Herrera v. Garcia et al

Filing 63

ORDER by Magistrate Judge Laura Fashing granting 50 Motion to Dismiss (see Order for Specifics). Plaintiff has 21 days to file a motion to amend. The pretrial conferences set for February 21, 2018 and April 16, 2018; the trial set for April 23, 2018; and all deadlines set in the Order Setting Civil Jury Trial (Doc. 43) are hereby VACATED. (ccp)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
LEON HERRERA,
Plaintiff,
vs.

1:16-cv-01366 LF-JHR

FERNANDO “NANDO” GARCIA,
Individually and as Mayor of the Village of Springer,
PAUL MARES, Individually and as Chief of Police
of the Village of Springer, and STEVEN MICHAEL
MARTINEZ, Individually and as Agent of the New
Mexico State Police,
Defendants.
MEMORANDUM OPINION AND ORDER
This matter comes before the Court on defendants Fernando Garcia and Paul Mares’s
Motion to Dismiss on Grounds of Qualified Immunity, Statute of Limitations and Failure to
State a Claim on Which Relief can be Granted. Doc. 50. Plaintiff Leon Herrera opposes the
motion. Docs. 57, 62. Having considered the parties’ submissions and the relevant law, I
GRANT Garcia and Mares’s motion to dismiss counts I, II and III. But as explained below, I
will permit Herrera to move to amend his complaint on claims where amendment is not
obviously futile.
I.

Factual Background
In ruling on a motion for judgment on the pleadings, the Court must accept as true all

facts alleged in the complaint. See Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009).
It also must view these factual allegations in the light most favorable to the plaintiff. See id.
Viewing the facts alleged in the complaint in this manner, the complaint establishes the
following:

Herrera was hired in 2009 as a police officer for the town of Springer, New Mexico.
Doc. 1-1 ¶ 6. He eventually was promoted to interim police chief. Id. Garcia was the mayor of
Springer, and Mares was the police chief. 1 Id. ¶¶ 3–4. While he was interim police chief,
Herrera investigated illegal activity committed by family members of a “Village counselor.” 2 Id.
¶ 8. He also investigated criminal activity committed by Garcia. Id. Herrera reported the
Garcia matter to the Federal Bureau of Investigation. Id. ¶ 9. Garcia was aware of Herrera’s
investigation of him. Id. ¶ 10. The “Village counselor” was aware of Herrera’s investigation of
the official’s family member, which ultimately resulted in a conviction. Id. Springer officials
forced Herrera out of his position as interim police chief because they were unhappy that he was
investigating the mayor and a town councilor’s family member. Id. ¶ 11.
At the end of July 2014, Garcia and Mares falsely reported that Herrera had purchased
various items with funds belonging to the town of Springer and converted those items to his own
use. Id. ¶ 12. Garcia and Mares made this report to Steven Michael Martinez, 3 who was “an
agent of the New Mexico State Police.” Id. ¶¶ 5, 13. Garcia and Mares withheld or destroyed
exonerating evidence from Martinez. Id. ¶ 14. Martinez conducted a “faulty, biased,
misleading, and incomplete investigation into the matter” and was a “personal enemy” of
Herrera’s. Id. ¶¶ 15, 19.

1

The complaint does not state when Garcia and Mares became mayor and police chief,
respectively, nor does it explain whether Mares became police chief after Herrera was “forced
out” as interim police chief. The Court assumes Mares became police chief after Herrera was
“forced out,” but that Garcia was mayor during the entire relevant period.
2

The Court assumes this refers to a member of the Springer town council, but this is not clear in
the complaint.
3

On September 5, 2017, the Court dismissed with prejudice all the claims against Martinez
pursuant to a stipulation. Doc. 55.
2

Herrera subsequently was charged with the felony offense of embezzling more than
$2500, but not more than $20,000, under N.M. STAT. ANN. § 30-16-8 in State v. Leon Herrera,
Colfax County Cause No. D-809-CR-2015-00112. Doc. 1-1 ¶ 20. According to Herrera, there
was no probable cause to support his prosecution. Id. ¶ 21. On May 10, 2016, a jury acquitted
Herrera on this charge. Id. ¶ 22.
II.

The Complaint
Count I of the complaint, brought under 42 U.S.C. § 1983, alleges that the “Defendants[’]

actions resulted in [Herrera] being maliciously prosecuted” and “were conducted with the intent
to deprive [Herrera] of his right to free speech, freedom from retaliation, and freedom from
retaliatory of bad faith or capricious prosecutions.” Doc. 1-1 ¶ 24. Count I also alleges that
Garcia, Mares, and Martinez conspired with each other to violate Herrera’s constitutional rights.
Id. ¶ 25. Count II of the complaint also is brought under 42 U.S.C. § 1983, and appears to allege
the same violations as Count I. See id. ¶¶ 28–34. Count III of the complaint, brought under the
New Mexico Tort Claims Act, alleges that Mares and Garcia committed the torts of “abuse of
process, malicious abuse of process, libel, slander, defamation of character, prima facie tort, and
violation of immunities secured by the constitution and laws of the United States and State of
New Mexico.” Id. ¶ 36.
III.

Discussion
A. Motions to Dismiss Generally
“To withstand a motion to dismiss, a complaint must have enough allegations of fact,

taken as true, ‘to state a claim to relief that is plausible on its face.’” Kan. Penn Gaming, LLC v.
Collins, 656 F.3d 1210, 1214 (10th Cir .2011) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)). While “‘a court must accept as true all of the allegations contained in a

3

complaint,’” this rule does not apply to legal conclusions. Id. (quoting Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009)). “[A] plaintiff must offer specific factual allegations to support each
claim.” Id. (citation omitted). A complaint survives only if it “states a plausible claim for
relief.” Id. (citation omitted). “Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678 (citation
omitted).
“Generally, a court considers only the contents of the complaint when ruling on a
12(b)(6) motion.” Berneike v. CitiMortgage, Inc., 708 F.3d 1141, 1146 (10th Cir. 2013). But a
court may consider “documents incorporated by reference in the complaint; documents referred
to in and central to the complaint, when no party disputes its authenticity; and matters of which a
court may take judicial notice.” Id. (internal quotation marks omitted) (citing Gee v. Pacheco,
627 F.3d 1178, 1186 (10th Cir. 2010)). In determining whether to grant the motion, the Court
must accept all the well-pleaded allegations of the complaint as true, even if doubtful in fact, and
must construe the allegations in the light most favorable to the plaintiff. Twombly, 550 U.S. at
555; Alvarado v. KOB–TV, LLC, 493 F.3d 1210, 1215 (10th Cir. 2007). “[A] well-pleaded
complaint may proceed even if it strikes a savvy judge that actual proof of those facts is
improbable, and ‘that a recovery is very remote and unlikely.’” Robbins v. Oklahoma, 519 F.3d
1242, 1247 (10th Cir. 2008) (quoting Twombly, 550 U.S. at 556).
B. Section 1983 Claims and Qualified Immunity Generally
Section 1983 states in relevant part:
Every person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State . . . subjects, or causes to be subjected, any citizen of the
United States or other person within the jurisdiction thereof to the deprivation of
any rights, privileges, or immunities secured by the Constitution and laws, shall
be liable to the party injured in an action at law, suit in equity, or other proper
proceeding for redress.
4

42 U.S.C. § 1983. To establish a claim under § 1983, a plaintiff must allege that a defendant
acted under color of state law to deprive the plaintiff of a right, privilege, or immunity secured
by the Constitution or the laws of the United States. West v. Atkins, 487 U.S. 42, 48 (1988). The
plaintiff also must identify an “affirmative link” between the alleged constitutional violation and
each individual defendant. Gallagher v. Shelton, 587 F.3d 1063, 1069 (10th Cir. 2009).
Qualified immunity shields government officials performing discretionary functions from
liability for civil damages unless their conduct violates clearly established statutory or
constitutional rights of which a reasonable person would be aware. Harlow v. Fitzgerald, 457
U.S. 800, 818 (1982). Under the Tenth Circuit’s two-part test for evaluating qualified immunity,
the plaintiff must show (1) that the defendant’s conduct violated a constitutional or statutory
right, and (2) that the law governing the conduct was clearly established when the alleged
violation occurred. Baptiste v. J.C. Penney Co., 147 F.3d 1252, 1255 (10th Cir. 1998); accord
Tonkovich v. Kan. Bd. of Regents, 159 F.3d 504, 516 (10th Cir. 1998). For a right to be clearly
established, “[t]he contours of the right must be sufficiently clear that a reasonable official would
understand that what he [or she] is doing violates that right.” Anderson v. Creighton, 483 U.S.
635, 640 (1987). Unless both prongs are satisfied, the defendant will not be required to “engage
in expensive and time consuming preparation to defend the suit on its merits.” Siegert v. Gilley,
500 U.S. 226, 232 (1991).
The Court is not required to address the two prongs of the test in order. Pearson v.
Callahan, 555 U.S. 223, 236 (2009). The Supreme Court’s decision in Pearson permits courts
to grant qualified immunity without first deciding whether a constitutional violation occurred so
long as the right claimed to be violated was not clearly established. Id. The right that is alleged
to have been violated must be “clearly established” not just as a general proposition (for

5

example, in the way the right to free speech is clearly established), but “in a more particularized
. . . sense: The contours of the right must be sufficiently clear that a reasonable official would
understand that what he [or she] is doing violates that right.” Anderson, 483 U.S. at 640. Stating
the right too broadly would destroy the balance that the Supreme Court has sought to establish
“between the interests in vindication of citizens’ constitutional rights and . . . public officials’
effective performance of their duties by making it impossible for officials reasonably to
anticipate when their conduct may give rise to liability for damages.” Id. at 639 (quotation and
citation omitted). “Qualified immunity gives government officials breathing room to make
reasonable but mistaken judgments about open legal questions.” Ashcroft v. al-Kidd, 563 U.S.
731, 743 (2011). Qualified immunity therefore protects “all but the plainly incompetent or those
who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986).
1. Malicious Prosecution Claim
To state a claim for malicious prosecution under § 1983, Herrera must allege facts to
support the following elements: (1) the defendants caused Herrera’s continued confinement or
prosecution; (2) the original action terminated in favor of Herrera; (3) no probable cause
supported the original arrest, continued confinement, or prosecution of Herrera; (4) the
defendants acted with malice; and (5) Herrera sustained damages. Sanchez v. Hartley, 810 F.3d
750, 754 n.1 (10th Cir. 2016) (citing Wilkins v. DeReyes, 528 F.3d 790, 799 (10th Cir. 2008)).
In their motion, defendants argue that Herrera cannot sustain his malicious prosecution
claim because he did not allege that he was arrested, which, they say, is required under Tenth
Circuit law. See Becker v. Kroll, 494 F.3d 904, 914–16 (10th Cir. 2007) (holding that a
malicious prosecution claim under Fourth Amendment requires seizure by arrest or
imprisonment). In his response, Herrera asserts that he was arrested, and he attaches documents

6

from the New Mexico state court proceedings that support this assertion. See Doc. 57 at 2–3;
Docs. 57-1, 57-2, 57-3, 57-4. He further argues that if his detention was not sufficient to support
his claim (he immediately bonded out), the restrictions on his travel pending trial constituted
sufficient restraints on his liberty to constitute a seizure under the Fourth Amendment. See Doc.
57 at 2–3. In their reply, defendants shift gears and argue that the magistrate judge’s bind-over
order was a finding that probable cause supported Herrera’s arrest and prosecution, and that
Herrera is precluded from relitigating that issue in this case. Doc. 58 at 2–3. In his sur-reply,
Herrera argues that the Court should not give the magistrate judge’s determination of probable
cause preclusive effect because “New Mexico Magistrate Courts are not Courts of record,” and
because the magistrate judge’s probable cause finding “was vitiated by the fact that Defendants
withheld or destroyed exonerating evidence and the Magistrate Court’s finding of probable cause
was based on faulty or incomplete evidence” as made apparent by Herrera’s ultimate acquittal.
Doc. 62 at 1–2. As it stands now, the Court does not have sufficient information to determine
whether the magistrate judge’s bind-over order precludes Herrera’s claim that he was arrested
and prosecuted without probable cause. Nonetheless, Herrera’s factual allegations are
insufficient to state a plausible claim for relief.
a. Whether Magistrate Judge’s Bind-Over Order has Preclusive Effect
In Allen v. McCurry, 449 U.S. 90, 96 (1980), the Supreme Court held that a federal court
considering a § 1983 claim must give preclusive effect to a state court judgment to the same
extent a court in that state would. Because the preclusive effect of a prior state court judgment is
defined by that state’s law, see, e.g., Thournir v. Meyer, 803 F.2d 1093, 1094 (10th Cir. 1986);
Carpenter v. Reed, 757 F.2d 218, 219 (10th Cir. 1985); Slayton v. Willingham, 726 F.2d 631,
633 (10th Cir. 1984), the Court must examine New Mexico law to determine whether a

7

magistrate judge’s finding of probable cause in a bind-over order collaterally estops
consideration of that issue in this case.
In New Mexico, “the doctrine of defensive collateral estoppel may be applied when a
defendant seeks to preclude a plaintiff from relitigating an issue the plaintiff has previously
litigated and lost regardless of whether defendant was privy to the prior suit.” Silva v. State,
1987-NMSC-107, ¶ 11, 106 N.M. 472, 476, 745 P.2d 380, 384, limited on other grounds by
Archibeque v. Moya, 1993-NMSC-079, ¶ 14, 116 N.M. 616, 621, 866 P.2d 344, 349. Before
applying defensive collateral estoppel, the trial court must determine that the “party against
whom estoppel is asserted . . . had a full and fair opportunity to litigate.” Id. ¶ 12, 106 N.M. at
476, 745 P.2d at 384. A court may not apply collateral estoppel if “the record is insufficient to
determine what issues were actually and necessarily determined by prior litigation.” Id. The
party seeking to invoke the doctrine of collateral estoppel bears the burden of introducing
sufficient evidence for the court to determine whether it is applicable. Id. When the movant has
made a prima facie showing that collateral estoppel should apply, “the trial court must consider
the countervailing equities including, but not limited to, prior incentive for vigorous defense,
inconsistencies, procedural opportunities, and inconvenience of forum as discussed in Parklane
Hosiery Co.” Id.
Garcia and Mares rely on Angel v. Torrance County Sherriff’s Dept., No. 04-cv-195
BB/WPL, Doc. 53 (D.N.M. Aug. 23, 2005) to support their argument that “a Magistrate Court’s
bind-over order definitively establishes probable cause.” Doc. 58 at 2. The Court in Angel,
however, had sufficient information to determine that the party against whom estoppel was
asserted—Mr. Angel—had a full and fair opportunity to litigate the issue of probable cause.
Angel, No. 04-cv-195 BB/WPL, Doc. 53 at 6–7. There, the evidence was undisputed that the

8

magistrate court held a preliminary hearing at which several witnesses testified under oath, and
Mr. Angel cross-examined those witnesses and also introduced exhibits. Id. at 6. At the hearing,
Mr. Angel “utilized the ‘opportunity [to litigate the issue of probable cause]’ to probe the alleged
unreliability and bias of the informant, to elucidate the alleged inconsistencies of the State’s
witnesses, and to present his alibi defense.” Id. At the conclusion of the preliminary hearing,
the magistrate judge “made a formal written finding of probable cause that the charged crimes
had been committed and that [Mr. Angel] had committed them, and bound him over for trial.”
Id. at 6–7. Based on this factual record, Judge Black concluded that Mr. Angel was precluded
from relitigating the issue of probable cause.
In contrast to the evidence before Judge Black, the only information here is that a
preliminary hearing was held, that the state appeared through Tim Scheiderer, and that Mr.
Herrera appeared in person and was represented by his attorney, Ben Andrew Mondragon. Doc.
58-1. At the conclusion of the hearing, Magistrate Judge Felix Peña found probable cause that
the third degree felony offense of embezzlement over $2500, but not more than $20,000 was
committed, and that Herrera committed it, and bound him over for trial. Id. But the Court has
no information as to who testified, whether Herrera cross-examined the witnesses, what evidence
was presented, whether Herrera truly had a full and fair opportunity to litigate the probable cause
issue, and any countervailing equities. In short, Garcia and Mares have not met their burden of
introducing sufficient evidence for the Court to determine that defensive collateral estoppel
applies.
Defendants also rely on Judge Browning’s decision in Ysasi v. Brown, 3 F. Supp. 3d
1088, 1159–65 (D.N.M. 2014) for their assertion that a New Mexico magistrate judge’s bindover order precludes Herrera from relitigating the issue of probable cause in this Court. See

9

Doc. 58 at 2–3. In Ysasi, however, Judge Browning expressed serious reservations regarding
Judge Black’s decision in Angel, as well as the Tenth Circuit’s unpublished opinion affirming
that decision. See Ysasi, 3 F. Supp. 3d at 1160–65. Judge Browning did “not believe that New
Mexico courts would apply collateral estoppel to the Magistrate Judge’s determination of
probable cause at the preliminary hearing, but rather . . . would view the Magistrate Judge’s
finding of probable cause as evidence of the existence of probable cause . . . .” Id. at 1165
(emphasis added). Judge Browning nonetheless applied collateral estoppel against Ysasi and
granted summary judgment in favor of the defendants “because the Tenth Circuit’s
determination [in Angel] indicates that it would apply collateral estoppel in this situation.” Id.
But see Mata v. Anderson, 760 F. Supp. 2d 1068, 1105–09 (D.N.M. 2009) (conviction by jury in
New Mexico magistrate court did not conclusively establish probable cause to initiate criminal
proceedings given plaintiff’s subsequent acquittal on de novo trial in district court).
Neither Angel nor Ysasi, nor even the Tenth Circuit’s unpublished opinion affirming
Angel, are binding here. More importantly, however, in both Angel and in Ysasi, the district
court made its decision at the summary judgment stage, not on a Rule 12 motion. In both cases,
the court had significantly more information about what actually happened at the preliminary
hearing. See Angel, No. 04-cv-195 BB/WPL, Doc. 53 at 5–7 (describing the witnesses who
testified and other evidence presented at the preliminary hearing); Ysasi, 3 F. Supp. 3d at 1105
(describing the evidence presented at the preliminary hearing and citing to the preliminary
hearing transcript). And, as Judge Browning pointed out in Ysasi,
New Mexico’s issue preclusion doctrine is not obligatory, and even when a party
makes the prima facie showing, the “trial court must consider the countervailing
equities including, but not limited to, prior incentive for vigorous defense,
inconsistencies, procedural opportunities, and inconvenience of forum” before
deciding whether to apply the doctrine. Silva v. State, 1987-NMSC-107, ¶ 12,
106 N.M. 472, 745 P.2d 380.
10

3 F. Supp. 3d at 1165. Thus, at this point, there is no question that defendants, through the
bind-over order, have made a prima facie showing of the existence of probable cause to support
Herrera’s prosecution. See Westar Mortg. Corp. v. Jackson, 2003-NMSC-002, ¶ 18, 133 N.M.
114, 124, 61 P.3d 823, 832 (“[T]he fact that a plaintiff has been bound over for trial on the
criminal matter constitutes prima facie evidence of the existence of probable cause for the
detention.” (quoting Roberts v. Goodner’s Wholesale Foods, Inc., 50 P.3d 1149, 1152 (Okla.
Civ. App. 2002)). They also have made a prima facie showing that collateral estoppel applies.
Silva, 1987-NMSC-107, ¶ 12, 106 N.M. at 476, 745 P.2d at 384. Nonetheless, the Court has
insufficient information about what actually occurred at that hearing and any countervailing
equities to determine that Herrera is collaterally estopped from litigating the issue of probable
cause in this case.
b. Whether Herrera has Stated a Plausible Fourth Amendment Violation
Although the Court has insufficient information to apply the doctrine of defensive
collateral estoppel, the question remains as to whether Herrera has stated sufficient facts to state
a plausible claim for relief. As defendants point out in their motion, the complaint does not state
how either Mares or Garcia caused Herrera to be arrested or incarcerated. The complaint only
makes bare bones allegations that Mares and Garcia created a false report, that they “reported the
matter to Defendant Martinez,” that Mares and Garcia “withheld or destroyed exonerating
evidence” from Martinez, that Martinez conducted an inadequate investigation, and that Herrera
was subsequently charged. Doc. 1-1 ¶¶ 12–15, 20. The complaint further asserts, without any
factual basis, that “[t]here was no probable cause for Plaintiff’s prosecution.” Id. ¶ 21. The
complaint fails to state specifically what information Mares and Garcia provided to Martinez,
how they knew that the information was false, what evidence they withheld or destroyed, and

11

what they each did to cause Herrera’s arrest and continued prosecution. Without more
specificity, the Court cannot conclude that the complaint states a plausible claim for relief. And
the assertion that there was no probable cause to arrest and prosecute Herrera is a legal
conclusion that, without factual support, is insufficient to state a malicious prosecution claim.
Herrera alleges in his response to the motion that he was arrested pursuant to a warrant, see Doc.
57 at 1; Doc. 57-1 at 2. However, Herrera makes no allegations regarding the affidavit that
supported the arrest warrant, whether that information was false, how it was obtained, and who
provided it. In short, Herrera has failed to allege the necessary affirmative link between Mares
and Garcia and the alleged constitutional violation. Herrera’s Fourth Amendment malicious
prosecution claims will be dismissed without prejudice.
2. Due Process Claim under the Fourteenth Amendment
Herrera continues to press his federal Fourteenth Amendment due process claims against
defendant Garcia only because he has no state law remedy against Garcia. He agrees that the
“State of New Mexico has not waived any tort claims against Defendant Garcia.” Doc. 57 at 6.
Herrera thus acknowledges that he has no state law tort remedy against Garcia. Id. But because
of this, he argues that he should be able to maintain a Fourteenth Amendment due process claim
for malicious prosecution against Garcia only because “New Mexico tort law does not provide
an adequate procedural due process remedy for any injuries not cognizable as a Fourth
Amendment seizure.” Id. at 4.
The problem with Herrera’s argument, however, is that neither the Supreme Court nor
the Tenth Circuit has recognized a malicious prosecution claim under the Fourteenth
Amendment. See Albright v. Oliver, 510 U.S. 266, 275 (1994) (holding that arrest without
probable cause did not constitute violation of arrestee’s substantive due process rights; claim

12

must be analyzed under the Fourth Amendment); Becker v. Kroll, 494 F.3d 904, 919–22 (10th
Cir. 2007) (“no § 1983 claim will arise from filing criminal charges without probable cause
under the substantive due process protections of the Fourteenth Amendment” and rejecting
theories of liability under procedural due process). The fact that a procedural or substantive due
process violation under the Fourteenth Amendment is not clearly established is fatal to Herrera’s
claim. Mares (and Garcia, for that matter) are entitled to qualified immunity on any claim for
any violation of due process under the Fourteenth Amendment. All claims alleging a violation
of the Fourteenth Amendment therefore will be dismissed with prejudice.
3. Equal Protection Claim
Herrera states that he “is not making an equal protection claim,” and “inasmuch as he has
made one, he withdraws it.” Doc. 57 at 4. The Court therefore will dismiss any Equal
Protection claims with prejudice.
4. First Amendment Retaliation Claim
To state a First Amendment retaliation claim, Herrera must allege sufficient facts to show
that (1) he was engaged in constitutionally protected activity; (2) the defendants’ actions caused
him to suffer an injury that would chill a person of ordinary firmness from continuing to engage
in that activity, and (3) the defendants’ adverse actions were substantially motivated as a
response to Herrera’s exercise of constitutionally protected conduct. Shero v. City of Grove,
Okla., 510 F.3d 1196, 1203 (10th Cir. 2007) (citation omitted). And because the alleged
retaliation is the institution of a criminal charge, 4 Herrera also must allege facts that show that

4

Herrera agrees with defendants that he cannot make out a claim that Garcia and Mares violated
his First Amendment rights by terminating his employment or forcing him to resign in retaliation
for protected speech. Doc. 57 at 5. Thus, the Court will dismiss with prejudice all First
Amendment claims against defendants Garcia and Mares premised on the theory that Garcia and
Mares retaliated against Herrera for engaging in protected speech by terminating his employment
13

his prosecution was undertaken without probable cause. Hartman v. Moore, 547 U.S. 250, 262–
66 (2006).
As defendants point out, the only arguable First Amendment activity the complaint
alleges is that Herrera investigated criminal activity by Garcia and “reported the Defendant
Garcia matter to the Federal Bureau of Investigation.” Doc 1-1 ¶¶ 8, 9. Herrera alleges that
Garcia knew that he was investigating him, but there is no indication that either Garcia or Mares
knew of the constitutionally protected activity, that is, reporting Garcia to the FBI. See id. ¶ 10.
Moreover, Herrera alleges only that he “was forced out of his position by Town of Springer
officials” in retaliation, id. ¶ 11, not that Garcia and Mares instigated the criminal prosecution
because of his reporting Garcia to the FBI. And, as already explained above, Herrera’s
conclusory allegation that “[t]here was no probable cause of [his] prosecution,” id. ¶ 21, is
inadequate without factual support. Thus, even if Herrera’s speech was a matter of public
concern, which is possible if he were reporting criminal activity by a public official to outside
law enforcement authorities, see Lane v. Franks, 134 S. Ct. 2369, 2378–81 (2014) (public
employee’s testimony regarding public official’s corruption in a public program and misuse of
state funds was a matter of public concern), Herrera has failed to allege sufficient facts to
support a claim that Garcia and Mares induced the district attorney to prosecute him because
Herrera reported Garcia’s alleged criminal activity to the FBI, and that no probable cause
supported his prosecution. The Court will dismiss Herrera’s First Amendment retaliatory
prosecution claim without prejudice.
5. State Law Claims
Count III of the complaint alleges a laundry list of state tort claims against Mares and

or forcing him to resign.
14

Garcia. Specifically, it alleges that Mares and Garcia committed the New Mexico state torts of
“abuse of process, malicious abuse of process, libel, slander, defamation of character, prima
facie tort, and violation of immunities.” Doc. 1-1 ¶ 36. Defendants argue that the immunity
provisions of the New Mexico Tort Claims Act (NMTCA) bar Herrera’s claims against Garcia.
Doc. 50 at 8–9. They also argue that Herrera’s claims are barred by NMTCA’s two-year statute
of limitations because the last act Garcia and Mares alleged in the complaint was their “false
report” to Martinez on July 29, 2014, and Herrera did not file this law suit until November 9,
2016, more than two years later. Id. at 9.
In his response, Herrera agrees that “[t]he State of New Mexico has not waived any tort
claims against Defendant Garcia,” and that he has no state tort remedies against Garcia. Doc. 57
at 6. The Court therefore will dismiss with prejudice all Herrera’s state tort claims against
Garcia.
With respect to the statute of limitations argument, Herrera only addresses his abuse of
process and malicious abuse of process claims, as he says that his claim involved an “ongoing
tort that ended when he was found not guilty by a jury,” and that he filed his complaint within
two years of his acquittal. Doc. 57 at 6. But because an abuse of process claim in New Mexico
does not require that the plaintiff prove a favorable termination, the claim arises as soon as the
plaintiff becomes aware of the improper use of process. Mata v. Anderson, 685 F. Supp. 2d
1223, 1254–55 (D.N.M. 2010). Nonetheless, because it appears that the criminal proceedings
against Herrera began in May of 2015, his abuse of process and malicious abuse of process
claims may not be barred by the statute of limitations.
New Mexico has combined the torts of abuse of process and malicious prosecution into a
single tort: malicious abuse of process. To state a claim for malicious abuse of process, the

15

plaintiff must state facts sufficient to show:
(1) the use of process in a judicial proceeding that would be improper in the
regular prosecution or defense of a claim or charge; (2) a primary motive in the
use of process to accomplish an illegitimate end; and (3) damages. An improper
use of process may be shown by (1) filing a complaint without probable cause, or
(2) “an irregularity or impropriety suggesting extortion, delay, or harassment[,]”
or other conduct formerly actionable under the tort of abuse of process.
Fleetwood Retail Corp. of N.M., 2007-NMSC-047, ¶ 12, 142 N.M. 150, 164 P.3d
31 (citation omitted). A use of process is deemed to be irregular or improper if it
(1) involves a procedural irregularity or a misuse of procedural devices such as
discovery, subpoenas, and attachments, or (2) indicates the wrongful use of
proceedings, such as an extortion attempt. DeVaney, 1998-NMSC-001, ¶ 28, 124
N.M. 512, 953 P.2d 277 (listing examples of abuse of process). Finally, we
emphasize that the tort of malicious abuse of process should be construed
narrowly in order to protect the right of access to the courts. Id. ¶ 19.
Durham v. Guest, 2009-NMSC-007, ¶ 29, 145 N.M. 694, 701, 204 P.3d 19, 26. The factual
allegations in Herrera’s complaint fail to state a plausible claim for relief for malicious abuse of
process under New Mexico law. He does not state what Mares’s motive was, nor does he
describe with any specificity what information Mares gave to Martinez, what “exonerating
evidence” he withheld or destroyed, what information supported the filing of the complaint, and
how Mares was responsible for the filing of the complaint. Thus, the Court will dismiss
Herrera’s state law abuse of process and malicious abuse of process claims against Mares
without prejudice. Although the current complaint fails to state a plausible claim, Herrera may
be able to state a tort claim for malicious abuse of process under New Mexico law that is not
time-barred.
Herrera’s remaining state law claims—libel, slander, defamation of character, and prima
facie tort, and “violation of immunities secured by the constitution and laws of the . . . State of
New Mexico” (whatever that is)—are inadequately pled, and also may be barred by the statute of
limitations. Under New Mexico law, the elements of defamation are (1) a publication by the
defendant, (2) of an asserted fact, (3) which is defamatory, (4) communicated to a third person,
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(5) of and concerning the plaintiff, (6) and proximately causing injury to the plaintiff. See
Newberry v. Allied Stores, Inc., 1989-NMSC-024, ¶ 16, 108 N.M. 424, 429, 773 P.2d 1231,
1236; N.M. STAT. ANN. CIV. U.J.I. 13-1007. Slander involves an oral communication, and libel
involves a written communication. Newberry, 1989-NMSC-024, ¶ 16, 108 N.M. 424, 429, 773
P.2d 1231, 1236. New Mexico, however, has abolished the distinction between libel and
slander. Smith v. Durden, 2012-NMSC-010, ¶ 18, 276 P.3d 943, 948. At the very least,
however, the defamation claim requires a communication. Although Herrera does not allege the
date that Mares “reported the matter” to Martinez, the false report was created in late July 2014,
more than two years before Herrera filed his lawsuit. Thus, Herrera’s defamation claim may be
barred by the statute of limitations. The Court will dismiss this claim without prejudice. Should
Herrera seek to amend his complaint, the factual allegations must support each element of the
cause of action in addition to alleging the date Mares “published” the purported assertion of fact
so that the Court may determine whether it is time-barred.
The elements of prima facie tort are “(1) an intentional and lawful act; (2) an intent to
injure the plaintiff; (3) injury to the plaintiff as a result of the intentional act; (4) and the absence
of sufficient justification for the injurious act.” Lexington Ins. Co. v. Rummel, 1997-NMSC-043,
¶ 10, 123 N.M. 774, 777, 945 P.2d 992, 995. With regard to his claim of “prima facie tort,”
Herrera does not allege what intentional and lawful act Mares committed with an intent to injure
Herrera. Knowingly making a false report to a law enforcement officer in New Mexico is not
lawful; it is a misdemeanor. N.M. STAT. ANN. § 30-39-1. Destroying or hiding exonerating
evidence also is a crime. N.M. STAT. ANN. § 30-22-5. The complaint alleges only that Mares
created a false report, reported this information to another law enforcement officer, and
destroyed or withheld exonerating evidence, none of which are lawful. Doc. 1-1 ¶¶ 12–14.

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Further, the complaint suggests that Mares created the false report and provided it to Martinez in
July of 2014, which likely would make this claim time-barred. The Court will dismiss this claim
without prejudice, but should Herrera seek to amend his complaint, he must allege facts that
support each element of a prima facie tort in addition to providing dates for the purported lawful
acts that Mares committed with the intent to injure Herrera so that the Court may determine
whether the claim is time-barred.
Finally, the complaint provides no clue as to what Mares did to violate “immunities
secured by the constitution and laws of the . . . State of New Mexico,” nor does he identify what
provisions of the New Mexico constitution and what state laws he is talking about. The Court
assumes that this claim is an inaccurate quote from the New Mexico Tort Claims Act, which
waives law enforcement officers’ immunity for the “deprivation of any rights, privileges or
immunities secured by the constitution and laws of the United States or New Mexico when
caused by law enforcement officers while acting within the scope of their duties.” N.M. STAT.
ANN. § 41-4-12. But in stating a claim under this provision, Herrera must identify what rights,
privileges, and immunities Mares deprived him of, as well as the constitutional provision or law
that gave him that right, privilege or immunity in the first place. Thus, the Court will dismiss
this claim without prejudice as well, but if Herrera chooses to move to amend this claim, it must
be adequately pled.
C. Dismissal With or Without Prejudice
“A dismissal with prejudice is appropriate where a complaint fails to state a claim under
Rule 12(b)(6) and granting leave to amend would be futile.” Brereton v. Bountiful City Corp.,
434 F.3d 1213, 1219 (10th Cir. 2006). At this juncture, Rule 15(a)(2) permits Herrera to amend
his complaint only with the court’s leave, but the rule instructs that “[t]he court should freely

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give leave when justice so requires.” FED. R. CIV. P. 15(a)(2). Because it appears that Herrera
may be able to amend his complaint to allege facts sufficient to support some of his claims, those
claims will be dismissed without prejudice. Any claim for which an amendment would be futile
will be dismissed with prejudice.
IV.

Conclusion
For the foregoing reasons, the Court GRANTS defendants Fernando Garcia and Paul

Mares’ motion to dismiss (Doc. 50). Counts I, II, and III are dismissed. Herrera may move to
amend his malicious prosecution claim under 42 U.S.C. § 1983. He also may move to amend his
First Amendment retaliation claim, also brought under 42 U.S.C. § 1983, to the extent that he
alleges that Garcia and Mares retaliated against him by instigating the criminal prosecution. His
First Amendment retaliation claim premised on the theory that he was forced to quit his job
because of his protected constitutional activity is dismissed with prejudice. His due process
claims under the Fourteenth Amendment and any Equal Protection claim are dismissed with
prejudice. With regard to the state law claims in Count III, all Herrera’s claims against
defendant Garcia are dismissed with prejudice. Herrera may move to amend his state tort claims
of malicious abuse of process, defamation, and prima facie tort against defendant Mares, keeping
in mind that any proposed amended complaint must separate these claim, state sufficient facts to
satisfy the elements of each claim, and state sufficient facts to show that each claim is not timebarred.
The Court will give Herrera 21 days from the date of this order to file a motion to amend.
The motion to amend must attach the proposed amended complaint. Should the defendants
oppose the motion, they must address whether the proposed amendments are futile in addition to
any other arguments they may raise.

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Based on the Court’s ruling, and given that discovery in this case has been stayed since
August 10, 2017 (Doc. 52), the pretrial conferences, currently set for February 21, 2018 and
April 16, 2018; the trial, currently set for April 23, 2018; and all deadlines set in the Order
Setting Civil Jury Trial (Doc. 43) are hereby VACATED. The Court will set a new trial date at a
later date, if appropriate.

________________________________
Laura Fashing
United States Magistrate Judge

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