claim notices to the City on or about June 6, 2022, August 2,
2023, and August 8, 2023. Id. at ¶ 64. In addition, on January 11, 2023, Plaintiffs’
counsel emailed the City Attorney a copy of the tort claim notice and advised him that
the sewage was polluting the Ruidoso River. Id. at ¶ 49. On January 23, 2023, the City
Attorney advised Plaintiffs’ counsel that the tort claim had been turned over to the
City’s Risk Management and that Plaintiffs “should take whatever appropriate legal
action as [sic] you desire, as this office is no longer involved.” Id. at ¶ 50. On October
16, 2023, the City’s insurer Crawford & Company (“Crawford”) sent an adjuster and an
engineering consultant to Plaintiffs’ home. Id. at ¶ 55. While on site, the engineering
consultant told the adjuster that the damage was “clearly” the fault of the City. Id. at ¶
57. On November 27, 2023, however, Crawford denied the claim in its entirety, stating
that the damage was caused by Plaintiffs’ excessive water usage in February and March
2021. Id. at ¶ 60.
On March 23, 2024, City Councilmen Walter Baber and Terry Proctor came to
Plaintiffs’ home to see the sewage pool for themselves. Id. at ¶ 61. Councilman Baber
said: “This is like that big coverup by the City with that lady who was complaining
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about the pollution in the River . . . that it was smelling and affecting her trees.” Id.
Councilman Proctor “glare[d]” at him and he abruptly “shut up.” Id. On multiple
occasions around April 3–5, 2024, Bernadette attempted to obtain maps of the City
sewer system but was told by employees that the City “does not have any maps of their
municipal sewage lines.” Id. at ¶ 54.
On May 8, 2023, when the City worked on the fire hydrants, Plaintiffs’ toilets
started “bubbling” again and on June 4, 2023, they “erupted.” Id. at ¶ 51.
II. 	LEGAL STANDARD
The Federal Rules of Civil Procedure allow a party to “amend its pleading only
with the opposing party’s written consent or the court’s leave.” Fed. R. Civ. P. 15(a)(2).
Whether to grant or deny a motion to amend is “within the discretion of the trial court,”
Minter v. Prime Equip. Co., 451 F.3d 1196, 1204 (10th Cir. 2006) (quoting Zenith Radio
Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 330 (1971)), but the court “should freely
give leave when justice so requires,” Fed. R. Civ. P. 15(a)(2). The court may deny leave
if there is “undue delay, bad faith or dilatory motive on the part of the movant,
repeated failure to cure deficiencies by amendments previously allowed, undue
prejudice to the opposing party by virtue of allowance of the amendment, futility of
amendment, etc.” Foman v. Davis, 371 U.S. 178, 182 (1962).
“A proposed amendment is futile if the complaint, as amended, would be subject
to dismissal.” Gohier v. Enright, 186 F.3d 1216, 1218 (10th Cir. 1999). Therefore, “[t]he
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futility question is functionally equivalent to the question whether a complaint may be
dismissed for failure to state a claim.” Id. 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). 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. The plausibility standard “does not impose a
probability requirement,” Twombly, 550 U.S. at 556, and the complaint must only be
“enough to raise a right to relief above the speculative level . . . on the assumption that
all the allegations in the complaint are true (even if doubtful in fact),” id. at 555.
However, “[w]here a complaint pleads facts that are ‘merely consistent with’ a
defendant’s liability, it ‘stops short of the line between possibility and plausibility of
‘entitlement to relief.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557). In other
words, the well‐pleaded facts must “permit the court to infer more than the mere
possibility of misconduct.” Id. at 679.
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III. 	A NALYSIS
The proposed First Amended Civil Complaint alleges two claims for relief: (1)
Civil Conspiracy to Deprive Plaintiffs of their 5th and 14th Amendment Rights under 42
U.S.C. § 1983, brought against Defendants Holman, Miller, Walker, Romero, Giron,
Jaron, and the City, and (2) Failure to Intervene to Keep Other Co‐Conspirators from
Engaging in a Civil Conspiracy to Deprive Plaintiffs of their 5th and 14th Amendment
Rights, also under § 1983, against Defendant Lundquist. Doc. 19‐1 at 25–44. Defendants
oppose amendment on the basis of undue delay and futility. Doc. 20.
A. Construing Proposed Civil Conspiracy Claim Against Defendants Holman,
Miller, Walker, Romero, Giron, Jaron, and the City
The precise nature of Plaintiffs’ first putative civil conspiracy claim is difficult to
discern. It appears that Plaintiffs may seek to bring separate but related claims of (i) a
standalone (non‐conspiracy) claim under the Fifth Amendment Takings Clause; (ii) a
conspiracy to violate the Fifth Amendment Takings Clause; and (iii) a conspiracy to
violate the Fourteenth Amendment Due Process Clause. Given the distinctions between
these possible claims, the Court will address them separately.
B. 	Fifth Amendment
The Takings Clause of the Fifth Amendment states that private property may not
“be taken for public use, without just compensation.” U.S. Const., amend. V. “[T]o
make out a Takings Clause claim, a plaintiff must plead that: (1) something was ‘taken’
by the government; (2) it was ‘property’; (3) it was the plaintiff’s property; and (4) it was
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taken ‘for public use, without just compensation.’” Knellinger v. Young, 134 F.4th 1034,
1043 (10th Cir. 2025). Plaintiffs argue that Defendants took their property without just
compensation when City contractors used the “jetter” on the sewage lines, causing
irreparable damage to their home. See doc. 19‐1 at 27–32.
Defendants argue the Fifth Amendment claim 1 is barred by the statute of
limitations. The Court agrees. Section 1983 borrows “the residual or general personal
injury statute of limitations” of the forum state. Owens v. Okure, 488 U.S. 235, 236 (1989).
The limitations period in New Mexico is three years. Varnell v. Dora Consol. Sch. Dist.,
756 F.3d 1208, 1212 (10th Cir. 2014); NMSA § 37‐1‐8. “[A] property owner has a claim
for a violation of the Takings Clause as soon as a government takes his property for
public use without paying for it” and “may sue the government at that time in federal
court.” Knick v. Twp. of Scott, 588 U.S. 180, 189 (2019). Plaintiffs’ home was damaged in
January 2021, and they were aware of the cause no later than March 2022.2 See doc. 19‐1
at ¶ 33. Accordingly, any takings claim based on the work done in January 2021 3
accrued no later than March 2022. The fact that Plaintiffs have not been compensated
1 By its text, the Fifth Amendment does not apply to the state governmental bodies. Thus, it is
more precise to describe this claim as brought under the Fifth Amendment as incorporated by the
Fourteenth Amendment. See Dolan v. City of Tigard, 512 U.S. 374, 383 (1994).
2 In fact, based on the allegations, it appears they were aware of the cause in late October 2021,
when Bernadette explained to Miller that “the work done by SAK had damaged the house.” Doc. 19‐1 at
¶ 43.
3 Plaintiffs acknowledge that the claims in the proposed First Amended Civil Complaint are
based on the damage caused in January 2021, not the additional work done in 2023. See doc. 21 at 9, 11.
They seek leave to submit yet another amended complaint with claims based on City’s actions in 2023.
See id. at 11. That request is addressed below.
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for the damage does not infinitely delay accrual or toll the statute of limitations, because
the constitutional violation was complete at the time of the alleged taking. See Knick,
588 U.S. at 193 (“Compensation under the Takings Clause is a remedy for the
‘constitutional violation’ that ‘the landowner has already suffered’ at the time of the
uncompensated taking.” (quoting San Diego Gas & Elec. Co., 450 U.S. 621, 654 (1981)
(Brennan, J., dissenting)) (emphasis in original)). The Court therefore finds the addition
of a “straightforward” Fifth Amendment claim would be futile.
C. Conspiracy to Violate the Fifth Amendment
As noted above, the putative Count 1 is presented in terms of a conspiracy.
Thus, it is clear that Plaintiffs seek to allege a conspiracy to violate their Fifth
Amendment rights under the Takings Clause. However, from a statute of limitations
perspective, this claim fares no better than a non‐conspiracy Fifth Amendment claim.
First, it should be understood that a civil conspiracy claim under § 1983 is less of
an independent claim and more of a vehicle by which to impose liability on one
defendant for the actions of another performed in the course of the conspiracy. See, e.g.,
Dixon v. Lawton, 898 F.2d 1443, 1449 n.6 (10th Cir. 1990). Consequently, for purposes of
the statute of limitations, an action for civil conspiracy accrues with “each overt act that
is alleged to cause damage to plaintiff.” Scherer v. Balkema, 840 F.2d 437, 439 (7th Cir.
1988) (quoting Gibson v. United States, 781 F.2d 1334, 1340 (9th Cir. 1986)). As explained
above, the relevant damage to Plaintiffs had been caused in January 2021 and they were
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aware of its source no later than March 2022. Therefore, Plaintiffs’ putative claim of a
conspiracy to violate their Fifth Amendment rights against a taking is barred by the
statute of limitations.
D. Conspiracy to Violate the Fourteenth Amendment Due Process Clause
Plaintiffs allege their Fourteenth Amendment due process rights were violated
by the “concerted effort by the Mayor and Officers of the City . . . to deprive Plaintiffs of
any compensation for the Fifth Amendment Taking.” Doc. 19‐1 at 32. 4 Specifically,
Plaintiffs assert that Defendants conspired to deprive them of (1) “notice and a hearing”
before their property was taken, and (2) “just compensation” after their property was
taken. Doc. 19‐1 at 40–41. Defendants argue these facts do not state a claim for a due
process violation. Doc. 20 at 9–11. The Court agrees.
“For a valid § 1983 conspiracy claim, plaintiffs ‘must plead and prove not only a
conspiracy, but also an actual deprivation of rights; pleading and proof of one without
the other will be insufficient.’” Hinkle v. Beckham Cty. Bd. of Cty. Comm’rs, 962 F.3d 1204,
1231 (10th Cir. 2020) (quoting Snell v. Tunnell, 920 F.2d 673, 701 (10th Cir. 1990)).
“Provided that there is an underlying constitutional deprivation, the conspiracy claim
allows for imputed liability; a plaintiff may be able to impose liability on one defendant
4 This portion of the proposed amended complaint appears to be substantially in violation of
Federal Rule of Civil Procedure 10. See Fed. R. Civ. P. 10(b) (“A party must state its claims or defenses in
numbered paragraphs, each limited as far as practicable to a single set of circumstances.”). Therefore, the
Court cites the page number and not the paragraph for identification purposes.
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for the actions of another performed in the course of the conspiracy.” Dixon, 898 F.2d at
1449 n.6 (citations omitted). The Fourteenth Amendment’s Due Process Clause
provides that “[n]o state . . . shall . . . deprive any person of life, liberty, or property,
without due process of law.” U.S. Const. amend. XIV, § 1. “The Fourteenth
Amendment embodies three different protections: (1) a procedural due process
protection requiring the state to provide individuals with some type of process before
depriving them of their life, liberty, or property; (2) a substantive due process
protection, which protects individuals from arbitrary acts that deprive them of life,
liberty, or property; and (3) an incorporation of specific protections afforded by the Bill
of Rights against the states.” Miller v. Campbell Cty., 945 F.2d 348, 352 (10th Cir. 1991).
Indeed, the Supreme Court has held that the Takings Clause of the Fifth Amendment is
incorporated against the states via the Fourteenth Amendment. See Dolan v. City of
Tigard, 512 U.S. 374, 383 (1994).
However, because the Fifth Amendment Takings Clause has been incorporated,
the Tenth Circuit has held that, in cases involving alleged takings, the procedural and
substantive prongs of the Fourteenth Amendment cannot form the basis of an
independent claim based on the taking. As that court explained,
Because the Just Compensation Clause of the Fifth Amendment imposes
very specific obligations upon the government when it seeks to take
private property, we are reluctant in the context of a factual situation that
falls squarely within that clause to impose new and potentially
inconsistent obligations upon the parties under the substantive or
procedural components of the Due Process Clause. It is appropriate in
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this case to subsume the more generalized Fourteenth Amendment due
process protections within the more particularized protections of the Just
Compensation Clause.
Miller, 945 F.2d at 352. Just as in Miller, Plaintiffs appear to make an independent
Fourteenth Amendment claim based on the alleged taking. Therefore, based on Miller,
that claim must fail.
Even if the Court evaluated Plaintiffs’ independent Fourteenth Amendment
claim, they fail to state one that is cognizable. First, Plaintiffs fail to state a claim with
respect to the failure to provide predeprivation notice and a hearing. There is no
allegation that the City or its employees intended or planned to cause a sewage leak on
Plaintiffs’ property, or that this result was actually foreseen. The Due Process Clause
does not generally require predeprivation process “when a state employee negligently
deprives an individual of property,” as providing process before an unforeseen loss
would be “impracticable.” Hudson v. Palmer, 468 U.S. 517, 531–32 (1984); see also Requena
v. Roberts, 893 F.3d 1195, 1212 (10th Cir. 2018) (where the state “cannot predict when the
loss will occur,” a predeprivation hearing is “not only impracticable, but impossible”
(quoting Hudson, 468 U.S. at 532)). In this case, it is difficult to imagine how the City
could have provided predeprivation process because the damage to Plaintiffs’ property
was accidental and unforeseen. And at any rate, for the reasons explained above, any
claim arising prior to January 2021 is outside the statute of limitations. See Varnell, 756
F.3d at 1212.
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Second, Plaintiffs fail to state a claim with respect to Defendants’ alleged
conspiracy to deny them “just compensation.” They allege this was accomplished by
“directing employees not to let Bernadette speak with anyone, to make sure that no one
gave Bernadette any information, and whispering into the ear of any person that was
talking to Bernadette on the phone telling them what to say.” Doc. 19‐1 at 41. Some of
these acts, unlike the alleged taking, occurred within the limitations period. See, e.g.,
doc. 19‐1 at ¶¶ 72–75 (describing events that took place in or around May 2023). But
Plaintiffs have identified no legal basis for the rights they claim were violated.
Essentially, they allege that Defendants denied their meritorious claim and refused to
provide them with additional information. They have identified no due process right to
have their claims approved, or to receive all information at the City’s disposal pending
litigation. Based on the allegations, it appears the City received, investigated, and
ultimately denied Plaintiffs’ claim according to its procedures. “The mere fact [their]
claims were denied does not amount to the denial of due process.” Requena, 893 F.3d at
1213 (citing Coburn v. Wilkinson, 700 F. App’x 834, 837 (10th Cir. 2017)). To the extent
Plaintiffs were dissatisfied with the outcome, both state and federal law provided them
with a meaningful postdeprivation remedy: filing an action in court.
The Court must clarify that it is not holding that deceitful post‐taking
concealment by municipal officials is never relevant to takings litigation. For example,
if officials somehow prevent citizens from learning about a taking or the municipality’s
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involvement in it, such facts could support an argument for equitable tolling, and
perhaps even an independent due process claim. However, Plaintiffs do not, and
cannot under these facts, make such an argument. Plaintiffs quickly knew about the
damage to/taking of their home and that the apparently negligent work on the sewer
lines had been at the behest of the municipality. The municipality’s resistance to paying
for that damage did not conceal any material facts. In fact, if Plaintiffs’ position was
accepted, it would mean that every Fifth Amendment takings claim would have an
infinite statute of limitations as every one involves a failure to pay.
E. 	Failure to Intervene
Finally, Plaintiffs allege a claim for “failure to intervene” against Defendant
Lundquist. Doc. 19‐1 at ¶¶ 93–100. “A plaintiff states a constitutional violation in the
form of failure to intervene by alleging that 1) a government officer violated his
constitutional rights, 2) a different government actor (the defendant) observed or had
reasons to know about that constitutional violation, and 3) the defendant had a realistic
opportunity to intervene, but failed to do so.” Bledsoe v. Carreno, 53 F.4th 589, 616 (10th
Cir. 2022). As explained above, the Court finds Plaintiffs have failed to state a claim for
any constitutional violation. The proposed claim against Defendant Lundquist must
therefore fail on the first element.
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F. 	Conclusion Regarding Proposed Amended Complaint
Based on the foregoing, the Court concludes that the putative claims in the
proposed First Amended Civil Complaint would be subject to dismissal. As such, it is
futile and must be denied on that basis.5
G. Request for Further Amendment
In the reply brief, Plaintiffs request leave to submit yet another proposed
amended complaint, this time including claims based on the damage to their home in
June 2023. Doc. 21 at 11. They do not assert that the relevant facts were previously
unknown or that these claims could not previously have been alleged. The Court has
already granted Plaintiffs thirty days in which to draft and file an amended complaint
after all their claims were dismissed. See doc. 18 at 20. In light of Plaintiffs’ undue delay
in presenting the proposed claims and their repeated failure to do so, see Foman, 371
U.S. at 182, the Court in its discretion will deny that request.
5 To the extent Plaintiffs also allege a conspiracy “to cover up the contamination of the Ruidoso
River,” doc. 19‐1 at ¶ 92, they have not shown a violation of their federal rights for the reasons explained
in the Court’s prior Memorandum Opinion and Order, see doc. 18 at 11–20. To state a § 1983 conspiracy
claim, plaintiffs ‘must plead . . . an actual deprivation of rights.” Hinkle, 962 F.3d at 1231 (quoting Snell,
920 F.2d at 701)).
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IV. 	CONCLUSION
For the foregoing reasons, Plaintiff’s Motion to Amend (doc. 19) is DENIED. As
all claims were previously dismissed, see doc. 18, the Court will enter a separate final
order pursuant to Federal Rule of Civil Procedure 58.
IT IS SO ORDERED.
_____________________________________________
GREGORY B. WORMUTH
CHIEF UNITED STATES MAGISTRATE JUDGE
Presiding by Consent
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