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Brenner v. Board of County Commissioners

United States District Court, D. New Mexico

March 6, 2019

PATRICK M. BRENNER, and LISA M. BRENNER, Plaintiffs,
v.
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

         This 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. The Complaint

         This is 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.

         On May 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.”[1] 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 comments….” Id.

         Patrick 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 ¶ 41.

         On the 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 ¶ 45.

         Plaintiffs 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.

         The 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. Id.

         Also, 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 ¶ 56.

         Plaintiffs 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.

         According 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.

         On June 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.

         On June 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.

         On June 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.

         On June 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.

         On July 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.

         On July 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 ΒΆ 80. On July 31, 2017, ...


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