United States District Court, D. New Mexico
ORDER ADOPTING MAGISTRATE JUDGE'S PROPOSED
FINDINGS AND RECOMMENDED DISPOSITION
CHRISTINA ARMIJO SENIOR UNITED STATES DISTRICT JUDGE
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]. 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.
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 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].
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'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.
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
Motions for Leave to Amend
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.
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).
Judge Vidmar Found that Plaintiff's Motion Should be
Granted in Part and Denied in Part
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
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. 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.
Fourth Amendment Right to Privacy Pursuant to §
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.
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).
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. 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).
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