Arellano v. New Mexico Department of Health et al
MEMORANDUM OPINION AND ORDER by Chief Magistrate Judge Karen B. Molzen granting in part 37 Defendant SPB's Motion to Dismiss for failure to state a claim and dismissing all federal section 1983 claims against Defendamts SPB and DOH; denying 74 Plaintiff's Motion for Summary Judgment; finding as moot 44 First MOTION for Reconsideration; and remanding the remaining state law claim to First Judicial District Court, County of Santa Fe, New Mexico. (KBM)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
CIV 16-1325 KBM/LF
NEW MEXICO DEPARTMENT OF HEALTH,
and THE NEW MEXICO STATE
MEMORANDUM OPINION AND ORDER
THIS MATTER is before the Court on Defendant New Mexico State Personnel
Board’s Motion to Dismiss Plaintiff’s Amended Complaint, filed on April 20, 2017
(Doc. 37), Plaintiff’s Amended Motion to Reconsider Order Affirming Decision of
Personnel Board, filed on May 4, 2017 (Doc. 44), and Plaintiff’s Motion and
Memorandum for Summary Judgement as to Counts II and [III] of Plaintiff’s Amended
Complaint Against Defendant State Personnel Board (Document 33) (Doc. 74), filed on
July 11, 2017. Pursuant to 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73(b), the parties
have consented to me serving as the presiding judge and entering final judgment. See
The Court has considered the record, submissions of counsel, and relevant law,
and finds Defendant’s Motion to Dismiss Plaintiff’s Amended Complaint (Doc. 37) is
well-taken in part and will be granted with regards to the federal claims. Further, the
Court will deny the remaining motions as moot, decline to exercise supplemental
jurisdiction and remand Plaintiff’s state claims.
Background and Discussion
The Court set out this matter’s complicated procedural history in its detailed
Memorandum Opinion and Order dated January 23, 2017, and incorporates it here by
reference. See Doc. 15 at 1-7.
Characterizing Plaintiff’s Claims
Plaintiff brings several of the claims in her Amended Complaint “under [the] Due
Process Clause of the Fifth and Fourteenth Amendment[s] to the United States
Constitution, under 42 U.S.C. § 1983 . . . .” Am. Compl. ¶ 1. In Count II, Plaintiff asks
the Court to declare that the DOH and/or the SPB “waived, denied, or defaulted on
Plaintiff’s appeal of her termination by their failure to schedule Plaintiff’s hearing within a
meaningful time.” Id. ¶ 32. In Count III, Plaintiff alleges that the “SPB failed to conduct
Plaintiff’s post-termination hearing within a meaningful time . . . in violation of Plaintiff[’]s
rights under the Due Process Clause of the Fifth and Fourteenth Amendment[s] to the
United States Constitution” pursuant to 42 U.S.C. § 1983, “and under Article II, Section
18 of the New Mexico Constitution.” Id. ¶ 35. In its Motion to Dismiss, the SPB
discusses Counts II and III as claims asserting violations of Plaintiff’s procedural due
process rights pursuant to section 1983. See Doc. 37 at 6-10. Plaintiff affirms that
characterization in her response: “Count II and the certification to the court of appeals
are by their nature due process claims.” Doc. 50 at 12. Accordingly, the Court finds that
Counts II and III seek to bring claims for alleged procedural due process violations
pursuant to section 1983.
Plaintiff styles Count IV as a due process violation based on the ALJ’s alleged
conflict of interest in and management of the hearing. See Am. Compl. at 6-7; Doc. 50
at 8-11. Plaintiff alleges that as a result of this conflict of interest, “the SPB . . . lost
jurisdiction to hear” Plaintiff’s appeal. Am. Compl. ¶ 60; see also id. ¶¶ 32-33.
Accordingly, Counts II and IV bring claims for due process violations pursuant to section
1983 based on the ALJ’s alleged conflict of interest in and management of the hearing.
The SPB has moved to dismiss Plaintiff’s claims in Counts II and III on several
grounds. 1 First, the SPB argues that Plaintiff’s due process claims must be dismissed
“because courts do not recognize respondeat superior liability under Section 1983, and
Plaintiff has not named as a party any individual government official at the SPB.”
Doc. 37 at 4. Second, it argues that it is not a proper defendant under section 1983. 2 Id.
at 5. Third, the SPB contends that the claims should be dismissed “because a 10-month
delay to conduct a post-termination hearing does not, per se, establish a procedural due
process violation . . . .” Id. at 4. The SPB also argues for dismissal of the due process
violation in Count IV on the basis that Plaintiff failed to make allegations sufficient to
show such a violation, and because Plaintiff’s claim against the ALJ is barred by the
statute of limitations. Id.
Because the parties had presented matters outside of the pleadings in their briefing, the Court
informed the parties that it would consider the evidence in conjunction with its decision on both
dispositive motions. Doc. 69. The Court indicated that it would thus treat Defendant’s Motion to
Dismiss as one for summary judgment pursuant to Federal Rule of Civil Procedure 12(d) and
allowed the parties to submit additional evidence, if desired. It is now clear, however, that any
submitted evidence is immaterial because Plaintiff’s allegations alone, when viewed the light
most favorable to Plaintiff, fail to state a viable federal claim.
The DOH adopted the SPB’s arguments, which included the assertion that Plaintiff “has not
brought any claims alleging that a Government official defendant, through that official’s
individual actions, violated the Constitution.” See Doc. 77 at 12 & Doc. 78 at 1.
The Court is persuaded by the second argument raised by Defendant SPB and
adopted by Defendant DOH – the federal due process claims fail to state a viable
federal cause of action because neither the SPB nor the DOH are “persons” amenable
to suit under section 1983.
The SPB and DOH are not “persons” for purposes of section 1983.
Plaintiff did not respond to SPB’s argument that as an arm of the state, it is
immune from suit under section 1983. See Doc. 37 at 5 & Docs. 50, 80. Indeed, Plaintiff
has raised no argument to establish that the DOH or the SPB are not state agencies or
arms of the state – nor could she.
“To determine whether an entity is an arm of the state[,]” the Court makes two
inquiries: first, the court “examines the degree of autonomy given to the agency, as
determined by the characterization of the agency by state law and the extent of
guidance and control exercised by the state.” Sturdevant v. Paulsen, 218 F.3d 1160,
1164 (10th Cir. 2000) (quoting Watson v. Univ. of Utah Med. Ctr., 75 F.3d 569, 574
(10th Cir. 1996)). “Second, the court examines 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.” Id. (quoting Watson, 75 F.3d at 574-75).
The SPB “is a public administrative body created by statute.” Martinez v. N.M.
State Eng’r Office, 9 P.3d 657, 662 (N.M. Ct. App. 2000) (citing N.M. Stat. Ann. 1978,
§ 10-9-8 (1980); State ex rel. N.M. Highway Dep’t v. Silva, 650 P.2d 833, 835 (N.M. Ct.
App. 1982)). The SPB has precisely defined duties, and there is no evidence that the
Board has autonomy to perform any duties outside of those defined by statute. See
N.M. Stat. Ann. § 10-9-10. Moreover, Plaintiff offers no argument to establish that the
SPB provides for its own financing or that a money judgment would be satisfied by any
fund outside of the state treasury. See, e.g., N.M. Stat. Ann. § 10-9-5. The Court finds
that the SPB is an arm of the state.
The DOH is a “cabinet department” created as part of the state’s executive
branch. N.M. Stat. Ann. 1978 § 9-7-4. Multiple state and federal cases acknowledge
that the DOH is an arm of the state and entitled to Eleventh Amendment immunity. See,
e.g., J.B. ex rel. Hart v. Valdez, 186 F.3d 1280, 1285-86 (10th Cir. 1999) (noting that
while defendants, including DOH, are generally entitled to Eleventh Amendment
immunity, immunity can be waived); Lewis, 94 F. Supp. 2d at 1223; Jackson v. Fort
Stanton Hosp. & Training Sch., 757 F. Supp. 1243, 1303 (D.N.M. 1990), rev’d on other
grounds, 964 F.2d 980 (10th Cir. 1992); Whitney v. New Mexico, 113 F.3d 1170, 1172
(10th Cir. 1997) (upholding dismissal of Plaintiff’s complaint against an employee of the
DOH brought in his official capacity).
In summary, even Plaintiff contends, Am. Compl. ¶ 3, and all other courts to
decide the issue have found that the SPB “is an agency or department with the State of
New Mexico government.” See also Abreu v. N.M. Children, Youth & Families Dep’t,
646 F. Supp. 2d 1259, 1261 (D.N.M. 2009) (noting that the State Personnel Office is an
agency of the State of New Mexico for purposes of Eleventh Amendment immunity).
Likewise, the Department of Health is also an agency and arm of the State of New
Mexico entitled to Eleventh Amendment immunity. See, e.g., Lewis v. N.M. Dep’t of
Health, 94 F. Supp. 2d 1217, 1223 (D.N.M. 2000) (where the plaintiff had conceded
“that the Eleventh Amendment precludes section 1983 claims against” the DOH).
As arms of the state, neither the DOH nor the SPB are proper defendants under
section 1983. “A cause of action under section 1983 requires the deprivation of a civil
right by a ‘person’ acting under color of state law.” McLaughlin v. Bd. of Trs. of State
Colls. of Colo., 215 F.3d 1168, 1172 (10th Cir. 2000). “[N]either a State nor its officials
acting in their official capacities are ‘persons’ under § 1983.” Will v. Michigan Dept of
State Police, 491 U.S. 58, 71 (1989). As the Tenth Circuit has explained, “‘a
governmental entity that is an arm of the state for Eleventh Amendment purposes’ is not
a ‘person’ for section 1983 purposes.” McLaughlin, 215 F.3d at 1172 (quoting Harris v.
Champion, 51 F.3d 901, 905-06 (10th Cir. 1995), superseded on other grounds by
Peterson v. Timme, 621 F. App’x 536, 542 (10th Cir. 2015)).
Because Plaintiff brings suit against only the DOH and SPB, rather than against
officials within those agencies in their individual capacity, Plaintiff fails to state a viable
federal claim under section 1983. Therefore, the Court will dismiss the section 1983
claims with prejudice. 3
The Court will remand Plaintiff’s remaining state law claims.
Neither party addressed Plaintiff’s claim under the New Mexico Constitution, and
the Court declines to do so as well. Because the basis for federal jurisdiction here lies in
the federal question, no independent federal jurisdictional basis remains for Plaintiff’s
remaining claim under state law. See Am. Compl. ¶ 35. Thus, the Court will decline to
That Defendants waived their Eleventh Amendment immunity by removing Plaintiff’s lawsuit to
federal court does nothing to change the fact that they are not persons under section 1983. See
McLaughlin, 215 F.3d at 1172-73 (concluding that the Board of Trustees had waived its
Eleventh Amendment immunity by removing the case to federal court, but finding that the Board
was not a person under section 1983).
exercise supplemental jurisdiction over Plaintiff’s state law claim and will remand it to
the First Judicial District Court, County of Santa Fe, for further proceedings.
Because Defendants are not “persons” amenable to suit under section 1983, the
Court will dismiss Plaintiff’s claims pursuant to section 1983 with prejudice. Plaintiff’s
claim under the state constitution remains but will be remanded for consideration by the
IT IS HEREBY ORDERED that Defendant New Mexico State Personnel Board’s
Motion to Dismiss Plaintiff’s Amended Complaint (Doc. 37) is granted in part. Plaintiff’s
section 1983 claims against the SPB and DOH arising under the United States
Constitution are dismissed with prejudice;
IT IS FURTHER ORDERED that Plaintiff’s Motion and Memorandum for
Summary Judgement as to Counts II and [III] of Plaintiff’s Amended Complaint Against
Defendant State Personnel Board (Document 33) (Doc. 74) is denied;
IT IS FURTHER ORDERED that Plaintiff’s Amended Motion to Reconsider Order
Affirming Decision of Personnel Board (Doc. 44) is denied as moot;
IT IS FINALLY ORDERED that Plaintiff’s remaining state law claim is hereby
remanded to the First Judicial District Court, County of Santa Fe, State of New Mexico
for further adjudication.
UNITED STATES CHIEF MAGISTRATE JUDGE
Presiding by Consent
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