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Riggs v. Baca

United States District Court, D. New Mexico

March 22, 2019

APRIL RIGGS, Plaintiff,
v.
RAY BACA, Deputy Director, New Mexico Livestock Board; P. ROBERT ALEXANDER, Executive Director, New Mexico Livestock Board; NEW MEXICO LIVESTOCK BOARD; and BERNADETTE TORR, State Personnel Office, Defendants.

          MEMORANDUM OPINION AND ORDER [1]

          JERRY H. RITTER, UNITED STATES MAGISTRATE JUDGE.

         THIS MATTER comes before the Court on the following motions: Motion to Dismiss Plaintiff's Claims Against Defendant P. Robert Alexander [Doc 26], the Motion to Dismiss Plaintiff's Claims Against Defendant New Mexico Livestock Board [Doc 28], and the Motion to Dismiss Plaintiff's Claims Against Defendant Bernadette Torr [Doc 30]. The Court, having considered the submissions, the relevant law, and being otherwise fully advised in the premises finds that Defendants' motions are well taken and should be granted.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         This case arises from events related to Plaintiff's employment with Defendant NMLB that allegedly began in or around July 2015. [Doc. 18]. Plaintiff filed her initial complaint in this matter on May 24, 2018. [Doc. 1]. Plaintiff filed an amended complaint [Doc. 13] on June 20, 2018 and a second amended complaint [Doc. 18] on July 11, 2018. The claims advanced in the second amended complaint (“complaint”) are the subject of the motions at issue here. [Doc. 26; Doc. 28; Doc. 30].

         In her complaint Plaintiff alleges that after being promoted from Livestock Inspector II to Area Supervisor in July 2015, she was not compensated at a rate comparable to her male counterparts and that Defendant Baca (Plaintiff's immediate supervisor) and Defendant Alexander (Executive Director of the NMLB) otherwise discriminated against her on the basis of gender in violation of the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution. [Doc. 18, ¶¶ 6-7, 19, 28, 65-154]. Plaintiff further alleges that Defendants Baca and Alexander retaliated against her for seeking redress of her grievances for the disparate pay and treatment, and for raising concerns regarding statutory and regulatory violations she believed they were committing, in violation of the First Amendment of the United States Constitution and New Mexico's Whistleblower Protection Act NMSA 1978, Sections 10-16c-1 to -6 (2010) (“WPA”). [Doc. 18, ¶¶ 155-176, 177-201]. Plaintiff also alleges that Defendant NMLB was or should have been aware of the discrimination and retaliation to which she was subjected by Defendants Baca and Alexander, and that it, through its officers and directors adopted policies, practices, or decisions that subjected her to such discrimination and retaliation. [Doc. 18, ¶¶ 202-210]. Finally, Plaintiff alleges that Defendant Torr violated New Mexico's Inspection of Public Records Act NMSA 1978, Sections 14-2-1 to -12 (1947, as amended through 2011) (“IPRA”) by failing to provide copies of records or documents related to an investigation that resulted in a letter of reprimand and placement of Plaintiff on administrative leave. [Doc. 18, ¶¶ 211-231].

         On July 25, 2018, Defendants Alexander, NMLB, and Torr, filed separate motions to dismiss seeking dismissal of the claims against them pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. [Doc. 26; Doc. 28; Doc. 30]. The primary issues presented by Defendants' motions are: (1) whether Plaintiff's First and Fourteenth Amendment claims against Defendants Alexander and NMLB, brought pursuant to 42 U.S.C. § 1983, are sufficiently pled; (2) whether Plaintiff's WPA claims against Defendant Alexander are sufficiently pled; and (3) whether Plaintiff's WPA claims against Defendant Alexander and IPRA claim against Defendant Bernadette Torr are barred by the immunity provided under the Eleventh Amendment of the United States Constitution. [Doc. 26; Doc. 28; Doc. 30].[2] These challenges to the sufficiency of Plaintiff's claims will be addressed in turn.

         II. LEGAL STANDARDS

         Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). This pleading standard “does not require ‘detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). The statement required by Rule 8(a)(2) must “give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Erickson v. Pardus, 551 U.S. 89, 93 (2003) (per curium).

         The Court may dismiss a complaint under Rule 12(b)(6) if “it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Ramirez v. Dep't of Corr., Colo., 222 F.3d 1238, 1240 (10th Cir. 2000) (quotation omitted). A complaint will withstand a motion to dismiss under Rule 12(b)(6) if it contains allegations of fact which, taken as true, “state a claim to relief that is plausible on its face.” Twombly, 550 U.S. 544 at 570. “In determining the plausibility of a claim, [the Court] look[s] to the elements of the particular cause of action, keeping in mind that the Rule 12(b)(6) standard [does not] require a plaintiff to set forth a prima facie case for each element.” Safe Streets All. v. Hickenlooper, 859 F.3d 865, 878 (10th Cir. 2017) (internal quotation marks and citations omitted). “The nature and specificity of the allegations required to state a plausible claim will vary based on context. But mere labels and conclusions and a formulaic recitation of the elements of a cause of action will not suffice; a plaintiff must offer specific factual allegations to support each claim.” Id. “Thus, a claim is facially plausible if the plaintiff has pled factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.

         III. ANALYSIS

         A. Plaintiff's Section 1983 Claims Against Defendants Alexander and NMLB Are Not Plausible on Their Face

         1. The Law Regarding Section 1983

         Section 1983 of Title 42 of the United States Code provides: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ..., subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress....” 42 U.S.C. § 1983.

         Section 1983 creates only the right of action; it does not create any substantive rights; substantive rights must come from the Constitution or from federal statute. See Nelson v. Geringer, 295 F.3d 1082, 1097 (10th Cir. 2002) (“[S]ection 1983 did not create any substantive rights, but merely enforces existing constitutional and federal statutory rights....”) (internal quotation marks, alteration, and citation omitted). Section 1983 authorizes an injured person to assert a claim for relief against a person who, acting under color of state law, violated the claimant's federally protected rights.

         To state a claim upon which relief can be granted under Section 1983, a plaintiff must allege: (i) a deprivation of a federal right; and (ii) that the person who deprived the plaintiff of that right acted under color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988). The allegations must establish: “(1) a violation of rights protected by the federal Constitution or created by federal statute or regulation, (2) proximately caused (3) by the conduct of a ‘person' (4) who acted under color of any statute, ordinance, regulation, custom[, ] or usage, of any State or Territory or the District of Columbia.” Summum v. City of Ogden, 297 F.3d 995, 1000 (10th Cir. 2002) (alteration in original) (internal quotation marks and citation omitted)).

         2. Plaintiff's Section 1983 Claims Against Defendant NMLB and Defendant Alexander in His Official Capacity Are Not Plausible on Their Face

         In this case, Defendants NMLB and Alexander argue that Plaintiff's Section 1983 claims against Defendants Baca and Alexander in their official capacities and against Defendant NMLB are improper because as arms of the state, they are not “persons” to whom the statute applies. [Doc. 28, p. 2; Doc. 29, pp. 7-9]. Plaintiff concedes this point. [Doc. 36, p. 9]. She consents to dismissal of her Section 1983 claims against Defendant NMLB and clarifies that the Section 1983 claims against Defendants Baca and Alexander are brought against them in their individual capacities only. [Id.].

         3. Plaintiff's Section 1983 Claims Against Defendant Alexander in His Individual Capacity Are Not Plausible on Their Face

         In alleging a Section 1983 action against a government agent in the agent's individual capacity, “a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution.” Iqbal, 556 U.S. at 676. The Tenth Circuit has held that supervisors are not liable under Section 1983 “unless there is an affirmative link between the constitutional deprivation and the supervisor's exercise of control or direction, his personal participation, or his failure to supervise.” Meade v. Grubbs, 841 F.2d 1512, 1527 (10th Cir. 1988)). The Tenth Circuit reasoned that, because supervisors can be held liable only for their own constitutional acts or illegal policies, and not for their employees' torts, supervisory liability requires a showing that such policies were a “deliberate or conscious choice.” Barney v. Pulsipher, 143 F.3d at 1307-08 (citations and internal quotation marks omitted).

         Defendant Alexander challenges the Section 1983 claims brought against him in his individual capacity arguing that the allegations in Plaintiff's complaint, if true, are insufficient to establish that he violated Plaintiff's rights under the First and Fourteenth Amendments. [Doc. 26, p. 2; Doc. 27, pp. 4-8].

         i. Plaintiff's Allegations Specific to Defendant Alexander

         Plaintiff points to the factual allegations contained in paragraphs 105-109, 111, 113-120, 127-129, 162, 165, and 167-168 of her complaint as sufficient to state plausible First and Fourteenth Amendment claims against Defendant Alexander. [Doc. 38, ...


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