United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
Fashing, United States Magistrate Judge
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.
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:
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. Id.
¶¶ 3–4. While he was interim police chief,
Herrera investigated illegal activity committed by family
members of a “Village counselor”.
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.
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, 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.
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.
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.
Motions to Dismiss Generally
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
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).
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.
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
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 ...