United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
FASHING UNITED STATES MAGISTRATE JUDGE
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,
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.
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:
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.
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. 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.
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.
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.
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.
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, “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.
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
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' 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.
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.
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.
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.
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
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 ...