United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS'
MOTION TO DISMISS STATE CLAIMS 
KHALSA UNITED STATES MAGISTRATE JUDGE.
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
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.)
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.)
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.)
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,  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.)
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.)
Standard for Dismissing Claims Under Rule 12(b)(6)
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).
Whether Defendants come within the NMTCA's waiver of
immunity for “law enforcement officers” cannot be
decided on Defendants' Motion to Dismiss.
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.
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.
NMTCA waives immunity for injuries caused by “law
enforcement officers” who commit specified acts. N.M.
Stat. Ann. § 41-4-12. Under the NMTCA, ...