Turner v. Middle Rio Grande Conservancy District et al
MEMORANDUM OPINION AND ORDER by District Judge Robert C. Brack DENYING 116 MOTION for Reconsideration re 113 Memorandum Opinion and Order, 111 Memorandum Opinion and Order, 115 Order, 112 Memorandum Opinion and Order, 114 Memorandum Opinion and Order . (yc)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
DR. WILLIAM M. TURNER,
MIDDLE RIO GRANDE CONSERVANCY DISTRICT; SUBASH SHAH, Former
Executive Director of the Middle Rio Grande Conservancy District (MRGCD) and
former Chief Engineer and former Chairman of the New Mexico Board of
Licensure for Professional Engineers and Professional Land Surveyors; DENNIS
DOMRZALSKI, Former MRGCD Public Information Officer; JOHN DOES, Members or
Former Members of the MRGCD; MARY SMITH, New Mexico Assistant Attorney General;
JOHN DOES, Members or Former Members of the New Mexico Board of Licensure for
Professional Engineers and Land Surveyors; EDUARD YTUARTE, Former Executive
Director, New Mexico Board of Licensure for Professional Engineers and Land Surveyors;
JOHN T. ROMERO, Former Chair of the Engineering Committee, New Mexico Board
of Licensure for Professional Engineers and Land Surveyors; JOHN DOES, of KOB
Channel 4 News of Albuquerque; and KOB-TV,
MEMORANDUM OPINION AND ORDER
This matter is before the Court on Plaintiff’s Motion to Alter or Amend Judgment Pursuant
to Fed. R. Civ. Pro., Rules [sic] 59, filed on March 24, 2017 (Doc. 116). Jurisdiction arises under
28 U.S.C. §§ 1331 and 1367.
On February 24, 2017, the Court entered its Final Order in favor of Defendants and
dismissed the case with prejudice. (Doc. 115.) The Court had previously granted Defendants’
MRGCD, Shah, and Domrzalski’s Motion to Dismiss (see Docs. 70, 114), Defendant Smith’s
Motion for Judgment on the Pleadings (see Docs. 73, 111), Defendant Romero’s Motion for
Judgment on the Pleadings (see Docs. 76, 112), and Defendant Ytuarte’s Motion for Judgment on
the Pleadings (see Docs. 78, 113).
Dr. William Turner (Plaintiff) now moves the Court to reconsider these four opinions and
argues that the Court overlooked and/or misconstrued controlling law and overlooked factual
details as alleged in Plaintiff’s First Amended Complaint. (See Doc. 116.) Having considered the
submissions of counsel and relevant law, the Court will DENY the motion.
Procedural and Factual Background
On April 23, 2015, Plaintiff filed suit in this Court against a variety of Defendants. (Doc.
1.) Plaintiff’s First Amended Verified Complaint alleges seven causes of action: (1) violations of
his Due Process and Fifth Amendment rights against Defendants Shah, Domrzalski, Romero, and
Ytuarte; (2) violations of his First Amendment rights by Defendants Shah, Domrzalski, John Does
of MRGCD, and John Does of the Board of Licensure for Professional Engineers and Professional
Land Surveyors (BOL); (3) violations of his Equal Protection rights and discrimination by
Defendants Shah, Domrzalski, and John Does of KOB Channel 4; (4) conspiracy to violate
Plaintiff’s First and Fourteenth Amendment (equal protection) rights pursuant to 42 U.S.C. §
1985(3) by Defendants Shah, Domrzalski, Ytuarte, and John Does of BOL; (5) civil conspiracy by
Defendants Shah, Domrzalski, Romero, Ytuarte, Smith, and John Does of MRGCD; (6) malicious
prosecution/abuse of process by Defendants Shah, Domrzalski, John Does of the MRGCD,
Ytuarte, Romero, John Does of the BOL, and Smith; and (7) claims pursuant to the New Mexico
Tort Claims Act, defamation, and slander by Defendants Shah, Domrzalski, and John Doe of
KOAT. (See Doc. 3.)
The Court provided a summary of the pertinent facts in a light most favorable to Plaintiff
in its original Memorandum Opinion and Orders and incorporates those facts herein. (See Docs.
111, at 1–4; 112, at 1–4; 113, at 1–4; 114, at 1–4.)
Motion to Alter or Amend Judgment Standard
A motion to alter or amend judgment pursuant to “rule 59(e) is an ‘inappropriate vehicle
to reargue an issue previously addressed by the court when the motion merely advances new
arguments, or supporting facts which were available at the time of the original motion.’” Jarita
Mesa Livestock Grazing Ass’n v. U.S. Forest Serv., 58 F. Supp. 3d 1191, 1218 (D.N.M. 2014)
(quoting Servants of Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000)). “Grounds
warranting a motion to reconsider include (1) an intervening change in the controlling law, (2) new
evidence previously unavailable, and (3) the need to correct clear error or prevent manifest
injustice.” Id. (quoting Servants of Paraclete, 204 F.3d at 1012 (internal citation omitted)). “Thus,
a motion for reconsideration is appropriate where the court has misapprehended the facts, a party’s
position, or the controlling law.” Id. (quoting Servants of Paraclete, 204 F.3d at 1012 (internal
citation omitted)). “A district court has considerable discretion in ruling on a motion to reconsider
under rule 59(e).” Id. (citing Phelps v. Hamilton, 122 F.3d 1309, 1324 (10th Cir. 1997)).
Motion to Dismiss Standard
The Court uses the same standard to analyze both a motion to dismiss and a motion for
judgment on the pleadings. Atl. Richfield Co. v. Farm Credit Bank of Wichita, 226 F.3d 1138, 1160
(10th Cir. 2000) (citation omitted). In order to withstand a motion to dismiss or a motion for
judgment on the pleadings, the complaint “must contain sufficient factual matter, accepted as true,
to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The plaintiff must nudge his
“claims across the line from conceivable to plausible . . . .” Twombly, 550 U.S. at 570. The plaintiff
must plead “factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S.
at 570). The Court accepts as true all of the factual allegations in the complaint and construes those
facts “in the light most favorable to the plaintiff.” See Anderson v. Merrill Lynch Pierce Fenner &
Smith, Inc., 521 F.3d 1278, 1284 (10th Cir. 2008).
Plaintiff alleges seven discrete points of error with the Court’s opinions: (1) “[t]he [C]ourt
overlooked the controlling uniform precedent(s) of the Tenth Circuit and other various other [sic]
circuits on the accrual of 1983 malicious prosecution and conspiracy claims”; (2) “[f]or 1983
malicious prosecution, Plaintiff’s ‘charge of violation’ was a ‘criminal proceeding’”; (3) the
“[C]ourt overlooked the policy or custom or practice identified by Plaintiff in his amended
complaint and the Tenth Circuit’s precedent in support”; (4) the “Court overlooked the factual
details and/or discriminatory animus alleged by Plaintiff in his amended complaint”; (5) “[t]he
Court Decision is in conflict with controlling precedent from the 10th Circuit Court of Appeals”;
(6) “Plaintiff has Sufficiently Pled Facts of a Policy or Custom of the MRGCD to Nudge His 42
U.S.C. 1983 Claims for Deprivation of His First Amendment Rights and Conspiracy to Deprive
Him of His Constitutional Rights Across the Line for [sic] Conceivable to Plausible Such [that]
the Court Committed Clear Error in Dismissing The Claim”; and (7) “Plaintiff believes that the
present case is a Bivens type of case where government and quasi-governmental officials of New
Mexico have violated Plaintiff’s civil rights.” (Doc. 116, at 5–19.)
The Court addresses Plaintiff’s first, second, and fifth arguments together in Section III(A)
and his third, fourth, sixth, and seventh arguments in Section III(B).
Plaintiff’s claims accrued on February 26, 2010.
Plaintiff argues that the “favorable termination rule,” as defined in Heck v. Humphrey, 512
U.S. 477 (1994), applies to his § 1983 claims, thus the Court miscalculated the date his § 1983
claim for malicious prosecution accrued. (Doc. 116, at 5–7, 11–15.) While Plaintiff made
substantially similar arguments in his responses to the original motions (see Docs. 88, at 7–14; 89,
at 14–15; 90, at 9–11; 91, at 5–6), he argues that the Court overlooked his position and/or relevant
law, because the Court did not specifically address whether the Tenth Circuit’s decisions in either
Robinson v. Moruffi, 895 F.2d 649 (10th Cir. 1990) or Cohen v. Clemens, 321 F. App’x 739 (10th
Cir. 2009) support the contention that Heck is applicable to Plaintiff’s claims, or whether N.M.
Stat. Ann. § 37-1-12 (1978) tolled the applicable statute of limitations. (Doc. 116, at 5–7, 11–15.)
Neither Cohen nor Robinson are applicable to Plaintiff’s claims.
Plaintiff contends “the [C]ourt missed the essential element of a 1983 malicious
prosecution claim that the proceeding, whether it is criminal or civil, must finally terminate in
Plaintiff’s favor.” (Doc. 116, at 5.) Plaintiff relies on the reasoning in Heck and its progeny to
support his position. In Heck, the Supreme Court held that:
[I]n order to recover damages for allegedly unconstitutional conviction or
imprisonment, or for other harm caused by actions whose unlawfulness would
render a conviction or sentence invalid, a § 1983 plaintiff must prove that the
conviction or sentence has been reversed on direct appeal, expunged by executive
order, declared invalid by a state tribunal authorized to make such determination,
or called into question by a federal court’s issuance of a writ of habeas corpus, 28
U.S.C. § 2254. A claim for damages bearing that relationship to a conviction or
sentence that has not been so invalidated is not cognizable under § 1983.
512 U.S. at 486. As the Court noted previously, Heck “applies only to claims that would imply the
invalidity of a criminal conviction or sentence.” (See, e.g., Doc. 112, at 6 (citing Beck v. City of
Muskogee Police Dep’t, 195 F.3d 553, 557 (10th Cir. 1999)).)
Plaintiff contends that Cohen extends Heck to claims like Plaintiff’s. (Doc. 116, at 14.)
Plaintiff quotes a sentence from Cohen—“the rule in Heck is not limited to claims challenging the
validity of crimination convictions”—but fails to provide any context from the case. (Id. (quoting
Cohen, 321 F. App’x at 742 (internal citations omitted)).) Cohen, “an alien detainee” bringing
claims against federal officials pursuant to Bivens v. Six Unknown Named Agents of Federal
Bureau of Narcotics, 403 U.S. 388 (1971) and other federal statutes, alleged that the federal
officials “falsified and failed to file immigration forms related to his pending immigration case,
thereby causing him to be denied release on bond.” Cohen, 321 F. App’x at 740–41. In discussing
Heck’s reach, the Tenth Circuit cited a variety of cases that had applied Heck. Id. at 742 (quoting
Crow v. Penry, 102 F.3d 1086, 1087 (10th Cir. 1996) (per curiam) (“Heck applies to Bivens
actions”) (internal citation omitted); Edwards v. Balisok, 520 U.S. 641 (1997) (“applying Heck to
a § 1983 claim challenging procedures used to deprive a prison inmate of good time credits”);
Huftile v. Miccio-Fonseca, 410 F.3d 1136, 1137 (9th Cir. 2005) (“applying Heck to a § 1983 claim
challenging civil commitment under California’s Sexually Violent Predators Act”); Hamilton v.
Lyons, 74 F.3d 99, 102–03 (5th Cir. 1996) (“applying Heck to a § 1983 claim challenging the
coercive nature of a pretrial detainee’s confinement prior to giving a statement regarding pending
charges”)). None of the cited cases are analogous to Plaintiff’s.
Plaintiff also relies heavily on the Tenth Circuit’s pre-Heck decision in Robinson v.
Moruffi, 895 F.2d at 654–55. Plaintiff made essentially the same argument in his earlier responses
to Defendants’ motions. (See Docs. 88, at 8–9 (discussing Robinson); 89, at 15 (incorporating the
section from Doc. 88 that references Robinson); 90, at 9 (incorporating the section from Doc. 88
that references Robinson); 91, at 5 (incorporating the section from Doc. 88 that references
In Robinson, the plaintiff brought a civil rights action against several defendants alleging
a variety of claims, including malicious prosecution under § 1983. 895 F.2d at 650. The plaintiff,
who had been charged with murder and armed robbery, had gone through two criminal jury trials:
the first ended in convictions, which the New Mexico Supreme Court reversed “due to the
prosecutor’s improper examination and impeachment of an eyewitness”; the second ended in
acquittal. Id. at 651–53 (citation omitted). The defendants argued that the plaintiff’s malicious
prosecution claim was barred by the applicable statute of limitations. Id. at 653–54 (citing Wilson
v. Garcia, 471 U.S. 261, 280 (1985) (“§ 1983 actions best characterized as personal injury actions
and subject to New Mexico three-year” statute of limitations); aff’g Garcia v. Wilson, 731 F.2d
640 (10th Cir. 1984); N.M. Stat. Ann. § 37-1-8 (1978)); see also Varnell v. Dora Consol. Sch.
Dist., 756 F.3d 1208, 1212 (10th Cir. 2014) (“The law was settled in Wilson that for § 1983 claims
arising in New Mexico the limitations period is three years, as provided in New Mexico’s statute
of limitations for personal-injury claims”) (citations omitted). The Tenth Circuit held that the
plaintiff’s claims did not accrue after the New Mexico Supreme Court’s reversal of the first
convictions, because he “remained subject to those serious charges and went on trial for his life
again in October 1983 when the malicious prosecution conspiracy again resulted in presentation
of the false case against him.” Robinson, 895 F.2d at 654. The Tenth Circuit instead found that the
plaintiff’s claims accrued at the conclusion of the second trial, when he was acquitted. Id.
Plaintiff ignores the thread running through all of these cases—detention. See also Crow,
102 F.3d at 1087 (Heck applies to Bivens actions” as well as “to proceedings that call into question
the fact or duration of parole or probation.”) (citations omitted). The Tenth Circuit explained in
Butler v. Compton, 482 F.3d 1277 (10th Cir. 2007),
[t]he purpose behind Heck is to prevent litigants from using a § 1983 action, with
its more lenient pleading rules, to challenge their conviction or sentence without
complying with the more stringent exhaustion requirements for habeas actions. See
Muhammad v. Close, 540 U.S. 749, 751–52 (2004) (per curiam). The starting point
for the application of Heck then is the existence of an underlying conviction or
sentence that is tied to the conduct alleged in the § 1983 action. In other words, a §
1983 action implicates Heck only as it relates to the conviction that it would be
directly invalidating. There is no such conviction here.
482 F.3d at 1279. Similarly, there was no such conviction or detention for Dr. Turner.
Plaintiff advances the novel theory that because he could have faced a misdemeanor charge
if he had not paid the fine levied by the BOL, his proceedings should be considered criminal, rather
than civil. (Doc. 116, at 12 (discussing N.M. Stat. Ann. § 61-23-27.15E).) Plaintiff cites no
controlling authority in support of this theory, and the Court is unpersuaded. As Plaintiff’s claim
follows civil proceedings that did not result in conviction, detention, commitment, or any criminal
proceedings, neither Heck, Cohen, nor Robinson apply.
Section 37-1-12 does not toll the applicable statute of limitations.
Plaintiff next argues that N.M. Stat. Ann. § 37-1-12 tolls the applicable statute of
limitations. (Doc. 116, at 115.) This section provides: “When the commencement of any action
shall be stayed or prevented by injunction order or other lawful proceeding, the time such
injunction order or proceeding shall continue in force shall not be counted in computing the period
of limitation.” N.M. Stat. Ann. § 37-1-12. Plaintiff contends that the statute of limitations should
be tolled from the date he appealed the BOL’s decision to the date the New Mexico Court of
Appeals published its own opinion. (Doc. 116, at 115.) Plaintiff does not, however, explain or cite
any authority to demonstrate that the proceedings in the district court or the court of appeals stayed
or prevented him from filing his claims in this Court. See Butler v. Deutsche Morgan Grenfell,
Inc., 140 P.3d 532, 537 (N.M. Ct. App. 2006) (Section 37-1-12 “refers only to injunctions or other
orders that preclude ‘the commencement’ of an action.”). Presumably, Plaintiff would argue that
Heck’s favorable termination rule prevented him from filing his claims here before the New
Mexico Court of Appeals’ decision. The Court has already found that argument inapplicable.
Consequently, Plaintiff fails to establish that § 37-1-12 tolled the statute of limitations.
The Court declines to address the balance of Plaintiff’s Motion.
In the third, fourth, and sixth sections of his Motion, Plaintiff contends that the Court erred
in finding that he had failed to plead facts sufficient to state his claims pursuant to §§ 1983 and
1985. (Doc. 116, at 8–11, 15–18.) Because the Court reaffirms its decision that Plaintiff failed to
file his claims within the applicable statute of limitations, these issues are moot.
In his seventh argument, it appears Plaintiff advances a new theory of recovery: a claim
pursuant to Bivens, 403 U.S. 388. (Doc. 116, at 18–19.) The Court denies Plaintiff’s Motion with
respect to this last claim for at least three reasons. First, it is inappropriate to raise a new argument
at this juncture. See Jarita Mesa Livestock Grazing Ass’n, 58 F. Supp. 3d at 1218; see also Servants
of Paraclete, 204 F.3d at 1012 (“It is not appropriate to revisit issues already addressed or advance
arguments that could have been raised in prior briefing.”) (citation omitted). Second, a Bivens
action is a “private action for damages against federal officers alleged to have violated a citizen’s
constitutional rights.” Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 66 (2001) (emphasis added)
(holding that a plaintiff may not bring a Bivens action against private entities acting under color of
federal law). Defendants are not federal officers, thus Plaintiff may not bring a Bivens claim against
them. Finally, even if Plaintiff could bring a Bivens claim against these Defendants, “[a] Bivens
action is subject to the limitation period for an action under 42 U.S.C. § 1983, and that limitation
period is set by the personal injury statute in the state where the cause of action accrues.” Roberts
v. Barreras, 484 F.3d 1236, 1238 (10th Cir. 2007) (citations omitted). The Court has already found
that Plaintiff’s claim is barred by the applicable statute of limitations, hence any Bivens claim
would also be barred.
The Court has reviewed the facts and the law in a light most favorable to Plaintiff and finds
that Plaintiff has failed to establish that the Court previously misapprehended the facts, Plaintiff’s
position, or the controlling law.
IT IS ORDERED that Plaintiff’s Motion to Alter or Amend Judgment Pursuant to Fed. R.
Civ. Pro., Rule 59 (Doc. 116) is DENIED.
ROBERT C. BRACK
UNITED STATES DISTRICT JUDGE
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