United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS'
MOTION TO DISMISS
MATTER comes before the Court upon Defendants' Motion to
Dismiss Plaintiffs' Complaint for Failure to State a
Claim and Lack of Jurisdiction, filed October 27, 2017
(Doc. 15). Having reviewed the parties'
pleadings, considered the controlling law and after hearing
oral arguments of counsel at the hearing on January 23, 2018,
the Court finds that Defendants' motion is well-taken
and, therefore, is GRANTED.
Stella Padilla and her daughter, Plaintiff Vanessa Benavidez,
are self-described community activists. Ms. Padilla was a
potential candidate in the 2017 Albuquerque mayoral race.
See Compl., at 1. She became involved in a dispute
regarding the required number of petition signatures with
Albuquerque City Clerk Natalie Howard, and brought suit in
state district court regarding the matter. In response to
Ms. Benavidez' aggressive efforts to serve Ms. Howard
with a copy of the complaint and Ms. Benavidez' conduct
toward Ms. Howard on several other occasions, Ms. Howard
filed a motion for protective order seeking to protect Ms.
Howard from aggressive conduct engaged in by “any
person who is a volunteer or otherwise associated with Ms.
Padilla's campaign.” Doc. 1, Ex. A.
federal lawsuit is premised on First Amendment rights under
the United States Constitution as well as under the New
Mexico Constitution. See Compl., Doc. 1 at 4,
¶18. Plaintiffs contend that the filing of the motion
for protective order in the underlying state court action was
improper and done in order to silence or chill their right to
engage in free speech. Id. at 1-2. Plaintiffs also
contend that Defendants' conduct in seeking the
protective order was a “vindictive prosecution”
done intentionally and that this conduct violated their First
Amendment right to petition the Government for redress.
Id., ¶¶15, 16. Their federal complaint
asserts one cause of action based on a violation of
Plaintiffs' First Amendment rights under the United
States Constitution as well as the New Mexico Constitution.
See Compl., ¶18. Plaintiffs allege that
Defendants had no legitimate basis or cause to file the
motion for protective order against them, and that they did
so with “retaliatory and malicious” motives.
Id., ¶¶17-18. In addition to compensatory
and punitive damages, Plaintiffs seek declaratory relief
pursuant to the Declaratory Judgment Act, 28 U.S.C.
§§ 2201 and 2202.
seek dismissal of Plaintiffs' Complaint pursuant to
Fed.R.Civ.Pro 12(b)(1) and 12(b)(6) for the following
(1) Defendants are absolutely immune from the alleged §
(2) Defendants are entitled to qualified immunity because the
allegations fail to show a First Amendment violation and
Plaintiffs cannot show that the right they seek to assert was
(3) Plaintiffs fail to state a § 1983 damages claim
against Jessica Hernandez;
(4) Plaintiffs fail to show that there is subject-matter
jurisdiction for their declaratory judgment claims; and
(5) Because there are no federal claims, Plaintiffs'
state law claim should be dismissed pursuant to 28 U.S.C.
12(b)(1) motion to dismiss for lack of “subject-matter
jurisdiction” can attack the sufficiency of a complaint
on the grounds that the facts as alleged fail to establish
that the court has jurisdiction. Holt v. United
States, 46 F.3d 1000, 1002-03 (10th Cir. 1995). Since
federal courts are courts of limited jurisdiction, there is a
presumption against federal jurisdiction. Id. A
court lacking jurisdiction “must dismiss the cause at
any stage of the proceeding in which it becomes apparent that
jurisdiction is lacking.” Id.; Fed.R.Civ.P.
12(b)(6) permits the Court to dismiss a complaint for
“failure to state a claim upon which relief can be
granted.” Fed.R.Civ.P. 12(b)(6). To survive a motion to
dismiss, a plaintiff's complaint must have sufficient
factual matter that if true, states a claim to relief that is
plausible on its face. Ashcroft v. Iqbal, 556 U.S.
662, 677 (2009) (“Iqbal”). As such, a
plaintiff's “[f]actual allegations must be enough
to raise a right to relief above the speculative
level.” Bell Atlantic Corp. v. Twombly, 550
U.S. 544 (2007) (“Twombly”). All
well-pleaded factual allegations are “viewed in the
light most favorable to the nonmoving party.”
Brokers' Choice of Am., Inc. v. NBC
Universal, Inc., 757 F.3d 1125, 1136 (10th Cir. 2014).
In ruling on a motion to dismiss, “a court should
disregard all conclusory statements of law and consider
whether the remaining specific factual allegations, if
assumed to be true, plausibly suggest the defendant is
liable.” Kan. Penn Gaming, LLC v. Collins, 656
F.3d 1210, 1214 (10th Cir. 2011). Mere “labels and
conclusions” or “formulaic recitation[s] of the
elements of a cause of action” will not suffice.
Twombly, 550 U.S. at 555.
allege that Defendants violated their free speech rights
under the First Amendment. The free speech rights protected
by the First Amendment include the right to petition the
government for redress of grievances. Crawford-El v.
Britton, 523 U.S. 574, 592 (1998). Governmental
retaliation for exercising one's freedom of speech
constitutes infringement of that freedom. Worrell v.
Henry, 219 F.3d 1197, 1212 (10th Cir. 2000). To properly
set forth a claim of unlawful retaliation by government
officials in response to the exercise of the First Amendment
right to petition, Plaintiffs must allege sufficient facts to
show that (a) they were engaged in constitutionally protected
activity; (b) the defendant's actions caused the
plaintiff to suffer an injury that would chill a person of
ordinary firmness from continuing to engage in that activity;
and (c) the defendant's adverse action was substantially
motivated as a response to the plaintiff's exercise of
constitutionally protected conduct. 219 F.3d at 1212.
Absolute Immunity from §1983 claims
the time periods relevant to this lawsuit, Defendant Jessica
Hernandez was the City Attorney for the City of Albuquerque.
As far as the Court can ascertain from reviewing the scant
factual allegations in Plaintiffs' Complaint, the only
reason Jessica Hernandez was named as a Defendant in this
case was because her name appeared on the motion for
protective order as the City Attorney for the City of
Stella Padilla had filed the state court lawsuit against
Defendant Natalie Howard in her capacity as City Clerk and
she was represented by Assistant City Attorneys Zarr and
Bullock who are also named defendants in this case. The
motion for protective order filed in the state court lawsuit
states that the motion was made on behalf of Defendant
Natalie Howard, Albuquerque City Clerk, by Defendants Zarr
and Bullock, in their capacities as Assistant City Attorneys,
and the motion was signed by Defendant Zarr. Doc. 1-2 (Ex. A)
at 1 & 6. The motion for protective order was supported
by the sworn affidavit of Natalie Howard, who was the
defendant in, and a party to, the underlying state court
action. Defendants contend that Plaintiffs' §1983
claims must be dismissed for failure to state a claim because
Defendants are absolutely immune from suit for their conduct
participating in the judicial process. The Court agrees.
“undertaken by a prosecutor in preparing for the
initiation of judicial proceedings or for trial, and which
occur in the course of his role as an advocate for the State,
are entitled to the protections of absolute immunity.”
McCormick v. City of Lawrence, Kan., 99 Fed.Appx.
169, 172 (10th Cir. 2004) (citing Kalina v.
Fletcher, 522 U.S. 118, 126 (1997) (quotation omitted).
Absolute prosecutorial immunity extends no further than
necessary to protect those activities. See Harlow v.
Fitzgerald, 457 U.S. 800, 811 (1982); see Cordova v.
Vaughn Mun. Sch. Dist. Bd. of Educ., 3 F.Supp.2d 1216,
1219-20 (D.N.M. 1998) (absolute immunity applies only for
activities that are intimately associated with the judicial
process, such as initiating or pursuing a criminal
prosecution or civil action) (citing Robinson v.
Volkswagenwerk AG, 940 F.2d 1369, 1370 (10th
generally, absolute immunity protects various participants in
the judicial process and the United States Supreme Court has
held that such immunity is “necessary to assure that
judges, advocates, and witnesses can perform their respective
functions without harassment or intimidation.”
Jenner v. Brightwell, No. 14-CV-00916-RBJ-KMT, 2015
WL 1042065, at *5 (D. Colo. Mar. 6, 2015) (citing Butz v.
Economou, 438 U.S. 478, 512 (1978)). The doctrine of
absolute immunity covers conduct in civil proceedings where
the government attorney is operating in an enforcement role
and advocating for the state “in initiating and
prosecuting judicial proceedings.” Cooper v.
Parrish, 203 F.3d 937, 947 (6th Cir.2000); Van
Deelen v. City of Kan. City, Mo., No. Civ.A. 05-2028,
2005 WL 3050151, at *8 (D.Kan. Nov. 14, 2005) (citing
numerous cases, and recognizing that absolute immunity
applies to protect government counsel for their actions in
defending civil suits); see also Juide v. City of Ann
Arbor, 839 F.Supp. 497, 500-504 (E.D.Mich.1993) (city
officials entitled to absolute prosecutorial immunity for
actions taken in civil forfeiture proceeding).
immunity is not limited to the criminal context, and applies
to civil proceedings “where the government attorney is
operating in an enforcement role and advocating for the state
‘in initiating and prosecuting judicial
proceedings.'” Jenner, No.
14-CV-00916-RBJ-KMT, 2015 WL 1042065, at *5. This protection
also extends to government counsel for their actions in
defending civil suits. See Van Deelen, 2005 WL
3050151, at *8. The Tenth Circuit has recognized that
absolute immunity applies to government counsel when
defending civil suits. Robinson, 940 F.2d at
1372-73; see also Barrett v. U.S., 798 F.2d 565, 572
(2d Cir. 1986) (government counsel acting as advocate for
public trust “should not be inhibited in the faithful
performance of his duties by the threat of harassing lawsuits
against him” and was therefore entitled to absolute
immunity). Thus, absolute immunity protects government
attorneys from a §1983 action for damages based on
actions taken in their official capacity in defending against
a prior § 1983 suit. Jenner, 2015 WL 1042065,
at *5; Murphy v. Morris, 849 F.2d 1101, 1104- 1105
(8th Cir.1988) (finding that assistant attorney general was
immune from a § 1983 suit for the introduction of
evidence in a prior § 1983 suit). However, a defendant
who asserts absolute immunity from § 1983 liability
bears the burden of establishing the existence of immunity
for the function in question. Robinson, 940 F.2d at
1370 (“one claiming such immunity must demonstrate
contend that in filing the motion for protective order in the
state court lawsuit, Defendants Hernandez, Zarr and Bullock
were functioning squarely within their capacity as advocates
for a city government defendant in a judicial proceeding.
Plaintiffs recognize that absolute immunity is available to
government attorneys, but argue that Defendants were ...