United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
VÁZQUEZ, United States District Judge
MATTER comes before the Court on Defendants' Motion to
Dismiss Counts I, II and VIII of Plaintiff's Second
Amended Complaint and for Qualified Immunity and Memorandum
in Support Thereof [Doc. 24]. The Court, having considered
the motion, briefs, and relevant law, and being otherwise
fully informed, finds that the Motion is well-taken and will
facts as alleged by Plaintiff in his Second Amended Complaint
[Doc. 19] are as follows. In September 2014, Defendant was
hired as a temporary employee in the Dona Ana County
Clerk's Office (“Clerk's Office”). Doc.
19 ¶ 11. His assignment was to develop policies and
procedures across polling places in the county, which was the
same type of work that he had done with the Clerk's
Office for over 20 years. Id. ¶. Defendant
expected his temporary assignment to continue through
February of 2016. Id.
March of 2015, Defendant Scott Krahling, Chief Deputy Clerk
for Dona Ana County, announced to the employees of the
Clerk's Office that he intended to run in 2016 for the
position of County Clerk for Dona Ana County. Id.
¶ 12. Also in March of 2015, Defendant Lynn Ellins,
Clerk for Dona Ana County, announced to the employees of the
Clerk's Office that he intended to serve in the position
of Chief Deputy County Clerk for Dona Ana County for two
years following the 2016 election, and to thereafter run for
the position of Dona Ana County Commission[er] in the 2018
April 15, 2015 at 2:00 p.m., Plaintiff “casually
mentioned” to Defendant Krahling that he was
considering running in 2016, as a Republican, for Dona Ana
County Clerk. Id. ¶ 14. Thereafter, Defendant
Krahling “approached” Plaintiff through a
Facebook posting on April 16, 2015, and
“confronted” Plaintiff in Plaintiff's office
on April 17, 2015. Id. ¶¶ 15-16. Plaintiff
“was subjected to” the following: he was locked
out of the computer system; clerk staff “were
instructed” not to speak to him; clerk staff did not
speak to him; and Defendant Krahling did not speak to him for
over two months. Id. ¶ 17. Plaintiff filed
“several” EEOC complaints outlining his concerns,
which complaints were “largely disregarded.”
Id. ¶ 20.
on this series of events, Plaintiff claims that:
Defendants improperly harassed Plaintiff and subjected him
to harassment, retaliation, hostile work environment and
outrageous conduct in retaliation against Plaintiff
associated with Plaintiff's constitutionally protected
action of seeking support in his off duty hours for his
possible candidacy for Dona Ana County Clerk in the 2016
election after Plaintiff mentioned his interest in running
for this political position.
Id. ¶ 18.
Second Amended Complaint further alleges that, on May 11,
2015, Maria Ceniceros approached Plaintiff and asked if he
was interested in making extra money by cashing fraudulently
obtained United States Treasury refund checks. Id.
¶ 22. Plaintiff agreed to go along with the scheme for
the purposes of getting more information and speaking out
about this criminal activity to law enforcement. Id.
¶ 22. Plaintiff spoke out about his concerns to law
enforcement after the end of his work day. Id. After
his initial statement to law enforcement, Plaintiff's
continued activities related to the ongoing crimes were
directed by federal and local government. Id. ¶
Friday, May 29, 2015, three people were arrested based on
Plaintiff's statements to law enforcement. Id.
¶ 25. Over the weekend, Plaintiff gave an interview to
the Las Cruces Sun-News about the criminal activity in the
Clerk's Office. Id. ¶ 26. On Monday, June
1, 2015, as three more employees of the Clerk's Office
were being arrested, Defendant Ellins stopped at
Plaintiff's desk, pointed his finger into Plaintiff's
face, and said, “either you're dead or you're
next.” Id. ¶ 27. Also that day, the
Sun-News ran the article on the issues in the Clerk's
Office, which article included the interview with Plaintiff,
and the website NMPolitics.net ran an article citing the
Sun-News article. Id. ¶ 27.
on June 4, 2015, Dona Ana County terminated Plaintiff's
employment. Id. ¶ 28. Plaintiff claims that
Dona Ana County's termination of his employment was done
“in retaliation for the public harassment caused to
Lynn Ellins, associated with [Plaintiff]'s
Constitutionally protected action of speaking out about
criminal activity that was taking place in the Dona Ana
County Clerk's Office.” Id.
August 17, 2015, Plaintiff commenced the instant action
against the Board of County Commissioners for Dona Ana County
and the following individuals, in their individual capacity
and in their official capacity: Lynn Ellins (Dona Ana County
Clerk), Julia Brown (Dona Ana County Manager), Dave Medieros
(Dona Ana Interim County Attorney), and Scott Krahling (Dona
Ana County Chief Deputy Clerk). In his Second Amended
Complaint, Plaintiff sets forth eight claims against all of
the Defendants, which include, inter alia, two
claims brought pursuant to 42 U.S.C. Section 1983, for
“Deprivation of First Amendment Right of Freedom of
Association” (Count I), and for “Deprivation of
First Amendment Right of Freedom of Speech” (Count II),
and a claim “Pled in the Alternative to the Second
Cause of Action Deprivation of First Amendment Right of
Freedom of Speech” (Count VIII).
March 22, 2016, Defendants filed their motion to dismiss
Counts I, II, and VIII of the Second Amended Complaint,
arguing that Plaintiff fails to state a claim on the merits
against Defendants, and that Plaintiff's claims against
the individual Defendants are barred by qualified immunity.
Plaintiff opposes the motion to dismiss.
claims that, under 42 U.S.C. Section 1983, both the
individual Defendants and Dona Ana County violated his First
Amendment rights to freedom of association and freedom of
speech and that, even if Defendants are entitled to qualified
immunity on his First Amendment claims, he nonetheless is
entitled to a “nominal judgment in the amount of $1.00
(one dollar) . . . so that the case law on this issue of
Freedom of Speech under the circumstances of this cause of
action can be developed so that there is not a stagnation of
the law in this area.” Id. ¶ 65.
Defendants move to dismiss, arguing that Plaintiff has failed
to state a plausible claim for relief against any of the
individual Defendants or against Dona Ana County, and that,
further, Plaintiff's claims ...