Harris v. The City of Texico

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

NICOLE HARRIS and PAULA ASHLEY,

Plaintiffs,

v. Case No. 2:22-cv-454 KRS/GBW

THE CITY OF TEXICO, a New Mexico incorporated municipality;

DOUGLAS BOWMAN, Chief of Police for the City of Texico;

CHRISTINA VANNATTA, as Personal Representative of the

Estate of CHARLES BRYAN VANNATTA, deceased,

formerly a police officer with the City of Texico;

THE BOARD OF COUNTY COMMISSIONERS OF

THE COUNTY OF CURRY;

SONNY WILCOX, a deputy sheriff employed

by the County of Curry; and

BRIAN STOVER, Chief Deputy District Attorney

for the Ninth Judicial District Attorney,

Defendants.

MEMORANDUM OPINION AND ORDER

THIS MATTER is before the Court on Defendant Brian Stover’s Motion to Dismiss,

(Doc. 17), filed July 18, 2022. Plaintiffs filed a response on September 12, 2022, and Defendant

Stover filed a reply on October 11, 2022. (Docs. 28 and 31). Pursuant to 28 U.S.C. § 636(c), the

parties consented to the undersigned to conduct dispositive proceedings in this matter and to

enter a final judgment. (Docs. 7, 10-14). Having considered the parties’ briefing, record of the

case, and relevant law, the Court grants Defendant Stover’s Motion to Dismiss as set forth

below.

I. Background

For the purpose of ruling on Defendant Stover’s Motion to Dismiss, the Court assumes

that the following facts, taken from Plaintiffs’ Complaint, are true. See Mayfield v. Bethards,

826 F.3d 1252, 1255 (10th Cir. 2016) (“In reviewing a motion to dismiss, [the Court] accept[s]

the facts alleged in the complaint as true and view[s] them in the light most favorable to the

plaintiff.”).1 Plaintiffs allege that on January 23, 2020, Plaintiff Harris called 911 and, during

that call, her cell phone battery died and the call was disconnected. (Doc. 1-5) at 6 (Plaintiffs’

Second Amended Complaint). Plaintiff Harris was calling to report that a witness in a civil

matter she was involved in was in her parking lot and Plaintiff Harris was concerned about it.

When the call dropped, Plaintiff Harris decided not to pursue the matter further. Id.

“About one (1) or two (2) hours” later, Defendant Vannatta went to Plaintiff Harris’s

apartment and looked into the windows. Plaintiff Ashley, who is Plaintiff Harris’s mother, saw

Defendant Vannatta looking through the windows of Plaintiff Harris’s apartment and “banging

on the windows with his flashlight so hard that Ashley could see the windows vibrating and

thought they were going to break.” Id. at 7. Plaintiff Ashley called the Curry County Sheriff’s

Department and asked for assistance. Defendants Bowman and Wilcox arrived to assist

Defendant Vannatta. Defendants Bowman and Vannatta asked Plaintiff Ashley for the key to

Plaintiff Harris’s apartment and, when Plaintiff Ashley told them she did not have a key,

Defendant Bowman “then turned to Vannatta and said to ‘kick the fucking door.’” Id. Plaintiffs

allege that Defendant Vannatta then contacted Chief Deputy District Attorney Stover, “who

advised Vannatta to breach Harris’ door based on the justification of a ‘welfare check.’” Id.

Defendant Vannatta breached the door to Plaintiff Harris’s apartment and Defendants

Vannatta and Bowman entered the apartment with guns drawn. Id. at 8. Plaintiff Harris “was

1 The Court only includes facts from the Complaint here that are relevant to Defendant

Stover’s Motion to Dismiss. A more comprehensive recitation of the facts alleged by Plaintiffs

is set forth in the Court’s Memorandum Opinion and Order on the City Defendants’ Motion to

Dismiss, (Doc. 16).

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asleep in the apartment bedroom,” and was charged with “improper use of 911.” Id. Plaintiff

Harris alleges that the charge for improper use of 911 resulted in the revocation of her conditions

of release in another case and she was held without bond in the Curry County Detention Center

for eight days. Id. at 9. Plaintiff Harris now is afraid of the police, and has continuing

nightmares and PTSD as a result of this incident. Id. at 9-10.

Plaintiff Harris claims that her Fourth Amendment and state constitutional rights to be

free from unreasonable searches and seizures were violated “from Stover directing and Bowman

and Vannatta breaking into Harris home without a warrant, without consent, and without exigent

circumstances or other emergency.” Id. at 10, 12 (Counts 1 and 3). Plaintiffs bring these claims

against Defendant Stover in his individual capacity, and request punitive damages. Id. at 2, 10-

12. Defendant Stover argues in his Motion to Dismiss that Plaintiffs have failed to state a claim

against him upon which relief can be granted. (Doc. 17) at 1. He contends he is entitled to

qualified immunity for the federal claim because Plaintiffs have not plausibly alleged that he

committed any constitutional violation and that any alleged violation was not clearly established.

Id. at 5-6. He also argues that Plaintiffs’ state law claims are not within any waiver of immunity

under the New Mexico Tort Claims Act, and Plaintiffs fail to allege facts meriting punitive

damages. Id. at 6-8.

Plaintiffs respond that Defendant Stover is not entitled to qualified immunity on the

federal claim because entry into Plaintiff Harris’s home was not justified by exigent

circumstances or any other exception to the prohibition on warrantless entry, and it was clearly

established at the time of the incident that the entry was unlawful. (Doc. 28) at 2-16. Plaintiffs

further argue that Defendant Stover is not entitled to absolute or prosecutorial immunity because,

“when he ordered Bowman and Vannatta to breach Harris’ door and enter on a ‘welfare check’

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[he] was acting as an investigator, as a police supervisor, and not as an advocate in a quasi-

judicial setting.” Id. at 23. Plaintiffs concede their state law claim and claim for punitive

damages against Defendant Stover. Id. at 24. Because Plaintiffs concede these claims, the Court

dismisses Count 3 and Plaintiffs’ punitive damages claim against Defendant Stover with

prejudice.

In his reply brief, Defendant Stover maintains that Plaintiffs fail to state a plausible claim

for relief against him. (Doc. 31) at 1-2. He explains he has not asserted that the entry into

Plaintiff Harris’s home was constitutional, rather he “simply argued that the factual allegations

Plaintiffs stated against him were not legally sufficient.” Id. at 2. He further states that

Plaintiffs’ prosecutorial immunity argument is irrelevant as he has not relied on absolute or

prosecutorial immunity. Id. at 3.

II. Legal Standard

A. Rule 12(b)(6)

Federal Rule of Civil Procedure 12(b)(6) allows a court to dismiss a complaint for failure

to state a claim upon which the court can grant relief. “[T]o withstand a Rule 12(b)(6) motion to

dismiss, a complaint must contain enough allegations of fact, taken as true, to state a claim to

relief that is plausible on its face.” Khalik v. United Air Lines, 671 F.3d 1188, 1190 (10th Cir.

2012) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). While a complaint

does not require detailed factual allegations to survive a Rule 12(b)(6) motion to dismiss, it

“requires more than labels and conclusions, and a formulaic recitation of the elements of a cause

of action will not do.” Twombly, 550 U.S. at 555. Additionally, the court must view a plaintiff’s

allegations in the light most favorable to the plaintiff. Schrock v. Wyeth, Inc., 727 F.3d 1273,

1280 (10th Cir. 2013)

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“A claim is facially plausible when the allegations give rise to a reasonable inference that

the defendant is liable.” Mayfield, 826 F.3d at 1255. The plausibility standard “does not impose

a probability requirement.” Twombly, 550 U.S. at 556. Rather, “a well-pleaded complaint may

proceed even if it appears ‘that a recovery is very remote and unlikely.’” Id. at 556 (quoting

Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). The complaint must only be “enough to raise a

right to relief above the speculative level . . . on the assumption that all the allegations in the

complaint are true (even if doubtful in fact).” Id. at 555. However, “[w]here a complaint pleads

facts that are ‘merely consistent with’ a defendant’s liability, it ‘stops short of the line between

possibility and plausibility of entitlement to relief.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(quoting Twombly, 550 U.S. at 557). In other words, the well-pleaded facts must “permit the

court to infer more than the mere possibility of misconduct,” otherwise, the plaintiff has not

shown entitlement to relief. Id. at 679.

B. Qualified Immunity

Qualified immunity protects public officials from liability “insofar as their conduct does

not violate clearly established statutory or constitutional rights of which a reasonable person

would have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982)). Qualified immunity is available to state officials sued in

their individual capacities. Kentucky v. Graham, 473 U.S. 159, 166-67 (1985). When an

individual defendant raises the qualified immunity defense, the burden shifts to the plaintiff to

meet a strict two-part test. Martinez v. Beggs, 563 F.3d 1082, 1088 (10th Cir. 2009). The

plaintiff must show that: (1) the official violated a constitutional or statutory right, and (2) the

right was clearly established when the alleged violation occurred. Olsen v. Layton Hills Mall,

312 F.3d 1304, 1312 (10th Cir. 2002). A court may address these prongs in either order, but a

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plaintiff must satisfy both to avoid qualified immunity. Pearson, 555 U.S. at 236; Olsen, 312

F.3d at 1304.

“Although summary judgment provides the typical vehicle for asserting a qualified

immunity defense, [the Court] will also review this defense on a motion to dismiss.” Peterson v.

Jensen, 371 F.3d 1199, 1201 (10th Cir. 2004). “Asserting a qualified immunity defense via a

Rule 12(b)(6) motion, however, subjects the defendant to a more challenging standard of review

than would apply on summary judgment.” Id. (citations omitted). Accordingly, “[a]t the motion

to dismiss stage, it is the defendant’s conduct as alleged in the complaint that is scrutinized for

objective legal reasonableness.” Thomas v. Kaven, 765 F.3d 1183, 1194 (10th Cir. 2014)

(citations omitted). The complaint need not include “all the factual allegations necessary to

sustain a conclusion that [a] defendant violated clearly established law.” Robbins v. Oklahoma

ex rel. Dept. of Human Servs., 519 F.3d 1242, 1249 (10th Cir. 2008) (citation omitted). Instead,

the operative question is whether the plaintiff has “ple[d] factual matter that, if taken as true,

states a claim that [defendants] deprived him of his clearly established constitutional rights.”

Iqbal, 556 U.S. at 666.

A right is clearly established if “[t]he contours of the right [are] sufficiently clear that a

reasonable official would understand that what he is doing violates that right.” Anderson v.

Creighton, 483 U.S. 635, 640 (1987). “In order for a law to be clearly established, there must be

a Supreme Court or other Tenth Circuit decision on point, or the clearly established weight of

authority from other circuits must have found the law to be as the plaintiff maintains.” Moore,

438 F.3d at 1042 (citation omitted). The plaintiff bears the burden of identifying “a controlling

case or robust consensus of cases” where an official acting “under similar circumstances” to

those faced by the defendants was found to have acted unlawfully. D.C. v. Wesby, 138 S. Ct.

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577, 591 (2018); Quinn v. Young, 780 F.3d 998, 1013 (10th Cir. 2015). While the plaintiff “does

not need to find a case with an identical factual situation,” the correspondence between settled

law and the present case must be “substantial.” Moore, 438 F.3d at 1042; Plumhoff v. Rickard,

572 U.S. 765, 780 (2014) (explaining that if no controlling authority is on point, the plaintiff

must identify “a robust consensus of cases of persuasive authority”) (citation omitted). In other

words, the action at issue need not have been previously declared unlawful, but its unlawfulness

must be evident in light of preexisting law. Beedle v. Wilson, 422 F.3d 1059, 1069 (10th Cir.

2005). Unlawfulness is generally demonstrated “when there is controlling authority on point or

when the clearly established weight of authority from other courts supports plaintiff’s

interpretation of the law.” Id. at 1069-70 (citation omitted).

III. Analysis

Plaintiff Harris claims her Fourth Amendment right to be free from unreasonable

searches and seizures was violated by Defendant Stover when he directed Defendant Vannatta to

break into her home without a warrant, consent, exigent circumstances, or other emergency.

(Doc. 1-5) at 10. Defendant Stover argues he is entitled to qualified immunity for this claim

because Plaintiffs have not plausibly alleged that Defendant Stover committed a constitutional

violation and have not shown that any constitutional violation was clearly established. (Doc. 17)

at 5-6. In a separate order on Defendant Bowman’s and Defendant Vannatta’s Motion to

Dismiss, (Doc. 16), the Court found that Plaintiffs sufficiently stated a claim for violation of

Plaintiff Harris’s Fourth Amendment rights based on the officers’ entry into her home.

(Doc. 38). Nevertheless, in order to state a claim for relief against Defendant Stover, Plaintiffs

must make clear how Defendant Stover’s actions were unlawful—that is, whether Defendant

Stover violated Plaintiff Harris’s Fourth Amendment rights by advising Defendant Vannatta to

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breach the apartment. See Robbins v. Okla. ex rel. Dep’t of Human Svcs., 519 F.3d 1242, 1249

(10th Cir. 2008) (to state a claim for relief, a plaintiff must “make clear exactly who is alleged to

have done what to whom, to provide each individual with fair notice as to the basis of the claims

against him or her”).

The Tenth Circuit has explained that a district attorney may be liable for an officer’s

conduct that resulted in a constitutional deprivation “if plaintiff shows an ‘affirmative link’

between [the district attorney’s] conduct and the constitutional deprivation.” Reid v. Wren, 1995

WL 339401, *2 (10th Cir. 1995) (unpublished table case). In Reid, law enforcement officers

sought the district attorney’s advice about taking a horse from the plaintiff’s property that the

plaintiff had allegedly stolen. The officers testified that the district attorney advised them to tell

the plaintiff he could be arrested for concealing stolen property if he refused to relinquish the

horse. The Tenth Circuit affirmed the district court’s decision denying qualified immunity for

the district attorney, stating that the officers’ testimony about the district attorney’s advice “is

more than ample to establish a potential ‘affirmative link’ between [the district attorney] and the

constitutional deprivation.” Id. For this ruling, the Tenth Circuit relied on Snell v. Tunnell, in

which the Tenth Circuit held that “Plaintiffs must show that a supervisory defendant, expressly

or otherwise, authorized, supervised, or participated in conduct which caused the constitutional

deprivation.” 920 F.2d 673, 700 (10th Cir. 1990).

Defendant Stover argues that his advice to Defendant Vannatta was not instrumental in

the constitutional deprivation because Defendant Bowman had already directed Defendant

Vannatta to kick the door prior to Defendant Vannatta contacting Defendant Stover. (Doc. 17) at

5. In addition, Defendant Stover notes that Plaintiffs allege that Defendants Bowman and

Vannatta “conspired” to deprive Plaintiff Harris of her constitutional rights, but do not allege that

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Defendant Stover was party to any conspiracy. Id. at 5-6. Defendant Stover also asserts that

“Plaintiffs say nothing about any information provided to Mr. Stover by Defendants Bowman

and Vannatta when they supposedly contacted Stover about breaching Harris’ door.” Id. at 6.

Plaintiffs respond that Defendant Stover violated Plaintiff Harris’s constitutional rights

“by extension” of Defendant Bowman’s and Defendant Vannatta’s actions. (Doc. 28) at 7 (“Did

Bowman and Vannatta (and by extension, Stover) violate Harris’ constitutional rights? (Yes).”).

Plaintiffs argue that “Stover, in telling the officer to breach the door on a ‘welfare check’ was

neither ‘objectively reasonable’ according to McInerney and Najar nor was the ‘manner and

scope of search,’ in other words, breaking down Harris’ door, reasonable.” Id. at 12 (citing

United States. v. McInerny, 792 F.3d 1224 (10th Cir. 2015), and United States v. Najar, 451 F.3d

710, 718 (10th Cir. 2006)). Neither of these cases, however, involve a district attorney providing

advice to law enforcement officers. Therefore, while McInerny and Najar are instructive as to

whether the officers’ actions were unlawful, the Court cannot rely on them to determine the

lawfulness of Defendant Stover’s actions.

In addition, Plaintiffs contend that Defendant Stover is not entitled to absolute immunity

because he was not acting in his quasi-judicial role as a prosecutor when he advised Defendant

Vannatta. Id. at 16-23. Plaintiffs rely on several cases explaining that a prosecutor is entitled to

absolute immunity when acting as an advocate or judicial officer, but is only entitled to qualified

immunity when acting as an investigator or supervisor. Id. Plaintiffs are correct that Defendant

Stover is not entitled to absolute or prosecutorial immunity for his actions in advising the officers

about entering Plaintiff Harris’s home. See Reid, 1995 WL 339401, *2 (“Although prosecutors

often receive absolute immunity from section 1983 claims, they are entitled to invoke qualified

immunity only for advice given to police officers.”) (citing Imbler v. Pachtman, 424 U.S. 409,

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425 (1976), and Burns v. Reed, 500 U.S. 478, 495-96 (1991)). However, Defendant Stover does

not assert absolute or prosecutorial immunity, so the cases Plaintiffs identify regarding when a

prosecutor may be entitled to absolute immunity versus qualified immunity are inapposite. See

(Doc. 28) at 16-23 (citing Imbler, 424 U.S. 409 (prosecutors enjoy absolute immunity “in

initiating a prosecution and in presenting the state’s case”); Burns, 500 U.S. 478 (prosecutor not

entitled to absolute immunity for giving legal advice to police); Buckley v. Fitzsimmons, 509

U.S. 259 (1993) (prosecutor not entitled to absolute immunity for fabricating false evidence and

making false statements at a press conference); Kalina v. Fletcher, 522 U.S. 118 (1997)

(prosecutor not entitled to absolute immunity for making false statements of fact in an affidavit

supporting an application for an arrest); Marrero v. City of Hialeah, 625 F.2d 499 (5th Cir. 1980)

(prosecutor not entitled to absolute immunity for participating in search of jewelry store that was

later held to be unconstitutional)).

In response to Defendant Stover’s assertion of qualified immunity, Plaintiffs bear the

burden of establishing that Defendant Stover violated a constitutional or statutory right that was

clearly established when the violation occurred. Importantly, Plaintiffs do not allege in their

Complaint that Defendant Stover had any supervisory authority over Defendants Vannatta or

Bowman, or that as a supervisor Defendant Stover “authorized, supervised, or participated in

conduct which caused the constitutional deprivation.” Snell, 920 F.2d at 700. Even if Plaintiffs’

bare allegation that Defendant Stover “directed” the officers to breach the door is sufficient to

establish that he violated Plaintiff Harris’s Fourth Amendment rights, Plaintiffs fail to identify “a

controlling case or robust consensus of cases” where an official acting “under similar

circumstances” to those faced by Defendant Stover was found to have acted unlawfully. Quinn,

780 F.3d at 1013. Plaintiffs identify two cases that considered whether a prosecutor was entitled

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to qualified immunity. First, in Truman v. Orem City, the Tenth Circuit denied the prosecutor

qualified immunity where the prosecutor was alleged to have fabricated evidence against the

plaintiff and used that evidence in a murder trial. 1 F.4th 1227 (10th Cir. 2021). These facts are

substantially different from the facts of this case. Second, in Stricker v. Township of Cambridge,

the Sixth Circuit granted the prosecutor qualified immunity where the prosecutor advised law

enforcement officers to break into the plaintiff’s home, finding there were sufficient exigent

circumstances to justify the entry. 710 F.3d 350 (6th Cir. 2013). While the facts of Stricker are

closer to the facts presented here, it is not controlling authority. Therefore, the Court finds that

these cases do not constitute “controlling on point authority” or “clearly established weight of

authority from other courts.” Beedle, 422 F.3d at 1069. In addition, the Tenth Circuit’s decision

in Reid v. Wren, denying qualified immunity for the district attorney for his advice to law

enforcement officers, cannot constitute clearly established law for Defendant Stover’s actions

because it is a single unpublished decision. See Williams v. Hanson, 5 F.4th 1129, 1132 (10th

Cir. 2021) (holding “that a single unpublished opinion cannot establish qualified immunity”);

Green v. Post, 574 F.3d 1294, 1305 n.10 (10th Cir. 2009) (“In determining whether the law was

clearly established, we have held that we may not rely upon unpublished decisions.”); and

Mecham v. Frazier, 500 F.3d 1200, 1206 (10th Cir. 2007) (“An unpublished opinion, … even if

the facts were closer, provides little support for the notion that the law is clearly established.”).

For the reasons stated above, the Court holds that Plaintiffs have not established that

Defendant Stover violated clearly established law in advising Defendant Vannatta about entering

Plaintiff Harris’s home and grants Defendant Stover’s Motion to Dismiss as to this claim.

Because Plaintiffs may be able to amend their Complaint to add facts necessary to support their

federal claim against Defendant Stover, the dismissal will be without prejudice. See Boateng v.

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Metz, 410 F. Supp. 3d 1180, 1191 (D. Colo. 2019) (dismissing claim without prejudice “because

Plaintiff may be able to amend his Complaint to add the facts necessary to support this claim”).

IV. Conclusion

Based on the foregoing, the Court grants Defendant Stover’s Motion to Dismiss.

Because Plaintiffs conceded Count 3 and their punitive damages claim against Defendant Stover,

those claims are dismissed with prejudice. Count 1 is dismissed without prejudice for the

reasons stated above.

IT IS THEREFORE ORDERED that Defendant Stover’s Motion to Dismiss, (Doc. 17),

is GRANTED and Plaintiffs’ claims against him are dismissed.

IT IS SO ORDERED.

Ruin Sieg

KEVIN R. SWEAZEA

UNITED STAGES MAGISTRATE JUDGE

Presiding by Consent

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