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Burke v. State

United States District Court, D. New Mexico

June 20, 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]

          ORDER ADOPTING MAGISTRATE JUDGE'S PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

          M. CHRISTINA ARMIJO SENIOR UNITED STATES DISTRICT JUDGE

         THIS MATTER is before the Court on the Magistrate Judge's Proposed Findings and Recommended Disposition (“PF&RD”) [Doc. 90], filed on May 9, 2018. On reference by the undersigned, the Honorable Stephan M. Vidmar, United States Magistrate Judge, recommended granting in part and denying in part Plaintiff's Third Motion for Leave to Amend [Doc. 77].[2] Plaintiff objected to the PF&RD on May 21, 2018. [Doc. 91]. Defendants did not object to the PF&RD but responded to Plaintiff's objections on June 4, 2018. [Doc. 92]. On de novo review of the portions of the PF&RD to which Plaintiff objects, the Court overrules the objections, adopt the PF&RD, and grant in part and deny in part Plaintiff's Third Motion for Leave to Amend [Doc. 77] as discussed herein.

         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 Whistleblower 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's order “narrowly set the parameters under which” Plaintiff could file an amended complaint, and she had exceeded the scope of the order. Id. at 6. Plaintiff argued that, to the extent she was required to obtain leave of the Court to add the new claims, the Court should grant such relief “nunc pro tunc.” [Doc. 57] at 5. Plaintiff simultaneously filed a separate motion seeking leave to amend her complaint nunc pro tunc. [Doc. 59]. 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-the motion now before the Court-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. [Doc. 78].

         Judge Vidmar entered a Memorandum Opinion and Order on December 22, 2017 [Doc. 80], denying as moot Defendants' motion to strike and Plaintiff's first and second motions seeking leave to amend. He ordered Defendants to respond to Plaintiff's most recent motion for leave to amend, addressing whether amendment should be granted pursuant to Fed.R.Civ.P. 15(a)(2). Id. at 9. Defendants responded to Plaintiff's third motion to amend on January 12, 2018. [Doc. 82]. They argued 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. They further argued that the motion should be denied in its entirety pursuant to Fed.R.Civ.P. 15(a)(2), for having made her complaint a “moving target.” Id. at 3-5. Finally, Defendants argued that amendment would be futile.

         II. Motions for Leave to Amend

         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, 246 F.3d at 1284. 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); Foman, 371 U.S. at 182.

         Because Plaintiff proceeds pro se, the Court construes 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. Judge Vidmar Found that Plaintiff's Motion Should be Granted in Part and Denied in Part

          Judge Vidmar found that Plaintiff's motion should be granted in part and denied in part. [Doc. 90]. He declined to deny the motion on the basis of Plaintiff's failure to comply with the pleading standards of Rule 8. Though he found that Plaintiff's proposed amended complaint was prolix and contained a great deal of superfluous information, he found that her claims nevertheless were discernible therein. Id. at 9. The complaint was “not so incomprehensible” as to warrant denial of her motion to amend wholesale. Id. Likewise, Judge Vidmar declined to deny the motion in its entirety for Plaintiff having made her complaint a “moving target.” Id. at 9-10.

         Judge Vidmar then considered whether amendment as to each claim should be denied on the basis of futility. He recommended that amendment be permitted as to Plaintiff's claim against Defendant GSD for violation of the New Mexico Inspection of Public Records Act, id. at 21, and as to her claim against Defendant Dawson for violation of the Family and Medical Leave Act, id. at 25-27. He found that the balance of Plaintiff's motion to amend should be denied.[5] See generally Id. at 10-32. The Court summarizes in greater detail below Judge Vidmar's findings and recommendations with respect to the claims over which Plaintiff has raised the instant objections.

         A. Fourth Amendment Right to Privacy Pursuant to § 1983

          In her original complaint, 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 re-asserted claims against Defendants Burckle and Baltzley based on the same factual premises alleged in her original complaint. [Doc. 90] at 10 (citing [Doc. 77] at 37-40). Plaintiff maintained that Defendants Burckle and Baltzley violated her Fourth Amendment right to privacy by disclosing confidential medical and employment-related information. Id. at 11. Judge Vidmar looked to the Tenth Circuit's characterization of the deficiencies in Plaintiff's original and first proposed amended complaints. Id. The Tenth Circuit held that Plaintiff had failed to plead “when the revelations of health information occurred or who was responsible.” Id. (quoting [Doc. 49-1] at 9). The timing of these revelations was “critical” because Plaintiff had voluntarily disclosed such information to a newspaper reporter. Id. (quoting [Doc. 49-1] at 9). If she revealed the information to the reporter “before a defendant disclosed it to a third party, ” she had no viable Fourth Amendment claim. Id. (quoting [Doc. 49-1] 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 required “personal involvement in the alleged constitutional violation.” Id. (quoting [Doc. 49-1] at 10). A “supervisory relationship alone” was insufficient to establish liability under § 1983. Id. (quoting [Doc. 49-1] at 11).

         Judge Vidmar found that Plaintiff had failed to cure the deficiencies noted by the Tenth Circuit. Id. (citing [Doc. 77] at 29-30, 38-39). Her proposed amended complaint did not adequately allege that her private information was shared before it was voluntarily disclosed. Plaintiff still did not say when she shared her confidential information with the reporter. And, although Plaintiff stated that she found the paper in the parking lot on November 23, 2015, that date fell after the publication of the newspaper articles, which occurred in September 2015. Id. (citing [Doc. 77] at 13, 32). Finally, Plaintiff volunteered that she maintained a website, accessible to the public, for the specific purpose of sharing health-related information.[6] Id. at 11-12. Judge Vidmar found that the Fourth Amendment's privacy protections did not extend to information “knowingly expose[d] to the public.” Id. at 12 (quoting [Doc. 49-1] at 10-11).

         Moreover, even if she had sufficiently alleged the timing of the disclosures, Judge Vidmar found Plaintiff had not adequately alleged the personal involvement of Defendants. Id. at 12. She did not state who was responsible for leaving the paper in the parking lot. And, as to Defendant Burckle, Plaintiff stated only that he failed to properly address Plaintiff's complaints, despite having approved a code of conduct addressing the importance of securing confidential information. Id. (citing [Doc. 77] at 39). These allegations did not show his personal involvement in violating Plaintiff's Fourth Amendment rights. A supervisor is liable under § 1983 only for his “own culpable involvement in the violation of a person's constitutional rights.” Id. (quoting Serna v. Colo. Dep't of Corr., 455 F.3d 1146, 1151 (10th Cir. 2006)). Plaintiff failed to show any affirmative link between the alleged constitutional violation and ...


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