United States District Court, D. New Mexico
DAVID N. STANLEY, Plaintiff,
DONALD GALLEGOS, et al., Defendants.
MEMORANDUM OPINION AND ORDER
GREGORY B. WORMUTH United States Magistrate Judge
MATTER comes before the Court on Defendant Gallegos's
renewed Motion for Summary Judgment on Qualified Immunity
Grounds (doc. 196) and Defendant Gallegos's
Motion for Summary Judgment (doc. 160) on the basis
of Eleventh Amendment and absolute prosecutorial immunity.
The Court has reviewed the Motions and related briefing
(docs. 197, 202, 165), and has heard oral argument
on the Motions (docs. 205, 207, 208).
reasons explained more fully below, the Court finds: (1) the
Eighth Judicial District Attorney's Office is an arm of
the state of New Mexico and Plaintiff's official-capacity
§ 1983 claims against the office are therefore precluded
by Eleventh Amendment immunity; (2) Defendant Gallegos was
not acting in his role as a prosecutor when he took the
actions at issue and is thus not entitled to absolute
prosecutorial immunity on any of Plaintiff's claims; (3)
Plaintiff has met his burden of showing that Defendant
Gallegos violated both Plaintiff's Fourteenth Amendment
right to procedural due process and his Fourth Amendment
right against unreasonable seizures in taking the actions at
issue; (4) however, Plaintiff has not met his burden to show
that Defendant Gallegos violated clearly established law
which entitles Defendant Gallegos to qualified immunity on
Plaintiff's individual-capacity § 1983 claims for
monetary relief; and (5) Plaintiff's claims for
injunctive relief are not foreclosed by either qualified
immunity or the Eleventh Amendment.
the Court will GRANT IN PART and DENY IN PART Defendant
Gallegos's Motion for Summary Judgment asserting Eleventh
Amendment and absolute prosecutorial immunity (doc.
160), and will GRANT IN PART and DENY IN PART Defendant
Gallegos's Motion for Summary Judgment on Qualified
Immunity Grounds (doc. 196).
central dispute giving rise to the events underlying this
litigation is whether a road traversing Plaintiff's
property, Red Hill Road, is public or private. Plaintiff is a
rancher whose ranch (“Stanley Ranch”) is located
in both Colfax and Mora Counties, New Mexico.
September 6, 2002, Defendant Donald Gallegos, the New Mexico
District Attorney representing Taos, Colfax, and Union
Counties, sent Plaintiff a letter stating that he had
received information that Plaintiff was planning to place a
gate across Red Hill Road. Defendant Gallegos believed Red
Hill Road was a public road pursuant to 43 U.S.C. § 932,
also known as Revised Statute 2477 (“R.S. 2477”).
See doc. 158 at 5, 9; doc. 158-2 at 7-9.
Accordingly, the letter warned Plaintiff that Red Hill Road
“is a public road and any placement of a gate or any
other obstruction will be dealt with appropriately,
including, but not limited to, the filing of criminal charges
against you.” Doc. 125, Ex. C at 1.
thereafter, Plaintiff, believing Red Hill Road to be his
private property, erected a gate to block access to the road
by the public. He placed the gate at the county line where
Red Hill Road crosses from Mora County into Colfax County.
Nine years after sending the first letter, on August 3, 2011,
Defendant Gallegos sent Plaintiff another letter on official
stationery informing Plaintiff that he had no authority to
place a gate on the road and “requesting” that he
remove it. See doc. 160-1 at 17. The letter further
stated that, “Should you fail to do so, I will take any
and all steps necessary to make sure that the gate is opened
and/or removed.” Id. On August 11, 2011,
Plaintiff filed a quiet title action in New Mexico's
Eighth Judicial District Court, claiming title to Stanley
Ranch, including the portion of Red Hill Road that traverses
the ranch. Doc. 21 at 2. Thirteen days later, on
August 24, 2011, Defendant Gallegos, along with Defendant Ed
Olona and several other individuals including officers from
the Mora and Colfax County Sheriff's Departments, went to
the gate on Red Hill Road. Doc. 125 at 1- 2.
Together, they removed the obstruction from the road by
cutting the locked chain securing the gate, and by removing a
barbed-wire fence and T-posts set up at the cattle crossing.
Doc. 21 at 3; doc. 40 at 4. The T-posts,
fence, and gate itself were left at the scene, although not
intact. See id.
August 26, 2011, Defendant Gallegos sent Plaintiff a letter
on his official letterhead informing him:, “Since I did
not hear back from you regarding the letter I had sent you, I
have taken action to open the gate on Red Hill Road.”
See doc. 21, Ex. C. Defendant Gallegos reiterated
that Red Hill Road “is a public road” and that if
Plaintiff locked the gate or obstructed the cattle guard
again, he would “take action to have criminal charges
filed against [Plaintiff] for obstructing a public
road.” Id. Plaintiff did not heed this letter
and instead erected the gate again soon thereafter. On
September 10, 2011, a Colfax County Deputy Sheriff, Tony
Aguirre, went to Red Hill Road along with Defendant Olona and
others to again unlock the gate. Plaintiff alleges that the
second unlocking was done at Defendant Gallegos's
direction. Doc. 21 at 3-4. County Sheriff Patrick
Casias swore by affidavit that, based on Defendant
Gallegos's previous legal advice that the road was
public, Sheriff Casias instructed Deputy Aguirre to remove
the obstruction after receiving a phone call from Defendant
Olona that the gate was again locked. Doc. 40-1 at
December 19, 2011, Plaintiff filed this action pursuant to 42
U.S.C. § 1983, alleging various constitutional
violations on the basis that Defendants' actions
constituted (1) an unlawful taking of private property for
public use without just compensation in violation of the
Fifth Amendment; (2) an unreasonable search and seizure in
violation of the Fourth Amendment; and (3) deprivation of his
property without due process in violation of the Fourteenth
Amendment. See doc. 21 at 5-7. In addition,
Plaintiff alleged violations of the New Mexico Constitution
on the same grounds and brought state law statutory trespass
claims against various Defendants.
procedural history of this case is extensive and will not be
recounted in its entirety here. Pertinent to the present
motions, Defendant Gallegos moved for summary judgment on the
basis of qualified immunity on January 30, 2015. Doc.
115. The Court denied that motion on August 25, 2015,
ruling that Defendant Gallegos acted outside the scope of his
authority as a district attorney when he removed the gate
from Red Hill Road, and he was therefore not entitled to
invoke qualified immunity. Doc. 167. The Court's
qualified immunity ruling was appealed to the Tenth Circuit
Court of Appeals on September 18, 2015. Doc. 176. On
March 17, 2017, in a 1-1-1 decision, the Court of Appeals
overturned the Court's ruling and remanded the case for a
qualified immunity analysis absent application of a
scope-of-authority exception. See doc. 191. The
Court of Appeals denied Plaintiff's petition for a
rehearing en banc on June 7, 2017.
to the appeal on the qualified immunity issue, on July 10,
2015, Defendant Gallegos filed a separate Motion for Summary
Judgment in which he asserted both Eleventh Amendment
Immunity and absolute prosecutorial immunity as alternative
grounds for dismissing the claims against him. See doc.
160. That motion was fully briefed but remained pending
while the qualified immunity issue was on appeal. See
remand, the parties were ordered to file supplemental
briefing regarding Defendant Gallegos's assertion of
qualified immunity, which was completed on August 24, 2017.
See docs. 194, 196, 197, 202. On September 11, 2017,
the Court held a motion hearing regarding all pending motions
in the case, including Defendant Gallegos's renewed
Motion for Summary Judgment on Qualified Immunity Grounds
(doc. 196) and his Motion for Summary Judgment on
the basis of Eleventh Amendment and absolute prosecutorial
immunity (doc. 160). See docs. 195, 198,
205. Both motions are now ripe for ruling.
Standard of Review
Federal Rule of Civil Procedure 56(a), this Court must
“grant summary judgment if the movant shows that there
is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). The movant bears the initial burden of
“show[ing] ‘that there is an absence of evidence
to support the nonmoving party's case.'”
Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d
887, 891 (10th Cir. 1991) (quoting Celotex Corp. v.
Catrett, 477 U.S. 317, 325 (1986)). Once the movant
meets this burden, the non-moving party is required to
designate specific facts showing that “there are . . .
genuine factual issues that properly can be resolved only by
a finder of fact because they may reasonably be resolved in
favor of either party.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 250 (1986); Celotex, 477
U.S. at 324.
summary judgment motions based upon the defense of qualified
immunity are reviewed differently from other summary judgment
motions. Qualified immunity is “designed to protect
public officials from spending inordinate time and money
defending erroneous suits at trial.” Clark v.
Edmunds, 513 F.3d 1219, 1222 (10th Cir. 2008).
Therefore, when a public official is entitled to qualified
immunity, the entitlement relieves the official from bearing
any of the burdens of litigation, including discovery.
Ashcroft v. Iqbal, 556 U.S. 662, 672 (2009). The
Supreme Court “has directed the lower federal courts to
apply qualified immunity broadly, to protect from civil
liability for damages all officers except ‘the plainly
incompetent or those who knowingly violate the law,
'” in order to avoid unduly inhibiting officers in
performing their official duties. Wilson v. City of
Lafayette, 510 F. App'x 775, 780 (10th Cir. 2013)
(unpublished) (quoting Malley v. Briggs, 475 U.S.
335, 341 (1986), and Medina v. Cram, 252 F.3d 1124,
1127 (10th Cir. 2001)). The qualified immunity standard
allows government officials “ample room for mistaken
judgments, ” shielding them from liability for
reasonable error. Applewhite v. U.S. Air Force, 995
F.2d 997, 1000 (10th Cir. 1993) (quoting Hunter v.
Bryant, 502 U.S. 224, 229 (1991)). Thus, qualified
immunity is “applicable unless the official's
conduct violated a clearly established constitutional
right.” Pearson v. Callahan, 555 U.S. 223, 232
(2009). For that reason, “'clearly established
law' should not be defined ‘at a high level of
generality.” Pauly v. White, 137 S.Ct. 548,
552 (2017) (quoting Ashcroft v. al-Kidd, 563 U.S.
731, 724 (1987)). Instead, “the clearly established law
must be ‘particularized' to the facts of the
case.” Id. (quoting Anderson v.
Creighton, 483 U.S. 635, 640 (1987)).
the motion for summary judgment is based on qualified
immunity or not, the Court decides the motion on the basis of
the facts as construed in the light most favorable to the
non-moving party. Consequently, it must keep in mind three
principles. First, the Court's role is not to weigh the
evidence, but to assess the threshold issue of whether a
genuine issue exists as to material facts requiring a trial.
See Liberty Lobby, 477 U.S. at 249. “An issue
is ‘genuine' if there is sufficient evidence on
each side so that a rational trier of fact could resolve the
issue either way. An issue of fact is ‘material' if
under the substantive law it is essential to the proper
disposition of the claim.” Thom v. Bristol Myers
Squibb Co., 353 F.3d 848, 851 (10th Cir. 2003) (internal
the Court must resolve all reasonable inferences and doubts
in favor of the non-moving party, and construe all evidence
in the light most favorable to the non- moving party. See
Tolan v. Cotton, 134 S.Ct. 1861, 1866 (2014); see
also Riggins v. Goodman, 572 F.3d 1101, 1107 (10th Cir.
2009) (noting that courts generally “accept the facts
as the plaintiff alleges them” when considering whether
a plaintiff has overcome defendant's assertion of
qualified immunity at the summary judgment stage). However,
“a plaintiff's version of the facts must find
support in the record” at the summary judgment stage.
Thomson v. Salt Lake Cty., 584 F.3d 1304, 1312 (10th
the court cannot decide any issues of credibility. See
Liberty Lobby, 477 U.S. at 255. “[T]o survive the
. . . motion, [the non-movant] need only present evidence
from which a jury might return a verdict in his favor.”
Id. at 257.
Plaintiff's Official-Capacity Claims for Damages are
Barred by Eleventh Amendment Immunity
Eleventh Amendment provides: “The Judicial power of the
United States shall not be construed to extend to any suit in
law or equity, commenced or prosecuted against one of the
United States by Citizens of another State, or by Citizens or
Subjects of any Foreign State.” Const. amend. XI. Only
a state or “arms” of a state may assert the
Eleventh Amendment as a defense to suit in federal court.
Sutton v. Utah State Sch. for Deaf & Blind, 173
F.3d 1226, 1232 (10th Cir. 1999).
is inherent in the nature of sovereignty not to be amenable
to the suit of an individual without its consent.”
Hans v. Louisiana, 134 U.S. 1, 13 (1890). Thus, the
Eleventh Amendment has long been recognized as rendering
states and state entities immune to suit in federal court
generally. See College Sav. Bank v. Fla. Prepaid
Postsecondary Educ. Expense Bd., 527 U.S. 666, 669
(1999). However, that immunity “is not absolute”
and there are two circumstances in which it does not apply:
(1) where Congress has “authorize[d] such a suit in the
exercise of its power to enforce the Fourteenth
Amendment” and (2) where a state has “waive[d]
its sovereign immunity by consenting to suit.”
Id. at 670.
long as the government entity receives notice and an
opportunity to respond, ” a claim brought against a
public official in his official capacity “is, in all
respects other than name, to be treated as a suit against the
entity.” Kentucky v. Graham, 473 U.S. 159, 166
(1985); see also Will v. Mich. Dep't of State
Police, 491 U.S. 58, 71 (1989) (“a suit against a
state official in his or her official capacity is not a suit
against the official but rather is a suit against the
official's office.”). Congress did not abrogate
Eleventh Amendment immunity when it enacted 42 U.S.C. §
1983. Quern v. Jordan, 440 U.S. 332, 345 (1979).
Accordingly, states (and state officials sued in their
official capacities) cannot be sued for damages under §
1983. Will, 491 U.S. at 71. Therefore,
whether Eleventh Amendment immunity bars Plaintiff's
official-capacity claims against Defendant Gallegos depends
on whether those claims have been brought against a state
entity or a municipal entity.
Gallegos asserts that the Eleventh Amendment precludes the
official- capacity claims against him because he is a state
actor who acted as an official of the Eighth Judicial
District Attorney's Office. See doc. 160 at
8-10. The law governing whether an entity is an “arm of
the state” for purposes of Eleventh Amendment immunity
against official-capacity claims:
turns on whether the [entity] is to be treated as an arm of
the State partaking of the State's Eleventh Amendment
immunity, or is instead to be treated as a municipal
corporation or other political subdivision to which the
Eleventh Amendment does not extend. The answer depends, at
least in part, on the nature of the entity created by state
Sturdevant v. Paulsen, 218 F.3d 1160, 1164 (10th
Cir. 2000) (alteration in original) (quoting Mt. Healthy
City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280
(1977)). In short, “the inquiry with regard to a
particular entity is whether it is more like a county or city
than . . . like an arm of the state[.]” Id.
(internal quotations and citation omitted). Moreover, though
it is “ultimately a matter of federal law,
arm-of-the-state status must be determined in each case by
reference to the particular state laws characterizing the
Tenth Circuit, determining whether a particular governmental
entity is an “arm of the state” requires an
examination of the following four factors: “(1) the
characterization of the governmental unit under state law;
(2) the guidance and control exercised by the state over the
governmental unit; (3) the degree of state funding received;
and (4) the governmental unit's ability to issue bonds
and levy taxes on its own behalf.” Sutton, 173
F.3d at 1232 (citing Ambus v. Granite Bd. of Educ.,
995 F.2d 992, 994 (10th Cir. 1993)). These factors are
commonly called the “Mt. Healthy factors,
” after the Supreme Court decision which first applied
these factors to reject an Ohio school district board's
assertion of Eleventh Amendment immunity. Previously in the
Tenth Circuit, the third and fourth Mt. Healthy
factors had been characterized as the second prong of a
two-pronged inquiry, which required the court to
“examine the extent of financing the agency receives
independent of the state treasury and its ability to provide
for its own financing. The governmental entity is immune from
suit if the money judgment sought is to be satisfied out of
the state treasury.” Watson v. Univ. of Utah Med.
Ctr., 75 F.3d 569, 574-75 (10th Cir. 1996) (internal
approach does not mean that a plaintiff can avoid Eleventh
Amendment immunity by simply asking the Court to craft its
order so that a money judgment is not paid out of the state
treasury. Rather, the Tenth Circuit has cautioned courts
“to focus on legal liability for a judgment, rather
than [the] practical, or indirect, impact a judgment would
have on a state's treasury.” Duke v. Grady Mun.
Schs., 127 F.3d 972, 981 (10th Cir. 1997). In other
words, “'it is the entity's potential
legal liability, rather than its ability or
inability to require a third party to reimburse it, or to
discharge the liability in the first instance, that is
relevant” in determining whether the entity is entitled
to Eleventh Amendment immunity. Id. (emphasis added)
(quoting Regents of the Univ. of Cal. v. Doe, 519
U.S. 425, 431 (1997)). Or, as the Supreme Court explained in
Doe: “The question is not who pays in the end;
it is who is legally obligated to pay the judgment that is
being sought.” 519 U.S. at 428 (quotations and citation
Gallegos asserts that, when he took the actions underlying
this litigation, he was acting in his official capacity as an
official of a state agency-namely, the Eighth Judicial
District Attorney's office. See doc. 160 at
8-10. Thus, because “state entities and state employees
acting in their official capacities are entirely immune from
suit under the Eleventh Amendment, ” he argues that the
official-capacity claims against him must be dismissed.
See Id. at 9.
response to Defendant Gallegos's assertion of Eleventh
Amendment immunity, Plaintiff initially argued that Defendant
Gallegos “was acting ‘on behalf of' Colfax
County, and not the State of New Mexico, ” when he took
the allegedly unconstitutional actions underlying this
litigation. Doc. 165 at 1. This argument compelled
the Court to hold a hearing regarding whether Colfax County
was a necessary party to the case pursuant to Fed.R.Civ.P.
19, because “[i]f the Court were to accept
Plaintiff's theory, Colfax County could be exposed to
municipal liability stemming from Plaintiff's
official-capacity § 1983 claims.” Doc.
206 at 2 (citing Monell v. Dep't of Soc. Servs.
of N.Y.C., 436 U.S. 658, 707-08 (1978)). However, during
the December 8, 2017 hearing on the possible necessity of
joinder of the County, Plaintiff's counsel clarified that
the official-capacity claims in this case are brought against
the governmental entity of the Eighth Judicial District
Attorney's Office for the State of New Mexico, not
against Colfax County. This explicit concession forecloses the
need to analyze whether Defendant Gallegos acted “on
behalf of” the State or the County, which might
otherwise be necessary to determine against which entity
Plaintiff brings his official-capacity claims. See
McMillian v. Monroe Cty., Ala., 520 U.S. 781, 786
noted above, an official-capacity suit “is, in all
respects other than name, to be treated as a suit against the
entity.” Kentucky v. Graham, 473 U.S. at 165.
Unlike Colfax County, the district attorney's office is
an arm of the state and is therefore entitled to Eleventh
Amendment immunity against Plaintiff's official-capacity
claims. Jackson v. N.M. Pub. Def.'s Office, 361
F. App'x 958, 961-62 (10th Cir. 2010) (unpublished)
(agreeing with the trial court that the office of the
district attorney in New Mexico is an arm of the state and
thus “protected from suit by the Eleventh
Amendment”); Macias v. Griffin, 612 F.
App'x 532, 534 (10th Cir. 2015) (unpublished)
(“Dismissal of the claims against [New Mexico's
Fifth Judicial] [D]istrict [A]ttorney's [O]ffice was also
appropriate because it is a state office that is both
protected by the Eleventh Amendment and not subject to suit
under § 1983”); Vacek v. Court of Appeals,
Santa Fe, N.M., 325 F. App'x 647, 649 (10th Cir.
2009) (unpublished) (holding that “the New Mexico
courts and agencies listed as defendants, ” which
included the Second Judicial District Attorney's Office,
“are not entities against which 42 U.S.C. § 1983 .
. . claims may be lodged given Eleventh Amendment
immunity”); Ysais v. Richardson, Civ. No.
07-0287, JB/RLP, 2008 WL 4861697, at *5 (D.N.M. July 9, 2008)
(holding that the Thirtieth Judicial District Attorney's
Office in New Mexico is a state entity immune from suit under
the Eleventh Amendment); Luginbuhl v. City of
Gallup, , Civ. No. 12-1199, KG/SMV, 2016 WL 10592141, at
*5 (D.N.M. Jan. 28, 2016) (same holding regarding the
Eleventh Judicial District Attorney's Office of New
Mexico); James v. Dist. Attorney's Office, Civ.
No. 16- 1183, MV/GBW, 2017 WL 3405555, at *3 (D.N.M. Mar. 24,
2017) (proposing the Court find that the Ninth Judicial
District Attorney's Office is a state entity protected
from § 1983 claims by the Eleventh Amendment),
adopted in Order Adopting Report and
Recommendations, doc. 12 in 16-cv-1183 MV/GBW
(D.N.M. Apr. 28, 2017). Plaintiff points to no authority to
support a finding that a New Mexico District Attorney's
Office is not a state agency. See generally doc.
165. Rather, as noted above, he asks the Court to
analyze whether Defendant Gallegos acted “on behalf
of” Colfax County instead of the State of New Mexico.
Id. at 1, 5-10. Such an analysis is not appropriate
in light of Plaintiff's concession that his
official-capacity claims are not brought against Colfax
only apparent alternative would be a finding that, for the
purposes of this case, the Office of the District Attorney
for the Eighth Judicial District was a county agency. Yet
Plaintiff's counsel has repeatedly disclaimed such an
argument. The following colloquy between Plaintiff's
counsel and the Court during the joinder hearing is
MR. HAYS: . . . [Colfax] [C]ounty . . . has never expressed
an interest in coming into this case. They don't want to
have anything to do with this[.]
THE COURT: Well, they may feel a lot different if I say
[Defendant Gallegos is] a county official and he gets
qualified immunity as an individual . . . but he was acting
as a final policymaker for [the county] . . . and, therefore,
there's a judgment against the county.
MR. HAYS: Well, again, I don't think it would be a
judgment against the county. It would be a judgment against
Mr. Gallegos in his official capacity, not against Colfax
It may be collectable [from the county] through a
constitutional provision . . . but it's not a judgment
against Colfax County. It's not a finding that Colfax
County or the Board of County Commissioners of Colfax County
did anything wrong.
It would be a finding that Mr. Gallegos . . . in his official
capacity, in his office, violated [Plaintiff's]
constitutional rights, not that the county did. . . .
We enumerated all the factors that showed [Defendant
Gallegos] was, in fact, acting on behalf [of] or [in] the
interest of a county here [in Plaintiff's Eleventh
Amendment immunity briefing]. But that doesn't mean that
Colfax County is somehow liable or responsible or implicated.
THE COURT: Then who is?
MR. HAYS: The office of the district attorney.
THE COURT: And so this judgment is against their budget?
MR. HAYS: Well, it's a judgment against them. And the . .
. constitutional provision [of Article 8, Section 7 of the
New Mexico Constitution] says:
“No execution shall issue upon a judgment rendered
against any officer of any county recovered against him in
his official capacity and for which the county is liable, but
the same should be paid out of the proceeds of a tax
MR. HAYS: It's a judgment against the official which the
county pays through a special tax levy. That's what the
constitutional provision is.
THE COURT: . . . I'm familiar with that. That's what
happens in every case against the county. That doesn't -
I mean, I've never had somebody say to me before,
“Well, that means it's not against the
county.” Of course it's against the county.
It's against the taxpayers of the county. . . .
MR. HAYS: Well,  there's a process where the county
pays it. But . . . it's a judgment against that 
government official and against his entity.
THE COURT: . . . [I]f a tax levy against the residents of a
county is not a judgment against the county, who is it
MR HAYS: Again, . . . I see the judgment and the collection
process as being different. I think the judgment is against
Mr. Gallegos in his official capacity and against his office
independently. It's collected through this process [set
forth in Article 8, Section 7 of the New Mexico