United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
MATTER comes before the Court on Defendant's Rule
12(b)(6) Motion to Dismiss in Lieu of an Answer (Doc.
4), filed February 26, 2018, and fully briefed on July
2, 2018. Docs. 4 & 23. Pursuant to 28 U.S.C.
§ 636(c) and Fed.R.Civ.P. 73(b), the parties have
consented to have me serve as the presiding judge and enter
final judgment. See Docs. 3, 6, 7.
case arises from Plaintiff's employment with the Taos
County Sheriff's Office between August 2008 and July
2015. Plaintiff filed suit in the Eighth Judicial District
Court of Taos County, State of New Mexico, alleging
discrimination and retaliation in violation of the New Mexico
Human Rights Act (“NMHRA”), the Americans with
Disabilities Act (“ADA”), and Title VII of the
Civil Rights Act of 1964 (“Title VII”). Doc.
1, Ex. A, at 5-8. Additionally, he alleged a state law
claim for retaliatory termination against public policy.
Id. at 8-9. Taos County Sheriff's Office removed
the action to this Court on February 18, 2018. See Doc.
1. Shortly thereafter, it moved to dismiss
Plaintiff's Complaint on the basis that the Taos County
Sheriff's Office, the defendant named by Plaintiff, is
not a suable entity. Doc. 4.
April 19, 2018, the Court held a Motion Hearing on
Defendant's Motion to Dismiss. At the hearing, the Court
ordered the parties to file supplemental briefs, specifically
directing them to address the existence of a merit system
ordinance as well as the applicability of Bristol v.
Board of County Comm'rs of County of Clear Creek,
312 F.3d 1213 (10th Cir. 2002), Bundy v. Chaves County
Board of Commissioners, 215 Fed.Appx. 759 (10th Cir.
2007) and Bundy v. Chaves County Board of
Commissioners, 05cv0122 MCA/RLP (Doc. 38) (D.N.M. Apr.
28, 2016). See Doc. 15. Defendant filed its
supplemental brief on April 27, 2018 (Doc. 19), and
Plaintiff filed his on July 2, 2018 (Doc. 23).
motion to dismiss under Federal Rule of Civil Procedure
12(b)(6), the court accepts as true “all well-pleaded
factual allegations in a complaint and views these
allegations in the light most favorable to the
plaintiff.” Smith v. United States, 561 F.3d
1090, 1098 (10th Cir. 2009); Morris v. City of Colorado
Springs, 666 F.3d 654, 660 (10th Cir. 2012). In order to
survive a motion to dismiss brought under Rule 12(b)(6),
“a complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is
plausible on its face.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009).
First Amended Complaint asserts claims against the Taos
County Sheriff's Office and John Does 1-10. The Taos
County Sheriff's Office maintains that Federal Rule of
Civil Procedure 17 and N.M. Stat. Ann. § 4-46-1 preclude
Plaintiff's assertion of claims against it. Plaintiff, in
contrast, insists that a county sheriff's department is
liable under both state and federal law. Resolution of
Defendant's Motion requires the Court to explore the
interplay between various procedural rules, a state naming
statute, principles of agency, and federal and state
Federal Rule of Civil Procedure 17(b) addresses a
defendant's capacity to sue and be sued. It provides that
for defendants, other than corporations and individuals not
acting in a representative capacity, the capacity to sue or
be sued is determined by “the law of the state where
the court is located.” See Fed. R. Civ. P.
17(b). Thus, New Mexico law determines whether the Taos
County Sheriff's Office has the capacity to be sued for
violations of the ADA, Title VII, and the NMHRA.
4-46-1, New Mexico's so-called “naming statute,
” provides that, “[i]n all suits or proceedings
by or against a county, the name in which the county shall
sue or be sued shall be the board of county commissioners of
the county.” Id. Thus, a straightforward
application of Rule 17(b) and Section 4-46-1 would suggest
that Plaintiff must name the Board of County Commissioners of
Taos County, rather than the Taos County Sheriff's
Office, as the defendant in this case. But, as the Court
indicated at the April 19, 2018 Motion Hearing, a handful of
Tenth Circuit cases challenge a straightforward application
of Rule 17 and Section 4-46-1 in this case.
instance, in Bristol, the Tenth Circuit determined
that, because the board of county commissioners there lacked
the power to control the hiring, termination, or supervision
of the sheriff's employees under Colorado law, the board
owed the sheriff's employees no duty under the ADA.
Bristol, 312 F.3d at 1215. Moreover, in
Bundy, the Tenth Circuit, this time examining New
Mexico law, noted that “[w]hile a board of county
commissioners may set the salaries of the employees and
deputies necessary to discharge the functions of the county,
only elected county officials, including sheriffs, have the
authority to hire persons necessary to carry out the
officials' duties.” Bundy, 215 Fed.Appx.
at 761 n.2 (citing N.M. Stat. Ann. § 4-38-19(A) and N.M.
Const. art. X, §§ 2(A) & (B)).
these cases beg the question whether a board of
commissioners' lack of control over hiring sheriff's
office employees is fatal to claims asserted against the
board. Indeed, cognizant of the Tenth Circuit's holding
in Bristol, and its discussion of the limitations on
a board of county commissioners' hiring authority in
Bundy, this Court was hesitant to dismiss
Plaintiff's claims against the Taos County Sheriff's
Office, anticipating that the Board of County Commissioners
of Taos County might thereafter assert that it had no
liability as Plaintiff's employer. Notably, if the Taos
County Sheriff's Office does not have the capacity to be
sued, but the Board of County Commissioners for Taos County
has no liability as an employer under the ADA or Title VII,
Plaintiff might be left without a remedy for the violations
alleged in his Complaint. Upon examination of the cases, the
parties' arguments, and other relevant law, however, the
Court concludes that neither Bristol nor
Bundy control here.
plaintiff in Bristol, a former confinement officer
for the Clear Creek County Sheriff, asserted claims for
violations of the ADA against both the board of county
commissioners and the sheriff. Bristol, 312 F.3d at
1216. The board of county commissioners moved for judgment as
a matter of law, arguing that it owed no duty to provide
accommodation to the plaintiff under the ADA. Id.
The plaintiff, on the other hand, maintained that both the
board and the sheriff were his employers for ADA purposes.
Id. The Tenth Circuit explained that the particular
context there - “where there [was] more than one
alleged employer” - implicated two tests for
determining the employer under the ADA: the joint-employer
test and the single-employer test. Id. at 1218. In a
footnote, the court acknowledged that other tests, including
the agency test, might be better suited to other contexts.
Id. at 1218 n.5.
Tenth Circuit, in Bristol, noted that under Colorado
law sheriffs have “the exclusive control over the
hiring and firing of their employees.” Id. at
1219 (citing Colo. Rev. Stat. § 30-10-506). Moreover, it
found that “even self-imposed limitations on [a
sheriff's] right to discharge employees at will are
invalid.” Id. (citing Seeley v. Bd. of
Cty. Comm'rs, 791 P.2d 696, 700 (Colo. 1990)).
Because the sheriff exercised control over labor relations in
the sheriff's office under Colorado law, the court
determined that the sheriff, not the board, was the
plaintiff's employer for purposes of the ADA under both
the joint-employer and single-employer tests. Id. at
Colorado law differs from New Mexico law in terms of the role
of sheriff's and boards of county commissioners. Unlike
New Mexico law, Colorado law establishes that the sheriff is
solely responsible for hiring and firing deputies and cannot
relinquish that authority. See Tunget v. Bd. of Cty.
Comm'rs, 992 P.2d 650, 652 (Colo. Ct. App. 2000)
(reasoning that the sheriff, as opposed to the board, hires
and fires deputies); Seeley v. Bd. of Cty. Comm'rs
for La Plata County, 791 P.2d 696, 699 (Colo. 1990)
(holding that Colo. Rev. Stat. Ann. § 30-10-506
prevented the sheriff from relinquishing the authority to
terminate deputies). In contrast, New Mexico law provides
that sheriffs have the power to hire and fire deputies,
“except that in counties which have established a merit