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Maho v. Hankins

United States District Court, D. New Mexico

December 12, 2019

DYLAN MAHO, Plaintiff,



         THIS MATTER is before the Court on Defendants' Motion to Dismiss State Claims Based on Tort Immunity and Statute of Limitations (Doc. 19) (“Motion”), filed June 24, 2019. Plaintiff filed a Response on July 26, 2019 (Doc. 24). Defendants filed a Reply on August 5, 2019 (Doc. 25). The Court, having reviewed the parties' submissions and the relevant law, and being otherwise fully advised in the premises, finds that the Motion is well taken and shall be GRANTED.


         For the purpose of ruling on Defendants' Motion, the Court accepts as true the following well-pleaded factual allegations from Plaintiff's Complaint and views them in the light most favorable to him. See Mayfield v. Bethards, 826 F.3d 1252, 1255 (10th Cir. 2016) (“[I]n reviewing a motion to dismiss, [the Court] accept[s] the facts alleged in the complaint as true and views them in the light most favorable to the plaintiff.”). After pleading no contest to one misdemeanor and two fourth-degree felony counts of voyeurism, Plaintiff was sentenced to serve 364 days in the Metropolitan Detention Center's (“MDC”) Community Custody Program (“CCP”). (Doc. 1 at ¶ 2.) His Plea and Disposition Agreement (“Agreement”) provided that upon completing his time in CCP, he would serve a three-year term of probation. (Doc. 1 at ¶¶ 2, 4.) Plaintiff was orally sentenced on December 11, 2014, but judgment was not entered until April 6, 2015. (Doc. 1 at ¶¶ 17, 21.)

         Shortly after Plaintiff was orally sentenced, Defendant Hankins and Defendant Scogin (“Defendants”), probation officers with the New Mexico Probation and Parole Division of the New Mexico Corrections Department, “placed him on probation” in violation of the terms of the Agreement and the sentence announced on December 11, 2014. (Doc. 1 at ¶¶ 5, 76, 123, 124.) Defendants not only prematurely placed Plaintiff on probation but also wrongly placed Plaintiff in the sex offender probation program, “an intensive supervision program with far greater restrictions on liberty than the standard conditions imposed for ordinary probation[.]” (Doc. 1 at ¶¶ 6-8.) As a result of a condition of sex offender probation that prohibited him from living within a certain distance of a school, Plaintiff was forced to move out of the house he owned and was also prohibited from living with his roommate or at his aunt's house. (Doc. 1 at ¶¶ 101, 111.) He was also deprived of contact with his son, who was six years old at the time, because of the specific conditions of sex offender probation. (See Doc. 1 at ¶¶ 14, 27, 53, 105, 113.)

         On January 23, 2015, prior to entry of his judgment and sentence, Defendants sought revocation of Plaintiff's probation based on an allegation that he violated the conditions of his probation by spending time with his minor son. (Doc. 1 at ¶¶ 10, 12, 14.) On March 2, 2015, Plaintiff was arrested and incarcerated at MDC on Defendants' orders. (Doc. 1 at ¶ 13.) Plaintiff was held without bond until he was released from MDC on December 15, 2015. (Doc. 1 at ¶ 28.) On January 4, 2016, Defendants again sought revocation of Plaintiff's probation based on “an alleged technical violation” of his sex offender probation conditions. (Doc.1 at ¶ 32.) Plaintiff was ordered to be held without bond on January 28, 2016. (Doc. 1 at ¶ 33.) On March 7, 2016, the New Mexico Court of Appeals held that the state district court lacked the authority to revoke Plaintiff's probation because Plaintiff “was not on probation at the time that he allegedly violated probation” and, therefore, reversed the state district court's 2015 revocation of Plaintiff's probation. State v. Maho, 2016 WL 1546346, at *1, 3 (N.M. Ct. App. March 7, 2016). (Doc. 1 at ¶ 35.) Thereafter on March 14, 2016, Defendants issued an addendum to their violation report, alleging additional technical violations of probation by Plaintiff. (Doc. 1 at ¶ 38.) On July 6, 2016, the state district court issued an order dismissing the State's motions to revoke Plaintiff's probation. (Doc. 1 at ¶ 48.) Plaintiff was released from MDC on July 20, 2016. (Doc. 1 at ¶ 52.)

         On March 5, 2019, Plaintiff filed his Complaint in this matter bringing, inter alia, state-law claims for (1) false imprisonment, (2) malicious abuse of process, (3) intentional infliction of emotional distress (“IIED”), and (4) loss of consortium. (Doc. 1 at 25-28.) Defendants have moved to dismiss those claims with prejudice under Federal Rule of Civil Procedure 12(b)(6) under either of two theories: that (1) the claims are time-barred under the New Mexico Tort Claims Act's (“NMTCA” or “the Act”) two-year statute of limitations, or (2) Defendants are immune from liability under the NMTCA. (Doc. 19.) Defendants argue that Plaintiff's state-law claims accrued no later, though arguably sooner, than the date when he was released from any wrongful incarceration allegedly occasioned by Defendants' acts. (Doc. 19 at 4.) Defendants contend that even construing Plaintiff's allegations in the light most favorable to him, the latest Plaintiff's claims could have accrued was December 31, 2016, [2] meaning his state-law claims filed more than two years later on March 5, 2019 are untimely. (Doc. 19 at 4-5.) Alternatively, Defendants argue that because they are probation officers, the NMTCA's waiver of immunity for “law enforcement officers” does not apply to them as a matter of law, meaning they remain immune from suit. (Doc.19 at 3-4.)

         In response to Defendants' statute-of-limitations argument, Plaintiff states, “Mr. Maho's sentence extended to September 31 [sic], 2017. Accordingly, the filing of the complaint [o]n March 5, 2019 falls within the two-year statute of limitations on which Defendants rely.” (Doc. 24 at 1.) The Court understands Plaintiff to argue that none of his state-law claims accrued until his sentence in his underlying criminal case ended. Regarding Defendants' immunity argument, Plaintiff argues that at the very least, there is a factual question as to whether Defendants fall within the NMTCA's definition of “law enforcement officer, ” making dismissal under Rule 12(b)(6) premised on immunity improper. (Doc. 24 at 3-4.)


         I. Standard for Dismissing Claims Under Rule 12(b)(6)

         Under Rule 12(b)(6), a court may dismiss a claim for “failure to state a claim upon which relief can be granted.” In deciding a motion to dismiss under Rule 12(b)(6), the Court must determine whether the plaintiff's complaint “contain[s] sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 455, 570 (2007)). “[R]elief must follow from the facts alleged[, ]” Bryson v. Gonzales, 534 F.3d 1282, 1286 (10th Cir. 2008), which the Court construes “in the light most favorable to the plaintiff.” Hall v. Bellmon, 935 F.2d 1106, 1109 (10th Cir. 1991). Because “[a] plaintiff may not sue a governmental entity of New Mexico or its employees or agents unless the plaintiff's cause of action fits within one of the exceptions listed in the NMTCA[, ]” Hunt v. Central Consol. Sch. Dist., 951 F.Supp.2d 1136, 1193 (D.N.M. 2013), dismissal under Rule 12(b)(6) is proper for any claims that do not fall within a waiver of immunity under the NMTCA. See Williams v. Bd. of Regents of the Univ. of N.M., 20 F.Supp. 3D 1177, 1187 (D.N.M. 2014) (stating that “if no specific waiver can be found in the NMTCA, a plaintiff's complaint against the governmental entity or its employees must be dismissed”). Additionally, “[a] statute of limitations defense may be appropriately resolved on a Rule 12(b) motion when the dates given in the complaint make clear that the right sued upon has been extinguished.” Sierra Club v. Okla. Gas & Elec. Co., 816 F.3d 666, 671 (10th Cir. 2016) (alteration and internal quotation marks omitted).

         II. Whether Defendants come within the NMTCA's waiver of immunity for “law enforcement officers” cannot be decided on Defendants' Motion to Dismiss.

         Defendants contend that because they are probation officers, they are categorically immune from liability. (Doc. 19 at 3; Doc. 25 at 3.) Citing Vigil v. Martinez, 1992-NMCA-033, ¶ 20, 113 N.M. 714, 832 P.2d 405, and Trask v. Franco, 446 F.3d 1036, 1047-48 (10th Cir 2006), they argue that “[s]tate and federal case law clearly hold that Probation Officers are immune from liability for torts.” (Doc. 25 at 3.) Plaintiff first counters that probation officers are “analogous” to detention center directors, for whom the New Mexico Court of Appeals has held that immunity is waived as a matter of law. (Doc. 24 at 2, citing Abalos v. Bernalillo Cnty. Dist. Attorney's Office, 1987-NMCA-026, ¶ 29, 105 N.M. 554, 734 P.2d 794.) Plaintiff alternatively argues that whether Defendants fall within the NMTCA's waiver of immunity for “law enforcement officers” presents a question of fact that cannot be decided on Defendants' Motion to Dismiss. (Doc. 24 at 3-4.) The Court agrees with the latter of Plaintiff's arguments.

         Initially, the Court acknowledges that New Mexico courts have consistently affirmed grants of summary judgment for probation officers who are sued under the NMTCA on the basis that they were not “law enforcement officers” under the Act and were, therefore, immune from liability. See Rayos v. State ex rel. N.M. Dep't of Corr., Adult Probation & Parole Div., 2014-NMCA-103, ¶¶ 1, 26, 27, 336 P.3d 428 (affirming the district court's grant of summary judgment in favor of the defendant probation officers and holding, based on the record before it, that the district court did not err in ruling that the probation officers in that case were not law enforcement officers); Vigil, 1992-NMCA-033, ¶¶ 14, 20 (construing the district court's ruling on the defendant probation officers' motion to dismiss as a motion for summary judgment where the defendants relied on, and the plaintiff did not object to, an affidavit by one of the defendants attesting to his principal duties, and holding that the district court properly ruled that the probation officers in that case were not law enforcement officers). And as Defendants point out, the Tenth Circuit, applying New Mexico law, has also affirmed a grant of summary judgment for probation officers based on the NMTCA's lack of a waiver for probation officers. Trask, 446 F.3d at 1047-48 (citing Vigil, 1992-NMCA-033, for the proposition that “[t]he New Mexico Court of Appeals has made it clear that probation officers are ‘not law enforcement officers under Section 41-4-3(D) and therefore the waiver in Section 41-4-12 does not apply to them[]'”). However, the Court does not read the foregoing cases as compelling the conclusion that all tort claims brought under the NMTCA against New Mexico probation officers must be dismissed under Rule 12(b)(6) because they can never state a claim upon which relief may be granted. That is particularly so given (1) the way in which “law enforcement officer” is defined under the NMTCA, (2) New Mexico case law interpreting how to determine whether a particular defendant's immunity has been waived under Section 41-4-12, and (3) the nature of the claims and allegations contained in Plaintiff's Complaint.

         The NMTCA waives immunity for injuries caused by “law enforcement officers” who commit specified acts. N.M. Stat. Ann. § 41-4-12. Under the NMTCA, ...

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