United States District Court, D. New Mexico
HIGH PLAINS LIVESTOCK, LLC, a Texas limited liability company, d/b/a Producers Livestock Auction, MICHAEL FLEN, CALVIN PAREO, and DARCIE PAREO, Plaintiffs,
BARRY ALLEN, SHAWN DAVIS, RAY BACA, in their individual and official capacities, and THE NEW MEXICO LIVESTOCK BOARD, Defendants.
V. Domenici, Jr., Domenici Law Firm, P.C., Albuquerque, New
Mexico, for Plaintiffs High Plains Producers, Inc. and Darcie
Pareo; Wesley O. Pool, Pool Law Firm, P.C., Clovis, New
Mexico, for Plaintiff Michael Flen; Sandra Gallagher,
Gallagher Law Firm, Portales, New Mexico, for Plaintiff
S. Bartell, Randi N. Valverde, and Matthew A. Zidovsky,
Montgomery & Andrews, P.A., Santa Fe, New Mexico, for
Defendants Barry Allen, Shawn Davis, Ray Baca, and the New
Mexico Livestock Board.
ORDER GRANTING MOTION TO DISMISS FEDERAL
J. Kelly, Jr., United States Circuit Judge
MATTER is before the court on Individual Defendants Barry
Allen, Shawn Davis, and Ray Baca's Motion to Dismiss
Federal Claims in the Second Amended Complaint filed June 11,
2018. ECF No. 42. Upon consideration thereof, the motion is
well taken and should be granted.
High Plains Livestock, LLC (“High Plains”) and
its owner (Michael Flen) as well as two persons affiliated
with High Plains (Calvin and Darcie Pareo) brought this
action against the New Mexico Livestock Board
(“NMLB”), two of its law enforcement agents
(Defendants Barry Allen and Shawn Davis), and its executive
director (Ray Baca). The court gathers the following from the
Second Amended Complaint.
2009, Plaintiff High Plains was licensed to conduct livestock
auctions. See N.M. Stat. Ann. § 77-10-1; Second
Am. Compl. ¶ 13 (ECF No. 37). According to the
Plaintiffs, the individual defendants and the NMLB engaged in
unconstitutional and tortious conduct in the intervening
years that interfered with High Plains' business. The
Second Amended Complaint traces Defendants' interference
to 2009, before High Plains received its auction license.
Plaintiffs allege that the NMLB executive director warned
Michael Flen that he could not hire Plaintiffs Calvin and
Darcie Pareo because they were “bad people.”
Id. at ¶¶ 19-20. That same year,
presumably after High Plains received its license, the NMLB
charged High Plains with failing to properly account for
sales at each auction and comply with permitting requirements
for out-of-state cattle. Id. at ¶ 21-22.
Plaintiffs maintain they were in compliance until NMLB brand
inspector Terry Roberts arbitrarily issued a citation.
Id. at ¶ 22. The charges were dismissed.
Id. at ¶¶ 21, 23.
Second Amended Complaint alleges harassment and arbitrary
action following the dismissal. For example, Agent Allen
began conducting random inspections and requiring paperwork
not required of other sale barns. Id. at
¶¶ 23-24. In August 2011, Mr. Baca required a brand
inspector (Terry Roberts) to direct Mrs. Pareo to “run
cattle through a chute.” Id. at ¶ 27.
When Mrs. Pareo responded it could not be done at that time,
Mr. Roberts “yelled at [her], ‘you will do what I
say when I say it.'” Id. at ¶ 28. The
Pareos called Mr. Roberts's supervisor, who promised Mr.
Roberts would not return. Id. Despite the
assurances, Mr. Roberts returned but was told by the Pareos
to leave and not return. Id. High Plains was cited
the following week for not giving Mr. Roberts proper
paperwork and for an assault involving Mr. Pareo.
Id. at ¶ 29. A jury acquitted High Plains and
Mr. Pareo. Id. at ¶ 30.
the NMLB denied High Plains' request to conduct two sales
per week. Id. at ¶ 32. Mr. Baca then directed
brand inspectors not to stay at High Plains' sales past
7:00 p.m. and to return, if at all, the following morning.
Id. Plaintiffs maintain that such a requirement was
not similarly imposed on other sale barns and it interfered
with the ability to conduct competitive livestock auctions.
Second Amended Complaint also describes a 2013 directive to
the New Mexico Department of Transportation by Mr. Baca to
stop High Plains livestock haulers so as to check licenses
and the number of cattle. Id. at ¶ 37. In
addition, High Plains' auction license was contingent on
moving to a new facility, but Agents Allen and Davis
prohibited High Plains from doing so despite previous
assurances to High Plains that requirements to move were
satisfied. Id. at ¶ 33. The NMLB also directed
the Animal Plant and Health Inspections Services - an agency
purportedly empowered to authorize High Plains' move - to
deny High Plains' request, but that agency disregarded
the directive and issued authorization. Id. at
High Plains moved, approximately ten brand inspectors seized,
without a warrant, “metal clips and back tags.”
According to head brand inspector Troy Patterson, the tags
were deficient and could not be used, although a state
veterinarian assured High Plains that the tags were indeed
compliant. Id. at ¶ 35.
then conducted a second raid of High Plains, this time with a
warrant that authorized the seizure of “all business
records in High Plains' possession.” Id.
at ¶ 38. Plaintiffs state that the warrant was issued
without probable cause and with deficient affidavits.
Id. They maintain they were not free to leave during
the resulting search because of Defendants' show of
authority. Id. In the raid, Defendants seized not
only business records and computers, but also (1) the
Pareos' daughter's birth certificate and shot record;
(2) the Pareos' personal bank statements from before
2014; (3) the Pareos' complete bankruptcy file from
before 2013; (4) negotiable instruments of over $50, 000 made
payable to “Plaintiff”; and (5) billing records
for feed that had not been posted to client ledgers, and
“numerous other personal records.” Id.
Agent Allen refused High Plains' request for a copy of
seized electronic accounting records. Id. Agents
Allen and Davis also took seized evidence prior to
cataloging, and much of the evidence is now unaccounted for
and missing, if not intentionally destroyed. Id. at
¶¶ 38, 43.
Second Amended Complaint alleges that Agents Davis and Allen
continued to undermine High Plains' business following
the raid. Not only did they publish statements that
Plaintiffs were “crooks, ” but they also made
defamatory statements to potential customers and threatened
them with criminal charges should they do business with High
Plains. Id. at ¶ 40. Agent Allen also asked a
potential High Plains customer if he knew any “bull-dog
type” IRS auditors so Agent Allen could release them on
High Plains. Id.
charges were filed against Plaintiffs after the raid, and the
NMLB revoked High Plains' license. Id. at ¶
40. Prior to trial, Agents Davis and Allen interviewed and
captured the audio of multiple witnesses, who provided
allegedly “exculpatory testimony.” Id.
at ¶¶ 41, 43. Agents Davis and Allen then hid or
destroyed the recordings and, under oath, denied their
existence. Id. at ¶¶ 41-43. Even absent
this purportedly exculpatory evidence, the Second Amended
Complaint states that the charges were dismissed after a jury
trial. Id. ¶ 40.
brought their complaint in state court, Compl. (ECF No. 1-1),
Defendants removed to federal court. Notice of Removal (ECF
No. 1). Plaintiffs moved for leave to amend their complaint,
and the magistrate judge, based solely on considering the
prejudice to Defendants, granted leave. ECF No. 36.
Plaintiffs filed their Second Amended Complaint in April
2018. Count I alleges Mr. Baca and Agents Allen and Davis
violated the New Mexico Tort Claims Act in their personal
capacities, and specifically alleges: (1) malicious
prosecution; (2) abuse of process; (3) libel, slander,
defamation of character; (4) violation of property rights;
(5) deprivation of any rights, privileges or immunities
secured by the constitution and laws of the United States or
New Mexico; (6) due process violations; and (7) equal
protection violations. Count II alleges violations of
Plaintiffs' constitutional rights under 42 U.S.C. §
1983 against Mr. Baca and Agents Allen and Davis in their
personal capacities. Specifically, Count II alleges (1)
Fourth Amendment violations as incorporated under the
Fourteenth Amendment; (2) Sixth Amendment violations as
incorporated under the Fourteenth Amendment; (3) and due
process and equal protection violations under the Fourteenth
Amendment. Count III alleges malicious prosecution against
Mr. Baca and Agents Allen and Davis in their personal
capacities under 42 U.S.C § 1983. Finally, Count IV
requests damages, fees, and preliminary and permanent
injunctive relief against all defendants. On June 11, 2018,
Individual Defendants moved to dismiss Plaintiffs'
federal claims pursuant to Fed.R.Civ.P. 12(b)(6). ECF No. 42.
defendant may move to dismiss for failure to state a claim
upon which this court may grant relief. Fed.R.Civ.P.
12(b)(6). When reviewing such a motion, this court accepts
all well-pled factual allegations as true and views them in
the light most favorable to the plaintiff. Butler v. Bd.
of Cty. Comm'rs for San Miguel Cty., 920 F.3d 651,
654 (10th Cir. 2019). A plaintiff's request for relief
must be “plausible on its face”; it must state
“more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not
do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555, 570 (2007); see also Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009). Individual Defendants argue Plaintiffs
have failed to meet this standard as to their claims for
relief under the Fourth Amendment, Sixth Amendment,
Fourteenth Amendment, and as to their malicious prosecution
claim under § 1983.
Defendants also argue they are entitled to qualified
immunity. A defense of qualified immunity is most often
resolved at the summary judgment stage, but this court may
grant a motion to dismiss on that basis upon a
defendant's showing the conduct alleged in the complaint
was objectively reasonable. Thomas v. Kaven, 765
F.3d 1183, 1194 (10th Cir. 2014). Qualified immunity shields
government officials from liability for civil damages if
their conduct did not violate clearly established
constitutional rights. White v. Pauly, 137 S.Ct.
548, 551 (2017) (per curiam). Qualified immunity balances
“the need to hold public officials accountable when
they exercise power irresponsibly” with “the need
to shield officials from harassment, distraction, and
liability when they perform their duties reasonably.”
Pearson v. Callahan, 555 U.S. 223, 231 (2009).
Liability “turns on the objective legal reasonableness
of the action, assessed in light of the legal rules that were
clearly established at the time it was taken.”
Messerschmidt v. Millender, 565 U.S. 535, 546 (2012)
(internal quotation marks omitted).
overcome a qualified immunity defense, a plaintiff must show
(1) that there was a violation of a constitutional right, and
(2) that a reasonable person would have known the right was
clearly established at the time of the alleged violation.
Pearson, 555 U.S at 232. The right must be defined
with specificity, and for the law to be clearly established,
the constitutional question must be beyond debate. Kisela
v. Hughes, 138 S.Ct. 1138, 1152 (2018). The law must be
evaluated at the time of the events in question. Id.
at 1154. A plaintiff must usually identify existing precedent
that would make it apparent to an official that his or her
conduct in these circumstances was unlawful; there are few
obvious situations where such case law is not essential.
District of Columbia v. Wesby, 138 S.Ct. 577, 590
(2018). Courts may look to either factor to resolve the
question of qualified immunity. See Green v. Post,
574 F.3d 1294, 1299 (10th Cir. 2009).
Plaintiffs' Fourth Amendment Claims
allege four separate Fourth Amendment violations. They first
challenge the constitutionality of the search warrant
authorizing the seizure of High Plains' business records
as not supported by probable cause and made on the basis of
invalid affidavits. Second Am. Compl. ¶ 79. Next, they
argue the search warrant lacked particularity as to the
property seized and not returned to them. Id. at
¶ 80. Third, they claim they were unreasonably seized