United States District Court, D. New Mexico
PATRICK M. BRENNER, and LISA M. BRENNER, Plaintiffs,
THE BOARD OF COUNTY COMMISSIONERS COUNCILORS FOR THE COUNTY OF LOS ALAMOS; LOS ALAMOS COUNTY POLICE CHIEF DINO SGAMBELLONE; LOS ALAMOS COUNTY POLICE OFFICERS DOE 1 AND 2; LOS ALAMOS COUNTY COUNCIL MEMBER JAMES CHROBOCINSKI, LOS ALAMOS COUNTY COUNCIL MEMBER MARY SUSAN O'LEARY both individually and in their official capacity, Defendants.
MEMORANDUM OPINION AND ORDER
matter comes before the Court upon Defendants' Motion to
Dismiss Plaintiff's [sic] Complaint for Failure to State
a Claim (Motion to Dismiss), filed June 29, 2018. (Doc. 13).
Plaintiffs filed a response on July 17, 2018. (Doc. 16). On
July 31, 2018, Defendants the Board of County Commissioners
(Councilors) for the County of Los Alamos, Los Alamos County
Police Chief Dino Sgambellone, and Los Alamos County Police
Officers Doe 1 and 2 filed a reply. (Doc. 20). On August 3,
2018, Defendants Los Alamos County Council members James
Chrobocinski and Mary Susan O'Leary filed their reply.
(Doc. 21). Having considered the Motion to Dismiss, the
accompanying briefing, and the Complaint Due to Deprivation
of Civil Rights (Complaint) (Doc. 1), the Court grants the
Motion to Dismiss.
a 42 U.S.C. § 1983 civil rights complaint for alleged
First Amendment retaliation. Plaintiffs owned a printing
business in Los Alamos during the relevant time. They allege
that Los Alamos County Council members Chrobocinski and
O'Leary primarily sponsored the issuance of a recreation
bond (Rec Bond) to be voted on through a special election to
be held on May 23, 2017. (Doc. 1) at ¶¶ 12 and 15.
Because Plaintiff Patrick Brenner would not support the Rec
Bond, Plaintiffs allege Chrobocinski would not support
Patrick Brenner's candidacy for a seat on the Los Alamos
County Council. Id. at ¶ 13. Also, Chrobocinski
and O'Leary formed a political action committee (PAC) to
support the Rec Bond while Plaintiffs formed a PAC to oppose
the Rec Bond. Id. at ¶¶ 16 and 19.
Plaintiffs subsequently complained to (1) Chrobocinski about
his PAC's signage, (2) the New Mexico Secretary of State
about campaign practice issues with Chrobocinski and
O'Leary's PAC, and (3) Los Alamos County about
signage problems associated with Chrobocinski and
O'Leary's PAC. Id. at ¶¶ 20-31.
15, 2017, at about noon, Patrick Brenner sent an email to all
of the Los Alamos County Council informing them “that
he would work zealously to defeat the Rec
Bond.” Id. at ¶ 32. Plaintiffs
admit that the email communication was “strongly
worded” and “used somewhat colorful
language.” Id. at ¶ 62; (Doc. 1-4) at 1.
Later that day, at about 8:00 p.m., the Los Alamos Daily Post
(LADP) published the email in its online newspaper and on its
Facebook page. (Doc. 1) at ¶¶ 38 and 51. The online
publication and Facebook posting allegedly resulted in
“hostile and threatening letters to the editor”
and “derogatory, defamatory, hurtful, and negative
Brenner believed the email “would remain private”
under the City Charter, “which prevents the disclosure
of confidential information outside of compliance with the
Inspection of Public Records Act.” Id. at
¶¶ 33 and 37. Plaintiffs allege that had LADP or
the public requested the email through an Inspection of
Public Records Act (IPRA) request, it would have taken
“days or weeks” to process. Id. at
same day Patrick Brenner's email was released to the
LADP, Plaintiffs filed an IPRA request with Los Alamos County
for documents to determine who provided the email to the
LADP. Id. at ¶ 43. Los Alamos County did not
provide the requested documents. Id. at ¶ 44.
Chrobocinski allegedly forwarded the email to a
“friend” on May 15, 2017. Id. at ¶
also allege that at about 9:00 p.m. on May 15, 2017,
Chrobocinski sent an email to Los Alamos Chief of Police
Sgambellone complaining that Patrick Brenner was
“unhinged, ” was “a threat to
[Chrobocinski], and others, ” and “had broken
some law.” Id. at ¶¶ 46 and 47.
Plaintiffs further allege that Chrobocinski lied when he
reported to Chief of Police Sgambellone that Patrick Brenner
“had an outburst at the community development
office.” Id. at ¶ 70.
next day, on May 16, 2017, Plaintiffs maintain that
Chrobocinski “disparaged” them at a League of
Women Voters meeting. Id. at ¶ 52.
Chrobocinski's remarks to the League of Women Voters
concerned alleged false statements regarding the signs
associated with Chrobocinski and O'Leary's PAC.
on May 16, 2017, Plaintiff Lisa Brenner went to the Los
Alamos County Council meeting to present a prepared
statement. Id. at ¶ 54. When she arrived at the
council chambers for the public meeting, “multiple
police officers” stood outside the chambers. Id. at
allege that two Los Alamos police officers stared at Lisa
Brenner, “continually pointed at her and made
comments.” Id. at ¶ 60. Because of this
purportedly intimidating police presence, Lisa Brenner did
not attend the meeting. Id. at ¶ 61.
to Plaintiffs, Sheriff Lucero confirmed the evening of May
16, 2017, “that the police presence [at the council
chamber] was due to Patrick Brenner's email.”
Id. at ¶ 63. Allegedly, Chrobocinski also
announced at the council meeting that the “additional
security forces” were there “to protect the
County Council due to Mr. Brenner's letter.”
Id. at ¶ 65. Plaintiffs further contend that
“[p]olice officers, in their official capacities, are
not generally present at County Council meetings.”
Id. at ¶ 57.
2, 2017, Plaintiffs filed a complaint in state court against
Los Alamos County for violating IPRA and not providing the
documents requested on May 15, 2017. Id. at ¶
67. During this litigation, Plaintiffs maintain that
O'Leary falsely accused Patrick Brenner of harassment.
Id. at ¶ 96.
3, 2017, Plaintiffs attended Stephan Brenner's high
school graduation. Plaintiffs allege that “[a]t the
graduation, a Los Alamos Police officer stood within 10 feet
of the family, following Mr. Brenner and his youngest
daughter, throughout the event.” Id. at ¶
68. A female police officer allegedly followed Patrick
Brenner and his daughter down a stairwell and stared at
Patrick Brenner. Id. at ¶ 69. Purportedly, no
other individuals were present. Id.
20, 2017, Patrick Brenner filed with the Los Alamos Human
Resources Manager an allegedly “confidential”
ethics complaint against Chrobocinski and O'Leary.
Id. at ¶ 74. According to Plaintiffs, ethics
“complaints are confidential per the County
Charter” in that the Charter “guarantees
confidentiality and anonymity in the filing of ethics
complaints.” Id. at ¶¶ 75 and 90.
27, 2017, Patrick Brenner asserts he interviewed for a job
with the Republican Party of New Mexico, at which the May 15,
2017, LADP article was brought up. Id. at ¶ 76.
Patrick Brenner was not offered the job. Id. During
a job interview in October 2017, Lisa Brenner was asked about
the IPRA litigation. Id. at ¶ 93.
11, 2017, the Hemphill Law Firm sent a cease and desist
letter on behalf of Patrick Brenner to all members of the Los
Alamos County Council and others. Id. at ¶ 78.
28, 2017, Plaintiffs allege that a reporter from the Los
Alamos Monitor called Patrick Brenner about the ethics
complaint. Id. at ¶ 79. According to
Plaintiffs, the Los Alamos County public relations officer
informed the reporter about the ethics complaint.
Id. at ¶ 80. On July 31, 2017, ...