United States District Court, D. New Mexico
HUMAN RIGHTS DEFENSE CENTER, a not-for-profit corporation, Plaintiff,
(1) BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF SANTA FE COUNTY, NM; (2) DEREK WILLIAMS, Warden, individually and in his official capacity; (3 MICHAEL OLIVER, Deputy Warden, individually and in his official capacity;(4) CARLOS MARKMAN-LOPEZ, Major, individually and in his official capacity, and; (5) JOHN AND JANE DOES 1-10, Staff, individually and in their official capacities, Defendants.
ORDER GRANTING INDIVIDUAL DEFENDANTS' MOTION TO
MATTER came on for consideration of the Individual
Defendants' (Derek Williams, Michael Oliver, and Carlos
Markman-Lopez) Motion to Dismiss Plaintiff's Amended
Complaint in Lieu of an Answer filed July 5, 2018 (ECF No.
39). Upon consideration thereof, the motion is well taken as
to the named individual defendants and should be granted.
Human Rights Defense Center (HRDC) brought this civil rights
action, 42 U.S.C. § 1983, seeking declaratory relief,
nominal damages, preliminary and permanent injunctive relief,
compensatory damages, punitive damages, and costs and
attorney's fees. ECF No. 17, at 10 (Amended Complaint).
HRDC contends that the Board of County Commissioners (County)
and the named individual defendants violated its First and
Fourteenth Amendment rights by rejecting 85 books sent to
inmates at the Santa Fe County Adult Correctional Facility
(institution) and by failing to provide HRDC adequate due
process concerning these rejections. ECF No. 44 at 1-2; ECF
No. 17, at 6. It bears noting that HRDC's monthly
publication, Prison Legal News, was delivered to
inmates. ECF No. 17, at 6. The County adopted a new policy
(acceptable to HRDC) in response to this litigation. ECF No.
21, at 2. Subsequently, the court dismissed HRDC's claims
for declaratory and injunctive relief against the County as
moot and denied a motion for a preliminary injunction. ECF
named individual defendants are Derek Williams, Warden;
Michael Oliver, Deputy Warden; and Carlos Markman-Lopez, a
Major at the institution. HRDC alleges that they are all
employed by and agents of the County. According to HRDC, the
Warden has ultimate responsibility for promulgating and
enforcing institution policies, and is responsible for
overall management, including mail processing. ECF No. 17, at
3, ¶ 11. Regarding the Deputy Warden, the first amended
complaint recites that “on information and
belief” he is personally involved in adopting or
implementing the mail policies including oversight.
Id. at 3-4, ¶ 12. Finally, the major, according
to the first amended complaint, is in charge of promulgation
and enforcement of security policies, including those
involving the mail. Id. at 4, ¶ 13. HRDC
alleges that the conduct of the collective defendants
“was objectively unreasonable and was undertaken
recklessly, intentionally, willfully, with malice, and with
deliberate indifference to the rights of others.”
Id. at 9-10, ¶¶ 41-49. The individual
defendants are sued in both their individual and official
capacities. Of course, the official capacity claims against
the individual defendants are nothing more than claims
against the County. See Brandon v. Holt, 469 U.S.
464, 471-72 (1985); Monell v. Department of Social
Servs., 436 U.S. 658, 690 n.55 (1978).
To withstand a motion to dismiss for failure to state a claim
under Fed.R.Civ.P. 12(b)(6), a plaintiff's allegations
must “state a claim to relief that is plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007). A claim is plausible only if it contains
sufficient factual allegations to allow the court to
reasonably infer liability. Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009). Qualified immunity protects public
officials from civil damages when their conduct does not
violate clearly established constitutional rights of which a
reasonable person would have known. Pearson v.
Callahan, 555 U.S. 223, 231 (2009).
defendant raises qualified immunity in a motion to dismiss, a
court reviews the complaint to determine whether the
plaintiff's allegations, viewed in the light most
favorable to the plaintiff, are adequate to show that (1) a
defendant's conduct violated a constitutional or
statutory right, and (2) the right was clearly established
when the violation occurred. Ashcroft v. Al-Kidd,
563 U.S. 731, 735 (2011). This analysis requires
consideration of the acts alleged against each defendant;
handling the analysis collectively is never the right
approach. Matthews v. Bergdorf, 889 F.3d 1136, 1144
(10th Cir. 2018).
individual defendants contend that they must be dismissed
because the plaintiff has failed to allege facts tending to
show personal participation on the part of each defendant
vis-à-vis the potential constitutional violation:
collective action in and of itself will rarely suffice. The
individual defendants remind the court that the above
recitations do not tend to show deliberate, intentional
action aimed at violating the plaintiff's rights.
Instead, they are largely conclusions that fail to
differentiate the individual defendants.
response, plaintiff argues that supervisors may be held
liable even if they did not take the actions complained of
where the supervisor was somehow responsible for the
continued operation of a policy, caused the constitutional
harm, and acted with the necessary state of mind. ECF No. 44,
at 3-4 (citing Wilson v. Montano, 715 F.3d 847, 856
(10th Cir. 2013)). Plaintiff submits that the above
recitations are adequate. In the event the court determines
that referencing the defendants collectively is inadequate,
plaintiff requests leave to file an amended complaint.
Id. at 3 n.3
individual defendants have the better argument. The amended
complaint simply alleges no facts suggesting personal
participation by any individual defendant in the rejection of
the books or the aftermath, let alone supervisory liability
based upon the (now-changed) policy concerning books. See
Moya v. Garcia, No. 17-2037, __F.3d __, 2018 WL 3356160,
at *2 (10th Cir. July 10, 2018); Brown v. Montoya,
662 F.3d 1152, 1164-65 (10th Cir. 2011). Supervisory
liability is a possibility where “(1) the defendant
promulgated, created, implemented or possessed responsibility
for the continued operation of a policy that (2) caused the
complained of constitutional harm, and (3) acted with the
state of mind required to establish the constitutional
deprivation.” Dodds v. Richardson, 614 F.3d
1185, 1199 (10th Cir. 2010). For supervisory liability, a
subordinate must have violated the plaintiff's
constitutional rights, and there must be an affirmative link
between the supervisor and the alleged constitutional
violation. Dodds, 614 F.3d 1185, 1209 -11
(Tymkovich, J. concurring). Here, the bare assertions in the
amended complaint do not plausibly suggest that the
individual defendants had a hand in the book policy or its
application by others, let alone acted with a deliberate
state of mind. See Iqbal, 556 U.S. at 1951-52.
as amendment, the local rules require such a request be
accompanied by a draft amended complaint. D.N.M. LR-Civ.
THEREFORE, IT IS ORDERED, ADJUDGED and DECREED that the
Individual Defendants' (Derek Williams, Michael Oliver,
and Carlos Markman-Lopez) Motion to Dismiss Plaintiff's
Amended Complaint in Lieu of an Answer filed July 5, 2018
(ECF No. 39) is granted.
FURTHER ORDERED, ADJUDGED, AND DECREED that plaintiff may
file a motion to amend its complaint within ten days ...