Herrera v. City of Espanola

Appellate Case: 21-2030     Document: 010110676351       Date Filed: 04/27/2022    Page: 1
                                                                                  FILED
                                                                      United States Court of Appeals
                                       PUBLISH                                Tenth Circuit

                       UNITED STATES COURT OF APPEALS                        April 27, 2022

                                                                         Christopher M. Wolpert
                              FOR THE TENTH CIRCUIT                          Clerk of Court
                          _________________________________

  DARREN HERRERA; PAULA GARCIA,

        Plaintiffs - Appellants.

  v.                                                          No. 21-2030

  CITY OF ESPANOLA, a municipality;
  JANE ROES 1-3 and JOHN DOES 1-2, in
  their individual capacities,

        Defendants - Appellees.
                       _________________________________

                      Appeal from the United States District Court
                            for the District of New Mexico
                        (D.C. No. 1:20-CV-00538-KWR-SCY)
                        _________________________________

 Richard Rosenstock (Jamison Barkley with him on the briefs), Santa Fe, New Mexico,
 for Plaintiffs – Appellants.

 Jessica L. Nixon, Robles, Rael & Anaya, P.C. (Douglas E. Gardner with her on the brief),
 Albuquerque, New Mexico, for Defendants – Appellees.
                         _________________________________

 Before HOLMES, McHUGH, and CARSON, Circuit Judges.
                   _________________________________

 McHUGH, Circuit Judge.
                     _________________________________


       Darren Herrera and Paula Garcia (collectively “Appellants”) purchased a home in

 the City of Espanola, New Mexico (the “City”). At the time Appellants purchased the
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 home, the existing owner, Charlotte Miera, was not current on her water and sewer bill.

 Although the City initially provided water service to Appellants, it discontinued that

 service in February 2017, and declined to recommence it until someone paid Ms. Miera’s

 water and sewer bill. For over three years, Appellants routinely contacted the City

 requesting water service. The City consistently told Appellants that it would not

 recommence water service until someone paid Ms. Miera’s bill.

        In June 2020, Appellants initiated this action, raising claims under 

42 U.S.C. § 1983

 and the New Mexico Tort Claims Act (“NMTCA”) based on the City’s refusal to

 provide them water service unless someone paid Ms. Miera’s bill. In the Complaint,

 Appellants also advance § 1983 claims against unidentified City employees in their

 individual capacities. The City filed a Federal Rule of Civil Procedure 12(b)(6) motion,

 arguing the statute of limitations had elapsed before Appellants filed their action.

 Although Appellants conceded a three-year statute of limitations governed their § 1983

 claims and a two-year statute of limitations governed their NMTCA claim, they argued

 the limitations period had not expired on their claims because the City repeatedly denied

 their requests for water service between February 2017 and February 2020. They

 expressly relied on the continuing violation doctrine to extend the limitations period, and

 also argued facts consistent with the related repeated violations doctrine.

        The district court granted the City’s motion to dismiss, concluding (1) Appellants’

 claims accrued no later than March 2017; (2) the continuing violation doctrine was not

 available within the § 1983 or NMTCA contexts; and (3) even if the continuing violation

 doctrine was available in the § 1983 or NMTCA contexts, it would not save Appellants’

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 claims because Appellants suffered only a continuing injury from the City’s initial

 alleged wrongful act of terminating water service. The district court did not consider

 whether the repeated violation doctrine was applicable.

        On appeal, Appellants advance arguments under the continuing violation and

 repeated violation doctrines. We affirm in part, vacate in part, and reverse in part. We

 agree with the district court that Appellants’ action first accrued no later than March

 2017. Further, although we hold that the continuing violation doctrine is available within

 the § 1983 context, we also agree with the district court that it does not save Appellants’

 § 1983 claims against the City or their NMTCA claim. However, Appellants’ § 1983

 claims against the City premised on the City’s alleged policy of conditioning water

 service to new property owners on the payment of bills owed by prior property owners is

 not time-barred under the repeated violation doctrine and our decision in Hamer v. City of

 Trinidad, 

924 F.3d 1093

 (10th Cir. 2019). Further, as to the § 1983 claims against the

 individual defendants in their individual capacities, no Rule 12(b)(6) motion raising a

 statute of limitations defense pended before the district court where Appellants had yet to

 identify and serve the individual defendants.

                                  I.     BACKGROUND

                                 A.     Factual Allegations

        This case comes to us following the district court’s grant of the City’s motion

 to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). Therefore, we take

 the following allegations from the Complaint as true. Moore v. Guthrie, 

438 F.3d 1036, 1039

 (10th Cir. 2006).

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       In 2015, Appellants started renting a mobile home at 1106 North Riverside

 Drive, Espanola, New Mexico, “from the family of Charlotte Miera.” App. at 8.

 Appellants rented the mobile home through December 2016. During the rental period,

 the City sent bills for water and sewer service to the 1106 North Riverside Drive

 residence, addressing the bills to Ms. Miera. Appellants, through an arrangement with

 their landlords, would review the water bills and send a member of Ms. Miera’s

 family money for their water usage. Appellants allege they mailed payments to

 Ms. Miera’s family member in accordance with this arrangement. As of November or

 December 2016, however, there was an unpaid balance of $1,760 on Ms. Miera’s

 water account.

       On December 1, 2016, the City terminated water service to the 1106 North

 Riverside Drive residence. Shortly after the termination of service, Appellants

 purchased the home from Ms. Miera. On December 22, 2016, Appellants submitted a

 “Utility Permit Application” to the City and provided the City with deposits for water

 service and sewer service. The City created a new account in Appellants’ names,

 closed Ms. Miera’s account with an outstanding balance of $1,760, and recommenced

 water service to 1106 North Riverside Drive. Appellants received their first water

 bill, which was due on February 20, 2017. 1



       1
         In April 2020, the City mailed a water bill for $1,951 to 1106 North
 Riverside Drive, addressed to Ms. Miera. With the exception of the bill in February
 2017 addressed to Appellants, the City sent monthly water bills to 1106 North
 Riverside Drive between 2017 and May 2020, all addressed to Ms. Miera.

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       All, however, was not well with the water service to 1106 North Riverside

 Drive. On February 13, 2017, Appellants “discovered” the City had turned off water

 service to the residence. Id. at 10. Mr. Herrera went to the City Water Department

 that day to investigate the reason for discontinuation of service. A Water Department

 employee, identified in the Complaint as a Jane Roe defendant, advised Mr. Herrera

 that water service had been discontinued because of Ms. Miera’s overdue bill. The

 employee further advised that water service would not be restored until the City

 received $1,760 to cover the outstanding bill. The employee also provided

 Mr. Herrera with a “Termination Order” and instructed him to sign the document to

 receive a partial refund of his deposits for water and sewer service. Mr. Herrera

 signed the “Termination Order” and provided the 1106 North Riverside Drive address

 as the location where the City could send Appellants a partial refund of their deposit.

       On March 1, 2017, Mr. Herrera spoke with City employees at the Water

 Department, identified as additional Jane Roe and John Doe defendants. During this

 conversation, Mr. Herrera objected to the termination of service, claiming it violated

 his rights. The City employees advised Mr. Herrera the City would not recommence

 water service to 1106 North Riverside Drive until the City received payment on the

 balance of Ms. Miera’s bill. In April, May, July, November, and December of 2017,

 Mr. Herrera again contacted the Water Department, each time being told that water

 service would not recommence until someone paid Ms. Miera’s bill.2 In January



       2
           Sometime prior to December 2017, Ms. Miera passed away.
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 2018, Mr. Herrera called the Water Department manager about the termination of

 service, but he was able only to leave a voice message and never received a return

 call from the manager. In July 2018, Mr. Herrera contacted an employee at City Hall

 who informed him the City would review the file pertaining to water service at 1106

 North Riverside Drive. Having not received an update by January 2019, Mr. Herrera

 again contacted City Hall. This time, a City employee informed him that the account

 records were stored in boxes and it would take some time to locate the records for

 review. Beginning in February 2019 and running through October 2019, Appellants

 called City Hall once or twice a week to inquire about the review of their account file

 and the reinstatement of water service. In September and October 2019, an employee

 at City Hall informed Appellants the file for their account could not be located. Ever

 persistent, Appellants again contacted City Hall in November 2019 and February

 2020, being told both times that water service would not be reinstated until the City

 received payment on Ms. Miera’s outstanding bill.

       In February 2020, Appellants retained counsel, who sent the City a letter

 demanding the reinstatement of water service. Initially, counsel’s letter did not result

 in the City restoring water service to 1106 North Riverside Drive. However, in March

 2020, the State of New Mexico issued a public health order in connection with

 COVID-19 that precluded the termination of utility services based on unpaid bills. In

 accord with the public health order, the City reinstated water service to 1106 North

 Riverside Drive, on March 18, 2020, more than three years after terminating service.



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                                  B.     Procedural History

        On June 4, 2020, Appellants commenced this action. In their Complaint,

 Appellants allege “water service is an essential life service for persons who have no well

 or other source of running water.” Id. at 8. They further allege the City provides water

 service to residents and New Mexico law prohibits a municipality from shifting a prior

 owner’s unpaid utility bill to a new owner and further prohibits the arbitrary denial of

 service, only permitting a municipal unit to terminate water service if the account holder

 is delinquent in payment. Appellants additionally allege the City (1) failed to train its

 employees on the rights of citizens to water and the limitations on the termination of

 water service and (2) has an unwritten practice of forcing new owners to pay outstanding

 water bills from prior owners/account holders at an address. In their Complaint,

 Appellants advance four causes of action: (1) a § 1983 claim alleging Fourteenth

 Amendment procedural due process violations by all defendants, (2) a § 1983 claim

 alleging Fourteenth Amendment substantive due process violations by all defendants,

 (3) a § 1983 claim alleging Fourteenth Amendment equal protection violations by all

 defendants, and (4) a NMTCA claim against the City.

        The City moved to dismiss under Federal Rule of Civil Procedure 12(b)(6),

 arguing the statute of limitations had elapsed before Appellants commenced their action.

 In support of this argument, the City contended the Appellants’ action accrued no later

 than March 1, 2017, when Mr. Herrera informed the City that the termination of water

 service violated Appellants’ rights. The City’s Motion to Dismiss Plaintiffs’ Complaint as

 Barred by the Statute of Limitations, however, focused exclusively on the statutes of

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 limitations and did not contend, for instance, that Appellants failed to state the elements

 of a cause of action or lacked a property interest in access to water service.

        Appellants responded by arguing each refusal by the City to reinstate water service

 constituted a “discrete” act and a new violation of their rights that restarted the statute of

 limitations or, alternatively, that the City’s “repeated” decisions to deny water service

 violated their rights and permitted them to pursue their claims even if their causes of

 action accrued by March 1, 2017.3 Id. at 36–38, 40–41, 46–47, 51, 53, 55; see also id. at

 53 (“Plaintiffs have alleged repeated acts of []unlawful conduct occurring during the

 limitations period.”). Appellants sought damages “for acts taken by [the City] that

 occurred within the three years prior to filing of the Complaint on June 4, 2020, not

 merely for harm that was a consequence of the February 2017 termination of their

 service.” App. at 37. And they alleged that “Defendant’s repeated denial of municipal

 water service to them during those three years violated their constitutional rights to due

 process and to equal protection of the laws.” Id.

        The district court granted the City’s motion to dismiss, holding Appellants’

 action was untimely. The district court concluded Appellants’ action accrued no later

 than March 1, 2017, when Mr. Herrera informed the City that it violated his rights by



        3
          Appellants did not raise any argument specific to their failure-to-train
 allegations. In fact, Appellants’ response to the motion to dismiss made no mention
 of their failure-to-train allegations. Likewise, Appellants’ Opening Brief on appeal
 makes no mention of their failure-to-train claim. Accordingly, Appellants have
 abandoned their failure-to-train claim. See Stender v. Archstone-Smith Operating Tr.,
 

910 F.3d 1107, 1117

 (10th Cir. 2018) (treating claims not mentioned on appeal as
 abandoned).
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 terminating his water service. The district court then applied a three-year statute of

 limitations to the § 1983 claims and a two-year statute of limitations to the NMTCA

 claim to conclude that, absent tolling, Appellants’ action filed on June 4, 2020, was

 untimely. The district court further determined that New Mexico does not recognize

 any tolling doctrines relative to NMTCA claims. And the district court concluded the

 continuing violation doctrine was not available within the § 1983 context. As an

 alternative holding, the district court concluded that even if the continuing violation

 doctrine were available within the § 1983 context, it would not save Appellants’

 claims because, although Appellants suffered a continuing harm after March 1, 2017,

 the Complaint did not contain allegations capable of demonstrating that the City

 committed new violations after this date. Based on this reasoning, the district court

 dismissed Appellants’ action with prejudice without discussing the repeated

 violations doctrine. This dismissal applied both to Appellants’ claims against the City

 and their claims against the City employees in their individual capacities, none of

 whom had been identified or served. Appellants timely appealed.

                                   II.     DISCUSSION

        Our analysis proceeds in five parts. First, we outline several basic principles

 regarding the statute of limitations in the context of a § 1983 action, and where a

 defendant raises a limitations defense through a Rule 12(b)(6) motion. Second, we

 announce the applicable standard of review—a matter that the parties dispute in part.

 Third, we assess when Appellants’ causes of action first accrued, concluding the causes

 of action accrued no later than March 2017. Fourth, we explain the two equitable

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  doctrines that might impact the limitations period here and conclude both the continuing

  violation doctrine and the repeated violation doctrine can be applied within the § 1983

  context. Fifth, and finally, we analyze whether the continuing violation doctrine or the

  repeated violation doctrine saves any of Appellants’ claims.

        A.      The Statute of Limitations, § 1983 Actions, & Rule 12(b)(6) Motions

         Congress did not provide a statute of limitations for actions brought under § 1983.

  Arnold v. Duchesne Cnty., 

26 F.3d 982

, 983–84 (10th Cir. 1994). Instead, a federal court

  looks to the law of the forum state to determine the applicable statute of limitations for a

  § 1983 action. See id. at 984. Typically, this entails looking toward the state statute of

  limitations for personal injury claims. Varnell v. Dora Consol. Sch. Dist., 

756 F.3d 1208, 1212

 (10th Cir. 2014). Here, the parties correctly agree that Section 37-1-8 of the New

  Mexico Annotated Statutes governs and provides a three-year limitations period for the

  § 1983 claims. See id. (“[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.”).4

         Determining the accrual date of a § 1983 action, however, “is a question of federal

  law that is not resolved by reference to state law.” Wallace v. Kato, 

549 U.S. 384

, 388



         4
           For purposes of Appellants’ NMTCA claim, the parties also correctly agree a
  two-year statute of limitations period applies. See Maestas v. Zager, 

152 P.3d 141, 144

 (N.M. 2007) (“Actions against a governmental entity or a public employee for
  torts shall be forever barred, unless such action is commenced within two years after
  the date of occurrence resulting in loss, injury or death.” (quoting 

N.M. Stat. Ann. § 41-4-15

(A) (emphasis omitted))).

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  (2007). Because no federal statutory provision governs how to determine the accrual date,

  courts look to “federal rules conforming in general to common-law tort principles.” 

Id.

  “Under those principles, it is ‘the standard rule that accrual occurs when the plaintiff has

  a complete and present cause of action,’ that is, when ‘the plaintiff can file suit and obtain

  relief.’” 

Id.

 (quoting Bay Area Laundry & Dry Cleaning Pension Tr. Fund v. Ferbar

  Corp. of Cal., 

522 U.S. 192, 201

 (1997)). Put another way, “[a] civil rights action accrues

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

  action,” Smith v. City of Enid, 

149 F.3d 1151, 1154

 (10th Cir. 1998) (quotation marks

  omitted), or “when the plaintiff’s ‘right to resort to federal court was perfected.’” 5


         5
           We note that “[a]n accrual analysis begins with identifying ‘the specific
  constitutional right’ alleged to have been infringed.” McDonough v. Smith, 

139 S. Ct. 2149, 2155

 (2019) (quoting Manuel v. Joliet, 

137 S. Ct. 911, 920

 (2017)). On appeal,
  the City contends that where it discontinued water service to Appellants on February
  13, 2017, Appellants lacked a property interest in water from that day forward. The
  City further argues that “[w]ithout a property interest protected by the Fourteenth
  Amendment of the United States Constitution, the City did not, and could not have,
  deprived [Appellants] of their rights by denying the alleged verbal requests for water
  utility service.” Response Br. at 17. But the City failed to advance any argument
  based on the lack of a property interest in its motion to dismiss, either relative to the
  statute of limitations defense or relative to a standalone failure-to-state-a-claim
  argument. Indeed, neither the phrase “property interest” nor any reference to the
  Fourteenth Amendment appears in its motion to dismiss. See App. at 25–34. And to
  the extent the City’s reply brief during the motion to dismiss proceedings might be
  read as alluding to a property interest argument, a contention central to a moving
  party’s affirmative argument for dismissal raised for the first time in a reply brief is
  waived. See Garcia v. Int’l Elevator Co., Inc., 

358 F.3d 777, 781

 (10th Cir. 2004)
  (citing United States ex rel. King v. Hillcrest Health Ctr., Inc., 

264 F.3d 1271, 1279

  (10th Cir. 2001) for proposition that “an argument first raised in a reply brief in
  support of a motion filed with the district court was waived”); see also Arbogast v.
  Kan., Dep’t of Labor, 

789 F.3d 1174

, 1183 n.4 (10th Cir. 2015). In this sense, where
  the City argued Appellants’ claims accrued outside the limitations period and the
  accrual analysis begins with identification of the right infringed, the City, by not
  raising a property interest argument in their 12(b)(6) motion, accepted Appellants’
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  Bergman v. United States, 

751 F.2d 314, 316

 (10th Cir. 1984) (quoting Oppenheim v.

  Campbell, 

571 F.2d 660, 662

 (D.C. Cir. 1978)).6

         The statute of limitations is an affirmative defense that must be raised by the

  defendant. Fernandez v. Clean House, LLC, 

883 F.3d 1296, 1299

 (10th Cir. 2018).

  Typically, facts must be developed to support dismissing a case based on the statute of

  limitations. 

Id.

 But “[a] statute of limitations defense may be appropriately resolved on a

  Rule 12(b) motion when the dates given in the complaint make clear that the right sued

  upon has been extinguished.” Sierra Club v. Okla. Gas & Elec. Co., 

816 F.3d 666, 671

  (10th Cir. 2016) (internal quotation marks omitted). If from the complaint, “the dates on

  which the pertinent acts occurred are not in dispute, [then] the date a statute of limitations

  accrues is . . . a question of law” suitable for resolution at the motion to dismiss stage.

  Edwards v. Int’l Union, United Plant Guard Workers of Am., 

46 F.3d 1047, 1050

 (10th

  Cir. 1995); see also Fernandez, 

883 F.3d at 1299

 (stating that a court may grant a motion

  to dismiss based on a statute of limitations defense only “when the complaint itself




  contention that they had a property interest in water service. Accordingly,
  argumentation about whether Appellants have a property interest in the continuation
  and/or resumption of water service and whether the Appellants adequately requested
  water service, or needed to do so, to have a property interest, are matters left for a
  subsequent stage of litigation because they were not properly before the district court
  on the City’s Rule 12(b)(6) motion to dismiss.
         6
           For purposes of Appellants’ NMTCA claim, New Mexico law similarly
  instructs that “[o]nce a plaintiff has discovered his or her injury and the cause of that
  injury, the statute of limitations begins to run. ‘It is not required that all the damages
  resulting from the negligent act be known before the statute of limitations begins to
  run.’” Maestas, 

152 P.3d at 148

 (quoting Bolden v. Vill. of Corrales, 

809 P.2d 635, 636

 (N.M. Ct. App. 1990)).
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  admits all the elements of the affirmative defense by alleging the factual basis for those

  elements”).

                                   B.      Standard of Review

         The parties agree regarding the basic, overarching standard applicable to our

  review of a Rule 12(b)(6) dismissal, but disagree regarding the standard of review

  governing the district court’s conclusion that Appellants’ action accrued no later than

  March 1, 2017. On this latter, more specific matter, Appellants contend de novo review

  applies, while the City contends clear error review applies. Compare Response Br. at 13

  (“[T]he date when the applicable statute of limitations accrued is a factual question

  reviewed under a clearly erroneous standard.”), with Reply Br. at 2–3 (arguing the City

  makes “a clear misstatement of the law” when arguing for clearly erroneous standard and

  that “no deference” is due to the district court when reviewing a ruling on a motion to

  dismiss). We set forth the general standard of review before addressing the standard for

  reviewing the more specific matter in dispute.

         We review a district court’s grant of a motion to dismiss de novo. Albers v. Bd. of

  Cnty. Comm’rs, 

771 F.3d 697, 700

 (10th Cir. 2014). “[A]ll well-pleaded factual

  allegations in the complaint are accepted as true and viewed in the light most favorable to

  the nonmoving party.” Moore, 

438 F.3d at 1039

 (ellipsis omitted). A complaint must

  contain “enough facts to state a claim to relief that is plausible on its face.” Bell Atl.

  Corp. v. Twombly, 

550 U.S. 544, 570

 (2007). “A claim has facial plausibility when the

  plaintiff pleads factual content that allows the court to draw the reasonable inference that



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  the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 

556 U.S. 662, 678

  (2009).

         On the more specific matter regarding the standard of review of the district court’s

  determination regarding the accrual date, our case law could not be more settled. To

  obtain dismissal at the Rule 12(b)(6) stage based on the statute of limitations, the

  allegations on the face of the complaint surrounding the date of accrual must “make clear

  that the right sued upon has been extinguished.” Sierra Club, 

816 F.3d at 671

 (quotation

  marks omitted). And “[w]hether a court properly applied a statute of limitations and the

  date a statute of limitations accrues under undisputed facts are questions of law we

  review de novo.” Nelson v. State Farm Mut. Auto. Ins. Co., 

419 F.3d 1117, 1119

 (10th

  Cir. 2005).

         In opposition to these straightforward propositions of law, the City cites an

  unpublished decision in D.J. Simmons Inc. v. Broaddus, 

116 F. App’x 964

 (10th Cir.

  2004) (unpublished). In addition to being nonprecedential, that decision is not even

  arguably on point. To be sure, D.J. Simmons states the basic proposition that “[w]e

  review findings of fact under a clearly erroneous standard.” 

Id. at 966

. But our

  application of the clear error standard in D.J. Simmons occurred within the context of

  reviewing a district court’s bench trial findings on whether the terms of several contracts

  permitted prejudgment interest, as well as the district court’s decision to award

  postjudgment interest. 

Id.

 These matters, which occurred near the end of the litigation and

  after the presentation of evidence, are far afield from the resolution of a Rule 12(b)(6)

  motion presenting a question of law regarding the statute of limitations based on the face

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  of the complaint. Our clear precedent requiring de novo review in the latter circumstance

  permits no meritorious dispute. See Nelson, 

419 F.3d at 1119

.

           C.     Appellants’ Action First Accrued No Later than March 1, 2017

         Although we reject the City’s argument regarding the standard of review as to the

  accrual date of Appellants’ action, we, like the district court, conclude the Appellants’

  action first accrued no later than March 1, 2017. Following establishment of Appellants’

  water account for 1106 North Riverside Drive, the City terminated water service

  sometime on or before February 13, 2017. On that date, Mr. Herrera went to the Water

  Department and learned that someone would need to pay the outstanding balance on

  Ms. Miera’s account before the City would resume water service to 1106 North Riverside

  Drive. Arguably, where Appellants contend the City’s discontinuation and conditioning

  of water service on the payment of Ms. Miera’s bill violated their rights, their action

  accrued upon learning of the City’s basis for termination of service. But even if the action

  did not first accrue on February 13, 2017, it certainly first accrued on March 1, 2017,

  when Mr. Herrera informed the City that it had violated his rights by discontinuing water

  service based on Ms. Miera’s unpaid bill. See Smith, 

149 F.3d at 1154

 (“A civil rights

  action accrues when the plaintiff knows or has reason to know of the injury which is the

  basis of the action. Since the injury in a § 1983 case is the violation of a constitutional

  right, such claims accrue ‘when the plaintiff knows or should know that his or her

  constitutional rights have been violated.’” (quoting Lawshe v. Simpson, 

16 F.3d 1475, 1478

 (7th Cir. 1994) (citations and other internal quotation marks omitted))); see also



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  Maestas v. Zager, 

152 P.3d 141, 148

 (N.M. 2007) (stating similar rule on accrual of

  action for purposes of NMTCA claim).

         Appellants, however, did not file this action until more than three years later on

  June 2020, beyond the two-year statute of limitations for initiation of their NMTCA

  claim and the three-year limitations period for commencement of their § 1983 claims.

  Therefore, the burden falls on Appellants to identify a theory that allows them to

  overcome the statutes of limitations and thereby render their claims timely. Aldrich v.

  McCulloch Props., Inc., 

627 F.2d 1036

, 1041 n.4 (10th Cir. 1980); see also Slusser v.

  Vantage Builders, Inc., 

306 P.3d 524

, 531–32 (N.M. Ct. App. 2013) (placing burden on

  plaintiff seeking to toll statute of limitations). In an effort to satisfy their burden,

  Appellants rely upon the continuing violation doctrine or, in the alternative, the repeated

  violation doctrine. We first explain the contours of the two doctrines and their availability

  in the § 1983 context, beginning with the continuing violation doctrine. We then consider

  each doctrine’s applicability to Appellants’ claims, starting with their § 1983 claims and

  then turning to their NMTCA claim. Ultimately, we conclude both doctrines are available

  and that application renders some, but not all, of Appellants’ claims timely.

                                   D.     Limitations Doctrines

  1.     The Continuing Violation Doctrine

         a.      Background on the doctrine

         The continuing violation doctrine is an “equitable principle.” Hunt v. Bennett, 

17 F.3d 1263, 1266

 (10th Cir. 1994). The continuing violation doctrine was first recognized

  by the Supreme Court in National Railroad Passenger Corp. v. Morgan, 

536 U.S. 101

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  (2002), within the context of a hostile work environment claim based in Title VII of the

  Civil Rights Act of 1964.7 Somewhat unique to a hostile work environment claim is the

  principle that no single discrete act gives rise to a cause of action because the claim is

  “based on the cumulative effect of individual acts.” 

Id. at 115

. Because “the incidents

  constituting a hostile work environment are part of one unlawful employment practice,

  the employer may be liable for all acts that are part of this single claim” such that if any

  acts occurred within the statute of limitations, the entire course of conduct can be pursued

  in the action. 

Id. at 118

. Put another way, the continuing violation doctrine “applies when

  the plaintiff’s claim seeks redress for injuries resulting from a series of separate acts that

  collectively constitute one unlawful act, as opposed to conduct that is a discrete unlawful

  act.” Hamer, 

924 F.3d at 1098

 (emphasis added) (internal quotation marks omitted). “An

  important caveat to the continuing violation doctrine, however, is that it is triggered by

  continual unlawful acts, not by continual ill effects from the original violation.” 

Id. at 1099

 (internal quotation marks omitted).

         b.     Availability in § 1983 context

         The Supreme Court has “long recognized that [§ 1983] was not meant to effect a

  radical departure from ordinary tort law.” Rehberg v. Paulk, 

566 U.S. 356, 361

 (2012). In

  this vein, “the time at which a § 1983 claim accrues ‘is a question of federal law,’


         7
          Although the Supreme Court explained and applied the principles rendering
  the hostile work environment claim before it timely, the Court did not use the term
  “continuing violation doctrine.” See Nat’l R.R. Passenger Corp. v. Morgan, 

536 U.S. 101

 (2002). This circuit used the phrase “continuing violation doctrine” as early as
  Pike v. City of Mission, Kan., 

731 F.2d 655, 660

 (10th Cir. 1984), and more recently
  in Hamer v. City of Trinidad, 

924 F.3d 1093

, 1098–99 (10th Cir. 2019).
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  ‘conforming in general to common-law tort principles.’” McDonough v. Smith, 

139 S. Ct. 2149

, 2155 (2019) (quoting Wallace v. Kato, 

549 U.S. 384, 388

 (2007)). Meanwhile, the

  continuing violation doctrine is a “tort principle” that “is a general principle of federal

  common law.” DePaola v. Clarke, 

884 F.3d 481, 486

 (4th Cir. 2018) (citing Heard v.

  Sheahan, 

253 F.3d 316, 318

 (7th Cir. 2001) (collecting cases and describing the “doctrine

  of ‘continuing violation’” as “a general principle of federal common law” and “not

  anything special to section 1983”); Martin A. Schwartz, Section 1983 Litigation Claims

  and Defenses 12.03 (4th ed. Supp. 1 2018); Civil Actions Against the United States, Its

  Agencies, Officers and Employees § 1:31 (2d ed. 2017)); see also Heath v. Bd. of

  Supervisors for S. Univ. & Agric. & Mech. Coll., 

850 F.3d 731, 740

 (5th Cir. 2017) (“The

  continuing violation doctrine is a federal common law doctrine governing accrual.”).

         To displace a generally applicable principle of federal common law, Congress

  must speak to the issue when crafting the pertinent legislation:

         Just as longstanding is the principle that “statutes which invade the
         common law are to be read with a presumption favoring the retention of
         long-established and familiar principles, except when a statutory purpose to
         the contrary is evident.” Isbrandtsen Co. v. Johnson, 

343 U.S. 779, 783

         (1952); Astoria Fed. Savings & Loan Assn. v. Solimino, 

501 U.S. 104, 108

         (1991). In such cases, Congress does not write upon a clean slate. Astoria,
         

501 U.S. at 108

. In order to abrogate a common-law principle, the statute
         must “speak directly” to the question addressed by the common law. Mobil
         Oil Corp. v. Higginbotham, 

436 U.S. 618, 625

 (1978); Milwaukee v.
         Illinois, 

451 U.S. 304, 315

 (1981).

  United States v. Texas, 

507 U.S. 529, 534

 (1993). But no language in § 1983 or any other

  provision governing the commencement of actions under § 1983 speaks directly to the

  applicability of the continuing violation doctrine, no less displaces the doctrine. See, e.g.,


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42 U.S.C. § 1983

. In fact, 

42 U.S.C. § 1988

(a) expresses a preference for application of

  the common law where the statutes governing civil rights actions are silent on a matter

  addressed by the common law. Accordingly, it follows that the continuing violation

  doctrine, as a general principle of the federal common law, is available to a § 1983

  litigant. Such a conclusion is consistent with the seemingly uncontroverted authority from

  other circuits holding the continuing violation doctrine is available within the § 1983

  context. DePaola, 

884 F.3d at 487

; Sherman v. Town of Chester, 

752 F.3d 554, 567

 (2d

  Cir. 2014); Mansourian v. Regents of Univ. of Cal., 

602 F.3d 957

, 973–74 (9th Cir.

  2010); see also Heath, 

850 F.3d at 740

 (collecting cases and stating, “[a] number of

  circuits therefore have applied Morgan when determining whether a section 1983 claim

  alleges a continuing violation”). Therefore, Appellants may seek to rely on the continuing

  violation doctrine in an effort to overcome the statute of limitations on their § 1983

  claims. 8

  2.     The Repeated Violation Doctrine

         a.     Background and availability in § 1983 context

         The repeated violation doctrine is a variation on the continuing violation

  doctrine. The repeated violation doctrine:


         8
          Holding that the continuing violation doctrine is available in the § 1983
  context is not incompatible with our own precedent. We have suggested on multiple
  occasions that the question of whether the continuing violation doctrine is available
  to a § 1983 litigant is an open question in our circuit. Schell v. Chief Just. & Justs. of
  Okla. Sup. Ct., 

11 F.4th 1178

, 1191 n.6 (10th Cir. 2021); Vasquez v. Davis, 

882 F.3d 1270, 1277

 (10th Cir. 2018); Colby v. Herrick, 

849 F.3d 1273, 1280

 (10th Cir. 2017);
  Mata v. Anderson, 

635 F.3d 1250, 1253

 (10th Cir. 2011) (citing Parkhurst v.
  Lampert, 

264 F. App’x 748, 749

 (10th Cir. 2008) (unpublished)). However, in
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        “divides what might otherwise represent a single, time-barred cause of
        action into several separate claims, at least one of which accrues within
        the limitations period prior to suit.” That division, in turn, “allows
        recovery for only that part of the injury the plaintiff suffered during the


  Mercer-Smith v. New Mexico Children, Youth & Families Department, 

416 F. App’x 704, 712

 (10th Cir. 2011) (unpublished), a panel of this court rejected the availability
  of the continuing violation doctrine within the § 1983 context. Mercer-Smith does not
  bind us given its unpublished nature. Further, Mercer-Smith relied on Hunt v.
  Bennett, 

17 F.3d 1262, 1265

 (10th Cir. 1994), for the proposition that the continuing
  violation doctrine “does not ‘extend . . . to a § 1983 claim.’” Mercer-Smith, 

416 F. App’x at 712

 (quoting Hunt, 

17 F.3d at 1265

) (ellipsis in original). But the full quote
  from Hunt reads “Hunt cites no case in which a court has extended the continuing
  violation doctrine to a § 1983 claim.” 17 F.3d at 1266. A court noting a party’s
  failure to cite adequate authority to support a proposition of law differs greatly from
  rejecting that proposition of law following analysis of the merits of the proposition.
  And Hunt ultimately concluded that to the extent the continuing violation doctrine
  might be available in the § 1983 context, the plaintiff’s complaint failed to allege
  sufficient facts to make out a conspiracy which could support the continuing
  violation doctrine, not that the continuing violation doctrine was unavailable in the
  § 1983 context. Id.
          Additionally, although neither the City nor Appellants cite Thomas v. Denny’s,
  Inc., 

111 F.3d 1506

, 1507–08 (10th Cir. 1997), in that case, within the context of a
  claim arising under 

42 U.S.C. § 1981

, we suggested the continuing violation doctrine
  was available only where a plaintiff had to exhaust administrative remedies before
  filing suit. If applied to the § 1983 context, Thomas could be read as typically
  precluding the availability of the continuing violation doctrine because, except in
  contexts not relevant to this case, a § 1983 plaintiff need not exhaust administrative
  remedies before bringing suit, see Porter v. Nussle, 

534 U.S. 516, 523

 (2002)
  (“Ordinarily, plaintiffs pursuing civil rights claims under 

42 U.S.C. § 1983

 need not
  exhaust administrative remedies before filing suit in court.”). But, prior to Thomas,
  we discussed the availability of the continuing violation doctrine in an action alleging
  a conspiracy in which the plaintiff was not required to exhaust his administrative
  remedies before bringing suit. Robinson v. Maruffi, 

895 F.2d 649

, 654–55 (10th Cir.
  1990); see also Hunt, 

17 F.3d at 1266

 (recognizing that Robinson applied continuing
  violation doctrine in context of claim raising conspiracy allegation). And “in cases of
  conflicting circuit precedent our court follows earlier, settled precedent over a
  subsequent deviation therefrom.” United States v. Hansen, 

929 F.3d 1238, 1256

 (10th
  Cir. 2019) (quotation marks omitted). Furthermore, we decided Thomas before the
  Supreme Court decided National Railroad Passenger Corp., 

536 U.S. 101

, a decision
  that did not condition the availability of the continuing violation doctrine on a
  plaintiff’s need to exhaust administrative remedies.
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         limitations period”; recovery for the part of the injury suffered outside
         of the limitations period, however, remains unavailable.

  Hamer, 

924 F.3d at 1100

 (first quoting Kyle Graham, The Continuing Violations

  Doctrine, 

43 Gonz. L. Rev. 271

, 280 (2008), then quoting White v. Mercury Marine Div.,

  of Brunswick, Inc., 

129 F.3d 1428, 1430

 (11th Cir. 1997)). To invoke the repeated

  violation doctrine, a plaintiff must identify a discrete act occurring within the statute of

  limitations period and not just the continuing effect of, or continuing harm from, a

  discrete act that occurred outside the limitations period. See 

id.

 at 1101–02 (citing

  illustrations of repeated violation doctrine from Graham, The Continuing Violation

  Doctrine, 43 Gonz. L. Rev. at 280). Importantly, under the repeated violation doctrine,

  each new violation restarts the statute of limitations, but damages are available only for

  the violations occurring within that limitations period. See id. at 1100.

         Unlike with the continuing violation doctrine, this court has never called into

  question application of the repeated violation doctrine in the context of a § 1983 claim.

  This is unsurprising because the repeated violation doctrine stands for the straightforward

  proposition that discrete § 1983 violations occurring within the statute of limitations are

  actionable, even if claims for prior, similar violations are time barred. See Hamer, 

924 F.3d at 1107

. Thus, the repeated violation doctrine is available in the § 1983 context. Id.

         We now consider whether Appellants have adequately preserved their repeated

  violation argument in the district court and on appeal. As we now explain, the

  Appellants argued facts that put the issue fairly before the district court. On appeal,

  the Appellants argue similar facts and reference the “repeated violations doctrine.”


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  Under these circumstances, particularly where the City has not argued waiver, we

  conclude the repeated violation doctrine is properly before us.

        b.     Preservation

        In the district court, the Appellants did not refer to the repeated violation

  doctrine by name. A careful review of their arguments, however, reveals they argued

  it in substance. In response to the City’s motion to dismiss, the Appellants asserted

  they were entitled to damages:

        for acts taken by Defendant that occurred within three years prior to the
        filing of the Complaint on June 4, 2020, not merely for harm that was a
        consequence of the February 2017 termination of their service. Plaintiffs
        contend that Defendant’s repeated denial of municipal water service to
        them during those three years violated their federal constitutional rights
        to due process and to the equal protection of the law.

  App. at 37. From this and other portions of their argument, it is apparent Appellants

  viewed each refusal to reinstate water service as a discrete violation. See id. at 38

  (arguing that the initial termination of water service was “a separate and discrete

  action from Defendant’s subsequent actions undertaken months later when Defendant

  acted to unlawfully deny [Appellants] water service”); see also Hamer, 924 F.3d

  1100–02 (explaining the distinction between damages available under the continuing

  violation theory and the repeated violation theory). Indeed, Appellants pointed the

  district court to National Railroad Passenger Corporation’s admonition that “[t]he

  existence of past acts and a plaintiff’s prior knowledge of their occurrence, however,

  does not bar a plaintiff from filing claims about related discrete acts so long as the

  acts are independently unlawful and claims addressing those acts are themselves


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  timely filed.” App. at 47–48 (citing Nat’l R.R. Passenger Corp., 

536 U.S. at 112

).

  Like the Appellants, the Supreme Court in National Railroad Passenger Corp. did

  not refer to the repeated violations doctrine by name. Yet, the Court distinguished the

  hostile work environment claim, which arose only after continuing acts were

  combined, from claims for discrete Title VII violations that arose upon a single

  wrongful act. See Nat’l R.R. Passenger Corp., 536 U.S. at 115–16. The Court held

  “[e]ach discrete discriminatory act starts a new clock for filing charges alleging that

  act.” 

Id. at 113

. In contrast, the hostile work environment claim fell within the

  continuing violation doctrine because the separate acts combined to form a single

  violation. 

Id. at 115

.

         Here, Appellants have adequately advanced the argument in the district court

  that each new refusal to provide water service constitutes a discrete violation and

  triggers a new clock for filing the action. See Hamer, 

924 F.3d at 1101

 (concluding

  plaintiff’s argument was consistent with the repeated violation doctrine despite

  plaintiff’s failure to designate the argument as such). Yet, the district court did not

  expressly consider whether the repeated violation doctrine saved any aspect of any of

  Appellants’ § 1983 claims. But it did rule that: “[Appellants’] ensuing requests and

  efforts over the following years to reconnect the water, obtain further information

  about the problem, and Defendants’ alleged continued refusal to do so do not

  constitute new injuries but rather continued effects from the initial shut off.” App. at

  78. Thus, while the district court did not label it as a repeated violation argument, it

  did consider and reject Appellants’ argument that each refusal constituted a new

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  violation with its own limitations period. For these reasons, we are convinced

  Appellants adequately raised the repeated violation doctrine before the district court.

        As to their § 1983 claims, Appellants also raised a repeated violation doctrine

  argument in their Opening Brief on appeal. Specifically, Appellants cited to Hamer

  and explained the repeated violation doctrine. Then in a section titled “The

  Continuing Violation Doctrine or the Repeated Violations Doctrine Apply to this

  Case and Plaintiffs’ Claims were Timely Filed,” Appellants challenged the district

  court’s rejection of the premise “that the acts taken by the City [during the limitations

  period] were ‘separate unlawful acts.’” Opening Br. at 21 (quoting district court

  opinion). After arguing for application of the continuing violation doctrine, the

  Appellants advocated in the alternative for implementation of the repeated violations

  doctrine, stating: “Likewise, each denial of a request for water service was a separate,

  unlawful act by an entity that ‘had the power to do something” about Plaintiffs’

  condition.” Id. at 23 (quoting Heard, 

253 F.3d at 318

 (applying continuing violation

  doctrine to plaintiff’s § 1983 claim for deliberate indifference to prisoner’s serious

  medical condition)). Although Appellants cited a case from the Seventh Circuit

  applying the continuing violation doctrine, they argued the district court should have

  applied “the continuing violation doctrine or the repeated violation doctrine.”

  Opening Brief at 24. Under these circumstances, Appellants have adequately

  preserved their repeated violations doctrine argument.9


        9
           The City does not contend in its Response Brief that Appellants waived or
  forfeited the repeated violation doctrine argument. Accordingly, even assuming
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            E.      Application to Appellant’s § 1983 Claims Against the City

  1.     Continuing Violation Doctrine

         Although we hold that a § 1983 litigant may rely on the continuing violation

  doctrine to overcome the statute of limitations where the first in a series of acts giving

  rise to a single violation occurs outside of the limitations period, the doctrine does not

  save Appellants’ claims here. This is because Appellants’ claims are not premised on a

  series of actions amounting to a single violation of their rights. Rather, Appellants

  contend that each time the City denied one of their requests, the denial constituted a

  separate violation. See Nat’l R.R. Passenger Corp., 

536 U.S. at 114

 (reversing Second

  Circuit’s application of the continuing violation doctrine to serial violations, as opposed

  to serial acts constituting a single violation). Appellants’ Complaint includes the

  following allegations as to each of their three § 1983 causes of action:

         1) “The acts and omissions of Defendants constituted a violation of
            Plaintiffs’ due process right to receive municipal water service and their
            right not to be denied municipal water service in the absence of just
            cause.” App. at 21.

         2) “Plaintiffs had a property interest in receiving municipal water service
            and Defendants’ repeated denial of water service to Plaintiffs . . . was




  Appellants failed to adequately raise a repeated violation doctrine argument before
  the district court, the City has waived the waiver such that we may consider
  Appellants’ argument. See Schell, 11 F.4th at 1192 n.6 (discussing waiver of the
  waiver rule and noting the “failure of party to argue waiver results in waiver of initial
  waiver argument”). As to the individual defendants, Appellants were under no duty to
  preserve any argument because the individual defendants had not been named or
  served as of the time of the motion to dismiss.

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              not rationally related to a legitimate governmental interest and
              constituted a denial of Plaintiffs’ right to substantive due process.” Id.

         3) “The conduct of Defendants in denying municipal water service to
            Plaintiffs because of the actions of Charlotte Miera . . . created an unfair
            burden on Plaintiffs in their efforts to become municipal water users.”
            Id. at 21–22.

  For each of Appellants’ § 1983 causes of action, it is the City’s initial termination of

  water service on February 13, 2017, that Appellants allege violated their rights. In this

  sense, the initial termination of service was a discrete act capable of giving rise to their

  claims. And under Appellants’ theory of the case—that the City was not permitted to

  condition water service on the payment of Ms. Miera’s bill—no additional act or

  cumulative effect of acts was needed to give rise to the claims Appellants seek to advance

  because the initial termination of service provided a basis for of all the elements of their

  claims.10

         Further, where a defendant reaches a final decision on a matter and informs the

  plaintiff of such outside the statute of limitations period, we have rejected efforts by a

  plaintiff to rely on subsequent denials of renewed requests within the limitations period to

  overcome the statute of limitations. Bergman, 

751 F.2d at 317

.11 And this makes perfect


         10
           Notably, although such a theory might support application of the continuing
  violation doctrine, Appellants do not contend they acquired a property interest in
  water only after the City denied service for a specific number of months. Rather,
  Appellants argue any denial of service by the City based on a prior homeowner’s
  unpaid water bill infringes their property interest.
         11
           It is true that in Bergman, we cite to a Ninth Circuit case applying the
  continuing violation doctrine. See Bergman v. United States, 

751 F.2d 314, 317

 (10th
  Cir. 1984) (citing Ward v. Caulk, 

650 F.2d 1144, 1147

 (9th Cir. 1981)). But we did
  so in support of the proposition that “[a] continuing violation is occasioned by
                                                 26
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  sense because any other rule “would, in practical effect, mean that the . . . statute would

  never run” as the plaintiff could always renew a request for defendant to reconsider the

  final decision. 

Id.

         Here, the City terminated water service on February 13, 2017, and Mr. Herrera

  acknowledged his understanding that the reason for the termination—Ms. Miera’s unpaid

  bill—constituted a violation of Appellants’ rights on March 1, 2017. No cumulative acts

  were required to constitute the violation and the statute of limitations began to run. Under

  Bergman, Appellants could not restart the limitations period relative to the initial

  termination of water service by making repeated unsuccessful trips to the Water

  Department and City Hall to request the reactivation of service. And the continuing

  violation doctrine is inapplicable because no further acts were needed to support the

  claim. Therefore, Appellants are barred by the statute of limitations from seeking redress

  for any discrete act that occurred prior to June 4, 2017. This, however, does not spell the

  end of our analysis because the more limited repeated violation doctrine saves a portion

  of Appellants’ § 1983 claims.

  2.     Repeated Violation Doctrine

         Appellants allege the City has an unwritten policy of conditioning water

  service to a new owner on the payment of outstanding bills for which a prior owner is



  continual unlawful acts, not by continual ill effects from the original violation.” Id.
  And we issued our decision on Bergman well before the Supreme Court explained the
  limitations of the continuing violation doctrine in National Railroad Passenger
  Corp., 536 U.S. at 114–15, which distinguishes discrete acts constituting separate
  violations from cumulative acts necessary to support a single violation.
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  responsible. See App. at 20 (“Defendant City of Española maintained an unwritten

  custom or practice of improperly seeking to force citizens who had purchased property to

  pay the bills owed by a prior property owner and/or an unwritten custom or practice

  which permitted, condoned, or authorized the denial of municipal water service without

  providing notice of the right to contest the denial and without providing a hearing.”).

  Appellants further allege the City has enforced this policy to deny water access to

  “numerous citizens since 2006.” Id. And it can fairly be inferred from Appellants’

  Complaint that the policy informed the City’s decision to terminate water service to

  Appellants and its numerous refusals to recommence water service thereafter. To this

  latter assertion, the allegations in the Complaint support the inference that the policy was

  in effect when the City first terminated Appellants’ water service and remained in effect

  until at least until March 18, 2020—when the water service was recommenced due to the

  New Mexico public health order.

         Accordingly, unlike the hostile work environment claim in National Railroad

  Passenger Corp., Appellants challenge a series of unlawful acts each of which

  constitutes an alleged violation. The City terminated water service based on an

  allegedly unconstitutional policy, and Appellants suffered harm flowing from that

  decision for every day over a three-year period. There is no doubt that Appellants

  were aware of their claim because on March 1, 2017, Mr. Herrera informed the City

  that it had violated Appellants’ constitutional rights by terminating water service due

  to Ms. Miera’s unpaid bill. Thus, nothing prevented Appellants from filing a

  complaint asserting their § 1983 claims at that time. As a result, Appellants’ § 1983

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  claim against the City is not one where the injury sued upon arose only after a series

  of connected events that together form a single violation of Appellants’ constitutional

  rights. See Nat’l R.R. Passenger Corp., 

536 U.S. at 115

. The violation occurred when

  the City terminated water service pursuant to an allegedly unconstitutional policy and

  the injury from that violation continued until the City resumed water service. These

  facts do not support application of the continuing violation doctrine.

        Instead, Appellants’ § 1983 claims are like those at issue in Hamer. There, a

  wheelchair user brought claims under Title II of the Americans with Disabilities Act

  (“ADA”) based on the city’s failure to provide accessible curb cuts and sidewalks.

  Hamer, 

924 F.3d at 1097

. At a city council meeting in April 2014, the plaintiff first

  notified the city that he had personally encountered numerous non-compliant

  sidewalks and curb cuts. 

Id.

 The following month, the plaintiff filed a complaint with

  the United States Department of Justice based on the city’s violations of the ADA. 

Id.

  But plaintiff did not file the operative complaint until October 12, 2016. 

Id. at 1098

.

  The district court dismissed the complaint as barred by the applicable two-year

  statute of limitations, and the plaintiff appealed. 

Id.

 at 1098–99. On appeal, we

  agreed with the city that the continuing violation doctrine could not save plaintiff’s

  claim. 

Id. at 1102

. We held, however, that the repeated violation doctrine permitted

  the plaintiff to seek damages incurred during the limitations period. 

Id. at 1107

.

  We explained that the city commits “a ‘new violation’ of the ADA “each day that it

  fails to remedy a non-compliant service, program, or activity.” 

Id. at 1105

. To hold

  otherwise, we reasoned, would allow the city to violate the act with impunity once

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  the limitations period had expired. 

Id. at 1107

. Thus, while the plaintiff could not

  seek damages for the entire period the offensive policy was in place, he could recover

  for the repeated daily violations occurring during the limitations period. 

Id.

         The same result is appropriate here. Under the repeated violation doctrine and

  Hamer, Appellants can pursue their § 1983 claims to the limited extent the claims are

  based on the City’s alleged policy, and enforcement thereof, for the three years predating

  Appellants’ commencement of their action. The application of the repeated violation

  doctrine allows Appellants to obtain relief but limits their damages to the three-year

  period preceding initiation of the action. This avoids granting the City permission to

  violate the Appellants’ rights with impunity and prevents prospective plaintiffs from

  sitting on their rights to increase the value of claims against the City.

         In sum, within the context of a suit challenging a municipal policy, “[s]o long as

  the service, program, or activity remains non-compliant, ‘and so long as a plaintiff is

  aware of that and remains [impacted]’” the plaintiff may pursue the claim. Hamer, 

924 F.3d at 1107

 (quoting Pickern v. Holiday Quality Foods, Inc., 

293 F.3d 1133, 1137

 (9th

  Cir. 2002) (applying repeated violation doctrine to ongoing ADA violation)). But the

  plaintiff has no cause of action for “injury that occurred outside the limitations period.”

  Pickern, 

293 F.3d at 1137

.

         We recognize that some out-of-circuit cases apply the continuing violation

  doctrine in the context of a claim challenging a municipal policy. See, e.g., Lucente v.

  Cnty. of Suffolk, 

980 F.3d 284

, 308–11 (2d Cir. 2020) (applying continuing violation

  doctrine to § 1983 claims based on policy of acquiescence to sexual harassment and

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  assault of female prisoners); Shomo v. City of N.Y., 

579 F.3d 176

, 181–82 (2d Cir.

  2009) (applying the continuing violation doctrine to § 1983 claims based on

  deliberate indifference to prisoner’s serious medical condition); Gutowsky v. Cnty. of

  Placer, 

108 F.3d 256

, 259–60 (9th Cir. 1997) (applying continuing violation doctrine

  to § 1983 claims based on gender discrimination in the workplace). We respectfully

  disagree.

        In our view, whether a policy that remains in effect may be challenged through

  the continuing violation doctrine versus the repeated violation doctrine requires a

  case-by-case analysis. In some cases, enforcement of the policy may accumulate into

  a single injury over the course of time, permitting reliance on the continuing

  violation doctrine. In other cases, however, the municipality’s enforcement of the

  policy will give rise to a discrete injury upon the policy’s enactment or a

  municipality’s first enforcement of the policy against a plaintiff. In such instances, a

  plaintiff has an immediate and discrete injury capable of giving rise to a cause of

  action. As a result, the premise of the continuing violation doctrine—that a series of

  actions eventually cumulate to give rise to a single wrong—is not applicable. See

  Nat’l R.R. Passenger Corp., 536 U.S. at 116–19.

        The Second Circuit explained the fact-specific focus of the continuing

  violation doctrine in Shomo. There, a prisoner alleged a series of actions and

  inactions by prison officials that he claimed together supported his claim of

  deliberate indifference. Shomo, 579 F.2d at 180. The court explained that “under

  Morgan, the continuing violation doctrine can be applied when the plaintiff’s claim

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  seeks redress for injuries resulting from ‘a series of separate acts that collectively

  constitute one unlawful act,’ but the doctrine cannot be applied when the plaintiff

  challenges conduct that is a discrete unlawful act.” Id. at 181 (quoting Nat’l R.R.

  Passenger Corp., 

536 U.S. at 117

). The Second Circuit further admonished, “[t]hat

  the continuing violation doctrine can apply, however, does not mean it must.” 

Id. at 182

 (emphasis in original). It then proceeded to consider each of the plaintiff’s

  claims individually to determine whether it was based on a single act constituting a

  violation, or a series of actions cumulating in a single violation. 

Id.

 579 F.3d at

  183–84.

         The Appellants’ § 1983 claims based on the City policy conditioning the

  provision of water service on payment of the prior account holder’s arrearages arose

  upon the City’s termination of water service. No further acts were required to

  constitute a violation. And each day the City failed to provide water service to

  Appellants constituted a separate violation that triggered a new limitations period.

  Thus, the claims here are properly considered under the repeated violation doctrine.

    F.      Application to Appellants’ § 1983 Claims Against the Individual Defendants

         Appellants also bring § 1983 claims against five unnamed City Water Utility

  Department employees in their individual capacities. In their Complaint, Appellants

  allege “[t]hese Defendants had the responsibility to see that municipal water service

  was provided to City residents, including [Appellants], in a lawful manner that

  comported with the requirements of the United States Constitution.” App. at 7–8.

  Appellants allege each time they sought water service, one or more of these

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  individual defendants denied their request, often citing Ms. Miera’s unpaid bill as the

  basis for denying service.

        Although not raised by the parties, we question the procedural propriety of the

  district court dismissing the entire action, including the claims against the individual

  defendants in their individual capacities. At the time of the dismissal, Appellants had

  not identified or served the individual defendants. Thus, the individual defendants

  had not filed a Rule 12(b)(6) motion to dismiss. Yet, “the statute of limitations

  defense is an affirmative defense and is subject to waiver.” Youren v. Tintic Sch.

  Dist., 

343 F.3d 1296, 1304

 (10th Cir. 2003). And the City was not in privity with the

  individual defendants in their individual capacities so as to be positioned to raise the

  affirmative defense for the individual defendants. See Willner v. Budig, 

848 F.2d 1032

, 1034 n.2 (10th Cir. 1988) (“Government employees in their individual

  capacities are not in privity with their government employer.”); see also Spiess v.

  Meyers, 

483 F. Supp. 2d 1082, 1089

 (D. Kan. 2007) (observing in context of

  discussing privity that individual defendants in individual capacity may “maintain

  unique interests” from their municipal employer). Accordingly, if Appellants name

  and serve the individual defendants, those defendants may pursue a statute of

  limitations defense; but it is not apparent this defendant-specific, affirmative defense

  was before the district court through the City’s Rule 12(b)(6) motion.12


        12
           We also question the ability to analyze a statute of limitations defense as to
  any unnamed defendant in his or her individual capacity where, until the identities of
  a given defendant is known, it is not possible from the face of the Complaint to
  determine if a specific defendant interacted with Appellants (1) only before the
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        But even if the City could have raised the defense for the individual defendants

  in their individual capacities, similar to Appellants’ policy-based claim, each denial

  of water service represented a new and discrete rejection of Appellants’ alleged right

  to water service. As a result, under the repeated violation doctrine, Appellants may be

  able to pursue claims against the individual defendants based on any denial of water

  service occurring within three years of when Appellants commenced their action.

                             G.     Appellants’ NMTCA Claim

        Unlike their § 1983 claims, which Appellants argue are timely under both the

  continuing violation doctrine and the repeated violation doctrine, on appeal, Appellants

  argue that their NMTCA claim is timely only under the continuing violation doctrine.

  Specifically, the header discussing their NMTCA reads: “The Continuing Violation

  Doctrine Applies to Plaintiffs’ Tort Claims.” Opening Br. at 28. And Appellants,

  thereafter, argue “New Mexico courts apply the continuing violation doctrine to cases

  where a defendant engaged in ‘repeated conduct over days or years’ of harassment and

  individual acts of wrongdoing may not be separately actionable.” Id. (quoting Charles v.

  Regents of N.M. State Univ., 

256 P.3d 29, 34

 (N.M. Ct. App. 2010)). For the same

  reasons we hold that the continuing violation doctrine does not save Appellants’ § 1983



  limitations period, (2) only within the limitations period, or (3) both before and
  within the limitations period. In this sense, the allegations relevant to each individual
  defendant, and the tolling doctrines applicable in each instance, may vary once
  Appellants learn of the identities of each individual defendant. And because, if
  identified and served, the individual defendants may pursue a Rule 12(b)(6) motion
  based on the statute of limitations, we vacate, rather than reverse, the district court’s
  dismissal of Appellants’ claims as against the individual defendants.
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  claims—primarily that the claims are not premised on a series of individually

  unactionable occurrences that make out a violation only when combined—we also hold

  that the continuing violation doctrine does not save Appellants’ NMTCA claim. See

  Ulibarri v. N.M. Corr. Acad., 

131 P.3d 43

, 47–48 (N.M. 2006) (allowing reliance on

  continuing violation doctrine where claim is based on “a cumulative series of acts

  constituting a single unlawful practice” (emphasis added)).

                                    III.   CONCLUSION

         While the continuing violation doctrine is available in the § 1983 context, it does

  not save Appellants’ claims against the City because their allegations do not support a

  series of individually unactionable occurrences, which when combined, make out a single

  alleged violation. For the same reason, Appellants are unable to rely on the continuing

  violation doctrine to save their NMTCA claim. But where Appellants allege the City

  denied water service pursuant to a municipal policy that remained in effect during the

  statute of limitations period, Appellants may rely on the repeated violation doctrine to

  save the policy-based aspects of their § 1983 claims. Additionally, as Appellants had not

  identified and served the individual defendants and the individual defendants had not

  raised a statute of limitations defense through a Rule 12(b)(6) motion, the district court

  lacked a procedural basis to dismiss Appellants’ action as against those defendants; thus,

  that aspect of the district court’s order is merely vacated rather than reversed.

  Accordingly, we AFFIRM IN PART, VACATE IN PART, REVERSE IN PART, and

  REMAND for further proceedings on Appellants’ § 1983 claims.



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