United States District Court, D. New Mexico
MAGISTRATE JUDGE'S PROPOSED FINDINGS AND
STEPHAN M. VIDMAR United States Magistrate Judge.
MATTER is before me on Plaintiff's Third Motion for Leave
to Amend [Doc. 77],  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
AND DENIED IN PART.
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.
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].
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. [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.
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”). 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.
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.
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.
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). Id. at 9.
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.
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
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).
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.
Failure to Comply with Pleading Standards of Fed.R.Civ.P.
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.
Complaint as “Moving Target”
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.
Futility of Amendment
Fourth Amendment Right to Privacy Pursuant to §
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
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.
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. The Fourth Amendment's privacy
protections do ...