WILLIAM P. JOHNSON, District Judge.
THIS MATTER comes before the Court upon a 12(b)(6) motion to dismiss for failure to state a claim (Doc. 16) filed on February 13, 2014 by Defendants Randy Dorman ("Dorman"), Gregg Marcantel ("Marcantel"), and John/Jane Doe ("Doe") in their individual and official capacities.
Plaintiff brings this civil action pursuant to 42 U.S.C. §1983
The Plaintiff was ordered to serve one year and 289 days in the New Mexico Department of Corrections ("NMCD") for committing various criminal offenses. His release date was May 2, 2013. At that time, Marcantel was the Secretary of the NMCD. He was directly responsible for carrying out lawful sentences imposed on persons remanded to the NMCD for incarceration by the New Mexico state court system and for releasing all prisoners upon the end of their sentences.
On May 1, 2013, Dorman, the advanced records coordinator and classification officer employed by NMCD, called Plaintiff into his office to inform him that he was not going to be released "tomorrow," his set date of release. Dorman explained that Plaintiff was supposed to have "5-20" years of parole instead of the one year parole, which Plaintiff had already served while in custody. When Plaintiff objected and urged Dorman to review his Judgment and Sentence documents, Dorman responded that pursuant to statute, he had a right to hold Plaintiff in custody until a judge said otherwise.
During Plaintiff's hearing on July 23, 2013, Dorman appeared telephonically and indicated that Plaintiff was not being released because the NMDC was under the impression that Plaintiff was subject to 5-20 years of parole and was holding him pending the approval of a parole plan. The judge determined that Plaintiff was not subject to 5-20 years of parole and ordered Plaintiff to be released immediately. Pursuant to the court's release order issued on July 26, 2013, the Plaintiff was released on July 30, 2013.
The standard for dismissal under Rule 12(b)(6) is whether the complaint contains "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic v. Twombly, 127 S.Ct. 1955, 1974 (2007). The sufficiency of a complaint is a question of law, and 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 plaintiff's favor. See Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007). However, the court is "not bound by conclusory allegations, unwarranted inferences, or legal conclusions." Hackford v. Babbitt, 14 F.3d 1457, 1465 (10th Cir. 1994).
To survive a motion to dismiss, the plaintiff must "nudge [his] claim across the line from conceivable to plausible." Twombly, 127 S.Ct. at 1974. The Tenth Circuit held that "the mere metaphysical possibility that some plaintiff could prove some set of facts in support of the pleaded claims is insufficient; the complaint must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims." Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1777 (10th Cir. 2007) (emphasis in original).
Notably, the Tenth Circuit held that "`[t]he Twombly standard may have greater bite' in the context of a §1983 claim against individual government actors, because `they typically include complex claims against multiple defendants.'" Kansas Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1215 (10th Cir. 2011) (citing Robbins v. Oklahoma, 519 F.3d 1242, 1249 (10th Cir. 2008). Thus, in a Section 1983 action, it is "particularly important" that a plaintiff's complaint "make[s] clear exactly who is alleged to have done what to whom, to provide each individual with fair notices as to the basis of the claims against him or her." Robbins, 519 F.3d at 1249-50 (emphasis in original).
In Plaintiff's response to Defendants' Motion to Dismiss, Plaintiff requests, pursuant to Fed.R.Civ.P. 56(d), "limited discovery before responding to Defendant's Motion to Dismiss if the Court converts it into a Motion for Summary Judgment." Doc. 17.
While a court may convert a Rule 12(b)(6) motion to dismiss into a motion for summary judgment in order to consider matters outside of the plaintiff's complaint, Defendants' Motion to Dismiss relies only on the allegations made in the Plaintiff's First Amended Complaint. Brown v. Zavaras, 63 F.3d 967, 969 (10th Cir. 1995). Further, by filing his Response (Doc. 17), Plaintiff demonstrates that he does not need "limited discovery before responding to Defendants' Motion to Dismiss." Hence, the Court shall proceed its analysis under the framework of Rule 12(b)(6).
Defendants seek to dismiss all of Plaintiff's federal claims against Defendants in their official capacities. The Eleventh Amendment immunizes an "unconsenting State . . . from suits brought in federal courts by her own citizens . . ." Edelman v. Jordan, 415 U.S. 651, 663 (1974). Defendants assert that because Marcantel is a state official and Dorman is a state employee, the Eleventh Amendment shields them from direct suit in federal court. Johnson v. Bd. Of Cnty. Comm'rs for Cnty. of Fremont, 85 F.3d 489, 493 (10th Cir. 1996) (stating that "an official capacity suit is only another way of pleading an action against an entity of which an officer is an agent").
The Plaintiff responds by citing case law which in actuality, serves to confirm and elaborate on the Defendants' argument. See Hafter v. Melo, 502 U.S. 21, 30-31 (1991) (stating that while the Eleventh Amendment shields state officials from suit in federal court, it "does not erect a barrier against suits to impose `individual and personal liability' on state officials under § 1983").
Because Plaintiff has failed to supply any case precedent or any evidence suggesting New Mexico has waived its Eleventh Amendment immunity, Plaintiff's federal claims against Defendants Marcantel, Dorman, and Doe in their official capacities shall be dismissed.
Defendants contend that Plaintiff's state tort claims
That New Mexico has not waived its Eleventh Amendment immunity under NMTCA is well established law. Therefore, the Court dismisses, without prejudice, Plaintiff's state tort claims against all Defendants in both their official and individual capacities. Wojciechowski v. Harriman, 607 F.Supp. 631, 634 (D.N.M. 1985) (stating that Section 41-4-4(F) bars tort claim suits against state in federal court, but the Eleventh Amendment bar does not preclude state law tort claims against counties and municipalities in federal court under diversity or pendent jurisdiction). Defendants may not be sued in their individual capacities because the theory of respondeat superior dictates that suing state employees individually based on their actions performed within the scope of their employment inevitably amounts to suing the state.
The Plaintiff is now left with his three Section 1983 claims against Defendants Dorman, Marcantel, and Doe in their individual capacities.
While Plaintiff has brought three Section 1983 claims based on the Eight, Fourteenth, and the Fourth Amendments, Defendants only dispute the legitimacy of Plaintiff's claim regarding the alleged violation of his Fourth Amendment.
The Defendants contend that Plaintiff cannot make a cognizable claim under the Fourth Amendment based on being incarcerated beyond his release date. Defendants explain that where a plaintiff "challenges merely the confinement after the institution of the legal process, but not the process itself, `the protections offered by the Fourth Amendment do not apply'" (emphasis in original). Wilkins v. DeReyes, 528 F.3d 790, 798 (10th Cir. 2008). Defendants assert that because the Plaintiff only challenges his continued incarceration after May 2, 2013 and not the fact that he was incarcerated in the first place, Plaintiff has no Fourth Amendment claim.
In response, Plaintiff cites a case where the incarcerated plaintiff's warrant did not state that he had "committed any criminal offense or had been convicted of any crime." Ex parte Burford, 7 U.S. 448, 452 (1806); see also Albright v. Oliver, 510 U.S. 266 (1994) (stating that Fourth Amendment governed pretrial deprivations of liberty). The cases that Plaintiff offers do not support his stance in any way. Instead, they affirm the Defendants' position that the Fourth Amendment applies to pretrial deprivations of liberty and not issues relating to post-conviction matters.
Plaintiff was already convicted and then finished serving his sentence. He complains neither about the process nor the basis of his arrest, but about the fact that he stayed in jail 89 days longer than he should have. Under the cited case law, Plaintiff's 89 days of excessive post conviction incarceration is not a Fourth Amendment violation. Accordingly, Plaintiff's §1983 claim based on an alleged violation of his Fourth Amendment rights shall be dismissed, leaving Plaintiff with his Eighth and Fourteenth
A plaintiff must plead allegations pertaining to individual Defendants, especially in a multi-defendant Section 1983 case. See Robbins, 519 F.3d at 1249-50. However, Defendants assert that the Plaintiff fails to provide each Defendant with notice of any claim by lumping all Defendants together in making his various allegations. For example, Plaintiff states the following in his First Amended Complaint (Doc. 9):
Plaintiff vaguely responds that he is not required to state what each Defendant did because all of the named Defendants deprived Plaintiff of his rights. He contends that "[f]or liability under Section 1983, direct participation is not necessary. Any official who `causes' a citizen to be deprived of her constitutional rights can also be held liable." Snell v. Tunnell, 920 F.2d 673, 700 (10th Cir. 1990).
However, the portion of Snell that Plaintiff provides is incomplete without the following sentence that immediately follows the quoted language:
A more complete reading of Snell requires the Plaintiff to establish a causal connection between a defendant's act and the consequence of that act that violated the plaintiff's constitutional rights.
In fact, Robbins states that the complaint must "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, as distinguished from collective allegations against the state." 519 F.3d at 1249-50 (explaining that this specification is needed particularly in § 1983 cases because defendants often include the government agency and a number of government actors sued in their individual capacities).
Here, most of the allegations made in Plaintiff's First Amended Complaint improperly lump the Defendants together without specifying who did what to whom. The only paragraphs in which Plaintiff does tailor his factual allegations are paragraphs 16 and 18 directed at Dorman. See Doc. 9. After much hesitation, the Court finds the allegations against Dorman sufficient to survive a 12(b)(6) motion to dismiss because paragraphs 16 and 18 do allege who (Dorman) did what (excessive incarceration) to whom (Plaintiff). As follows, Plaintiff's remaining claims (the Section 1983 claims based on Eighth and Fourteenth Amendment) against all Defendants except Dorman shall be dismissed.
The Plaintiff also makes an allegation against Marcantel in paragraph 5 of his Amended Complaint which states as follows:
Defendants assert that Marcantel, as Secretary of the NMCD, cannot be held liable for his subordinate's actions (e.g. Dorman) unless Plaintiff makes specific allegations that show Marcantel was in any way involved with keeping Plaintiff incarcerated after his release date of May 2, 2013.
A civil rights action against a public official may not be based solely on a theory of respondeat superior liability for the actions of co-workers or subordinates. Ashcroft v. Iqubal, 129 S.Ct. 1937, 1948 (2009) ("[b]ecause vicarious liability is inapplicable to . . . § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution"). Further, a "theory of negligent supervision cannot provide a basis for liability under §1983." Spencer v. Landrith, 315 App'x 62, 54 (10th Cir. Feb. 26, 2009) (unpublished). Also, "there is no concept of strict supervisor liability under section 1983." Jenkins v. Wood, 81 F.3d 988, 994 (10th Cir. 1996). Rather, "the plaintiff must establish a deliberate, intentional act by the supervisor to violate constitutional rights." Id. at 994-95. In other words, Plaintiff must allege some personal involvement by Marcantel in the alleged constitutional violation to succeed in a complaint under §1983. See Fogarty v. Gallegos, 523 F.3d 1147, 1162 (10th Cir. 2008); see also Snell, 920 F.2d at 700 (stating that "[p]laintiffs must show that a supervisory defendant, expressly or otherwise authorized, supervised, or participated in the conduct which caused the constitutional deprivation").
The Defendants assert that the conclusory and unspecific allegation Plaintiff makes against Marcantel fails to show specific personal involvement required for a Section 1983 claim. Plaintiff inaccurately responds that the law permits the status of supervisor alone to create liability for his subordinates' actions.
While direct participation is not necessary, the Plaintiff must allege some facts establishing a causal connection between the defendant-supervisor's act and the injury to himself. Yet here, Plaintiff asserts no facts alleging what Marcantel did to whom. As Serna v. Colo. Dep't of Corr. states, "`supervisory liability must be based upon active unconstitutional behavior' and `more than a mere right to control employees.'" 455 F.3d 1146, 1153 (10th Cir. 2006). The fact that Marcantel's general duties include carrying out lawful sentences and releasing prisoners do not show that Marcantel did anything to authorize, supervise, or participate in the conduct which caused the constitutional deprivation. Snell, 920 F.2d at 700. Therefore, Plaintiff has no valid claims against Marcantel.
Plaintiff has remaining his Eighth Amendment and Fourteenth Amendment claims against Defendant Dorman in his individual capacity only. Accordingly, the Court GRANTS in part and DENIES in part the Defendants' 12(b)(6) Motion to Dismiss for the reasons stated in this Memorandum Opinion and Order.
