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Herrera v. Garcia

United States District Court, D. New Mexico

January 18, 2018

LEON HERRERA, Plaintiff,
v.
FERNANDO “NANDO” GARCIA, Individually and as Mayor of the Village of Springer, PAUL MARES, Individually and as Chief of Police of the Village of Springer, and STEVEN MICHAEL MARTINEZ, Individually and as Agent of the New Mexico State Police, Defendants.

          MEMORANDUM OPINION AND ORDER

          Laura Fashing, United States Magistrate Judge

         This matter comes before the Court on defendants Fernando Garcia and Paul Mares’s Motion to Dismiss on Grounds of Qualified Immunity, Statute of Limitations and Failure to State a Claim on Which Relief can be Granted. Doc. 50. Plaintiff Leon Herrera opposes the motion. Docs. 57, 62. Having considered the parties’ submissions and the relevant law, I GRANT Garcia and Mares’s motion to dismiss counts I, II and III. But as explained below, I will permit Herrera to move to amend his complaint on claims where amendment is not obviously futile.

         I. Factual Background

         In ruling on a motion for judgment on the pleadings, the Court must accept as true all facts alleged in the complaint. See Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009). It also must view these factual allegations in the light most favorable to the plaintiff. See Id. Viewing the facts alleged in the complaint in this manner, the complaint establishes the following:

         Herrera was hired in 2009 as a police officer for the town of Springer, New Mexico. Doc. 1-1 ¶ 6. He eventually was promoted to interim police chief. Id. Garcia was the mayor of Springer, and Mares was the police chief. [1]Id. ¶¶ 3–4. While he was interim police chief, Herrera investigated illegal activity committed by family members of a “Village counselor”[2]. Id. ¶ 8. He also investigated criminal activity committed by Garcia. Id. Herrera reported the Garcia matter to the Federal Bureau of Investigation. Id. ¶ 9. Garcia was aware of Herrera’s investigation of him. Id. ¶ 10. The “Village counselor” was aware of Herrera’s investigation of the official’s family member, which ultimately resulted in a conviction. Id. Springer officials forced Herrera out of his position as interim police chief because they were unhappy that he was investigating the mayor and a town councilor’s family member. Id. ¶ 11.

         At the end of July 2014, Garcia and Mares falsely reported that Herrera had purchased various items with funds belonging to the town of Springer and converted those items to his own use. Id. ¶ 12. Garcia and Mares made this report to Steven Michael Martinez,[3] who was an agent of the New Mexico State Police.” Id. ¶¶ 5, 13. Garcia and Mares withheld or destroyed exonerating evidence from Martinez. Id. ¶ 14. Martinez conducted a “faulty, biased, misleading, and incomplete investigation into the matter” and was a “personal enemy” of Herrera’s. Id. ¶¶ 15, 19.

         Herrera subsequently was charged with the felony offense of embezzling more than $2500, but not more than $20,000, under N.M. Stat. Ann. § 30-16-8 in State v. Leon Herrera, Colfax County Cause No. D-809-CR-2015-00112. Doc. 1-1 ¶ 20. According to Herrera, there was no probable cause to support his prosecution. Id. ¶ 21. On May 10, 2016, a jury acquitted Herrera on this charge. Id. ¶ 22.

         II. The Complaint

         Count I of the complaint, brought under 42 U.S.C. § 1983, alleges that the “Defendants[’] actions resulted in [Herrera] being maliciously prosecuted” and “were conducted with the intent to deprive [Herrera] of his right to free speech, freedom from retaliation, and freedom from retaliatory of bad faith or capricious prosecutions.” Doc. 1-1 ¶ 24. Count I also alleges that Garcia, Mares, and Martinez conspired with each other to violate Herrera’s constitutional rights. Id. ¶ 25. Count II of the complaint also is brought under 42 U.S.C. § 1983, and appears to allege the same violations as Count I. See Id. ¶¶ 28–34. Count III of the complaint, brought under the New Mexico Tort Claims Act, alleges that Mares and Garcia committed the torts of “abuse of process, malicious abuse of process, libel, slander, defamation of character, prima facie tort, and violation of immunities secured by the constitution and laws of the United States and State of New Mexico.” Id. ¶ 36.

         III. Discussion

         A. Motions to Dismiss Generally

         “To withstand a motion to dismiss, a complaint must have enough allegations of fact, taken as true, ‘to state a claim to relief that is plausible on its face.’” Kan. Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1214 (10th Cir .2011) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). While “‘a court must accept as true all of the allegations contained in a complaint,’” this rule does not apply to legal conclusions. Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “[A] plaintiff must offer specific factual allegations to support each claim.” Id. (citation omitted). A complaint survives only if it “states a plausible claim for relief.” Id. (citation omitted). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678 (citation omitted).

         “Generally, a court considers only the contents of the complaint when ruling on a 12(b)(6) motion.” Berneike v. CitiMortgage, Inc., 708 F.3d 1141, 1146 (10th Cir. 2013). But a court may consider “documents incorporated by reference in the complaint; documents referred to in and central to the complaint, when no party disputes its authenticity; and matters of which a court may take judicial notice.” Id. (internal quotation marks omitted) (citing Gee v. Pacheco, 627 F.3d 1178, 1186 (10th Cir. 2010)). In determining whether to grant the motion, the Court must accept all the well-pleaded allegations of the complaint as true, even if doubtful in fact, and must construe the allegations in the light most favorable to the plaintiff. Twombly, 550 U.S. at 555; Alvarado v. KOB–TV, LLC, 493 F.3d 1210, 1215 (10th Cir. 2007). “[A] well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and ‘that a recovery is very remote and unlikely.’” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Twombly, 550 U.S. at 556).

         B. Section 1983 Claims and Qualified Immunity Generally

          Section 1983 states in relevant part:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

42 U.S.C. § 1983. To establish a claim under § 1983, a plaintiff must allege that a defendant acted under color of state law to deprive the plaintiff of a right, privilege, or immunity secured by the Constitution or the laws of the United States. West v. Atkins, 487 U.S. 42, 48 (1988). The plaintiff also must identify an “affirmative link” between the alleged constitutional violation and each individual defendant. Gallagher v. Shelton, 587 F.3d 1063, 1069 (10th Cir. 2009).

         Qualified immunity shields government officials performing discretionary functions from liability for civil damages unless their conduct violates clearly established statutory or constitutional rights of which a reasonable person would be aware. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Under the Tenth Circuit’s two-part test for evaluating qualified immunity, the plaintiff must show (1) that the defendant’s conduct violated a constitutional or statutory right, and (2) that the law governing the conduct was clearly established when the alleged violation occurred. Baptiste v. J.C. Penney Co., 147 F.3d 1252, 1255 (10th Cir. 1998); accord Tonkovich v. Kan. Bd. of Regents, 159 F.3d 504, 516 (10th Cir. 1998). For a right to be clearly established, “[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he [or she] is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640 (1987). Unless both prongs are satisfied, the defendant will not be required to “engage in expensive and time consuming preparation to defend the suit on its merits.” Siegert v. Gilley, 500 U.S. 226, 232 (1991).

         The Court is not required to address the two prongs of the test in order. Pearson v. Callahan, 555 U.S. 223, 236 (2009). The Supreme Court’s decision in Pearson permits courts to grant qualified immunity without first deciding whether a constitutional violation occurred so long as the right claimed to be violated was not clearly established. Id. The right that is alleged to have been violated must be “clearly established” not just as a general proposition (for example, in the way the right to free speech is clearly established), but “in a more particularized . . . sense: The contours of the right must be sufficiently clear that a reasonable official would understand that what he [or she] is doing violates that right.” Anderson, 483 U.S. at 640. Stating the right too broadly would destroy the balance that the Supreme Court has sought to establish “between the interests in vindication of citizens’ constitutional rights and . . . public officials’ effective performance of their duties by making it impossible for officials reasonably to anticipate when their conduct may give rise to liability for damages.” Id. at 639 (quotation and citation omitted). “Qualified immunity gives ...


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