Stanley v. Gallegos, et al.
ORDER by Magistrate Judge Gregory B. Wormuth GRANTING IN PART AND DENYING IN PART 160 Motion for Summary Judgment on the basis of Absolute Prosecutorial and Eleventh Amendment Immunity; GRANTING IN PART AND DENYING IN PART 196 Supplemental Motion for Summary Judgment on the basis of Qualified Immunity. See Order for specifics. (km)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
DAVID N. STANLEY,
DONALD GALLEGOS, et al.,
Civ. No. 11‐1108 GBW/JHR
MEMORANDUM OPINION AND ORDER
THIS MATTER comes before the Court on Defendant Gallegos’s renewed
Motion for Summary Judgment on Qualified Immunity Grounds (doc. 196) and
Defendant Gallegos’s Motion for Summary Judgment (doc. 160) on the basis of Eleventh
Amendment and absolute prosecutorial immunity. The Court has reviewed the
Motions and related briefing (docs. 197, 202, 165), and has heard oral argument on the
Motions (docs. 205, 207, 208).
For the reasons explained more fully below, the Court finds: (1) the Eighth
Judicial District Attorney’s Office is an arm of the state of New Mexico and Plaintiff’s
official‐capacity § 1983 claims against the office are therefore precluded by Eleventh
Amendment immunity; (2) Defendant Gallegos was not acting in his role as a
prosecutor when he took the actions at issue and is thus not entitled to absolute
prosecutorial immunity on any of Plaintiff’s claims; (3) Plaintiff has met his burden of
showing that Defendant Gallegos violated both Plaintiff’s Fourteenth Amendment right
to procedural due process and his Fourth Amendment right against unreasonable
seizures in taking the actions at issue; (4) however, Plaintiff has not met his burden to
show that Defendant Gallegos violated clearly established law which entitles Defendant
Gallegos to qualified immunity on Plaintiff’s individual‐capacity § 1983 claims for
monetary relief; and (5) Plaintiff’s claims for injunctive relief are not foreclosed by either
qualified immunity or the Eleventh Amendment.
Therefore, the Court will GRANT IN PART and DENY IN PART Defendant
Gallegos’s Motion for Summary Judgment asserting Eleventh Amendment and absolute
prosecutorial immunity (doc. 160), and will GRANT IN PART and DENY IN PART
Defendant Gallegos’s Motion for Summary Judgment on Qualified Immunity Grounds
The central dispute giving rise to the events underlying this litigation is whether
a road traversing Plaintiff’s property, Red Hill Road, is public or private. Plaintiff is a
rancher whose ranch (“Stanley Ranch”) is located in both Colfax and Mora Counties,
On September 6, 2002, Defendant Donald Gallegos, the New Mexico District
Attorney representing Taos, Colfax, and Union Counties, sent Plaintiff a letter stating
that he had received information that Plaintiff was planning to place a gate across Red
Hill Road. Defendant Gallegos believed Red Hill Road was a public road pursuant to
43 U.S.C. § 932, also known as Revised Statute 2477 (“R.S. 2477”). See doc. 158 at 5, 9;
doc. 158‐2 at 7‐9. Accordingly, the letter warned Plaintiff that Red Hill Road “is a public
road and any placement of a gate or any other obstruction will be dealt with
appropriately, including, but not limited to, the filing of criminal charges against you.”
Doc. 125, Ex. C at 1.
Sometime thereafter, Plaintiff, believing Red Hill Road to be his private property,
erected a gate to block access to the road by the public. He placed the gate at the county
line where Red Hill Road crosses from Mora County into Colfax County. Nine years
after sending the first letter, on August 3, 2011, Defendant Gallegos sent Plaintiff
another letter on official stationery informing Plaintiff that he had no authority to place
a gate on the road and “requesting” that he remove it. See doc. 160‐1 at 17. The letter
further stated that, “Should you fail to do so, I will take any and all steps necessary to
make sure that the gate is opened and/or removed.” Id. On August 11, 2011, Plaintiff
filed a quiet title action in New Mexico’s Eighth Judicial District Court, claiming title to
Stanley Ranch, including the portion of Red Hill Road that traverses the ranch. Doc. 21
at 2.1 Thirteen days later, on August 24, 2011, Defendant Gallegos, along with
Defendant Ed Olona and several other individuals including officers from the Mora and
Colfax County Sheriff’s Departments, went to the gate on Red Hill Road. Doc. 125 at 1‐
2. Together, they removed the obstruction from the road by cutting the locked chain
The quiet title action is still pending and is presently scheduled for trial in March 2018. See doc. 202 at 3;
doc. 205 at 2.
securing the gate, and by removing a barbed‐wire fence and T‐posts set up at the cattle
crossing. Doc. 21 at 3; doc. 40 at 4. The T‐posts, fence, and gate itself were left at the
scene, although not intact. See id.
On August 26, 2011, Defendant Gallegos sent Plaintiff a letter on his official
letterhead informing him:, “Since I did not hear back from you regarding the letter I
had sent you, I have taken action to open the gate on Red Hill Road.” See doc. 21, Ex. C.
Defendant Gallegos reiterated that Red Hill Road “is a public road” and that if Plaintiff
locked the gate or obstructed the cattle guard again, he would “take action to have
criminal charges filed against [Plaintiff] for obstructing a public road.” Id. Plaintiff did
not heed this letter and instead erected the gate again soon thereafter. On September
10, 2011, a Colfax County Deputy Sheriff, Tony Aguirre, went to Red Hill Road along
with Defendant Olona and others to again unlock the gate. Plaintiff alleges that the
second unlocking was done at Defendant Gallegos’s direction. Doc. 21 at 3‐4. County
Sheriff Patrick Casias swore by affidavit that, based on Defendant Gallegos’s previous
legal advice that the road was public, Sheriff Casias instructed Deputy Aguirre to
remove the obstruction after receiving a phone call from Defendant Olona that the gate
was again locked. Doc. 40‐1 at 3.
On December 19, 2011, Plaintiff filed this action pursuant to 42 U.S.C. § 1983,
alleging various constitutional violations on the basis that Defendants’ actions
constituted (1) an unlawful taking of private property for public use without just
compensation in violation of the Fifth Amendment; (2) an unreasonable search and
seizure in violation of the Fourth Amendment; and (3) deprivation of his property
without due process in violation of the Fourteenth Amendment. See doc. 21 at 5‐7. In
addition, Plaintiff alleged violations of the New Mexico Constitution on the same
grounds and brought state law statutory trespass claims against various Defendants.
The procedural history of this case is extensive and will not be recounted in its
entirety here. Pertinent to the present motions, Defendant Gallegos moved for
summary judgment on the basis of qualified immunity on January 30, 2015. Doc. 115.
The Court denied that motion on August 25, 2015, ruling that Defendant Gallegos acted
outside the scope of his authority as a district attorney when he removed the gate from
Red Hill Road, and he was therefore not entitled to invoke qualified immunity. Doc.
167. The Court’s qualified immunity ruling was appealed to the Tenth Circuit Court of
Appeals on September 18, 2015. Doc. 176. On March 17, 2017, in a 1‐1‐1 decision, the
Court of Appeals overturned the Court’s ruling and remanded the case for a qualified
immunity analysis absent application of a scope‐of‐authority exception. See doc. 191.
The Court of Appeals denied Plaintiff’s petition for a rehearing en banc on June 7, 2017.
Prior to the appeal on the qualified immunity issue, on July 10, 2015, Defendant
Gallegos filed a separate Motion for Summary Judgment in which he asserted both
Eleventh Amendment Immunity and absolute prosecutorial immunity as alternative
grounds for dismissing the claims against him. See doc. 160. That motion was fully
briefed but remained pending while the qualified immunity issue was on appeal. See
Following remand, the parties were ordered to file supplemental briefing
regarding Defendant Gallegos’s assertion of qualified immunity, which was completed
on August 24, 2017. See docs. 194, 196, 197, 202. On September 11, 2017, the Court held
a motion hearing regarding all pending motions in the case, including Defendant
Gallegos’s renewed Motion for Summary Judgment on Qualified Immunity Grounds
(doc. 196) and his Motion for Summary Judgment on the basis of Eleventh Amendment
and absolute prosecutorial immunity (doc. 160). See docs. 195, 198, 205. Both motions
are now ripe for ruling.2
STANDARD OF REVIEW
Under Federal Rule of Civil Procedure 56(a), this Court must “grant summary
judgment if the movant shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The
movant bears the initial burden of “show[ing] ‘that there is an absence of evidence to
support the nonmoving party’s case.’” Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d
887, 891 (10th Cir. 1991) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)). Once
the movant meets this burden, the non‐moving party is required to designate specific
Because these motions concern Plaintiff’s federal claims, this Order does not address his state law
statutory trespass claims, which are the subject of separate briefing (docs. 168, 170) and thus will be
addressed by separate order.
facts showing that “there are . . . genuine factual issues that properly can be resolved
only by a finder of fact because they may reasonably be resolved in favor of either
party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); Celotex, 477 U.S. at 324.
However, summary judgment motions based upon the defense of qualified
immunity are reviewed differently from other summary judgment motions. Qualified
immunity is “designed to protect public officials from spending inordinate time and
money defending erroneous suits at trial.” Clark v. Edmunds, 513 F.3d 1219, 1222 (10th
Cir. 2008). Therefore, when a public official is entitled to qualified immunity, the
entitlement relieves the official from bearing any of the burdens of litigation, including
discovery. Ashcroft v. Iqbal, 556 U.S. 662, 672 (2009). The Supreme Court “has directed
the lower federal courts to apply qualified immunity broadly, to protect from civil
liability for damages all officers except ‘the plainly incompetent or those who
knowingly violate the law,’” in order to avoid unduly inhibiting officers in performing
their official duties. Wilson v. City of Lafayette, 510 F. App’x 775, 780 (10th Cir. 2013)
(unpublished) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986), and Medina v. Cram,
252 F.3d 1124, 1127 (10th Cir. 2001)). The qualified immunity standard allows
government officials “ample room for mistaken judgments,” shielding them from
liability for reasonable error. Applewhite v. U.S. Air Force, 995 F.2d 997, 1000 (10th Cir.
1993) (quoting Hunter v. Bryant, 502 U.S. 224, 229 (1991)). Thus, qualified immunity is
“applicable unless the official’s conduct violated a clearly established constitutional
right.” Pearson v. Callahan, 555 U.S. 223, 232 (2009). For that reason, “’clearly
established law’ should not be defined ‘at a high level of generality.” Pauly v. White, 137
S.Ct. 548, 552 (2017) (quoting Ashcroft v. al‐Kidd, 563 U.S. 731, 724 (1987)). Instead, “the
clearly established law must be ‘particularized’ to the facts of the case.” Id. (quoting
Anderson v. Creighton, 483 U.S. 635, 640 (1987)).
Whether the motion for summary judgment is based on qualified immunity or
not, the Court decides the motion on the basis of the facts as construed in the light most
favorable to the non‐moving party. Consequently, it must keep in mind three
principles. First, the Court’s role is not to weigh the evidence, but to assess the
threshold issue of whether a genuine issue exists as to material facts requiring a trial.
See Liberty Lobby, 477 U.S. at 249. “An issue is ‘genuine’ if there is sufficient evidence on
each side so that a rational trier of fact could resolve the issue either way. An issue of
fact is ‘material’ if under the substantive law it is essential to the proper disposition of
the claim.” Thom v. Bristol Myers Squibb Co., 353 F.3d 848, 851 (10th Cir. 2003) (internal
Second, the Court must resolve all reasonable inferences and doubts in favor of
the non‐moving party, and construe all evidence in the light most favorable to the non‐
moving party. See Tolan v. Cotton, 134 S. Ct. 1861, 1866 (2014); see also Riggins v.
Goodman, 572 F.3d 1101, 1107 (10th Cir. 2009) (noting that courts generally “accept the
facts as the plaintiff alleges them” when considering whether a plaintiff has overcome
defendant’s assertion of qualified immunity at the summary judgment stage).
However, “a plaintiff’s version of the facts must find support in the record” at the
summary judgment stage. Thomson v. Salt Lake Cty., 584 F.3d 1304, 1312 (10th Cir. 2009).
Third, the court cannot decide any issues of credibility. See Liberty Lobby, 477 U.S.
at 255. “[T]o survive the . . . motion, [the non‐movant] need only present evidence from
which a jury might return a verdict in his favor.” Id. at 257.
PLAINTIFF’S OFFICIAL‐CAPACITY CLAIMS FOR DAMAGES ARE BARRED BY ELEVENTH
The Eleventh Amendment provides: “The Judicial power of the United States
shall not be construed to extend to any suit in law or equity, commenced or prosecuted
against one of the United States by Citizens of another State, or by Citizens or Subjects
of any Foreign State.” Const. amend. XI. Only a state or “arms” of a state may assert
the Eleventh Amendment as a defense to suit in federal court. Sutton v. Utah State Sch.
for Deaf & Blind, 173 F.3d 1226, 1232 (10th Cir. 1999).
“It is inherent in the nature of sovereignty not to be amenable to the suit of an
individual without its consent.” Hans v. Louisiana, 134 U.S. 1, 13 (1890). Thus, the
Eleventh Amendment has long been recognized as rendering states and state entities
immune to suit in federal court generally. See College Sav. Bank v. Fla. Prepaid
Postsecondary Educ. Expense Bd., 527 U.S. 666, 669 (1999). However, that immunity “is
not absolute” and there are two circumstances in which it does not apply: (1) where
Congress has “authorize[d] such a suit in the exercise of its power to enforce the
Fourteenth Amendment” and (2) where a state has “waive[d] its sovereign immunity by
consenting to suit.” Id. at 670.
“As long as the government entity receives notice and an opportunity to
respond,” a claim brought against a public official in his official capacity “is, in all
respects other than name, to be treated as a suit against the entity.” Kentucky v. Graham,
473 U.S. 159, 166 (1985); see also Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989)
(“a suit against a state official in his or her official capacity is not a suit against the
official but rather is a suit against the official’s office.”). Congress did not abrogate
Eleventh Amendment immunity when it enacted 42 U.S.C. § 1983. Quern v. Jordan, 440
U.S. 332, 345 (1979). Accordingly, states (and state officials sued in their official
capacities) cannot be sued for damages under § 1983.3 Will, 491 U.S. at 71. Therefore,
whether Eleventh Amendment immunity bars Plaintiff’s official‐capacity claims against
Defendant Gallegos depends on whether those claims have been brought against a state
entity or a municipal entity.
Defendant Gallegos asserts that the Eleventh Amendment precludes the official‐
capacity claims against him because he is a state actor who acted as an official of the
Eleventh Amendment immunity does not protect against official‐capacity suits seeking only prospective
injunctive or declaratory relief. Papasan v. Allain, 478 U.S. 265, 276‐78 (1986). Plaintiff does seek a
permanent injunction against all Defendants, their agents, and employees, from trespassing on or
damaging his property or from interfering with any and all measures taken by Plaintiff to maintain the
roads on his property as private roads. See doc. 21 at 11. The Court will address the injunctive relief claim
Eighth Judicial District Attorney’s Office. See doc. 160 at 8‐10. The law governing
whether an entity is an “arm of the state” for purposes of Eleventh Amendment
immunity against official‐capacity claims:
turns on whether the [entity] is to be treated as an arm of the State
partaking of the State’s Eleventh Amendment immunity, or is instead to
be treated as a municipal corporation or other political subdivision to
which the Eleventh Amendment does not extend. The answer depends, at
least in part, on the nature of the entity created by state law.
Sturdevant v. Paulsen, 218 F.3d 1160, 1164 (10th Cir. 2000) (alteration in original) (quoting
Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280 (1977)). In short, “the
inquiry with regard to a particular entity is whether it is more like a county or city than
. . . like an arm of the state[.]” Id. (internal quotations and citation omitted). Moreover,
though it is “ultimately a matter of federal law, arm‐of‐the‐state status must be
determined in each case by reference to the particular state laws characterizing the
In the Tenth Circuit, determining whether a particular governmental entity is an
“arm of the state” requires an examination of the following four factors: “(1) the
characterization of the governmental unit under state law; (2) the guidance and control
exercised by the state over the governmental unit; (3) the degree of state funding
received; and (4) the governmental unit’s ability to issue bonds and levy taxes on its
own behalf.” Sutton, 173 F.3d at 1232 (citing Ambus v. Granite Bd. of Educ., 995 F.2d 992,
994 (10th Cir. 1993)). These factors are commonly called the “Mt. Healthy factors,” after
the Supreme Court decision which first applied these factors to reject an Ohio school
district board’s assertion of Eleventh Amendment immunity. Previously in the Tenth
Circuit, the third and fourth Mt. Healthy factors had been characterized as the second
prong of a two‐pronged inquiry, which required the court to “examine the extent of
financing the agency receives independent of the state treasury and its ability to provide
for its own financing. The governmental entity is immune from suit if the money
judgment sought is to be satisfied out of the state treasury.” Watson v. Univ. of Utah
Med. Ctr., 75 F.3d 569, 574‐75 (10th Cir. 1996) (internal citations omitted).
This approach does not mean that a plaintiff can avoid Eleventh Amendment
immunity by simply asking the Court to craft its order so that a money judgment is not
paid out of the state treasury. Rather, the Tenth Circuit has cautioned courts “to focus
on legal liability for a judgment, rather than [the] practical, or indirect, impact a
judgment would have on a state’s treasury.” Duke v. Grady Mun. Schs., 127 F.3d 972, 981
(10th Cir. 1997). In other words, “’it is the entity’s potential legal liability, rather than
its ability or inability to require a third party to reimburse it, or to discharge the liability
in the first instance, that is relevant” in determining whether the entity is entitled to
Eleventh Amendment immunity. Id. (emphasis added) (quoting Regents of the Univ. of
Cal. v. Doe, 519 U.S. 425, 431 (1997)). Or, as the Supreme Court explained in Doe: “The
question is not who pays in the end; it is who is legally obligated to pay the judgment
that is being sought.” 519 U.S. at 428 (quotations and citation omitted).
Defendant Gallegos asserts that, when he took the actions underlying this
litigation, he was acting in his official capacity as an official of a state agency—namely,
the Eighth Judicial District Attorney’s office. See doc. 160 at 8‐10. Thus, because “state
entities and state employees acting in their official capacities are entirely immune from
suit under the Eleventh Amendment,” he argues that the official‐capacity claims against
him must be dismissed. See id. at 9.
In response to Defendant Gallegos’s assertion of Eleventh Amendment
immunity, Plaintiff initially argued that Defendant Gallegos “was acting ‘on behalf of’
Colfax County, and not the State of New Mexico,” when he took the allegedly
unconstitutional actions underlying this litigation. Doc. 165 at 1. This argument
compelled the Court to hold a hearing regarding whether Colfax County was a
necessary party to the case pursuant to Fed. R. Civ. P. 19, because “[i]f the Court were to
accept Plaintiff’s theory, Colfax County could be exposed to municipal liability
stemming from Plaintiff’s official‐capacity § 1983 claims.” Doc. 206 at 2 (citing Monell v.
Dep’t of Soc. Servs. of N.Y.C., 436 U.S. 658, 707‐08 (1978)). However, during the
December 8, 2017 hearing on the possible necessity of joinder of the County, Plaintiff’s
counsel clarified that the official‐capacity claims in this case are brought against the
governmental entity of the Eighth Judicial District Attorney’s Office for the State of
New Mexico, not against Colfax County.4 This explicit concession forecloses the need to
analyze whether Defendant Gallegos acted “on behalf of” the State or the County,
which might otherwise be necessary to determine against which entity Plaintiff brings
his official‐capacity claims. See McMillian v. Monroe Cty., Ala., 520 U.S. 781, 786 (1997).
As noted above, an official‐capacity suit “is, in all respects other than name, to be
treated as a suit against the entity.” Kentucky v. Graham, 473 U.S. at 165. Unlike Colfax
County, the district attorney’s office is an arm of the state and is therefore entitled to
Eleventh Amendment immunity against Plaintiff’s official‐capacity claims. Jackson v.
N.M. Pub. Def.’s Office, 361 F. App’x 958, 961‐62 (10th Cir. 2010) (unpublished) (agreeing
with the trial court that the office of the district attorney in New Mexico is an arm of the
state and thus “protected from suit by the Eleventh Amendment”); Macias v. Griffin, 612
F. App’x 532, 534 (10th Cir. 2015) (unpublished) (“Dismissal of the claims against [New
Mexico’s Fifth Judicial] [D]istrict [A]ttorney’s [O]ffice was also appropriate because it is
a state office that is both protected by the Eleventh Amendment and not subject to suit
under § 1983”); Vacek v. Court of Appeals, Santa Fe, N.M., 325 F. App’x 647, 649 (10th Cir.
Specifically, Plaintiff’s counsel John Hays explained:
I think there has been some lack of clarity in the case about what entity we are dealing
with here. And as you know, an official[‐]capacity claim is a claim not against the
individual, but against the responsible entity. And I think here, the entity is not the
county of Colfax. The entity is the office of the Eighth Judicial District Attorney. That’s
who Mr. Gallegos was acting as an agent of.
Doc. 207, Joinder Hr’g Tr. at 7:20‐8:3. Mr. Hays further explained that “it’s key that [the Eighth Judicial
District Attorney’s Office is] an independent office. So the judgment, in an official capacity, would be
against [Defendant Gallegos] in his official capacity or against his office, but it would not be against
Colfax County.” Id. at 9:15‐19.
2009) (unpublished) (holding that “the New Mexico courts and agencies listed as
defendants,” which included the Second Judicial District Attorney’s Office, “are not
entities against which 42 U.S.C. § 1983 . . . claims may be lodged given Eleventh
Amendment immunity”); Ysais v. Richardson, Civ. No. 07‐0287, JB/RLP, 2008 WL
4861697, at *5 (D.N.M. July 9, 2008) (holding that the Thirtieth Judicial District
Attorney’s Office in New Mexico is a state entity immune from suit under the Eleventh
Amendment); Luginbuhl v. City of Gallup, et al., Civ. No. 12‐1199, KG/SMV, 2016 WL
10592141, at *5 (D.N.M. Jan. 28, 2016) (same holding regarding the Eleventh Judicial
District Attorney’s Office of New Mexico); James v. Dist. Attorney’s Office, Civ. No. 16‐
1183, MV/GBW, 2017 WL 3405555, at *3 (D.N.M. Mar. 24, 2017) (proposing the Court
find that the Ninth Judicial District Attorney’s Office is a state entity protected from §
1983 claims by the Eleventh Amendment), adopted in Order Adopting Report and
Recommendations, doc. 12 in 16‐cv‐1183 MV/GBW (D.N.M. Apr. 28, 2017). Plaintiff
points to no authority to support a finding that a New Mexico District Attorney’s Office
is not a state agency. See generally doc. 165. Rather, as noted above, he asks the Court to
analyze whether Defendant Gallegos acted “on behalf of” Colfax County instead of the
State of New Mexico. Id. at 1, 5‐10. Such an analysis is not appropriate in light of
Plaintiff’s concession that his official‐capacity claims are not brought against Colfax
The only apparent alternative would be a finding that, for the purposes of this
case, the Office of the District Attorney for the Eighth Judicial District was a county
agency. Yet Plaintiff’s counsel has repeatedly disclaimed such an argument. The
following colloquy between Plaintiff’s counsel and the Court during the joinder hearing
MR. HAYS: . . . [Colfax] [C]ounty . . . has never expressed an interest in
coming into this case. They don’t want to have anything to do with this[.]
THE COURT: Well, they may feel a lot different if I say [Defendant
Gallegos is] a county official and he gets qualified immunity as an
individual . . . but he was acting as a final policymaker for [the county] . . .
and, therefore, there’s a judgment against the county.
MR. HAYS: Well, again, I don’t think it would be a judgment against the
county. It would be a judgment against Mr. Gallegos in his official
capacity, not against Colfax County.
It may be collectable [from the county] through a constitutional
provision . . . but it’s not a judgment against Colfax County. It’s not a
finding that Colfax County or the Board of County Commissioners of
Colfax County did anything wrong.
It would be a finding that Mr. Gallegos . . . in his official capacity, in
his office, violated [Plaintiff’s] constitutional rights, not that the county
did. . . .
We enumerated all the factors that showed [Defendant Gallegos]
was, in fact, acting on behalf [of] or [in] the interest of a county here [in
Plaintiff’s Eleventh Amendment immunity briefing]. But that doesn’t
mean that Colfax County is somehow liable or responsible or implicated.
THE COURT: Then who is?
MR. HAYS: The office of the district attorney.
THE COURT: And so this judgment is against their budget?
MR. HAYS: Well, it’s a judgment against them. And the . . . constitutional
provision [of Article 8, Section 7 of the New Mexico Constitution] says:
“No execution shall issue upon a judgment rendered against any
officer of any county recovered against him in his official capacity and for
which the county is liable, but the same should be paid out of the
proceeds of a tax levy.”
. . .
MR. HAYS: It’s a judgment against the official which the county pays
through a special tax levy. That’s what the constitutional provision is.
THE COURT: . . . I’m familiar with that. That’s what happens in every
case against the county. That doesn’t – I mean, I’ve never had somebody
say to me before, “Well, that means it’s not against the county.”
Of course it’s against the county. It’s against the taxpayers of the
county. . . .
MR. HAYS: Well,  there’s a process where the county pays it. But . . . it’s
a judgment against that  government official and against his entity.
. . .
THE COURT: . . . [I]f a tax levy against the residents of a county is not a
judgment against the county, who is it against?
MR HAYS: Again, . . . I see the judgment and the collection process as
being different. I think the judgment is against Mr. Gallegos in his official
capacity and against his office independently. It’s collected through this
process [set forth in Article 8, Section 7 of the New Mexico Constitution],
and it’s collected from the taxpayers of the county.
Doc. 207, Joinder H’rg Tr. at 14:18‐15:17, 16:5‐23, 17:17‐18:10, 35:3‐13.
It is apparent that Plaintiff is not arguing that the Office of the District Attorney
for the Eighth Judicial District was a county agency. Given this position and the
universal and persuasive precedent (albeit unpublished and unbinding), this Court
concludes that the office being sued via Plaintiff’s official‐capacity claims is a state
agency. Consequently, it would be protected by Eleventh Amendment immunity.
Notwithstanding his unwillingness to argue that the Office of the District
Attorney is a county agency for the purposes of this case, Plaintiff appears to offer one
argument against the application of Eleventh Amendment immunity. Plaintiff notes
that a key factor in determining whether an official is entitled to Eleventh Amendment
immunity as a state official is whether a judgment for liability would be paid out of the
state or county treasury. See doc. 205 at 7. Relying on the same constitutional provision
stating that actions by a local government official resulting in liability are paid out of
local funds, Plaintiff’s counsel argued during the September 11, 2017 hearing in this
matter that the Court could fashion a remedy that does not violate the Eleventh
Amendment by ordering the judgment be paid according to that constitutional process.
Id. Specifically, he contended that the judgment could be simply collected from Colfax
County via the process laid out in Article 8, Section 7 of the New Mexico Constitution.
Id. According to Plaintiff, this collection method would mean that, for the purposes of
Eleventh Amendment immunity, the judgment would be against Colfax County and
not the State of New Mexico. To the extent that this argument was meant to be applied
to the official‐capacity claims,5 it is unavailing.
First, a judgment against the Office of the District Attorney for the Eighth Judicial
District collected via the highlighted state constitutional process would not proceed as
described by Plaintiff. That office covers three counties—Taos, Colfax and Union.
Plaintiff may have been making the “funding” argument in opposition to Eleventh Amendment
immunity as to the individual claims against Defendant Gallegos.
Therefore, if indeed the process laid out in Article 8, Section 7 of the New Mexico
Constitution was applicable, it would appear that the tax levy would be collected from
the citizens of all three counties, not just Colfax. This likely reality undermines any
suggestion that the official‐capacity claims could sidestep the Eleventh Amendment
immunity problem simply because only Colfax County taxpayers would be paying the
Second, and more fundamentally, Eleventh Amendment immunity is focused on
legal liability and not “who pays in the end.” Doe, 519 U.S. at 428. Plaintiff has
repeatedly acknowledged—even insisted—that the official‐capacity claims are brought
against the Office of the Eighth Judicial District Attorney, and not against Colfax
County, and that any judgment in Plaintiff’s favor on his official‐capacity claims would
be a judgment against that office. As explained above, in analyzing whether a given
entity is entitled to Eleventh Amendment immunity, “it is the entity’s potential legal
liability, rather than its ability or inability to require a third party to reimburse it, or to
discharge the liability in the first instance, that is relevant[.]” Duke, 127 F.3d at 981. The
Court cannot bypass the question of whether the district attorney’s office is a state
entity—and thus entitled to Eleventh Amendment immunity on Plaintiff’s official‐
capacity claims—by simply ordering that Colfax County pay a judgment, through a
special tax levy, when the judgment sought by those claims would not be against Colfax
Plaintiff has conceded that he is seeking a favorable judgment on his official‐
capacity claims only against Defendant Gallegos in his official capacity as an agent of
the Office of the District Attorney for the Eighth Judicial District. He does not seek any
judgment against Colfax County or its Board of County Commissioners. See doc. 207,
Joinder H’rg Tr. at 9:16‐19 (Plaintiff’s counsel stating that “the judgment, in an official
capacity, would be against [Defendant Gallegos] in his official capacity or against his
office, but it would not be against Colfax County.”). The Office of the District Attorney
for the Eighth Judicial District is a state agency. Consequently, Plaintiff’s § 1983 official‐
capacity claims for damages against Defendant Gallegos are barred by the Eleventh
Amendment6 and shall be dismissed with prejudice.7
In fact, these claims also suffer from an analytically‐similar, yet distinct, flaw. A state agency is not a
suable “person” under § 1983. See Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989). As the
operative statute provides no remedy against the state agency, one need not actually reach the issue of
immunity. See Vt. Agency of Nat. Res. v. United States, 529 U.S. 765, 779‐80 (2000). However, Defendant
has not raised this argument, which may constitute waiver. See Settles v. U.S. Parole Comm’n, 429 F.3d
1098, 1104 (D.C. Cir. 2005) (“by failing to raise . . . in the district court . . . that it is not a ‘person’ under §
1983,” defendant waived the issue); but see Arizonans for Official English v. Arizona, 520 U.S. 43, 69 (1997)
(suggesting that the “not‐a‐person” defense against § 1983 claims is not waivable). Regardless, the
jurisprudence regarding Eleventh Amendment immunity and that regarding suable “persons” under §
1983 are so symmetrical that the ultimate result under either analysis will be the same in virtually all
cases. This case is not one of the rare exceptions, so it is unnecessary to separately consider the “not‐a‐
7 This dismissal includes Plaintiff’s Fifth Amendment takings claim for several reasons. First, Plaintiff has
conceded that any remedy available for his takings claim would be against the governmental entity
rather than an individual defendant. See doc. 205 at 11. Eleventh Amendment immunity thus bars any
such claim against a state entity here. Moreover, a takings claim is not ripe for review unless a plaintiff
can show that he “unsuccessfully attempted to obtain just compensation through the procedures
provided by the State for obtaining such compensation” if a state provides an adequate procedure for
seeking such compensation. Williamson Cty. Reg. Planning Comm’n v. Hamilton Bank, 473 U.S. 172, 194‐95
(1985). Plaintiff has offered no evidence to show that he has sought and been refused just compensation
through state procedures. Indeed, Plaintiff effectively abandoned his takings claim during the September
11, 2017 hearing, when Plaintiff’s counsel stated that Plaintiff’s Fifth Amendment claim was merely a
PLAINTIFF’S INDIVIDUAL‐CAPACITY CLAIMS FOR DAMAGES AGAINST
Unlike the official‐capacity claims against Defendant Gallegos, Plaintiff’s
individual‐capacity claims against Defendant Gallegos are not subject to the defense of
Eleventh Amendment immunity, regardless of whether Defendant Gallegos is a state or
county official. See Hafer v. Melo, 502 U.S. 21, 29‐31 (1991). Therefore, the Court denies
Defendant Gallegos’s Motion for Summary Judgment on the basis of Eleventh
Amendment Immunity as to the individual‐capacity § 1983 claims against him.
However, Defendant Gallegos has also raised the defenses of absolute
prosecutorial immunity and qualified immunity against Plaintiff’s individual‐capacity
§ 1983 claims. The Court finds that (1) Defendant Gallegos is not entitled to
prosecutorial immunity; (2) Defendant Gallegos violated Plaintiff’s constitutional rights
under the Fourth and Fourteenth Amendments; but (3) Plaintiff has failed to meet his
burden of showing that Defendant Gallegos violated clearly established law. Therefore,
Defendant Gallegos is entitled to qualified immunity and the individual‐capacity claims
against him must be dismissed.
Defendant Gallegos is Not Entitled to Absolute Prosecutorial Immunity
Prosecutors are entitled to absolute immunity for conduct that is “intimately
reformulation of his Fourteenth Amendment claim, and requested that the Court focus on the Fourth and
Fourteenth Amendment claims instead. See doc. 205 at 11.
associated with the judicial phase of the criminal process[.]” Imbler v. Pachtman, 424 U.S.
409, 430 (1976). Such conduct includes all duties performed by a prosecutor “in his role
as [an] advocate for the State[.]” Id. at 431 n. 33. These duties are not limited to a
prosecutor’s conduct “in initiating a prosecution and in presenting the State’s case[,]”
and may include actions taken “preliminary to the initiation of a prosecution and
actions apart from the courtroom.” Id.
However, “[a] prosecutor’s administrative duties and those investigatory
functions that do not relate to an advocate’s preparation for the initiation of a
prosecution or for judicial proceedings are not entitled to absolute immunity.” Buckley
v. Fitzsimmons, 509 U.S. 259, 273 (1993) (citing Burns v. Reed, 500 U.S. 478, 494‐96 (1991)).
Thus, “when a prosecutor functions as an administrator rather than as an officer of the
court[,]” or when he acts in an investigatory capacity, “performing functions normally
performed by a detective or a police officer,” he is entitled only to qualified immunity.
Id. (internal alteration, quotations and citation omitted). A prosecutor’s investigative
acts are not protected by absolute immunity because it is “neither appropriate nor
justifiable that, for the same act,” a prosecutor should be given the cloak of absolute
immunity where a police officer would be afforded only qualified immunity. Id. at 273‐
74 (quoting Hampton v. Chicago, 484 F.2d 602, 608 (7th Cir. 1973)). In short, “[w]hen the
functions of prosecutors and detectives are the same, . . . the immunity that protects
them is also the same.” Id. at 276.
Defendant Gallegos asserts that he is entitled to absolute immunity because his
actions “occurred in the process of carrying out his discretionary duties as a
prosecutor[.]” Doc. 160 at 5‐6. He argues that because “nothing in the New Mexico
statutes related to the duties and responsibilities of district attorneys, or applicable
decisions, preclude [him] from determining that the best way to address the obstructed
roadway was to personally remove the obstruction[,]” he was acting within his duties
as a district attorney and exercising his prosecutorial discretion by pursuing an
alternative to prosecution—namely, direct removal of the gate. Doc. 160 at 7.
The Court cannot agree that prosecutorial immunity extends to—or that
prosecutorial discretion encompasses—any and all actions taken by a prosecutor as an
alternative to prosecution. While making a decision regarding whether or not to
prosecute does fall within a prosecutor’s discretionary duties, the claims against
Defendant Gallegos do not stem from a mere decision not to prosecute Plaintiff for
obstructing Red Hill Road. Going to the location of a suspected obstruction of a public
roadway and personally removing that obstruction cannot be reasonably characterized
as relating to Defendant Gallegos’s “preparation for the initiation of a prosecution or for
judicial proceedings,” as necessary to entitle him to absolute immunity. Buckley, 509
U.S. at 273.
Indeed, Defendant Gallegos testified during his deposition that he took these
actions because he had decided not to initiate judicial proceedings, in the interest of
saving time and avoiding an unfavorable result. See doc. 160, Ex. 1, Gallegos Dep. at
96:25‐97:7 (“The consideration I had at the time was how effective a [temporary
restraining order] would actually be and how quick it would take; because the last time
I tried that with [another] case, it wound up just being a legal—not necessarily a
nightmare—but it just got tangled up, and there was no quick action”); see also id. at
180:16‐19 (“[I]nstead of filing charges and wasting the taxpayers’ money in that end,
and maybe getting worse or who‐knows‐what result, I decided to just go open the
In sum, the Court is unpersuaded that a decision to bypass the judicial process
altogether is “intimately associated with the judicial phase of the criminal process.”
Imbler, 424 U.S. at 430. Thus, Defendant Gallegos is not entitled to absolute
prosecutorial immunity. This conclusion is further bolstered by the fact that Defendant
Gallegos summoned police officers to accompany him to the gate to aid in its removal,
and he was therefore performing the same functions as the police officers. Doc. 125‐1 at
7, Gallegos Dep. 44:21– 45:16. Under such circumstances, the law is clear that
Defendant Gallegos may invoke only qualified immunity. Buckley, 509 U.S. at 276.
Defendant Gallegos is Entitled to Qualified Immunity
“When a defendant asserts qualified immunity at summary judgment, the
burden shifts to the plaintiff to show that: (1) the defendant violated a constitutional
right and (2) the constitutional right was clearly established.” Martinez v. Beggs, 563
F.3d 1082, 1088 (10th Cir. 2009) (citing Pearson, 555 U.S. at 231‐32). In evaluating a
qualified immunity claim, the Court “must first determine whether [the] plaintiff’s
allegations, if true, state a claim for a violation of a constitutional right that was clearly
established when [the] defendant acted.” Bisbee v. Bey, 39 F.3d 1096, 1100 (10th Cir.
1994) (citing Siegert v. Gilley, 500 U.S. 226, 232 (1991)). This is a “strict two‐part test” that
must be met before the defendant asserting qualified immunity again “bear[s] the
traditional burden of the movant for summary judgment—showing that there are no
genuine issues of material fact and that he or she is entitled to judgment as a matter of
law.” Edmunds, 513 F.3d at 1222. The Court may address the two prongs of the test in
any order. Pearson, 555 U.S. at 236.
Determining whether the allegedly violated right was “clearly established”
depends on whether “the contours of the right [were] sufficiently clear that a reasonable
official would understand that what he is doing violates that right.” Creighton, 483 U.S.
at 640. “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.”
Clark v. Wilson, 625 F.3d 686, 690 (10th Cir. 2010) (citation omitted). While the plaintiff
need not locate “a case directly on point,” nevertheless “existing precedent must have
placed the statutory or constitutional question beyond debate.” al‐Kidd, 563 U.S. at 741.
“The protection of qualified immunity applies regardless of whether the
government official’s error is a mistake of law, a mistake of fact, or a mistake based on
mixed questions of law and fact.” Pearson, 555 U.S. at 231 (quotations omitted) (citing
Groh v. Ramirez, 540 U.S. 551, 567 (2004)). Even where an officer is mistaken as to an
essential fact on which the constitutionality of his actions depends, the central question
in determining whether he is nevertheless entitled to qualified immunity is “whether
someone in the officer’s position could reasonably but mistakenly conclude that his
conduct complied” with the Constitution. Groh, 540 U.S. at 566 (Kennedy, J.,
dissenting); see also Creighton, 483 U.S. at 641.
Ultimately, the Court finds that the evidence of record, viewed in the light most
favorable to Plaintiff, establishes that Defendant Gallegos’s actions violated both
Plaintiff’s Fourteenth Amendment right to procedural due process and his Fourth
Amendment right against unreasonable seizures. However, Plaintiff has failed to meet
his burden of showing that Defendant Gallegos’s actions amounted to violations of
Plaintiff’s constitutional rights under clearly established law. Further, Plaintiff has
failed to establish a constitutional violation in the first instance as to either his Fifth
Amendment takings claim or his Fourth Amendment search claim. Therefore,
Defendant Gallegos is entitled to qualified immunity on all of Plaintiff’s individual‐
capacity § 1983 claims for damages, and his Motion for Summary Judgment on the basis
of qualified immunity must be granted.
Defendant Gallegos violated Plaintiff’s Fourteenth Amendment right to
procedural due process and his Fourth Amendment right against
The Fourth Amendment’s prohibition against unreasonable seizures is
implicated when there is some “meaningful interference with an individual’s
possessory interests in [his] property.” United States v. Jacobsen, 466 U.S. 109, 113 (1984);
see also Soldal v. Cook Cty., 506 U.S. 56, 61 (1992). Plaintiff’s Fourth Amendment claim is
fundamentally intertwined with his Fourteenth Amendment due process claim, because
a seizure is considered reasonable, and thus compliant with the Fourth Amendment,
“as long as procedural due process standards are met and no unreasonable municipal
actions are shown[.]” Santana v. City of Tulsa, 359 F.3d 1241, 1245 (10th Cir. 2004).
Therefore, unless Plaintiff can show a procedural due process violation, he cannot
establish a Fourth Amendment violation. For that reason, the Court will address
Plaintiff’s Fourteenth and Fourth Amendment violations together.
Generally speaking, the Fourteenth Amendment guarantee of procedural due
process requires notice and a pre‐deprivation hearing before an individual’s property
interests are negatively affected by governmental actors. Marcus v. McCollum, 394 F.3d
813, 818 (10th Cir. 2004) (citing Fuentes v. Shevin, 407 U.S. 67, 80‐82 (1972)). However, as
discussed in more detail below, these pre‐deprivation procedures are not required
under certain exceptional circumstances, including (1) “where the potential length or
severity of the deprivation does not indicate a likelihood of serious loss and where the
procedures underlying the decision to act are sufficiently reliable to minimize the risk of
erroneous determination[,]” see Memphis Light, Gas and Water Div. v. Craft, 436 U.S. 1, 19
(1978); and (2) where such procedures are impracticable, such as where a state
employee engages in a “random and unauthorized” act of deprivation. See Hudson v.
Palmer, 468 U.S. 517, 533 (1984); see also Parratt v. Taylor, 451 U.S. 527, 540‐42 (1981),
overruled on other grounds by Daniels v. Williams, 474 U.S. 327 (1986). In such
circumstances, due process is not violated so long as an adequate and meaningful post‐
deprivation remedy is available. Id.
Plaintiff holds sufficient property interest to be entitled to
One prerequisite to the right to due process is that one holds sufficient property
interest in the property subject to the governmental action. Defendant argues that
Plaintiff lacks sufficient property interest in Red Hill Road so as to entitle him to any
procedural due process rights before state actors may interfere with that interest. Doc.
196 at 7. Establishing a property interest requires Plaintiff to “demonstrate that he . . .
has a ‘legitimate claim of entitlement’ to it.” Adamson v. City of Provo, Utah, 819 F. Supp.
934, 949 (D. Utah 1993) (quoting Bd. of Regents v. Roth, 408 U.S. 564, 577 (1972)). It does
not, however, require that the title be undisputed. See Fuentes, 407 U.S. at 86 (“The
Fourteenth Amendment’s protection of ’property,’ however, has never been interpreted
to safeguard only the rights of undisputed ownership. Rather, it has been read broadly
to extend protection to ‘any significant property interest.’”) (quoting Boddie v.
Connecticut, 401 U.S. 371, 379 (1971));8 see also Evers v. Custer Cty., 745 F.2d 1196, 1200‐03
(9th Cir. 1984); McCulloch v. Glasgow, 620 F.2d 47, 50 (5th Cir. 1980); Coe v. Armour
Fertilizer Works, 237 U.S. 413, 424 (1915) (“To one who protests against the taking of his
property without due process of law, it is no answer to say that in his particular case
due process of law would have led to the same result because he had no adequate
defense upon the merits.”).
In a case with very similar facts to the one before the Court, the Ninth Circuit
Court of Appeals held that a plaintiff was entitled to a pre‐deprivation hearing on the
merits regarding her claim that a road crossing her property was private rather than
public. Evers, 745 F.2d at 1200‐03. There, as here, the plaintiff had blocked public access
to a road that crossed her property. Id. at 1198. Other members of the public who had
previously used the road complained, and urged the Board of County Commissioners
Fuentes dealt with the repossession of goods which had been possessed by the plaintiff‐appellants under
conditional sales contracts entitling them to possession and use of the goods before transfer of title. The
Supreme Court held that the appellants’ “possessory interest in the goods, clearly bought and protected
by contract, was sufficient to invoke the protection of the Due Process Clause” despite the fact that
“[t]heir ultimate right to continued possession was, of course, in dispute,” explaining that “[i]t is enough
to invoke the procedural safeguards of the Fourteenth Amendment that a significant property interest is
at stake, whatever the ultimate outcome of a hearing on the contractual right to continued possession and
use of the goods.” 407 U.S. at 86‐97.
(“the Board”) to address the issue. Id. In response, the Board met and signed a
declaration stating that the road was public pursuant to an Idaho statute. Id. The
plaintiff then sued the Board members under § 1983 in both their individual and official
capacities, alleging a procedural due process violation. Id. at 1199.
The Board argued that no property interest of the plaintiff’s was implicated, as
their declaration did not convert a private road into a public road, but merely clarified
that the road had been public all along. Id. at 1200. The Ninth Circuit disagreed,
holding that even if the plaintiff’s claim that the road was private was “probably not
valid,” record evidence of “at least some legal and factual basis for her claim” meant
that she had asserted a significant enough property interest to entitle her to a pre‐
deprivation hearing on the matter. Id. at 1200, 1202. Therefore, the court held that there
was a procedural due process violation unless the Board could, on remand, establish an
interest that would counterbalance the plaintiff’s interest in obtaining a fair hearing. Id.
Similarly, the Fifth Circuit has held that a plaintiff may possess “a sufficient
property interest” in a piece of land so as to entitle him to a pre‐deprivation due process
hearing even where title is disputed. A plaintiff need only allege “a ‘significant
property interest’” to trigger the hearing requirement. McCulloch, 620 F.2dat 50
(quoting Carey v. Piphus, 435 U.S. 247, 266 (1978)). The McCulloch court explained that
“[r]egardless of the ultimate success of plaintiffs’ claim of title to the property, the
conflict between their arguable unencumbered title and the town’s arguable easement
was sufficient to create a significant property interest entitling plaintiffs to a due
process hearing.” Id. And denial of such a hearing is an “actionable wrong
independent of the uncompensated taking.” Id.
Therefore, the Court rejects Defendant Gallegos’s argument for summary
judgment on Plaintiff’s procedural due process claim, which is premised on the notion
that Plaintiff must have title to establish that he had a constitutionally protected interest
in the road. See doc. 196 at 7. Rather, following the guidance of Evers and McCulloch, the
Court finds that even if Plaintiff does not in fact have title to Red Hill Road, Plaintiff has
met his burden of establishing a sufficient property interest to entitle him to a pre‐
Defendant Gallegos attempts to distinguish McCulloch from the case at hand on the basis that McCulloch
concerns the actions of a municipal entity, rather than an individual state actor. More precisely,
Defendant Gallegos asserts that because the due process clause provides that no “State” shall deprive any
person of property without due process of law, a procedural due process claim cannot stand against
Defendant Gallegos in his individual capacity, as he is not a public entity capable of providing a pre‐
deprivation hearing to Plaintiff. Doc. 196 at 8. To the contrary, 42 U.S.C. § 1983 is designed to provide for
private actions against individual governmental actors who cause constitutional deprivations under color
of law. The assertion that a procedural due process claim cannot be brought against an individual state
actor contradicts decades of § 1983 jurisprudence. See, e.g., Lugar v. Edmondson Oil Co., 457 U.S. 922, 937,
940‐42 (1982) (explaining that a constitutional deprivation is “fairly attributable to the State” when (1) it is
“caused by . . . a person for whom the State is responsible” and (2) “the party charged with the
deprivation [is] a person who may fairly be said to be a state actor[,]” and ultimately holding that
petitioner “did present a valid cause of action under § 1983” against individual defendants who acted
under color of state law in violating the petitioner’s Fourteenth Amendment right to due process);
Wolfenbarger v. Williams, 774 F.2d 358, 365 (10th Cir. 1985); Lavicky v. Burnett, 758 F.2d 468, 472‐73 (10th
Cir. 1985); Coleman v. Turpen, 697 F.2d 1341, 1343‐45 (10th Cir. 1982), Further, although this fact is not
necessary to reject Defendant Gallegos’s argument, the Court finds it worthwhile to note that Defendant
Gallegos, as a district attorney, could have filed criminal charges against Plaintiff for obstructing a public
road. See N.M.S.A. § 67‐7‐10 (unlawful to maintain a fence across any public road without permission
from the authorities having control of such a road); N.M.S.A. § 36‐1‐18(A)(1) (district attorney has a duty
State law controls whether a plaintiff has alleged a sufficient property interest to
have standing to sue under § 1983 for a violation of the property rights protected under
the Fourteenth Amendment. See Patrick v. Miller, 953 F.2d 1240, 1244 (10th Cir. 1992).
This nuance is typically highlighted where the putative property interest is peculiar in
some fashion. See Petty v. Bd. of Cty. Comm’rs of Cty. of Wyandotte, Kan., 168 F.R.D. 46,
49‐50 (D. Kan. 1996) (plaintiff had been awarded seized vehicle in divorce decree but
had failed to take the necessary steps to transfer the vehicles certificate of title into her
name); see also Wolfenbarger v. Williams, 774 F.2d 358, 361 (10th Cir. 1985) (holding that a
plaintiff pawnbroker had constitutionally protected property rights in allegedly stolen
items because Oklahoma law provides a recognized property interest to “one who
possesses property without having title to it” and was thus entitled to due process). In
the instant case, no such peculiarity exists. It is uncontroverted that Red Hill Road
traverses Plaintiff’s private property. The summary judgment record contains no
evidence that it has been marked or maintained as a public road. While Defendant has
presented a plausible argument that the road is indeed public pursuant to an obscure
statute, it seems obvious that Plaintiff has a “legitimate” claim that it is a private road.
Certainly, Defendant has presented no authority from state law to the contrary. In fact,
the Court notes that Plaintiff’s quiet title action in state court asserting complete
to prosecute all cases in which the state or any county in his district may be a party or may be interested).
Such action would have afforded Plaintiff the requisite notice and opportunity to be heard as to whether
he legally blocked Red Hill Road from public access. The argument that Defendant Gallegos had no
ability to provide Plaintiff a hearing before acting to remove the gate is thus also without merit.
ownership of the road traversing his property has not been dismissed for a lack of
standing.10 See N.M.S.A. § 42‐6‐1 (such actions to be brought only be someone “having
or claiming an interest” in the property); cf. Kinscherff v. United States, 586 F.2d 159, 160‐
61 (10th Cir. 1978) (holding that members of the public do not have any degree of
ownership in public roads and therefore cannot bring suit to quiet title in public
highways). Under these circumstances, the Court finds that Plaintiff has alleged a
sufficient property interest in the road to be entitled to due process protections from
governmental interference with that interest.
Pre‐deprivation procedures for notice and opportunity to be
heard were required under the circumstances of this case.
“Due process . . . is a flexible concept that varies with the particular situation.”
Zinermon v. Burch, 494 U.S. 113, 127 (1990). Several factors are weighed when
determining what procedural protections the Constitution requires in a particular case.
These factors include: “First, the private interest that will be affected by the official
action; second, the risk of an erroneous deprivation of such interest through the
procedures used, and the probable value, if any, of additional or substitute procedural
safeguards; and finally, the Government’s interest, including the function involved and
the fiscal and administrative burdens that the additional or substitute procedural
requirement would entail.” Id. (quoting Mathews v. Eldridge, 424 U.S. 319, 335 (1976)).
Indeed, the quiet title action has proceeded through years of litigation and is currently set for trial in
March 2018. See doc. 207, Hr’g Tr. at 26:22‐27:21, 64:13‐65:23, 69:10‐17.
As a general rule, the Supreme Court has held that the Constitution requires notice and
a hearing before the State deprives a person of a property interest. Id. at 127‐28 (citing
numerous cases). “In some circumstances, however, the Court has held that a statutory
provision for a post‐deprivation hearing, or a common‐law tort remedy for erroneous
deprivation, satisfies due process.” Id. at 128.
Circumstances in which due process can be satisfied without pre‐deprivation
notice and hearing can be collected in two categories. In the first category, the Supreme
Court “has recognized that where the potential length or severity of the deprivation
does not indicate a likelihood of serious loss and where the procedures underlying the
decision to act are sufficiently reliable to minimize the risk of erroneous determination,
government may act without providing additional ‘advance procedural safeguards.’”
Craft, 436 U.S. at 19(quoting Ingraham v. Wright, 430 U.S. 651, 680 (1977) and citing
Mathews, 424 U.S. at 339‐49)); see, e.g., Nichols v. Fletcher, 2007 WL 1795765 (D. Utah 2007)
(unpublished) (plaintiff received due process despite lack of pre‐deprivation hearing
based on: (1) pre‐deprivation notice from a citizen’s complaint filed with the
government agency and a phone call from a government agent; (2) a pre‐deprivation
opportunity to be heard; (3) a thorough pre‐deprivation investigation; and (4) a post‐
deprivation opportunity to respond, afforded by an agency letter informing plaintiff he
had the right to appeal). In the second category, pre‐deprivation process is not
required where the procedures would be impracticable, such as where a state employee
engages in a “random and unauthorized” act of deprivation. In cases falling into these
categories, due process is not violated so long as an adequate and meaningful post‐
deprivation remedy is available. Hudson, 468 U.S. at 533; see also Parratt, 451 U.S. at 540‐
The two removals of the gate across Red Hill Road as it entered Plaintiff’s
property do not fall into either category of due process exceptions. With respect to the
first category, neither prerequisite is met. The removals of the gate were not minor in
either length or effect. Defendant Gallegos intended the road through Plaintiff’s private
property to remain completely open to public access indefinitely. Moreover, the Court
is unpersuaded that the pre‐deprivation investigative procedures underlying Defendant
Gallegos’s decision to act were adequate to fit within this category. Defendant
Gallegos’s factual and legal investigation into whether the road was public by operation
of law relied entirely on research done and provided to him by others; he conducted no
independent research or investigation. See doc. 147 at 5; doc. 158 at 3; see also doc. 125‐2 at
10, Gallegos Dep. 158:6‐159:19. Moreover, his deposition demonstrated an alarming
lack of knowledge regarding the legal and factual basis upon which he made his
decision. See doc. 160‐1 at 12‐13, Gallegos Dep. 154:10‐157:16; 171:20‐172:15 (testifying,
among other things, that the “status of [his] knowledge or research” when he wrote the
August 3, 2011 letter was that certain “elders” had told him they had historically used
the road, and he “was raised to respect and to believe what the elders tell you,
especially if it’s more than one telling you”; that his basis for believing the road was a
dedicated public road was that “[a]t one point, I believe it was dedicated by federal or
State statute. I remember seeing some authority on that, reference to it. The
prescription, obviously, by use . . . I don’t know if it was because it was a mail route. I
think it had to do with either that or a school route; maybe both”; that “a lot of the
research that I looked at had been done by . . . Luis Juarez . . . and referred to something
called a – I don’t recall. There’s a numeral – ‘602’ road or something like that, anyway.
I think that had to do with the establishment of mail routes”; and that he had no
opinion whether Red Hill Road is “a county road or a State highway or something else”
because “it wasn’t relevant to [his] analysis”). In short, his pre‐deprivation
investigation was not sufficiently reliable to minimize the risk of an erroneous
With respect to the second category, Defendant also fails to meet the
prerequisites. First, there is no evidence that pre‐deprivation process was
impracticable. Notably, Defendant Gallegos never claimed that removing the gate on
August 24, 2011 or September 10, 2011 was predicated on exigent circumstances, nor
would the evidence of record support such a finding. See, e.g., doc. 125‐1 at 15, Gallegos
Dep. 98:6‐19 (explaining that he did not seek a temporary restraining order due to his
concern that it would not be granted in a timely fashion, and that the urgency in having
it granted quickly was “the gate itself . . . . [A]ny given day, people were denied the
access that they’ve had traditionally, historically, and legally. So that was the
urgency.”); cf. Sargent v. United States, 2008 WL 3154761, at *10 (E.D. La. Aug 5, 2008) (no
pre‐deprivation hearing necessary before removal of fences and vegetation in order to
prevent catastrophic flooding). Instead, he candidly admitted that he simply did not
want to risk losing the battle in court. See doc. 160, Ex. 1, Gallegos Dep. at 180:16‐19.
Moreover, Defendant Gallegos cannot claim that his involvement in the removal
constituted a random or unauthorized act. Indeed, the Tenth Circuit has held that
“official acts initiated and controlled by a district attorney [who shares responsibility for
law enforcement in the county with the county sheriff] cannot be characterized as
random or unauthorized.” Wolfenbarger, 774 F.2d at 365. Consequently, the second
exceptional category recognized in the Hudson and Parratt cases does not apply.
Therefore, the Court holds that Plaintiff was entitled to the Fourteenth
Amendment procedural due process guarantees of notice and an opportunity to be
heard prior to Defendant’s final decision that the road was public, the seizure of
Plaintiff’s gate and the resultant opening of a road through Plaintiff’s private property.
Defendant Gallegos did not afford Plaintiff the pre‐
deprivation process to which Plaintiff was entitled.
The Court now turns to whether Defendant District Attorney Gallegos afforded
Plaintiff adequate pre‐deprivation process before he removed, and ordered the removal,
of the gate. Defendant Gallegos claims that he did. Specifically, he argues that Plaintiff
received adequate pre‐deprivation notice from Defendant Gallegos’s letters, which
informed Plaintiff that the gate was illegally blocking a public road and that Defendant
Gallegos intended to take “some form of action to remedy what he considered illegal
behavior.” Doc. 196 at 7. He further argues that Plaintiff received adequate opportunity
to be heard by means of Plaintiff’s state court quiet title action. Id. Together, Defendant
says, these satisfied the requirements of due process. The Court disagrees.
The first requirement is that of pre‐deprivation notice. “Notice of a proceeding
satisfies due process if it is ‘reasonably calculated, under all the circumstances, to
apprise interested parties of the pendency of the action and afford them an opportunity
to present their objections.’” Gurung v. Ashcroft, 371 F.3d 718, 721 (10th Cir. 2004)
(quoting Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950)). To satisfy
due process requirements, notice “must be of such [a] nature as reasonably to convey
the required information, and it must afford a reasonable time for those interested to
make their appearance.” Mullane, 339 U.S. at 314 (internal citations omitted). “A
primary purpose of the notice required by the Due Process Clause is to ensure that the
opportunity for a hearing is meaningful.” City of West Covina v. Perkins, 525 U.S. 234,
In the instant case, Defendant Gallegos can point to three letters which could
constitute notice to Plaintiff. On September 6, 2002, he sent a letter to Plaintiff stating
I have received information that you are planning on placing a gate across
the public road that accesses the Whites Peak area from Mora and Colfax
Counties. I wish to advise you that this is a public road and any
placement of a gate or any other obstruction will be dealt with
appropriately, including, but not limited to, the filing of criminal charges
against you. I appreciate your cooperation in this matter.
Doc. 125, Ex. C. Almost nine years later on August 3, 2011, and soon after Plaintiff
constructed a gate across the road, Defendant Gallegos sent another letter to Plaintiff
I have been informed that you have placed a gate on the Red Hill Road
that is the historical, traditional and publicly used access to State Trust
Land in the area. This road has been used for generations by the public to
access State Trust Land for many uses. Although you do own property in
the area, you do not have any authority to place a gate on this road.
Therefore I am requesting that you remove the gate immediately upon
receipt of this letter. Should you fail to do so, I will take any and all steps
necessary to make sure that the gate is opened and/or removed. Thank
you very much for your cooperation and please call me if you have any
Doc. 160‐1 at 17. It was after sending this letter that Defendant Gallegos, along with
Defendant Ed Olona and several other individuals including officers from the Mora and
Colfax County Sheriff’s Departments, went to the gate on Red Hill Road, and together
removed the locked gate, the barbed‐wire fence, and T‐posts set up at the cattle
crossing. Id. at 18; doc. 125 at 1‐2; see also doc. 125‐1 at 6‐12, Gallegos Dep. 42:1‐52:3; 62:1‐
65:8; 70:12‐73:24; 82:1‐86:18. On August 26, 2011, after the removal, Defendant Gallegos
sent a third letter to Plaintiff stating:
Since I did not hear back from you regarding the letter I had sent you, I
have taken action to open the gate on Red Hill Road. On August 24, 2011,
I removed the barbed wire fence that was strung across the cattle guard
and removed the T‐posts that were placed in the middle of said
obstruction. The T‐posts are stacked to one side against one of the
ponderosa pine trees. I have also cut the chain securing the metal gate
and re‐secured it with wire so that any cattle that may be in do not
wander out. Since this is a public road, it is important that access to the
public be maintained. Therefore should you lock the metal gate or
obstruct the cattle guard in any manner, I will take action to have criminal
charges filed against you for obstructing a public road. I am hoping that
you will observe the requirements of law and that I will not have to take
that step. Of course, should you have any questions, please feel free to
Doc. 160‐1 at 18.
When presented as notice for due process purposes, these letters are woefully
inadequate. First, the letters provided no notice related to Defendant Gallegos’s initial
determination that the road was public. Similar to the Board of County Commissioners
in the Evers case, Defendant Gallegos, as District Attorney, simply declared the road to
be public. While he threatens further action based upon that determination, it is clear
from the letters that the determination had already been made. In other words, Plaintiff
had no opportunity to review or to challenge the evidence that certain third parties
presented to Defendant Gallegos in support of their contention that the road was
public, and he was only notified of the result of Defendant Gallegos’s evaluation of that
evidence after the determination was final.
Second, the letters do not adequately explain the factual or legal basis for
Defendant Gallegos’s “ruling.” One might consider the first point to be a semantic one
because no deprivation occurred until Defendant Gallegos removed the gate on August
24, 2011. Yet, without Defendant Gallegos presenting the basis for his determination
that the road was public in the 2002 and 2011 letters, Plaintiff would not be able to
understand how to meaningfully object or present evidence to the contrary. In all of his
briefing in this case on the issue, Defendant Gallegos has presented only one legal
argument in support of his conclusion that Red Hill Road is public. He claims that the
road was public pursuant to Title 43 U.S.C. § 932. See docs. 151, 158 at 4‐10, 202 at 4‐6.11
In the context of the disputed portion of Red Hill Road, this statute is complicated to
apply and involves evidence difficult to marshal. See docs. 147‐1, 147‐2, 158‐1, 158‐2
(expert witness deposition excerpts regarding the applicability of § 932 to Red Hill
Road). However, nowhere in any of the letters to Plaintiff does Defendant Gallegos
make reference to this statutory authority or the facts Defendant considered dispositive
pursuant to that authority. Without identifying the basis for his determination,
Defendant Gallegos left Plaintiff without any meaningful ability to even begin to
present an argument to the contrary.
The Court recognizes that other parties have presented other bases for the road to be public in the quiet
title action. See doc. 202‐1; doc. 207, Joinder H’rg Tr. at 64:13‐23. Nonetheless, Defendant Gallegos has not
pressed those arguments here, and the Court is reviewing only the adequacy of notice as to his actions.
The Court expresses no opinion about the merits of those other bases.
Defendant Gallegos might respond that the August 3, 2011 letter did notify
Plaintiff of the legal basis of his determination—namely, “Red Hill Road . . . is the
historical, traditional and publicly used access to State Trust Land in the area.” Doc.
160‐1 at 17. Even assuming that, by these generic words, Defendant Gallegos meant to
reference the authority under Section 932, such would not be the natural reading.
Admittedly, public use is an important component of the establishment of a § 932 road.
See Luchetti v. Bandler, 777 P.2d 1326, 1327 (N.M. Ct. App. 1989)12 (explaining that
Section 932 is “an offer to dedicate any unreserved public lands for the construction of
highways, which offer may be accepted by public use, without action by the public
authorities. Public acceptance of this offer should be judged by the time, amount, and
character of the public use or any other evidence tending to prove or disprove
acceptance.”). Assuming other requirements are met, Section 932 would ensure that
Red Hill Road was a public road if, when the land where Plaintiff’s ranch now stands
was settled, the § 932 road already existed. See Wilson v. Williams, 87 P.2d 683, 685
(N.M. 1939) (explaining that a settler of land upon which a § 932 road has been
established “takes subject to the public easement of a right of way on such road”). The
lot in Colfax County where Plaintiff’s gate was located was first patented pursuant to a
While 43 U.S.C. § 932 “is a federal statute and it governs the disposition of rights to federal property,”
the Tenth Circuit has explained that it is appropriate to look to state law to aid in interpreting the statute,
given that most of the “well‐developed body of legal principles” of common law which Congress
incorporated into the statute were “embodied in state court decisions.” S. Utah Wilderness All. v. Bureau of
Land Mgmt., 425 F.3d 735, 762, 764 (10th Cir. 2005), as amended on denial of rehʹg (Jan. 6, 2006). It is
therefore appropriate to look to New Mexico jurisprudence in construing the requirements of the statute.
homestead patent in 1892. Doc. 147 at 6. Thus, for Red Hill Road to be public by
operation of Section 932, the public use which established it as a § 932 road must
predate 1892. The only public use to which Defendant Gallegos repeatedly referred in
his August 3 letter was the use of the road to access “State Trust Land,” which could not
have existed prior to New Mexico’s statehood in 1912. Consequently, to the extent that
Defendant Gallegos provided notice to Plaintiff of a legal basis in his August 3, 2011,
letter, it was inaccurate and misleading.
Third, the letters did not provide notice that Defendant Gallegos was going to
physically remove the gate without any legal or judicial authorization. The precise
language of Defendant Gallegos’s threats changed from letter to letter. Doc. 125, Ex. C.
(“obstruction will be dealt with appropriately, including, but not limited to, the filing of
criminal charges against you”); doc. 160‐1 at 17 (“Should you fail to [remove the gate], I
will take any and all steps necessary to make sure that the gate is opened and/or
removed.”); id. at 18 (“I will take action to have criminal charges filed against you for
obstructing a public road.”). As one would expect from a District Attorney, the focus
was placed on the possible filing of criminal charges against Plaintiff. To be sure, two of
the letters imply other possibilities and one ominously spoke of taking “any and all
steps necessary.” However, a citizen receiving such a letter from a District Attorney
would reasonably be on notice that the prosecutor was threatening some action
involving criminal charges or a warrant or a court order. Such a citizen would not be
on notice that the gate would be removed by and pursuant to the sole authority of the
Finally, the letters give no notice of an opportunity to be heard, let alone
anything resembling a hearing. The first letter simply ends with the sentiment that “I
appreciate your cooperation in this matter.” Doc. 125, Ex. C. The second letter similarly
thanks Plaintiff for his “cooperation” and adds only, “please call me if you have any
questions.” Doc. 160‐1 at 17. The third letter also states that “should you have any
questions, please feel free to contact me.” Id. at 18. None of these conclusions can
reasonably be read to be offering Plaintiff an opportunity to be heard or to present
objections. In no way does Defendant Gallegos state or imply that he is open to a
discussion about the decision. He simply states that he is willing to answer any
questions about the decision which has already been made.
For all these reasons, Defendant Gallegos’s letters to Plaintiff, whether viewed
separately or together, fail to satisfy the due process requirement of pre‐deprivation
Defendant Gallegos also failed to satisfy the second due process requirement of a
pre‐deprivation hearing or, at least, a meaningful opportunity to be heard. In his
briefing, Defendant Gallegos does not contend that he provided a pre‐deprivation
hearing, because he takes the position that no pre‐deprivation process was due. See doc.
196 at 6‐7; doc. 202 at 11‐12. The record reveals only two possibilities that could
constitute any pre‐deprivation opportunity to be heard. The first possibility is revealed
in Defendant Gallegos’s deposition:
. . .
What opportunity did you provide Mr. Stanley to challenge that
determination and decision [that Red Hill Road was a public road]?
Well, the closing sentence says, “Please call me if you have any
And if he called you, what would you . . . . Go ahead, I’m sorry.
That’s an invitation to discuss that matter. That’s an indica[tion] –
in my opinion, it’s always been if you can correct me on my – on
my position, you’re free to do so. I have an “open door” policy. I
do return calls.
So if he had called you, what – what process would he have been
given to challenge your determinations?
Again, we’re just speculating. But I’m sure I would have said,
“Please, you know, if you have legal counsel, or if you have
documentation, you have something to rebut or counter what I’m
basing my position on, I’d love to see it.”
So would he have had an opportunity to provide witnesses and
documents to you?
Doc. 125‐1 at 16, Gallegos Dep. 104:21‐105:23. Evaluated as a procedure to satisfy the
due process requirement of a pre‐deprivation hearing, it is utterly deficient. First, as
noted above, Plaintiff was never notified about this supposed “opportunity to be
heard.” The letters from Defendant Gallegos did not imply, let alone express, any
willingness to reconsider his determination. And, even assuming some generic “open
door” policy could ever satisfy due process in this context, the record is devoid of any
evidence that Plaintiff was made aware of such a policy. Moreover, while Defendant
Gallegos eventually claims that Plaintiff would have had an opportunity to provide
witnesses and documents, that claim is immediately preceded by his admission that he
could only “speculat[e]” about what his response to an entreaty from Plaintiff would
have been, indicating he had never before contemplated affording Plaintiff such an
opportunity. Finally, as noted above, based Defendant Gallegos’s letters, Plaintiff could
not have understood “what [Defendant was] basing [his] position on” sufficiently to
provide witnesses and documentation to counter it.
The second possible argument that Plaintiff was provided a pre‐deprivation
hearing involves the quiet title suit filed by Plaintiff before the first gate removal. In his
Reply (doc. 202) to his supplemental motion for qualified immunity, Defendant Gallegos
argues that this suit constitutes an adequate post‐deprivation remedy in the context of
the Hudson‐Parratt exception to the requirement of pre‐deprivation process. Id. at 11‐12.
While the Court has previously rejected the applicability of that exception above, the
quiet title suit could alternatively be seen as pre‐deprivation process given that it was
filed on August 11, 2011, before the removal of the gate. See doc. 21 at 2. This possible
argument is easily dismissed. While the filing of the quiet title action predated the
deprivation, Defendant Gallegos did not wait for any hearing or decision in that case
before coordinating the removal of the gate on two occasions. In fact, while Defendant
Gallegos testified during his deposition that he did not know of the quiet title action at
the time he interfered with Plaintiff’s claimed interest in the road, he also testified that
such knowledge “wouldn’t have affected my decision,” and that the existence of any
pending legal proceedings “was irrelevant to me.” Doc. 125‐1 at 15‐16, Gallegos Dep.
100:3‐23, 101:23‐102:10. Obviously, under these circumstances, the quiet title action
could not constitute a pre‐deprivation hearing or opportunity to be heard. See, e.g.,
Soldal., 506 U.S. at 58‐72 (due process violation where deputy sheriffs assisted property
owner with eviction while eviction action was still pending in court).
In conclusion, Plaintiff has established a sufficient property interest in Red Hill
Road as it passed through his property to entitle him to due process prior to the
removal of the gate. Defendant Gallegos has failed to establish that the circumstances
provided a constitutional basis to excuse the general requirement of pre‐deprivation
process. Pre‐deprivation process demanded adequate notice and a meaningful
opportunity to be heard. Defendant Gallegos failed to provide either. Moreover,
because Defendant Gallegos’s actions failed to meet procedural due process standards,
the seizure of Plaintiff’s gate was unreasonable and in violation of the Fourth
Amendment. See Santana, 359 F.3d at 1245; Soldal, 506 U.S. at 69‐71. Plaintiff has thus
met his burden of showing that Defendant Gallegos violated his constitutional right
against unreasonable seizures under the Fourth Amendment, as well as his right to
procedural due process under the Fourteenth Amendment.13
In his Complaint, Plaintiff asserts that Defendant Gallegos’s actions constituted not just an
unreasonable seizure, but also an unreasonable search. Doc. 21 at 3‐4. However, a search has not
occurred for Fourth Amendment purposes unless a trespass is “conjoined with . . . an attempt to find
something or to obtain information.” Reid v. Pautler, 36 F. Supp. 3d 1067, 1149 (D.N.M. 2014) (quoting
United States v. Jones, 565 U.S. 400, 408 n.5 (2012)). There is no indication that Defendant Gallegos went to
Red Hill Road to find something or to obtain information, however, as the location and existence of the
a. Plaintiff has failed to meet his burden of showing that
Defendant Gallegos violated clearly established law.
Nonetheless, Plaintiff’s individual‐capacity claims against Defendant Gallegos
must be dismissed because Plaintiff has failed to point to clearly established law
showing that Defendant Gallegos’s actions violated the Constitution. Therefore,
Defendant Gallegos is entitled to qualified immunity. Edmunds, 513 F.3d at 1222.
“For the law to be ‘clearly established,’ there ordinarily must be a Supreme Court
or Tenth Circuit opinion on point, or the clearly established weight of authority from
other circuits must point in one direction.” Pompeo v. Bd. of Regents of the Univ. of N.M.,
852 F.3d 973, 981 (10th Cir. 2017). The Supreme Court has warned not to define a
clearly established right “at a high level of generality.” White v. Pauly, 137 S. Ct. 548, 552
(2017) (internal quotation marks omitted). Instead, “the clearly established law must be
particularized to the facts of the case.” Id. (internal quotation marks omitted). In other
words, we must ask “whether the violative nature of particular conduct is clearly
established.” Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (emphasis in original) (quoting
al‐Kidd, 563 U.S. at 742); see, e.g., White, 137 S. Ct. at 551 (officer entitled to qualified
immunity because parties and lower courts had “failed to identify a case where an
officer acting under similar circumstances as [the defendant officer] was held to have
violated the Fourth Amendment”). “This is not to say that an official action is protected
fence were known. Therefore, Defendant Gallegos is entitled to qualified immunity on Plaintiff’s Fourth
Amendment claim of an unreasonable search, and that claim will be dismissed.
by qualified immunity unless the very action in question has previously been held
unlawful, but it is to say that in the light of pre‐existing law the unlawfulness must be
apparent.” Pompeo, 852 F.3d at 981 (internal quotation marks omitted); see also White,
137 S. Ct. at 551. “A clearly established right is one that is sufficiently clear that every
reasonable official would have understood that what he is doing violates that right.”
Mullenix, 136 S. Ct. at 308 (internal quotation marks omitted).
Therefore, to analyze whether the right at issue is clearly established, the Court
must first determine the essential “violative nature” of the particular conduct in this
case. In his briefing, Plaintiff argues that the following is the proper formulation of the
issue: “Is there clearly established law allowing a governmental official acting under
color of law to enter onto and seize private property without a warrant and/or without
due process?” Doc. 197 at 9. The Court must reject this formulation. First, this
expression of the relevant right is at the “high level of generality” that the Supreme
Court has repeatedly cautioned lower courts against. White, 137 S. Ct. at 552 (quoting
al‐Kidd, 563 U.S. at 742). Second, qualified immunity “applies regardless of whether the
government official’s error is a mistake of law, a mistake of fact, or a mistake based on
mixed questions of law and fact.” Pearson, 555 U.S. at 231 (quotations omitted). Thus, it
would be improper for the Court to adopt Plaintiff’s formulation, which takes for
granted that Defendant Gallegos “enter[ed] onto and seize[d] private property,” when
he was acting pursuant to his belief that he was removing an obstruction from public
When pressed to present a more particularized formulation of the right at issue
during the September 11, 2017 motion hearing in this matter, Plaintiff’s counsel offered
that the issue could be encapsulated as “whether the law is clearly established that a
district attorney or law enforcement official may determine unilaterally, and without
researching the issue, that a piece of property such as a road is public and then search
and seize that property without a warrant or due process.” Doc. 205 at 3. Unfortunately
for Plaintiff, counsel could not point to a case sufficiently similar to those facts. Instead,
counsel fell back on the clearly established law that warrantless searches and seizures of
private property are per se unreasonable, and that no clearly established exception to
the warrant requirement applies here. Id. at 3‐4. This argument suffers from the same
two defects identified above—it treats the “clearly established” question far too
generally, and it fails to take into account the complicating factor of Defendant
Gallegos’s belief that the road was public, even assuming arguendo that his belief was
When considering how to formulate the particular conduct which must be
clearly established to be violative of the Constitution, several legal realities must be
acknowledged. First, specificity of the right is particularly important in the procedural
due process context because “[d]ue process . . . is a flexible concept that varies with the
particular situation.” Zinermon, 494 U.S. at 127. As noted above, several factors are
considered in evaluating an alleged due process violation, including: “First, the private
interest that will be affected by the official action; second, the risk of an erroneous
deprivation of such interest through the procedures used, and the probable value, if
any, of additional or substitute procedural safeguards; and finally, the Government’s
interest, including the function involved and the fiscal and administrative burdens that
the additional or substitute procedural requirement would entail.” Id. (internal
quotation marks omitted). Given the flexible nature of procedural due process and the
uncertainty that arises when weighing multiple factors, it can be difficult to determine
the precise contours of due process required in a given circumstance. See, e.g., Mullenix,
136 S. Ct. at 308 (recognizing same in Fourth Amendment context).
Second, the instant case involves an obstruction of an allegedly public roadway.
As noted above, one critical factor in the due process analysis is the government’s
interest. The public interest in maintaining roadways clear of obstruction is obvious,
and virtually every state and lesser political subdivision criminalizes the obstruction of
public roads over which they have responsibility. See, e.g., N.M.S.A. §§ 67‐7‐1, 67‐7‐2,
67‐7‐10; Tex. Penal Code Ann. § 42.03; Idaho Code Ann. § 18‐3907; Miss. Code Ann. §
65‐7‐7; Ga. Code Ann. § 32‐6‐1; La. Stat. Ann. § 48:512; N.C. Gen. Stat. Ann. § 136‐90;
LAS CRUCES, N.M., CODE OF ORDINANCES § 18‐1; MINNEAPOLIS, MINN., CODE OF
ORDINANCES §§ 466.230, 466.240; NATCHITOCHES, LA., CODE OF ORDINANCES § 15‐10;
KEENE, N.H., CODE OF ORDINANCES § 82‐36. Indeed, the “government has a compelling
interest in ensuring that roadways are free and clear for their purpose of facilitating
transportation.” United Food & Commercial Workers Local 99 v. Bennett, 934 F. Supp. 2d
1167, 1202 (D. Az. Mar. 29, 2013) (citing cases). Given the importance of this context, the
formulation of the “clearly established” right must involve public roadways or
something analytically similar.
Lastly, the statutory basis on which Defendant Gallegos concluded that Red Hill
Road is public is quite unusual. Most importantly for our purposes, “[u]nlike any other
federal land statute[,]” acceptance of a Section 932 road is established only by public
use. S. Utah Wilderness All. v. Bureau of Land Mgmt., 425 F.3d 735, 741 (10th Cir. 2005), as
amended on denial of reh’g (Jan. 6, 2006). In other words, Section 932 was a federal “offer
to dedicate any unreserved public lands for the construction of highways, which offer
may be accepted by public use, without action by the public authorities.” Luchetti, 777
P.2d at 1327. As a result, if Defendant Gallegos’s determination—based on an analysis
of the historic public use of the road as well as various maps provided to him by
others—had been correct, the road would be public by operation of the statute alone.
With these material circumstances in mind, the Court formulates the
particularized question as follows: is there clearly established law showing that it is
unconstitutional for a governmental official to remove an obstruction from a road that
he, with some good‐faith basis, has determined to be public based upon authority
which would require no further governmental action, before affording notice and a
meaningful opportunity to be heard to the person who erected the obstruction, if that
person has a colorable claim that the road is his or her private property?
In his briefing on the subject, Plaintiff cites to the following cases in an effort to
overcome the qualified immunity defense: McCulloch, 620 F.2d 47; Hammond v. County of
Madera, 859 F.2d 797, 801 (9th Cir. 1988), abrogated on other grounds by L.W. v. Grubbs, 92
F.3d 894 (9th Cir. 1996); Evers, 745 F.2d 1196; Winters v. Bd. of Cty. Comm’rs, 4 F.3d 848,
853 (10th Cir. 1992); Mayfield v. Bethards, 826 F.3d 1252 (10th Cir. 2016); Colonnade
Catering Corp. v. United States, 397 U.S. 72, 77 (1970); Soldal, 506 U.S. 56; Reid v. Wren, 57
F.3d 1081, 1995 WL 339401 (10th Cir. 1996) (unpublished table case); Wolfenbarger v.
Williams, 826 F.2d 930 (10th Cir. 1987), abrogated in part on other grounds by Horton v.
California, 496 U.S. 128 (1990); and DiCesare v. Stuart, 12 F.3d 973 (10th Cir. 1993). See
doc. 125 at 22‐25; doc. 197 at 9‐19. With the exception of Evers, none of these cases is
sufficiently analogous to the facts at hand to satisfy Plaintiff’s burden to show that
Defendant Gallegos violated clearly established law. And, as explained more fully
below, the Ninth Circuit’s opinion in Evers alone does not suffice to constitute clearly
established law in this jurisdiction.
Hammond involved claims of trespass and deprivation of property rights under
§ 1983 brought by nine Chickchansi Indians against the County of Madera in California,
whose Board of Supervisors had recorded two improper quitclaim deeds to obtain a
right‐of‐way across land held in a trust patent. 859 F.2d at 799‐801. Notably, the
Fourteenth Amendment deprivation was not disputed on appeal; the County
challenged only the finding that “official county policy” was the moving force behind
the constitutional violation. Id. at 801. Hammond is an out‐of‐circuit opinion,
diminishing the weight it carries in the “clearly established law” analysis. Most
importantly, the facts are too dissimilar to place the statutory or constitutional question
beyond debate. First, the County in Hammond lacked a good‐faith basis for concluding
that it had any interest in the disputed land. Instead, the “Board’s approval and
recording of improper quitclaim deeds on two occasions, without any inquiry as to their
validity, and its incorporation of the road into the County system without the proper
right‐of‐way deeds, constitute[d] reckless disregard of appellants’ constitutional rights.”
Id. at 803. Further, the actions in Hammond did not involve removal of an obstruction
pending a more final ruling from the state court, but constituted an attempted
permanent and formal taking by the government through the filing of deeds.
Winters and Wolfenbarger both involve the claims of Oklahoma pawnshop owners
that the warrantless seizures of certain property in their possession violated their
Fourth and Fourteenth Amendment rights, because they had constitutionally protected
property interests in the pawned property. See Winters, 4 F.3d at 850‐56; Wolfenbarger,
826 F.2d at 931‐34. Plaintiff relies on both of these cases to support the general
proposition that deprivations of rights under the Fourth Amendment can also validly
underlie Fourteenth Amendment due process claims. See doc. 197 at 15, 18.
While they do support that general proposition, the facts of these cases are also
not sufficiently analogous so as to have put Defendant Gallegos on notice that a person
who purports to have title to a private road is entitled to due process before a district
attorney or law enforcement officer, believing the road to be public, may remove an
obstruction blocking public access to the road. Additionally, the Tenth Circuit in both
cases relied heavily on Oklahoma law in determining whether the pawnbroker
plaintiffs had protected property interests in pawned property. The nature of the
property interest that Plaintiff had in the road traversing his New Mexico real property
is thus fundamentally different from the nature of the property interest that the
pawnbroker plaintiffs had in the personal property in their possession. Therefore, these
cases do not aid Plaintiff in meeting his burden of showing that Defendant Gallegos
was clearly on notice that Plaintiff was constitutionally entitled to due process before
the gate could be removed from Red Hill Road.
The remaining cases suffer from the same defect. Mayfield involved the shooting
of a dog by a police officer. The Tenth Circuit held that the shooting constituted a
warrantless seizure of personal property, and further that the law was clearly
established that “animals, including dogs, constituted personal property protected by
the Fourth Amendment” because the Tenth Circuit had previously analyzed seizures of
cattle and horses under the Fourth Amendment. 826 F.3d at 1258‐59. Plaintiff has
presented no similar clearly established law that a gate blocking a road whose
public/private status is in dispute is constitutionally protected personal property which
a public official, acting in an investigative or law enforcement capacity, needs a warrant
Colonnade involved federal ATF agents’ forced entry into a liquor establishment
storeroom, achieved by breaking a lock, after the owner of the establishment refused
them entry. 397 U.S. at 72‐73. However, Congress had provided by statute that any
person refusing entry to such agents would be fined $500. Id. at 74. Therefore, because
Congress had authorized a standard of reasonableness for searches and seizures under
the applicable statute, the Supreme Court held that the defendants acted unreasonably
and in violation of the Fourth Amendment to instead make a forcible, warrantless entry.
Id. at 77. The breaking of the lock is the only factual commonality between Colonnade
and the facts at bar. Yet nowhere does either the dicta or the holding of Colonnade
suggest that the breaking of the lock itself constituted a seizure of private property. It is
In Soldal, two county deputy sheriffs assisted a mobile home park manager in
evicting tenants while an eviction action was still pending against them. 506 U.S. at 58.
Under the applicable state law, a tenant could not be dispossessed absent a judgment of
conviction. Id. The evicted tenants brought a § 1983 action against the sheriffs, the
mobile home park, and the manager, alleging violations of their Fourth Amendment
right against unreasonable seizures and their Fourteenth Amendment right to due
process. Id. at 59. Only the plaintiffs’ Fourth Amendment claim was at issue on appeal
to the Supreme Court, because the Seventh Circuit Court of Appeals held that claim not
to be cognizable on the basis that the Fourth Amendment “protects against
unreasonable seizures of property only where privacy or liberty is also implicated.” Id.
at 60, 66. Therefore, the Seventh Circuit held that the removal of the plaintiffs’ trailer
did not constitute a “seizure” implicating the Fourth Amendment.
In reversing and remanding the Seventh Circuit’s grant of summary judgment to
the officers on the Fourth Amendment claim, the Court acknowledged the fear that
applying the Fourth Amendment in such a context might federalize areas of law
traditionally dealt with by the states, such as “routine repossessions, negligent actions
of public employees that interfere with individuals‘ right to enjoy their homes, and the
like[.]“ Id. at 71. However, the Court opined that a showing of unreasonableness
would have been more difficult to make under alternative facts such as “for example,
that the officers were acting pursuant to a court order,” and explained that “had the
ejection in this case properly awaited the state court’s judgment [on the eviction action,]
it is quite unlikely that the federal court would have been bothered with a § 1983 action
alleging a Fourth Amendment violation.” Id. The Court further asserted that the fear of
federalization of state law was overstated, as it was doubtful that police officers would
frequently “further an enterprise knowing that it is contrary to the law, or proceed to
seize property in the absence of objectively reasonable grounds for doing so.“ Id. at 72.
The Court agrees that Soldal offers general constitutional principles that are
applicable here—namely, that the Fourth Amendment’s prohibition against
unreasonable seizures can be implicated even where no liberty or privacy interests are
at stake, and that an officer’s actions are unlikely to be unreasonable under the Fourth
Amendment if he acts pursuant to a court order or otherwise awaits the judgment of a
court that has been called upon to adjudicate the controversy in question. See 506 U.S.
at 61‐65, 71. However, the case is not factually similar to the one at bar, and further, the
holding relied in part on the application of Illinois statutory law providing that a tenant
cannot be dispossessed absent a judgement of eviction. See id. at 58‐59. For those
reasons, Soldal does not constitute clearly established law that could have put
Defendant Gallegos on notice that he was violating Plaintiff’s constitutional rights.
Finally, DiCesare and Reid both involve the warrantless seizure of horses. Neither
case involves facts similar to those at hand. DiCesare involved two police officers who
responded to a complaint about a stray horse and entered the plaintiff’s property
without a warrant by climbing over a gate; there, they witnessed several malnourished
animals. 12 F.3d at 975. They returned twice to the property, and on the third occasion
seized thirteen horses without a warrant. The horses not euthanized were then sold. Id.
at 975‐76. The Tenth Circuit held the seizures violated the Fourth and Fourteenth
Amendments, and that no warrant exceptions applied. Id. at 977‐78.
Plaintiff relies on DiCesare for the very general proposition that “[i]t is
fundamental that ‘the State may not finally destroy a property interest without first
giving the putative owner an opportunity to present his claim of entitlement.’” 12 F.3d
at 978 (quoting Logan v. Zimmerman Brush Co., 455 U.S. 422, 434 (1982)); see also doc. 197
at 18. This proposition is far too general to overcome a qualified immunity defense in
light of particularized standard recently reiterated by the Tenth Circuit and the
Supreme Court. White, 137 S. Ct. at 552; Malone v. Bd. of Cty. Comm’rs for Cty. of Dona
Ana, 770 F. App’x 525, 555 (10th Cir. 2017) (unpublished). Further, the Court notes that
the DiCesare court did not address whether the defendants were entitled to summary
judgment on the basis of qualified immunity, as the issue of qualified immunity had not
been addressed below and summary judgment had been granted on an alternative
Reid involved a county sheriff, undersheriff, and a ranger investigating
agricultural‐related thefts who accompanied a man to the plaintiff’s property for the
purpose of retrieving a horse that the plaintiff purportedly stole from the man. 1995
WL 339401 at *1. The officers, acting on the advice of a district attorney, warned the
plaintiff that he would be arrested for concealing stolen property unless he surrendered
the horse. Id. The plaintiff then sued, alleging violations of the Fourth and Fourteenth
Amendments. Id. On appeal from a denial of summary judgment, the Tenth Circuit
rejected the defendants’ argument that the horse was not located in the curtilage of the
plaintiff’s home, holding that this was an issue of fact and affirming the denial of
summary judgment on the Fourth Amendment claim. Id. at *1‐*2. Next, the court
affirmed the denial of qualified immunity to the district attorney on the basis that the
evidence of record was sufficient to establish an “affirmative link” between the
attorney’s advice and the alleged constitutional deprivation. Id. at *2.
Plaintiff’s basis for his reliance on Reid is unclear, but it does share an obvious
factual commonality with the facts at hand. Specifically, the Colfax County deputy
sheriff who removed the gate from Red Hill Road on the second occasion, September
10, 2011, was ordered to remove it by Colfax County Sheriff Patrick Casias, who in turn
was acting on the legal advice of Defendant Gallegos “that Red Hill Road was a public
road, that Plaintiff was locking a gate on that road, that the road must remain open at
all times to allow public access to the White Peak area, and that Plaintiff’s denial of
public access to the . . . White Peak Area was in violation of the law.” See doc. 125‐2 at
3, Gallegos Dep. 119:1‐120:10; see also doc. 40‐1 at 2‐3. However, before the Court can
address whether it is clearly established that a district attorney may be held liable for
unconstitutional acts that he “authorized, supervised, or participated in[,]” see Snell v.
Tunnell, 920 F.2d 673, 700 (10th Cir. 1990), Plaintiff must first meet his burden of
showing that the acts in question were themselves unconstitutional under clearly
established law. He has not done so at the level of specificity required by the qualified
Finally, the Court turns to Evers and McCulloch, which are the most analogous to
the instant case. In McCulloch, the defendant town in Mississippi had built a public
street along a strip of land to which the plaintiffs claimed they had acquired title by
adverse possession. See 620 F.2d at 49. The town, in turn, claimed to have acquired an
easement by prescription. Id. While the general Fourteenth Amendment principles of
due process discussed in that case directly inform the Court’s decision that Plaintiff was
entitled to a pre‐deprivation hearing before Defendant Gallegos could interfere with
Plaintiff’s property interest in the road, a key distinction limits its power as clearly
establishing law as relevant here. Most significantly, the town’s conversion of the
disputed strip of land into a public street permanently dispossessed the plaintiffs in
McCulloch of the land. In contrast, Plaintiff continues to have the ability to use Red Hill
Road, and his claim to title in the road is the subject of a pending quiet title action. This
distinction is crucial when considering how much McCulloch should have informed
Defendant Gallegos’s decision making.
Finally, the Court turns to Evers. See 745 F.2d 1196. As here, a plaintiff
obstructed public access to a road traversing the plaintiff’s private property, based on a
belief that the road was private. Id. at 1198. Acting on its determination that the road
was public by operation of statute, the Board of County Commissioners issued a
declaration to that effect. Id. As noted above, the Ninth Circuit held that the plaintiff
had a colorable claim giving her a constitutionally protected property interest in the
road, even if her claim was ultimately meritless, because there was “some legal and
factual basis for her claim that the road is private.” Id. at 1200. The court further
rejected the lower court’s conclusion that there was no deprivation of a property
interest because the county had not taken control of the road, explaining that “[t]he
County did everything it could, short of actually tearing down the gates, to open the
road to members of the public, and officially endorsed their use of the road. A property
owner’s right to exclude others is ‘universally held to be a fundamental element of the
property right.’” Id. at 1201 (quoting Kaiser Aetna v. United States, 444 U.S. 164, 179‐90
(1979)). Having rejected these “standing” arguments, the court concluded that, if the
County could not show an “interest that would counterbalance [plaintiff’s] interest in
obtaining a fair hearing on her position,” the County would have “violated [plaintiff’s]
right to due process if it declared the road public without giving her notice and an
adequate opportunity to be heard.” Id. at 1203. However, and importantly in this
context, the court affirmed the grant of summary judgment on the basis of qualified
immunity to the individual Board members, holding that the law was not so clearly
established that a plaintiff is entitled to a pre‐deprivation hearing under such
circumstances as to put the Board members on notice that their actions were
The same reasoning obtains here, except that Defendant Gallegos did in fact
“tear down the gate” in this case. Indeed, if the Ninth Circuit’s opinion in Evers had
been issued by the Tenth Circuit or by the Supreme Court, it would likely be sufficiently
analogous to the facts at hand to amount to clearly established law. However, “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.” Wilson, 625 F.3d at 690. One case
from another circuit court, standing alone, cannot suffice to meet the “clearly
established” prong. See, e.g., Stewart v. Donges, 915 F.2d 572, 582 (10th Cir. 1990) (weight
of authority from six circuit courts of appeals is sufficient to show clearly established
right); Weigel v. Broad, 544 F.3d 1143, 1174 (10th Cir. 2008) (“Cases from other
jurisdictions are relevant only if they are on point and collectively form what we might
call the weight of authority.”). Even adding Evers to the less analogous McCulloch
opinion, these two out‐of‐circuit opinions would not constitute “the clearly established
weight of authority from other courts.” Wilson, 625 F.3d at 690.
Therefore, Plaintiff has not met his burden to establish that the right violated by
Defendant Gallegos was clearly established, as necessary to overcome the qualified
immunity defense as to Plaintiff’s individual‐capacity claims. Defendant Gallegos’s
motion for summary judgment on the basis of qualified immunity will therefore be
GRANTED as to Plaintiff’s individual‐capacity § 1983 claims for damages.
PLAINTIFF’S CLAIM FOR INJUNCTIVE RELIEF
In addition to his claims for damages, Plaintiff seeks injunctive relief against all
Defendants, “enjoining and restraining [them], their respective agents, representatives
and employees, from trespassing on Plaintiff’s property, from damaging Plaintiff’s
property, or from interfering with any and all measures taken or which may be taken by
Plaintiff on the Stanley Ranch to maintain the Roads as private roads and to prevent
unauthorized use of the Roads including, but not limited to, Plaintiff’s gating, fencing
or otherwise obstructing the Roads on the Stanley Ranch.” Doc. 21 at 11. Defendant
Gallegos’s Motion for Summary Judgment on the basis of Eleventh Amendment
immunity does not specifically address the injunctive relief claim. See generally doc. 160.
The same is true of both his initial and supplemental briefing seeking summary
judgment on the basis of qualified immunity. See generally docs. 115, 196. However, as
both of these Motions, taken together, seek summary judgment as to all of Plaintiff’s
claims, the Court must address the request for injunctive relief in order to fully rule on
Claims for injunctive relief against governmental officials are not foreclosed by
qualified immunity. See Hammons v. Saffle, 348 F.3d 1250, 1257 n.1 (10th Cir. 2003)
(citing Creighton, 483 U.S. at 646). Further, the Eleventh Amendment bar generally does
not apply in suits seeking only prospective relief from violations of federal law. See Ex
parte Young, 209 U.S. 123, 159‐60 (1908). Such suits can proceed against defendant state
officials, if the suit does not implicate special sovereignty interests and the plaintiffs: (i)
are suing state officials rather the state itself; (ii) have alleged a non‐frivolous violation
of federal law; and (iii) seek prospective equitable relief rather than retroactive
monetary relief from the state treasury. See Elephant Butte Irrigation Dist. of N.M. v. Dep’t
of the Interior, 160 F.3d 602, 609 (10th Cir. 1998). Defendant presents no argument that
Plaintiff’s request for injunctive relief fails to satisfy these requirements. Accordingly,
the Court will deny summary judgment to Defendant Gallegos as to Plaintiff’s claim for
Plaintiff’s official‐capacity § 1983 claims for damages against Defendant Gallegos
arising from the Fourth, Fifth, and Fourteenth Amendments are barred by the Eleventh
Amendment. However, Defendant Gallegos is not entitled to absolute prosecutorial
immunity as to any of Plaintiff’s claims. Thus, his Motion for Summary Judgment on
the basis of absolute prosecutorial and Eleventh Amendment immunity (doc. 160) is
GRANTED IN PART and DENIED IN PART. Plaintiff’s official‐capacity claims for
damages are hereby DISMISSED WITH PREJUDICE.
Viewing the facts in the light most favorable to Plaintiff, he has established that
Defendant Gallegos violated both his Fourth Amendment right against unreasonable
seizures and his Fourteenth Amendment right to due process. However, Plaintiff has
met only one prong of the “strict two‐part test” required to overcome Defendant
Gallegos’s qualified immunity defense. Specifically, Plaintiff has failed to show that
Defendant Gallegos acted contrary to clearly established law. Accordingly, Plaintiff’s
individual‐capacity § 1983 claims for damages against Defendant Gallegos arising from
the Fourth and Fourteenth Amendments are hereby DISMISSED WITH PREJUDICE.
However, Defendant Gallegos is not entitled to qualified immunity as to
Plaintiff’s claim for injunctive relief. Nor is the Eighth Judicial District Attorney’s Office
entitled to Eleventh Amendment immunity against that claim. Therefore, Defendant’s
supplemental motion for summary judgment on the basis of qualified immunity (doc.
196) is GRANTED IN PART and DENIED IN PART.
IT IS SO ORDERED.
GREGORY B. WORMUTH
United States Magistrate Judge
Presiding by Consent
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