FILED
                                                United States Court of Appeals
                                                        Tenth Circuit

                                                        May 3, 2013
                                    PUBLISH        Elisabeth A. Shumaker
                                                       Clerk of Court
                  UNITED STATES COURT OF APPEALS

                              TENTH CIRCUIT



MICHAEL WILSON, SR.,

            Plaintiff - Appellee,

JESSE ORTIZ; OSCAR LEYVA; PATRICK
MARQUEZ; MARK SANCHEZ; DUSTN
SARRETT,

            Plaintiffs,
      v.                                         No. 12-2051
LAWRENCE MONTANO, Deputy; FRED
TORRES, Deputy; JOE CHAVEZ, Warden;
RENE RIVERA, former Sheriff;

            Defendants - Appellants,

JOHN DOE, VCDC booking officer or
employee; MARTIN BENAVIDEZ, Officer;
MIKE CHAVEZ, former Chief of Police;
BRENT WOODARD; NICK BALIDO, former
Los Lunas Police Department, Chief of Police;
LOUIS BURKHARD, Sheriff; DELINDA
CHAVEZ; JOSEPH CHAVEZ; ROY A.
CORDOVA; GREG JONES, Bosque Farms
Police Department, Police Chief; ROY
MELNICK, Los Lunas Police Department,
Chief of Police; DAN ROBB, Belen Police
Department, Chief of Police; STEVEN
ROBERTS; DEREK WILLIAMS; JOE
STIDHAM, Former Bosque Farms Police
Department, Police Chief,

            Defendants.
         APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF NEW MEXICO
                  (D.C. NO. 1:11-CV-00658-BB-KBM)


Brandon Huss, Wallin, Huss & Mendez, LLC, Moriarty, New Mexico (Dennis K.
Wallin, Wallin, Huss & Mendez, LLC, Moriarty, New Mexico, and Mary T.
Torres, Beall & Biehler, Albuquerque, New Mexico, with him on the briefs), for
Defendants-Appellants.

Matthew Coyte, Coyte Law P.C., Albuquerque, New Mexico, for Plaintiff-
Appellee.


Before MATHESON, EBEL, and MURPHY, Circuit Judges.


MURPHY, Circuit Judge.


I.    Introduction

      Appellants seek reversal of the district court’s order denying their motion

to dismiss claims asserted against them by Michael Wilson, Sr. under 42 U.S.C.

§ 1983. Wilson alleges he was unlawfully detained and deprived of his

constitutional right to a prompt probable cause determination. Appellants claim

they are entitled to qualified immunity. The district court concluded Wilson’s

complaint alleged sufficient facts to state a plausible claim against each of the

appellants for violating his Fourth Amendment rights. Exercising jurisdiction

pursuant to 28 U.S.C. § 1291, this court affirms in part and reverses in part.




                                         -2-
II.   Background 1

      On December 18, 2010, Wilson was arrested without a warrant by

Lawrence Montano, a deputy with the Valencia County Sheriff’s Office

(“VCSO”) in New Mexico. Montano asked Deputy Fred Torres to transport

Wilson to the Valencia County Detention Center (“VCDC”). Prior to booking

Wilson into the VCDC, Montano prepared a criminal complaint listing the charge

against Wilson as a misdemeanor offense. Neither Montano nor Torres ever filed

the criminal complaint in a court with jurisdiction or brought Wilson before a

judicial officer for a probable cause determination during the time he was held at

the VCDC. On December 29, 2010, eleven days after his arrest, Wilson was

released from the VCDC by order of a magistrate judge. In the order, the

magistrate noted no complaint had been filed. On January 4, 2010, after Wilson

was released, Montano filed the misdemeanor criminal charge in an appropriate

court. On April 11, 2011, the district attorney’s office dismissed the charge due

to insufficient evidence.

      Wilson brought suit under 42 U.S.C. § 1983. His complaint named as

defendants Deputies Montano and Torres; Joe Chavez, the warden of VCDC; and

Rene Rivera, the Valencia County Sheriff during the time of Wilson’s detention.



      1
      The facts set forth here are drawn from the allegations in Wilson’s
complaint, which must be taken as true when considering a motion to dismiss.
Brown v. Montoya, 

, 1162 (10th Cir. 2011).

                                        -3-
Chavez and Rivera were named in both their individual and official capacities.

Count I of the complaint alleged the defendants engaged in “Illegal and

Unreasonable Detention in Violation of the Fourth Amendment.” Counts III and

IV alleged Warden Chavez and Sheriff Rivera, respectively, were liable for

establishing an unconstitutional policy or custom and deliberate indifference.2

Wilson alleged the deputies deliberately detained him without filing a criminal

complaint or bringing him before a judicial officer for a probable cause

determination. He further asserted that, prior to his detention, there were

numerous incidents in which VCDC held individuals without filing criminal

charges or otherwise allowing them to appear before a magistrate judge. Wilson

thus alleged his detention was the result of a policy established by Warden

Chavez in which individuals were routinely held without the filing of criminal

charges until they were released by sua sponte court orders, and that Warden

Chavez trained his staff to accept inmates without the filing of charges. Wilson

also asserted Warden Chavez was deliberately indifferent to the unconstitutional

policy of incarcerating citizens without pending charges.

      Wilson made substantially similar claims against Sheriff Rivera. He

alleged there were numerous prior incidents in which VCSO deputies arrested



      2
      The complaint also alleged violations of the Fifth and Fourteenth
Amendments and the New Mexico State Tort Claims Act and requested injunctive
and declaratory relief. Those claims are not at issue in this appeal.

                                        -4-
individuals without a warrant and thereafter failed to file criminal complaints or

provide prompt probable cause determinations. He asserted these illegal

detentions, including his own, were the result of a policy or custom established by

Sheriff Rivera. He also alleged Sheriff Rivera failed to train his staff, which

resulted in the routine incarceration of individuals without legal process. In

addition, Wilson alleged Sheriff Rivera was deliberately indifferent to the

constitutional violations which resulted from his policies, customs, and/or failure

to train his employees. 3

      Appellants jointly filed a motion to dismiss Wilson’s claims, arguing, inter

alia, Wilson’s complaint failed to state a claim against any of the defendants in




      3
        In addition to Wilson’s, two other suits were filed relating to the detention
of individuals at the VCDC. In Ortiz v. Benavidez, No. 11-cv-0951, Jesse Ortiz
alleged he was arrested without a warrant and detained at the VCDC for twelve
days without a probable cause hearing. The Ortiz complaint alleged Warden
Chavez established a policy or custom of holding citizens without pending
charges, trained his staff to accept detainees without the filing of charges or a
probable cause hearing, and was deliberately indifferent to the violations of
detainees’ constitutional rights. In Sarrett v. Cordova, No. 11-cv-1021, four
plaintiffs made similar allegations of warrantless arrest and subsequent detention
at the VCDC without a probable cause hearing. The Sarrett complaint alleged
Warden Chavez and Sheriff Rivera implemented a policy or practice of holding
citizens without criminal complaints or probable cause determinations. Due to
common questions of law and fact, the district court consolidated Ortiz and
Sarrett with Wilson’s case.

                                         -5-
their individual capacities 4 and each of the defendants was entitled to qualified

immunity. The district court denied the motion, and this appeal followed. 5

III.   Discussion

       A.    Jurisdiction and Standard of Review

       Although an order denying a motion to dismiss based on qualified

immunity is not a final judgment, this court has jurisdiction under 28 U.S.C.

§ 1291 to review the order “to the extent that it turns on an issue of law.”

Mitchell v. Forsyth, 

, 530 (1985). This court reviews the district

court’s denial of a motion to dismiss based on qualified immunity de novo,

accepting as true all well-pleaded factual allegations in the complaint and viewing

the allegations in the light most favorable to the non-moving party. Brown v.

Montoya, 

, 1162 (10th Cir. 2011). The Supreme Court recently

articulated in detail the standard for evaluating a motion to dismiss based on

qualified immunity:




       4
        Appellants did not move to dismiss Wilson’s claims against them in their
official capacities.
       5
        Wilson’s complaint also includes as a defendant “John Doe VCDC
Booking Officer or Employee.” On appeal, the parties proceed as though the
district court denied qualified immunity to Doe and Doe subsequently appealed.
The district court, however, did not resolve any of the claims against Doe.
Further, while appellants purport to raise arguments on Doe’s behalf in their brief,
neither counsel for Montano, Torres, and Chavez nor counsel for Rivera have
claimed to represent Doe. Wilson’s claims against Doe are therefore not properly
before this court, and we express no opinion on their merits.

                                         -6-
         To survive a motion to dismiss, a complaint must contain sufficient
         factual matter, accepted as true, to “state a claim to relief that is
         plausible on its face.” A claim has facial plausibility when the
         plaintiff pleads factual content that allows the court to draw the
         reasonable inference that the defendant is liable for the misconduct
         alleged. The plausibility standard is not akin to a “probability
         requirement,” but it asks for more than a sheer possibility that a
         defendant has acted unlawfully. Where a complaint pleads facts that
         are “merely consistent with” a defendant’s liability, it “stops short of
         the line between possibility and plausibility of ‘entitlement to
         relief.’”

Ashcroft v. Iqbal, 

, 678 (2009) (citations omitted) (quoting Bell Atl.

Corp. v. Twombly, 

, 555–57 (2007)). In the context of a § 1983

action against multiple individual governmental actors, “it is particularly

important . . . that the complaint make clear exactly who is alleged to have done

what to whom, to provide each individual with fair notice as to the basis of the

claims against him or her.” Robbins v. Oklahoma, 

, 1250 (10th Cir.

2008).

         Consistent with Supreme Court precedent, this court requires a plaintiff to

“allege sufficient facts that show—when taken as true—the defendant plausibly

violated his constitutional rights, which were clearly established at the time of

violation.” Schwartz v. Booker, 

, 579 (10th Cir. 2012). For a

constitutional right to be clearly established, “[t]he contours of the right must be

sufficiently clear that a reasonable official would understand that what he is doing

violates that right.” Anderson v. Creighton, 

, 640 (1987). Even

when the plaintiff pleads a violation of a clearly established right, the court must

                                            -7-
sometimes consider “whether extraordinary circumstances—such as reliance on

the advice of counsel or on a statute—so prevented the official from knowing that

his or her actions were unconstitutional that he or she should not be imputed with

knowledge of a clearly established right.” Shero v. City of Grove, 

,

1204 (10th Cir. 2007). This court has discretion to decide which prong of the

qualified immunity test to address first in light of the circumstances of each

particular case. Brown, 662 F.3d at 1164.

      B.     Duty to Ensure Prompt Probable Cause Determination

      Appellants do not dispute that Wilson had a Fourth Amendment right to a

prompt probable cause determination, and that such a right was clearly

established at the time of Wilson’s detention at the VCDC. Cnty. of Riverside v.

McLaughlin, 

, 56 (1991) (holding an arrestee is entitled to a probable

cause determination within forty-eight hours absent “a bona fide emergency or

other extraordinary circumstance”); Gerstein v. Pugh, 

, 114 (1975)

(“[T]he Fourth Amendment requires a judicial determination of probable cause as

a prerequisite to extended restraint of liberty following arrest.”). Appellants

nonetheless argue they are entitled to qualified immunity because there is no

clearly established law delineating which of them had the obligation to provide

Wilson with a probable cause hearing. In support of this argument, appellants

rely heavily on an unpublished case from this circuit, Strepka v. Miller, 28 F.

App’x 823 (10th Cir. 2001). In Strepka, this court affirmed the dismissal of a

                                         -8-
§ 1983 claim alleging officers violated the plaintiff’s right to a prompt judicial

determination of probable cause. Id. at 825–30. Analyzing the plaintiff’s

complaint against the officers in their individual capacities, we concluded: “Even

under the most liberal construction, plaintiff’s complaint was devoid of any

allegations showing that any of the arresting officers caused or participated in the

delay in providing plaintiff a prompt probable cause determination.” Id. at 828.

We also affirmed the denial of the plaintiff’s Rule 59(e) motion objecting to the

dismissal and seeking leave to amend, concluding that although the proposed

amended complaint would “probably” be sufficient to state a claim against the

two arresting officers, remand would be futile because the officers would still be

entitled to qualified immunity. Id. at 829–30. Specifically, we stated: “Although

Supreme Court opinions have clearly established the right to a prompt probable

cause determination, they have not established that the duty to ensure that right

rests with the arresting officer. Nor have any Tenth Circuit cases—or the

majority of cases from other circuits—so held.” Id. at 830.

      To the extent appellants rely on Strepka for the proposition that each of

them is entitled to qualified immunity because it is not clearly established which

of them is responsible for violating Wilson’s constitutional rights, we are

unpersuaded. First, as an unpublished decision, Strepka is not binding on this

court. See 10th Cir. R. 32.1(A). Second, Strepka’s assertion this court has never

held that an arresting officer has a duty to ensure an arrestee receives a prompt

                                         -9-
probable cause determination is inaccurate. In Austin v. Hamilton, 

, 1162–63 (10th Cir. 1991), abrogated on other grounds by Johnson v. Jones,

, 309–20 (1995), this court affirmed the denial of summary judgment

to federal agents who refused to provide detainees with probable cause hearings. 6

Finally, we are persuaded by the opinions of other circuits which have rejected

appellants’ position that “someone else” had a duty to provide a prompt probable

cause determination. See Drogosch v. Metcalf, 

, 378–79 (6th Cir.

2009) (looking to state law to determine who is responsible for ensuring a prompt

probable cause determination after arrest and concluding, in Michigan,



      6
        Appellants’ attempts to distinguish Austin are unpersuasive. First,
appellants argue Austin does not establish who has the duty to ensure a detainee
receives a probable cause determination. Austin did, however, conclude the
defendants, who effected the plaintiffs’ arrests and detentions, could be held
liable for the plaintiffs’ prolonged detentions without probable cause. Austin v.
Hamilton, 

, 1162–63 (10th Cir. 1991), abrogated on other grounds
by Johnson v. Jones, 

, 309–20 (1995). In so concluding, the court in
Austin read Gerstein v. Pugh, 

, 114 (1975), as sufficient authority to
overcome the defendants’ assertions of qualified immunity. See id. at 1162. At
minimum, Austin undermines appellants’ position that it is wholly unclear who
has the duty to ensure a prompt probable cause determination. Second, appellants
argue the additional allegations in Austin of excessive force and intentional
detention without a probable cause determination somehow distinguish it from the
present case. Austin’s analysis of the excessive force claims, however, is separate
from its analysis of the intentional prolonged detention claims. Finally,
appellants argue Strepka supercedes Austin or, at the very least, indicates the law
is unclear as to who has the duty to ensure a prompt probable cause
determination. Strepka, however, is not precedential. See 10th Cir. R. 32.1.
Further, the court in Austin stated the plaintiffs’ claims for prolonged detention
“do not implicate unsettled law” and “invoke[d] settled fourth amendment
principles predating the circumstances of this case.” Austin, 945 F.2d at 1162.

                                       -10-
responsibility lies with the arresting officer); Cherrington v. Skeeter, 

, 642–45 (6th Cir. 2003) (“County of Riverside itself . . . would have alerted a

reasonable official to . . . the existence of Cherrington’s Fourth Amendment right

to a judicial determination of probable cause within 48 hours . . . . Under the

present record, therefore, the individual Defendants are not entitled to qualified

immunity on Plaintiff Cherrington’s Fourth Amendment claim . . . .”); Luck v.

Rovenstine, 

, 326 (7th Cir. 1999) (“We find unconvincing the

sheriff’s attempt to shrug off his federal constitutional responsibilities toward

detainees . . . who have not yet had a probable cause hearing.”); Hallstrom v. City

of Garden City, 

, 1482-83 (9th Cir. 1993) (denying qualified

immunity to sheriff and jail commander for holding plaintiff for four days without

probable cause determination).

      Although we reject appellants’ argument that the law is insufficiently clear

to hold any of them responsible for ensuring Wilson received a prompt probable

cause determination after his detention, it does not follow that all are necessarily

liable. “Individual liability under § 1983 must be based on personal involvement

in the alleged constitutional violation.” Foote v. Spiegel, 

, 1423

(10th Cir. 1997). Thus, we must examine the allegations in the complaint as to

each individual appellant to determine whether a plausible claim for relief is

stated. We consider New Mexico state law insofar as it bears on the scope of

each appellant’s responsibility to ensure a prompt probable cause determination.

                                         -11-
See Cherrington, 344 F.3d at 644 (“[B]efore a defendant may be held liable under

section 1983, that defendant must first possess power by virtue of state law, then

misuse that power in a way that violates federal constitutional rights.”).

      C.     Personal Involvement of Individual Defendants

             1.     Non-Supervisory Defendants

                    a.    Torres

      Wilson’s allegations against Torres are limited. Wilson’s complaint alleges

Torres transported him from his home to the VCSO at Montano’s request. The

remainder of the allegations against Torres revolve around Torres’ failure to file

charges against Wilson or otherwise ensure Wilson received a probable cause

hearing. Further, although Wilson refers to Torres as an “arresting officer” in his

briefing before this court, his complaint does not indicate Torres was an arresting

officer. At most, the complaint alleges Torres “assisted” Montano in effecting the

arrest. Appellants’ App. at 22. Further, Wilson is unable to cite any authority

indicating Torres had a duty to ensure he received a prompt probable cause

hearing. While Wilson cites ample authority defining the scope of an arresting

officer’s duties under New Mexico law related to ensuring an arrestee receives a

prompt probable cause determination, see infra Part III.C.1.b, none of the cited

authorities indicate such duties extend to any officer who assists in an arrest.

Wilson’s complaint therefore lacks sufficient allegations to state a plausible claim

that Torres was personally involved in the violation of his right to a prompt

                                         -12-
probable cause determination. The district court therefore erred in denying the

motion to dismiss as to Torres.

                    b.    Montano

      The complaint alleges Montano arrested Wilson without a warrant. The

complaint further alleges Montano wrote out a criminal complaint, but failed to

file it in any court with jurisdiction to hear the misdemeanor charge until well

after Wilson was released from the VCDC. Thus, the complaint alleges Montano

was the arresting officer and that he failed to initiate the criminal process by

filing criminal charges or otherwise ensure Wilson was brought before a judge for

a prompt probable cause determination. New Mexico law makes clear an

arresting officer has a duty to ensure an arrestee receives a prompt probable cause

determination. N.M. Stat. Ann. § 35-5-1 provides:

      Whenever a peace officer makes an arrest without warrant for a
      misdemeanor within magistrate trial jurisdiction, he shall take the
      arrested person to the nearest available magistrate court without
      unnecessary delay. In such cases, a complaint shall be filed
      forthwith by the peace officer and a copy given to the defendant at or
      before the time he is brought before the magistrate.

As discussed supra Part III.B, appellants concede an arrestee has a clearly

established constitutional right to a prompt probable cause hearing, i.e., a hearing

within forty-eight hours after arrest. See Cnty of Riverside, 500 U.S. at 56;

Gerstein, 420 U.S. at 114. Thus, the complaint alleges Montano, in contravention




                                         -13-
of his duties under New Mexico law, deprived Wilson of his clearly established

constitutional rights.

      These allegations, taken as true, are sufficient to overcome Montano’s

assertion of qualified immunity. See Drogosch, 557 F.3d at 378–79 (applying a

substantially similar Michigan statute to conclude arresting officer was not

entitled to qualified immunity for violating arrestee’s rights under Gerstein);

Cherrington, 344 F.3d at 644 (holding arresting officers potentially liable for

violating arrestee’s rights under Gerstein when Ohio law placed duty to ensure

prompt probable cause determination on arresting officer); Hallstrom, 991 F.2d at

1478-82 & 1482 n.22 (“[T]he laws of Idaho guaranteeing timely presentation to a

magistrate . . . place substantive limitations on official discretion and contain

explicitly mandatory language sufficient to create a liberty interest protected by

the Fourteenth Amendment and actionable under Section 1983.” (quotations and

alterations omitted)); see also Cnty. of Riverside, 500 U.S. at 52-53 (permitting

states to develop their own specific procedures to ensure prompt probable cause

determinations). Further, a reasonable official in Montano’s position “would

understand that what he is doing violates” Wilson’s right to a prompt probable

cause hearing. Anderson, 483 U.S. at 640. The complaint therefore alleges

sufficient personal involvement on Montano’s part to state a plausible claim for




                                         -14-
relief under § 1983, and the district court correctly denied appellants’ motion to

dismiss as to Montano. 7

             2.    Supervisory Defendants

      In Dodds v. Richardson, this court held a plaintiff may establish the

individual liability of a supervisor for a constitutional violation under § 1983 by

demonstrating: “(1) the defendant promulgated, created, implemented or

possessed personal responsibility for the continued operation of a policy that (2)

caused the complained of constitutional harm, and (3) acted with the state of mind

required to establish the alleged constitutional violation.” 

, 1199

(10th Cir. 2010). The plaintiff in Dodds brought a § 1983 suit, alleging a sheriff,



      7
        Appellants characterize Wilson’s allegations against Montano as asserting
he failed to timely file a complaint. Moreover, appellants argue, because New
Mexico’s Rules of Criminal Procedure for Magistrate Courts provide that a
complaint can be filed more than forty-eight hours after arrest, see N.M.R.A.
6-201, the timely filing of a criminal complaint does not ensure a prompt probable
cause determination in all cases. Appellants therefore assert Wilson’s allegation
that Montano failed to timely file a complaint is insufficient to show Montano’s
personal involvement in the violation of Wilson’s right to a prompt probable
cause determination. These arguments are unpersuasive. First, Wilson alleged
not that Montano failed to timely file criminal charges, but that Montano failed to
take any action whatsoever to ensure a prompt probable cause determination
while Wilson was being held at the VCDC. Second, Wilson need not allege that
the timely filing of a criminal complaint will always ensure a defendant receives a
timely probable cause determination in every possible circumstance. It is
sufficient to withstand a motion to dismiss that his allegations support an
inference of causation in this case. Drawing all inferences in the light most
favorable to Wilson, we can readily conclude the complaint sufficiently alleges
Montano’s failure to promptly file criminal charges caused Wilson’s prolonged
detention.

                                        -15-
acting in his individual capacity, “violated his Fourteenth Amendment due

process rights by depriving him of his protected liberty interest in posting bail.”

Id. at 1189. The district court denied the sheriff’s qualified-immunity based

motion for summary judgment, and the sheriff appealed. Id. at 1190. This court

recognized that “Oklahoma law charged Defendant as sheriff with the

responsibilities of running the county jail and accepting bail from . . . arrestees.”

Id. at 1203. Thus, “Oklahoma law made Defendant responsible for the policies

that operated and were enforced by his subordinates at the jail.” Id. Moreover,

the sheriff admitted that he allowed the policies, which caused the deprivation of

Dodds’ constitutional rights, to operate. Id. The facts showed the sheriff’s

conduct in maintaining these policies at the jail caused Dodds to be deprived of

his due process rights and, therefore, showed the sheriff was personally involved

in the constitutional deprivation. Id. at 1204.

      This court also concluded: “Plaintiff’s right to be free from unjustified

detention after his bail was set was clearly established such that a reasonable

official in Defendant’s position [at the time] would have understood that his

deliberately indifferent maintenance of the policies that prevented arrestees from

posting preset bail for no legitimate reason violated the Constitution.” Id. at

1206. In so concluding, this court noted that “other cases of ours and the great

weight of authority from other circuits clearly established by 2007 that officials

may be held individually liable for policies they promulgate, implement, or

                                         -16-
maintain that deprive persons of their federally protected rights.” Id. at 1207.

We therefore held the plaintiff had “shown facts that, if proven at trial, establish

Defendant violated his clearly established rights.” Id.

       New Mexico law sets forth the respective duties of wardens and sheriffs in

ensuring detainees receive a prompt probable cause determination. New Mexico

law charged Sheriff Rivera with the responsibility of running the VCDC and

ensuring arrestees received a prompt probable cause determination. See, e.g.,

N.M. Stat. Ann. § 4-37-4(A) (“It is the duty of every county sheriff . . . to: (1)

enforce the provisions of all county ordinances; [and] (2) diligently file a

complaint or information alleging a violation if circumstances would indicate that

action to a reasonably prudent person . . . .”); id. § 4-41-2 (“The sheriff shall be

conservator of the peace within his county” and shall “cause all offenders to . . .

appear at the next term of the court and answer such charges as may be preferred

against them.”); id. § 29-1-1 (declaring it “the duty of every sheriff . . . to . . .

diligently file a complaint or information, if the circumstances are such as to

indicate to a reasonably prudent person that such action should be taken . . . .”);

id. § 31-1-5(B) (“Every accused shall be brought before a court having

jurisdiction to release the accused without unnecessary delay.”); id. § 33-3-1(A)

(“The common jails shall be under the control of the respective sheriffs . . . .”).

New Mexico law charged Warden Chavez with similar responsibilities. See, e.g.,

id. § 33-1-2(E) (stating “‘warden’ . . . means the administrative director of a

                                           -17-
correctional facility”); id. § 33-2-15 (“The employees of the penitentiary shall

perform such duties in the charge and oversight of the penitentiary, care of the

property belonging thereto, and in the custody, government, employment and

discipline of the convicts as shall be required of them by the corrections division

[corrections department] or the warden, in conformity with law and rules and

regulations prescribed for the government of the penitentiary.”); id. § 33-3-1(A)

(“The common jails shall be under the control of the respective . . . jail

administrators hired by the board of county commissioners or other local public

body or combination thereof . . . .”). Thus, under New Mexico law both Warden

Chavez and Sheriff Rivera were responsible for the policies or customs that

operated and were enforced by their subordinates at the VCDC and VCSO and for

any failure to adequately train their subordinates. We therefore consider the

allegations against each supervisory defendant to determine whether they meet the

Dodds requirements for imposing individual liability under § 1983.

                    a.    Warden Chavez

      The complaint alleges Warden Chavez “established a policy or custom of

holding citizens without pending criminal charges until the court filed orders of

release sua sponte.” Allegedly, these policies or customs were “a significant

moving force behind Plaintiff’s illegal detention.” The complaint further alleges

Warden Chavez’s policy of holding citizens without court orders caused the

violation of Wilson’s Fourth Amendment right to a prompt probable cause

                                         -18-
determination. That is, because Warden Chavez failed to require the filing of

written complaints, detainees, including Wilson, were held at the VCDC without

receiving prompt probable cause determinations. The complaint also alleges

Warden Chavez inappropriately trained his employees, which led to the violation

of Wilson’s right to a prompt probable cause determination. Indeed, the

complaint alleges there were numerous occasions where the VCDC and the VCSO

held individuals for days and, on some occasions, weeks, without law

enforcement taking those individuals before a magistrate judge.

      These allegations, taken as true, sufficiently establish Warden Chavez

promulgated policies which caused the constitutional harm of which Wilson

complains, i.e., his prolonged detention without a probable cause hearing. See

Dodds, 614 F.3d at 1195-96 (stating a causal connection is alleged by claiming a

supervisor defendant “set in motion a series of events that the defendant knew or

reasonably should have known would cause others to deprive plaintiff of [his]

constitutional rights” (quotations omitted)). That Wilson has not alleged he had

any direct contact with Warden Chavez or that Warden Chavez actually knew of

Wilson’s specific circumstances is of no consequence. See id. at 1195 (“Personal

involvement does not require direct participation because § 1983 states any

official who ‘causes’ a citizen to be deprived of her constitutional rights can also

be held liable.” (quotations and alteration omitted)).




                                         -19-
      Finally, the complaint alleges sufficient facts to establish Warden Chavez

acted with the requisite mental state. To establish a violation of § 1983 by a

defendant-supervisor, the plaintiff must establish, at minimum, a deliberate and

intentional act on the part of the supervisor to violate the plaintiff’s legal rights.

Porro v. Barnes, 

, 1327-28 (10th Cir. 2010). The complaint alleges

Warden Chavez acted with deliberate indifference to routine constitutional

violations occurring at the VCDC. This allegation is supported by Wilson’s

assertions that there were numerous prior occasions in which individuals at the

VCDC and VCSO were subject to prolonged warrantless detention. See supra

n.3. Appellants do not challenge the district court’s conclusion that deliberate

indifference is a sufficiently culpable mental state to impose supervisory liability

under § 1983. The complaint’s allegations against Warden Chavez therefore state

a plausible claim for relief under Dodds, and the district court did not err in

denying the motion to dismiss as to Warden Chavez.

                    b.     Sheriff Rivera

      The allegations in the complaint as to Sheriff Rivera are similar to those

against Warden Chavez. The complaint alleges Sheriff Rivera “established a

policy or custom of allowing officers to arrest people and wait before filing

charges;” that “[i]n some circumstances this policy or custom resulted in the

arrest and detention of citizens with charges never being filed;” that Sheriff

Rivera was deliberately indifferent to the ongoing constitutional violations which

                                          -20-
occurred under his supervision and due to his failure to adequately train his

employees; that the “routine warrantless arrest and incarceration of citizens

without charges being filed amounted to a policy or custom of VCSO which was

set forth by [Sheriff] Rivera,” and that such policy was “a significant moving

force behind [Wilson’s] illegal detention.” As with Warden Chavez, these

allegations, if proven, are sufficient to establish Sheriff Rivera’s individual

liability for Wilson’s unconstitutional detention under Dodds, and the district

court did not err in denying the motion to dismiss as to Sheriff Rivera.

      D.     Additional Arguments

             1.     Magistrate Court Rules

      Notwithstanding the numerous New Mexico statutes which spell out in

detail the duties of the arresting officers, warden, and sheriff as they relate to

providing citizens with a prompt post-arrest probable cause determination,

appellants cite to several provisions of New Mexico’s Rules for Magistrate Courts

in an attempt to argue it is unclear who has the responsibility for ensuring an

arrestee ensures a prompt probable cause determination. See N.M.R.A. 6-201(D)

(“If the court is not open at the time the copy of the complaint is given to the

defendant, and the defendant remains in custody, the complaint shall be filed the

next business day of the court.”); N.M.R.A. 6-203(A) (“The probable cause

determination shall be made by a magistrate, metropolitan or district court judge

promptly, but in any event within forty-eight (48) hours after custody commences

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and no later than the first appearance of the defendant whichever occurs earlier.”)

Appellants take the position that, because these provisions do not explicitly assign

responsibility for ensuring a prompt probable cause determination is made to one

particular party (e.g. the sheriff, warden, arresting officer, or court), it cannot be

clearly established that any of them violated Wilson’s constitutional rights. This

argument is unavailing. The rules cited by appellants are not inconsistent with

the numerous New Mexico statutes, discussed supra Part III.C, which delineate

the duties of the arresting officers, sheriff, and warden to ensure an arrestee

receives a timely post-arrest probable cause determination. Thus, they do not

undermine the conclusion that officials in the positions of Montano, Warden

Chavez, or Sheriff Rivera would have known their actions violated Wilson’s

constitutional rights. See Anderson, 483 U.S. at 640. 8




      8
       Similarly unavailing is appellants’ reliance on a memo from the New
Mexico Administrative Office of the Courts discussing the requirements of Rule
6-203 and the importance of the magistrate courts establishing procedures to
ensure arrestees receive a timely probable cause determination. The memo’s
silence on the duties of parties other than the magistrate courts is wholly
unremarkable, as the memo was promulgated by the administrative arm of the
New Mexico judiciary and concerns the rules of procedure for New Mexico
courts. Moreover, nothing in the memo, or the rule it interprets, suggests a
magistrate’s independent obligation to make a probable cause determination
within forty-eight hours of arrest somehow relieves other parties of their
respective duties to ensure such a determination is possible.

                                          -22-
               2.   N.M. Stat. Ann. § 33-3-12(B)

      Finally, appellants argue it would have been impossible to provide Wilson

with the relief he sought due to operation of N.M. Stat. Ann. § 33-3-12(B), which

provides: “Any jailer who deliberately and knowingly releases a prisoner without

an order of release . . . except upon expiration of the prisoner’s term of

commitment, is guilty of a misdemeanor and shall be removed from office.”

Before the district court, appellants argued the existence of § 33-3-12(B)

amounted to an extraordinary circumstance which “so prevented [them] from

knowing that [their] actions were unconstitutional that [they] should not be

imputed with knowledge of a clearly established right.” Shero, 510 F.3d at 1204.

Before this court, appellants argue simply that § 33-3-12(B) contributes to a lack

of clarity under New Mexico law as to which party is responsible for ensuring a

prompt probable cause determination. In either case, this argument is

unpersuasive. Wilson does not argue appellants had an obligation to release him.

Rather, he argues they had a duty to provide him with a prompt probable cause

determination. Those appellants with a duty to ensure Wilson received a prompt

probable cause determination could have done so without releasing him in

contravention of § 33-3-12. Thus, § 33-3-12 does not constitute an “extraordinary

circumstance” which excuses appellants’ violation of Wilson’s constitutional

rights, nor does it undermine the conclusion that those rights were clearly

established.

                                         -23-
IV.   Conclusion

      The district court erred in denying the motion to dismiss as to Torres. The

district court correctly denied the motion to dismiss as to Montano, Chavez, and

Rivera. For the foregoing reasons, the order of the district court is therefore

affirmed in part, reversed in part, and remanded for further proceedings not

inconsistent with this opinion.




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