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Benavidez v. Howard

United States District Court, D. New Mexico

January 24, 2018

NATALIE HOWARD; Albuquerque City Clerk; JESSICA HERNANDEZ, City Attorney; WILLIAM ZARR, Assistant City Attorney; and NICHOLAS BULLOCK, Assistant City Attorney, Defendants.


         THIS 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.


         Plaintiff 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.[1] 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. Id.[2]

         This 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.

         Defendants seek dismissal of Plaintiffs' Complaint pursuant to Fed.R.Civ.Pro 12(b)(1) and 12(b)(6) for the following reasons:

(1) Defendants are absolutely immune from the alleged § 1983 claims;
(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 clearly established;
(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. § 1367(c)(3).


         A 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(h)(3).

         Rule 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.

         Plaintiffs 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.

         I. Absolute Immunity from §1983 claims

         During 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 Albuquerque.

         Plaintiff 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.

         Acts “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 Cir.1991)).[3]

         More 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).

         Absolute 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 clear entitlement”).

         Defendants 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 ...

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