Full opinion text
MEMORANDUM OPINION AND ORDER JAMES 0. BROWNING, District Judge. THIS MATTER comes before the Court on Defendant Ron Anderson’s Motion for Summary Judgment, filed October 19, 2009 (Doc. 36). The Court held a hearing on December 18, 2009. The primary issue is whether Defendant Sgt. Ron Anderson is entitled to summary judgment on Plaintiff Juan Mata’s Second Amended Complaint for First-Amendment retaliation, Fourth-Amendment malicious prosecution, and malicious abuse of process in violation of New Mexico common law. Resolution of Anderson’s summary judgment motion turns on five sub-issues: (i) whether a November 2005 settlement agreement executed by J. Mata releases Anderson from J. Mata’s First-Amendment and malieious-abuse-of-process claims; (ii) whether J. Mata has presented a genuine issue of material fact that Anderson lacked probable cause to file criminal charges of criminal libel, harassment, and stalking against J. Mata; (iii) whether the court proceedings against Mata constitute a seizure under the Fourth Amendment; (iv) whether Anderson, even if there was no probable cause, is entitled to qualified immunity; and (v) whether the statute of limitations bars J. Mata’s malicious abuse of process claims. To the extent that J. Mata’s claims accrued after the November 2005 settlement agreement, the Court will deny Anderson’s motion for summary judgment on those claims on that basis, but will grant summary judgment on any portion of the claims that accrued before the settlement agreement. The Court will find that J. Mata’s First-Amendment retaliation claims and his state tort malicious-abuse-of-process claims accrued before November 2005 and will therefore grant Anderson summary judgment as to those claims. Because the Court finds that J. Mata has shown genuine issues of material fact regarding the validity of the facts Anderson used in his probable-cause determination, the Court will not grant Anderson summary judgment on that basis. The Court will grant summary judgment on the Fourth-Amendment malicious-prosecution claims because the United States Court of Appeals for the Tenth Circuit has rejected the notion that seizure includes restrictions imposed upon a plaintiff during his or her court proceedings, and because J. Mata did not suffer a traditional seizure. The Court will also find that there are enough facts for a jury to determine that a reasonable officer in Anderson’s position would not have brought charges against J. Mata based on the information Anderson had and therefore qualified immunity is inappropriate. Finally, the Court will find that, although pre-filing notice was not required, state law required him to bring his state tort claims within two years of the filing of the lawsuit against him, and therefore his state tort claims are time barred. Because the Court finds that there are no remaining viable claims, the Court will grant Anderson’s motion for summary judgment. FACTUAL BACKGROUND The facts of this case are partially undisputed. All material facts set forth in Anderson’s motion are deemed admitted unless J. Mata specifically controverted those assertions. See D.N.M. LR-CV 56.1(b)(“All material facts set forth in the statement of the movant will be deemed admitted unless specifically controverted.”). To the extent that J. Mata has controverted Anderson’s undisputed facts with competent evidence, the Court has noted the discrepancies and viewed the facts in the light most favorable to J. Mata, as the non-moving party. In the background of this lawsuit is an incident that occurred between J. Mata and the Farmington, New Mexico Police Department in 2002. J. Mata alleges that his civil rights were violated during a November 29, 2002 arrest in which he was pepper sprayed by Officer Mike Briseno of the Farmington Police Department. J. Mata was one of several Mata family members who filed a civil-rights lawsuit on November 28, 2004 against the City of Farmington and several police officers, including Briseno. See Mata v. Briseno, No. CIV 04-1334 ACT/RLP, Complaint, filed November 28, 2004 (Doc. 1). A year later, J. Mata and his family settled all claims arising from the November 29, 2002 incident for $75,000.00, see Plaintiffs’ [sic] Response to Defendant Ron Anderson’s Motion for Summary Judgment, filed November 6, 2009 (Doc. 38)(“Response”). J. Mata executed a settlement agreement on December 6, 2005, see Affidavit of Ezora Boognl ¶ 3, at 1, filed October 19, 2009 (Doc. 34)(“Boognl Aff.”); Boognl Aff. Exhibit 1 (Doc. 34-2). In the settlement of his lawsuit against the City of Farming-ton and several of its police officers, Mata agreed as follows: Plaintiffs hereby expressly release, forever discharge, and acquit Defendants and their agents, predecessors and successors, employees, insurers, representatives and attorneys (“Released Parties”) from all claims, suits, costs, debts, demands, actions and causes of action which they had or might have had against the Released Parties, arising out of or in any way related to the claims which were made or could have been made in the Action or in any way arising out of the facts or occurrences that could or did form the basis of the Action, or for any other reason including, but not limited to, any and all claims based in tort, contract, statute, ordinance, or law of any nature whatsoever, and any and all claims under any other federal, state or local statute, ordinance, or law. This Agreement therefore shall be construed to extinguish and discharge all claims included in the Action and any and all claims that Plaintiffs now have or could hereafter assert against any of the Released Parties of any nature whatsoever. Boognl Aff. ¶ 3, at 1; Boognl Aff. Ex. 1. On May 12, 2003, the Farmington Police Department received a petition delivered by Gregoria Mora, J. Mata’s mother, which he and others had signed, alleging that Briseno had engaged in illegal stops and searches of vehicles, and of several persons. See Affidavit of Ron Anderson ¶ 5, at 2 (executed September 23, 2009), filed October 19, 2009 (Doc. 35)(“Anderson Aff.”). One-hundred-eighty-eight people sighed the petition, but some signed first names only or fictitious names, such as “Mr. and Mrs. Annomous” [sic]. Farming-ton Police Department Administrative Investigation Citizen Complaint, Exhibit 1 to Anderson Aff., filed October 19, 2009 (Doc. 35-2) (“Petition Investigation”). Internal Affairs conducted an investigation into the allegations in the petition. See Anderson Aff. ¶ 5. Internal Affairs investigated the improper conduct alleged in the May 12, 2003 petition by sending letters to the 147 people whose names and addresses they could decipher from the petition. See Petition Investigation at 2. Of the 147 individuals, only twenty contacted the police department during the next five weeks. See Petition Investigation at 9. Of the twenty individuals, sixteen stated that they never had negative contacts with Briseno, and seven stated that they did not sign the petition and that someone who knows them must have forged their names. See Petition Investigation at 9. Eight individuals stated that they signed the petition. See Petition Investigation at 9. J. Mata’s sister, Maria Mata, formerly Maria Martinez, contacted internal affairs regarding the petition, and stated that she signed the petition because her mother told her about an incident where Briseno slammed a 13-year old boy to the ground and because she feels that the Farmington Police Department is unprofessional. See Affidavit of Maria Mata ¶ 5, at 1 (executed November 5, 2009), filed November 6, 2009 (Doc. 38-2)(“M. Mata Aff.”); Petition Investigation at 7-8. The investigation, completed in early July 2003, determined that the complaint was unsustained. See Petition Investigation at 9. On May 20, 2003, Anderson received an interoffice memorandum from Briseno regarding a potential death threat against him by J. Mata. See Anderson Aff. ¶ 7, at 2; City of Farmington Interoffice Memorandum (dated May 20, 2003), Anderson Aff. Exhibit 2, filed October 19, 2009 (Doc. 35 — 3). On May 23, 2003, Anderson received another interoffice memorandum from Briseno regarding possible threats by J. Mata. See Anderson Aff. ¶ 8, at 2-3; City of Farmington Interoffice Memorandum (dated May 23, 2003), Anderson Aff. Exhibit 3, filed October 19, 2009 (Doc. 35-4). According to the memoranda, the alleged information about a hit-man and threats came from conversations Briseno and a fellow Farmington police officer, Officer Hooper, had with J. Mata’s ex-wife Maritza Torres. See Anderson Aff. ¶¶ 7-8, at 2-3 and Exhibits 2 & 3. On September 9, 2004, the Farmington Police Department received a letter from the office of local attorney Ronald R. Adamson requesting an administrative investigation regarding Officers Kent O’Donnell and Briseno. See Anderson Aff. ¶ 13, at 4; Farmington Police Department Administrative Investigation (dated Sept. 9, 2004), Anderson Aff. Exhibit 4, filed October 19, 2009 (Doc. 35-5)(“Letter Investigation”). According to Brandon Cummings, Adamson’s employee, Adamson asked Cummings to review a videotape of a police car following J. Mata’s vehicle, which Cummings describes as portraying a police car following J. Mata’s vehicle so closely that the headlights of the police vehicle disappeared. See Affidavit of Brandon Cummings ¶¶ 3-4, at 1 (executed November 3, 2009), filed November 6, 2009 (Doc. 38-4). Cummings states that he and Adamson believed the vehicle was the police cruiser assigned to Briseno, and that he assumed that the driver or passenger was Briseno. See Cummings Aff. ¶¶ 19-20, at 2. According to the letter, on August 4, 2004, O’Donnell and Briseno pursued a van that J. Mata was driving at a high rate of speed and shined a spotlight into the van. See Letter Investigation at 2. The letter states that the alleged conduct amounted to intimidation and retaliation of witnesses in a pending litigation, abuse of children that were in the van, and aggravated assault — a total of eleven alleged felonies committed by O’Donnell and Briseno. See Letter Investigation at 2. After learning of the letter, Anderson checked Briseno’s duty schedule and learned that, not only was Briseno not on duty at the time of the alleged felonies, he was also out of the state on vacation. See Anderson Aff. ¶ 15, at 4. Sometime in mid-September of 2004, Anderson spoke with Bill Cooke of the City Attorney’s office, seeking advice on how to handle the petition, memoranda, and letter from Adamson, all involving Briseno and J. Mata. See Anderson Aff. ¶ 17, at 5. On October 28, 2004, J. Mata appeared outside the Farmington Police Department displaying signs stating “Briseno is a Liar” and “dirty.” Anderson Aff. ¶ 19, at 5; Photograph of Mata, Anderson Aff. Exhibit 5 at 1-2, filed October 19, 2009 (Doc. 35-6). At the end of November, 2004, Anderson met with Cooke to discuss the situation between Briseno and J. Mata. See Anderson Aff. ¶ 21, at 5-6. Cooke informed Anderson that he believed J. Mata’s action violated one or more criminal statutes and that he was in the process of researching the criminal statutes and preparing a criminal complaint. See Anderson Aff. ¶ 21, at 5-6. Anderson met with Cooke on January 11, 2005, and signed a Criminal Complaint and a Statement of Probable Cause that Cooke had prepared for Anderson’s signature. See Anderson Aff. ¶ 22, at 6. J. Mata learned of the criminal charges when he received a letter in the mail advising him to appear in court. See Transcript of Videotaped Deposition of Juan Mata at 92:14-93:11 (taken July 8, 2009), filed October 19, 2009 (Doe. 36-2). At no time before or after he received the criminal complaint was J. Mata arrested, handcuffed, or taken into custody. See J. Mata Depo. at 93:12-96:14. J. Mata was not required to report to a police station or stay in his house, and was free to leave the Court and go about his business. See Id. When J. Mata appeared for his proceeding in the New Mexico Magistrate Court for the County of San Juan, he, along with others waiting for their court proceedings, were shown a video informing them that there were charges pending against them and advising them of restrictions imposed upon them, such as not leaving the country and not going to establishments that sell liquor. See J. Mata Depo. at 94:6-20. Through his counsel, J. Mata had the opportunity to present evidence and argument to the New Mexico Magistrate Court for the County of San Juan. See J. Mata Depo. at 95:10-11. The magistrate jury convicted J. Mata on all three counts. See Exhibit E to Answer, Magistrate Verdict Forms, filed July 7, 2008 (Doc. 8-6). J. Mata appealed his conviction to the New Mexico state district court. At the district court, the district judge dismissed the criminal libel charge, finding it unconstitutional, and allowed the other two charges to proceed to the jury. See Mata Depo. at 100:1-12. The jury acquitted J. Mata of harassment and stalking on July 17, 2006. See Plaintiffs Response to Sergeant Anderson’s Motion to Dismiss for Failure to Timely Serve or in the Alternative for Judgment on the Pleadings Exhibit A, State v. Mata, Case No. D-1116-LR-200500048, Docket Report at 1, filed July 21, 2008 (Doc. 11-2). The City of Farmington did not receive any Notice pursuant to the Tort Claims Act from J. Mata, his attorneys, or anyone purporting to act on his behalf in connection with the criminal charges filed against him in the New Mexico Magistrate Court for the County of San Juan. See Affidavit of Ezora Boognl ¶ 4, at 2 (executed Sept. 10, 2009), filed October 19, 2009 (Doc. 34). PROCEDURAL BACKGROUND J. Mata filed this case on January 11, 2008, asserting a 42 U.S.C. § 1983 claim for alleged retaliation in violation of the First Amendment. J. Mata filed his suit in this case for civil-rights violations three years to the day after the criminal charges against him were filed. See State v. Mata, M-47-MR-200500028, Farmington Magistrate Court, Copy of Docket Sheet at 1 (dated January 31, 2005). On January 24, 2009, the Court issued a Memorandum Opinion and Order denying Anderson’s motion to dismiss for failure to timely serve and for failure to establish a claim for Firsh-Amendment retaliation. See Memorandum Opinion and Order at 67, 2009 WL 1216706 (Doc. 17). The Court excused J. Mata’s failure to timely serve and granted him an extension of time to complete service. See Memorandum Opinion and Order at 37. The Court also found that J. Mata, on the face of his Complaint, sufficiently stated a claim for retaliatory prosecution and rejected the notion that the magistrate-jury conviction constituted conclusive proof of the existence of probable cause. See Memorandum Opinion and Order at 44. The Court also found that, taking the allegations in the Complaint as true, Anderson was not entitled to absolute or qualified immunity from J. Mata’s First Amendment retaliation claim. See Memorandum Opinion and Order at 58-66. Finally, the Court granted leave for J. Mata to file an Amended Complaint. See Memorandum Opinion and Order at 66. On February 2, 2009, Mata filed his Second Amended Complaint, which changed his Complaint from asserting one count of First-Amendment retaliation to asserting ten counts. See Second Amended Complaint for Violation of Civil Rights under Color of State Law and State Tort Claims, filed February 2, 2009 (Doc. 18). His Second Amended Complaint asserts three counts of First-Amendment retaliation — one for the criminal libel charge, one for the harassment charge, and one for the stalking charge — three counts of Fourth-Amendment malicious prosecution, and four counts of malicious abuse of process. See Second Am. Complaint ¶¶ 36-102, at 6-19. Anderson now moves for the Court to enter summary judgment in his favor on all ten counts in J. Mata’s Second Amended Complaint. Anderson argues that, even taking the evidence in the light most favorable to J. Mata, there are no genuine issues of material fact and therefore the Court should grant summary judgment in Anderson’s favor on all claims. 1. Arguments Regarding Lack of Probable Cause. First, Anderson asserts that lack of probable cause is an essential element to J. Mata’s First-Amendment claims, Fourth-Amendment claims, and state-law malicious-abuse-of-process claims, and that J. Mata will be unable to demonstrate that Anderson lacked probable cause to bring charges of criminal libel, harassment, and stalking against J. Mata. See Motion at 6. Anderson argues that he had probable cause at the time he filed criminal charges against J. Mata because, at that time, he knew that: (i) J. Mata had accused Briseno of illegally stopping and searching vehicles and persons, which were unsubstantiated according to internal affairs’ investigation; (ii) the memorandum he had received from Briseno stated that J. Mata had hired a hit-man to “take out” Briseno; (iii) the memorandum he had received from Briseno stated that J. Mata had hired a private investigator to follow Briseno; (iv) Adamson’s letter stated that Briseno had committed eleven felonies, which allegedly occurred during a time when Briseno was on vacation out of state; (v) J. Mata had held up signs outside the Farmington police station stating that Briseno was a “liar” and “dirty.” Motion at 11-12. Anderson argues that the picket signs, the letter from Adamson, and the petition were sufficient to establish a probability that J. Mata had circulated false and malicious statements about Briseno affecting his reputation, which gave rise to the criminal libel charge, and these activities, along with the threats, were sufficient to establish a probability that J. Mata had engaged in a pattern of activity intended to annoy Briseno and place him in reasonable fear of bodily harm, which gave rise to the harassment and stalking charges. See Motion at 12. Anderson also argues that the fact that the charges were not dismissed at the magistrate court level bolsters the existence of probable cause. See Motion at 12. In his response, J. Mata argues that he has sufficiently shown that Anderson lacked probable cause to bring claims of criminal libel, harassment, and stalking against J. Mata. J. Mata argues that an officer may not rely upon laws “so grossly and flagrantly unconstitutional that any person of reasonable prudence would be bound to see [their] flaws,” Michigan v. DeFillippo, 443 U.S. 31, 38, 99 S.Ct. 2627, 61 L.Ed.2d 343 (1979), and that criminal libel falls into this category, see Response at 9. J. Mata also argues that hiring a private investigator, whom J. Mata contends his attorney hired, cannot give rise to a claim for harassment. See Response at 9. J. Mata also argues that his supposed hiring of a hit-man is a fabrication by a member of the Farmington Police Department. See Response at 9-10. J. Mata contends that Anderson’s response to the alleged threat — not the filing of a charge for attempted solicitation of murder, but rather the filing of a misdemeanor charge for harassment — supports his conclusion that the Farmington Police Department did not believe the hit-man story. See Response at 10. J. Mata also argues that there is no evidence that he hired a private investigator and that, even if there was such evidence, private investigators are not subject to the stalking prohibition. See Response at 10. J. Mata also contends that his state-law claims do not require a showing of a lack of probable cause, but rather require a showing of procedural impropriety, and he states that “[t]here is ample evidence that the process against [J. Mata] was so perverted and [J. Mata’s] state law claim should survive Defendant’s motion.” Response at 12. In reply, Anderson argues that J. Mata offered nothing more than conclusory allegations of procedural impropriety and fails to cite with particularity those portions of the record upon which he relies for the proposition that there is ample evidence that the process against J. Mata was perverted. See Reply at 11 (citing D.N.M. LR-CV 56(b)). Anderson further argues that J. Mata has offered nothing to show that Anderson knew or should have known that the information he was provided was false. See Reply in Support of Defendant Ron Anderson’s Motion for Summary Judgment at 8, filed November 28, 2009 (Doc. 40)(“Reply”). Anderson maintains that the facts known to him as set forth in his affidavit establish a probability of criminal conduct and the existence of probable cause, and because probable cause is an essential element of Counts I-VII of J. Mata’s Second Amended Complaint, the Court should grant summary judgment in favor of Anderson on those claims. See Reply at 9. At the hearing on the motion, Erin E. Langenwalter, on Anderson’s belief, argued that, although the Court found previously that J. Mata’s conviction by the magistrate jury is not conclusive evidence of the existence of probable cause, the Court should consider it as additional evidence supporting a finding of probable cause. See Transcript of Hearing at 11:16-21 (taken December 18, 2009)(“Tr.”)(Langen-walter). Dennis W. Montoya, J. Mata’s attorney, argued that Anderson knew better or should have known better that a letter from an attorney, a petition, and picketing in front of the police station — the only things cited in Anderson’s Statement of Probable Cause — do not establish probable cause that J. Mata had engaged in criminal behavior. See Tr. at 26.T-10 (Montoya). He also argued that a reasonable jury could look at the facts in the statement of probable cause and determine that there was an ulterior motive designed to target J. Mata. See Tr. at 26:23-27:4 (J. Mata). 2. Arguments Regarding Qualified Immunity. Anderson argues that even if the Court finds that there is evidence that probable cause was lacking, he is entitled to qualified immunity, because the facts he gathered could have led a reasonable police officer in his position to believe that J. Mata committed a crime. See Motion at 14; Reply at 10. Anderson also contends that an officer who files criminal charges only after the city attorney fully advises the officer that probable cause supports the charges brought is entitled to qualified immunity. See Motion at 14. J. Mata did not address Anderson’s argument for qualified immunity in his response. In the hearing, however, Mr. Montoya argued that this is not the case that qualified immunity was designed to protect. See Tr. at 26:10-11 (Montoya). He contends that this case falls “into the heartland of plain incompetence or malice.” Tr. at 26:11-12 (Montoya). In his reply brief, Anderson argues that case law clearly establishes that, when an officer seeks guidance from a legal advisor and acts on that guidance, he should be entitled to qualified immunity. See Reply at 10 (citing Hollingsworth v. Hill, 110 F.3d 733 (10th Cir.1997) (finding that a deputy sheriff was entitled to qualified immunity because it was objectively reasonable for him to believe his actions did not violate plaintiffs rights, given that he had sought the district attorney’s advice and relied on that advice)). At the hearing, Ms. Langenwalter once more emphasized that Anderson’s reliance on legal counsel establishes his right to qualified immunity. See Tr. at 16:8-13 (Langenwalter). She argued that qualified immunity is intended to apply in this case — -where an officer thinks that a criminal act has been committed, consults with legal counsel, and then brings a criminal complaint. See Tr. at 20:17-21:1 (Langenwalter). 3.Arguments Regarding the November 2005 Settlement. Anderson also argues that J. Mata’s November 2005 settlement agreement with the City of Farmington and Farmington police officers specifically released all claims against the City of Farmington and its agents and employees, and thus J. Mata cannot now assert claims of First-Amendment retaliation and malicious abuse of process which stem from the filing on criminal charges against J. Mata in January 2005. See Motion at 21-22. J. Mata did not address Anderson’s argument that he released his claims pursuant to his prior settlement agreement in his response. At the hearing, Ms. Langenwalter argued that the 2005 settlement agreement releases Anderson from both the FirsbAmendment retaliation claims and the state-tort malicious-abuse-of-process claims, because they both accrued before the signing of the settlement agreement. Ms. Langenwalter conceded that the settlement agreement does not release the Fourth-Amendment claims because they would not have accrued until J. Mata was acquitted of the charges brought against him. See Tr. at 18:5-23 (Langenwalter, Court). Mr. Montoya argued that the 2005 settlement agreement pertained to completely separate events and did not involve actions by Briseno with respect to J. Mata’s exercise of his First-Amendment claims. See Tr. at 21:21-25 (Montoya). Moreover, Mr. Montoya argues, the prosecution of the claims brought against J. Mata continued until he was acquitted of harassment and stalking and until the criminal libel claim was thrown out as unconstitutional. See Tr. at 22:10-16 (Montoya). 4. Arguments Regarding Seizure Requirement of Fourth-Amendment Malicious Prosecution. With regard to J. Mata’s Fourth-Amendment malicious-prosecution claim, Anderson argues that, even if J. Mata can establish that Anderson lacked probable cause, he cannot bring a Fourth-Amendment malicious prosecution claim unless he was seized. Anderson contends that the only deprivation of liberty J. Mata suffered was the necessity of attending his trial and defending against the charges brought against him. See Motion at 19. J. Mata did not address in his response Anderson’s argument that seizure is required for a Fourth-Amendment malicious-prosecution claim. In the hearing, Mr. Montoya argued that though he concedes that there was no arrest, J. Mata was placed under restraint of his liberty during the entire pendency of the criminal case because of the restrictions imposed on him, including prohibition from entering an establishment that sells liquor, prohibition from carrying a firearm, and other pretrial conditions. See Tr. at 29:1-7 (Montoya). 5. Arguments Regarding New Mexico Tort Claims Act’s Notice Requirement and Statute of Limitations Anderson argues that J. Mata’s malicious-abuse-of-process claims also fail because he did not comply with the notice requirement under the New Mexico Tort Claims Act (“NMTCA”), NMSA 1978 § 41-4-4, and because his claims are time-barred under the Act’s two-year statute of limitations. See Motion at 22. Anderson contends that J. Mata should have filed a notice of tort claim for malicious abuse of process no later than April 25, 2005, which is ninety days after his February 1, 2005 arraignment, and that neither Anderson nor the City of Farmington received such notice. See Motion at 23. Moreover, Anderson asserts that J. Mata’s malicious-abuse-of-process claim accrued once he learned of the criminal charges against him, which would have been no later than his February 2005 arraignment, and therefore J. Mata needed to file his malicious-abuse-of-process claim by February 2007 to avoid a statute-of-limitations bar. See Motion at 24. J. Mata asserted his malicious-abuse-of-process claim in his Second Amended Complaint, filed on February 2, 2009; however, Anderson argues that, even if the claim relates back to the filing of the original Complaint on January 11, 2008, the claim is still untimely. See Motion at 24. J. Mata responds that, because he did not learn “of [Anderson’s] desire to ‘get him’ ” until after his criminal case resulted in an acquittal, he should not be time barred from bringing suit. Response at 12 (citing Butler v. Deutsche Morgan Grenfell, Inc., 140 N.M. 111, 140 P.3d 532 (Ct.App.2006)). J. Mata concedes that he did not file a NMTCA notice in connection with his malicious-abuse-of-process claim. See Response at 8. J. Mata contends, however, that such notice must only be filed against municipal entities and that individuals are not entitled to a Tort Claims Notice in New Mexico. See Response at 8. At the hearing, Mr. Montoya stated that the two-year statute of limitations may eliminate some portion of J. Mata’s state-law tort claims for malicious abuse of process, but argued that, because the claims were brought within two years of J. Mata’s acquittal, some claims are timely. See Tr. at 31:25-32:6 (Montoya). STANDARD FOR SUMMARY JUDGMENT Summary judgment shall be granted “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c)(2). The movant bears the initial burden of “showing] that there is an absence of evidence to support the nonmoving party’s case.” Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir.1991)(internal quotation marks omitted). See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the movant meets this burden, rule 56(e) requires the non-moving party to designate specific facts that would be admissible in evidence showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. at 324, 106 S.Ct. 2548. Rule 56 provides that “an opposing party may not rely merely on allegations or denials in its own pleadings; rather, its response must — by affidavits or as otherwise provided in this rule — set out specific facts showing a genuine issue for trial.” Fed.R.Civ.P. 56(e)(2). “It is not enough for the party opposing a properly supported motion for summary judgment to “rest on mere allegations or denials of his pleadings.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Vitkus v. Beatrice Co., 11 F.3d 1535, 1539 (10th Cir.1993) (“However, the nonmoving party may not rest on its pleadings but must set forth specific facts showing that there is a genuine issue for trial as to those dispositive matters for which it carries the burden of proof.”)(internal quotation omitted); Applied Genetics Int’l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir.1990) (the party opposing a motion for summary judgment must “set forth specific facts showing that there is a genuine issue for trial as to those dispositive matters for which it carries the burden of proof.”); Otteson v. United States, 622 F.2d 516, 519 (10th Cir.1980) (“However, once a properly supported summary judgment motion is made, the opposing party may not rest on the allegations contained in his complaint, but must respond with specific facts showing the existence of a genuine factual issue to be tried.”)(internal quotation omitted). “The non-moving party cannot avoid summary judgment by repeating conclusory opinions, allegations unsupported by specific facts, or speculation.” Colony Nat’l Ins. Co. v. Omer, No. 07-2123, 2008 WL 2309005, at *1, 2008 U.S. Dist. LEXIS 45838, at *1 (D.Kan. June 2, 2008) (citing Fed.R.Civ.P. 56(e) and Argo v. Blue Cross and Blue Shield of Kan., Inc., 452 F.3d 1193, 1199 (10th Cir.2006)). “In responding to a motion for summary judgment, ‘a party cannot rest on ignorance of facts, on speculation, or on suspicion and may not escape summary judgment in the mere hope that something will turn up at trial.’ ” Colony Nat’l Ins. Co. v. Omer, 2008 WL 2309005, at *1, 2008 U.S. Dist. LEXIS 45838, at *1 (quoting Conaway v. Smith, 853 F.2d 789, 794 (10th Cir.1988)). Genuine factual issues must exist that “can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.” Anderson v. Liberty Lobby, Inc., 477 U.S. at 250, 106 S.Ct. 2505. The mere existence of a scintilla of evidence will not avoid summary judgment. See Vitkus v. Beatrice Co., 11 F.3d at 1539. There must be sufficient evidence on which the fact-finder could reasonably find for the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 251, 106 S.Ct. 2505; Vitkus v. Beatrice Co., 11 F.3d at 1539. “[Tjhere is no evidence for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable ... or is not significantly probative, ... summary judgment may be granted.” Anderson v. Liberty Lobby, Inc., 477 U.S. at 249, 106 S.Ct. 2505 (internal citations omitted). Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). LAW REGARDING FIRST-AMENDMENT RETALIATION CLAIMS “Official reprisal for protected speech ‘offends the Constitution [because] it threatens to inhibit exercise of the protected right.’ ” Hartman v. Moore, 547 U.S. 250, 256, 126 S.Ct. 1695, 164 L.Ed.2d 441 (2006) (quoting Crawford-El v. Britton, 523 U.S. 574, 588 n. 10, 118 S.Ct. 1584, 140 L.Ed.2d 759 (1998)). It is therefore “settled that as a general matter, the First Amendment prohibits government officials from subjecting an individual to retaliatory actions, including criminal prosecutions, for speaking out.” Hartman v. Moore, 547 U.S. at 256, 126 S.Ct. 1695 (citation omitted). The Supreme Court of the United States has described at least two variations of First-Amendment retaliation claims. First, there are those claims that arise when a public employee alleges that he has been fired or otherwise punished for speech criticizing the government. See Id. at 260, 126 S.Ct. 1695 (citing Pickering v. Board of Education of Township High School Dist. 205, Will Cty., 391 U.S. 563, 566-67, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968)). In such eases, the Supreme Court has explained: “[0]ur discussions of the elements of the constitutional tort do not specify any necessary details about proof of a connection between the retaliatory animus and the discharge, which will depend on the circumstances.” Hartman v. Moore, 547 U.S. at 260, 126 S.Ct. 1695. Rather, “[t]he cases have simply taken the evidence of the motive and the discharge as sufficient for a circumstantial demonstration that the one caused the other.” Id. In contrast, when a plaintiff asserts that the retaliation for protected conduct is a criminal charge, the “constitutional tort action will differ from this standard case in two ways.” Id. First, in retaliatory-prosecution cases, there is always a “distinct body of highly valuable circumstantial evidence available and apt to prove or disprove retaliatory causation, namely evidence showing whether there was or was not probable cause to bring the criminal charge.” Id. at 261, 126 S.Ct. 1695. Second, the existence of absolute prosecutorial immunity gives rise to an added layer of complexity in retaliatory-prosecution suits. Specifically, § 1983 actions for retaliatory prosecution will not be brought against the prosecutor, who is absolutely immune from liability for the decision to prosecute.... [Ijnstead, the defendant will be a non-prosecutor ... who may have influenced the prosecutorial decision but did not himself make it, and the cause of action will not be strictly for retaliatory prosecution, but for successful retaliatory inducement to prosecute. Hartman v. Moore, 547 U.S. at 262, 126 S.Ct. 1695. “[T]he causal connection required here is not merely between the retaliatory animus of one person and that person’s own injurious action, but between the retaliatory animus of one person and the action of another.” Id. (citing Moore v. United States, 213 F.3d 705, 710 (D.C.Cir.2000) (“In order to find that a defendant procured a prosecution, the plaintiff must establish a chain of causation linking the defendant’s actions with the initiation of criminal proceedings.”)). The allegation needed “both to bridge the gap between the nonprosecuting government agent’s motive and the prosecution’s action, and to address the presumption of prosecutorial regularity,” is “the absence of probable cause.” Id. In retaliatory-prosecution cases, the Supreme Court requires that lack of probable cause be pleaded and proven. See Id. at 266, 126 S.Ct. 1695; Becker v. Kroll, 494 F.3d 904, 925 (10th Cir.2007). In light of Hartman v. Moore, the United States Court of Appeals for the Tenth Circuit has held: To establish a § 1983 retaliation claim against non-immune officials, [a plaintiff] must plead and prove (1) that she was engaged in a constitutionally protected activity; (2) that a defendant’s action caused her to suffer an injury that would chill a person of ordinary firmness from continuing to engage in that activity; and (3) that a defendant’s action was substantially motivated as a response to her exercise of her First Amendment speech rights. Worrell v. Henry, 219 F.3d 1197, 1212 (10th Cir.2000). She also must plead and prove the absence of probable cause for the prosecution. Hartman [v. Moore ], 126 S.Ct. at 1707. Becker v. Kroll, 494 F.3d at 925. “While state law governs limitations and tolling issues, federal law determines the accrual of section 1983 claims.” Fratus v. DeLand, 49 F.3d 673, 675 (10th Cir.1995). The statute of limitations for § 1983 claims is drawn from the personal-injury statute of the state in which the federal district court sits. See Wilson v. Garcia, 471 U.S. 261, 269, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985). Federal law, however, determines the date on which the claim accrues and the limitations period starts to run. See Wallace v. Kato, 549 U.S. 384, 127 S.Ct. 1091, 1095, 166 L.Ed.2d 973 (2007). In New Mexico, federal law borrows the three-year statute of limitations for personal injury set forth in NMSA 1978, § 37-1-8. See Mondragon v. Thompson, 519 F.3d 1078, 1082 (10th Cir.2008). “A civil rights action accrues when facts that would support a cause of action are or should be apparent.” Fratus v. DeLand, 49 F.3d at 675. “In general, under the federal discovery rule, claims accrue and [t]he statute of limitations begins to run when the plaintiff knows or has reason to know of the existence and cause of the injury which is the basis of his action.” Alexander v. Oklahoma, 382 F.3d 1206, 1215 (10th Cir.2004). The focus is “on whether the plaintiff knew of facts that would put a reasonable person on notice that wrongful conduct caused the harm. In this context, a plaintiff must use reasonable diligence in seeking to discover facts giving rise to a claim for relief.” Alexander v. Oklahoma, 382 F.3d at 1216 (internal citations omitted). The Tenth Circuit has not addressed specifically when a First-Amendment retaliation claim accrues. Other courts have found that Firsb-Amendment retaliation claims accrue when a plaintiff knows or has reason to know of the retaliation. See Elliott Reihner Siedzikowski & Egan, P.C. v. Pa. Employees Benefit Trust Fund, 29 Fed.Appx. 838, 840 (3d Cir.2002) (holding that a First-Amendment retaliation claim accrues once a plaintiff possesses “the critical facts that he has been hurt and who has inflicted the injury.”)(quoting United States v. Kubrick, 444 U.S. 111, 122, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979)); Harris v. S. Huntington Sch. Dist., No. 06-CV-3879, 2009 WL 875538, at *9, 2009 U.S. Dist. LEXIS 27392, at *25 (E.D.N.Y.2009) (stating that “the point of accrual is not when plaintiff utters the alleged protected speech, but rather when he suffers retaliatory action as a result of that speech”); Shub v. Westchester Cmty. College, 556 F.Supp.2d 227, 242-13 (S.D.N.Y.2008) (stating that “[u]nder federal law a First Amendment retaliation claim accrues once a plaintiff knows or has reason to know of the injury that forms the basis of the action.”); Toscano v. Borough of Lavallette, No. 04-4412, 2006 WL 1867197, at *3, 2006 U.S. Dist. LEXIS 48653, at *10 (D.N.J. June 30, 2006) (stating that First-Amendment retaliation claims accrue “when an alleged retaliatory act occurs.”); Firstline Corp. v. Valdosta—Lowndes County Ind. Auth., 7:03-142, 2005 WL 2304386, at *5, 2005 U.S. Dist. LEXIS 21724, at **15-16 (M.D.Ga. Sept. 21, 2005) (stating that plaintiffs First-Amendment retaliation claim accrued when “it knew it was injured and who caused the injury”). The United States Court of Appeals for the Seventh Circuit in Evans v. City of Chicago, 434 F.3d 916 (7th Cir.2006), rejected the plaintiffs argument that his Firsb-Amendment retaliation claim did not accrue until the termination of his criminal prosecution because the claim involved a continuing tort. The Seventh Circuit found: [The plaintiffs] initial argument is that the cause of action did not accrue until the termination of the state criminal proceedings against him in 2000. What [the plaintiff] fails to take into consideration is that the default rule, under Illinois law, is that “a cause of action for personal injuries accrues when the plaintiff suffers injury.” Golla v. General Motors Corp., 167 Ill.2d 353, 360, 212 Ill.Dec. 549, 657 N.E.2d 894 (Ill.1995) (citing West American Ins. Co. v. Sal E. Lobianco & Son Co., 69 Ill.2d 126, 130, 12 Ill.Dec. 893, 370 N.E.2d 804 (Ill.1977), and Hermitage Corp. v. Contractors Adjustment Co., 166 Ill.2d 72, 209 Ill.Dec. 684, 651 N.E.2d 1132 (Ill.1995)). In addition, as the district court correctly found, nothing in either federal law or Illinois law tolls or delays the running of an applicable statute of limitations on a § 1983 claim until criminal proceedings are concluded. See Pitts v. City of Kankakee, 267 F.3d 592, 595 (7th Cir.2001) (stating that “normally, the statute begins to run from the date of an injury” on a § 1983 claims); Kelley v. Myler, 149 F.3d 641, 645 (7th Cir.1998); see also Day v. Morgenthau, 909 F.2d 75, 79 (2d Cir.1990). Thus, both [the plaintiffs] § 1983 claims and his intentional infliction of emotional distress claims are barred, unless the “doctrine of continuing violation” applies. See Heard v. Sheahan, 253 F.3d 316, 319 (7th Cir.2001). Evans v. City of Chicago, 434 F.3d at 934. The Seventh Circuit addressed the plaintiffs allegation of continuing FirsL-Amendment violations and found that the participation of the officers whom had allegedly retaliated against the plaintiff in the court proceedings against him did not amount to new injuries from which the claims accrued. The Seventh Circuit found that the First-Amendment retaliation accrued upon the last confirmed interaction between the police officers named in the complaint and the plaintiff. See 434 F.3d at 934-35; The United States Court of Appeals for the Third Circuit has held that First-Amendment retaliation claims “will lie for any individual act” which deters a person of ordinary firmness from exercising his or her First Amendment rights, and those discrete acts cannot be aggregated under a continuing-violations theory. O’Connor v. City of Newark, 440 F.3d 125, 126-27 (3d Cir.2006); Myers v. County of Somerset, 515 F.Supp.2d 492, 501 n. 1 (D.N.J.2007) (“First Amendment retaliation claims are not subject to the ‘continuing violations’ exception to the statute of limitations that is applicable to hostile work environment claims. A retaliatory act that infringes upon a plaintiffs First Amendment rights is a discrete act.”)(citing O’Connor v. City of Newark, 440 F.3d at 126). The Tenth Circuit has held that the continuing-violations doctrine applies to hostile work environment claims, and is also available only to the government and class actions to show proof of pattern or practice. Semsroth v. City of Wichita, 304 Fed.Appx. 707, 715 (10th Cir.2008) (“In the past, we have noted that the continuing violations doctrine is viable only for hostile work environment claims.... We now conclude that the pattern or practice method of proof is available only to the government and class actions.”). The Tenth Circuit has declined to determine whether the continuing-violations doctrine applies to § 1983 claims. See Frazier v. Jordan, No. 06-1333, —— Fed.Appx. -, -, 2007 WL 60883, at *4, 2007 U.S.App. LEXIS 696, *12 (10th Cir. Jan. 10, 2007) (stating that “Frazier has failed to provide any authority in which this circuit has applied the continuing violations doctrine to a § 1983 claim”); Hunt v. Bennett, 17 F.3d 1263, 1265 (10th Cir.1994)(declining to determine if continuing violations doctrine applies to § 1983 suits). The Tenth Circuit recently stated: “Assuming the continuing violations doctrine applies to § 1983 claims, the doctrine is triggered ‘by continual unlawful acts, not by continual ill effects from the original violation.’ ” Parkhurst v. Lampert, 264 Fed.Appx. 748, 749 (10th Cir.2008) (citing Bergman v. United States, 751 F.2d 314, 317 (10th Cir.1984)). The United States District Court for the Western District of Pennsylvania has reached a different conclusion of when First-Amendment retaliation claims accrue. In Haagensen v. Pennsylvania State Police, Civ. No. 08-727, 2009 WL 790355 (W.D.Pa. Mar. 25, 2009), the Honorable Donette W. Ambrose, United States Chief District Judge for the Western District of Pennsylvania, adopted the Supplemental Report and Recommendation of the Honorable Robert C. Mitchell, United States Magistrate Judge for the Western District of Pennsylvania, who found that First-Amendment retaliatory prosecution claims do not accrue until the charges against the plaintiff have been dismissed. See Haagensen v. Pennsylvania State Police, 2009 WL 790355, at *4. Because the Supreme Court held in Hartman v. Moore that, in a case in which the plaintiff is alleging a claim of First-Amendment retaliation in the form of a prosecution, he or she must also plead and prove the absence of probable cause supporting the prosecution, see 547 U.S. at 266, 126 S.Ct. 1695, the plaintiff argued to Judge Mitchell that she could not prove the element of absence of probable cause until after the dismissal of the charges, see 2009 WL 790355, at *4. Judge Mitchell found: “Plaintiff has raised a valid point: her First Amendment retaliatory prosecution claim did not accrue until the charges against her had been dismissed.” 2009 WL 790355, at *4. The Court does not find this determination persuasive. A probable-cause evaluation looks objectively at the facts and circumstances within an officer’s knowledge at the time the criminal charges were filed.' See Karr v. Smith, 774 F.2d 1029, 1031 (10th Cir.1985). While a conviction by a magistrate or trial court may establish probable cause, “[t]he fact that the accused was acquitted after trial by a magistrate or court is properly regarded as immaterial in determining the existence or nonexistence of probable cause.” Restatement (Second) of Torts § 667. Proof of the absence of probable cause does not require adjudication on the underlying case, and therefore should not be the determinative factor for accrual of a First-Amendment retaliation claim. LAW REGARDING MALICIOUS PROSECUTION UNDER THE FOURTH AMENDMENT. The Tenth Circuit “has recognized the viability of malicious prosecution claims under § 1983.” Taylor v. Meacham, 82 F.3d 1556, 1560 (10th Cir.1996). To establish a malicious-prosecution claim under § 1983, a plaintiff must prove that the defendant initiated or continued a proceeding against him without probable cause. See Becker v. Kroll, 494 F.3d 904, 913-14 (10th Cir.2007). “Unlike a false arrest or false imprisonment claim, malicious prosecution concerns detention only after the institution of legal process.” Wilkins v. DeReyes, 528 F.3d 790, 798 (10th Cir.2008) (internal quotation omitted). “In this context, a Fourth Amendment violation can exist only when a plaintiff alleges the legal process itself to be wrongful.” Id. Under Tenth Circuit case law, a § 1983 malicious prosecution claim includes the following elements: (i) the defendant caused the plaintiffs continued confinement or prosecution; (ii) the original action terminated in favor of the plaintiff; (iii) no probable cause supported the original arrest, continued confinement, or prosecution; (iv) the defendant acted with malice; and (v) the plaintiff sustained damages. See Wilkins v. DeReyes, 528 F.3d at 799. In a Fourth-Amendment malicious-prosecution case, “the third element deals only with the probable cause determination during the institution of legal process----” Id. 1. The Seizure Requirement of Fourth Amendment Malicious Prosecution Claims. When a malicious-prosecution claim is based upon the Fourth Amendment, a plaintiff must — to prevail' — prove that he was also seized. See Nielander v. Bd. of County Comm’rs, 582 F.3d 1155, 1165 (10th Cir.2009) (citing Albright v. Oliver, 510 U.S. 266, 271, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994)(plurality)); Becker v. Kroll, 494 F.3d 904, 914 (10th Cir.2007) (“In our cases analyzing malicious prosecution under § 1983, we have always proceeded based on a seizure by the state— arrest or imprisonment.”). The Tenth Circuit recently addressed the scope of seizure under Fourth Amendment malicious prosecution claims in Becker v. Kroll. Becker was a physician subjected to a baseless investigation and prosecution for Medicaid fraud. Her records were subpoenaed, and she was threatened with criminal prosecution if she failed to pay a requested settlement, even though an independent review of her records demonstrated that she had not engaged in any wrongdoing. When Becker refused to settle, the state first filed a civil suit against her and then pursued criminal charges. She was subjected to a preliminary hearing and was bound over for trial, but was never taken into custody. The civil and criminal cases were dismissed, but Becker was then subjected to an administrative proceeding that resulted in a finding that she had not engaged in fraud. Becker argued that the Tenth Circuit should adopt a .broader theory of seizure, based on the Supreme Court’s decision in Albright v. Oliver. In that case, the Supreme Court concluded that the Fourteenth Amendment does not provide a substantive due-process right to be free from prosecution without probable cause, but left open the possibility that a plaintiff could bring such a claim under the Fourth Amendment. See Albright v. Oliver, 510 U.S. at 274-75, 114 S.Ct. 807. In a concurring opinion to the plurality opinion, Justice Ginsburg urged the Supreme Court to adopt a non-custodial concept of “continuing seizure” in order to account for, under the Fourth Amendment, the harms incident to the control exercised by the state over a citizen before trial. See Id., 510 U.S. at 278-80, 114 S.Ct. 807 (Ginsburg, J., concurring). She opined that seizures for Fourth-Amendment purposes include requiring a person to post bond, compelling a person to appear in court, and imposing restrictions on a person’s right to interstate travel, all of which might create reputational, emotional, and financial harms. See 510 U.S. at 278, 114 S.Ct. 807. The Tenth Circuit declined to adopt Justice Ginsburg’s “continuing seizure” analysis. Becker v. Kroll, 494 F.3d at 915 (“To extend liability in cases without a traditional seizure would expand the notion of seizure beyond recognition and fall into the trap carefully avoided by the Albright majority — every charging decision would support a § 1983 malicious prosecution-type claim no matter the context.”). The Tenth Circuit held that “[a] groundless charging decision may abuse the criminal process, but it does not, in and of itself, violate the Fourth Amendment absent a significant restriction on liberty.” Becker v. Kroll, 494 F.3d at 915. Because Becker never was required to post bond or appear in court, and alleged no specific restrictions on her freedom of movement (such as travel restrictions), the Tenth Circuit found that she was not seized for Fourth Amendment purposes. See Becker v. Kroll, 494 F.3d at 915-16. The Tenth Circuit has also held that having to attend trial is insufficient to constitute a Fourth Amendment seizure for purposes of a malicious-prosecution claim. The Tenth Circuit stated: We agree with the district court that Lewis and Woodman have failed to put forth sufficient evidence showing they were seized for purposes of the Fourth Amendment. Specifically, the only deprivations of liberty sustained by Lewis are that he had to attend two trials; he had to appeal his harassment convictions after one of the trials; and he was fingerprinted in connection with one of the summons. Similarly, the only deprivation of liberty sustained by Woodman is that she had to make one, and possibly two, court appearances before the disturbing the peace charge was dismissed. Because Lewis and Woodman have not shown they sustained any other deprivations of liberty in connection with their receipt of the summonses, they have failed to show they were seized in violation of the Fourth Amendment. Lewis v. Rock, 48 Fed.Appx. 291, 294 (10th Cir.2002) (citations omitted). Other circuits have also declined to recognize typical pre-trial release conditions, such as receiving a summons, posting bond, and appearing in court, as a seizure. See DiBella v. Borough of Beachwood, 407 F.3d 599, 603 (3d Cir.2005) (finding no cause of action for malicious prosecution because the plaintiffs’ attendance at trial did not qualify as a Fourth-Amendment seizure); Kingsland v. City of Miami, 382 F.3d 1220, 1235-36 (11th Cir.2004) (finding no seizure for Fourth-Amendment purposes when plaintiff was required to post $1000.00 bond, appear at her arraignment, and travel twice from New Jersey to Florida to defend herself in court); Karam v. City of Burbank, 352 F.3d 1188, 1193-94 (9th Cir.2003) (required signing of “own recognizance” agreement, which obligated woman falsely accused of a misdemeanor to obtain court’s permission before leaving state and which compelled her appearance in court, amounted to de minimis restrictions not constituting a Fourth Amendment seizure); Nieves v. McSweeney, 241 F.3d 46, 56 (1st Cir.2001) (declining to find a seizure based on compelled presence at numerous pre-trial court appearances and at trial, in the absence of a required bond or travel restrictions); DePiero v. City of Macedonia, 180 F.3d 770, 790 (6th Cir.1999) (finding no Fourth-Amendment seizure where government conduct consisted of an officer issuing a citation that required a court appearance); Riley v. Dorton, 115 F.3d 1159, 1162 (4th Cir.1997) (refusing to apply Justice Ginsburg’s continuing-seizure theory to a claim of excessive force against pre-trial detainees, instead applying the Due Process Clause of the Fourteenth Amendment, and collecting cases that analyze at what point, short of arrest, an individual may have suffered a deprivation of personal freedom sufficient to implicate the Fourth Amendment). Some circuits have adopted Justice Ginsburg’s continuing-seizure analysis. The United States Court of Appeals for the Fifth Circuit found a Fourth-Amendment seizure in a case where the defendant was fingerprinted, photographed, and then required to sign a personal recognizance bond, report regularly to Pretrial Services, obtain permission before leaving the state, and provide federal officers with financial and identifying information. See Evans v. Ball, 168 F.3d 856, 860-61 (5th Cir.1999). The United States Court of Appeals for the Second Circuit has ruled travel restrictions and court appearances “are appropriately viewed as seizures within the meaning of the Fourth Amendment.” Murphy v. Lynn, 118 F.3d 938, 946 (2d Cir.1997). The United States Court of Appeals for the Third Circuit, in Gallo v. City of Philadelphia, 161 F.3d 217 (3d Cir.1998) held that the plaintiff, who was released on bond, never arrested, detained, or handcuffed, was still seized because he was prohibited from traveling beyond New Jersey and Pennsylvania, was compelled to attend all court hearings, and had to contact Pretrial Services weekly. See Id. at 225. The Tenth Circuit has noted that “[ejven those courts that subscribe to the line of reasoning endorsed by Justice Ginsburg have recognized a seizure only when criminal charges are coupled with another significant restraint on liberty, such as restrictions on travel.” Becker v. Kroll, 494 F.3d at 916. 2. Accrual of Fourth Amendment Malicious Prosecution Claims. “A malicious prosecution claim accrues, at the earliest, when favorable terruination occurs.” Miller v. Spiers, 339 Fed.Appx. 862, 869 (10th Cir.2009) (citing Mondragon v. Thompson, 519 F.3d 1078, 1083 (10th Cir.2008)). See McDow v. Gonzales, No. CIV 07-1266, 2008 WL 5979833, at *11, 2008 U.S. Dist. LEXIS 108674, at *31 (D.N.M. Sept. 30, 2008) (Browning, J.)(“A § 1983 malicious prosecution claim does not mature until the plaintiffs conviction has been invalidated.”). In Miller v. Spiers, the Tenth Circuit held that the favorable termination of the plaintiffs claim occurred when the prosecutor filed a nolle prosequi as to the criminal charges brought against the plaintiff. From that point, the statute of limitations on the plaintiffs claim begins to run and he had three years — the applicable limitations period for civil rights actions under New Mexico law — to file his Fourth Amendment malicious prosecution claim. See 339 Fed.Appx. at 869. LAW REGARDING NEW MEXICO MALICIOUS-ABUSE-OF-PROCESS CLAIMS. The NMTCA provides a general grant of immunity from tort claims against government entities and public employees, unless a particular exception applies. See NMSA 1978 § 41-4-4(A). The NMTCA provides the exclusive remedy against a governmental entity or public employee for any tort for which immunity has been waived under the Tort Claims Act and no other claim, civil action or proceeding for damages, by reason of the same occurrence, may be brought against a governmental entity or against the public employee or his estate whose act or omission gave rise to the suit or claim. NMSA 1978 § 41-4-17. A governmental entity of New Mexico may not be sued unless the plaintiffs cause of action fits within one of the exceptions to the immunity granted to governmental entities and public employees in the NMTCA. See Begay v. State, 104 N.M. 483, 486, 723 P.2d 252, 255 (Ct.App.1985), rev’d sub nom. on other grounds by Smialek v. Begay, 104 N.M. 375, 721 P.2d 1306 (1986). The right to sue and to recover against a governmental entity is limited to the rights, procedures, limitations, and conditions that the NMTCA prescribes. See Methola v. County of Eddy, 95 N.M. 329, 333-34, 622 P.2d 234, 238-39 (1980). The NMTCA sets out the applicable waiver of immunity for the acts or omissions of law-enforcement officers. The New Mexico statute provides in relevant part: The immunity granted pursuant to Subsection A of Section 41-4-4 NMSA 1978 does not apply to liability for personal injury, bodily injury, wrongful death or property damage resulting from assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, defamation of character, violation of property rights or deprivation of any rights, privileges or immunities secured by the constitution and laws of the United States or New Mexico when caused by law enforcement officers while acting within the scope of their duties. NMSA 1978, § 41-4-12. 1. NMTCA’s Notice Requirement. Under the NMTCA: A. Every person who claims damages from the state or any local public body under the Tort Claims Act shall cause to be presented to the risk management division for claims against the state, the mayor of the municipality for claims against the municipality, the superintendent of the school district for claims against the school district, the county clerk of a county for claims against the county, or to the administrative head of any other local public body for claims against such local public body, within ninety days after an occurrence giving rise to a claim for which immunity has been waived under the Tort Claims Act, a written notice stating the time, place and circumstances of the loss or injury. B. No suit or ac