Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Burke v. State

United States District Court, D. New Mexico

May 9, 2018

HEATHER BURKE, Plaintiff,
v.
STATE OF NEW MEXICO, EDWYNN BURCKLE, JAY HONE, MICHAEL GALLEGOS, ANGELA DAWSON, BRENDA GUETHS, KAREN BALTZLEY, GENERAL SERVICES DEPARTMENT OF THE STATE OF NEW MEXICO, and LARA WHITE-DAVIS, Defendants.[1]

          MAGISTRATE JUDGE'S PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

          STEPHAN M. VIDMAR United States Magistrate Judge.

         THIS MATTER is before me on Plaintiff's Third Motion for Leave to Amend [Doc. 77], [2] filed on December 5, 2017. Defendants responded on January 12, 2018. [Doc. 82]. Plaintiff replied on January 26, 2018. [Doc. 85]. The Honorable M. Christina Armijo, United States District Judge, referred this matter to me for analysis and a recommended disposition. [Doc. 88].I have considered the briefing, the relevant portions of the record, and the relevant law. Being otherwise fully advised in the premises, I recommend that Plaintiff's motion be GRANTED IN

         PART AND DENIED IN PART.

         I. Background

         In January 2013, Plaintiff began working for the New Mexico General Services Department (“GSD”) as an “IT Generalist.” [Doc. 49-1] at 2. In that position, she “provid[ed] IT support and customer services for GSD.” Id. Plaintiff alleges a number of violations of state and federal law stemming from her employment in that position. She alleges that men in her department were being paid more than women in the same positions. She further alleges harassment at the hands of a co-worker that, when reported to her supervisors, went unchecked. She alleges that she uncovered “malfeasance” and “gross misconduct and . . . mismanagement” within her department but was retaliated against and subjected to a hostile work environment when she reported these issues. She contends she was similarly retaliated against for reporting serious security and privacy breaches at GSD. Plaintiff also alleges that she was retaliated against and subjected to a hostile working environment as a result of being diagnosed with cancer and during the course of her treatment. See [Doc. 49-1] at 2-4.

         Plaintiff, proceeding pro se, filed suit in state court in May 2016 against the State of New Mexico and several state employees. [Doc. 1-2]. She alleged claims based on the Fair Pay for Women Act (“FPWA”), the New Mexico Whistle blower Protection Act (“WPA”), and 42 U.S.C. § 1983. Defendants removed the case to federal court and moved to dismiss the claims. [Docs. 1, 10]. Plaintiff subsequently moved to amend her complaint by substituting GSD in place of the State of New Mexico as a defendant and adding certain additional claims and defendants. [Doc. 29]. On October 3, 2016, the Honorable Robert A. Junell, Senior United States District Judge, granted Defendants' motion to dismiss all of Plaintiff's claims and denied her leave to amend her complaint. [Docs. 41, 42].

         Plaintiff appealed to the Tenth Circuit, which affirmed in part and reversed in part. 696 Fed.Appx. 325 (10th Cir. 2017); [Doc. 49-1]. The Tenth Circuit affirmed the dismissal of Plaintiff's claims except as to her WPA claim against Defendant Burckle, Secretary of the General Services Department, in his official capacity.[3] [Doc. 49-1] at 20. And it affirmed the denial of leave to amend except as to the addition of FPWA and EPA claims against GSD, the addition of a WPA claim against GSD, and the submission of an amended § 1983 privacy claim. Id. at 20-21. The Tenth Circuit remanded “for further proceedings as to violation of privacy, wage discrimination, and whistleblowing that are consistent with this Order and Judgment.” Id. at 21. On remand, Judge Junell vacated the judgment in part and granted Plaintiff leave to file an amended complaint. [Doc. 50]. Consistent with the Tenth Circuit's order, Judge Junell granted Plaintiff leave:

(1) to amend her privacy claim under 42 U.S.C. § 1983 and cure the deficiencies noted in the Tenth Circuit's Order and Judgment dated June 8, 2017; (2) to name GSD as a defendant in this action; (3) to add a WPA claim against GSD in addition to Plaintiff's WPA claim against Edwynn Burckle, in his official capacity as Secretary of the General Services Department; and (4) to add discrimination claims under New Mexico's [FPWA] and the federal [EPA] against GSD. Plaintiff shall not include any other previously-dismissed claims in her Amended Complaint, except as specified by this Order.

[Doc. 50] at 1-2. He ordered Plaintiff to file her amended complaint within 21 days. Id. at 1.

         On September 5, 2017, Plaintiff filed a 46-page amended complaint. [Doc. 53]. The amended complaint stated FPWA and EPA claims against GSD; § 1983 claims for violation of the Fourth Amendment against Defendants Burckle and Baltzley in their individual capacities; and a WPA claim against GSD. Plaintiff also asserted several new claims that she had never previously raised. She alleged violation of the New Mexico Human Rights Act (“NMHRA”) for gender discrimination and harassment, disability discrimination, and failure to accommodate; violation of the New Mexico Fraud Against Taxpayers Act (“FATA”); violation of the New Mexico Inspection of Public Records Act (“IPRA”); breach of contract and breach of the implied covenant of good faith and fair dealing; and violation of the Family and Medical Leave Act (“FMLA”).[4] A week later, on September 13, 2017, Plaintiff filed a second amended complaint, without requesting leave of the Court to do so. [Doc. 54]. The second amended complaint added several new paragraphs and made additional changes to existing allegations.

         Defendants moved to strike both amended complaints pursuant to Fed.R.Civ.P. 15(f). [Doc. 56]. They asserted that the Tenth Circuit “narrowly set the parameters under which” Plaintiff could file an amended complaint. Id. at 6. The Tenth Circuit's order (and Judge Junell's corresponding order on remand) “made clear” that “the only permissible defendants in Plaintiff's Amended Complaint are the GSD and Defendant Burckle (official capacity only) and the only permissible causes of action are” a § 1983 privacy claim, a FPWA/EPA discrimination claim, and a WPA claim. Id. at 5. Allowing Plaintiff to exceed the scope of the Tenth Circuit's remand order without first obtaining leave of the court would contravene the “law-of-the-case” doctrine and the mandate rule, which require trial courts to conform to the terms of the remand. Id. at 6. Plaintiff, in turn, argued that she was directed only not to “include any other previously dismissed claims in her Amended Complaint, ” except as specified, and that the remand order was silent as to new claims. [Doc. 57] at 2. Therefore, she argued, she should be free to file an amended complaint asserting new claims and adding new defendants. And, to the extent she was required to obtain leave of the Court to add the new claims, she requested that such relief be granted “nunc pro tunc.” Id. at 5. Plaintiff simultaneously filed a separate motion seeking leave to amend her complaint nunc pro tunc. [Doc. 59]. The briefing on that motion largely tracked the briefing on Defendants' motion to strike.

         While these two motions were pending, Plaintiff filed two additional motions for leave to amend. Plaintiff's second motion for leave to amend sought to add additional claims on top of those already asserted in her amended complaints. She sought to add new claims for violation of the Stored Communications Act (“SCA”), violation of her “freedom of speech and association” pursuant to § 1983, and conspiracy to violate her civil rights pursuant to 42 U.S.C. § 1985. [Doc. 76]. She also sought to add counsel for Defendants, Jaclyn McLean, as a Defendant in the case. Plaintiff's subsequent third motion for leave to amend sought to correct technical errors in the caption and title of her most recent proposed amended complaint. [Doc. 77]. In response, Defendants moved the Court to stay any further filings by Plaintiff pending resolution of its motion to strike, arguing that Plaintiff's “barrage of motions and constantly changing complaints are harassing and vexatious.” [Doc. 78] at 7.

         I entered a Memorandum Opinion and Order on December 22, 2018 [Doc. 80], denying as moot Defendants' motion to strike and Plaintiff's first and second motions seeking leave to amend. In that order, I addressed two arguments raised by Defendants concerning the new claims and parties Plaintiff sought to add. First, I rejected the argument that Plaintiff's amended complaints should be struck for having added new claims and parties without first obtaining leave of the court. Id. at 7-8. I found this argument was moot because Plaintiff had since filed motions seeking leave to amend. Id. Second, I was unpersuaded by Defendants' suggestion that the mandate rule and law-of-the-case doctrine precluded Plaintiff from seeking leave to amend altogether following remand. Id. at 8-10. Those doctrines cabined the Court's discretion as to matters the Tenth Circuit had already considered on appeal, but not as to matters not “expressly or impliedly disposed of on appeal.” Id. at 9 (internal quotation marks omitted). I found that Defendants had not shown, at that time, that the Tenth Circuit's order foreclosed Plaintiff from seeking leave to amend. I therefore ordered Defendants to respond to Plaintiff's most recent motion for leave to amend, addressing whether leave to amend should be granted pursuant to Fed.R.Civ.P. 15(a)(2).[5] Id. at 9.

         Defendants responded to Plaintiff's third motion to amend on January 12, 2018. [Doc. 82]. They argue that Plaintiff's motion should be denied in its entirety for failure to comply with the pleading standards of Fed.R.Civ.P. 8, given the length and confusing nature of the proposed amended complaint. Id. at 4-5. Defendants also argue that amendment should be denied pursuant to Fed.R.Civ.P. 15(a)(2). They argue Plaintiff has turned her complaint into a “moving target, ” seeking to “salvage a lost cause” by pleading new theories of recovery. Id. at 3-4 (internal quotation marks omitted). Finally, Defendants argue that amendment would be futile. As a general matter, they contend the new claims Plaintiff seeks to add are merely “formulaic recitation[s] of the elements of a cause of action, ” that fail to satisfy the pleading standard of Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2998), and Ashcroft v. Iqbal, 556 U.S. 662 (2009). Id. at 5-8. Defendants argue the futility of several of the proposed new claims with greater specificity.

         II. Legal Standards

         Amendments to pleadings are generally governed by Fed.R.Civ.P. 15. Except where amendment is pleaded as a matter of course, a party may amend its pleading only with the consent of the opposing party or the court's leave. Fed.R.Civ.P. 15(a). “[T]he court should freely give leave [to amend a complaint] where justice so requires.” Id. However, a court may deny leave to amend on the basis of “undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, [or] futility of amendment.” Foman v. Davis, 371 U.S. 178, 182 (1962); Curley v. Perry, 246 F.3d 1278, 1284 (10th Cir. 2001). Amendment is futile if the pleading “as amended, would be subject to dismissal.” Fields v. City of Tulsa, 753 F.3d 1000, 1012 (10th Cir. 2014). “The purpose of [Rule 15(a)] is to provide litigants the maximum opportunity for each claim to be decided on its merits rather than on procedural niceties.” Minter v. Prime Equip. Co., 451 F.3d 1196, 1204 (10th Cir. 2006) (internal quotation marks omitted). The Tenth Circuit has directed district courts to grant leave to amend “when doing so would yield a meritorious claim.” Curley v. Perry, 246 F.3d 1278, 1284 (10th Cir. 2001). The decision whether to grant leave to amend is left to the discretion of the district court. See, e.g., Frank v. U.S. West, Inc., 3 F.3d 1357, 1365 (10th Cir. 1993); Forman v. Davis, 371 U.S. 178, 182 (1962).

         Because Plaintiff proceeds pro se, I construe her filings liberally. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991); Andrews v. Heaton, 483 F.3d 1070, 1076 (10th Cir. 2007). However, courts must apply the same procedural rules and legal standards applicable to filings drafted by attorneys. Hall, 935 F.2d at 1110. A pro se litigant's “conclusory allegations without supporting factual averments are insufficient to state a claim on which relief can be based.” Id. The Court does not act as advocate for pro se litigants. Id.; United States v. Fisher, 38 F.3d 1144, 1147 (10th Cir. 1994).

         III. Analysis

         The Tenth Circuit remanded this case “for further proceedings as to violation of privacy, wage discrimination, and whistleblowing” consistent with its order. [Doc. 49-1] at 21. Accordingly, the Court granted Plaintiff leave to file an amended complaint asserting the following: (1) FPWA and EPA claims against Defendant GSD; (2) a § 1983 claim for violation of privacy; and (3) a WPA claim against Defendant Burckle in his official capacity as Secretary of GSD. [Doc. 50] at 1-2. In her motion to amend and proposed amended complaint, Plaintiff asserts these claims and numerous others. Defendants argue that Plaintiff's motion should be denied in its entirety for failure to comply with the pleading standards of Fed.R.Civ.P. 8. Defendants further argue that amendment should be denied with respect to the new claims and parties Plaintiff seeks to add for having made her complaint a “moving target” in violation of Fed.R.Civ.P. 15(a)(2). Failing that, Defendants argue that amendment to re-assert the Fourth Amendment claim and add the new claims and parties would be futile. I consider Defendants' arguments in turn.

         A. Failure to Comply with Pleading Standards of Fed.R.Civ.P. 8

         Defendants argue as an initial matter that Plaintiff's proposed amended complaint fails to satisfy the pleading standards set out in Fed.R.Civ.P. 8. [Doc. 82] at 4-5. Rule 8 requires pleadings to contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Moreover, “[e]ach allegation must be simple, concise, and direct.” Fed.R.Civ.P. 8(d)(1). As Defendants point out, courts may dismiss complaints for “being unreasonably long, rambling, and otherwise filled with irrelevant material.” [Doc. 82] at 5 (citing Mitchell v. City of Colo. Springs, 194 Fed.Appx. 497, 498 (10th Cir. 2006)). I find that Plaintiff's proposed amended complaint should not be denied for her failure to comply with the requirements of Rule 8. Defendants are correct that the complaint is prolix and contains a great deal of superfluous information. However, Plaintiff's claims are discernible therein, and the complaint is not so incomprehensible that it should denied wholesale, particularly given that she is proceeding pro se.

         B. Complaint as “Moving Target”

         Defendants also suggest that Plaintiff's motion to amend should be denied in its entirety for having made her complaint a “moving target.” [Doc. 82] at 4. While leave to amend should be given freely, “a plaintiff may not seek to amend a complaint in a manner that turns the complaint into a ‘moving target.'” Mayfield v. Doe, 2017 WL 3168492, at *2 (D.N.M. June 5, 2017); Minter, 451 F.3d at 1206 (“Courts will properly deny a motion to amend when it appears that the plaintiff is using Rule 15 to make the complaint a moving target, to salvage a lost case by untimely suggestion of new theories of recovery, [or] to present theories seriatim in an effort to avoid dismissal.” (internal quotation marks and citations omitted)). “It is unreasonable to expect the Court or the defendants continually to have to adapt as the plaintiff develops new theories or locates new defendants.” Mayfield, 2017 WL 3168492, at *2. Defendants point primarily to the spate of amended complaints and motions to amend that Plaintiff filed following remand, as detailed above. In my December 22, 2017 order, I disposed of all but the most recent motion and cautioned Plaintiff against further “unnecessary, frivolous, or procedurally improper filings.” [Doc. 80] at 10. While Plaintiff will not be permitted to make her complaint a “moving target, ” she is permitted the opportunity to seek leave to amend on remand.

         C. Futility of Amendment

         1. Fourth Amendment Right to Privacy Pursuant to § 1983

         Plaintiff asserted claims under § 1983 for violation of her Fourth Amendment right to privacy for the alleged disclosure of her private medical information and other details related to her employment. Judge Junell dismissed the claims and denied leave to amend, finding that amendment would be futile. The Tenth Circuit upheld the dismissal and denial of leave to amend, agreeing that the claims as pleaded were too speculative to proceed. [Doc. 49-1] at 9-10. However, the Tenth Circuit held that Plaintiff should be permitted another opportunity at amendment to cure the deficiencies it noted. Id. at 11. In her proposed third amended complaint, Plaintiff again seeks to assert claims for violation of privacy. She re-asserts claims against Defendants Burckle and Baltzley based on the same factual premises alleged in her original complaint. She also claims violation of privacy against Defendants White-Davis and McLean based on new factual circumstances not previously alleged. [Doc. 77] at 37-40. I find that amendment would be futile as to Plaintiff's § 1983 Fourth Amendment claims, and I recommend that Plaintiff's motion be denied in this respect.

         Plaintiff claims that Defendants Burkcle and Baltzley violated her Fourth Amendment right to privacy by disclosing confidential medical and employment-related information. The Tenth Circuit pointed out that in her original complaint and first proposed amended complaint Plaintiff had failed to plead “when the revelations of health information occurred or who was responsible.” [Doc. 49-1] at 9. The timing of these revelations was “critical” because Plaintiff had voluntarily disclosed such information to a newspaper reporter. Id. If she revealed the information to the reporter “before a defendant disclosed it to a third party, ” she has no viable Fourth Amendment claim. Id. at 10. Moreover, Plaintiff did not allege the date she found her personal information on a paper in GSD's parking lot, nor who was personally responsible. Id. Section 1983 requires “personal involvement in the alleged constitutional violation.” Id. (quoting Brown v. Montoya, 662 F.3d 1152, 1163 (10th Cir. 2011)). A “supervisory relationship alone is insufficient” to establish liability under § 1983. Id. at 11 (quoting Poolaw v. Marcantel, 565 F.3d 721, 732 (10th Cir. 2009)).

         Plaintiff has failed to cure the above deficiencies in her third proposed amended complaint. See [Doc. 77] at 29-30, 38-39. She does not adequately allege that her private information was shared before it was voluntarily disclosed. Plaintiff still does not say when she shared her confidential information with the reporter. And, although Plaintiff now states that she found the paper in the parking lot on November 23, 2015, id. at 13, that date post-dates the publication of the newspaper articles, which occurred in September 2015, id. at 32. Finally, Plaintiff volunteers that she maintained a website, accessible to the public, for the specific purpose of sharing health-related information.[6] The Fourth Amendment's privacy protections do ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.