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Fenn v. City of Truth or Consequences

United States District Court, D. New Mexico

February 26, 2019

RON FENN, Plaintiff,
CITY OF TRUTH OR CONSEQUENCES, MICHAEL APODACA, Truth or Consequences Police Captain individually acting under the color of Law, LEE ALIREZ, Truth or Consequences Police Chief individually Acting under color of state law, and DANIEL HICKS, Director of Spaceport America, Defendants.


         THIS MATTER comes before the Court upon the Truth or Consequences Defendants' (Lee Alirez's, Michael Apodaca's, and City of Truth or Consequences') Motion for Partial Dismissal of Plaintiff's Complaint, filed August 2, 2018 (Doc. 13), and Defendant Daniel Hicks' Motion to Dismiss, filed August 28, 2018 (Doc. 18). Having reviewed the parties' pleadings and the relevant law, the Court finds that Defendants' motions are well-taken and, therefore, are GRANTED IN PART.


         Plaintiff Ron Fenn frequented a senior center at 301 S. Foch St., Truth or Consequences, New Mexico. The senior center was converted to other uses, and was leased out to Spaceport America, a New Mexico public agency, for use as a visitor center. Plaintiff publicly protested the conversion of the senior center.

         On June 26, 2015, an employee of Geronimo Trail Scenic Byway, also located at 301 S. Foch St, asked police that Plaintiff “be trespassed” from 301 S. Foch. St. because Plaintiff “had been offensive to her, and that she felt unsafe around Plaintiff.” Comp. ¶ 11-12.

         On that same day, Rosemary Bleth, CEO for Follow the Sun Tours, located at 301 S. Foch. St., contacted police to report that Plaintiff was improperly soliciting. Ms. Bleth requested a trespass authorization against Plaintiff. When police arrived, the manager, Mr. Bleth, told officers he had observed Plaintiff walking around the inside of center engaged in conversation with an unidentified woman. Plaintiff requested a pen and paper to jot down her email address. Mr. Bleth alleged that Plaintiff handed a business card to the woman that said “Spaceport Tour video Memory services, and that Plaintiff asked for a $10 donation for the videos. Mr. Bleth told officers that Plaintiff had been a very vocal opponent of the opening of the Spaceport visitor center.

         Plaintiff alleges that a “trespass authorization” was issued at the request of the Rosemary Bleth, a “representative” of Spaceport America, restricting Plaintiff from 301 S. Foch St. That same day, Captain Apodaca and Chief Alirez attempted to serve the trespass authorization on Mr. Fenn. Mr. Fenn took receipt of the trespass form. Chief Alirez received a copy of the business card Plaintiff had been handing out, which stated “help save our Lee Belle Johnson Senior Recreation center.”

         Chief Alirez questioned Plaintiff whether he had a business license. Plaintiff was prosecuted for conducting business without a license and convicted on September 9, 2015.

         On October 10, 2016, Linda DeMarino contacted the police department and reported Plaintiff had entered 301 S. Foch St. and was making “obnoxious comments.” Captain Apodaca responded. Ms. DeMarino informed Captain Apodaca that Plaintiff had been “carrying on” about the building no longer being used as a senior center. Ms. DeMarino filmed Plaintiff's behavior. There is no allegation that Cpt. Apodaca took any action.

         On May 5, 2017, Captain Apodaca responded to a call by John Muenster, a volunteer of Geronimo Trail Scenic Byway center, about Plaintiff being on the property in violation of trespass orders. Plaintiff was putting up posters on a counter inside the center. Captain Apodaca told Plaintiff that he could “put up his propaganda and stay… but not to harass any visitors.” Mr. Muenster was concerned that expensive items kept in the center could be damaged or stolen. Ms. Bleth notified the officer that she was interested in a criminal trespass order against Mr. Fenn to prevent him from entering the location.

         On May 11, 2017, Defendant Hicks, CEO of Spaceport America requested a trespass order from Chief Alirez based on prior incidents as preventative measure. Chief Alirez drove 75 miles to the officers of Spaceport America for Defendant Hicks' signature that day. Chief Alirez then met with Plaintiff on May 12, 2017 to serve the trespass order. Plaintiff received it but refused to sign it.

         On June 4, 2017, Larena Miller contacted the police department to report Plaintiff Fenn inside 301 S. Foch St. Sgt. Baker responded and found Mr. Fenn inside the “common use area of the building, ” in the area housing a satellite library. Sgt. Baker and Chief Alirez told Plaintiff to leave, and Plaintiff refused. There is no allegation whether Plaintiff was made to leave or whether any further action as taken.

         Chief Alirez met with Plaintiff on June 13, 2017 in his office, and offered to hold the newest citation in abeyance as long as Plaintiff Fenn had no further violations at 301 S. Foch St.

         On June 18, 2017, Officer Ontiveros was dispatched to another trespassing call at 301 S. Foch St. Plaintiff was “within the common area of the areas he had previously been trespassed from.” Plaintiff said he was not trespassing but was protesting. Both Officer Ontiveros and Chief Alirez ordered Plaintiff to leave, and he refused. Chief Alirez then arrested Plaintiff and a criminal complaint was filed against him for Criminal Trespass pursuant to NMSA § 30-14-1(C).

         In the criminal case, Plaintiff filed a motion to dismiss for failure to establish essential elements of the offense. A hearing was held, and the motion to dismiss was denied. The criminal case was dismissed without prejudice (Nolle Proseque) on October 11, 2017.

         Plaintiff filed this complaint alleging (1) First Amendment Retaliation; (2) Malicious Prosecution and Abuse of Process; and (3) supervisory and Monell liability. The Truth or Consequences Defendants seek dismissal of Plaintiff's First and Third causes of action on the basis of qualified immunity. Moreover, Defendant Hicks seeks dismissal of the First Amendment claim on similar grounds.

         Because some arguments were either not addressed by Plaintiff in his response or were raised for the first time by the T or C Defendants in their reply brief, the Court ordered supplemental briefing from Plaintiff.


         Rule 12(b)(6) permits the Court to dismiss a complaint for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). To survive a motion to dismiss, a plaintiff's complaint must have sufficient factual matter that if true, states a claim to relief that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009) (“Iqbal”). As such, a plaintiff's “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) (“Twombly”). All well-pleaded factual allegations are “viewed in the light most favorable to the nonmoving party.” Brokers' Choice of Am., Inc. v. NBC Universal, Inc., 757 F.3d 1125, 1136 (10th Cir. 2014). In ruling on a motion to dismiss, “a court should disregard all conclusory statements of law and consider whether the remaining specific factual allegations, if assumed to be true, plausibly suggest the defendant is liable.” Kan. Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1214 (10th Cir. 2011). Mere “labels and conclusions” or “formulaic recitation[s] of the elements of a cause of action” will not suffice. Twombly, 550 U.S. at 555.


         Plaintiff alleges that Defendants violated his free speech rights under the First Amendment. The free speech rights protected by the First Amendment include the right to petition the government for redress of grievances. Crawford-El v. Britton, 523 U.S. 574, 592 (1998). Governmental retaliation for exercising one's freedom of speech constitutes infringement of that freedom. Worrell v. Henry, 219 F.3d 1197, 1212 (10th Cir. 2000). To state a First Amendment retaliation claim, a plaintiff must allege “(1) he was engaged in constitutionally protected activity, (2) the government's actions caused him injury that would chill a person of ordinary firmness from continuing to engage in that activity, and (3) the government's actions were substantially motivated as a response to his constitutionally protected conduct.” Mocek v. City of Albuquerque, 813 F.3d 912, 930 (10th Cir. 2015), quoting Nielander v. Bd. of Cty. Comm'rs, 582 F.3d 1155, 1165 (10th Cir. 2009).

         I. First Amendment Retaliation Claim against Defendants Apodaca and Alirez (Count I).

         Plaintiff alleges that Defendants Apodaca and Alirez violated his First Amendment right to free speech by issuing trespass notices to him and ordering him to vacate 301 S. Foch St. Plaintiff also alleges that Defendant Alirez arrested him, in retaliation for his protest about the alleged misuse of 301 S. Foch St. Plaintiff also frames this case as a retaliatory prosecution case in violation of the First Amendment. See Doc. 17, p. 4-6.

         The Truth or Consequences Defendants seek dismissal of the First Amendment Retaliation claim on qualified immunity grounds. Defendants argue that these claims should be dismissed under qualified immunity because (1) the officers had at least arguable probable cause to arrest Plaintiff, and (2) the law was not clearly established that arresting and prosecuting Plaintiff where there was probable cause to do so would constitute First Amendment retaliation. In its discretion, the Court addresses only the second prong of qualified immunity, which is dispositive. Pearson v. Callahan, 129 S.Ct. 808, 818 (2009).

         A. General Law on Clearly Established Prong and ...

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