JAMES O. BROWNING, District Judge.
To provide background for the MTD, the Court takes the following facts from the Complaint. The Complaint's organization is unclear. Accordingly, the Court has reorganized the factual material in the Complaint to explain the facts clearly.
Plaintiff "Jessica Tapia was a full-time, classified City employee, employed as a City para-transit van driver when she was injured on-the-job while operating a wheelchair lift on a City van." Complaint ¶ 1, at 1 (emphasis omitted). Plaintiff "Vanessa Aragon was employed as a City bus driver until the City terminated her employment in July, 2011." Complaint ¶ 2, at 2 (emphasis omitted). Plaintiff "[t]he New Mexico Transportation Union ("NMT[U]"), [sic] is the labor union that has represented
The Plaintiffs assert that NMTU "petitioned with the support of a majority of employees in the bargaining unit for recognition as the union for the bus and van drivers in March, 2011," but "the City would not formally recognize its majority status until October 5, 2011, when it was forced to recognized NMTU after NMTU prevailed in the City-run election against AFSCME, Local 624." Complaint ¶ 10, at 3. Although the City Labor Board conducted that election, neither the City nor its labor board supported "the NMTU in either its grievance or bargaining representation." Complaint ¶ 11, at 3. "On October 5, 2011, Mayor Richard Berry de-certified AFSCME as bargaining representative and certified NMTU." Complaint ¶ 12, at 3. "However, the City Defendants subsequently refused to bargain with NMTU[,] refused to deduct union dues from paychecks, and refused to allow union leaders the same accommodations and privileges concerning union business, negotiations, and grievances that the AFSCME union was afforded." Complaint ¶ 13, at 3.
Complaint ¶ 14, at 3-4. Tapia's and Aragon's grievances "were the first two grievances ever handled by NMTU's new Chairman." Complaint ¶ 15, at 4.
According to the Plaintiffs, the City Charter requires the mayor to administer and protect "the merit system," and to appoint "an officer to administer the merit system." Complaint ¶ 16, at 4.
Complaint ¶ 20, at 5.
Tapia's wrist was injured on the job. See Complaint ¶ 21, at 5. The Complaint does not relay the circumstances of that injury. "Since Ms. Tapia had been injured at work the City claimed it had the right to assign her to any position, without regard for whether the position had any relation to her work as a van driver." Complaint ¶ 22, at 5. "Following her on-the-job wrist injury the Transit Department assigned Ms. Tapia to `monitor' the public restrooms at the City's Alvarado Transit Center. While `monitoring' at the ATC, in November, 2010, Ms. Tapia was attacked by a homeless man who injured her shoulder." Complaint ¶ 21, at 5. "By early December, 2010, Transit officials had placed Ms. Tapia in the poorly heated Guard Shack at the entrance to the Daytona Transit facility and left her to stay there all day with nothing to do." Complaint ¶ 23, at 5.
Complaint ¶ 24, at 5.
Complaint ¶ 25, at 4. The hearing was rescheduled for March 10, 2010. See Complaint ¶ 26, at 6. When Tapia's attorney asked for documents to support the charges, no documents were provided. See Complaint ¶ 26, at 6. The Transit Department asserted that Tapia "submitted a P30 Request for Leave form with 68.270 hours of Absent Without Leave. This type of leave is unauthorized leave and considered absent from work without authorization. Your AW absences totaling 68.270 hours have placed you in violation of City Rules and Regulations." Complaint ¶ 26, at 6 (source of quotation unidentified). "Ms. Tapia had submitted the form on the instructions of Transit's Personnel Manager. Nonetheless, on March 18, 2011, [t]he Transit Department gave Tapia a 3-day suspension." Complaint ¶ 27, at 6.
Complaint ¶ 27, at 6 (source of quotation unidentified).
Complaint ¶ 28, at 6-7 (source of quotation unidentified). On May 18, 2011, in response to the hearing held on May 9, 2011, the Transit Department suspended Tapia without pay for eight work days, or sixty-four work hours, to be served from May 20, 2011 to May 31, 2011. See Complaint ¶ 29, at 7. On May 31, 2011, Maintenance Manager Dennis Stump gave Ms. Tapia notice of another Pre-determination Hearing scheduled for Thursday June 9, 2011. According to the City's untrue account, Ms. Tapia had requested accommodation in October, 2010 `citing that you are unable to drive at night due to your medical condition.'" Complaint ¶ 30, at 31. "Without her knowledge the City had apparently paid a private investigator to follow her outside of work hours, with the result that she was accused of `driving at night' and `purchasing liquor at a Walgreens establishment then attending what appeared to be a party.'" Complaint ¶ 31, at 7 (source of quotation unidentified).
Also, according to the Plaintiffs' account, the City's
Complaint ¶ 32, at 7 (omission in Complaint).
"On June 8, 2011, Jessica Tapia received the `results of predetermination hearing' that `on April 18-20, 2011, you did not show up for work or call in to be absent from work.' The Transit department imposed a 15-workday, 120 hour suspension without pay." Complaint ¶ 33, at 7. "Without further notice to Ms. Tapia or NMTU, the City terminated Ms. Tapia's employment." Complaint ¶ 34, at 8.
"On August 2, 2011, the City's attorney, Paula Forney, drafted and issued a subpoena for Ms. Tapia's medical records. Ms. Forney did that without informing Ms. Tapia or her attorney. Ms. Forney did not seek or secure a release." Complaint ¶ 40, at 9. The subpoena, which Forney evidently issued to Dr. Wagner-Mogle, stated "that it was: `[f]or the medical records of patient, Jessica Tapia ... requires you to appear for a deposition on August 10, 2011 at 10:00 a.m. ... and bring with you: Any and all documents in your possession regarding Jessica Tapia ... beginning 01/01/2010 to the present." Complaint ¶ 41, at 9. "In a letter accompanying the Subpoena and deposition notice, Ms. Forney stated that: You can avoid the deposition by copying and forwarding to this office all records requested prior to the deposition. If we do not receive the records prior to the date of deposition, we will expect your appearance.'" Complaint ¶ 42, at 9 (source of quotation not provided).
After the hearing officer allowed "the City unlimited `discovery' (including Ms. Tapia's medical records), Ms. Forney propounded burdensome and offensive `discovery requests' designed to embarrass Ms. Tapia and place pressure on the inexperienced NMTU officers who were attempting to represent her, rather than produce any actually useful information." Complaint ¶ 46, at 10 (source of quotations not provided). "The Hearing Officer signed an order dismissing Ms. Tapia's case, but the Personnel Board objected that Mr. Bingham's order did not give any reasons or include any `findings.' The Personnel Board remanded the case to the Personnel Hearing Officer to make findings and issue a `correct' order." Complaint ¶ 47, at 10. "Instead of the Hearing Officer making findings and issuing a correct corder [sic], Paula Forney wrote a set of `findings and conclusions' dismissing Ms. Tapia's case." Complaint ¶ 48, at 10. "The Hearing Officer merely changed the title of the document prepared by Ms. Forney and signed the `Order' drafted by Ms. Forney, dismissing Ms. Tapia's Personnel Board case without a hearing.'" Complaint ¶ 49, at 10. "At its December 14, 2011, meeting the Personnel Board gave its rubber-stamp `approval' of Ms. Forney's findings and conclusions." Complaint ¶ 50, at 11.
Complaint ¶ 51, at 11.
"The City has held an extraordinary number of pre-disciplinary hearings in this case, spanning the time between the first such action on December 26, 2006, and the last on June 1, 2011." Complaint ¶ 35, at 8 (footnote omitted). The Complaint lists, without further explanation, a number of "Results of Pre-Disciplinary He[ar]ings" and states that "in addition the City has held two investigations ... and issued at least seven letters of investigation." Complaint ¶ 35 n. 1, at 8.
Complaint ¶ 36, at 8. "On May 17, 2011, Deputy Operations Manager Annette Paez ordered Ms. Aragon to return to work, but Ms. Aragon was unable to comply because of her medical condition." Complaint ¶ 37, at 8. "On June 1, 2011, Ms. Paez charged
"On October 17, 2011, Mr. Lucero wrote to Ms. Wardlaw to request Vanessa Aragon's case and all other NMTU cases be stayed until the Union achieved the ability to represent the bargaining unit employees." Complaint ¶ 52, at 11. "The City refused to agree to a continuance, claiming that Mr. Lucero had waited too long to request it." Complaint ¶ 53, at 11. "Without any attempt to contact Ms. Aragon, the City's Personnel Hearing Officer wrongly concluded that: `... it is more likely than not that Employee was aware of the hearing and did not appear so as to support the request for a continuance.'" Complaint ¶ 54, at 11 (omission in Complaint)(source of quotation not provided).
Complaint ¶ 55, at 12 (source of block quotation not provided).
Complaint ¶ 56, at 12.
The Court will discuss the procedural background in two parts. First, the Court will discuss the Plaintiffs' Complaint and the Defendants' removal to federal court. Second, the Court will discuss the proceedings that relate to the MTD.
The Plaintiffs filed their Complaint in state court, stating that they "bring their claims under 42 U.S.C.Sec. 1983 [sic], and the laws and Constitutions of the United States and the State of New Mexico." Complaint ¶ 9, at 2-3. The Plaintiffs allege six causes of action. See Complaint ¶¶ 57-84, at 12-16. Under "Count 1 Due Process and Equal Protection," the Plaintiffs assert that Tapia and Aragon, "[a]s classified, full-time, City employees ... had legitimate expectations of continued employment absent just cause for disciplinary action. They had the right to a full and fair hearing to challenge their termination." Complaint ¶ 57, at 12. "Similarly," the Plaintiffs allege, "NMTU and its leadership had a due process right and an obligation to represent employees in the bargaining unit at post-termination grievance hearings that are fundamentally fair and procedurally correct." Complaint ¶ 58, at 12. According to the Plaintiffs, the "Defendants denied the employees' rights and hearings and dismissed their cases on pretextual grounds," and, thereby, "the City Defendants have violated Plaintiffs'
Under "Count 2 Breach of Employment Contracts," the Plaintiffs allege that, "[a]s tenured public employees, Plaintiffs Tapia and Aragon were covered by a contract of employment that consisted of the Merit System Ordinance, the Personnel Rules and Regulations and applicable collective bargaining agreements." Complaint ¶ 62, at 13. The Plaintiffs contend that they "were contractually entitled to notice and an opportunity to be heard, and to be disciplined only for just cause." Complaint ¶ 62, at 13. The Plaintiffs submit that, thereby, the Defendants "have violated their contractual obligations and are liable for damages to be determined at trial." Complaint ¶ 64, at 13.
Under "Count 3 Violation of Right to Privacy," the Plaintiffs contend that Ms. "Forney used a misleading letter and an illegitimate subpoena that she issued herself to secure Jessica Tapia's medical records from Dr. Carmen Wagner-Mogle," and that Dr. "Wagner-Mogle sent Ms. Tapia's medical records to Ms. Forney without any knowledge or authorization by Ms. Tapia." Complaint ¶¶ 66-67, at 13-14. The Plaintiffs assert that "Dr. Wagner-Mogle communicated with Ms. Forney and other City representatives about Jessica Tapia and her medical condition and records on at least several occasions," but "never contacted or attempted to contact Ms. Tapia or her attorney." Complaint ¶ 68, at 14. The Plaintiffs state that "[t]he acts of Defendants, specifically Paula Forney, Dr. Carmen Wagner-Mogle and the Transit Department deliberately and willfully violated Jessica Tapia's right to privacy in her medical records." Complaint ¶ 69, at 14. The Plaintiffs contend that the "Defendants also hired a private investigator and followed Ms. Tapia, seeking and securing information about her personal life and activities entirely unconnected with her work." Complaint ¶ 70, at 14. The Plaintiffs assert that the "Defendants are liable for their violations of Ms. Tapia's right to privacy." Complaint ¶ 71, at 14.
Under "Count 4 Negligence," the Plaintiffs assert that, "[a]s described herein, Defendants have treated Jessica Tapia and Vanessa Aragon negligently and with deliberate indifference with respect to their employment." Complaint ¶ 73, at 14. "In addition," the Plaintiffs state, "Ms. Tapia sustained two injuries, the first resulting from operation of a wheelchair lift while on duty; the second of which was a result of her assignment to monitor the restroom facilities at the Alvarado Transit Center, a building managed and maintained by the City Transit Department." Complaint ¶ 74, at 15. The Plaintiffs assert that "Tapia has given notice of her tort claim to the City of Albuquerque." Complaint ¶ 75, at 15. The Plaintiffs maintain that "[t]he city and its Transit Department, as well as its Director, are liable for the damages proximately caused by their negligence in an amount to be determined at trial." Complaint ¶ 76, at 15.
Under "Count 5 Conspiracy to Deny Constitutional Rights," the Plaintiffs assert that "[t]he City Defendants, aware of Plaintiffs' rights to due process and equal protection, acted deliberately to deny the right to a hearing, one of the most fundamental rights of public employees subjected to wrongful disciplinary actions." Complaint ¶ 78, at 15. "In particular," according to the Plaintiffs, "Paula Forney, the Personnel Hearing Officers, the Personnel Board, and Bruce Rizzieri and other City officials met, discussed, and arranged for the denial of Plaintiffs' due process and equal protection rights." Complaint ¶ 79, at 15.
Under "Count 6 Unfair Labor Practices," the Plaintiffs state that, "[l]ong after
Complaint ¶ 82, at 16. The Plaintiffs maintain that "[t]he City's misconduct and the Hearing Officers' and Personnel Board's lack of concern over—and engagement in—collusive tactics in this case, including biased hearing officers eager to dismiss rather than hear employee cases, and unethical and illegal conduct, clearly demonstrated the City's policy and practice with respect to the rights of its employees and the obligations of City management towards those employees." Complaint ¶ 83, at 16. The Plaintiffs assert that they "are entitled to compensatory, declaratory, and injunctive relief for the City's failure to comply with its laws, failure to recognize and hear employee grievances, and collusive and conspiratorial conduct with respect to these and other employees' rights and grievances." Complaint ¶ 84, at 16.
The Plaintiffs ask for the following forms of relief:
Complaint ¶¶ A-H, at 16-17.
On March 4, 2013, the Defendants filed their Notice of Removal. See Doc. 1.
On March 8, 2013, the City Defendants filed their Answer to Complaint for Violation of Statutory and Constitutional Rights, Breach of Contract, and Unfair and Prohibited Labor Practices, Affirmative Defenses and Counterclaim. See Doc. 13 ("City Defendants' Answer"). The City Defendants raise two counterclaims: (i) malicious abuse of process, contending, in essence, that the Plaintiffs' claims are meritless and that they are abusing the legal process, see City Defendants' Answer ¶¶ 48-56, at 16-17; and (ii) prima facie tort, contending that the Plaintiffs have intentionally brought a meritless claim to harm the City of Albuquerque, see City Defendants' Answer ¶¶ 57-64, at 18-19.
Ms. Forney moves the Court to dismiss the claims against her. See MTD at 1. She asserts that the law entitles her to qualified immunity and that, because she served as an opposing party's counsel, she did not owe the Plaintiffs any duties. See MTD at 1. Accordingly, she asserts that the Complaint does not state a claim against her, and she asks the Court to dismiss the claims against her with prejudice. See MTD at 1. After reviewing the familiar standard for motions to dismiss under rule 12(b)(6) of the Federal Rules of Civil Procedure, see MTD at 1-2, Ms. Forney sets out the following list of "material allegations" from the Complaint:
MTD ¶¶ 1-6, at 2-4.
With respect to the Plaintiffs' claims under 42 U.S.C. § 1983, Ms. Forney substantially relies on qualified immunity. See MTD at 4. After reviewing the familiar general legal standards for qualified immunity, see MTD at 4-5, Ms. Forney states that she worked for the City of Albuquerque, first as its employee and then as its contract attorney, and argues that, under the Supreme Court of the United States' decision in Filarsky v. Delia, ___ U.S. ___, 132 S.Ct. 1657, 182 L.Ed.2d 662 (2012), "a contract attorney is entitled to the same qualified immunity as an attorney employed by a governmental entity," MTD at 5. Ms. Forney continues:
MTD at 6-7. Echoing these arguments, Ms. Forney contends that good policy reasons support extending qualified immunity to contract employees: acknowledging that government, "in need of specialized knowledge or expertise, may look outside its permanent workforce to secure the services of private individuals," she maintains that, given private individuals' freedom to choose other forms of employment, "the most talented candidates might decline public engagements if they did not receive the same immunity enjoyed by their public employee counterparts." MTD at 7.
In her third argument in favor of applying qualified immunity to her, she notes that, even if a private individual is performing a government duty, the public has an interest in ensuring that those individuals can carry out their duties without the distractions of litigation. See MTD at 7. She notes, moreover, that "distinguishing among those who carry out the public's business based on their particular relationship with the government creates significant line-drawing problems and can deprive state actors of the ability to reasonably anticipate when their conduct may give rise to liability for damages." MTD at 7 (citing Filarsky v. Delia,
Accordingly, she asserts that Filarsky v. Delia entitles her to qualified immunity. See MTD at 7. Moreover, she asserts that, "even though the Complaint contains conclusory allegations of due process violations, the factual allegations . . . fail to establish any violation of a constitutional right by Paula Forney in her actions as attorney for the City of Albuquerque." MTD at 7-8. She asserts that, "[t]o the contrary, the allegations show that Paula Forney did no more than competently represent her client in the proceedings by propounding discovery, appearing for and representing the City at hearings, and drafting proposed findings and conclusions." MTD at 8. She also asserts that,
MTD at 8. Accordingly, she asserts that, "[e]ven viewing the allegations in the light most favorable to Plaintiffs, the record clearly establishes that Tapia has failed to satisfy his [sic] heavy two-part burden and Paula Forney is entitled to qualified immunity." MTD at 8. She asks the Court to dismiss the § 1983 claims with prejudice. See MTD at 8. She also notes that, if she "is not a public actor entitled to qualified immunity, then, as a private actor, she cannot be held liable for any constitutional violations under 42 U.S.C. § 1983." MTD at 8 n.1.
Ms. Forney then turns to the Plaintiffs' state law claims and argues that the Complaint does not state a claim against her, because she did not owe the Plaintiffs any legal duties. See MTD at 8-9. Ms. Forney first states that, to her reading, Counts 2, 4, and 6 of the Complaint are not directed against her; she argues that, if they are asserted against her, they fail to state a claim, because all of their claims "arise out of [her] actions as an attorney for the adverse party in personnel board proceedings and litigation," and, "as the opposing attorney, [she] had no duty to Plaintiffs." MTD at 8-9. She asserts that, because she had no such duty, the Complaint fails to state a claim against her. See MTD at 9. She asserts that, under New Mexico law, litigants have no cause of action against opposing litigants' attorneys for conduct and statements in legal proceedings. See MTD at 9 (citing Garcia v. Rodey, Dickason, Sloan, Akin & Robb, P.A., 1988-NMSC-014, 106 N.M. 757, 750 P.2d 118; Gelinas v. Gabriel, 106 N.M. 221, 741 P.2d 443 (1987)). According to Ms. Forney, "[a]n attorney has no duty to protect the interests of a non-client adverse party," because that party "is not the intended beneficiary of the attorney's services and the attorney's undivided loyalty belongs to the client." MTD at 9. She also points out that, under New Mexico law, "[a]n adverse party cannot justifiably rely on the opposing lawyer to protect him from harm." MTD at 9 (citing Leyba v. Whitley, 1995-NMSC-066, 120 N.M. 768, 907 P.2d 172). According to Ms. Forney, the facts that the Complaint alleges all focus on areas where she acted as the City of Albuquerque's attorney, and, in that capacity, she owed duties only to her client and not the Plaintiffs. See MTD at 9-10.
Ms. Forney also argues that, to the extent that the NMTU and Lucero have sued her, "there is no basis for any claims by NMTU or Lucero against [her] and NMTU and Lucero lack standing to maintain the asserted claims." MTD at 10. After rehearsing the familiar requirements for standing under Article III of the Constitution of the United States of America, Ms. Forney asserts that NMTU and Lucero lack standing to sue her,
MTD at 10-11. Ms. Forney asks the Court to dismiss all claims against her with prejudice, because the Complaint does not allege that she violated the Plaintiffs' constitutional rights; because qualified immunity, therefore, insulates her from liability; and because she took any acts of which the Plaintiffs complain as an opposing party's attorney, a capacity in which she owes the Plaintiffs no legal duties. See MTD at 11. Ms. Forney notes that she asked opposing counsel for concurrence, but opposing counsel did not respond. See MTD at 11.
The Plaintiffs did not file a response.
The Court held a hearing on November 1, 2013. See Transcript of Hearing, taken November 1, 2013, filed November 7, 2013 (Doc. 63)("Tr."). Ms. Forney began by reiterating her qualified immunity argument: the Court asked her to clarify her position, and she stated that, in Filarsky v. Delia, the Supreme Court extended qualified immunity to contract attorneys who represent government entities. See Tr. at 58:23-60:9 (Franke, Court). The Court asked whether it would go through the normal, two-pronged qualified immunity analysis; Ms. Forney submitted that the Court could analyze the claim that way, but asserted that, because she raised this objection in a motion to dismiss, the Court could decide the issue under Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), "as to whether the allegations of the complaint plausibly show . . . a violation of a clearly established constitutional right." Tr. at 60:11-20 (Court, Franke). The Court asked Ms. Forney what she understood to be the allegations against her; Ms. Forney stated:
Tr. at 60:21-61:7 (Court, Franke). She argued that only the claim which relates to the subpoenas which she sent to Dr. Wagner-Mogle could deal with the Constitution,
Ms. Forney also addressed the lack of a filed response: she noted that she filed the MTD on May 3, 2013, and that counsel for the Plaintiffs asked for an extension of time to respond, which was, in her view, "a clear demonstration of a recognition of the need to file a response to this motion." Tr. at 62:21-63:1 (Franke). She pointed out that the Plaintiffs did not respond and that she "waited beyond the given extension by an additional 12 days before we ever filed our notice of completion on this. There was no response by the time of the notice of completion, and there has been no response to date." Tr. at 62:2-6 (Franke). She noted that some parties had, earlier in the hearing, suggested that the Court should consider granting motions "based solely on the fact that there is no written response," and noted that the Court need not have set a hearing, but could have decided the MTD and other motions heard based on written filings. Tr. at 63:7-14 (Franke). She stated, however, that she preferred the Court's approach to the MTD and other motions— that is, to reach their merits, rather than to decide them based solely on the absence of a response—and asserted that she
Tr. at 63:15-23 (Franke).
After no other Defendant took the Court's invitation to speak, the Court invited the Plaintiffs to respond. See Tr. at 64:4-6 (Court). The Plaintiffs asserted that it was appropriate to address the motions on the merits. See Tr. at 64:7-12 (Livingston). They stated that it was not, however, "fair or allowable to file a motion to dismiss along with a motion for summary judgment in the same motion, attach 38 exhibits"; the Court briefly interrupted, intending to remind Plaintiffs' counsel that the Court was holding argument on the MTD and not on the separate motion to which the Plaintiffs' counsel referred, but the Plaintiffs' counsel stated that "I know which motion we're talking about, but we're also talking about other motions, and this is all accumulation." Tr. at 64:9-16 (Livingston, Court). The Plaintiffs' counsel reiterated his frustration with the lack of a scheduling conference and with the other parties, given their unwillingness to
Tr. at 65:6-13 (Livingston). The Plaintiffs asserted that the case is a "mess of pleadings exactly the way they're not supposed to be decided in the interest of justice in accordance with the" Federal Rules of Civil Procedure. Tr. at 65:15-17 (Livingston).
The Plaintiffs maintained that the counterclaim is an important fact—in their view, Ms. Forney has filed nearly identical counterclaims in multiple cases, without regard to the facts or the clients. See Tr. at 65:18-21 (Livingston). They also assert, without explanation, that Ms. Forney
Tr. at 65:22-66:6 (Livingston). The Plaintiffs underscored their desire to decide this case on its facts and on the merits, stating that, "once we've had a chance to discover what they've been hiding, then it would be ripe for decision perhaps by summary judgment, perhaps with 38 exhibits, but not now, Your Honor." Tr. at 66:7-11 (Livingston). The Plaintiffs pointed out that this case is at a preliminary stage and that they had filed their action "in state court with state court pleading requirements"; they stated that the Defendants removed to federal court, "presumably with everyone's consent, although I don't believe there was anyone's consent sought. I think the lawyers just did this." Tr. at 66:12-16 (Livingston). They stated that, after removal, "we're stuck . . . arguing over every count and every issue as to whether there's sufficient law to support it when we don't even have an explanation of the facts." Tr. at 66:16-19 (Livingston). They stated:
Tr. at 66:21-67:5 (Livingston).
The Court invited Ms. Forney to respond. See Tr. at 67:8 (Court). Ms. Forney noted that the counterclaim was "for tortious interference with contractual relations. . . and prima facie tort, and as such, it's completely severable and distinct from the primary claims." Tr. at 67:9-14 (Franke). She stated that, "if all that stood between complete termination of this litigation was the counterclaim, I believe I'd certainly entertain dismissal of that counterclaim," but stated that the counter claim is "very distinct and can clearly be separated from the" MTD. Tr. at 67:14-18 (Franke). She further asserted that the MTD should justify dismissing each claim against her, for the three reasons she has given. See Tr. at 67:19-22 (Franke). She also underscored the MTD's point that the Complaint does not allege that Ms. Forney engaged in any conduct in connection with Aragon. See Tr. at 67:22-68:2 (Franke).
The Court took the MTD under advisement. See Tr. at 68:9-10 (Court).
Rule 12(b)(6) authorizes a court to dismiss a complaint for "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). "The nature of a Rule 12(b)(6) motion tests the sufficiency of the allegations within the four corners of the complaint after taking those allegations as true." Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir.1994). The sufficiency of a complaint is a question of law, and when considering a rule 12(b)(6) motion, a court must accept as true all well-pleaded factual allegations in the complaint, view those allegations in the light most favorable to the non-moving party, and draw all reasonable inferences in the plaintiffs favor. See Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322, 127 S.Ct. 2499, 168 L.Ed.2d 179 (2007) ("[O]nly if a reasonable person could not draw . . . an inference [of plausibility] from the alleged facts would the defendant prevail on a motion to dismiss."); Smith v. United States, 561 F.3d 1090, 1098 (10th Cir.2009) ("[F]or purposes of resolving a Rule 12(b)(6) motion, we accept as true all well-pleaded factual allegations in a complaint and view these allegations in the light most favorable to the plaintiff." (quoting Moore v. Guthrie, 438 F.3d 1036, 1039 (10th Cir.2006))).
A complaint need not set forth detailed factual allegations, yet a "pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action" is insufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (internal quotation marks omitted)(citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. "Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Bell Atl. Corp. v. Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (citation omitted).
To survive a motion to dismiss, a plaintiffs complaint must contain sufficient facts that, if assumed to be true, state a claim to relief that is plausible on its face. See Bell Atl. Corp. v. Twombly, 550 U.S. at 570, 127 S.Ct. 1955; Mink v. Knox, 613 F.3d 995, 1000 (10th Cir.2010). "A claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged."
Robbins v. Okla. ex rel. Dep't of Human Servs., 519 F.3d 1242, 1247 (10th Cir.2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. at 570, 127 S.Ct. 1955) (internal citations omitted).
"Failure of a party to file and serve a response in opposition to a motion within the time prescribed for doing so constitutes consent to grant the motion." D.N.M.LR-Civ. 7.1(b). The court cannot, however, grant a motion to dismiss or a motion for summary judgment based solely on plaintiffs failure to respond and must consider the merits of the motion. See Issa v. Comp USA, 354 F.3d 1174, 1177-78 (10th Cir.2003) ("[E]ven if a plaintiff does not file a response to a motion to dismiss for failure to state a claim, the district court must still examine the allegations in the plaintiff's complaint and determine whether the plaintiff has stated a claim upon which relief can be granted."); Reed v. Bennett, 312 F.3d 1190, 1194-95 (10th Cir.2002) (holding that a district court cannot grant an unopposed motion for summary judgment unless the moving party has first met its burden of production and demonstrates it is legally entitled to judgment under rule 56). The requirement that a court consider the merits before granting an unopposed motion to dismiss is "consistent with the purpose of Rule 12(b)(6) motions as the purpose of such motions is to test `the sufficiency of the allegations within the four corners of the complaint after taking those allegations as true.'" Issa v. Comp USA, 354 F.3d at 1177-78 (quoting Mobley v. McCormick, 40 F.3d at 340). Similarly, when a party fails to respond to a motion for summary judgment, a district court can properly grant the motion only "if the motion demonstrates no genuine issue of material fact exists and the movant is entitled to judgment as a matter of law." Reed v. Bennett, 312 F.3d at 1196. Failure to respond does "not relieve the court of its duty to make the specific determination required by Fed.R.Civ.P. 56(c)." Reed v. Bennett, 312 F.3d at 1196. Accordingly, although the local rules provide that a party's failure to respond to a motion for summary judgment or to a motion to dismiss for failure to state a claim is deemed consent to the Court granting the motion, the Court will nonetheless rule substantively on such motions and generally does not grant dispositive motions on procedural defaults alone. See D.N.M.LR-Civ 7.1(b)("The failure of a party to file and serve a response in opposition to a motion within the time prescribed for doing so constitutes consent to grant the motion."); Sawyer v. USAA Ins. Co., 912 F.Supp.2d 1118, 1144 (D.N.M.2012) (Browning, J.)("It is important that Sawyer filed no written
Section 1983 of Title 42 of the United States Code provides:
42 U.S.C. § 1983. "To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law." West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988). Individual, non-supervisory defendants may be liable if they knew or reasonably should have known that their conduct would lead to the deprivation of a plaintiff's constitutional rights by others, and an unforeseeable intervening act has not terminated their liability. See Martinez v. Carson, 697 F.3d 1252, 1255 (10th Cir.2012) ("The requisite causal connection is satisfied if [the defendants] set in motion a series of events that [the defendants] knew or reasonably should have known would cause others to deprive [the plaintiffs] of [their] constitutional rights.")(quoting Trask v. Franco, 446 F.3d 1036, 1046 (10th Cir. 2006)). The Supreme Court has made clear that there is no respondeat superior liability under 42 U.S.C. § 1983. See Ashcroft v. Iqbal, 556 U.S. at 675, 129 S.Ct. 1937 ("Because vicarious liability is inapplicable to Bivens [v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) ("Bivens"),] and § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution."); Bd. of Cnty. Comm'rs v. Brown, 520 U.S. 397, 403, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997). "An entity cannot be held liable solely on the basis of the existence of an employer-employee relationship with an alleged tortfeasor." Garcia v. Casuas, No. CIV 11-0011 JB/RHS, 2011 WL 7444745, at *25 (D.N.M. Dec. 8, 2011) (Browning, J.) (citing Monell v. Dep't of Soc. Servs., 436 U.S. 658, 689, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)). Supervisors can be held liable only for their own unconstitutional or illegal policies, and not for the employees' tortious acts. See Barney v. Pulsipher, 143 F.3d 1299, 1307-08 (10th Cir.1998).
"Under Section 1983, liability attaches only to conduct occurring `under color of law.'" Gallagher v. Neil Young Freedom Concert, 49 F.3d 1442, 1447 (10th Cir.1995). The under-color-of-state-law requirement is a "jurisdictional requisite for a § 1983 action, which . . . furthers the
In the context of a public employee, the Tenth Circuit has directed that, while "`state employment is generally sufficient to render the defendant a state actor . . . . [,]' at the same time, it is `well settled that an otherwise private tort is not committed under color of law simply because the tortfeasor is an employee of the state.'" Jojola v. Chavez, 55 F.3d at 493 (quoting Lugar v. Edmondson Oil Co., 457 U.S. at 935-36 n. 18, 102 S.Ct. 2744; Mark v. Borough of Hatboro, 51 F.3d 1137, 1150 (3d Cir.1995)). Thus, "before conduct may be fairly attributed to the state because it constitutes action `under color of state law,' there must be `a real nexus' between the employee's use or misuse of their authority as a public employee, and the violation allegedly committed by the defendant." Jojola v. Chavez, 55 F.3d at 493. What constitutes the required real nexus, however, is not completely clear. As the Tenth Circuit has stated, whether there is a real nexus in a particular case depends on the circumstances:
David v. City & Cnty. of Denver, 101 F.3d 1344, 1353 (10th Cir.1996) (internal citations omitted) (quoting Martinez v. Colon, 54 F.3d 980, 986 (1st Cir.1995)).
Under § 1983, "Defendants are liable for the harm proximately caused by their conduct." Martinez v. Carson, 697 F.3d at 1255. Thus, government actors may be liable for the constitutional violations that another committed, if the actors "set in motion a series of events that the defendant knew or reasonably should have known would cause others to deprive the plaintiff of her constitutional rights," thus establishing the "requisite causal connection" between the government actor's conduct and a plaintiffs constitutional deprivations. Trask v. Franco, 446 F.3d 1036, 1046 (10th Cir.2006). The Tenth Circuit has explained that § 1983 liability should be "`read against the background of tort liability that makes a man responsible for the natural consequences of his actions.'" Martinez v. Carson, 697 F.3d at 1255 (quoting Monroe v. Pape, 365 U.S. 167, 187, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), overruled in part by Monell v. Dep't of
The Tenth Circuit has found liability for those defendants who proximately caused an injury complained-of under § 1983, and stated that fact that the "conduct of other people may have concurrently caused the harm does not change the outcome as to [the defendant]," so long as there was not a superseding-intervening cause of a plaintiffs harm. Lippoldt v. Cole, 468 F.3d 1204, 1220 (10th Cir.2006).
Trask v. Franco, 446 F.3d at 1046. Thus, in the context of a claim under the Fourth Amendment to the Constitution of the United States of America, the Tenth Circuit has held that government actors "may be held liable if the further unlawful detention and arrest would not have occurred but for their conduct and if there were no unforeseeable intervening acts superseding their liability." Martinez v. Carson, 697 F.3d at 1255. The Tenth Circuit gave an example of a superseding intervening cause, quoting the Honorable Samuel J. Alito, then-Circuit Judge for the Third Circuit, now-associate Justice for the Supreme Court:
Trask v. Franco, 446 F.3d at 1046 (quoting Bodine v. Warwick, 72 F.3d at 400). Additionally, "[f]oreseeable intervening forces are within the scope of the original risk, and . . . will not supersede the defendant's
Trask v. Franco, 446 F.3d at 1047 (citing Restatement (Second) of Torts § 453 cmt. b (1965)).
The Tenth Circuit has held that supervisors are not liable under 42 U.S.C. § 1983 unless there is "`an affirmative link . . . between the constitutional deprivation and either the supervisor's personal participation, [] exercise of control or direction, or [] failure to supervise.'" Gallagher v. Shelton, 587 F.3d 1063, 1069 (10th Cir.2009) (quoting Green v. Branson, 108 F.3d 1296, 1302 (10th Cir.1997))(internal alterations omitted). Because supervisors can be held liable only for their own constitutional or illegal policies, and not for the torts that their employees commit, supervisory liability requires a showing that such policies were a "deliberate or conscious choice." Barney v. Pulsipher, 143 F.3d at 1307-08 (citations omitted)(internal quotation marks omitted). Cf. Bd. of Cnty. Comm'rs v. Brown, 520 U.S. at 404, 117 S.Ct. 1382 ("[I]t is not enough for a § 1983 plaintiff merely to identify conduct properly attributable to the municipality. The plaintiff must also demonstrate that, through its deliberate conduct, the municipality was the `moving force' behind the injury alleged." (emphasis in original)).
The Tenth Circuit has recognized that Ashcroft v. Iqbal limited, but did not eliminate, supervisory liability for government officials based on an employee's or subordinate's constitutional violations. See Garcia v. Casuas, 2011 WL 7444745, at *25-*26 (citing Dodds v. Richardson, 614 F.3d 1185 (10th Cir.2010)). The language that may have altered the landscape for supervisory liability in Ashcroft v. Iqbal is as follows: "Because vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution." 556 U.S. at 676, 129 S.Ct. 1937. The Tenth Circuit in Dodds v. Richardson held:
614 F.3d at 1199. The Tenth Circuit noted that Ashcroft v. Iqbal "does not purport to overrule existing Supreme Court precedent," but stated that "Iqbal may very well have abrogated § 1983 supervisory liability as we previously understood it in this circuit in ways we do not need to address to resolve this case." Dodds v. Richardson, 614 F.3d at 1200. It concluded that Ashcroft v. Iqbal did not alter "the Supreme Court's previously enunciated § 1983 causation and personal involvement analysis." Dodds v. Richardson, 614 F.3d
Dodds v. Richardson, 614 F.3d at 1199-1200 (citing Summum v. City of Ogden, 297 F.3d 995, 1000 (10th Cir.2002)). The Tenth Circuit noted, however: "We do not mean to imply that these are distinct analytical prongs, never to be intertwined." 614 F.3d at 1200 n. 8. Relying on the Supreme Court's opinion in Bd. of Cnty. Comm'rs v. Brown, the Tenth Circuit reasoned that two of the prongs often, if not always, are sufficient proof that the third prong has been met also:
Dodds v. Richardson, 614 F.3d at 1200 n. 8 (quoting Bd. of Cnty. Comm'rs v. Brown, 520 U.S. at 404-05, 117 S.Ct. 1382) (internal quotation marks omitted). The Tenth Circuit noted that "[w]e think the same logic applies when the plaintiff sues a defendant-supervisor who promulgated, created, implemented or possessed responsibility for the continued operation of a policy that itself violates federal law." Dodds v. Richardson, 614 F.3d at 1200 n. 8. Thus, the Tenth Circuit reduced the test to what can be seen as a two-part test for supervisor liability, requiring the plaintiff to prove "an `affirmative' link . . . between the unconstitutional acts by their subordinates and their `adoption of any plan or policy . . . —express or otherwise—showing their authorization or approval of such misconduct.'" Dodds v. Richardson, 614 F.3d at 1200-01 (quoting Rizzo v. Goode, 423 U.S. 362, 371, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976)).
A municipality will not be held liable under § 1983 solely because its officers inflicted injury. See Graves v. Thomas, 450 F.3d 1215, 1218 (10th Cir.2006). Rather, to establish municipal liability under § 1983, a plaintiff must demonstrate: (i) that an officer committed an underlying constitutional violation; (ii) that a municipal policy or custom exists; and (iii) that there is a direct causal link between the policy or custom and the injury alleged. See Graves v. Thomas, 450 F.3d at 1218. When a claim is brought against a municipality for failing to train its officers adequately, the plaintiff must show that the municipality's inaction was the result of deliberate indifference to the rights of its
The Supreme Court has stated that it is a judicial obligation to not only
Brentwood Acad. v. Tenn. Secondary Sch. Ath. Ass'n, 531 U.S. 288, 295, 121 S.Ct. 924, 148 L.Ed.2d 807 (2001) (internal quotations and citations omitted). The rights under the Fourth and Fourteenth Amendments to the Constitution of the United States of America at issue secure protection only against infringement through state action. See, e.g., Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 156, 98 S.Ct. 1729, 56 L.Ed.2d 185 (1978) ("[M]ost rights secured by the Constitution are protected only against infringement by governments."). Under some circumstances, however, private parties' conduct may be deemed to be state action when the "conduct allegedly causing the deprivation of a federal right may be fairly attributable to the State." Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 937, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982). Whether the conduct may in fact be "fairly attributed" to the state requires a two-part inquiry. "First, the deprivation must be caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the state or by a person for whom the State is responsible." Lugar v. Edmondson Oil Co., Inc., 457 U.S. at 937, 102 S.Ct. 2744. "Second, the party charged with the deprivation must be a person who may fairly be said to be a state actor." Lugar v. Edmondson Oil Co., Inc., 457 U.S. at 937, 102 S.Ct. 2744. See West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988) (explaining that, to state a claim under § 1983, the plaintiff must show: (i) deprivation of a right that the federal Constitution or federal laws secure; and (ii) that a person acting under color of state law caused the deprivation).
The Supreme Court in Lugar v. Edmondson Oil Co., Inc. explained that the two prongs merge when the claim is "directed against a party whose official character is such as to lend the weight of the State to his decisions," whereas they remain distinct when analyzing private parties' conduct. 457 U.S. at 937, 102 S.Ct. 2744. The first prong of the test in Lugar v. Edmondson Oil Co., Inc.—that the deprivation of a right is attributable to the state—is satisfied when "the authority of state officials . . . put the weight of the State behind [the d]efendant's private decision[.]" 457 U.S. at 940, 102 S.Ct. 2744. The Supreme Court in Lugar v. Edmondson Oil Co., Inc. further instructed that the second prong, identification of a defendant as a state actor, may arise "because he is a state official, because he has acted together with or has obtained significant aid from state officials, or because his conduct is otherwise chargeable to the state." 457 U.S. at 937, 102 S.Ct. 2744.
In Lugar v. Edmondson Oil Co., Inc., the Supreme Court determined that the plaintiffs allegation that private conduct unlawful under state law deprived the plaintiff of his property without due process failed to state a claim under § 1983. See 457 U.S. at 940, 102 S.Ct. 2744. The Supreme Court also held that the plaintiffs claim alleging that the private parties
For a private individual to be acting under color of state law, the deprivation of a federal right "must be caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the state or by a person for whom the State is responsible," and "the party charged with the deprivation must be a person who may fairly be said to be a state actor . . . because he is a state official, because he has acted together with or has obtained significant aid from state officials, or because his conduct is otherwise chargeable to the State." Lugar v. Edmondson Oil Co., 457 U.S. at 937, 102 S.Ct. 2744.
How v. City of Baxter Springs, 217 Fed. Appx. 787, 793 (10th Cir.2007) (unpublished).
The Tenth Circuit has described the determination of state action as "particularly fact-sensitive, so the circumstances must be examined in their totality." Marcus v. McCollum, 394 F.3d 813, 819 (10th Cir.2004). According to the Tenth Circuit, "[t]he Supreme Court has counseled us that the state action inquiry, although a legal determination to be made by the court, [see Gilmore v. City of Montgomery, 417 U.S. 556, 570, 94 S.Ct. 2416, 41 L.Ed.2d 304 (1974),] requires the `sifting [of] facts and weighing [of] evidence.'" Phelps v. Wichita Eagle-Beacon, 886 F.2d 1262, 1271 (10th Cir.1989) (quoting Burton
On the other hand, leaving the determination of state action to the jury has shown to be ill-advised. The cases in which the acts of private entities have been held to constitute state action or to be under color of law, and cases in which they have not, tend to be distinguished "by fine shadings in the sometimes complex interrelationships that develop between the state and private bodies." Adams v. Vandermark, 787 F.2d 588, 1986 WL 16606, at *2 (6th Cir.1986) (unpublished). In Adams v. Vandermark, the United States Court of Appeals for the Sixth Circuit reviewed a jury instruction from the United States District Court for the Eastern District of Michigan, instructing the jury on when to find state action. The Sixth Circuit found that the few words that were given to the jury on when to find state action "gave the jury little to guide it in making its determination on this crucial element of the claim for relief." 1986 WL 16606, at *2. The Sixth Circuit noted that the application of the symbiotic-relationship test and the joint-relationship test are "very difficult and complex questions," and, "[t]o the extent a jury is to decide upon the proper factual predicates for this essentially legal determination, it must be given instructions that are clear, precise and informative as to the factors involved and the factual issues to be determined." 1986 WL 16606, at *2. The Sixth Circuit found that the defendants were entitled to a new trial, because the jury was given no direction that could have enabled it to make the necessary underlying factual determination regarding state action. 1986 WL 16606, at *2-*3.
The Supreme Court has articulated four different tests for courts to use in determining whether conduct by an otherwise private party is state action: (i) the public-function test; (ii) the nexus test; (iii) the symbiotic-relationship test; and (iv) the joint-action test. See Johnson v. Rodrigues (Orozco), 293 F.3d 1196, 1202-1203 (10th Cir.2002) (reviewing the various tests); Gallagher v. Neil Young Freedom Concert, 49 F.3d 1442, 1447 (10th Cir.1995) (noting that "[a]pplication of the state action doctrine has been characterized as one of the more slippery and troublesome areas of civil rights litigation." (internal quotation marks omitted)).
Under the public-function test, a court determines whether a private party has exercised "powers traditionally exclusively reserved to the State." Jackson v. Metro. Edison Co., 419 U.S. 345, 352, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974). The public-function test is difficult to satisfy, because while many functions may be traditionally governmental, few are "exclusively" governmental functions, as the test requires. Gallagher v. Neil Young Freedom Concert, 49 F.3d at 1456. The courts have found exclusive government functions to include holding elections, performing necessary municipal functions, and running
Under the nexus test, state action is present if the state has ordered the private conduct, or "exercised coercive power or has provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the State." Blum v. Yaretsky, 457 U.S. 991, 993, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982). A court determines under the nexus test whether there is a sufficiently close nexus between the state and the challenged conduct, such that the conduct "may be fairly treated as that of the state itself." Jackson v. Metro. Edison Co., 419 U.S. at 351, 95 S.Ct. 449. "Private use of state-sanctioned private remedies or procedures does not rise to the level of state action. . . . But when private parties make use of state procedures with the overt, significant assistance of state officials, state action may be found." Tulsa Professional Collection Servs., Inc. v. Pope, 485 U.S. 478, 486, 108 S.Ct. 1340, 99 L.Ed.2d 565 (1988) (internal citations omitted).
Under the symbiotic-relationship test, state action is present if the state "has so far insinuated itself into a position of interdependence" with a private party that "it must be recognized as a joint participant in the challenged activity." Burton v. Wilmington Parking Authority, 365 U.S. 715, 725, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961). "[E]xtensive regulation, receipt of substantial state funds, and the performance of important public functions do not necessarily establish the kind of symbiotic relationship between the [state] and a private [party] that is required for state action." Gallagher v. Neil Young Freedom Concert, 49 F.3d at 1451.
Gallagher v. Neil Young Freedom Concert, 49 F.3d at 1452.
State action exists under the joint-action test if the private party is a "willful participant in joint action with the State or its agents." Dennis v. Sparks, 449 U.S. 24, 27, 101 S.Ct. 183, 66 L.Ed.2d 185 (1980). Courts look to "whether state officials and private parties have acted in concert in effecting a particular deprivation of constitutional rights." Gallagher v. Neil Young Freedom Concert, 49 F.3d at 1453. "[I]f there is a substantial degree of cooperative action between state and private officials . . . or if there is overt and significant state participation, in carrying out the deprivation of the plaintiffs constitutional rights, state action is present." Gallagher v. Neil Young Freedom Concert, 49 F.3d at 1454 (internal quotation marks and citations omitted). Joint participation can also take the form of a conspiracy between public and private actors; in such cases, the plaintiff must show that the public and private actors shared a common, unconstitutional goal. See Sigmon v. CommunityCare HMO, Inc., 234 F.3d 1121, 1126 (10th Cir.2000). Even a conspiracy claim requires a sufficient level of state involvement to constitute joint participation in the unconstitutional actions. See Soldal v. Cook County, 506 U.S. 56, 60 n. 6, 113 S.Ct. 538, 121 L.Ed.2d 450 (1992). The Tenth Circuit has previously dismissed constitutional claims against a private
In Gallagher v. Neil Young Freedom Concert, the Tenth Circuit surveyed several instances in which courts have found action "under color of state law" where governmental and private parties have acted together in joint-action:
49 F.3d at 1453-56. The Tenth Circuit noted that, "just as with the other tests for state action, the mere acquiescence of a state official in the actions of a private party is not sufficient." 49 F.3d at 1453. The Tenth Circuit found that the joint-action test can be satisfied where police are involved in cooperative action with a private party when "the police have substantially assisted in the allegedly wrongful conduct." 49 F.3d at 1455. Joint participation typically arises when the authorities agree to facilitate through affirmative action a private party's unconstitutional acts. See Soldal v. Cook County, 506 U.S. 56, 60 n. 4, 113 S.Ct. 538, 121 L.Ed.2d 450 (1992).
The Tenth Circuit has found that the involvement of the police does not necessarily convert a defendant's abuse of state law into conduct attributable to the state for purposes of § 1983 liability. See Yanaki v. Iomed, Inc., 415 F.3d 1204, 1210 (10th Cir.2005) (citing Winterland Concessions
The Fourteenth Amendment states: "No State shall . . . deprive any person of life, liberty, or property, without due process of law." U.S. Const. amend. XIV. The Due Process Clause encompasses two distinct forms of protection: (i) procedural due process, which requires a state to employ fair procedures when depriving a person of a protected interest; and (ii) substantive due process, which guarantees that a state cannot deprive a person of a protected interest for certain reasons. See, e.g., Cnty. of Sacramento v. Lewis, 523 U.S. 833, 845-46, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998). "Under either form of protection, however, a person must have a protected interest in either life, liberty, or property." Chavez-Rodriguez v. City of Santa Fe, No. CIV 07-0633, 2008 WL 5992271, at *6 (D.N.M. Oct. 9, 2008) (Browning, J.). The Tenth Circuit prescribes a two-step inquiry in determining whether an individual's procedural due-process rights were violated: (i) "`Did the individual possess a protected property interest to which due process protection was applicable?'"; and (ii) "`Was the individual afforded an appropriate level of process?'" Camuglia v. City of Albuquerque, 448 F.3d 1214, 1219 (10th Cir.2006) (quoting Clark v. City of Draper, 168 F.3d 1185, 1189 (10th Cir.1999)).
"The Constitution does not create or define the contours of `liberty' or `property,' the `broad and majestic terms' enshrined in the Fourteenth Amendment." Farthing v. City of Shawnee, Kan., 39 F.3d 1131, 1135 (10th Cir.1994) (quoting Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 571, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972)). "To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it." Bd. of Regents of State Colls. v. Roth, 408 U.S. at 577, 92 S.Ct. 2701. "Such an interest arises not from the Due Process Clause of the Constitution itself, but is `created by independent sources such as a state or federal statute, a municipal charter or ordinance, or an implied or express contract.'" Teigen v. Renfrow, 511 F.3d 1072, 1079 (10th Cir.2007). See Bd. of Regents of State Colls. v. Roth, 408 U.S. at 577, 92 S.Ct. 2701 ("Property interests, of course, are not created by the Constitution. Rather
"[O]nce it is determined that the Due Process Clause applies, `the question remains what process is due.'" Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985) (citing Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972)). "An essential principle of due process is that a deprivation of life, liberty, or property `be preceded by notice and opportunity for hearing appropriate to the nature of the case.'" Cleveland Bd. of Educ. v. Loudermill, 470 U.S. at 542, 105 S.Ct. 1487 (citing Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 313, 70 S.Ct. 652, 94 L.Ed. 865 (1950)). "[D]ue process is flexible and calls [only] for such procedural protections as the particular situation demands." Mathews v. Eldridge, 424 U.S. 319, 334, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) (internal quotation marks and brackets omitted). The Supreme Court has described
Cleveland Bd. of Educ. v. Loudermill, 470 U.S. at 542, 545, 105 S.Ct. 1487 (footnote omitted) (citations and internal quotation marks omitted). The United States Court of Appeals for the Second Circuit has stated:
Qualified immunity recognizes the "need to protect officials who are required to exercise their discretion and the related public interest in encouraging the vigorous exercise of official authority." Harlow v. Fitzgerald, 457 U.S. 800, 807, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). "Qualified immunity protects federal and state officials from liability for discretionary functions, and from `the unwarranted demands customarily imposed upon those defending a long drawn-out lawsuit.'" Roybal v. City of Albuquerque, No. CIV 08-0181, 2009 WL 1329834, at *10 (D.N.M. Apr. 28, 2009) (Browning, J.) (quoting Siegert v. Gilley, 500 U.S. 226, 232, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991)). The Supreme Court deems it "untenable to draw a distinction for purposes of immunity law between suits brought against state officials under § 1983 and suits brought directly under the Constitution against federal officials." Butz v. Economou, 438 U.S. 478, 504, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978). "The qualified immunity analysis is the same whether the claims are brought under Bivens or pursuant to the post-Civil War Civil Rights Acts." Breidenbach v. Bolish, 126 F.3d 1288, 1291 (10th Cir. 1997), overruled on other grounds as recognized in Currier v. Doran, 242 F.3d 905 (10th Cir.2001).
Camreta v. Greene, ___ U.S. ___, 131 S.Ct. 2020, 2030-31, 179 L.Ed.2d 1118 (2011).
Issues of qualified immunity are best resolved at the "earliest possible stage in litigation." Pearson v. Callahan, 555 U.S. 223, 232, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (quoting Hunter v.
Qualified immunity shields government officials from liability where "their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Pearson v. Callahan, 555 U.S. at 231, 129 S.Ct. 808 (quoting Harlow v. Fitzgerald, 457 U.S. at 818, 102 S.Ct. 2727). Qualified immunity also shields officers who have "reasonable, but mistaken beliefs," and operates to protect officers from the sometimes "hazy border[s]" of the law. Saucier v. Katz, 533 U.S. 194, 205, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). When a defendant asserts qualified immunity, the plaintiff must demonstrate: (i) that the defendant's actions violated his or her constitutional or statutory rights; and (ii) that the right was clearly established at the time of the alleged misconduct. See Riggins v. Goodman, 572 F.3d 1101, 1107 (10th Cir.2009).
The Supreme Court recently revisited the proper procedure for lower courts to evaluate a qualified immunity defense. In Pearson v. Callahan, the Supreme Court held that lower courts "should be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances of the particular case at hand." 555 U.S. at 236, 129 S.Ct. 808. The Supreme Court also noted that, while no longer mandatory, the protocol outlined in Saucier v. Katz—by which a court first decides if the defendant's actions violated the constitution, and then the court determines if the right violated was clearly established—will often be beneficial. See Pearson v. Callahan, 555 U.S. at 241, 129 S.Ct. 808. In rejecting the prior mandatory approach, the Supreme Court recognized that "[t]here are cases in which it is plain that a constitutional right is not clearly established but far from obvious whether in fact there is such a right," and that such an approach burdens district court and courts of appeals with "what may seem to be an essentially academic exercise." 555 U.S. at 237, 129 S.Ct. 808. The Supreme Court also recognized that the prior mandatory approach "departs from the general rule of constitutional avoidance and runs counter to the older, wiser judicial counsel not to pass on questions of constitutionality unless such adjudication is unavoidable." 555 U.S. at 241, 129 S.Ct. 808 (alterations omitted)(internal quotation marks omitted). See Reichle v. Howards, ___ U.S. ___, 132 S.Ct. 2088, 2093, 182 L.Ed.2d 985 (2012) (affirming Pearson v. Callahan's procedure and noting that deciding qualified immunity issues on the basis of a right being not "clearly established" by prior case law "comports with our usual reluctance to decide constitutional questions unnecessarily"). Once the plaintiff establishes an inference that the defendant's conduct violated a clearly established constitutional right, a qualified immunity defense generally fails. See Cannon v. City & Cnty. of Denver, 998 F.2d 867, 870-71 (10th Cir.1993).
The Supreme Court recognizes seven circumstances where district courts should proceed directly to and "should address only" the clearly established prong of the qualified immunity analysis: When (i) the first, constitutional violation question "is so factbound that the decision provides little guidance for future cases"; (ii)
In evaluating whether the right was clearly established, a district court considers whether the right was sufficiently clear that a reasonable government employee in the defendant's shoes would understand that what he or she did violated that right. See Casey v. W. Las Vegas Indep. Sch. Dist., 473 F.3d 1323, 1327 (10th Cir.2007). "A clearly established right is generally defined as a right so thoroughly developed and consistently recognized under the law of the jurisdiction as to be `indisputable' and `unquestioned.'" Lobozzo v. Colo. Dep't of Corr., 429 Fed. App'x. 707, 710 (10th Cir.2011) (unpublished) (quoting Zweibon v. Mitchell, 720 F.2d 162, 172-73 (D.C.Cir.1983)).
"Ordinarily, in order for the law to be clearly established, there must be a Supreme Court or Tenth Circuit decision on point, or the clearly established weight of authority from other courts must have found the law to be as the plaintiff maintains." Currier v. Doran, 242 F.3d 905, 923 (10th Cir.2001). See Medina v. City & Cnty. of Denver, 960 F.2d 1493, 1498 (10th Cir.1992). On the other hand, the Supreme Court has observed that it is generally not necessary to find a controlling decision declaring the "very action in question . . . unlawful." Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). "In determining whether the right was `clearly established,' the court assesses the objective legal reasonableness of the action at the time of the alleged violation and asks whether `the contours of the right [were] sufficiently clear that a reasonable official would understand that what he is doing violates that right.'" Holland ex rel. Overdorff v. Harrington, 268 F.3d 1179, 1186 (10th Cir.2001) (alteration in original)(quoting Saucier v. Katz, 533 U.S. at 202, 121 S.Ct. 2151). A court should inquire "whether the law put officials on fair notice that the described conduct was unconstitutional" rather than engage in "a scavenger hunt for cases with precisely the same facts." Pierce v. Gilchrist, 359 F.3d 1279, 1298 (10th Cir.2004).
The Supreme Court has clarified that the clearly established prong of the qualified immunity test is a very high burden for the plaintiff: "A Government official's conduct violates clearly established law when, at the time of the challenged conduct, the contours of a right are sufficiently clear that every reasonable official would have understood that what he is doing violates that right." Ashcroft v. al-Kidd, 131 S.Ct. at 2083. "In other words, `existing precedent must have placed the statutory or constitutional question beyond debate.'" Reichle v. Howards, 132 S.Ct. at 2093 (quoting Ashcroft v. al-Kidd, 131 S.Ct. at 2083). While a case directly on point is not required, the Supreme Court has held that "existing precedent must have placed the statutory or constitutional question beyond debate." Ashcroft v. al-Kidd, 131 S.Ct. at 2083. "The operation of this standard, however, depends substantially upon the level of generality at which the relevant `legal rule' is to be identified."
The Tenth Circuit held in Kerns v. Bader that, although "a case on point isn't required if the impropriety of the defendant's conduct is clear from existing case law," the law is not clearly established where "a distinction might make a constitutional difference." 663 F.3d at 1188 (emphasis in original). In Kerns v. Bader, dealing with the search of a home, the Tenth Circuit explained that the relevant question "wasn't whether we all have some general privacy interest in our home," but "whether it was beyond debate in 2005 that the officers' entry and search lacked legal justification." 663 F.3d at 1183 (emphasis added). Earlier Tenth Circuit cases, clarifying the level of generality at which a legal rule must be defined, applied a sliding scale to determine when the law is clearly established. See Casey v. City of Fed. Heights, 509 F.3d 1278, 1284 (10th Cir.2007) ("The more obviously egregious the conduct in light of prevailing constitutional principles, the less specificity is required from prior case law to clearly establish the violation."). "[W]hen an officer's violation . . . is particularly clear . . ., [the Tenth Circuit] does not require a second decision with greater specificity to clearly establish the law." Casey v. City of Fed. Heights, 509 F.3d at 1284. Furthermore, "general statements of the law are not inherently incapable of giving fair and clear warning. . . ." Hope v. Pelzer, 536 U.S. 730, 741, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002).
A contract is a legally enforceable promise that must consist of an offer, an acceptance, consideration, and mutual assent. See N.M.R.A., Civ. UJI 13-801. A person may breach a contract by failing to perform a contractual obligation when the performance is required, unless that performance is otherwise excused. See N.M.R.A., Civ. UJI 13-822. Incomplete performance is a breach of contract. See Cochrell v. Hiatt, 97 N.M. 256, 258-59, 638 P.2d 1101, 1103-04 (Ct.App.1981) (holding that, where the contract called for the roof to be restored to a "healthy" state and guaranteed the work for twenty-five years, because the roof leaked within the twenty-five year period, the defendant's performance was incomplete, and the defendant was in breach of the contract). Under New Mexico law, "[t]he elements of a breach-of-contract action are the existence of the contract, breach of the contract, causation, and damages." Abreu v. N.M. Children, Youth and Families Dep't, 797 F.Supp.2d 1199, 1247 (D.N.M.2011) (Browning, J.) (citing Camino Real Mobile Home Park P'ship v. Wolfe, 1995-NMSC-013, 119 N.M. 436, 442, 891 P.2d 1190, 1196 (1995), overruled on other grounds by Sunnyland Farms, Inc. v. Central N.M. Elec. Co-Op, Inc., 2013-NMSC-017, ___ N.M. ___, 301 P.3d 387).
McCasland v. Prather, 92 N.M. 192, 194, 585 P.2d 336, 338 (Ct.App.1978).
Applying these principles in Armijo v. N.M. Dep't of Transp., No. CIV. 08-0336 JB/ACT, 2009 WL 1329192 (D.N.M. Apr. 6, 2009) (Browning, J.), the Court found that a plaintiffs' allegations failed to state a claim for breach of contract. In support of the breach-of-contract claim, the plaintiff asserted that "the Department would follow state employment policies and procedure, and that the Department terminated him in breach of those policies without just cause." 2009 WL 1329192, at *7. The Court noted that the plaintiff did not "indicate what contractual provisions or employment policies the Department breached," and did not say "to what his employment contract entitles him or of what the Department deprived him." 2009 WL 1329192, at *7. The Court found that there was "not enough to determine whether, if taken as true, the Complaint's allegations would support claims for breach of contract." 2009 WL 1329192, at *8. On the other hand, the Court has previously determined that a pro se plaintiff sufficiently alleged that his counsel breached a contract for legal representation by alleging that his former counsel promised to represent the plaintiff at forfeiture proceedings, that the plaintiff paid the counsel, and that the counsel failed to represent the plaintiff. See Archuleta v. City of Roswell, 898 F.Supp.2d 1240, 1257-59 (D.N.M.2012) (Browning, J.).
"Additionally, in spite of the general bar on punitive damages for breach-of-contract cases, the Supreme Court of New Mexico has recognized that punitive damages may be recoverable under some circumstances for a breach of contract." Anderson Living Trust v. ConocoPhillips Co., LLC, 952 F.Supp.2d 979, 1030-31 (D.N.M.2013) (Browning, J.). As the Supreme Court of New Mexico stated in Romero v. Mervyn's, 109 N.M. 249, 784 P.2d 992 (1989): "Our previous cases clearly establish that, in contract cases not involving insurance, punitive damages may be recovered for breach of contract when the defendant's conduct was malicious, fraudulent, oppressive, or committed recklessly with a wanton disregard for the plaintiff's rights." 109 N.M. at 255, 784 P.2d at 998. Punitive damages are not available when a breaching party's conduct was "solely gross negligence. . . . In addition to, or in lieu of, such negligence there must be evidence of an `evil motive' or a `culpable mental state.'" Paiz v. State Farm Fire & Cas. Co., 118 N.M. 203, 211, 880 P.2d 300, 308 (1994). The Supreme Court of New Mexico has defined "reckless disregard" sufficient for an award of punitive damages as "when the defendant knows of potential harm to the interests of the plaintiff but nonetheless utterly fails to exercise care to avoid the harm." Paiz v. State Farm Fire & Cas. Co., 118 N.M. at 211, 880 P.2d at 308 (secondary quotations and citation omitted). A defendant does not act with reckless disregard to a plaintiff's rights merely by failing "to exercise even slight care," absent the requisite "culpable or evil state of mind." Paiz v. State Farm Fire & Cas. Co., 118 N.M. at 211, 880 P.2d at 308 (secondary quotations and citation omitted). The New Mexico Civil Jury Instructions define the elements necessary for an award of punitive damages for a breach of contract as follows:
N.M.R.A., Civ. UJI 13-861.
The Fourth Amendment protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV. It also commands that "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." U.S. Const. amend. IV. In determining whether a Fourth Amendment violation has occurred, courts must "assur[e] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted." United States v. Jones, ___ U.S. ___, 132 S.Ct. 945, 950, 181 L.Ed.2d 911 (2012) (Scalia, J.) (alteration in original) (quoting Kyllo v. United States, 533 U.S. 27, 31, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001) (Scalia, J.)).
"Not all searches require a warrant. The hallmark of the Fourth Amendment is reasonableness." United States v. Harmon, 785 F.Supp.2d 1146, 1157 (D.N.M.2011) (Browning, J.). See United States v. McHugh, 639 F.3d 1250, 1260 (10th Cir.2011) ("[T]he ultimate touchstone of the Fourth Amendment is `reasonableness.'")(quoting Brigham City, Utah v. Stuart, 547 U.S. 398, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006)). "In the criminal context, reasonableness usually requires a showing of probable cause." Herrera v. Santa Fe Pub. Sch., 792 F.Supp.2d 1174, 1184 (D.N.M.2011) (Browning, J.)(quoting Bd. of Educ. of Indep. Sch. Dist. No. 92 of Pottawatomie Cnty. v. Earls, 536 U.S. 822, 828, 122 S.Ct. 2559, 153 L.Ed.2d 735 (2002)). The Supreme Court has stated in the law enforcement context that "searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions." Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (footnotes omitted).
The defendant in United States v. Jones was suspected of drug trafficking, and a joint Federal Bureau of Investigation and District of Columbia Metropolitan Police Department task force obtained a warrant authorizing installation in Washington, D.C., within ten days, of a Global Positioning System device to the defendant's car. See 132 S.Ct. at 948. On the eleventh day, task force agents attached the GPS device to the bottom of the defendant's car while the car was in Maryland. The agents then used the GPS device to track the defendant's movements over the next twenty-eight days, replacing the battery once, and collecting over two-thousand pages of data sent from the device. See 132 S.Ct. at 948.
The Honorable Antonin G. Scalia, Associate Justice of the Supreme Court, writing for the majority, in which Chief Justice Roberts and Justices Kennedy, Thomas, and Sotomayor joined, held that "the Government's installation of a GPS device on a target's vehicle, and its use of that device to monitor the vehicle's movements, constitutes a `search.'" 132 S.Ct. at 949. Justice Scalia reasoned that the United States's conduct was a Fourth Amendment search, because the government trespassed on a constitutionally protected area. See 132 S.Ct. at 949 ("The Fourth
Justice Scalia reasoned that the Fourth Amendment's text supports taking a property law based approach to determine whether there is a search, but did not shy away from the fact that, in recent history, the Supreme Court had deviated from this approach:
132 S.Ct. at 949-50.
The United States had contended that, under the "Harlan standard"—i.e., the Katz v. United States reasonable-expectation-of-privacy approach—"no search occurred here, since Jones had `no reasonable expectation of privacy' in the area of the Jeep accessed by the Government agents (its underbody) and in the locations of the Jeep on the public roads, which were visible to all." 132 S.Ct. at 950. Justice Scalia concluded, however, that the Supreme Court "need not address the Government's contentions" in relation to the Katz v. United States reasonable-expectation-of-privacy test analysis, because the trespass-based search approach, which existed at the time of the Fourth Amendment's adoption, disposed of the issue:
132 S.Ct. at 950-51 (some alteration in original) (footnotes omitted).
In her concurrence, Justice Sotomayor agreed that "the trespassory test applied in the majority's opinion reflects an irreducible constitutional minimum: When the Government physically invades personal property to gather information, a search occurs. The reaffirmation of that principle suffices to decide this case." 132 S.Ct. at 955 (Sotomayor, J., concurring). She continued:
132 S.Ct. at 954-55 (Sotomayor, J., concurring). Justice Sotomayor's concurrence focused on the reality, in her view, that,
132 S.Ct. at 955 (Sotomayor, J., concurring)(alteration in original)(quoting the majority opinion, 132 S.Ct. at 953).
Justice Alito, joined by Justices Ginsburg, Breyer, and Kagan, concurred in the judgment only, reasoning that, although he agreed with the result, given the use of twenty-first century technology, he would have analyzed whether the government's long-term monitoring of the defendant violated the Katz v. United States reasonable-expectation-of-privacy test:
132 S.Ct. at 957-58 (Alito, J., concurring in the judgment). Justice Alito first took issue with what he called the majority's "questionable proposition that the[] two procedures [of attaching and using a GPS device] cannot be separated for Fourth amendment purposes." 132 S.Ct. at 958. Justice Alito submitted that, "[i]f these two procedures are analyzed separately, it is not at all clear from the Court's opinion why either should be regarded as a search." 132 S.Ct. at 958.
Justice Alito contended that the majority's opinion suggests that "the concept of a search, as originally understood, comprehended any technical trespass that led to the gathering of evidence," but disagreed with the majority, stating: "[W]e know this is incorrect." 132 S.Ct. at 958. Justice Alito pointed out that the open-fields doctrine grew out of the distinction between a physical intrusion of any private property and property that is part of a home: "At common law, any unauthorized intrusion on private property was actionable, but a trespass on open fields . . . does not fall within the scope of the Fourth Amendment because private property outside the curtilage is not part of a `hous[e]' within the meaning of the Fourth Amendment." 132 S.Ct. at 958-959 (Alito, J., concurring in the judgment) (quoting Oliver v. United States, 466 U.S. 170, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984)).
Justice Alito asserted that the trespass-based approach that the majority used was "repeatedly criticized" and ultimately "repudiated," based largely on its incompatibility with cases involving wiretapping and eavesdropping surveillance. United States v. Jones, 132 S.Ct. at 959, 960 (Alito, J., concurring in the judgment). Justice Alito contended that "the majority is hard pressed to find support in post-Katz cases for its trespass-based" decision that, when the United States attached the GPS device to Jones' Jeep, it trespassed on his effects and performed a Fourth Amendment search. 132 S.Ct. at 960-61. Justice Alito pointed to multiple problems that he believes the majority's trespass-based approach creates. First, he asserted that the majority's analysis is irreconcilable with the element of the United States' conduct that he contends society would find offensive—the GPS-monitoring and not the attachment of the device. If the United States could follow a car without physically trespassing on a person, home, paper, or effect, such as remotely monitoring a car via an internal GPS device, this monitoring would not constitute a Fourth Amendment search under the majority's analysis. See 132 S.Ct. at 961. Second, along the same lines, Justice Alito pointed out an "incongruous result[]" from the majority's opinion that a short-term tracking of a vehicle with a GPS device, merely tracking a vehicle down a single street, is a Fourth Amendment search, while, "if the police follow the same car for a much longer period using unmarked cars and aerial assistance, this tracking is not subject to any Fourth Amendment constraints." 132 S.Ct. at 961. Justice Alito also asserted that, by tying Fourth Amendment searches to property law and trespass concepts, the Fourth Amendment's protections "may vary from State
In Florida v. Jardines, ___ U.S. ___, 133 S.Ct. 1409, 185 L.Ed.2d 495 (2013), Justice Scalia, writing for the majority once again, held that using a drug-sniffing dog to sniff a person's "home and its immediate surroundings" is a Fourth Amendment search. 133 S.Ct. at 1417-18. Justices Thomas, Ginsburg, Sotomayor, and Kagan joined Justice Scalia's majority opinion in Florida v. Jardines. The Honorable Elena Kagan, Associate Justice, filed a separate concurring opinion, in which Justices Ginsburg and Sotomayor joined, adding "further thoughts, suggesting that a focus on Jardines' privacy interests would make `an easy cas[e] easy' twice over," but "join[ing] the Court's opinion in full." 133 S.Ct. at 1420 (Kagan, J., concurring). Justice Alito dissented, and Chief Justice Roberts, Justice Kennedy, and Justice Breyer joined his opinion.
In Florida v. Jardines, based on a tip that the defendant, Jardines, was growing marijuana in his home, the Miami-Dade, Florida, police department and the Drug Enforcement Administration sent a surveillance team to Jardines' home. See 133 S.Ct. at 1413. Observing nothing of note in the first fifteen minutes watching the home, two detectives approached the home accompanied by a dog trained to detect marijuana, cocaine, heroin, and several other drugs by alerting the detectives with behavioral changes. See 133 S.Ct. at 1413. As the dog approached Jardines' front porch, the dog "apparently sensed one of the odors he had been trained to detect," and after tracking back and forth, sat at the base of the front door, "which is the trained behavior upon discovering the odor's strongest point." 133 S.Ct. at 1413. The dog's handler then immediately left the porch, and told the other agents and officers at the scene that there had been a positive alert for drugs, at which time the officers applied for and received a search warrant for the residence, the execution of which revealed marijuana plants. See 133 S.Ct. at 1413. Jardines was arrested for trafficking in marijuana and moved to suppress the evidence based on an illegal search. See 133 S.Ct. at 1413.
Justice Scalia held that the use of a drug-sniffing dog was a Fourth Amendment search, reasoning:
133 S.Ct. at 1414. Justice Scalia noted that "[t]he Fourth Amendment `indicates with some precision the places and things encompassed by its protections': persons, houses, papers, and effects." 133 S.Ct. at 1414 (quoting Oliver v. United States, 466 U.S. at 176, 104 S.Ct. 1735). Thus, the Fourth Amendment does not cover every "investigation[] on private property; for example, an officer may (subject to Katz) gather information in what we have called `open fields'—even if those fields are privately owned—because such fields are not enumerated in the Amendment's text." 133 S.Ct. at 1414.
Justice Scalia held that "the officers' investigation took place in a constitutionally protected area," the home, as the front porch is the home's curtilage. See 133 S.Ct. at 1414-15. Justice Scalia then "turn[ed] to the question of whether it was
133 S.Ct. at 1415. Justice Scalia noted that, while society recognizes an implicit license which "typically permits the visitor to approach the home by the front path, knock promptly, wait briefly to be received, and then (absent invitation to linger longer) leave," he concluded that "introducing a trained police dog to explore the area around the home in hopes of discovering incriminating evidence is something else. There is no customary invitation to do that." 133 S.Ct. at 1415-16 (emphasis in original). Justice Scalia explained:
133 S.Ct. at 1416.
The State of Florida argued "that investigation by a forensic narcotics dog by definition cannot implicate any legitimate privacy interest." 133 S.Ct. at 1417. The State of Florida cited to United States v. Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983), United States v. Jacobsen, 466 U.S. 109, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984), and Illinois v. Caballes, 543 U.S. 405, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005), "which held, respectively, that canine inspection of luggage in an airport, chemical testing of a substance that had fallen from a parcel in transit, and canine inspection of an automobile during a lawful traffic stop, do not violate the `reasonable expectation of privacy' described in Katz." 133 S.Ct. at 1417. Justice Scalia pointed out that, in United States v. Jones, the
133 S.Ct. at 1417.
Justice Kagan wrote a concurring opinion, noting: "The Court today treats this case under a property rubric; I write separately to note that I could just as happily have decided it by looking to Jardines' privacy interests." 133 S.Ct. at 1418 (Kagan, J., concurring). Justice Kagan analogized the government's conduct in using a drug sniffing dog on Jardines' porch to a stranger coming to the front door, who "doesn't knock or say hello," but instead, peers through the windows "into your home's furthest corners" with "super-high-powered binoculars," and "in just a couple of minutes, his uncommon behavior allows him to learn details of your life you disclose to no one." 133 S.Ct. at 1418 (Kagan, J., concurring). This conduct, she posited, is a trespass which exceeds any implied license and is also an invasion of reasonable expectations of privacy; she argued that, like her analogy, the facts in Florida v. Jardines likewise involved a trespass and a violation of privacy expectations:
133 S.Ct. at 1418 (Kagan, J., concurring). According to Justice Kagan, had she written the majority opinion based on the Katz v. United States reasonable-expectations-of-privacy search test,
133 S.Ct. 1409, 1418-19 (Kagan, J., concurring).
Justice Alito's dissenting opinion, in which Chief Justice Roberts, and Justices Kennedy and Breyer, joined, submitted that "[t]he Court's decision in this important Fourth Amendment case is based on a putative rule of trespass law that is nowhere to be found in the annals of Anglo-American jurisprudence." 133 S.Ct. at 1420 (Alito, J., dissenting). Justice Alito noted that general trespass law permits a license to public members to use a walkway to approach a house's door, including strangers such as mailmen and solicitors, and the majority's conclusion that "the police officer in this case, Detective Bartelt, committed a trespass because he was accompanied during his otherwise lawful visit to the front door of respondent's house by his dog, Franky," is without a sound basis in trespass law. 133 S.Ct. at 1420-21 (Alito, J., dissenting). Justice Alito also asserted that decision is inconsistent with the Katz v. United States' reasonable-expectations-of-privacy test: "A reasonable person understands that odors emanating from a house may be detected from locations that are open to the public, and a reasonable person will not count on the strength of those odors remaining within the range that, while detectible by a dog, cannot be smelled by a human." Florida v. Jardines, 133 S.Ct. at 1421 (Alito, J., dissenting).
Justice Alito contended that the majority's opinion that the detective "exceeded the boundaries of the license to approach the house that is recognized by the law of trespass, . . . is unfounded." 133 S.Ct. at 1421 (Alito, J., dissenting). Justice Alito pointed out that the law of trespass does not distinguish between visitors or reasons for the visit in granting an implied license to approach a house's front door. See 133 S.Ct. at 1421-22 (Alito, J., dissenting). He also asserted: "As I understand the law of trespass and the scope of the implied license, a visitor who adheres to these limitations is not necessarily required to ring the doorbell, knock on the door, or attempt to speak with an occupant," and uses mail carriers as an example of such a visitor. 133 S.Ct. at 1423 (Alito, J., dissenting). Justice Alito pointed out that the implied license also applies to law enforcement and cited to Kentucky v. King, ___ U.S. ___, 131 S.Ct. 1849, 179 L.Ed.2d 865 (2011), in which the Supreme Court held that law enforcement officers approaching the front door of a residence to conduct a "knock and talk" is not a Fourth Amendment search. Florida v. Jardines, 133 S.Ct. at 1423 (Alito, J., concurring). Given that "Detective Bartelt did not exceed the scope of the license to approach respondent's front door," Justice Alito took issue with the majority's conclusion "that Detective Bartelt went too far because he had the `objectiv[e] . . . purpose to conduct a search.'" 133 S.Ct. at 1423 (Alito, J., dissenting)(emphasis in original). According to Justice Alito, because approaching a house to conduct a knock and talk is not a search,
133 S.Ct. at 1424 (Alito, J., dissenting)(emphasis in original)(internal citations omitted). Justice Alito thus concluded: "For these reasons, the real law of trespass provides no support for the Court's holding today. While the Court claims that its reasoning has `ancient and durable roots,' its trespass rule is really a newly struck counterfeit." 133 S.Ct. at 1424 (Alito, J., dissenting)(internal citations omitted).
Justice Alito did not look any more favorably upon Justice Kagan's conclusion that Detective Bartelt's conduct violated Jardines' reasonable privacy expectations, asserting:
133 S.Ct. at 1424 (Alito, J., dissenting). Justice Kagan asserted that Detective Bartelt's use of Franky, the drug-sniffing dog, was an invasion of Jardines' privacy in his home, because the government's conduct was similar to the conduct in Kyllo v. United States, in which the Supreme Court held that using a thermal imaging device to monitor movements in a home was a Fourth Amendment search. Justice Alito pointed out that "[t]his Court . . . has already rejected the argument that the use of a drug-sniffing dog is the same as the use of a thermal imaging device. The very argument now advanced by the concurrence appears in Justice Souter's Caballes dissent. But the Court was not persuaded." 133 S.Ct. at 1425 (Alito, J., dissenting)(internal citations omitted)(citing Illinois v. Caballes, 543 U.S. at 409-10 and 413 n. 3, 125 S.Ct. 834). Justice Alito contended that "Kyllo is best understood as a decision about the use of new technology.. . . A dog, however, is not a new form of `technology' or a `device.' And, as noted, the use of dogs' acute sense of smell in law enforcement dates back many centuries." 133 S.Ct. at 1425 (Alito, J., dissenting). Justice Alito therefore concluded that the government's conduct in Florida v. Jardines "did not constitute a trespass and did not violate respondent's reasonable expectations of privacy. I would hold that this conduct was not a search, and I therefore respectfully dissent." 133 S.Ct. at 1426.
The Tenth Circuit has referred to the test whether a particular search implicates a defendant's Fourth Amendment interests—whether the search violates the defendant's reasonable privacy expectation— as one of "standing." E.g., United States v. Creighton, 639 F.3d 1281, 1286 (10th Cir.2011) ("The Defendant has the burden of establishing . . . standing, or, in other words, a subjective expectation of privacy in the [item searched] that society is prepared to recognize as reasonable."); United
In Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), the Supreme Court disapproved of labeling the inquiry whether a search implicates a defendant's personal Fourth Amendment interests "as one of standing, rather than simply recognizing it as one involving the substantive question of whether or not the proponent of the motion to suppress had his own Fourth Amendment rights infringed by the search and seizure which he seeks to challenge." 439 U.S. at 133, 99 S.Ct. 421. Dispensing with this label, the Supreme Court noted:
439 U.S. at 138-39, 99 S.Ct. 421. The Supreme Court emphasized:
439 U.S. at 139-40, 99 S.Ct. 421. In Minnesota v. Carter, the Supreme Court recognized that Rakas v. Illinois put an end to the Fourth Amendment standing analysis as separate from the substantive Fourth Amendment search analysis:
525 U.S. at 87-88, 119 S.Ct. 469. The Supreme Court has thus noted that the analysis under either approach—the substantive Fourth Amendment doctrine that the rights that the Amendment secures are personal versus the separate notion of "standing"—is the same and that Katz v. United States' reasonable-expectation-of-privacy analysis has now been classified as a substantive Fourth Amendment test, as opposed to a standing test. Rakas v. Illinois, 439 U.S. at 139, 99 S.Ct. 421.
Rakas v. Illinois, 439 U.S. at 139, 99 S.Ct. 421 (footnote omitted). This development is in line with the Supreme Court's guidance that the analysis "is more properly subsumed under substantive Fourth Amendment doctrine." Rakas v. Illinois, 439 U.S. at 139, 99 S.Ct. 421.
A Fourth Amendment search occurs either where the government, to obtain information, trespasses on a person's property or where the government, to collect information, violates a person's subjective expectation of privacy that society recognizes as reasonable. See United States v. Jones, 132 S.Ct. at 947. "[T]he Katz reasonable-expectation-of-privacy test has been added to, not substituted for, the common-law trespassory test." United States v. Jones, 132 S.Ct. at 947 (emphasis in original) (citing Alderman v.
The Fourth Amendment "establishes a simple baseline, one that for much of our history formed the exclusive basis for its protections: When `the Government obtains information by physically intruding' on persons, houses, papers, or effects, `a `search' within the original meaning of the Fourth Amendment' has `undoubtedly occurred.'" Florida v. Jardines, 133 S.Ct. at 1414 (quoting United States v. Jones, 132 S.Ct. at 950 n. 3 ("[A] `search' within the original meaning of the Fourth Amendment" occurs "[w]here . . . the Government obtains information by physically intruding on a constitutionally protected area.")). "[A]n actual trespass," however, "is neither necessary nor sufficient to establish a constitutional violation." United States v. Jones, 132 S.Ct. at 951 n. 5 (Scalia, J.)(emphasis omitted) (quoting United States v. Karo, 468 U.S. 705, 713, 104 S.Ct. 3296, 82 L.Ed.2d 530 (1984)).
In determining whether a search has occurred, "[t]resspass alone does not qualify, but there must be conjoined with that . . . an attempt to find something or to obtain information." United States v. Jones, 132 S.Ct. at 951 n. 5. The Supreme Court has also noted that "[p]hysically invasive inspection is simply more intrusive than purely visual inspection." Bond v. United States, 529 U.S. 334, 337, 120 S.Ct. 1462, 146 L.Ed.2d 365 (2000). Moreover, the Supreme Court in Florida v. Jardines suggested that the trespass-based analysis applies only when the trespass occurs in one of the four places or things listed in the Fourth Amendment:
133 S.Ct. at 1414.
In United States v. Alabi, 943 F.Supp.2d 1201 (D.N.M.2013) (Browning, J.), the Court analyzed whether the Secret Service's digital scan of electronic information contained in the defendants' credit and debit cards' magnetic strips was a Fourth Amendment search under a trespass-based analysis, concluding that it was not, because the Secret Service properly possessed the credit and debit cards, and the additional act of scanning the cards to read the virtual data contained on the strips did not involve a physical intrusion or physical penetration of space. See 943 F.Supp.2d at 1264-65. The Court noted that, "[e]ven if the Supreme Court were to extend the trespass-based analysis for Fourth Amendment searches to virtual invasions, the Secret Service's conduct scanning the thirty-one credit and debit cards still would not amount to a Fourth Amendment search," because the magnetic strip, as opposed to the credit or debit card separately, is not a constitutionally protected area. 943 F.Supp.2d at 1267-68.
943 F.Supp.2d at 1273 (alteration in original).
The Court has noted that, in light of the Supreme Court's recent decisions in Florida v. Jardines and United States v. Jones, both of which Justice Scalia wrote for the majority, and both of which analyze whether government conduct constituted a Fourth Amendment search using the trespass-based approach, "the question arises whether the Katz v. United States reasonable-expectation-of-privacy test is still good law." United States v. Alabi, 943 F.Supp.2d at 1242 (citing Minnesota v. Carter, 525 U.S. 83, 97-98, 119 S.Ct. 469, 142 L.Ed.2d 373 (1998) (Scalia, J. concurring)). Justice Scalia has consistently criticized this "notoriously unhelpful test":
Minnesota v. Carter, 525 U.S. at 97-98, 119 S.Ct. 469 (Scalia, J., concurring) (emphasis in original) (internal citations omitted).
In June, 2013, Justice Scalia dissented from the Supreme Court's decision in Maryland v. King, ___ U.S. ___, 133 S.Ct. 1958, 186 L.Ed.2d 1 (2013), in which the Supreme Court held that "DNA identification of arrestees is a reasonable search that can be considered part of a routine booking procedure," 133 S.Ct. at 1980. Justice Scalia criticized the majority's opinion for analogizing DNA testing to taking an arrestee's photograph by citing to Katz v. United States and pointing out that "we have never held that merely taking a person's photograph invades any recognized `expectation of privacy.'" Maryland v. King, 133 S.Ct. at 1986 (Scalia, J., dissenting). Justice Scalia also pointed out that a person's "privacy-related concerns" in their body are weighty:
Maryland v. King, 133 S.Ct. at 1982 (Scalia J., dissenting)(emphasis in original). Justice Scalia also suggested that the Founders would have shared these privacy-related concerns:
Maryland v. King, 133 S.Ct. at 1989 (Scalia J., dissenting). The Court therefore concludes that Justice Scalia and the Supreme Court may still rely on a person's privacy expectation when determining whether a search is reasonable for Fourth Amendment purposes, although Justice Scalia may not turn to the expectations prong until he runs the facts through the trespass prong. See Apodaca v. New Mexico Adult Probation and Parole, 998 F.Supp.2d 1160, 1175, No. CIV 13-0113 JB/SMV, 2014 WL 712588, at *14 (D.N.M. Feb. 13, 2014) (Browning, J.) (reaching this conclusion).
"`Fourth Amendment rights are personal rights which, like some other constitutional rights, may not be vicariously
"Official conduct that does not `compromise any legitimate interest in privacy' is not a search subject to the Fourth Amendment." Illinois v. Caballes, 543 U.S. at 409, 125 S.Ct. 834 (quoting United States v. Jacobsen, 466 U.S. at 123, 104 S.Ct. 1652). The Supreme Court has thus recognized that, rather than determining whether law enforcement conduct was a search, it sometimes proves easier to "assess[] when a search is not a search." Kyllo v. United States, 533 U.S. at 32, 121 S.Ct. 2038.
Kyllo v. United States, 533 U.S. at 32-33, 121 S.Ct. 2038. The Supreme Court thus articulated the Katz v. United States rule—which Professor Wayne R. LaFave has noted is "somewhat inaccurately stated as the `reasonable expectation of privacy' test," Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 2.1(b), at 435 (4th ed.2004) (citing Anthony G. Amsterdam, Perspectives on the Fourth Amendment, 58 Minn. L.Rev. 349, 383-388 (1974)) (criticizing this formulation of the standard and explaining that "the common formula for Katz fails to capture Katz at any point because the Katz decision was written to resist captivation in any formula")—which posits: "[A] Fourth Amendment search does not occur. . . unless `the individual manifested a subjective expectation of privacy in the object of the challenged search,' and `society [is] willing to recognize that expectation as reasonable.'" Kyllo v. United States, 533 U.S. at 33, 121 S.Ct. 2038 (emphasis in original)(quoting California v. Ciraolo, 476 U.S. at 211, 106 S.Ct. 1809).
A "reasonable expectation of privacy" is "said to be an expectation `that has a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society.'" United States v. Jones, 132 S.Ct. at 951. See United States v. Harmon, 785 F.Supp.2d at 1157 ("To decide whether a reasonable expectation of privacy exists, courts consider concepts of real or personal property law. . . ."). In analyzing whether an expectation of privacy is reasonable in the Fourth Amendment context based on property law, "arcane distinctions developed in property and tort law between guests, licensees, invitees, and the like, ought not to control." Rakas v. Illinois, 439 U.S. at 143 & n. 12, 99 S.Ct. 421. While ownership or lawful possession is not determinative under the Katz v. United States reasonable-expectation-of-privacy test, it is often a dispositive factor; because the Fourth Amendment is a personal right, a defendant bears the burden
A defendant maintains a subjective expectation of privacy when the defendant "has shown that `he sought to preserve something as private.'" Bond v. United States, 529 U.S. at 338, 120 S.Ct. 1462 (internal alterations omitted) (quoting Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979)). Thus, there is no reasonable expectation of privacy in otherwise private information disclosed to a third party. Under the Katz v. United States expectation-of-privacy test— although perhaps not under United States v. Jones and Florida v. Jardines—"[t]he Fourth Amendment protects people, not places. What a person knowingly exposes to the public . . . is not a subject of Fourth Amendment protection." Katz v. United States, 389 U.S. at 351, 88 S.Ct. 507. The Supreme Court has noted:
United States v. Miller, 425 U.S. at 443, 96 S.Ct. 1619.
The Supreme Court has recognized, however, that subjective expectations of privacy do not always coincide with the interests that the Fourth Amendment is universally thought to protect. In Smith v. Maryland, for instance, the Supreme Court identified situations in which it would not follow the subjective approach:
442 U.S. at 740 n. 5, 99 S.Ct. 2577. Most recently, in Jones v. United States, Justice Sotomayor commented that, given the reality of technology in the twenty-first century, it may no longer be sound to universally hold to the third-party disclosure rule to determine whether a subjective expectation of privacy exists:
132 S.Ct. at 957 (Sotomayor, J., concurring) (internal citations omitted). Regardless what the Supreme Court decides to do with social media on the internet, only the most ignorant or gullible think what they post on the internet is or remains private. See United States v. Meregildo, 883 F.Supp.2d 523, 526 (S.D.N.Y.2012) (Pauley, J.) (holding that a person posting to his Facebook profile had "no justifiable expectation that his `friends' would keep his profile private").
Under the second step of Katz v. United States' reasonable-expectation-of-privacy approach, courts must determine "whether society is prepared to recognize that [subjective privacy] expectation as objectively reasonable." United States v. Ruiz, 664 F.3d 833, 838 (10th Cir.2012). The Supreme Court has cautioned: "The concept of an interest in privacy that society is prepared to recognize as reasonable is, by its very nature, critically different from the mere expectation, however well justified, that certain facts will not come to the attention of the authorities." United States v. Jacobsen, 466 U.S. 109, 122, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984). Determining whether society would view the expectation as objectively reasonable turns on whether the government's intrusion infringes on a legitimate interest, based on the values which the Fourth Amendment protects. See California v. Ciraolo, 476 U.S. at 212, 106 S.Ct. 1809 (explaining that "[t]he test of legitimacy is not whether the individual chooses to conceal assertedly `private' activity," but instead "whether the government's intrusion infringes upon the personal and societal values protected by the Fourth Amendment") (quoting Oliver v. United States, 466 U.S. at 181-83, 104 S.Ct. 1735). This second factor of the Katz v. United States reasonable-expectation-of-privacy analysis developed from Justice Harlan's "attempt to give content to the word `justifiably' in the majority's assertion that eavesdropping on Katz was a search because it `violated the privacy upon which he justifiably relied while using the telephone booth.'" LaFave, supra § 2.1(d), at 439 (quoting Katz v. United States, 389 U.S. at 353, 88 S.Ct. 507). Thus, whether society will recognize a certain expectation of privacy does not turn
Oliver v. United States, 466 U.S. at 177-78, 104 S.Ct. 1735 (internal citations omitted).
The Supreme Court has held that "[o]fficial conduct that does not `compromise any legitimate interest in privacy' is not a search subject to the Fourth Amendment." Illinois v. Caballes, 543 U.S. at 409, 125 S.Ct. 834 (quoting United States v. Jacobsen, 466 U.S. at 123, 104 S.Ct. 1652). In United States v. Place, the Supreme Court held that the "canine sniff of a drug-sniffing dog does "not constitute a `search' within the meaning of the Fourth Amendment." United States v. Place, 462 U.S. at 707, 103 S.Ct. 2637. The case arose when law enforcement seized the luggage of an airline passenger and transported it to another location, where a drug-sniffing dog could sniff it. See 462 U.S. at 699, 103 S.Ct. 2637. The drug sniffing dog alerted the officers that drugs were in the luggage, the officers obtained a search warrant, and, upon opening the bags, the officers found over one-thousand grams of cocaine. See 462 U.S. at 699, 103 S.Ct. 2637. While recognizing that a person has a reasonable expectation of privacy in the contents of his or her luggage, the Supreme Court held that the dog's sniff test was not a Fourth Amendment search and emphasized the unique nature of the investigative technique, which could disclose only criminal activity:
462 U.S. at 707, 103 S.Ct. 2637.
In United States v. Jacobsen, the Supreme Court extended this holding to the chemical field test of a white powdery substance to reveal that the substance was cocaine. See 466 U.S. at 122-24, 104 S.Ct. 1652. A Federal Express employee and supervisor had opened a damaged package, and exposed four zip-lock plastic bags containing six and one-half ounces of white powder. See 466 U.S. at 111, 104 S.Ct. 1652. They then called the DEA and repacked the contents in the original packaging, before they provided the package to the DEA officers. See 466 U.S. at 111, 104 S.Ct. 1652. When the agents arrived, the agents removed the exposed plastic bags from the broken package, opened each of the four bags, and field-tested the white powder, identifying the powder as cocaine. See 466 U.S. at 111-12, 104 S.Ct. 1652. The Supreme Court first held that removal of the plastic bags from the tubes and the agent's visual inspection were not Fourth Amendment searches:
466 U.S. at 120, 104 S.Ct. 1652 (footnote omitted). The Supreme Court noted: "The question remains whether the additional intrusion occasioned by the field test, which had not been conducted by the Federal Express agents and therefore exceeded the scope of the private search, was an unlawful `search' or `seizure' within the meaning of the Fourth Amendment." United States v. Jacobsen, 466 U.S. at 122, 104 S.Ct. 1652. The Supreme Court, relying on United States v. Place, held that the additional digital scan of the white substance was not a Fourth Amendment search, because the test discloses only whether the substance is cocaine and "nothing [else] of special interest":
United States v. Jacobsen, 466 U.S. at 122-24, 104 S.Ct. 1652.
Most recently, where a "dog sniff was performed on the exterior of respondent's car while he was lawfully seized for a traffic violation," the Supreme Court, again relying on United States v. Place and also on United States v. Jacobsen, held that "[a]ny intrusion on respondent's privacy expectations does not rise to the level of a constitutionally cognizable infringement." Illinois v. Caballes, 543 U.S. at 409, 125 S.Ct. 834.
Illinois v. Caballes, 543 U.S. at 409-10, 125 S.Ct. 834.
In United States v. Alabi, the defendants possessed thirty-one credit and debit cards, "many of them in their own names, several of which had information on the magnetic strips that related to persons other than the Defendants." 943 F.Supp.2d at 1275. The Court reluctantly accepted the defendants' assertion that they "subjectively intended not to disclose
"[B]ecause `the ultimate touchstone of the Fourth Amendment is reasonableness,'" when a search implicating the Fourth Amendment has occurred, the district court must determine whether the search is reasonable. Kentucky v. King, 131 S.Ct. at 1856 (quoting Brigham City v. Stuart, 547 U.S. 398, 403, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006)). See Samson v. California, 547 U.S. 843, 848, 126 S.Ct. 2193, 165 L.Ed.2d 250 (2006) ("`[U]nder our general Fourth Amendment approach' we `examin[e] the totality of the circumstances' to determine whether a search is reasonable within the meaning of the Fourth Amendment.") (quoting United States v. Knights, 534 U.S. 112, 118, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001)). "Although the Fourth Amendment ordinarily requires the degree of probability embodied in the term `probable cause,' a lesser degree satisfies the Constitution when the balance of governmental and private interests makes such a standard reasonable." United States v. Knights, 534 U.S. at 121, 122 S.Ct. 587 (citing, as an e.g. cite, Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). The Supreme Court has justified this balancing test with the recognition that "[t]he Fourth Amendment does not protect all subjective expectations of privacy, but only those that society recognizes as `legitimate.'" Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 654, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995) (quoting New Jersey v. T.L.O., 469 U.S. 325, 338, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985)).
"Whether a search is reasonable `is determined by assessing, on the one hand, the degree to which it intrudes upon an individual's privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.'" Samson v. California, 547 U.S. at 848, 126 S.Ct. 2193 (quoting United States v. Knights, 534 U.S. at 118, 122 S.Ct. 587). See Banks v. United States, 490 F.3d 1178, 1184 (10th Cir.2007) (stating that the Supreme Court "described the totality-of-the-circumstances test as one where `the reasonableness of a search is determined by assessing, on the one hand, the degree to which it intrudes upon an individual's privacy, and on the other, the degree to which it is needed for the promotion of legitimate governmental interests'" (quoting United States v. Knights, 534 U.S. at 119-20, 122 S.Ct. 587)).
Vernonia Sch. Dist. 47J v. Acton, 515 U.S. at 652-53, 115 S.Ct. 2386 (1995) (quoting Skinner v. Ry. Labor Executives' Ass'n, 489 U.S. 602, 617, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989)). The Supreme Court has held that the test of reasonableness under the Fourth Amendment is not a concrete test:
Bell v. Wolfish, 441 U.S. 520, 559, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979).
In analyzing the first factor—the intrusion on the individual's privacy—courts and the Tenth Circuit look to the individual's privacy expectations. See, e.g., United States v. Knights, 534 U.S. 112, 119-120, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001) (noting that the petitioner had a "significantly diminished . . . reasonable expectation of privacy," because a condition of his probation was to consent to search of his apartment without notice or probable cause, and because he was clearly notified and informed of the provision); Banks v. United States, 490 F.3d at 1186-87 (noting that the plaintiffs, convicted felons on probation, have a more limited expectation of privacy than the ordinary citizen, noting: "Those who have never been convicted of a felony are the last distinct category. What is `reasonable' under the fourth amendment for a person on conditional release, or a felon, may be unreasonable for the general population."); Boling v. Romer, 101 F.3d 1336, 1340 (10th Cir.1996) ("[W]hile obtaining and analyzing the DNA or saliva of an inmate convicted of a sex offense is a search and seizure implicating Fourth Amendment concerns, it is a reasonable search and seizure. This is so in light of an inmate's diminished privacy rights. . . .")
As Justice Kagan has noted, property law informs society's expectations about what government intrusions are reasonable: "It is not surprising that in a case involving a search of a home, property concepts and privacy concepts should so align. The law of property `naturally enough influence[s]' our `shared social expectations' of what places should be free from governmental incursions." Florida v. Jardines, 133 S.Ct. at 1419 (Kagan, J., concurring) (quoting Georgia v. Randolph, 547 U.S. 103, 111, 126 S.Ct. 1515, 164 L.Ed.2d 208 (2006)). Similarly, in Vernonia Sch. Dist. 47J v. Acton, Justice Scalia writing for the majority noted: "What expectations are legitimate varies, of course, with context, depending, for example, upon whether the individual asserting the privacy interest is at home, at work, in a car, or in a public park." 515 U.S. at 654, 115 S.Ct. 2386 (internal citations omitted).
Searches conducted pursuant to consent constitute one exception to the Fourth Amendment's search-warrant and probable-cause requirements. See Schneckloth v. Bustamonte, 412 U.S. 218,
Determining whether a party's consent was free and voluntary is a question of fact to be determined from the totality of the circumstances. See United States v. Pena, 143 F.3d at 1366. The Supreme Court and the Tenth Circuit have developed a non-exhaustive list of factors that courts should consider when trying to determine whether a defendant's consent was voluntarily given:
United States v. Sedillo, No. CR 08-1419 JB, 2010 WL 965743, at *12 (D.N.M. Feb. 19, 2010) (Browning, J) (some alterations in original). See United States v. Fox, 600 F.3d 1253, 1258 (10th Cir.2010).
Because courts are required to look at the totality of the circumstances in determining whether an individual's consent was voluntary, see United States v. Pena, 143 F.3d at 1366, no one factor is dispositive in a court's inquiry into the circumstances. For example, although an officer's failure to advise a defendant that he or she is free to leave might suggest that coercive law enforcement conduct caused the defendant's consent to search, the Supreme Court has ruled that officers do not need to advise an individual of his or her right to refuse to consent to a search for that individual's consent to be voluntary. See Schneckloth v. Bustamonte, 412 U.S. at 232, 93 S.Ct. 2041. Moreover, the mere presence of officers by exits to a building, threatening no more than to question individuals if they seek to leave, "should not [result] in any reasonable apprehension by any [individual] that they would be seized or detained in any meaningful way." United States v. Drayton, 536 U.S. 194, 205, 122 S.Ct. 2105, 153 L.Ed.2d 242 (2002) (internal citations omitted). Additionally, an officer's display of a weapon may contribute to the coercive nature of a situation, but "[t]he presence of a holstered firearm . . . is unlikely to contribute to the coerciveness of the encounter absent active brandishing of the weapon." United States v. Drayton, 536 U.S. at 205, 122 S.Ct. 2105. As such, "it is only
Probable cause must support a search warrant, which requires "more than mere suspicion but less evidence than is necessary to convict." United States v. Burns, 624 F.2d 95, 99 (10th Cir. 1980). To establish probable cause to justify a search of a home, an affidavit in support of a search warrant "must contain facts sufficient to lead a prudent person to believe that a search would uncover contraband or evidence of criminal activity." United States v. Danhauer, 229 F.3d 1002, 1006 (10th Cir.2000). "Probable cause undoubtedly requires a nexus between suspected criminal activity and the place to be searched." United States v. Corral-Corral, 899 F.2d 927, 937 (10th Cir.1990). The task of the magistrate judge issuing the search warrant
United States v. Reed, 195 Fed.Appx. 815, 821 (10th Cir.2006) (unpublished) (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)). See United States v. Glover, 104 F.3d 1570, 1578 (10th Cir.1997) (finding that, in determining whether an affidavit supports a finding of probable cause, the court must review the affidavit as a whole and look to the totality of the information contained therein), abrogated on other grounds by Corley v. United States, 556 U.S. 303, 129 S.Ct. 1558, 173 L.Ed.2d 443 (2009). In making his or her determination, the magistrate judge "may draw reasonable inferences from the material provided in the warrant application." United States v. Rowland, 145 F.3d 1194, 1205 (10th Cir. 1998).
"A reviewing court should accord great deference to a magistrate's determination of probable cause." United States v. Reed, 195 Fed.Appx. at 822. The court's duty is "simply to ensure that the magistrate had a substantial basis for . . . conclud[ing] that probable cause existed." Illinois v. Gates, 462 U.S. at 236, 238-39, 103 S.Ct. 2317. This deference is appropriate to further the Fourth Amendment's strong preference for warrants. See Massachusetts v. Upton, 466 U.S. 727, 733, 104 S.Ct. 2085, 80 L.Ed.2d 721 (1984); United States v. Ventresca, 380 U.S. 102, 105-06, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965) ("An evaluation of the constitutionality of a search warrant should begin with the rule that the informed and deliberate determinations of magistrates empowered to issue warrants . . . are to be preferred over the hurried action of office[r]s. . . ."). Because of the strong preference for warrants, "in a doubtful or marginal case a search under a warrant may be sustainable where without one it would fall." United States v. Ventresca, 380 U.S. at 106, 85 S.Ct. 741.
The deference accorded a magistrate judge's probable cause determination, however, is not boundless. See United States v. Leon, 468 U.S. 897, 914, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). The Court should not defer to a magistrate
The Supreme Court has stated that "those searches deemed necessary should be as limited as possible." Coolidge v. New Hampshire, 403 U.S. 443, 467, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). The Tenth Circuit has explained that "the Fourth Amendment requires that the government describe the items to be seized with as much specificity as the government's knowledge and circumstances allow, and warrants are conclusively invalidated by their substantial failure to specify as nearly as possible the distinguishing characteristics of the goods to be seized." Cassady v. Goering, 567 F.3d 628, 635 (10th Cir.2009) (quoting United States v. Leary, 846 F.2d 592, 600 (10th Cir.1988)). The particularity requirement prevents general searches and strictly limits the discretion of the officer executing the warrant. See Voss v. Bergsgaard, 774 F.2d 402, 404 (10th Cir.1985) ("The particularity requirement ensures that a search is confined in scope to particularly described evidence relating to a specific crime for which there is demonstrated probable cause."); United States v. Janus Indus., 48 F.3d 1548, 1553 (10th Cir.1995) ("`As to what is to be taken, nothing is left to the discretion of the officer executing the warrant.'") (quoting Stanford v. Texas, 379 U.S. 476, 485, 85 S.Ct. 506, 13 L.Ed.2d 431 (1965))). "A description is sufficiently particular when it enables the searcher to reasonably ascertain and identify the things authorized to be seized." United States v. Janus Indus., 48 F.3d at 1553 ("The test applied to the description of the items to be seized is a practical one.").
In Cassady v. Goering, the search warrant authorized the search of the plaintiff's entire farm, including his house, and the seizure of "[a]ny & all narcotics," "[a]ny and all illegal contraband," and various specific items mostly related to a narcotics operation, as well as the search and seizure of "all other evidence of criminal activity" and all personal property that was stolen, embezzled, or otherwise illegal. 567 F.3d at 635. The Tenth Circuit found that the warrant violated the plaintiff's Fourth Amendment rights, because "[t]he warrant[] allowed precisely the kind of rummaging through a person's belongings, in search of evidence of even previously unsuspected crimes or of no crime at all, that the Fourth Amendment proscribes." 567 F.3d at 635 (quoting Voss v. Bergsgaard, 774 F.2d at 405). The Tenth Circuit in Cassady v. Goering explained that it had previously "applied a blanket suppression where officers conducted a general search for evidence of crimes not specifically listed in the warrant," 567 F.3d at 643 (emphasis in original) (citing United States v. Foster, 100 F.3d 846, 851-52 (10th Cir.1996); United States v. Medlin, 842 F.2d 1194, 1199-1200 (10th Cir.1988)); given that line of cases, the Tenth Circuit said "it would be an odd result not to suppress warrants that expressly authorize a general search and seizure," Cassady
"[T]he warrantless entry of the home is `the chief evil against which . . . the Fourth Amendment is directed.'" United States v. Lowe, 999 F.2d 448, 451 (10th Cir.1993) (quoting United States v. United States District Court, 407 U.S. 297, 313, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972)). "A warrantless search of a defendant's home is unreasonable absent exigent circumstances or consent." United States v. Pikyavit, 527 F.3d 1126, 1130 (10th Cir. 2008). The Fourth Amendment's protection of the home against warrantless searches extends to a home's curtilage. See United States v. Dunn, 480 U.S. 294, 107 S.Ct. 1134, 94 L.Ed.2d 326 (1987); Oliver v. United States, 466 U.S. 170, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984).
In United States v. Dunn, the Supreme Court articulated four factors that should be used when determining whether an area is within the curtilage of a house for Fourth Amendment purposes. These factors are
480 U.S. at 301, 107 S.Ct. 1134. Backyards that are enclosed and adjacent to a house are generally considered to be part of the curtilage. See United States v. Hatfield, 333 F.3d 1189, 1196 (10th Cir. 2003); United States v. Jenkins, 124 F.3d 768, 772-73 (6th Cir.1997). Even partially enclosed backyards have been found to be part of a home's curtilage. See, e.g., United States v. Swepston, 987 F.2d 1510, 1515 (10th Cir.1993) (holding partial enclosure consistent with area being curtilage), overruled in part on other grounds by United States v. Cousins, 455 F.3d 1116 (10th Cir.2006); United States v. Jenkins, 124 F.3d at 773 (same).
A warrantless search is constitutional if consent is given for the search. Consent to a search must be unequivocal, specific, and freely given. See United States v. Guerrero, 472 F.3d 784, 789 (10th Cir.2007); United States v. Davis, 197 F.3d 1048, 1052 (10th Cir.1999); United States v. Butler, 966 F.2d 559, 562 (10th Cir.1992). Consent does not need to be spoken, but "may instead be granted through gestures or other indications of acquiescence, so long as they are sufficiently comprehensible to a reasonable officer." United States v. Guerrero, 472 F.3d at 789-90. "Non-verbal conduct, considered with other factors, can constitute voluntary consent to search." United States v. Gordon, 173 F.3d 761, 766 (10th Cir.1999). In United States v. Gordon, for example, the Tenth Circuit found implied consent when, in response to an officer's question whether the defendant could open a locked bag, the defendant handed the officer the key. See 173 F.3d at 766.
One strategy to gain consent to a search is a knock and talk, and the knock and talk itself is not a search. "[P]olice officers do not engage in a search when they approach the front door of a residence and seek to engage in what is termed a `knock and talk,' i.e., knocking on the door and seeking to speak to an occupant for the purpose of gathering evidence." Florida v. Jardines, 133 S.Ct. at 1423 (Alito, J., dissenting).
Kentucky v. King, ___ U.S. ___, 131 S.Ct. 1849, 1862, 179 L.Ed.2d 865 (2011). The Tenth Circuit has explained that reasonable suspicion is unnecessary for a knock-and-talk investigation, because, "[a]s commonly understood, a `knock and talk' is a consensual encounter and therefore does not contravene the Fourth Amendment, even absent reasonable suspicion." United States v. Cruz-Mendez, 467 F.3d 1260, 1264 (10th Cir.2006). Police officers may approach a home, entering the curtilage surrounding that home that would be the normal route of access to the home, and knock, "precisely because that is `no more than any private citizen might do,'" United States v. Shuck, 713 F.3d 563, 568 (10th Cir.2013) (quoting Florida v. Jardines, 133 S.Ct. at 1416).
A warrantless search of a home can also be constitutional when there are exigent circumstances. For exigent circumstances regarding safety to justify a warrantless search of a home: "(1) the officers [must have] had an objectively reasonable basis to believe that there was an immediate need to enter to protect the safety of themselves or others, and (2) the conduct of the entry [must have been] reasonable." United States v. Reeves, 524 F.3d 1161, 1169 (10th Cir.2008). See United States v. Smith, 797 F.2d 836, 840 (10th Cir.1986). While officers do not need probable cause to establish that exigent circumstances existed, "there must be some reasonable basis, approaching probable cause," supporting the search of the area. United States v. Smith, 797 F.2d at 840 (internal quotation marks omitted).
The Due Process Clause of the Fourteenth Amendment protects the right of privacy. See Flanagan v. Munger, 890 F.2d 1557, 1570 n. 15 (10th Cir.1989); Mangels v. Pena, 789 F.2d 836, 839 (10th Cir.1986). The Tenth Circuit has recognized that the right to privacy protects government employees from their employers improperly attempting to obtain the private medical history or records. See Lankford v. City of Hobart, 27 F.3d 477, 479 (10th Cir.1994). Although the Tenth Circuit in Lankford v. City of Hobart found a violation of the right of privacy under the facts in that case, it did not discuss the manner in which a court should determine generally when a violation of the privacy right occurs. See 27 F.3d at 479-80. Flanagan v. Munger provides some instruction on this point. In Flanagan v. Munger, the Tenth Circuit employed a balancing test to determine when disclosure by the government of private information amounts to violation of the right to privacy. See 890 F.2d at 1570. Specifically, a court must inquire: "(1) if the party asserting the right has a legitimate expectation of privacy; (2) if disclosure serves a compelling state interest; and (3) if disclosure can be made in the least intrusive manner." Flanagan v. Munger, 890 F.2d at 1570. The Tenth Circuit held that the plaintiffs, police officers who owned an adult video store, did not suffer a violation of their privacy rights when their ownership was disclosed, noting that "only highly personal information is protected." Flanagan v. Munger, 890 F.2d at 1570. See Mangels v. Pena,
In Kerns v. Board of Commissioners, 707 F.Supp.2d 1190 (D.N.M.2010) (Browning, J.), rev'd in part, vacated in part sub nom. Kerns v. Bader, 663 F.3d 1173 (10th Cir.2011), the Court used the Tenth Circuit's balancing test from Flanagan v. Munger to determine whether a sheriff who obtained the plaintiff's medical records violated the plaintiff's privacy right under the Fourteenth Amendment, finding that (i) the plaintiff had a legitimate expectation of privacy in his medical and psychiatric records, because he believed that the medical and mental health records were confidential and private; (ii) the sheriffs department had a compelling state interest in the records, because of its interest in enforcing 18 U.S.C. § 922(g)(4), which makes it unlawful for a person who has been "adjudicated as a mental defective" or who has been "committed to a mental institution" to possess firearms, and ensuring that the plaintiff did not fit that category; and (iii) the state could have achieved its objectives in a less intrusive manner by making a more particularized request for records, rather than requesting to "review all records." 707 F.Supp.2d at 1256-57. Balancing these factors, the Court concluded that the plaintiff met its burden on summary judgment to demonstrate that the sheriff violated his constitutionally protected right to privacy. See 707 F.Supp.2d at 1257. The Court noted that the sheriff had not relied on HIPAA when he requested the records; the law-enforcement exception in HIPAA allows HIPAA-covered entities to disclose protected healthcare information in six circumstances:
707 F.Supp.2d at 1259 (citing 45 C.F.R. § 164.512). The Court said that "HIPAA restrains the `health plan, health care clearinghouse, or healthcare provider' from disclosing protected medical information, and does not restrain law-enforcement directly." 707 F.Supp.2d at 1259 (quoting 45 C.F.R. § 164.104). The Court also concluded that the plaintiff established that his right to privacy in his medical records was clearly established at the time, precluding the sheriff from qualified immunity. See 707 F.Supp.2d at 1259-61.
The majority of the panel in the Tenth Circuit did not agree with the Court that the plaintiffs Fourteenth Amendment rights were clearly established and reversed the Court without analyzing whether the sheriff had violated the plaintiffs constitutional rights. See Kerns v. Bader, 663 F.3d at 1183-84. Although the plaintiff cited several cases in which the Tenth Circuit "held that government officials violated plaintiffs' substantive due process privacy rights by accessing their records without public disclosure," the Tenth Circuit explained that those cases "involved another element not present here: the government officials involved accessed the plaintiffs' confidential information as part of an unlawful campaign of sexual harassment." 663 F.3d at 1186. The Tenth Circuit ordered the Court to enter summary judgment in favor of the sheriff, "only because [the plaintiff] has failed to identify clearly established law rendering beyond debate that the Sheriffs conduct was unlawful as of 2005." 663 F.3d at 1187. The Honorable William J. Holloway, Jr., United States Circuit Judge for the Tenth Circuit, dissented, agreeing instead with the Court that the officer violated the plaintiffs "clearly established right to have his highly personal medical information protected from a law enforcement officer whose access to that information was supported only by a generalized interest in whether a crime might have occurred." 663 F.3d at 1197-98 (Holloway, J., dissenting) (emphasis in original).
Generally, a negligence claim requires the existence of a duty from a defendant to a plaintiff, breach of that duty, which is typically based on a standard of reasonable care, and the breach being a cause-in-fact and proximate cause of the plaintiffs damages. See Coffey v. United States, 870 F.Supp.2d 1202, 1225 (D.N.M.2012) (Browning, J.) (citing Herrera v. Quality Pontiac, 2003-NMSC-018, 134 N.M. 43, 47-48, 73 P.3d 181, 185-86). "In New Mexico, negligence encompasses the concepts of foreseeability of harm to the person injured and of a duty of care toward that person." Ramirez v. Armstrong, 1983-NMSC-104, 100 N.M. 538, 541, 673 P.2d 822, 825, overruled on other grounds by Folz v. State, 1990-NMSC-075, 110 N.M. 457, 460, 797 P.2d 246, 249. Generally, negligence is a question of fact for the jury. See Schear v. Bd. of County Comm'rs, 1984-NMSC-079, 101 N.M. 671, 672, 687 P.2d 728, 729. "A finding of negligence, however, is dependent upon the existence of a duty on the part of the defendant." Schear v. Bd. of County Comm'rs, 101 N.M. at 672, 687 P.2d at 729. "Whether a duty exists is a question of law for the courts to decide." Schear v. Bd. of County Comm'rs, 101 N.M. at 672, 687 P.2d at 729 (citation omitted). Once courts recognize that a duty exists, that duty triggers "a legal obligation to conform to a certain standard of conduct to reduce the risk of harm to an individual or class of
New Mexico courts have stated that foreseeability alone does not end the inquiry into whether the defendant owed a duty to the plaintiff. See Herrera v. Quality Pontiac, 134 N.M. at 48, 73 P.3d at 186. The New Mexico courts have recognized that, "[u]ltimately, a duty exists only if the obligation of the defendant [is] one to which the law will give recognition and effect." Herrera v. Quality Pontiac, 134 N.M. at 49, 73 P.3d at 187 (internal quotation marks omitted). To determine whether the defendant's obligation is one to which the law will give recognition and effect, courts consider legal precedent, statutes, and other principles of law. See Herrera v. Quality Pontiac, 134 N.M. at 48, 73 P.3d at 186.
"As a general rule, an individual has no duty to protect another from harm." Grover v. Stechel, 2002-NMCA-049, 132 N.M. 140, 143, 45 P.3d 80, 84. "[C]ertain relationships, however, that give rise to such a duty [include]: (1) those involving common carriers, innkeepers, possessors of land; and (2) those who voluntarily or by legal mandate take the custody of another so as to deprive the other of his normal opportunities for protection." Grover v. Stechel, 132 N.M. at 143, 45 P.3d at 84. "[W]hen a person has a duty to protect and the third party's act is foreseeable, `such an act whether innocent, negligent, intentionally tortious, or criminal does not prevent the [person who has a duty to protect] from being liable for harm caused thereby.'" Reichert v. Atler, 1994-NMSC-056, 117 N.M. 623, 626, 875 P.2d 379, 382.
"[T]he responsibility for determining whether the defendant has breached a duty owed to the plaintiff entails a determination of what a reasonably prudent person would foresee, what an unreasonable risk of injury would be, and what would constitute an exercise of ordinary care in light of all the surrounding circumstances." Herrera v. Quality Pontiac, 134 N.M. at 56, 73 P.3d at 194. "The finder of fact must determine whether Defendant breached the duty of ordinary care by considering what a reasonably prudent individual would foresee, what an unreasonable risk of injury would be, and what would constitute an exercise of ordinary care in light of all surrounding circumstances of the present case. . . ." Herrera v. Quality Pontiac, 134 N.M. at 57, 73 P.3d at 195.
"A proximate cause of an injury is that which in a natural and continuous sequence [unbroken by an independent intervening cause] produces the injury, and without which the injury would not have occurred." Herrera v. Quality Pontiac, 134 N.M. at 57, 73 P.3d at 195. "It need not be the only cause, nor the last nor nearest cause." Herrera v. Quality Pontiac, 134 N.M. at 57, 73 P.3d at 195. "It is sufficient if it occurs with some other cause acting at the same time, which in combination with it, causes the injury." Herrera v. Quality Pontiac, 134 N.M. at 57, 73 P.3d at 195.
"A civil conspiracy requires a combination by two or more persons to accomplish an unlawful purpose or to accomplish a lawful purpose by unlawful means." Los Alamos Nat'l Bank v. Martinez Surveying Servs., LLC, 2006-NMCA-081, ¶21, 140 N.M. 41, 139 P.3d 201 (internal quotations and citations omitted), overruled on other grounds by Zarr v. Washington Tru Solutions, LLC, 2009-NMCA-050, ¶11, 146 N.M. 274, 208 P.3d 919, 922. The purpose of a civil conspiracy
Seeds v. Lucero, 2005-NMCA-067, ¶ 18, 137 N.M. 589, 113 P.3d 859 (internal quotations and citations omitted). "[A]n agreement by itself, without an independent, unlawful act, is not an improper means." Los Alamos Nat'l Bank v. Martinez Surveying Servs., LLC, 2006-NMCA-081, ¶ 21, 140 N.M. 41, 139 P.3d at 207. Applying these principles, in Archuleta v. City of Roswell, the Court found that a plaintiff failed to state a plausible claim of civil conspiracy to commit assault, because he did not allege in his complaint any specific act that the defendants supposedly carried out with the purpose of placing him in a position of immediate apprehension of harm. See 898 F.Supp.2d at 1255. In Pedroza v. Lomas Auto Mall, Inc., No. CIV 07-0591 JB/RHS, 2009 WL 1919970 (D.N.M. May 26, 2009) (Browning, J.), the Court determined that plaintiffs had stated a plausible claim for civil conspiracy against an insurance company in connection with automobile dealers regarding misrepresentation of a vehicle's title, based on evidence that the insurance company submitted a misleading repair estimate and misleadingly informed the New Mexico Motor Vehicle Department that the vehicle, which should have received a salvage title, qualified for a clean title. See 2009 WL 1919970, at **2-3.
The Court will grant the MTD. Because the Plaintiffs have not responded to Ms. Forney's assertion of qualified immunity, they have not carried their heavy burden to demonstrate that she is not entitled to qualified immunity. Moreover, as to the federal claims, the Court reaches the same result on the merits, for substantially the reasons that Ms. Forney has given.
Upon reviewing the Complaint as a whole, the Court agrees with Ms. Forney that Counts 2, 4, and 6 are not directed against her, but against other defendants. To the extent that the Plaintiffs intended to assert those claims against Ms. Forney, the Court dismisses them for failure to state a claim.
Count 2 reads:
Complaint ¶¶ 61-64, at 13. No allegation in the Complaint ties Ms. Forney to this contract claim; she worked for the entity that employed Tapia and Aragon, but the Complaint does not allege that she had a contract with Tapia or Aragon. Accordingly, Count 2 does not state a claim against Ms. Forney on which the Court could grant relief.
Count 4 reads:
Complaint ¶¶ 72-76, at 14-15. The Plaintiffs have failed to allege basic elements of a negligence claim: the existence and contours of the duty that Ms. Forney owed the Plaintiffs, and the way Ms. Forney breached that duty. Moreover, as Ms. Forney points out, she acted as an opposing party's attorney, and "[a]n attorney has no duty . . . to protect the interests of a non-client adverse party for the obvious reasons that the adverse party is not the intended beneficiary of the attorney's services and that the attorney's undivided loyalty belongs to the client." Garcia v. Rodey, Dickason, Sloan, Akin & Robb, P.A., 1988-NMSC-014, ¶ 13. Finally, Count 4 does not explain how Ms. Forney acted unreasonably. The Court does not, therefore, read Count 4 to assert a claim against Ms. Forney. Accordingly, Count 4 does not state a claim on which the Court could grant relief.
Count 6 reads:
Complaint ¶¶ 80-84, at 15-16. This claim does not mention Ms. Forney, and its allegations do not, evidently, relate to her. Accordingly, Count 6 does not state a claim against Ms. Forney on which the Court could grant relief.
The Court will grant the MTD as to Counts 1, 3, and 5. None of these Counts states a claim against Ms. Forney on which the Court could grant relief.
Count 1 reads:
Complaint ¶¶ 57-60, at 12-13.
The Complaint's allegations do not recite any recognized equal-protection claim. "Generally, to state a claim under § 1983 for violation of the equal protection clause, the plaintiff must show that he or she is a member of a class of individuals that is being treated differently from similarly situated individuals that are not in that class." Aragon v. San Jose Ditch Ass'n, No. CIV 10-0563 JB/RHS, 2011 WL 6013284, at *13 (D.N.M. Nov. 22, 2011) (Browning, J.). No such allegations appear in the Complaint. Further, although Ms. Forney did not employ the Plaintiffs, it appears that they are bringing a claim against her as part of the city for losing their job with the City of Albuquerque. "To state an equal-protection claim against a municipality in the employment
Kansas Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1216 (10th Cir.2011). Accordingly, the Court will dismiss the equal-protection claim.
The equal-protection claim and the due-process claim fail for a different reason: the Plaintiffs have not identified what exactly Ms. Forney, in particular, did to violate their rights. The Plaintiffs' blanket invocation of "Defendants" and "City Defendants," without identifying specific people doing specific things, is insufficient to state a claim. As the Tenth Circuit has explained,
Robbins v. Oklahoma, 519 F.3d at 1249-50 (emphasis in original). In Robbins v. Oklahoma, the Tenth Circuit concluded that a complaint failed to satisfy rule 8's fair notice requirement, because, "[g]iven the complaint's use of either the collective term `Defendants' or a list of the defendants named individually but with no distinction as to what acts are attributable to whom, it [was] impossible for any of these individuals to ascertain what particular unconstitutional acts they are alleged to have committed." 519 F.3d at 1250. The same reasoning applies here: that the reader cannot identify what allegedly illegal things the Plaintiffs accuse Ms. Forney of doing justifies dismissing Count 1 for failure to state a claim.
Count 3 reads as follows:
Complaint ¶¶ 65-71, at 13-14. The Complaint does not explain the source of the right to privacy—that is, whether it arises under the Fourth Amendment or the Fourteenth Amendment.
Stripped of the conclusory allegations, as against Ms. Forney, the upshot of this claim appears to be that she subpoenaed Tapia's medical records, and that Ms. Forney and other City representatives received information about her medical condition and records from Dr. Wagner-Mogle. Tapia has cited no authority that holds that such acts violate any constitutional provision. Moreover, the Court has looked, and has found none—much less cases from the Supreme Court or from the Tenth Circuit, as qualified immunity would require. Indeed, the Tenth Circuit found in Kerns v. Bader that a similar interest was not clearly established, see 663 F.3d at 1184-85, and nothing has changed since that time.
The Complaint does not explain what made the subpoena "illegitimate." During a portion of the hearing on a different motion, the Court asked Tapia to explain her position:
Tr. at 36:8-37:3 (Court, Livingston). Tapia did not follow through on her offer to
No party briefed the alleged procedural defect—probably because the Complaint does not identify that defect, and because the Plaintiffs did not respond to the MTD. The MTD does not address the subpoena's propriety. The Court, therefore, lacks any argument that would probe this issue. The Court observes, however, that, although the MSO empowers Personnel Hearing Officers to subpoena witnesses, its text does not prohibit attorneys, as officers of the court, from filling out a blank subpoena form and issuing subpoenas. The MSO provides:
MSO § 3-4-25(H). Tapia cites no authority for the proposition that the MSO prohibits attorneys, as officers of the court, from issuing subpoenas, and the Court has found none.
Moreover, even if the subpoena were procedurally invalid under the MSO, Ms. Forney did not violate a clearly established constitutionally protected right by issuing it. Although the Fourth Amendment constrains governments' use of subpoenas in their investigative capacities, see Becker v. Kroll, 494 F.3d 904, 916-17 (10th Cir.2007), the Plaintiffs have cited no authority for the proposition that when, as a part of discovery in run-of-the-mill civil litigation, a government attorney has a court issue a subpoena with procedural defects, the state-action doctrine and the Fourth Amendment elevate the subpoena's defects from a discovery dispute to a problem of constitutional dimension. If the opposing party objects to a subpoena's breadth or to the manner in which it issued, there is a solution: ask the tribunal—which issued the subpoena—to narrow the subpoena's reach or to correct the defect.
With these principles in mind, the Court concludes that the subpoena did not violate the Fourth or the Fourteenth Amendments. According to the Complaint, the subpoena that Ms. Forney sent asked Dr. Wagner-Mogle to provide "[a]ny and all documents in your possession regarding Jessica Tapia . . . beginning 01/01/2010 to the present." Complaint ¶ 41, at 9. The Plaintiffs have not explained how this relatively routine request violated the Fourth or Fourteenth Amendments.
Accordingly, the Court dismisses Count 3 as against Ms. Forney.
Count 5 reads:
Complaint ¶¶ 77-79, at 15.
Count 5 is largely moot. In its Memorandum Opinion and Order, filed March 31, 2014 (Doc. 90), 10 F.Supp.3d 1207, 2014 WL 1285663, the Court granted the Motion to Dismiss or, in the Alternative, Motion
The Complaint also does not state a claim for civil conspiracy under New Mexico law. As the Court of Appeals of New Mexico has explained,
Seeds v. Lucero, 2005-NMCA-067, ¶ 18, 137 N.M. 589, 113 P.3d 859 (internal quotation marks and citations omitted). Aside from the conclusory allegations that Rizzieri, Ms. Forney, and others met and arranged to deny the Plaintiffs' constitutional rights—allegations of which the Court has already disposed—the Complaint does not allege a wrongful act done pursuant to the conspiracy, as New Mexico law requires. Accordingly, the Court grants the MTD as to Count 5.
The second prong of qualified immunity also insulates Ms. Forney from liability. The Court has, for the reasons it has explained, concluded that Ms. Forney has not violated the Plaintiffs' constitutional rights. It necessarily follows that the Plaintiffs did not demonstrate that Ms. Forney violated their clearly established constitutional rights. Accordingly, the Court finds that qualified immunity insulates Ms. Forney from liability for the Plaintiffs' Constitutional claims.
At the hearing, the Plaintiffs' counsel stated that, after removal, the Plaintiffs were "stuck . . . arguing over every count and every issue as to whether there's sufficient law to support it when we don't even have an explanation of the facts." Tr. at 66:16-19 (Livingston) (emphasis added).
Count 1, "Due Process and Equal Protection," illustrates the Complaint's weaknesses. The legal standards that govern due-process claims differ fundamentally
Rule 12(b)(6) serves an important gatekeeping function: before a plaintiff can impose on a defendant the burdens of discovery, a plaintiff must, in his or her complaint, tell a coherent story and explain how, if the plaintiff establishes that story, the law entitles him or her to relief from the defendant. Motions to dismiss for failure to state a claim exist, in part, to prevent plaintiffs from using the costs and delays of discovery to extort a nuisance settlement for meritless claims. Parties best serve their interests and the interests of justice when they comply with the rules of the system, rather than struggle against them.
United States v. Austin, 426 F.3d 1266, 1274 (10th Cir.2005) (citations omitted). The Court finds that How v. City of Baxter Springs, Lobozzo v. Colo. Dep't of Corr., 429 Fed.Appx. 707 (10th Cir.2011) (unpublished), United States v. Reed, 195 Fed.Appx. 815, 821 (10th Cir.2006) (unpublished), Ortlieb v. Howery, 74 Fed.Appx. 853 (10th Cir.2003) (unpublished), and, have persuasive value with respect to material issues, and will assist the Court in its preparation of this Memorandum Opinion and Order.
663 F.3d at 1183-84. The Tenth Circuit did not analyze whether the officer violated the plaintiff's constitutional rights, and stated that guidance on the particular constitutional issue would be more appropriate in a case not involving qualified immunity: "Neither do we doubt that the scope of the Constitution's protection for a patient's hospital records can be adequately decided in future cases where the qualified immunity overlay isn't in play (e.g., through motions to suppress wrongly seized records or claims for injunctive or declaratory relief)." 663 F.3d at 1187 n. 5. On remand, the Court stated:
Kerns v. Bd. of Comm'rs, 888 F.Supp.2d 1176, 1224 n. 36 (D.N.M.2012) (Browning, J.), abrogated on other grounds as recognized in Ysasi v. Brown, 3 F.Supp.3d 1088, 1130-31 n. 24, No. CIV 13-0183 JB/CG, 2014 WL 936835, at *9 n. 24 (D.N.M. Feb. 28, 2014) (Browning, J.).
888 F.Supp.2d at 1222 n. 35.
Katz v. United States, 389 U.S. at 351-52, 88 S.Ct. 507. The Supreme Court appears to have changed course in its two most recent opinions on Fourth Amendment searches. In Florida v. Jardines, the particular place at which the search occurred weighs heavily on the Supreme Court's holding, reasoning that "[t]he [Fourth] Amendment establishes [as] a simple baseline. . . . protections `when the Government does engage in a physical intrusion of a constitutionally protected area.'" 133 S.Ct. at 1414 (original alterations and original emphasis omitted) (emphasis added) (quoting United States v. Knotts, 460 U.S. 276, 286, 103 S.Ct. 1081, 75 L.Ed.2d 55 (1983) (Brennan, J., concurring)). See United States v. Jones, 132 S.Ct. at 951 ("Katz did not erode the principle `that, when the Government does engage in physical intrusion of a constitutionally protected area in order to obtain information, that intrusion may constitute a violation of the Fourth Amendment. . . . Katz did not narrow the Fourth Amendment's scope.'" (emphasis added)). The Court thus concludes that, while it may be true that the analysis does not turn on the place searched, the Court's prior statement—"the Supreme Court has vigorously asserted that the proper analysis under the Fourth Amendment is not whether the place searched is a `constitutionally protected area,'" Kerns v. Bd. of Comm'rs of Bernalillo Cnty., 888 F.Supp.2d at 1219— may no longer accurately reflect the Supreme Court's recent reversion to property-based analysis as a Fourth Amendment analysis baseline.
Kerns v. Bader, 663 F.3d at 1184-85. The Tenth Circuit has not remedied this uncertainty since it decided Kerns v. Bader, and, given the adversarial breakdown in this case and the absence of any briefing on the topic, the Court cannot say that the law is clearly established the way that the Plaintiffs suggest.
In light of the rest of the MTD, this standing argument is confusing: Ms. Forney asserts that this defect means that "the claims by NMTU and Lucero fail to state a claim upon which relief can be granted against Paula Forney," MTD at 10—which does not make sense, if she is alleging Article III standing, because Article III standing is a jurisdictional doctrine and not a failure-to-state-a-claim doctrine. Moreover, the MTD discusses the standards only under rule (12)(b)(6), and never mentions the proper vehicle for jurisdictional problems—rule (12)(b)(1)—or the word jurisdiction. See MTD at 1-2. What is more, Ms. Forney asks the Court to dismiss all claims against her "with prejudice," MTD at 11. If the Plaintiffs lacked standing to sue Ms. Forney, the Court could not dismiss the claims against her with prejudice, because a subject-matter jurisdictional dismissal is necessarily without prejudice. See Morrison v. YTB Intern., Inc., 649 F.3d 533, 535 (7th Cir.2011) (Easterbrook, C.J.) (explaining that dismissing a claim on the basis of standing is appropriate "under Rule 12(b)(1) rather than 12(b)(6), and without prejudice"). Thus, it may be she is alleging some level of common-law or statutory standing objection, in which case rule 12(b)(6) would be an appropriate vehicle to raise the issue. Thus, it is unclear whether she is even raising an Article III issue, but to the extent she is, the Court concludes rejects it and exercises to dismiss the claims on the merits.
