United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER GRANTING IN PART TRUTH
OR CONSEQUENCES DEFENDANTS' MOTION TO DISMISS AND
GRANTING DEFENDANT DANIEL HICKS' MOTION TO
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
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.
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. ¶
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.
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
Alirez questioned Plaintiff whether he had a business
license. Plaintiff was prosecuted for conducting business
without a license and convicted on September 9, 2015.
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.
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.
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.
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
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.
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
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.
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.
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.
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.
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).
First Amendment Retaliation Claim against Defendants
Apodaca and Alirez (Count I).
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.
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).
General Law on Clearly Established Prong and ...