Aris et al v. Ward et al
Filing
59
MEMORANDUM OPINION AND ORDER by District Judge J. Thomas Marten granting 52 MOTION for Summary Judgment and Qualified Immunity. IT IS ACCORDINGLY ORDERED this 29th day of June, 2020, that the defendant's Motion for Summary Judgment (Dkt. 52 ) is hereby granted. (gr)
Case 2:17-cv-01247-JTM-SMV Document 59 Filed 06/29/20 Page 1 of 10
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
SUNNY ARIS, and
ANIMAL VILLAGE NEW MEXICO,
Plaintiff,
vs.
No. 17-01247-JTM-SMV
LT. MARY LOU WARD,
et al.,
Defendants.
MEMORANDUM AND ORDER
Plaintiffs Sunny Aris and her rescue agency Animal Village New Mexico allege
the Dona Ana County Sheriff’s office and Animal Control Department published false
information about her animal rescue efforts, violating her First Amendment rights. By
prior Order, the court dismissed plaintiffs’ 42 U.S.C. § 1983 claims against all but one of
the defendants. The court denied the motion as to Dona Ana County Public Relations
Officer Kelly Jameson. “Although it is a close question,” and the allegations in the
complaint as to Jameson were “not extensive or detailed,” the court concluded that the
complaint’s allegation that Jameson falsely published information about the animal
rescue event was sufficient to withstand a motion to dismiss. (Dkt. 29). Ultimately, the
viability of the claims against Jameson would turn on “[t]he nature and content of what
the Public Information Officer said” in her public comments. Id.
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After discovery on the issue, Jameson has now moved for summary judgment on
the First Amendment retaliation claim made by plaintiffs. Summary judgment is proper
where the pleadings, depositions, answers to interrogatories, and admissions on file,
together with affidavits, if any, show there is no genuine issue as to any material fact, and
that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). In
considering a motion for summary judgment, the court must examine all evidence in a
light most favorable to the opposing party. McKenzie v. Mercy Hospital, 854 F.2d 365, 367
(10th Cir. 1988).
The party moving for summary judgment must demonstrate its
entitlement to summary judgment beyond a reasonable doubt. Ellis v. El Paso Natural Gas
Co., 754 F.2d 884, 885 (10th Cir. 1985). The moving party need not disprove plaintiff's
claim; it need only establish that the factual allegations have no legal significance. Dayton
Hudson Corp. v. Macerich Real Estate Co., 812 F.2d 1319, 1323 (10th Cir. 1987).
In resisting a motion for summary judgment, the opposing party may not rely
upon mere allegations or denials contained in its pleadings or briefs.
Rather, the
nonmoving party must come forward with specific facts showing the presence of a
genuine issue of material fact for trial and significant probative evidence supporting the
allegation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). Once the moving party
has carried its burden under Rule 56(c), the party opposing summary judgment must do
more than simply show there is some metaphysical doubt as to the material facts. "In the
language of the Rule, the nonmoving party must come forward with 'specific facts
showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co., Ltd. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed.R.Civ.P. 56(e)) (emphasis in Matsushita).
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One of the principal purposes of the summary judgment rule is to isolate and dispose of
factually unsupported claims or defenses, and the rule should be interpreted in a way
that allows it to accomplish this purpose. Celotex Corp. v. Catrett, 477 U.S. 317 (1986).
The evidence submitted to the court establishes that on October 16, 2015, Sunny
Aris contacted Mesilla Valley Regional Dispatch Authority regarding possible animal
cruelty at 10830 Starfly Road, reporting numerous dogs in a residence, some being
vicious, and injuries to the dogs and livestock. Aris asked Lieutenant Mary Lou Ward for
help in removing the dogs.
Because Animal Control did not have the manpower, Ward asked Sergeant Jeremy
Hash if the Sheriff’s office could send an investigator to confirm the report of animal
cruelty. Hash told Jameson of the situation in anticipation of the local news media
contacting her, and went to the scene where he saw six dogs. He was unable to see
anything that would allow him to enter the property without a warrant.
Ward spoke with Aris a second time on October 16, 2015. Aris told Ward that she
had removed 28 animals from the property. When Hash contacted Ward to report that
he found only six dogs, Ward told him that Aris had removed 28 animals.
Hash then contacted Jameson to provide an update and explained that by
removing the animals from the property, Aris had taken the evidence needed to conduct
an investigation.
The Sheriff’s office did not investigate Aris for her actions in removing the dogs,
and Aris was not prosecuted for any crimes related to the rescue.
In her position as the Public Information Officer for the Sheriff’s office, Jameson
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depends on officers to provide the information needed in discussing issues with the news
media.
According to Jameson's interview log, she spoke with KVIA-TV, an El Paso, Texas
ABC affiliate, on October 19, 2015 and October 22, 2015 regarding the “Starfly animal
abuse allegations.” Tom Scott, Channel 7 (KVIA-ABC) contacted Jameson after receiving
a call from Aris alleging the Sheriff’s office failed to investigate, and if not for her, the
animals would have died. Defendant Jameson submitted a copy of the news report aired
by KVIA-TV on October 20, 2015. Most of the report shows Aris and reports her
comments uncritically. Jameson appears briefly on camera, and offers only the mildest
criticism of Aris, saying, “"The reporting party should have stayed on site to relay that
information to the deputy so we could begin a proper investigation.”
During her interviews, Jameson told Scott it was not an animal cruelty case, and
never indicated that Aris was being investigated by the sheriffs office or that felony
charges were being considered. The reported concluded with the statement: “In the
meantime, Aris won’t be charged for taking those animals because, once again, she tells
us the property owner did give her permission to take them.”
In response to Jameson’s motion, the plaintiffs offer the suggestion that another
televised interview occurred, based on the affidavits of Bill and Jackie Johnston. Both
affidavits merely repeat verbatim the conclusory statement from the complaint that
Jameson said that Aris “removed evidence from a crime scene, and that she could be
facing felony charges.” Notably, the plaintiffs have not offered a copy of the actual news
report.
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A claim of First Amendment retaliation requires proof that the (1) plaintiff "was
engaged in constitutionally protected activity," (2) the defendant's acts caused plaintiff
"to suffer an injury that would chill a person of ordinary firmness from continuing to
engage in that activity,” and (3) the "defendant's adverse action was substantially
motivated as a response to the plaintiff's exercise of constitutionally protected conduct."
Worrell v. Henry, 219 F.3d 1197, 1212 (10th Cir. 2000). Here, Jameson acknowledges that
the plaintiffs’ criticisms of the Sheriff’s office were constitutionally protected, but that
Jameson’s comments would not have chilled an ordinary person from continuing to
speak, and that the plaintiffs have provided no evidence or a retaliatory motive. They
argue that qualified immunity shields Jameson from liability, because no authority exists
which would signal any clear violation of a constitutional right. The court agrees.
Even assuming the truth of the plaintiffs’ conclusory allegations, the court finds
that they have failed to show that a reasonable person would likely be deterred from
publicly speaking about the events of the animal rescue. The plaintiffs recite the law
relating to summary judgment (Dkt. 56, at 2-6) and qualified immunity (id. at 6-7) without
addressing at all the elements of their First Amendment claim, or explaining how the
defendants are wrong in their arguments that the elements of such a claim are not present.
Plaintiffs cite no case authority which would suggest that the alleged comments of
Jameson would violate any constitutional rights.
Under Section 1983, state officials sued in their personal capacity for damages may
raise the affirmative defense of qualified immunity. A.M. v. Holmes, 830 F.3d 1123, 1134
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(10th Cir. 2016). To defeat qualified immunity, a plaintiff faces a “heavy two-part burden”
of showing both that (1) the defendants violated a constitutional right, and (2) the
“infringed right at issue was clearly established at the time of the allegedly unlawful
activity such that a reasonable law enforcement officer would have known that his or her
challenged conduct was illegal.” Martinez v. Carr, 479 F.3d 1292, 1294-95 (10th Cir. 2007).
The defense in effect protects “all but the plainly incompetent or those who knowingly
violate the law.” A.M., 830 F.3d at 1134-35 (internal citations and quotations omitted).
At qualified immunity's second step, courts should proceed “from the perspective
of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight,”
taking account of “the fact that police officers are often forced to make split-second
judgments—in circumstances that are tense, uncertain, and rapidly evolving.” Wilson v.
City of Lafayette, 510 F. App'x 775, 779 (10th Cir. 2013) (quoting Graham v. Connor, 490 U.S.
386, 396–97 (1989)). See also Saucier v. Katz, 533 U.S. 194, 205 (2001).
To show a right is clearly established, the plaintiff must point “to cases from the
Supreme Court, the Tenth Circuit, or the weight of authority from other circuits.” Gann
v. Cline, 519 F.3d 1090, 1092 (10th Cir. 2008). The law is clearly established if “every
reasonable official would have understood that what he” did violated the law. Ashcroft v.
al-Kidd,
U.S.
, 131 S.Ct. 2074, 2080, 179 L.Ed.2d 1149 (2011).
In determining whether a right is clearly established, the Supreme Court has
repeatedly cautioned courts “not to define clearly established law at a high level of
generality.” Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018) (internal quotation marks and
citation omitted). “Although [the Supreme] Court’s caselaw does not require a case
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directly on point for a right to be clearly established, existing precedent must have placed
the statutory or constitutional question beyond debate.” Id. (internal quotation marks and
citation omitted). “The more obviously egregious the conduct in light of prevailing
constitutional principles, the less specificity is required from prior case law to clearly
establish the violation.” Casey v. City of Fed. Heights, 509 F.3d 1278, 1284 (10th Cir. 2007).
A decision to afford an officer qualified immunity is almost always a question of
law, to be decided by the court prior to trial. Keylon v. City of Albuquerque, 535 F.3d 1210,
1217-18 (10th Cir. 2008). The protection afforded by qualified immunity applies to
government officials whether their mistake is one of law or fact – or a mixed question of
law and fact. Pearson v. Callahan, 555 U.S. 223, 231 (2009). A court has discretion to address
the requirements of a qualified immunity defense in any order. Id. at 236. The plaintiff’s
failure to establish either of the two requirements is fatal to his claim. Id. In determining
whether the plaintiff has satisfied the two-pronged qualified immunity showing, the
court ordinarily accepts the plaintiff’s version of the facts. See Riggins v. Goodman, 572
F.3d 1101, 1107 (10th Cir. 2009).
However, because the summary judgment stage is “beyond the pleading phase of
the litigation, a plaintiff’s version of the facts must find support in the record.” Thomson
v. Salt Lake Cty., 584 F.3d 1304, 1312 (10th Cir. 2009). “As with any motion for summary
judgment, ‘[w]hen opposing parties tell two different stories, one of which is blatantly
contradicted by the record, so that no reasonable jury could believe it, a court should not
adopt that version of the facts.’” York v. City of Las Cruces, 523 F.3d 1205, 1210 (10th Cir.
2008) (quoting Scott v. Harris, 550 U.S. 372, 380 (2007)). But if the non-movant proves there
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is a factual dispute involving an issue “on which qualified immunity turns,” summary
judgment on the basis of qualified immunity is “inappropriate.” Harapat v. Vigil, 676
F.Supp.2d 1250, 1266 (D.N.M. 2009) (citing Poe v. Haydon, 853 F.2d 418, 426 (6th Cir. 1988)).
The facts suggest that the plaintiffs initiated publicity regarding the removal of the
dogs from the property. Jameson’s comments reflect mild but accurate criticism of the
plaintiffs, that Aris’s removal of the dogs before law enforcement could arrive made any
criminal investigation difficult. Even if the court assumes the truth of the Johnston
affidavits that Aris might face possible criminal charges , this was simply a comment about
a hypothetical outcome depending on further investigation. The Johnston affidavits do
not allege that the plaintiffs were actually guilty of any offense, or indicate that the
prosecution would occur. The plaintiffs concede (Uncontr. Fact ¶ 10) that the sheriff’s
office never actually investigated Aris, and she was never prosecuted.
Further, the conclusory allegations in the Johnston affidavits have to be weighed
against the specific and uncontroverted evidence submitted by the defendants. The
reporter in the KVIA-TV story followed Jameson’s comments with the announcement
that “Aris won’t be charged.”
The plaintiffs have cited no authority indicating a reasonable person would be
deterred from further speaking by comments of the sort attributed to Jameson. Cf. Phelan
v. Laramie County Comm. Col. Bd. of Trustees, 235 F.3d 1243, 1245 (10th Cir. 2000) (no First
Amendment violation based on college board vote of censure). Nor have the plaintiffs
supplied any reason to conclude that Jameson’s comments were retaliatory in nature.
Neither the Johnston affidavits nor the evidence submitted by the defendants suggest any
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link between First Amendment activity by the plaintiffs and the mildly critical comments
attributed to Jameson. There is nothing here which would show that such comments were
“substantially motivated by a personal desire to retaliate” against Aris and her animal
shelter. See A.M. ex rel. Holmes, 830 F.3d 1123, 1163 (10th Cir. 2016). See also Stonecipher v.
Valles, 759 F.3d 1134 (10th Cir. 2014). Cf. Lincoln v. Maketa, 880 F.3d 533, 540-41 (10th Cir.
2018) (Sheriff who allegedly instituted criminal investigation of subordinate officer as
retaliation was entitled to qualified immunity, where there was no evidence the
investigation was “made public or that it resulted in humiliation, damage to reputation,
or harm to his future employment prospects”).
Retaliatory actions are actionable if they would chill a reasonable person of
ordinary firmness from futher speech. This “is a vigorous standard,” justified because
“the nature of political debate is rough and tumble,” and “Plaintiffs in public debates are
expected to cure most misperceptions about themselves through their own speech and
debate.” Eaton v. Meneley, 379 F.3d 949, 956 (10th Cir. 2004). Thus, the law is not clearly
established that communications of the type attributed to Jameson constitute unlawful,
chilling retaliation. To the contrary, “courts in this circuit have found statements
concerning the illegality or impropriety of a plaintiff's conduct insufficient, standing
alone, to support a First Amendment retaliation claim.” Weise v. Colorado Springs, 421
F.Supp.3d 1019, 1042-43 (D. Col. 2019) (citing cases). See also Eaton, 379 F.3d at 956
(quoting Phelan, 235 F.3d at 1248 (10th Cir. 2000) (“injury to one's reputation is not enough
to defeat constitutional interests in furthering uninhibited, robust debate on public
issues”).
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Aris was never actually prosecuted or even investigated over the incident. She has
not attempted to show or quantify any actual damage to her reputation. There is no
evidence that the Johnstons, or anyone else, believed Aris was guilty of any criminal
conduct based upon the alleged television report. And, as noted above, it is
uncontroverted that Jameson explicitly told KVIA-TV that Aris was not subject to
prosecution. Plaintiffs make no effort to distinguish the cases such as Phelan and
Stonecipher cited by defendants, and cite to no authority clearly establishing a First
Amendment violation under similar circumstances. There is no evidence Jameson was
motivated by a personal desire to retaliate against the plaintiffs. The court finds that the
defendant Jameson is entitled to qualified immunity.
IT IS ACCORDINGLY ORDERED this 29th day of June, 2020, that the defendant’s
Motion for Summary Judgment (Dkt. 52) is hereby granted.
J. Thomas Marten
J. Thomas Marten, Judge
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