                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                         JAN 21 1998
                             FOR THE TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

    JEFFREY TRUJILLO,

                Plaintiff-Appellant,

    v.                                                 No. 97-2125
                                             (D.C. No. CIV 95-1303 BB/LFG)
    CITY OF ALBUQUERQUE; THE                            (D. N.M.)
    HONORABLE MARTIN CHAVEZ,
    Mayor of the City of Albuquerque;
    PATRICK E. BINGHAM; GARY
    WALL; BOB BROWN; ROBERT
    REYES; BRUCE HICKS; JOHN
    NEMITZ; DENNIS PRATT, in their
    individual and official capacities,

                Defendants-Appellees.




                            ORDER AND JUDGMENT *



Before ANDERSON, McKAY, and LUCERO, Circuit Judges.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
       After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.

       Plaintiff Jeffrey D. Trujillo, proceeding pro se, appeals the district court’s

orders disposing of his claims of employment discrimination based on national

origin and disability, tort, and breach of contract. We affirm in part and reverse

in part.


                                  BACKGROUND

       The City of Albuquerque (the City) terminated Mr. Trujillo’s employment

on the grounds of chronic tardiness. After the termination was upheld in the

City’s grievance resolution process, Mr. Trujillo filed a charge of discrimination

with the Equal Employment Opportunity Commission and, on July 31, 1995,

received a right-to-sue letter. He then commenced this action in district court by

submitting a request for in forma pauperis (IFP) status and a complaint, naming

the City, a hearing officer, and various City employees as defendants. He alleged

a Title VII claim of discrimination based on national origin, see 42 U.S.C.

§ 2000e-2, along with state tort and contract claims.

       The district court clerk failed to either date-stamp these documents or enter

their submission on the docket sheet. The IFP application bears the handwritten

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date of October 27, 1995. R. Vol. I, Doc. 2 at 3. On November 6, Mr. Trujillo

submitted another complaint that amended his allegations, but did not show that it

was a second filing. The clerk’s office file-stamped the amended complaint with

the November 6 date and docketed it as the initial filing in the case. It was this

document that was served on the defendants. The district court granted the IFP

application on November 7, 1995.

      The City and the individual defendants filed motions to dismiss. The

district court dismissed all claims against the individual defendants. As against

the City, the district court allowed Mr. Trujillo’s tort and contract claims to

proceed. Based on the filing date of November 6, however, it determined that the

Title VII claim was time-barred, and dismissed the claim. Subsequently, Mr.

Trujillo added a claim of discrimination based on disability, in violation of the

Americans with Disabilities Act, see 42 U.S.C. § 12112(a), and the Rehabilitation

Act, see 29 U.S.C. § 794. After taking Mr. Trujillo’s deposition, the City moved

for summary judgment on all remaining claims. The district court granted the

motion.

      This appeal followed. In preparing the record on appeal, the district court

clerk’s office realized that the November 6 filing date was incorrect, and changed

the docket sheet to show an initial filing date of October 31. The clerk did not




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insert a notation explaining the selection of the October 31 date or an entry for

the filing of the IFP application.


                                     DISCUSSION

      We review the dismissal of a complaint de novo, “accepting the

well-pleaded allegations of the complaint as true and construing them in the light

most favorable to plaintiff.” Fuller v. Norton, 86 F.3d 1016, 1020 (10th Cir.

1996). We also review de novo the district court’s grant of summary judgment on

the merits. See Kaul v. Stephan, 83 F.3d 1208, 1212 (10th Cir. 1996). Because

Mr. Trujillo is appearing pro se, we will liberally construe his pleadings. See

Whitney v. State of New Mexico, 113 F.3d 1170, 1173 (10th Cir. 1997).

      We turn first to the dismissal of Mr. Trujillo’s Title VII discrimination

claim. Persons who intend to litigate a Title VII claim in district court must

commence an action within the ninety-day period following receipt of the

right-to-sue letter. See 42 U.S.C. § 2000e-5(f)(1). This limitations period is

tolled, however, while a petition for in forma pauperis status is pending. See

Jarrett v. U.S. Sprint Communications Co,, 22 F.3d 256, 259 (10th Cir. 1994). As

we have previously stated, the rationale behind this concept of constructive filing

is “obvious:”

      Suppose a litigant presents a complaint and IFP petition to the court
      clerk within the statute of limitation period, but the court clerk does
      not officially file the complaint. Then, the district court does not

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      rule on the IFP petition until after the limitation period. Even if
      pauper status is granted, the complaint will not be timely filed.
      Accordingly, to preserve the litigant’s rights, courts have deemed the
      complaint “filed” upon presentation to the court clerk when
      accompanied by an IFP motion, so that the formal filing “relates
      back”--upon grant of pauper status--to the “lodging” of the complaint
      with the clerk. . . . The fiction is not troublesome when the IFP
      petition is granted; the complaint is filed and the case proceeds.

Id.

      The present state of the record makes it impossible to discern whether the

doctrine of constructive filing is applicable to this case. Mr. Trujillo alleged that

he received notice of right to sue Tuesday, July 31, 1995, so that a complaint

would be timely if filed on or before Monday, October 30, 1995. In its dismissal

motion, the City asserted that the complaint was filed eight days late, based on the

date of Monday, November 6, which was file-stamped on the service copy and

entered on the docket sheet. Mr. Trujillo stated in his response that he had filed

an amended complaint on November 6, but that he had lodged the initial

complaint and an IFP application on Friday, October 27.

      Without discussing Mr. Trujillo’s contentions, the district court accepted

November 6 as the filing date and dismissed the action. On appeal, the City

concedes that the November 6 date is incorrect, but contends that we should

uphold the district court’s ruling. According to the City, we should rely on the

corrected docket entry of October 31, which indicates that Mr. Trujillo was one

day late in filing his complaint.

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      We decline to do so. We remand the matter to the district court to

determine the date on which Mr. Trujillo first tendered the complaint and IFP

application to the court. If he submitted these documents on or before

October 30, 1995, then his filing was timely and the court is to conduct further

appropriate proceedings. We have made no determination on the merits of Mr.

Trujillo’s Title VII discrimination claim.

      We agree with the district court’s orders dismissing the individual

defendants and entering summary judgment in favor of the City. Dismissal of the

hearing officer from the case on the grounds of absolute judicial immunity is

appropriate. See Saavedra v. City of Albuquerque, 73 F.3d 1525, 1529-30 (10th

Cir. 1996) (holding that City personnel hearing officer is entitled to absolute

judicial immunity from liability arising from personnel decision). Moreover, the

claims against the other individual defendants are properly dismissed for lack of

specific allegations of wrongdoing.

      In granting summary judgment in favor of the City, the district court ruled

that (1) the City was immune from tort liability under the New Mexico Tort

Claims Act for the allegedly wrongful discharge because Mr. Trujillo failed to

provide the required notice of his claim within ninety days of the occurrence, see

N.M. Stat. Ann § 41-4-16(A); (2) the City had no contract liability for its refusal

to rehire Mr. Trujillo because, under the uncontested facts, the parties had not


                                         -6-
agreed upon the terms of an employment contract, see Garcia v. Middle Rio

Grande Conservancy Dist., 918 P.2d 7, 10 (N.M. 1996); and (3) the City could not

be held responsible for disability discrimination because Mr. Trujillo had “never

exhibited or notified anyone at the City he had any mental or physical disability.”

R., Vol. I, Doc. 53 at 2-3. After a careful review of the record, we have

determined that the district court’s summary judgment ruling is correct.

      We AFFIRM the dismissal of the individual defendants and the entry of

summary judgment in favor of the City on the tort, contract, and disability

discrimination claims for substantially the same reasons stated in the district

court’s orders of dismissal and summary judgment. We REVERSE and REMAND

the dismissal of Mr. Trujillo’s Title VII discrimination claim for further

proceedings consistent with this order and judgment. The mandate shall issue

forthwith.

                                                     Entered for the Court



                                                     Monroe G. McKay
                                                     Circuit Judge




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