Appellate Case: 25-2007 Document: 50-1 Date Filed: 04/15/2026 Page: 1 FILED United States Court of Appeals Tenth Circuit PUBLISH April 15, 2026 UNITED STATES COURT OF APPEALS Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________
SANDRA VASQUEZ-GARCIA,
Plaintiff - Appellant,
v. No. 25-2007
CENTURION, LLC; CENTURION CORRECTIONAL HEALTHCARE OF NEW MEXICO, LLC; MHM HEALTH PROFESSIONALS, INC.; WEXFORD HEALTH SOURCES, INC.; SUMMIT FOOD SERVICE, LLC; ALISHA TAFOYA LUCERO, NM Secretary for Department Corrections, in her individual capacity; WENCE ASONGANYI, NMCD Health Services Administrator, in his individual capacity; ORION STRADFORD, NMCD Bureau Chief, in his individual capacity; MICHAEL HILDENBRANDT, Wexford Director of Operations, in his individual capacity; DR. KESHAB PAUDEL, Wexford Regional Medical Director, in his individual capacity; SARAH CARTWRIGHT, Wexford Regional Director of Nursing, in her individual capacity; DEANNI WOOD, Wexford Regional Manager of WNMCF, in her individual capacity; STEVEN WHEELER, in his individual capacity; ROCK WELCH, in his individual capacity; JEFFREY Appellate Case: 25-2007 Document: 50-1 Date Filed: 04/15/2026 Page: 2
KELLER, in his individual capacity; ANGELA GOEHRING, in her individual capacity; KAREN RILEY, in her individual capacity; JOHNNIE LAMBERT, in her individual capacity,
Defendants - Appellees. _________________________________
Appeal from the United States District Court for the District of New Mexico (D.C. No. 1:24-CV-00443-JCH-LF) _________________________________
Clare A. Saunders of Arnold & Porter Kaye Scholer LLP, Boston, Massachusetts (Jake W. Murphy of Arnold & Porter Kaye Scholer LLP, Denver, Colorado; Andrew T. Tutt, Katie Weng of Arnold & Porter Kaye Scholer LLP, Washington, D.C., with her on the briefs), for Plaintiff- Appellant.
James J. Grubel of Park & Associates, LLC, Albuquerque, New Mexico (Alfred A. Park of Park & Associates, LLC, Albuquerque, New Mexico; Mary T. Torres of Law Offices of Mary T. Torres, Albuquerque, New Mexico; Bryan C. Garcia, Jessica L. Czajkowski of Garcia Law Group, LLC, Albuquerque, New Mexico; Jacqueline A. Olexy, Gregory D. Steinman, and M. Eliza Stewart of Madison, Mroz, Steinman, Kenny & Olexy, P.A., Albuquerque, New Mexico, with him on the brief), for Defendants-Appellees. _________________________________
Before PHILLIPS, McHUGH, and FEDERICO, Circuit Judges. _________________________________
FEDERICO, Circuit Judge. _________________________________
Sandra Vasquez-Garcia was a prisoner at the Western New Mexico
Correctional Facility until May 7, 2021. Her medical care in custody was
overseen by a variety of state officials and government contractors. They
2 Appellate Case: 25-2007 Document: 50-1 Date Filed: 04/15/2026 Page: 3
bore a particularly delicate responsibility for Vasquez-Garcia’s care in light
of her pre-existing health conditions, including diabetes. Vasquez-Garcia
alleges, however, that throughout her incarceration, those responsible for
her care failed to provide her with the necessary medical care. She sued the
officials and contractors, and in the district court, she argued that their
conduct was deliberately indifferent to her serious medical needs, in
violation of her Eighth and Fourteenth Amendment rights.
Before the district court, each of the defendants asserted, in a Rule
12(b)(6) posture, that Vasquez-Garcia’s claims were time-barred by the
relevant statute of limitations. The district court dismissed Vasquez-
Garcia’s complaint on this basis.
We hold that this was error. The district court incorrectly applied the
Rule 12(b)(6) standard for adjudicating the defendants’ statute of
limitations defense and misapplied the law of accrual for Vasquez-Garcia’s
injury. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we reverse.
I
We begin by reciting the facts and then the procedural history of this
case. As we normally do when reviewing a district court’s dismissal of the
complaint, we draw the facts from the well-pleaded allegations in the
operative complaint itself. See, e.g., Griffith v. El Paso County, 129 F.4th
3 Appellate Case: 25-2007 Document: 50-1 Date Filed: 04/15/2026 Page: 4
790, 802 n.1 (10th Cir. 2025). The timing of events is significant for statute
of limitations purposes, so we lay out the facts in a chronological timeline. 1
A
Sandra Vasquez-Garcia was incarcerated at the Western New Mexico
Correctional Facility from at least September 22, 2017. At that time, she
had been diagnosed with “diabetes, asthma, thyroid disorder, and blood
pressure issues.” App. at 22. On October 2, 2017, medical staff at the facility
diagnosed her with “uncontrolled hyperglycemia.” 2 App. at 22. She was
prescribed certain diabetic medications. She reported to medical staff on
November 15, 2017, that she had not received her medications. A little over
two weeks later, she began to receive medications – but not the specific
medications she was prescribed.
1 Some of the defendants enter and exit the stage at various times, so
we will flag these changes throughout by footnote, although these changes are not relevant to our disposition of the appeal. The “Centurion defendants” include the health service contractor Centurion LLC, its New Mexico subsidiary, and its various officers and employees. The “Wexford defendants” include the health service Wexford Health Sources, Inc. and its various officers and employees. The “Summit defendants” include the food service contractor Summit Food Service, LLC and its various officers and employees. 2 At that time, the Centurion defendants were the relevant contractor
retained by the New Mexico Corrections Department for the purposes of providing healthcare to people incarcerated by the Department.
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On February 5, 2018, medical staff noted that Vasquez-Garcia’s blood
glucose levels had not reduced. 3 From February 5 through October 31, 2018,
medical staff prescribed “various” medications. App. at 22. But their
documentation of Vasquez-Garcia’s blood glucose levels and healthcare was
sporadic. For example, for the entire month of September, medical staff
failed to document or track Vasquez-Garcia’s medication regimen. By
January 8, 2019, she had been diagnosed with “renal tubular acidosis” and
“type four hyperkalemia,” which staff noted was likely linked to her
diabetes. App. at 22.
On February 1, 2019, medical staff ordered that Vasquez-Garcia be
placed on a diabetic diet for the next 30 days. 4 The food she was provided
with, however, was essentially the same as that provided to people without
diabetes. On March 8, 2019, medical staff observed that Vasquez-Garcia’s
“blood glucose levels remained high and her hyperkalemia had not been
3 Throughout our discussion of Vasquez-Garcia’s complaint, we will
draw inferences in favor of Vasquez-Garcia about facts of medical significance. For example, although we have no occasion here to review medical evidence, we infer that a heightened glucose level is unhealthy, and that Vasquez-Garcia’s medications were intended to reduce her blood glucose level. 4 At this time, the Summit defendants had contracted with the New
Mexico Corrections Department for the purposes of providing food to people incarcerated by the Department.
5 Appellate Case: 25-2007 Document: 50-1 Date Filed: 04/15/2026 Page: 6
resolved.” App. at 23. Her blood contained high levels of glucose, urea
nitrogen, and creatinine. Vasquez-Garcia was diagnosed with “diabetic
mellitus nephrotic syndrome,” and medical staff observed “swelling legs and
weight gain.” App. at 23. On March 13, 2019, medical staff further noted
“worsening renal function with proteinuria” and diagnosed her with
“diabetic nephropathy/chronic kidney disease stage three.” App. at 23. By
this point, medical staff noted that Vasquez-Garcia had “uncontrolled
diabetes.” App. at 23.
On April 9, 2019, medical staff increased the dosage for one of
Vasquez-Garcia’s prescription medications, and her blood sugar levels
subsequently reduced. But on June 26, she complained to medical staff
about blurred vision. She was diagnosed with “type two diabetes mellitus
with proliferative diabetic retinopathy with macular edema” and a “vitreous
hemorrhage in her right eye.” App. at 24. The dosage of her prescription
medication was again increased. On August 1, medical staff ordered a
diabetic diet for 90 days, but again she did not receive the appropriate food.
On September 10, 2019, Vasquez-Garcia reported seeing two air bubbles in
her eye. No change in her treatment occurred as a result of this report.
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On December 6, 2019, medical staff again noted that her blood glucose
levels were high. 5 For over a month, however, Vasquez-Garcia had
infrequent interactions with medical staff, and her condition was
inadequately monitored. For example, no documentation of the medicine
administered to her was kept for all of January 2020. High urea nitrogen
and creatinine levels were observed in January and March.
Meanwhile, Vasquez-Garcia’s eye problem persisted. On April 13,
2020, medical staff noted that she was experiencing eye pain. She was given
eye drops to relieve dry eyes. On June 25, staff noted vision loss in her right
eye. She was referred to an ophthalmologist, but nonetheless, on July 13,
she was diagnosed with “chronic iridocyclitis” and “retinal edema.” App. at
26. Finally, on August 7, 2020, a retina consultant recommended that
Vasquez-Garcia receive a particular kind of eye injection. She never did. 6
On October 26, 2020, Vasquez-Garcia was diagnosed with “congestive
heart failure.” App. at 26. For several months prior to that diagnosis, she
had not received any medical care at all. The lack of care continued after
5 By this time, the Wexford defendants had replaced the Centurion
defendants as the contractors responsible for Vasquez-Garcia’s healthcare. 6 Vasquez-Garcia represents in her opening brief that “[s]he is now
partially blind.” Op. Br. at 15. She cites to a portion of the complaint that lists “blindness” as one of the injuries she has incurred. App. at 43.
7 Appellate Case: 25-2007 Document: 50-1 Date Filed: 04/15/2026 Page: 8
her congestive heart failure diagnosis. By November 23, 2020, she was
diagnosed with “stage three chronic kidney disease.” App. at 26. Medical
staff observed that she needed a kidney biopsy, but she never received one.
Instead, on December 5, staff noted “critically high blood sugar levels” and
on February 22, 2021, her kidney disease diagnosis escalated to stage four.
App. at 26–27.
On May 7, 2021, Vasquez-Garcia was released from custody. 7 After
her release, she was diagnosed with “stage five renal failure.” App. at 27.
B
On May 7, 2024, Vasquez-Garcia filed her complaint in the District of
New Mexico. She sued an array of defendants – Centurion, LLC and its New
Mexico subsidiary; MHM Health Professionals, Inc.; Wexford Health
Sources, Inc.; and Summit Food Services, LLC; as well as various employees
of these companies and New Mexico Corrections Department officials in
their individual capacities. Vasquez-Garcia sought relief against all
defendants for violations of her Eighth Amendment and Fourteenth
Amendment right to be free from deliberate indifference, and against the
7 Defendants dispute her release date. As the district court rightly noted and defendants appear reluctantly to concede, however, the complaint’s (admittedly somewhat vague) allegation that she was released on May 7 is conclusive for Rule 12(b)(6) purposes (but only those purposes).
8 Appellate Case: 25-2007 Document: 50-1 Date Filed: 04/15/2026 Page: 9
corporate defendants for having a policy and practice of violating her
constitutional rights by deliberate indifference to her serious medical
needs. 8 She principally requested compensatory and punitive damages
under 42 U.S.C. § 1983.
Most of the defendants either moved to dismiss under Rule 12(b)(6) or
joined a co-defendant’s motion. Notably, MHM Health Professionals, Inc.
and the chief executive officer of Centurion did not file a motion to dismiss.
So far as the record discloses, these defendants were never served pursuant
to Rule 4(c). All the properly served defendants asserted a statute of
limitations defense.
The district court granted the defendants’ motions to dismiss on
statute of limitations grounds. Applying the relevant federal and New
Mexico state law, the district court found three years to be the statute of
limitations period for Vasquez-Garcia’s claim. That is, Vasquez-Garcia
must have filed her suit within three years of when she knew or had reason
to know of the injury giving rise to her claims or they were time-barred. The
district court inferred from the complaint’s factual allegations that
Vasquez-Garcia “knew of facts that would put a reasonable person on notice
8 On appeal, the parties treat these two claims as essentially interchangeable for the purposes of the limitations issue, so we do as well.
9 Appellate Case: 25-2007 Document: 50-1 Date Filed: 04/15/2026 Page: 10
that wrongful conduct caused the harm” for which she was seeking relief
and “filed her claims against those defendants more than three years later.”
App. at 251–52. The district court therefore dismissed with prejudice all
Vasquez-Garcia’s claims against all defendants (including those not served)
as untimely and barred by the statute of limitations.
The court entered final judgment on January 9, 2025, and this timely
appeal followed.
II
We begin with a fulsome discussion of our standard of review, which
is central to the resolution of this appeal. We will then apply that standard
to the complaint in this case and conclude that the district court should not
have dismissed the complaint on Rule 12(b)(6) grounds. Finally, we will
conclude by briefly addressing the district court’s jurisdictional error in
dismissing claims against defendants who were never properly served at
the initiation of the lawsuit.
“We review a district court’s decision to grant or deny a motion to
dismiss de novo.” Prager v. LaFaver, 180 F.3d 1185, 1190 (10th Cir. 1999).
On de novo review, this court stands in the shoes of the district court and
applies the same standards as the district court when confronted with the
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same questions. Hooper v. City of Tulsa, 71 F.4th 1270, 1282 (10th Cir.
2023).
On a Rule 12(b)(6) motion, those standards are generous to the
plaintiff. Her allegations are mostly conclusive: the record is closed and
consists only of the complaint, documents attached to or referred to in the
complaint, and matters that are judicially noticeable. Fuqua v. Santa Fe
County Sherriff’s Office, 157 F.4th 1288, 1297–98 (10th Cir. 2025). There is
no fact-finding, as we accept her well-pleaded factual allegations as true
after setting aside mere legal conclusions. And the plaintiff receives the
benefit of the doubt: we view the facts in the light most favorable to the
plaintiff and draw all reasonable inferences in her favor. Brooks v. Mentor
Worldwide LLC, 985 F.3d 1272, 1281 (10th Cir. 2021). Together, these
principles erect a relatively high bar for a Rule 12(b)(6) dismissal that
leaves room for the district court to decide only one, largely legal question:
whether the facts alleged, taken as true, plausibly state a claim upon which
relief can be granted. Brown v. Montoya, 662 F.3d 1152, 1163 (10th Cir.
2011).
Plausibility is not probability, simply “more than a sheer possibility.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). And the plaintiff states a claim
upon which relief can be granted so long as she alleges the facts for which
she bears the burden of pleading. “A plaintiff need not anticipate in the
11 Appellate Case: 25-2007 Document: 50-1 Date Filed: 04/15/2026 Page: 12
complaint an affirmative defense that may be raised by the defendant; it is
the defendant’s burden to plead an affirmative defense.” Fernandez v. Clean
House, LLC, 883 F.3d 1296, 1299 (10th Cir. 2018). It is therefore generally
inappropriate to grant Rule 12(b)(6) dismissal on the basis of an affirmative
defense, unless “the complaint itself admits all the elements of the
affirmative defense by alleging the factual basis for those elements.” Id.
“Only when the plaintiff pleads itself out of court – that is, admits all the
ingredients of an impenetrable defense – may a complaint that otherwise
states a claim be dismissed under Rule 12(b)(6).” Xechem, Inc. v. Bristol-
Myers Squibb Co., 372 F.3d 899, 901 (7th Cir. 2004).
The statute of limitations defense asserted by the defendants here is
an affirmative defense. Fed. R. Civ. P. 8(c)(1) (listing statutes of limitations
as an affirmative defense). Defendants therefore face a difficult path to
affirmance. We begin our discussion of the merits, however, with those
points of law where there is no serious dispute: the statute of limitations,
the law of accrual, and their application to Eighth and Fourteenth
Amendment claims. We will then move to where the parties disagree,
whether Vasquez-Garcia’s complaint meets the low bar required to survive
a statute of limitations defense asserted in a Rule 12(b)(6) motion.
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42 U.S.C. § 1983 is a cause of action for plaintiffs seeking federal relief
for federal rights violations, and on its face, there is no limit on the time
within which to bring a § 1983 claim, “a void which is commonplace in
federal statutory law.” Wilson v. Garcia, 471 U.S. 261, 266 (1985) (quoting
Board of Regents v. Tomanio, 446 U.S. 478, 484 (1980)). But the
Reconstruction Congress provided that we apply state law for “the trial and
disposition of” § 1983 claims, “so far as the same is not inconsistent with
the Constitution and laws of the United States.” 42 U.S.C. § 1988(a). So we
apply the forum state’s statute of limitations for personal injury actions to
§ 1983 claims brought in federal court. Wilson, 471 U.S. at 276.
Vasquez-Garcia brought her claim in the District of New Mexico, and
under New Mexico law, the statute of limitations for personal injury actions
is three years from the point of accrual. N.M. Stat. Ann. § 37-1-8. So, the
limitations period is three years, and if Vasquez-Garcia’s claim accrued
more than three years before she filed her complaint, her claims are time-
barred.
Determining the point of accrual is a question of federal law, not state
law. Ullery v. Bradley, 949 F.3d 1282, 1288 (10th Cir. 2020); Wallace v.
Kato, 549 U.S. 384, 388 (2007). “A civil rights action accrues when the
plaintiff knows or has reason to know of the injury which is the basis of the
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action.” Baker v. Board of Regents, 991 F.2d 628, 632 (10th Cir. 1993). 9
Importantly, a civil rights claim accrues when the facts necessary for each
element of the claim are known or reasonably knowable to the plaintiff.
Alexander v. Oklahoma, 382 F.3d 1206, 1216 (10th Cir. 2004). Her claim
will accrue even if she did not and could not know that a violation of the
law has occurred. See Price v. Philpot, 420 F.3d 1158, 1162 (10th Cir. 2005)
(“Indeed, ‘it is not necessary that a claimant know all of the evidence
9 One could read Wallace v. Kato to hold that a civil rights claim accrues the moment that the plaintiff is injured, not when the injury was known or knowable. 549 U.S. 384, 388 (2007). In other words, Wallace arguably established an injury rule, not a discovery rule, for the accrual of civil rights claims. See also Corner Post, Inc. v. Board of Governors of Federal Reserve System, 603 U.S. 799, 809–11 (2024); TRW Inc. v. Andrews, 534 U.S. 19, 37 (2001) (Scalia, J., concurring in the judgment) (describing the notion of a general discovery rule under federal law as “bad wine of recent vintage”). The defendants here, however, conceded that a discovery rule applies. Resp. Br. at 14. See also Herrera v. City of Espanola, 32 F.4th 980, 990 (10th Cir. 2022) (discovery rule); Cao v. Puerto Rico, 525 F.3d 112, 115 (1st Cir. 2008) (same); Mallet v. N.Y. State Dep’t of Corrections & Community Supervision, 126 F.4th 125, 131 (2d Cir. 2025) (Calabresi, J.) (same); Coello v. DiLeo, 43 F.4th 346, 352 (3d Cir. 2022) (same); A Society Without A Name v. Virginia, 655 F.3d 342, 348 (4th Cir. 2011) (same); Jenkins v. Tahmahkera, 151 F.4th 739 (5th Cir. 2025) (same); D’Ambrosio v. Marino, 747 F.3d 378, 384 (6th Cir. 2014) (same); Regains v. City of Chicago, 918 F.3d 529, 533 (7th Cir. 2019) (same); Lukovsky v. City and County of San Francisco, 535 F.3d 1044, 1048 (9th Cir. 2008) (same); McNair v. Allen, 515 F.3d 1168, 1173 (11th Cir. 2008) (same); Rassier v. Sanner, 996 F.3d 832, 837 n.3 (8th Cir. 2021) (reserving the question but acknowledging unpublished circuit decision applying discovery rule); Earle v. D.C., 707 F.3d 299, 306 (D.C. Cir. 2012) (acknowledging that discovery rule might be applicable).
14 Appellate Case: 25-2007 Document: 50-1 Date Filed: 04/15/2026 Page: 15
ultimately relied on for the cause of action to accrue.’” (quoting Baker, 991
F.2d at 632)). But when the law itself establishes a high burden with respect
to facts that a plaintiff must allege and eventually prove, drawing the
appropriate line can be difficult. Thus, “[a]n accrual analysis begins with
identifying ‘the specific constitutional right’ alleged to have been infringed.”
McDonough v. Smith, 588 U.S. 109, 115 (2019) (quoting Manuel v. Joliet,
580 U.S. 357, 370 (2017)).
Here, that baseline constitutional right is the right to be free from the
infliction of “cruel and unusual punishments.” U.S. Const. amend. VIII; see
also Robinson v. California, 370 U.S. 660, 667 (1962). The Supreme Court
has long held that “deliberate indifference to serious medical needs of
prisoners constitutes the ‘unnecessary and wanton infliction of pain,’
proscribed by the Eighth Amendment.” Estelle v. Gamble, 429 U.S. 97, 104
(1976) (citation omitted, quoting Gregg v. Georgia, 428 U.S. 153, 173 (1976)
(op. of Stewart, J.)).
To obtain relief for a violation of this constitutional proscription, a
plaintiff must allege and eventually prove two things. First, she must show
that she faced a substantial risk of harm that is “objectively, ‘sufficiently
serious.’” Farmer v. Brennan, 511 U.S. 825, 834 (1994) (quoting Wilson v.
Seiter, 501 U.S. 294, 298 (1991)); Hardy v. Rabie, 147 F.4th 1156, 1164 (10th
Cir. 2025) (“[T]he harm suffered must be ‘sufficiently serious’ to implicate
15 Appellate Case: 25-2007 Document: 50-1 Date Filed: 04/15/2026 Page: 16
the Eighth Amendment’s prohibition of cruel and unusual punishment.”
(citation omitted)). Second, she must show that the defendant acted with
“deliberate indifference” – that is, that the defendant subjectively knew of
the risk of harm and disregarded it anyway. Farmer, 511 U.S. at 837 (“[T]he
official must both be aware of facts from which the inference could be drawn
that a substantial risk of serious harm exists, and he must also draw the
inference.”).
Together, these elements establish a relatively high bar for a
constitutional claim of deliberate indifference to prevail on the merits.
When married with the statute of limitations and accrual rules, however,
these elements set a correspondingly high bar for a statute of limitations
defense to prevail, especially at the pleadings stage. Thus, in the motion to
dismiss, the defendants bore the burden of showing that it was implausible,
based solely on the complaint, that Vasquez-Garcia’s injury accrued within
three years prior to her filing suit.
Vasquez-Garcia argues that the defendants did not clear this bar in
the district court. She reasons that the complaint did not foreclose the
plausibility that Vasquez-Garcia did not know and could not reasonably
have known the facts underlying her legal claim – the defendants’
subjective deliberate indifference and the objective seriousness of her injury
– until after she was released from prison and diagnosed with stage five
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renal failure. Alternatively, she argues that the defendants’ conduct was a
continuing violation that continued until the day of her release, exactly
three years before she filed her complaint. Either theory of accrual would
place Vasquez-Garcia’s complaint within the limitations period.
The defendants respond that it is implausible that Vasquez-Garcia
did not or could not have known of her injury until May 7, 2021, or sometime
after. They point to the escalating symptoms she alleges in her complaint
and argue that these events would have made Vasquez-Garcia aware of her
worsening condition and each of the defendants’ alleged deliberate
indifference to it. They argue also that Vasquez-Garcia’s complaint
identifies several discrete acts of alleged unconstitutionality, not one
continuous violation, so she cannot rely on a continuing violations theory.
Defendants must prevail on both arguments for us to affirm the judgment
in their favor.
Down the line, we agree with Vasquez-Garcia. Her complaint alleges
more than a sheer possibility that her injury was neither known nor
reasonably knowable until after she was released from prison. And
alternatively, the nature of her injury made the defendants’ alleged conduct
a violation that continued until the day she was released. We will address
her theory of ordinary accrual first, before turning to the continuing
violations doctrine.
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For Vasquez-Garcia’s claims to be time barred, the defendants needed
to show that her allegations, taken as true, demonstrate that she knew or
reasonably could have known of her injury before May 7, 2021. Thus, we
must first inquire into when Vasquez-Garcia knew about her injury relative
to the date she filed suit.
Critically, however, the term injury for accrual purposes does not just
mean a medical injury. That is, a claim does not accrue simply because the
plaintiff knows that she has a serious medical injury. The facts that tie this
medical injury to a legal harm must also be known or knowable. That does
not mean that the plaintiff must be aware that the law has been violated as
to her; she must merely be aware of the facts underlying the legal claims.
As the Supreme Court has said, this marks the moment of a “complete and
present cause of action” as the usual point of accrual. See, e.g., Bay Area
Laundry and Dry Cleaning Pension Trust Fund v. Ferbar Corp. of
California, Inc., 522 U.S. 192, 201 (1997) (Ginsburg, J.) (quoting Rawlings
v. Ray, 312 U.S. 96, 98 (1941)).
For some civil rights claims, the plaintiff may be simultaneously
aware of both the medical injury and the facts that tie the medical injury to
a legal one, even without full knowledge of a constitutional violation. But
for other claims, the elements of a legal claim may be subtle enough to put
18 Appellate Case: 25-2007 Document: 50-1 Date Filed: 04/15/2026 Page: 19
distance between the time of injury and the time at which the plaintiff
becomes aware of the surrounding circumstances that render the medical
injury a constitutionally salient one.
Here, for example, Vasquez-Garcia’s alleged claims did not accrue
whenever she incurred an injury. Nor did her claims accrue whenever she
became aware of her injuries. Instead, her claims accrued when she knew
or reasonably could have known that a) her injuries were objectively and
sufficiently serious and b) the defendants acted with the requisite subjective
state of mind, which is deliberate indifference. Mallet v. N.Y. State Dep’t of
Corrections & Community Supervision, 126 F.4th 125, 132 (2d Cir. 2025)
(“Under this standard, the accrual analysis for an Eighth Amendment
deliberate indifference claim often raises factual questions about when a
plaintiff knew or should have known of the circumstances tending to
establish either the objective or subjective components of the alleged
violation.”).
There are no facts alleged in the complaint that support the inference
that Vasquez-Garcia knew or reasonably should have known the subjective
component of her deliberate indifference claim outside the statute of
limitations period. Indeed, during oral argument counsel for the defendants
conceded that there is nothing in the complaint about what Vasquez-Garcia
knew and when she knew it. Oral Arg. at 26:33–40. Instead, her complaint
19 Appellate Case: 25-2007 Document: 50-1 Date Filed: 04/15/2026 Page: 20
lists a series of escalating symptoms which appear to be primarily related
to diabetes, observations and diagnosis by medical providers, and
treatments ordered but not properly administered by the medical staff. It
says nothing about what the medical staff told her about her symptoms,
conditions, or proposed treatment courses. We can make no inferences in
defendants’ favor about what is not said in the complaint about her
knowledge.
There is nothing in the complaint that indicates that a reasonable
person in Vasquez-Garcia’s condition would have been able to discover,
outside the limitations period, that these escalating symptoms were the
result of the defendants’ conduct, much less that she could have known that
the defendants knew of the risk to her health and consciously disregarded
it nonetheless. Farmer, 511 U.S. at 837. So, even if Vasquez-Garcia knew
or should have known that she faced an objectively and sufficiently serious
risk to her health, her complaint plausibly alleges that she still did not have
and could not have had knowledge of defendants’ state of mind until after
she was released from prison and learned that her health had rapidly
deteriorated to a nearly untreatable point. Based upon the complaint, it was
only then that she could have drawn the inference that something went
seriously awry with the medical care she was denied or improperly received
while she was incarcerated.
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At least, this is the conclusion that is reached when all reasonable
inferences are drawn in Vasquez-Garcia’s favor. The district court here did
the opposite. Throughout its order, the district court relied on facts that
Vasquez-Garcia did not allege to find that her injury was known or
knowable outside the limitations period. That was error. It was not
Vasquez-Garcia’s burden to plead those facts. And on a motion to dismiss,
when there are gaps in the plaintiff’s complaint, we fill those gaps with
reasonable inferences drawn in favor of the plaintiff, not against her. In
disregarding these basic principles, the district court made the kind of fact-
finding barred by Rule 12(b)(6).
For example, the district court found that Vasquez-Garcia had not
alleged “that she thought she was being provided with the proper diet and
medications, when in fact she was not.” App. at 251. But this missing
allegation is not part of an element of her claim – it is an element of the
defendants’ limitations defense. And in any event, from the allegations that
Vasquez-Garcia was denied a diabetic diet and continued to eat the food she
was provided, we reasonably infer that she did not know that the food posed
a risk to her health.
On appeal, the defendants rely heavily on our decision in Vasquez v.
Davis to urge affirmance. 882 F.3d 1270 (10th Cir. 2018). In that case, we
held that the plaintiff’s claims were time barred because, outside the
21 Appellate Case: 25-2007 Document: 50-1 Date Filed: 04/15/2026 Page: 22
limitations period, he “knew he had been substantially harmed” and
understood that the defendants’ conduct had harmed him. Id. at 1276–77.
But that case came to us on appeal from summary judgment, where we
apply a very different standard of review in light of the expanded record.
Id. at 1275; Alexander, 382 F.3d at 1213–15. Additionally, the record in
Vasquez disclosed exactly the kind of evidence that is missing here: the
plaintiff’s knowledge of both the objective and subjective components of
defendants’ deliberate indifference. Vasquez, 882 F.3d at 1276 (“The claim
accrued once Vasquez knew Defendants’ deliberate indifference caused him
substantial harm, ‘even though the full extent of the injury is not then
known or predictable.’” (quoting Wallace, 549 U.S. at 391)).
In addition to Vasquez, we held in another case that severe pain may,
sometimes, be enough to satisfy the objective prong. Mata v. Saiz, 427 F.3d
745, 754 (10th Cir. 2005) (“[S]evere chest pain, a symptom consistent with
a heart attack, is a serious medical condition under the objective prong of
the Eighth Amendment’s deliberate indifference standard.”). Even if the
defendants here had argued that Vasquez-Garcia had alleged knowledge of
pain severe enough to satisfy the objective prong, however, that would still
leave open the question of whether Vasquez-Garcia had alleged knowledge
of the defendants’ deliberate indifference. Mata also held that a plaintiff
can satisfy the subjective prong by showing that a defendant did nothing at
22 Appellate Case: 25-2007 Document: 50-1 Date Filed: 04/15/2026 Page: 23
all in response to a risk of harm. Id. at 755–56. Arguably, in such cases, the
plaintiff should be on notice of the subjective deliberate indifference of the
defendants.
But that is not what happened here. Instead, the defendants did do
things – provided the wrong pills when Vasquez-Garcia requested her
medication, provided dry eye drops instead of the specialist-prescribed
injections, failed to provide her with proper diabetic meals, and so forth. In
other words, the inference we draw in favor of Vasquez-Garcia is that her
custodians did just enough to keep Vasquez-Garcia unaware of their
(alleged) deliberate indifference while she was incarcerated, but not enough
to escape allegations of deliberate indifference once Vasquez-Garcia was
released and the full picture came into view.
We therefore hold that Vasquez-Garcia’s complaint, taking all its
factual allegations as true and drawing all reasonable inferences in her
favor, plausibly alleges that her injury was not known or knowable until
after she was released on May 7, 2021.
The preceding discussion identifies sufficient error to reverse.
However, the parties raised and fully briefed the continuing violations
doctrine as an alternative basis for reversal, and that doctrine was passed
upon by the district court. Since we will remand this case for further
23 Appellate Case: 25-2007 Document: 50-1 Date Filed: 04/15/2026 Page: 24
proceedings, it is not only possible but likely that arguments concerning the
continuing violations doctrine will recur on remand. For example, if
Vasquez-Garcia’s theory of ordinary accrual falls apart after discovery, she
will likely shift the weight of her case to a continuing violations theory to
remain within the limitations period. So, we will also address the issue
presented by the parties: whether the continuing violations doctrine applies
to Vasquez-Garcia’s complaint.
But first, we will explain what the continuing violations doctrine is.
As much a creature of equity as an application of common sense, the
doctrine recognizes that some claims are based on “no single discrete act”
but rather, “the cumulative effect” of several individual acts. Herrera v. City
of Espanola, 32 F.4th 980, 993 (10th Cir. 2022) (quoting National Railroad
Passenger Corp. v. Morgan, 536 U.S. 101, 115 (2002)). The plaintiff seeking
to rely on the continuing violations doctrine must allege a claim “premised
on a series of actions amounting to a single violation of their rights.” Id. at
997. 10 The doctrine’s limiting principle is that it “is triggered ‘by continual
unlawful acts, not by continual ill effects from the original violation.’” Mata
v. Anderson, 635 F.3d 1250, 1253 (10th Cir. 2011) (citation omitted). So at
10 Critically, as we will discuss, the continuing violations doctrine is
generally applicable to § 1983 claims, but we acknowledge the dearth of cases applying it specifically to deliberate indifference claims.
24 Appellate Case: 25-2007 Document: 50-1 Date Filed: 04/15/2026 Page: 25
the pleadings stage, the plaintiff must allege unlawful acts or omissions
reaching into the limitations period in order to rely on the continuing
violations doctrine. Vasquez, 882 F.3d at 1277.
Vasquez-Garcia did so here. Vasquez-Garcia alleges that she suffered
from a chronic condition that needed continuous monitoring and treatment.
It logically follows that the failure to provide regular monitoring, and
proper treatment is itself a continuous violation. See also Shomo v. City of
New York, 579 F.3d 176, 182, 184–85 (2d Cir. 2009) (applying continuous
violations doctrine to Eighth Amendment deliberate indifference claim).
The defendants counter that Vasquez-Garcia must allege some act or
omission that occurred within the three-year statute of limitations period.
We agree that any continuous violation extended only as far the last act or
omission that constituted deliberate indifference, consistent with Vasquez.
882 F.3d at 1277 (“[T]he continuing violation doctrine, as we have defined
it, would apply here only when a particular defendant allegedly committed
wrongful acts within, as well as outside, the limitations period.”) But the
defendants misunderstand the nature of the alleged violation here.
Vasquez-Garcia alleges that the failure to provide her with adequate
treatment for her chronic conditions constituted deliberate indifference.
She alleges that defendants’ failure to properly treat her continued until
25 Appellate Case: 25-2007 Document: 50-1 Date Filed: 04/15/2026 Page: 26
the very last day she was in the defendants’ custody – the day she was
released, May 7, 2021.
The district court concluded that “[t]he Tenth Circuit has not held
that the [continuing violations] doctrine applies to Section 1983 cases.” App.
at 253. This was plainly erroneous because we have held this doctrine
applies in § 1983 cases. Herrera, 32 F.4th at 986 (“[W]e hold that the
continuing violation doctrine is available within the § 1983 context[.]”). And
the facts here are consistent with those in Herrera.
In Herrera, the plaintiff sued because the city government had cut off
their water service. Id. at 987. We determined that on the plaintiff’s theory
of the case, “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.” Id. at 998. As a result, we found the continuing violation doctrine
could not save Herrera’s claims. Id. Here, by contrast, it is precisely the
“cumulative effect” of the defendants’ alleged conduct that underwrites
Vasquez-Garcia’s theory of liability: no single act would necessarily be
enough to allege a deliberate indifference claim, as it has been alleged, but
together, they comprise a continuing violation.
Our holding today is limited to the facts alleged and should not be
construed to hold that the continuing violations doctrine applies to all
26 Appellate Case: 25-2007 Document: 50-1 Date Filed: 04/15/2026 Page: 27
Eighth Amendment claims of deliberate indifference. We need not and do
not decide the outer contours of the doctrine. We hold merely that where,
as here, the plaintiff alleges that the defendants observed but persistently
failed to properly treat her chronic, continuous health conditions, she may
rely on the continuing violations doctrine to survive a statute of limitations
defense.
III
Before we conclude, there is one more matter to resolve. As
foreshadowed in our explanation of the procedural history of this appeal,
the district court dismissed with prejudice all claims against two
defendants who had not been served. That was error.
A district court does not have personal jurisdiction over defendants
who neither have been served nor have waived service. Fed. R. Civ. P. 4(k);
Williamson v. Sena, 229 F.R.D. 663, 667 (D.N.M. 2005). And without
jurisdiction over the unserved defendants, the district court could not
dismiss with prejudice claims against them. Hollander v. Sandoz
Pharmaceutical Corp., 289 F.3d 1193, 1216–17 (10th Cir. 2002). The district
court therefore erred in addressing and then dismissing with prejudice the
claims against the unserved defendants. Although we reverse the judgment
on substantive grounds, the district court should address this jurisdictional
limit on remand.
27 Appellate Case: 25-2007 Document: 50-1 Date Filed: 04/15/2026 Page: 28
IV
A statute of limitations defense asserted in a Rule 12(b)(6) posture is
a steep hill for defendants to climb. When combined with the accrual
analysis for § 1983 claims and the underlying substantive elements of a
deliberate indifference claim, it became trebly difficult for the defendants
here to prevail on their statute of limitations defense at this juncture of the
case.
In its findings, the district court erroneously gave the benefit of the
doubt to the defendants rather than to Vasquez-Garcia. Additionally, the
district court erroneously failed to apply the continuing violations doctrine
on a mistaken understanding of our precedent. Under the correct
understanding, Vasquez-Garcia has alleged a continuing violation. We
therefore REVERSE the judgment of the district court and REMAND for
further proceedings consistent with this opinion.