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Davis v. New Mexico Department of Game and Fish

United States District Court, D. New Mexico

February 26, 2019

BRYAN and KATRINA DAVIS, Plaintiffs,
v.
NEW MEXICO DEPARTMENT OF GAME AND FISH, WYATT HARWELL, BENJAMIN OTERO, JAKE BAULCH, DARREL COLE, TYLER JACKSON, ALEX COLE, and TREVOR NYGREN, Defendants.

          MEMORANDUM OPINION AND ORDER

          LAURA FASHING UNITED STATES MAGISTRATE JUDGE

         THIS MATTER comes before the Court on defendants New Mexico Department of Game and Fish, Wyatt Harwell, Benjamin Otero, Jake Baulch, Darrell Cole, Ty Jackson, Alex Hansell, [1] and Trevor Nygren's (collectively “State Defendants”) Motion and Memorandum to Dismiss Count III on the Basis of Qualified Immunity and Failure to State a Claim (Doc. 17), as well as their Motion and Memorandum to Dismiss Plaintiffs' Claims in Counts I, II, and IV on the Basis of Governmental Immunity (Doc. 18), filed on August 23, 2018. Plaintiffs filed their responses to the State Defendants' motions on September 20, 2018 (Docs. 21, 22), and defendants filed their replies on October 17, 2018 (Docs. 25, 26). The parties have consented to me to conduct dispositive proceedings in this matter, including motions and trial, and to order the entry of final judgment. Docs. 7, 8, 9. Having read the submissions of the parties and being fully advised, and for the following reasons, the Court GRANTS the State Defendants' motions.

         I. Relevant Facts

         In ruling on a motion to dismiss under Rule 12(b)(6), the Court must accept as true all facts alleged in the complaint. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). It also must view these factual allegations in the light most favorable to the plaintiffs. See Id. Viewing the facts alleged in the complaint in this manner, the complaint establishes the following:

         Plaintiffs Bryan and Katrina Davis are residents of Rio Arriba County, New Mexico, and have worked for many years as hunting tour guides there. Doc. 1-2 ¶¶ 1, 2. The Davises have enjoyed good reputations, both personally and as hunting guides. Id. ¶ 3. The New Mexico Department of Game and Fish is an agency of the State of New Mexico. Id. ¶ 4. The individual defendants-Wyatt Harwell, Benjamin Otero, Jake Baulch, Darrell Cole, Ty Jackson, Alex Hansell, and Trevor Nygren-are employees of the New Mexico Department of Game and Fish who worked in Rio Arriba County and are residents of New Mexico. Id. ¶ 5.[2]

         The Davises broadly assert that “Game and Fish has been harassing Plaintiff[s] and anyone who is known to associate with their business, ” and that “[e]ach of the NM Game and Fish employees has taken part in this harassment.” Id. ¶ 5.[3] They further assert that “Defendants” have falsely accused plaintiffs of illegal hunting, made those accusations to others in the community, and that these accusations have damaged plaintiffs' reputation. Id. ¶ 6.

         On March 26, 2016, “Game and Fish” “raided” the Davises' house, looking for evidence relating to Cody Davis. Id. ¶ 7. At the time of the raid, the Davises were hosting a landowners' appreciation barbecue, and many of those in attendance subsequently decided not to do business with the Davises because of the raid. Id. “Game and Fish” “questioned and harassed” the Davises many times prior to the raid.

         Approximately 20 months later, on December 17, 2017, the Davises gave a friend a free hunting tag and took him hunting free of charge. Id. ¶ 9. While they were hunting, “Game and Fish” pulled the Davises over and “harassed” them and their guest. Id. “Game and Fish” took the guest behind the pickup and “interrogated” him about how he knew the Davises. Id. According to the complaint, the guest felt intimidated and scared. Id.

         The day before this incident, on December 16, 2017, someone stopped the Davises and asked them for their licenses in an attempt to harass and intimidate them. Id. ¶ 10. “Later Game and Fish Officers” were in a restaurant in Cuba, New Mexico, at the same time as a friend of the Davises. Id. ¶ 11. The “Game and Fish Officers” asked the Davises' friend for his phone number, and they told him that as long as he tells the truth about the Davises, he wouldn't have any problems. Id. The “Game and Fish Officers” stopped the Davises' friend later that night and “interrogated” him without cause. Id.

         The complaint further alleges that at some point, “Game and Fish” “brought a helicopter onto the property and flashed guns” at the Davises. Id. ¶ 12. At some other time, but presumably before April 2016, during an investigation of “Cauy” Davis's brother Cody Davis, [4]“the Game and Fish Department placed a tracking device on Cody Davis's vehicle, which entered into Cauy and Katrina Davis's property, ” which helped law enforcement obtain a warrant that was served in April 2016. Id. ¶ 13.

         According to the complaint, Game and Fish's statements and actions have exposed “Plaintiff”-Bryan or Katrina Davis-to hatred, contempt, ridicule and obloquy. Id. ¶ 14. Further, as a result of the actions described in the complaint, the Davises have suffered loss to their reputation, shame, mortification, and injury to their feelings. Id. ¶ 15. They also have lost business, and their business's profitability and their relationship with community members potentially has been affected. Id.

         II. The Complaint

         Count I of the complaint alleges that Game and Fish slandered the Davises. Id. ¶¶ 16-20. Count II of the complaint alleges that Game and Fish harassed the Davises. Id. ¶¶ 21-25. Count III of the complaint alleges that the State Defendants violated one of the Davises'[5] rights under the New Mexico Constitution and the United States Constitution to be free from unreasonable searches and seizures. Id. ¶¶ 67-71. Count IV alleges that “Defendant”-without specifying which defendant-trespassed on “Plaintiff's” property-without specifying which plaintiff-“by entering his home without consent with a tracking device on Cody Davis's vehicle.” Id. ¶¶ 36-38.

         III. Discussion

         The State Defendants argue in their motion to dismiss count III that because plaintiffs fail to allege sufficient facts that any of the individual defendants were personally involved in any constitutional violation, and because § 1983 claims cannot be brought against state agencies or against state officials in their official capacities, the Court must dismiss plaintiffs' federal constitutional claims. Doc. 17 at 7-9. They further assert that even if there were sufficient facts supporting the personal involvement of any of the individual defendants, these defendants would be entitled to qualified immunity. Id. at 9-10. The State Defendants also argue that plaintiffs have failed to allege sufficient facts to state a claim under the New Mexico Constitution. Id. at 10-11.

         The State Defendants also argue that the Court should dismiss plaintiffs' remaining tort claims-those alleged in counts I, II, and IV-because plaintiffs have failed to allege sufficient facts showing that governmental immunity has been waived on those claims. Doc. 18 at 5-6. They further argue that the Court should dismiss plaintiffs' harassment claim in count II because it does not fall within one of the enumerated statutory exceptions to immunity, and no such tort exists under New Mexico common law. Id. at 6.

         Plaintiffs respond that the State Defendants' motions are not timely under Fed.R.Civ.P. 81(c)(2). Doc. 21 at 3; Doc. 22 at 3. They also argue that none of their claims in count III are brought under § 1983, but instead are brought exclusively under the New Mexico Tort Claims Act. See Doc. 21 at 3-5. They further argue that neither the state, nor any of the individual defendants are immune from suit. See Doc.21 at 4; Doc. 22 at 3-6. For the following reasons, the Court finds that the plaintiffs' arguments are without merit, and it will dismiss plaintiffs' complaint.

         A. Motions to Dismiss Generally

          “To withstand a motion to dismiss, a complaint must have enough allegations of fact, taken as true, ‘to state a claim to relief that is plausible on its face.'” Kan. Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1214 (10th Cir. 2011) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). While “‘a court must accept as true all of the allegations contained in a complaint, '” this rule does not apply to legal conclusions. Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “[A] plaintiff must offer specific factual allegations to support each claim.” Id. (citation omitted). A complaint survives only if it “states a plausible claim for relief.” Id. (citation omitted). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678 (citation omitted).

         “Generally, a court considers only the contents of the complaint when ruling on a 12(b)(6) motion.” Berneike v. CitiMortgage, Inc., 708 F.3d 1141, 1146 (10th Cir. 2013). But a court may consider “documents incorporated by reference in the complaint; documents referred to in and central to the complaint, when no party disputes its authenticity; and matters of which a court may take judicial notice.” Id. (internal quotation marks omitted) (citing Gee v. Pacheco, 627 F.3d 1178, 1186 (10th Cir. 2010)). In determining whether to grant the motion, the Court must accept all the well-pleaded allegations of the complaint as true, even if doubtful in fact, and must construe the allegations in the light most favorable to the plaintiff. Twombly, 550 U.S. at 555; Alvarado v. KOB-TV, LLC, 493 F.3d 1210, 1215 (10th Cir. 2007). “[A] well-pleaded complaint may proceed even ...


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