United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
MATTER is before the Court on Defendant New Mexico State
Personnel Board's Motion to Dismiss Plaintiff's
Amended Complaint, filed on April 20, 2017 (Doc.
37), Plaintiff's Amended Motion to Reconsider Order
Affirming Decision of Personnel Board, filed on May 4, 2017
(Doc. 44), and Plaintiff's Motion and Memorandum
for Summary Judgement as to Counts II and [III] of
Plaintiff's Amended Complaint Against Defendant State
Personnel Board (Document 33) (Doc. 74), filed on
July 11, 2017. Pursuant to 28 U.S.C. § 636(c) and
Fed.R.Civ.P. 73(b), the parties have consented to me serving
as the presiding judge and entering final judgment. See
Court has considered the record, submissions of counsel, and
relevant law, and finds Defendant's Motion to Dismiss
Plaintiff's Amended Complaint (Doc. 37) is
well-taken in part and will be granted with regards to the
federal claims. Further, the Court will deny the remaining
motions as moot, decline to exercise supplemental
jurisdiction and remand Plaintiff's state claims.
Background and Discussion
Court set out this matter's complicated procedural
history in its detailed Memorandum Opinion and Order dated
January 23, 2017, and incorporates it here by reference.
See Doc. 15 at 1-7.
Characterizing Plaintiff's Claims
brings several of the claims in her Amended Complaint
“under [the] Due Process Clause of the Fifth and
Fourteenth Amendment[s] to the United States Constitution,
under 42 U.S.C. § 1983 . . . .” Am.
Compl. ¶ 1. In Count II, Plaintiff asks the Court
to declare that the DOH and/or the SPB “waived, denied,
or defaulted on Plaintiff's appeal of her termination by
their failure to schedule Plaintiff's hearing within a
meaningful time.” Id. ¶ 32. In Count III,
Plaintiff alleges that the “SPB failed to conduct
Plaintiff's post-termination hearing within a meaningful
time . . . in violation of Plaintiff[']s rights under the
Due Process Clause of the Fifth and Fourteenth Amendment[s]
to the United States Constitution” pursuant to 42
U.S.C. § 1983, “and under Article II, Section 18
of the New Mexico Constitution.” Id. ¶
35. In its Motion to Dismiss, the SPB discusses Counts II and
III as claims asserting violations of Plaintiff's
procedural due process rights pursuant to section 1983.
See Doc. 37 at 6-10. Plaintiff affirms that
characterization in her response: “Count II and the
certification to the court of appeals are by their nature due
process claims.” Doc. 50 at 12. Accordingly,
the Court finds that Counts II and III seek to bring claims
for alleged procedural due process violations pursuant to
styles Count IV as a due process violation based on the
ALJ's alleged conflict of interest in and management of
the hearing. See Am. Compl. at 6-7; Doc. 50
at 8-11. Plaintiff alleges that as a result of this conflict
of interest, “the SPB . . . lost jurisdiction to
hear” Plaintiff's appeal. Am. Compl.
¶ 60; see also Id. ¶¶ 32-33.
Accordingly, Counts II and IV bring claims for due process
violations pursuant to section 1983 based on the ALJ's
alleged conflict of interest in and management of the
has moved to dismiss Plaintiff's claims in Counts II and
III on several grounds. First, the SPB argues that
Plaintiff's due process claims must be dismissed
“because courts do not recognize respondeat superior
liability under Section 1983, and Plaintiff has not named as
a party any individual government official at the SPB.”
Doc. 37 at 4. Second, it argues that it is not a
proper defendant under section 1983. Id. at 5. Third,
the SPB contends that the claims should be dismissed
“because a 10-month delay to conduct a post-termination
hearing does not, per se, establish a procedural due process
violation . . . .” Id. at 4. The SPB also
argues for dismissal of the due process violation in Count IV
on the basis that Plaintiff failed to make allegations
sufficient to show such a violation, and because
Plaintiff's claim against the ALJ is barred by the
statute of limitations. Id.
Court is persuaded by the second argument raised by Defendant
SPB and adopted by Defendant DOH - the federal due process
claims fail to state a viable federal cause of action because
neither the SPB nor the DOH are “persons”
amenable to suit under section 1983.
The SPB and DOH are not “persons” for purposes of
did not respond to SPB's argument that as an arm of the
state, it is immune from suit under section 1983. See
Doc. 37 at 5 & Docs. 50, 80.
Indeed, Plaintiff has raised no argument to establish that
the DOH or the SPB are not state agencies or arms of the
state - nor could she.
determine whether an entity is an arm of the state[, ]”
the Court makes two inquiries: first, the court
“examines the degree of autonomy given to the agency,
as determined by the characterization of the agency by state
law and the extent of guidance and control exercised by the
state.” Sturdevant v. Paulsen, 218 F.3d 1160,
1164 (10th Cir. 2000) (quoting Watson v. Univ. of Utah
Med. Ctr., 75 F.3d 569, 574 (10th Cir. 1996)).
“Second, the court examines the extent of financing the
agency receives independent of the state treasury and its
ability to provide for its own financing. The governmental
entity is immune from suit if the money judgment sought is to
be satisfied out of the state treasury.” Id.
(quoting Watson, 75 F.3d at 574-75).
“is a public administrative body created by
statute.” Martinez v. N.M. State Eng'r
Office, 9 P.3d 657, 662 (N.M. Ct. App. 2000) (citing
N.M. Stat. Ann. 1978, § 10-9-8 (1980); State ex rel.
N.M. Highway Dep't v. Silva, 650 P.2d 833, 835 (N.M.
Ct. App. 1982)). The SPB has precisely defined duties, and
there is no evidence that the Board has autonomy to perform
any duties outside of those defined by statute. See
N.M. Stat. Ann. § 10-9-10. Moreover, Plaintiff offers no
argument to establish that the SPB provides for its own
financing or that a money judgment would be satisfied by any
fund outside of the state treasury. See,
e.g., N.M. Stat. Ann. § 10-9-5. The Court finds
that the SPB is an arm of the state.
is a “cabinet department” created as part of the
state's executive branch. N.M. Stat. Ann. 1978 §
9-7-4. Multiple state and federal cases acknowledge that the
DOH is an arm of the state and entitled to Eleventh Amendment
immunity. See, e.g., J.B. ex rel. Hart
v. Valdez, 186 F.3d 1280, 1285-86 (10th Cir. 1999)
(noting that while defendants, including DOH, are generally
entitled to Eleventh Amendment immunity, immunity can be
waived); Lewis, 94 F.Supp.2d at 1223; Jackson v.
Fort Stanton Hosp. & Training Sch., 757 F.Supp.
1243, 1303 (D.N.M. 1990), rev'd on other
grounds, 964 F.2d 980 (10th Cir. 1992); Whitney ...