United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
matter comes before the Court upon “Defendants'
Motion to Dismiss and/or for Qualified Immunity on All of
Plaintiff's Claims and Memorandum of Law in Support,
Therefore” (Motion to Dismiss), filed on January 29,
2019, by Defendants the New Mexico Corrections Department
(NMCD) and former Secretary of the New Mexico Corrections
Department, David Jablonski (Jablonski), collectively NMCD
Defendants. (Doc. 4). NMCD Defendants bring the Motion to
Dismiss under both Fed.R.Civ.P. 12(b)(6) (“failure to
state a claim upon which relief can be granted”) and
Fed.R.Civ.P. 12(b)(5) (“insufficient service of
process”). Pro se Plaintiff did not file a
response. On April 12, 2019, the Magistrate Judge
entered an order staying discovery pending resolution of the
Motion to Dismiss. (Doc. 21). Having considered the Motion to
Dismiss and the Amended Verified Complaint (Doc. 1-2), the
Court grants the Motion to Dismiss as described below and
lifts the stay of discovery.
The Amended Verified Complaint
alleges that errors by all Defendants resulted in his
unlawful detention and incarceration at the Lea County
Correctional Facility for at least 60 days. (Doc. 1-2) at
¶¶ 16 and 19. Plaintiff contends that on July 17,
2014, he filed a petition for writ of habeas corpus.
Id. at ¶ 20. Plaintiff further contends that
“[a]fter multiple days of wrongful incarceration and
detention, a stipulated order was entered on October 9, 2014,
dismissing Plaintiff's writ of habeas corpus and ordering
his immediate release.” Id. at ¶ 21.
sues the individual Defendants in their individual and
official capacities. Id. at 1 (case caption).
Plaintiff alleges that Defendants violated the Fourth,
Eighth, and Fourteenth Amendments of the United States
Constitution in contravention of 42 U.S.C. § 1983.
Id. In Count One, Plaintiff alleges Section 1983
violations against “[a]ll named Defendants” for
having “deprived Plaintiff of liberty and infringed
upon his right to be free from unreasonable seizure, without
due process, and in violation of equal protection of the
laws.” Id. at ¶ 25. In Count Two,
Plaintiff alleges Section 1983 violations by
“Defendants” for depriving “Plaintiff of
his right to procedural due process.” Id. at
¶ 28. Finally, in Count Three, Plaintiff alleges Section
1983 violations by “all Defendants” for depriving
“Plaintiff of his right to be free from cruel and
unusual punishment.” Id. at ¶ 31.
mentions the New Mexico Constitution at the outset of the
Amended Verified Complaint, but he does not specifically
allege a violation of the New Mexico Constitution in any of
the Counts nor does Plaintiff mention the New Mexico
Constitution elsewhere in the Amended Verified Complaint.
seeks compensatory damages, punitive damages, and
attorney's fees and costs as allowed under Section 1983.
Id. at 10.
Service of Process
filed the original complaint in state court on October 9,
2017. (Doc. 14-1). On December 20, 2017, the state court
issued summonses for Defendants. Plaintiff apparently did not
serve this complaint on Defendants. On December 12, 2018, the
state court allowed Plaintiff to file an amended complaint
and to complete service of the amended complaint by December
27, 2018. (Doc. 14-18). Plaintiff filed the Amended Verified
Complaint on December 20, 2018. (Doc. 1-2). On the next day,
“the New Mexico Corrections Department's Office of
General Counsel accepted service on behalf of the Defendants
the New Mexico Corrections Department and then-Secretary
David Jablonski only.” (Doc. 4) at 3, ¶ 10.
According to NMCD Defendants, Plaintiff did not serve
“a copy of the process on the New Mexico Attorney
General.” Id. at 3, ¶ 11. NMCD Defendants
subsequently removed the case to federal court on January 22,
2019. (Doc. 1).
Defendants make several arguments for dismissal under Rule
12(b)(6): (1) NMCD and Jablonski, in his official capacity,
are immune from suit for monetary damages under Section 1983
because they are not “persons;” (2) Plaintiff has
failed to state a Section 1983 constitutional claim against
Defendant Jablonski, in his individual capacity, and
Defendant Jablonski is entitled to qualified immunity from a
Section 1983 suit in his individual capacity; (3) the New
Mexico Tort Claims Act (NMTCA) statute of limitations bars
any state tort claim; (4) Plaintiff failed to provide NMTCA
notice to NMCD Defendants regarding any state tort claim; and
(5) NMCD Defendants enjoy sovereign immunity from suit for
any state tort claim because the NMTCA does not waive
sovereign immunity in this case.
ruling on a Rule 12(b)(6) motion to dismiss, the Court must
accept all well-pleaded allegations as true and must view
them in the light most favorable to the plaintiff. See
Zinermon v. Burch, 494 U.S. 113, 118 (1990); Swanson
v. Bixler, 750 F.2d 810, 813 (10th Cir.1984). Rule
12(b)(6) requires that a complaint set forth the grounds of a
plaintiff's entitlement to relief through more than
labels, conclusions and a formulaic recitation of the
elements of a cause of action. See Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007).
survive a Rule 12(b)(6) motion to dismiss, a plaintiff must
allege facts sufficient to state a plausible claim of relief.
Id. at 570. A claim is facially plausible if the
plaintiff pleads facts sufficient for the court to reasonably
infer that the defendant is liable for the alleged
misconduct. Ashcroft v. Iqbal,556 U.S. 662, 678
(2009) (citing Twombly, 550 U.S. at 556). “The
plausibility standard is not akin to a ...