Reid v. Pautler

MEMORANDUM OPINION AND ORDER 1

JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on: (i) the Defendants’ Opposed Motion to Dismiss First Amended Complaint for Violation of Civil Rights, filed August 16, 2013 (Doe. 26) (“MTD”); and (n) the Plaintiffs Opposed Motion to Amend Complaint and Memorandum Brief in Support Thereof, filed May 30, 2014 (Doc. 48) (“Motion to Amend”). The Court held a hearing on the MTD on January 17, 2014. The primary issues are: (i) whether Defendant Flyshia Ross, a New Mexico Corrections Department (“NMCD”) employee in the Probation and Parole Division, was functionally acting in a judicial capacity when she filled out an Order of Probation, submitted it to the Honorable Ricky D. Pur *1082 cell, District Judge for the Tenth District Court for the State of New Mexico, and then presented the signed Order of Probation to Plaintiff Richard Reid, and is thus entitled to absolute quasi-judicial immunity; (ii) whether Defendants Susan Pautler, Gregory Garcia, and Wes Hatley, NMCD employees in the Probation and Parole Division, were functionally acting in a judicial capacity when they enforced the Order of Probation, which included searching Reid’s home, ordering him to submit to urine drug tests, and arresting him for violating the Order of Probation, and are thus entitled to absolute quasi-judicial immunity; (iii) whether Heck v. Humphrey, 512 U.S. 477 , 114 S.Ct. 2364 , 129 L.Ed.2d 383 (1994), bars Reid from bringing any of his claims under 42 U.S.C. § 1983 ; (iv) whether the Defendants are entitled to qualified immunity for allegedly violating Reid’s due-process rights under the Fourteenth Amendment to the Constitution of the United States of America, and rights to be free from unreasonable searches and seizures under the Fourth Amendment to the Constitution of the United States of America; (v) whether Reid sufficiently alleged that Defendant Kristy Muller, an NMCD employee in the Probation and Parole Division, was personally involved in any alleged constitutional violations; and (vi) whether the Court should permit Reid to amend the First Amended Complaint for Violation of Civil Rights, filed July 17, 2013 (Doc. 25) (“FAC”), to add two new claims, including a claim that the Defendants subjected him to double jeopardy in violation of the Fifth Amendment to the Constitution of the United States of America, and a claim that the Defendants denied him the right to counsel in violation of the Sixth Amendment to the Constitution of the United States of America. The Court will grant the MTD and will dismiss all of Reid’s claims against the Defendants, and it will deny the Motion to Amend. The Court concludes: (i) Ross was not acting in a judicial capacity when she secured the Order of Probation, and is thus not entitled to absolute immunity; (ii) Garcia, Hatley, and Pautler are entitled to absolute immunity for enforcing the Order of Probation, a facially valid court order, but they are not entitled to absolute immunity for falsely stating that Reid repeatedly violated his probation conditions and was a risk to himself; (iii) Heck v. Humphrey bars Reid from asserting the procedural due-process claim related to the additional term of probation as well as the Fourth Amendment search claim, because these claims depend on Reid establishing that the Order of Probation was invalid, but the Order of Probation has not been invalidated through the methods listed in Heck v. Humphrey, and Reid was not diligent in seeking to invalidate the Order of Probation; (iv) Ross is entitled to qualified immunity for the Fourth Amendment search and seizure claims against her, and Garcia, Hatley, and Pautler are entitled to qualified immunity for the procedural due process, Fourth Amendment search, and Fourth Amendment seizure claims against them; (v) Reid has not sufficiently alleged that Muller was involved in any of the purported constitutional violations; and (vi) Heck v. Humphrey would bar Reid’s proposed additional claims, and, thus, amending the FAC would be futile. The Court will dismiss all of the claims with prejudice, except it will dismiss without prejudice the procedural due-process claim against Ross based on Reid’s additional term of probation. The Court will also deny the Motion to Amend.

FACTUAL BACKGROUND

The' Court primarily takes the facts from the FAC. Normally, the sufficiency of a complaint must rest on its contents alone. See Casanova v. Ulibarri, 595 F.3d *1083 1120, 1125 (10th Cir.2010). There are three limited exceptions to this general principle: (i) documents that the complaint incorporates by reference, see Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 , 127 S.Ct. 2499 , 168 L.Ed.2d 179 (2007); (ii) “documents referred to in the complaint if the documents are central to the plaintiffs claim and the parties do not dispute the documents’ authenticity,” Jacobsen v. Deseret Book Co., 287 F.3d 936, 941 (10th Cir.2002); and (in) “matters of which a court may take judicial notice,” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. at 322 , 127 S.Ct. 2499 . The Defendants have requested that the Court consider a number of documents attached to the Memorandum in Support of Defendants’ Opposed Motion to dismiss First Amended Complaint for Violation of Civil Rights, filed August 16, 2013 (Doc. 27) (“MTD Memo.”), which, they assert, are referenced in the Complaint and are central to Reid’s allegations. See MTD Memo. ¶¶ 17-19, at 7-8. At the hearing, Reid initially stated that he did not think the Court should consider the documents, because he could not gain access to the probation department’s file for discovery, see Transcript of Hearing at 27:24-28:12 (Frost), taken January 17, 2014 (“Tr.”), 2 but he did not dispute the documents’ authenticity, admitted that he referred to them in the FAC, and then said that he did not see any problem with the Court considering the documents for the MTD and argued that they supported his position, Tr. at 28:13-29:4 (Court, Frost). Because Reid referred to the documents in the FAC, the documents are central to Reid’s claims, and the parties do not dispute their authenticity, the Court will also consider the three documents that the Defendants attached to the MTD Memo., without converting the MTD into a motion for summary judgment. Further, Reid submitted to the Court the Stipulated Order on Satisfactory Discharge from Supervised Probation, filed in state court October 17, 2011, filed in federal court June 12, 2014 (Doc. 50-4) (“Stipulated Order”). Reid references this document in the FAC, and, additionally, the Defendants do not object to the Court considering it, see Defendants’ Response to Minute Order of June 9, 2014 at 3 n. 3, filed June 13, 2014 (Doc. 51) (“Defendants’ Second Supp.”), and thus, the Court will also consider the Stipulated Order for the MTD.

On April 19, 2001, Reid pled guilty to criminal charges in three separate cases: (i) Quay County Cause No. D-1010-CR-2000-00137 (“CR-137”); (ii) Quay County Cause No. D-1010-CR-2000-00138 (“CR-138”); and (iii) Quay County Cause No. D-1010-CR-2000-00139 (“CR-139”). FAC ¶ 5, at 1-2. The three cases cross-referenced each other, but only the Judgment and Sentence for CR-137 set out Reid’s incarceration and probation terms. See FAC ¶ 5, at 1-2. The Judgment, Sentence, and Commitment, No. CR-00-00139, filed August 16, 2013 (Doc. 27-2) (“CR-139 J & S”), states: “The aforesaid sentence shall be consecutive to the sentence imposed in Cause No. CR-00-00137 and CR-00-00138. Defendant has also pled guilty to charges in Cause No. CR-00-00137 and CR-00-00138 and the terms and conditions shall apply to all three cases.” CR-139 J & S ¶ 4, at 2. See MTD Memo. ¶ 18, at 7-8. Reid was sentenced to three hundred sixty-four days incarceration at the Quay County Detention Center; upon release, “he was to be transported directly to a residential rehabilitation treatment facility *1084 as determined by the Adult Probation and Parole Service,” and then placed on supervised probation for five years “with a standard Order of Probation of the Tenth Judicial District.” FAC ¶ 6, at 2.

In June, 2002, an Order of Probation was filed in CR-137 requiring Reid to be on supervised probation from May 2, 2002, until May 1, 2007. See FAC ¶ 7, at 2. On May 27, 2004, the court entered an Order of Early Discharge on the suspended sentence, relieving Reid of any further obligations in CR-137. See FAC ¶ 7, at 2. In February, 2006, an Amended Order of Probation was filed in CR-138 and CR-139, requiring Reid to serve probation from March 14, 2002, until March 13, 2007. See FAC ¶ 8, at 2. Reid alleges that, “[u]n-der New Mexico law, the total period of probation a defendant can be sentenced in district courts may not exceed five (5) years.” FAC ¶ 7, at 2 (citing N.M. Stat. Ann. § 31-20-5 (A); State v. Devigne, 1981-NMCA-088 , 96 N.M. 561 , 632 P.2d 1199 ). 3

In June, 2007, three months after Reid completed five years of probation in CR-139, Ross “questioned why Plaintiff was no longer on probation.” FAC ¶ 10, at 3. “Even though the file and documentation contained therein clearly showed that the Plaintiffs probation had ended on March 13, 2007 and that he could not be placed on any additional probation,” Ross filled out a new Order of Probation, which extended Reid’s probation from March 14, 2007, until March 13, 2012, and “submitted it to the district court for its signature.” FAC ¶¶ 10-11, at 3.

Judge Purcell signed the Order of Probation. See Order of Probation at 2, dated June 12, 2007, filed August 16, 2013 (Doc. 27-1); MTD Memo. ¶ 17, at 7. After the court signed the Order of Probation, Ross presented it to Reid and required him to sign it; although Reid “questioned the validity of extending his probation any further,” Ross assured him that he had an additional five years of probation to serve for his April 19, 2001, convictions. FAC ¶¶ 11-12, at 3. Under the Order of Probation, Reid

was required to report to his Probation Officer (“PO”) once a month; get permission from his PO before leaving Quay County, changing jobs or changing residences; he was prohibited from associating with persons identified by his PO as being detrimental to his supervision; he was required to authorize his PO to visit his home and to allow them to conduct warrantless searches on his person, residence, automobiles or property; he was required to provide urine or breath tests at the PO’s request; and was required to pay monthly probation costs as well as pay Crime Stoppers, DNA and other fees.

FAC ¶ 12, at 3. Reid adhered to the terms of the Order of Probation until September, 2011, including monthly reporting to his PO and allowing his PO on at least one occasion to search his home in Logan, New Mexico. See FAC ¶ 13, at 3.

At some point before September, 2011, Garcia directly supervised Reid, and Muller supervised Garcia. See FAC ¶ 14, at 4. On September 7, 2011, Reid went to the Tucumcari, New Mexico, probation office *1085 for his monthly visit, where Hatley and Pautler were representing the probation office instead of his normal PO. See FAC ¶ 14, at 4. Hatley and Pautler demanded that Reid take a urine test, and he complied. See FAC ¶ 14, at 4. Hatley and Pautler told Reid that his test was positive, and Reid admitted that he had consumed marijuana at some point in the past. See FAC ¶ 14, at 4. Hatley then contacted Garcia to discuss what to do; Hatley, Pautler, and Garcia agreed that Reid should be immediately arrested. See FAC ¶ 15, at 4. They filled out an Arrest Order, which stated that Reid was not to be given bond. See FAC ¶ 15, at 4; Arrest Order, dated September 7, 2011, filed August 16, 2013 (Doe. 27-3). “As a justification for the arrest, Defendants Pautler, Garcia and Hatley falsely stated that the Plaintiff was a [risk] 4 to himself and that he was guilty of repeated violations of supervised conditions.” FAC ¶ 15, at 4. The Arrest Order required the Defendants 5 to identify the current convictions which formed the basis for Reid’s probation; each of the convictions that the Defendants identified “show that they were over ten (10) years prior to the date of the Arrest Order.” FAC ¶ 16, at 4. Pautler signed the Arrest Order on Garcia’s behalf, and Hatley signed the Arrest Order on Muller’s behalf. See FAC ¶ 15, at 4. Muller did not sign the Arrest Order. See Arrest Order at 1; MTD Memo. ¶ 19, at 8. Reid was “immediately taken into custody at the Quay County Detention Center.” FAC ¶ 15, at 4.

Reid alleges that NMRA 5-805(B) requires that the Defendants file a notice of the arrest, and give a copy to the probationer and the district court, and that the court then has five days to review the conditions of release for the incarcerated probationer. See FAC ¶ 17, at 4-5. 6 The Defendants did not file a notice of arrest. See FAC ¶ 17, at 5.

Reid retained counsel to represent him, and on September 14, 2011, an order modifying his conditions of release was filed, and he was released on a $5,000.00 Own Recognizance Bond. See FAC ¶ 18, at 5. Reid’s counsel and the Tenth Judicial District Attorney’s Office then determined that Reid had completed his probation in March, 2007, and that “he was not legally on probation after that date.” FAC ¶ 19, at 5. The parties stipulated to an order discharging Reid based on fulfilling his term of probation, see FAC ¶ 19, at 5; that order states, in relevant part:

THIS MATTER having come before the Court this 17th day of October, 2011, upon the motion of the Defendant; by and through his attorney, Randal M. Harris, and the concurrence of the State of New Mexico, represented by Tim Rose, Deputy District Attorney, regard *1086 ing the same, and the Court being fully-appraised in the premises orders the following:

1. This Court has jurisdiction over the parties and subject matter herein;

2. That the Defendant received a suspended sentence on the 19th day of April, 2001. for the charge of Burglary of Vehicle/Crafts/Structure-Non Residential, Criminal Damage to Properly Under $1,000 and was to be on probation for a period of five (5) years, zero (0) months, zero (0) days, and it further appearing to the Court that the Defendant is, satisfactorily discharged from Supervised Probation.

Stipulated Order at 1.

PROCEDURAL BACKGROUND

On July 17, 2013, Reid filed the FAC, alleging three counts: (i) Count I, due-process violation under the Fourteenth Amendment to the Constitution of the United States; (ii) Count II, a search in violation of the Fourth Amendment to the Constitution of the United States; and (in) Count III, a seizure in violation of the Fourth Amendment to the Constitution. See FAC at 5-7. In Count I, Reid alleges that “[t]he Defendants, while acting under the color of state law, deprived the Plaintiff of his liberty interest without due process of law,” in violation of the Fourteenth Amendment to the Constitution, by requiring him to submit to four and one-half years of supervised probation and seven days of incarceration. FAC ¶ 21, at 5. He alleges that “it was a clearly established law that an individual cannot be placed on probation and required to adhere to the terms of probation and arrested for allegedly violating those terms, without first being charged with a crime and being provided with due process prior to a conviction,” FAC ¶ 19, at 5, and that “[t]he conduct of the Defendants was intentional, willful, wanton, and in reckless disregard of the rights of the Plaintiff and he is therefore entitled to an award of punitive damages to punish the Defendants for their conduct to deter similar conduct on their part in the future,” FAC ¶ 23, at 6. In Count II, Reid alleges that “[t]he Defendants, while acting under the color of state law, forced the Plaintiff to submit to a urine test and searched his home, without a warrant, absent exigent circumstances,” in violation of the Fourth Amendment. FAC ¶ 26, at 6. He contends that “it was a clearly established law that a law enforcement officer could not require an individual to submit to a urine test or search his home without a warrant, unless there were exigent circumstances,” FAC ¶ 25, at 6, and that “the conduct of the Defendants was intentional, willful, wanton, and in reckless disregard of the rights of the Plaintiff,” entitling him to punitive damages, FAC ¶ 28, at 7. In Count III, Reid alleges that the “individual Defendants, while acting under the color of state law, arrested the Plaintiff on September 7, 2011 without probable cause and without a warrant,” in violation of the Fourth Amendment. FAC ¶ 31, at 7. He contends that “it was a clearly established law that a law enforcement officer could not arrest an individual without probable cause and/or an arrest warrant,” and that, “under New Mexico law a probation officer has no independent law enforcement authority, but may only enforce the terms of valid probation orders.” FAC ¶ 30, at 7. He alleges that the “conduct of the Defendants was intentional, willful, wanton, and in reckless disregard of the rights of the Plaintiff,” entitling him to punitive damages. FAC ¶ 33, at 7.

The Defendants move the Court, pursuant to rule 12(b)(6) of the Federal Rules of Civil Procedure, for an order dismissing the FAC with prejudice as to all Defendants. See MTD at 1. The Defendants *1087 argue that each Defendant is immune from suit and liability under absolute quasi-judicial immunity, or, alternatively, qualified immunity. See MTD at 1-2. The Defendants also alternatively contend that, if Muller is not entitled to immunity, the Court should dismiss the claims against them, because of “insufficient personal involvement.” MTD at 2.

The Defendants emphasize “two observations” from the United States Court of Appeals for the Tenth' Circuit “concerning probation officers and their ‘unique’ relationship to the sentencing court”:

(1) “the probation officer serves as an investigative and supervisory arm of the court,” United States v. Davis, 151 F.3d 1304, 1306 (10th Cir.1998) (internal quotation marks omitted); and (2) “[a]s a practical matter, then, the probation officer serves as a liaison between the sentencing court, which has supervisory power over the defendant’s term of supervised release, and the defendant, who must comply with the conditions of his supervised release or run the risk of revocation.” Id. at 1306-07 .

MTD Memo, at 2. The Defendants note that the Tenth Circuit addressed “whether a federal probation officer had certain powers,” but argue that “there is no rational reason why the Davis court’s comments about the special role probation officers play is any less applicable to state probation officers.” MTD Memo, at 2 n. 2.

In the Defendants’ view, they are all entitled to absolute quasi-judicial immunity, because their work was “intimately or intrinsically associated with a judicial proceeding.” MTD Memo, at 11. The Defendants point to the Tenth Circuit’s holding that “a probation officer is entitled to quasi-judicial immunity for activities that are ‘intimately associated with the judicial phase of the criminal process’ such as preparation of a pretrial sentence report,” MTD Memo, at 11 (quoting Tripati v. U.S.I.N.S., 784 F.2d 345 , 348 (10th Cir.1986) (per curiam)), and that “an ‘official charged with the duty of executing a facially valid court order enjoys absolute immunity from liability for damages in a suit challenging conduct prescribed by that order,’ ” because “ ‘[ejnforcing a court order or judgment is intrinsically associated with a judicial proceeding,’ ” MTD at 11 (quoting Valdez v. City & Cnty. of Denver, 878 F.2d 1285, 1286 (10th Cir.1989)).

The Defendants identify five allegations that Reid makes against Ross: (i) she questioned why Reid was no longer on probation; (ii) she filled out a new Order of Probation and submitted it to the district court for its signature; (iii) she presented Reid with the new Order of Probation; (iv) she assured Reid that he had an additional five years of probation to serve; and (v) she did not file a notice of arrest NMRA 5-805 allegedly required. See MTD Memo, at 11-12. Regarding the first allegation — that Ross questioned why Reid was no longer on probation — the Defendants contend that the FAC does not allege any “constitutionally infirm motive” for Ross’ actions; they argue that her actions were consistent with the language in the CR-139 J & S, which indicated that the sentence “shall be consecutive” to the sentence imposed in CR-137 and CR-138. MTD Memo, at 12. Further, although Reid alleges that “the file and documentation contained therein clearly showed that the Plaintiffs probation had ended on March 13, 2007 and that he could not be placed on any additional probation,” FAC ¶ 10, at 3, the Defendants argue that “there is simply no allegation that Ross was aware of such documentation” when she questioned why Reid was no longer on probation or submitted a new probation order to Judge Purcell,” MTD Memo, at 12. In the Defendants’ view, these allega *1088 tions are insufficient to show that Reid is entitled to relief. See MTD Memo, at 12-13. Regarding the second and third allegations — that Ross filled out a new Order of Probation, submitted it to the district court for its signature, and presented it to Reid to sign — the Defendants contend that the Order of Probation is Judge Purcell’s order, that “he alone is legally responsible for its contents,” MTD Memo, at 13 (citing Kelly v. Cnty. of Montgomery, Civ. No. 08-01660, 2008 WL 3408123 , at *7 (E.D.Pa. Aug. 8, 2008)), and that, “[b]y presenting the [Order of Probation] to plaintiff, Ross was merely acting as an arm of Judge Purcell,” MTD Memo, at 13. The Defendants contend that Judge Purcell would have absolute judicial immunity for signing the Order of Probation and causing it to be enforced, and, thus, “there is no rational reason why defendant Ross should not be similarly immune for ‘presenting’ that order to plaintiff — an act which Judge Purcell could have done himself.” MTD Memo, at 14. Regarding Reid’s fourth allegation — that Ross assured Reid that he had five remaining years of probation — the Defendants assert that Reid did not allege that he “was entitled to rely on Ross for an explanation” of his legal rights or that Ross prevented him from “exercising his due process rights” by appealing the Order of Probation. MTD Memo, at 15. The Defendants argue that Reid’s failure to appeal the Order of Probation, which he “admittedly thought was improper,” does not “now justify imposition of the burdens of litigation or liability — almost six years after the fact — on Ross.” MTD Memo, at 15. The Defendants also argue that Ross’ alleged assurance was “ ‘intimately associated with the judicial phase of the criminal process,’ ” because they were consistent with the CR 139 J & S and what Judge Purcell could have told Reid. MTD Memo, at 15 (quoting Tripati v. U.S.I.N.S., 784 F.2d at 348). In the Defendants’ view, New Mexico law did not clearly prohibit the imposition of a consecutive sentence in CR-139 after his probation in CR-137 and CR-138 had ended. See MTD Memo, at 15-16. The Defendants assert that Reid has not alleged that Ross knew the Order of Probation “contained an unlawful sentence ... or intentionally -lied to plaintiff as to the meaning and effect of the court’s probation order.” MTD Memo, at 16. Although the FAC alleges that the “conduct of Defendants was intentional, willful, wanton, and in reckless disregard of the rights of the Plaintiff,” FAC ¶¶ 23, 28, 33, at 6-7, the Defendants argue that this allegation is insufficient under the pleading standards of Ashcroft v. Iqbal, 556 U.S. 662 , 129 S.Ct. 1937 , 173 L.Ed.2d 868 (2009), and that Brown v. Montoya, 662 F.3d 1152, 1170 (10th Cir.2011)-in which the Tenth Circuit held that “an allegation that conduct was ‘intentional, malicious, sadistic, willful, wanton, obdurate, and in gross and reckless disregard of [Mr. Brown’s] constitutional rights’ satisfied the requirement for alleging a sufficiently culpable state of mind in a § 1983 action” — is “flatly at odds with the clear import of the holding of Iqbal.” MTD Memo, at 16 n. 16. The Defendants offer an alternative rationale for Brown v. Montoya:

[A] possible explanation for the Brown court’s conclusion that the boilerplate allegation of ‘intentional, malicious, sadistic, willful, wanton, obdurate and in gross and reckless disregard’ conduct of the probation officer sufficiently alleged the requisite state of mind is that the probation officer’s activities in Brown appear to have been performed in the absence of a probation order ordering the probation officer to direct the plaintiff to register as a sex offender or be placed in the sex offender probation unit.

*1089 MTD Memo, at 16 n. 16. The Defendants contend that, in this case, “the requisite mental state cannot be inferred in the absence of allegations of specific facts supporting the inference of intentional or reckless conduct,” and that “there is simply no allegation that Ross was aware of the alleged documentation in the file.” MTD Memo, at 16 n. 16. According to the Defendants, “[e]ven if Ross’ assurance was negligent, negligence does not support liability under § 1983.” MTD Memo, at 16 (citing Daniels v. Williams, 474 U.S. 327, 333-36 , 106 S.Ct. 662 , 88 L.Ed.2d 662 (1986)).

Regarding the alleged failure to file a notice pursuant to NMRA 5-805(B), the Defendants argue that this allegation “cannot be used to predicate liability on Ross or any of the other defendants.” MTD Memo, at 17. NMRA 5-805(B) states:

If the probationer is arrested by the probation office without a warrant the probation office shall provide the district with a written notice within one (1) day of the arrest. The notice shall contain a brief description of each alleged probation violation. A copy of the notice shall be given to the probationer and filed with the court.

NMRA 5-805(B). See MTD Memo, at 17 (quoting NMRA 5-805(B)). The Defendants point out that NMRA 5-805(B) imposes an obligation on the probation office, not on a probation officer, and that Reid has not alleged that any of the Defendants are responsible within the probation office to file the notice. See MTD Memo, at 17. The Defendants assert that Reid’s FAC does not allege that Ross or Muller took any part in Reid’s arrest on September 7, 2011, and, thus, the “blanket reference to ‘Defendants’ ... that no notice of arrest was filed” cannot apply to Ross or Muller. MTD Memo, at 17. & n. 18. The Defendants further contend that “no harm resulted from the alleged failure to file the notice,” because, based on the calculations from NMRA 5-104(A), the judge had until September 14, 2011, to “review the notice of arrest or' warrant and consider conditions of release,” and the order modifying Reid’s conditions of released was filed on September 14, 2011. MTD Memo at 17-18 (citing NMRA 5-104(A)).

The Defendants argue that Hatley, Garcia, Pautler, and Muller are also entitled to quasi-judicial immunity, because their “alleged involvement with the violation of plaintiffs civil rights occurred in the context of them ‘executing a facially valid court order.’ ” MTD Memo, at 19 (quoting Valdez v. City & Cnty. of Denver, 878 F.2d at 1286 ). They note that Reid has not alleged that the Order of Probation was facially invalid and argue that “a review of such order reveals no facial invalidity.” MTD Memo, at 19 n. 19. They point to the Order of Probation, which, among other things, authorized them to have Reid arrested without a warrant if he violated a probation condition, and argue that their conduct was consistent with the Order of Probation’s authorizations and that they were “assisting Judge Purcell exercise his supervisory power” over Reid. MTD Memo, at 20-21. The Defendants contend that the Order of Probation authorized them to arrest Reid on September 7, 2011, and that the arrest was based on probable cause: “Pautler and Hatley administered a urine test as specifically authorized by the facially valid” Order of Probation, and when Reid then “admitted that he had used marijuana,” they had probable cause to believe that Reid had violated one of the conditions in the Order of Probation. MTD Memo, at 21.

The Defendants assert that Reid amended his complaint to “beef up” the allegations against them by adding that they “falsely stated that Plaintiff was a danger *1090 to himself and that he was guilty of repeated violations of supervised conditions,” and that each of the convictions on the Arrest Order was over ten years old. MTD Memo, at 21-22. In the Defendants’ view, the “ ‘falsely stated’ allegation” in the FAC is a “wholly conclusory ‘naked assertion devoid of further factual enhancement.’ ” MTD Memo, at 22 (quoting Ashcroft v. Iqbal, 556 U.S. at 678 , 129 S.Ct. 1937 (secondary quotation marks omitted)). They argue that the Arrest Order controverts the allegation, because it states that Reid’s, detention “was necessary because of risk (not ‘danger’) — to himself.” MTD Memo, at 22. The Defendants maintain that Reid admitted to consuming marijuana, in violation of Judge Purcell’s specific order that he not consume marijuana, and that “it was not unreasonable for defendants Pautler, Garcia, and Hatley to believe that plaintiff would consume marijuana in the future and that such consumption posed a risk to plaintiff.” MTD Memo, at 22. The Defendants also assert that the FAC “does not allege how the listing of ten-year-old convictions in the Arrest Order constitute a violation of plaintiffs constitutional rights, and is thus insufficient in that regard.” MTD Memo, at 23 (emphasis in original). They maintain that, although the convictions were over ten years old, this reality “does not negate the fact that there existed probable cause to arrest plaintiff based on his admitted use of marijuana and Judge Purcell’s order that plaintiff not consume marijuana during the term of his probation.” MTD Memo, at 23. The Defendants cite a number of cases that they argue support their contention that Hatley, Garcia, Paut-ler, and Muller are immune under the doctrine of absolute quasi-judicial immunity: Tripati v. U.S.I.N.S., Valdez v. City and Cnty. of Denver, Engebretson v. Mahoney, 724 F.3d 1034, 1039-40 (9th Cir.2013); Gibbs v. Day, No. 3:09-cv-613, 2011 WL 1225898 , at *4-5 (E.D.Tenn. Mar. 30, 2011); Beasley v. Allen, No. 05-1116-T/AN, 2006 WL 686338 , at *3 & n. 3 (W.D.Tenn. Mar. 15, 2006); Huger v. Bogen, 503 Fed.Appx. 455, 461-62 (6th Cir.2012); Log gins v. Franklin County, Ohio, 218 Fed.Appx. 466, 476 (6th Cir.2007); Kelly v. Cnty. of Montgomery, 2008 WL 3408123 , at *6-7. See MTD Memo, at 23-24. The Defendants point to Kelly v. Cnty. of Montgomery in particular, because it involved, in their view, similar facts:

(1) a probation officer incorrectly reporting to a re-sentencing court that plaintiffs sentence was consecutive, rather than concurrent (as Ross apparently did here); (2) other probation officers’ approval of the recommendation that the sentence be consecutive when they knew or should have known that the law permitted only a concurrent probation sentence; (3) unlawful extension of plaintiffs release date by the sentencing court as a result of the actions of the probation officers in giving or approving the recommendation to the court for a consecutive sentence; (4) representation to the court that plaintiff was subject to probation when he was not; and (5) the arrest and incarceration of plaintiff for an alleged probation violation when, under the law, he should not have been on probation. Kelly, 2008 WL 3408123 *1, *6. The probation officers moved to dismiss on the ground that they were entitled to absolute immunity, and alternatively, qualified immunity.

MTD Memo, at 25. The Honorable James T. Giles, former United States District Judge for the Eastern District of Pennsylvania, held that the probation officers’ conduct was adjudicatory in nature, and thus, granted the motion to dismiss based on absolute immunity. See MTD Memo, at 25-26.

*1091 The Defendants contend that, alternatively, they are entitled to qualified immunity. See MTD Memo, at 26. The Defendants assert that they

have been unable to find any authority for the proposition that a probation officer must independently determine the validity of a facially valid probation order prior to enforcing it, or that plaintiff had the right to be free from “presentation” by a probation officer of a facially valid probation order signed by a judge, or later “supervision” by probation officers pursuant to such facially valid probation order.

MTD Memo, at 27. The Defendants maintain that the weight of authority is to the contrary, that is, that the law is not clearly established that probation officers must independently research the lawfulness of a probation order which the sentencing judge signed. See MTD Memo, at 27-28. Although Reid alleged in the FAC that the maximum term of probation he could serve under New Mexico law is five years, the Defendants contend that the rule and case on which Reid relies — N.M. Stat. Ann. § 31-20-5 (A) and State v. Devigne — show that the maximum probation term for convictions that occurred at one trial is five years, but that Reid’s situation involves.' crimes charged in three separate cases. See MTD Memo, at 28-29. They maintain that the law in New Mexico is not clearly established that a probationer may not serve more than five years’ probation in the aggregate for three separate cases. See MTD Memo, at 30.

Finally, the Defendants argue that the Court should dismiss the claims against Muller, because the FAC does not allege that she was personally involved in the alleged constitutional violations; in their view, the “sole non-conclusory allegations against Muller is that she supervised Garcia ... and she did not file a notice of arrest as allegedly required by Rule 5-805 NMRA.” MTD Memo, at 30-31. The Defendants maintain that “[mjere supervision of a person who violates another person’s constitutional rights is insufficient to impose § 1983 liability on the supervisor, as personal liability may not be predicated on a theory of respondeat superior.” MTD Memo, at 31. The Defendants contend that, although the law recognizes supervisory liability, the FAC does not contain allegations that support supervisory liability, because the FAC does not allege that Muller “promulgated, created, implemented or possessed responsibility for the continued operation of a policy that caused the complained of constitutional harm,” or that she did so “with the state of mind required to establish the alleged constitutional deprivation.” MTD Memo, at 31.

Reid responds that the Defendants are not entitled to absolute immunity or qualified immunity. See Plaintiffs Response in Opposition to the Defendants’ Motion to Dismiss First Amended Complaint for Violation of Civil Rights [Doc. 26], filed August 23, 2013 (Doc. 28) (“Response”). Reid asserts that Ross did not simply enforce the Order of Probation; she “made the determination” that Reid should serve five additional years of probation, completed the new Order of Probation, and presented it to the district court, “even though she knew the Plaintiff had already completed his period of probation.” Response at 3. He asserts that he “anticipates that testimony in this case will show that'district judges in New Mexico routinely sign off on probation orders submitted by the Probation and Parole Division without independently verifying the contents of those orders.” Response at 3. Reid points to several cases which he contends “have held that probation and parole officers in identical situations to those of the Defendants are not entitled to absolute immunity,” including Swift v. California, 384 F.3d *1092 1184 (9th Cir.2004), Draine v. Leavy, 504 Fed.Appx. 494 (6th Cir.2012), Galvan v. Garmon, 710 F.2d 214 (5th Cir.1983), and Brown v. Montoya. Response at 4-5. Reid maintains that Ross was “not performing a judicial function in June of 2007 when, knowing that the Plaintiff had already completed his five (5) years of probation, she decided to fill out a new Order of Probation for submission to the court.” Response at 5. Further, he maintains that “Hatley, Pautler and Garcia were not performing a judicial function when, knowing that the Plaintiff had completed his probation, they decided to falsify the Arrest Order and have the Plaintiff incarcerated.” Response at 5. Reid argues that Valdez v. City and County of Denver — a case on which the Defendants “rely heavily” — is “easily distinguishable,” because, in that case, “a district court had independently held an individual in contempt and ordered that they be arrested.” Response at 5. Reid argues that “[n]o such order exists in this case.” Response at 5. Further, Reid asserts that the Defendants’ reliance on Tripoli v. U.S.I.N.S. is misplaced, because, in that case, “the plaintiff was suing the probation officers for allegedly false statements made in a pretrial bond report and in a presentence report,” activities that the district court had ordered and which “were an integral part of the court’s function in sentencing the defendant,” but that “[n]one of the Defendants in this case can claim a similar role.” Response at 5.

Reid argues that the Defendants are also not entitled to qualified immunity, because the FAC “alleges that the Defendants intentionally and recklessly imposed an additional five (5) years of probation on the Plaintiff, knowing that his legitimate term of probation ended on March 17, 2007,” and that “it was a clearly established law in the Tenth Circuit from June of 2007 through the date of the Plaintiffs arrest that a probationer who has completed his term of probation is entitled to the same constitutional rights as any other citizen.” Response at 6. Reid points to Trask v. Franco, 446 F.3d 1036 (10th Cir.2006), a case in which the probation officer mistakenly thought the plaintiff remained on probation, but in fact, the judge’s order releasing the plaintiff had not made its way into the probation officer’s file. See Response at 6. According to Reid, the Tenth Circuit denied qualified immunity, because a question of fact existed concerning the reasonableness of the officers’ belief that the plaintiff was still on probation. See Response at 6 (citing Trask v. Franco, 446 F.3d at 1044 ). Reid maintains that, because he has alleged that the probation officers knew his period of probation had expired, and yet imposed an additional four and one-half years of probation and seven days in jail, “[t]here can be no question” that if the allegations are true, the Defendants are not entitled to qualified immunity. Response at 7.

Regarding Muller, Reid explains that “the only involvement of which the Plaintiff is aware concerning Defendant Kristy Muller is the fact that she would have normally approved the Arrest Order, which was approved by Defendant Hat-ley.” Response at 7. He asserts that, “[a]t this early stage of the case,” he “believes that the form executed for the Plaintiffs arrest, which identifies Kristy Muller as the supervisor, is enough to keep her in this lawsuit.” Response at 7.

The Defendants reply that, in the Response, Reid attempts to defeat the MTD “by pretending that the Amended Complaint alleges things that it simply does not allege.” Reply Memorandum in Support of Defendants’ Opposed Motion to Dismiss First Amended Complaint for Violation of Civil Rights at 1-2, filed September 16, 2013 (Doc. 32) (“Reply”). The Defendants point out that, although Reid contends that *1093 Ross knew Reid had already completed his five years of probation and proceeded to fill out a new Order of Probation anyway,

there is simply no allegation in the Amended Complaint that Ross plausibly knew at the time she allegedly prepared and submitted the OOP [Order of Probation] to Judge Purcell that a consecutive 5-year term of probation in one case (Case No. 139) could not follow a 5-year term of probation in another case, when the sentencing document in 139 specifically stated “[t]he aforesaid sentence shall be consecutive to the sentence imposed in Cause No. CR-00-00137 and CR-00-00138.”

Reply at 2. They argue that “preparation of a judicial order is a quintessential ‘judicial function,’ ” and even if Reid establishes through testimony that district judges in New Mexico routinely sign off on probation orders without verifying them, “then plaintiff will merely have established that the district judges in New Mexico have delegated part of their judicial function to the probation officers who prepare the orders for the judges’ signatures.” Reply at 3. They maintain that it would be “patently unfair” for Judge Purcell to have immunity for an order that he prepared himself and not extend that immunity to those who prepare orders for him, even though state rules authorize others to prepare orders and judgments and such practice is routirife. Reply at 3 & n. 1 (citing NMRA 1-058; NMRA 5-121(A)).

The Defendants further contend that— although Reid alleges in the Response that Hatley, Pautler, and Garcia were not performing a judicial function when they falsified the Arrest Order, knowing that Reid had completed his probation — the FAC does not allege that they knew that Reid had completed his probation, that the Order of Probation was infirm, or that it was facially invalid. See Reply at 3. The Defendants maintain that Hatley, Pautler, and Garcia should enjoy quasi-judicial immunity for enforcing the terms of the Order of Probation. See Reply at 3-4 (citing Valdez v. City & Cnty. of Denver, 878 F.2d at 1286). Although Reid attempts to distinguish Valdez v. City & Cnty. of Denver by asserting that the Defendants in this case were not following a court’s direct order, the Defendants contend that, “whatever questions there might be about Ross and the OOP’s genesis,” Judge Purcell signed the Order of Probation, and Hatley, Pautler, and Garcia “were duty-bound to enforce” it. Reply at 4. Further, they assert that Reid did not allege in the FAC that Hatley, Pautler, and Garcia knew that the Order of Probation contained an illegal sentence of probation, “nor is such an allegation reasonably inferable from the non-conclusory factual allegations” within the FAC. Reply at 4. The Defendants compare their case to Tripati v. U.S.I.N.S., and contend that Ross’ “alleged submission of a new order of probation to Judge Purcell for his signature is functionally similar to the preparation of a pretrial release report,” because “preparation of an order of probation in a case where the judgment and sentence specifically said it was to run consecutively with the sentences in two other cases, is an ‘important part of the judicial process.’ ” Reply at 4-5 (emphasis in original) (quoting Tripati v. U.S.I.N.S., 784 F.2d at 348). Even if Ross was “wrong on the law — a point far from clear given the language” in the CR-139 J & S “and the fact that Devigne simply did not address the circumstances present in the instant case” — the Defendants contend that quasi-judicial immunity should still protect Ross. Reply at 5 (citing Kelly v. Cnty. of Montgomery, 2008 WL 3408123 at *1). The Defendants also rely on Tripati v. U.S.I.N.S., asserting that there is nothing in that case “that suggests that such immunity should not extend to a probation *1094 officer who prepares a probation order at the express or implied direction of a judge,” and on Valdez v. City & Cnty. of Denver, contending that the case “counsels immunity of defendants for all claims arising from their execution of the facially valid” Order of Probation. Reply at 5.

Regarding the qualified immunity defense, the Defendants contend that the FAC “does not allege that any of the defendants knew that plaintiffs ‘legitimate term of probation ended on March 17, 2007’ or that plaintiffs probation under the OOP was illegitimate,” other than the “conclusory — and therefore insufficient— allegations that ‘the conduct of the Defendants was intentional, willful, wanton, and in reckless disregard of the rights of the Plaintiff.’ ” Reply at 6. In the Defendants’ view, the FAC alleges “ho more” than that Hatley, Pautler, and Garcia “enforced a facially valid order signed by Judge Purcell.” Reply at 6. The Defendants argue that they are entitled to qualified immunity, because, under Hill v. Bogans, 735 F.2d 391, 393 (10th Cir.1984), an officer has no constitutional duty to independently determine a warrant’s validity, unless that warrant is facially invalid. See Reply at 7. The Defendants contend that the FAC’s allegation that their conduct was “intentional, willful, wanton, and in reckless disregard of the rights of the Plaintiff’ is conclusory under Ashcroft v. Iqbal, 556 U.S. at 678 , 129 S.Ct. 1937 , and that Brown v. Montoya “appears to be flatly at odds with the conclusion in Iqbal.” Reply at 7. The Defendants argue that the

only explanation discernible to defendants (other than the Brown court simply got it wrong) is that the bad acts of the probation officer defendant in Brown — wrongly directing the plaintiff to register as a sex offender and placing the plaintiff in the sex offender probation unit — were not apparently authorized by the probation order, and that somehow convinced the court that Iqbal’s seemingly contrary holding did not apply under the circumstances.

Reply at 7-8. The Defendants maintain that Trask v. Franco, a case on which Reid relies, does not dictate denial of qualified immunity, because “the ‘fact’ that plaintiff was later discharged from probation on agreement by plaintiffs counsel and the Tenth Judicial District Attorney’s office ... is irrelevant.” Reply at 8 (emphasis in original). Further, they point out that Trask v. Franco involved a motion for summary judgment and not a post — Ash croft v. Iqbal motion to dismiss. See Reply at 8-9. The Defendants assert that Brown v. Montoya'is distinguishable, because the order did not permit the probation officer to order the probationer to register as a sex offender. See Reply at 9.

The Defendants maintain that the Court should dismiss the FAC against Muller, “because it fails to allege sufficient personal involvement in the alleged deprivation of plaintiffs constitutional rights.” Reply at 9. They contend that Reid’s argument for keeping Muller in the case — that a form identifies her as a supervisor — is “insufficient and wholly unsupported by the law.” Reply at 9-10. The Defendants point out that Reid also did not respond to their explanation of why a failure to file a notice pursuant to NMRA 5-805(B) “was of no constitutional consequence” and why State v. Devigne “does not stand for the proposition urged by plaintiff,” and, thus, argue that “the Court may conclude that plaintiff agrees with these arguments.” Reply at 10.

The Defendants direct the Court to McAllister v. District of Columbia, 653 A.2d 849, 851 (D.C.Ct.App.1995), to support their proposition that “the doctrine of absolute judicial or quasi-judicial immunity should be applied to defendant Ross even *1095 if she erred in preparation of the” Order of Probation, “submitting it to Judge Purcell for signature, or presenting it to plaintiff.” Defendants’ Notice of Supplemental Authority at 1, filed September 30, 2013 (Doc. 34) (“Supp”). They contend that McAllis-ter v. District of Columbia also supports their argument that “Pautler, Hatley, Garcia, and Muller had no duty to discover any error in the OOP signed by Judge Purcell.” Supp. at 2 (citing McAllister v. District of Columbia, 653 A.2d at 852 & n. 6).

At the hearing on January 17, 2014, the Defendants described the counts against them in Reid’s FAC, see Tr. at 5:23-6:23 (James), and urged the Court to dismiss all the counts against them based on absolute quasi-judicial immunity or qualified immunity, or to dismiss the counts against Muller based on insufficient personal involvement, see Tr. at 6:24-7:7 (James). The Defendants directed the Court to Tripati v. U.S.I.N.S. and Valdez v. City & Cnty. of Denver, arguing that, as the federal probation officer in Tripati v. U.S.I.N.S. preparing the pretrial report was entitled to absolute quasi-judicial immunity for performing an activity intimately associated with the judicial phase of the criminal process, so too are the Defendants in this case entitled to absolute quasi-judicial immunity for their involvement. See Tr. at 7:7-8:13 (James). The Court asked how the state probation system works; the Defendants explained that state probation officers are “employees of the New Mexico Corrections Department,” that they “are not law enforcement officers, they don’t carry guns,” but that they did not know whether they are housed in a building separate from the court in Tu-eumcari. Tr. at 8:14-9:14 (Court, James). The Defendants asserted that “there is no reason to treat state probation officers differently from federal probation officers.” Tr. at 10:9-11 (James). The Court noted that, if a police officer executed a warrant, he or she may have qualified immunity, but “nobody would suggest that a police officer would have judicial immunity,” and asked how a state probation officer executing a court order would have judicial immunity. Tr. at 10:14-24 (Court). The Defendants said that the probation officer could receive quasi-judicial immunity and that, while the label may not be important, “what’s important is that it’s absolute.” Tr. at 10:25-11:3 (James). The Defendants pointed to Valdez v. City and County of Denver, in which the Tenth Circuit “held that an officer charged with enforcing a facial[ly] valid Court order enjoys absolute immunity and is not required to act as a[n] ... appellate Court and second-guess the judge that issued that order, and in this case there is no allegation that the probation order required was not facially valid.” Tr. at 11:4-10 (James). The Defendants explained that the Tenth Circuit decided Tripati v. U.S.I.N.S. in 1986, Valdez v. City and County of Denver in 1989, and Brown v. Montoya in 2011, but that Valdez v. City and County of Denver is “still good law.” Tr. at 11:20-12:4 (James). The Court said that, if it were to issue an arrest warrant, then the United States Marshals would arrest the person, not the probation officer, and thus it would make sense that the marshals would receive absolute immunity for carrying out the court’s order, although the marshals would not be immune if they violated a person’s constitutional rights during the arrest. See Tr. at 12:18-13:20 (Court). The Defendants agreed that, while the probation officers had a court order to supervise Reid, they could not supervise in an unconstitutional way, “for example, forcing [Reid] to provide a urine sample in public.” Tr. at 13:21-14:7 (James). They argued that they are “entitled to absolute immunity for the arrest because again *1096 they were just enforcing and carrying out and implementing Judge Purcell’s order.” Tr. at 14:13-21 (James). The Court asked whether a probation officer who makes up a story and presents an application to a judge “filled with falsehoods” should be immune just because the judge signs off on the order. Tr. at 14:22-15:8 (Court). The Defendants asserted that, in Tripoli v. U.S.I.N.S., “it was specifically alleged that they made false statements in the reports that were presented to the Court,” which could cover reckless or intentional false statements, and that the Tenth Circuit still found that the probation officers were entitled to absolute immunity. Tr. at 15:9-20 (James, Court).

Regarding the pleading requirements, the Defendants asserted that Reid must make nonconclusory factual allegations to support that they acted maliciously, intentionally, or with bad faith, that he did not make non-conclusory factual allegations about scienter, and that, although Brown v. Montoya “is problematic,” there were facts in Brown v. Montoya “that are absent in this case.” Tr. at 18:1-19:7 (James, Court). The Court noted that, as a district court, it must “take the position of the Tenth Circuit” and that it may be “stuck” with Brown v. Montoya. Tr. at 19:8-21 (Court). The Defendants suggested that they could distinguish Brown v. Montoya, because, in that case, “the probation officer’s actions were clearly outside the scope” of the probation order, including “placing or forcing the defendant to register as a sex offender” and placing him on “sex offender probation.” Tr. at 19:22-20:15 (James, Court). The Court asked how “that is so qualitatively different than going to the judge and saying” that Reid had “five more years of supervised release or probation and making him serve time that he statutorily was not required to serve.” Tr. at 20:22-21:4 (Court). The Defendants noted that Ross submitted the order to Judge Purcell, but she did not participate in the September 7, 2011, arrest, while Hatley, Pautler, Garcia, and Muller followed the terms of the facially valid order. See Tr. at 21:5-17 (James). In the Defendants’ view, Judge Purcell made the order his own after Ross submitted it to him and he signed it, which “can be thought of as an intervening superseding cause of any harm that befell the plaintiff as a result of that order.” Tr. at 22:18-23:1 (James). The Defendants noted that, had Reid challenged the Order of Probation “by appeal or just a hearing with the judge at the time, we wouldn’t be here today,” and argued that it would be “unfair to allow Judge Purcell to be immune from liability for that order” and hold Ross liable for it, “[especially in light of the fact that it’s four and a half years after the fact and Mr. Reid could have appealed or just simply talked to the judge.” Tr. at 23:10-22 (James). The Defendants said the claim against Ross is a procedural due-process claim, and the Court noted that, when a plaintiff has not pursued an available procedural remedy, the plaintiff cannot maintain a procedural due-process claim. See Tr. at 24:1-25:17 (James, Court).

Reid contended that the Order of Probation was not facially valid, because it recites that Reid pled guilty on April 19, 2001, but the supervised probation was to run from March 14, 2007, until March 13, 2012; he argued: “[Ujnder what possible set of circumstances would a Court in 2001 place someone on probation to begin in 2007 for five years? They wouldn’t.” Tr. at 29:11-19 (Frost). Reid explained that, while the parties dispute how long he was incarcerated, he was at most incarcerated for six months. See Tr. at 29:22-30:3 (Frost). The Court noted that the Order of Probation seemed “a little bit unusual,” that it could not remember imposing a *1097 sentence “in 2001 saying in 2007 you’re going to start serving your supervised release,” but that, “effectively I do that all the time in the sense that I say I sentence you to 72 months and following that you’re going to serve five years of supervised release.” Tr. at 30:4-11 (Court). Reid responded that the three judgments show that no one intended Reid to be incarcerated and argued that the Order of Probation was not facially valid. See Tr. at 30:23— 31:7 (Frost). The Court asked why the Order of Probation had to be facially valid; Reid contended that whether it was facially valid is a factor in the qualified immunity or absolute immunity analysis. See Tr. at 31:8-17 (Court, Frost). He explained that “there is a continuum of not what you’re calling a probation officer, but actually what they’re doing on a day-to-day basis,” so that at one end of the continuum, when a probation officer acts like a police officer, he or she is not entitled to absolute immunity, but at the other end of the spectrum, when a court asks a probation officer to complete a presentence report, he or she is part of the judicial decision making process and is entitled to absolute immunity. Tr. at 32:5-33:3 (Frost). Reid argued that, unlike a probation officer preparing a presentence report, the officers in this case made “their own determinations of whether the order should be granted or should not be granted or what should be done. This is not something that’s directed by the Court.” Tr. at 33:3-9(Frost). The Court asked “how do these individual defendants fair with your spectrum analysis” and “when would a probation officer ever, then be entitled judicial immunity.” Tr. at 33:13-17 (Court). Reid responded that a probation officer would be immune in a situation like Valdez v. City and County of Denver; where the probation officer was not involved in any aspect of the court’s decision to have the person arrested, but that “none of the defendants in this case meet that requirement.” Tr. at 33:17-34:2 (Frost). Reid asserted that negligence can serve as the basis for liability in a § 1983 claim based on the Fourth Amendment, although not for a procedural due-process claim. See Tr. at 34:3-21 (Frost) (citing Berg v. Cnty. of Allegheny, 219 F.3d 261 (3rd Cir.2000); Pitchford v. Borough of Munhall, 631 F.Supp.2d 636 (W.D.Pa.2007)). He explained that those cases involved qualified immunity, not absolute immunity, because “I’ve never thought this case was absolute immunity, had anything to do with it. It’s qualified immunity.” Tr. at 35:12-36:2 (Frost). The Court asked if Reid had anything further to say about judicial immunity, and he said that he did not. See Tr. at 36:3-6 (Court, Frost).

The Defendants pointed out that the CR-139 J & S “specifically said that the sentence was to run consecutively” to CR-137 and CR-138, and, thus, Ross was “acting like a scribe of the Court, preparing an order.” Tr. at 36:12-16 (James). They contended that the portion of the Order of Probation that Reid emphasized was “a recital,” and that the “meat of the order still says, You’re on probation till this date, and you probation officers need to enforce[ ] this order.” Tr. at 36:17-20 (James). In the Defendants’ "view, “the responsible parties” for any incorrect probation order were the district attorney, Reid’s then-attorney, and the judge who signed the orders, but that it would not be fair to “mak[e] Ross stand for a suit for damages for these past acts when Reid failed to do anything about it at the time.” Tr. at 36:21-37:4 (James).

Reid contended that none of the Defendants are entitled to absolute immunity, “because first we don’t have a facially valid order, and we have additional evidence as we go through the file over the period of time that there were problems with this *1098 probation.” Tr. at 37:19-35 (Frost). He explained that, in 2007, the court issued orders of discharge in CR-137 and CR-138, showing that Reid “had committed no violations” and that “he’d been a model citizen.” Tr. at 38:2-6 (Frost). He asserted that “somebody looking through the file could have clearly determined that there is something not right here,” because CR-137, CR-138, and CR-139 were “intertwined at every stage of the proceeding.” Tr. at 38:6-11 (Frost). He asked “why wouldn’t somebody ask that if he’s discharged from probation in two other cases why would he continue to be on probation in this one and why would that probation start five years later?” Tr. at 38:11-15 (Frost). He pointed out that “Ross had all the documentation in front of her,” that “Garcia, as he supervised him over a period of three or four years, had available all the information,” and Muller, as Garcia’s supervisor, “participated as a supervisor” when Reid checked in each month and when the probation officer searched his house. Tr. at 39:16-6 (Frost). Reid further argued that it should have “r[u]ng a bell to somebody that something [wa]s not right” when Reid’s conviction was from 2001, “and yet in 2011 he’s going to go to jail.” Tr. at 39:12-16 (Frost). In Reid’s view, the officers had “malicious intent” by arresting Reid, because they could have “easily filed an application with the Court to revoke his probation” and then determined whether he needed to be arrested. Tr. at 39:18-24 (Frost). He contended that they “misrepresented his status and said the reason we’re going to hold him without a bond is because he’s a risk to himself,” “he’s a multiple repeat violat[or] of supervised conditions,” but “[t]hat is simply untrue.” Tr. at 40:2-5 (Frost). In Reid’s view, “not only did they have to ignore the fact that he’s being thrown into jail for something he did 10 years earlier but they falsified and said that he’s subject to hurting himself or others and he’s a multiple violator.” Tr. at 40:5-10 (Frost).

The Defendants asserted that they had probable cause to arrest Reid, because the Order of Probation “authorized and directed the probation officers to test [Reid] for drugs, they tested him for drugs, he came up positive!, and] the order allowed him to be arrested.” Tr. at 40:18-24 (James). They explained that the Arrest Order says that Reid was “a risk to himself,” not that he was a “danger”; they emphasized that “marijuana is illegal,” and one of the reasons it is illegal under federal law and in most states is “because many people thin[k] that the consumption of it poses a risk to self and others.” Tr. at 40:24-41:7 (James).

Moving onto qualified immunity, the Defendants framed the issue in this case as

was it beyond debate in 2007 when Ross prepared and submitted the subject probation order to Judge Purcell that plaintiff had a ... protected right to have Ross question the legality of the judgment and sentence] in [CR-] 139 that stated the ... sentence shall be consecutive to the sentence imposed in [CR-] 137 and [CR-] 138 prior to filling out that standard order of probation? Or state[d] another [way,] would it have been clear to a reasonable probation officer at the time she filled out that order in accordance with the applicable judgment and sentence that she must first independently verify the propriety of the sentence?

Tr. at 42:13-43:8 (James). The Defendants contended that Reid did not provide any

authority for that proposition that [Ross] owed a duty to independently] investigate or that plaintiff as a probationer had the right to have his probation officers do an independent investí- *1099 gation, and for that reason, ... I don’t think he sustained his burden to show that the plaintiffs right in this regard was clearly established.

Tr. at 43:9-16 (James). In their view, even if Ross should have checked to see if the Order of Probation was consistent with the law, the next step involved looking to state law, including N.M. Stat. Ann. § 31-20 -5A and State v. Devigne; the Defendants contended that, although § 31-20-5A indicates that the total period of probation shall not exceed five years, State v. Devigne interprets that statute to mean that the maximum probation for a defendant for convictions that occurred at one trial was five years, while this situation involved three separate cases. See Tr. at 43:16-44:25. (James). The Court asked whether the federal issue is whether a probation officer violates the Constitution of the United States by acting on an incorrect interpretation of state law. See Tr. at 45:21-25 (Court). The Defendants disagreed, reiterating that the federal question is whether Reid has the right to have his probation officer independently verify the correctness of his sentence. See Tr. at 46:1-5 (James). The Defendants contended 'that, even if Ross had attempted to verify Reid’s probation period, “it wasn’t clear as to what was appropriate or not under state law.” Tr. at 56:16-24 (James).

The Defendants framed the federal question against the Defendants, other than Ross, as whether it was “beyond doubt during the period 2007 to 2011 that ... probationers have ... [the] protected right to have their probation officers inde- ■ pendently verify the validity of a facially valid probation order.” Tr. at 47:2-8 (James). The Defendants asserted that Reid could not cite any case to that effect, failing to sustain his burden on the clearly established elemént, and that “Tenth Circuit law is to the contrary.” Tr. at 47:8-16 (James). In the Defendants’ view, Reid’s Response made five state-of-mind allegations that were not in the FAC, including: (i).that the Defendants “intentionally and recklessly imposed an additional five years of probation on plaintiff knowing that his legitimate term of probation ended on March 17, 2007,” Tr. at 48:24-49:5 (citing Response at 6); (ii) that Ross presented the Order of Probation to Judge Purcell “even though she knew the plaintiff had already completed his period of probation,” Tr. at 49:6-10 (James) (citing Response at 3); (iii) that Ross, “knowing that the plaintiff had already completed his five years of probation,” filled out a new Order of Probation and submitted it to the court, Tr. at 49:10-14 (James) (citing Response at 5); (iv) that Hatley, Pautler, and Garcia arrested Reid “knowing that the plaintiff had completed his probation,” Tr. at 49:14-16 (James) (citing Response at 5); and (v) that the Defendants “knew that [Reid’s] period of probation was over and yet proceeded to impose an additional four and a half years of probation and 7 days in jail,” Tr. at 49:17-21 (James) (citing Response at 7). The Defendants argued that Trask v. Franco does not support denying their qualified immunity defense, because the probation order in that case had been rescinded, whereas, in this case, the Defendants acted on what was to them a facially valid probation order that Judge Purcell had signed, and, although Reid was later discharged from the Order of Probation, Garcia’s, Pautler’s, and Hatley’s acts were not improper. See Tr. at 50:7-21 (James).

The Court asked Reid to explain the claims he was making against the Defendants; Reid alleged that every Defendant violated his procedural due-process rights and Fourth Amendment rights to be free from unreasonable searches and seizures. Regarding the procedural due-process claim, he explained that every Defendant had information available that should have *1100 shown them that he should not have had an additional five years of probation. See Tr. at 51:11-23 (Frost, Court). Regarding the Fourth Amendment search claim, Reid explained that, in his view, Ross proximately caused the subsequent searches and seizure, each month he had to go to the probation office for a drug test, he viewed it as a separate violation, and he based the Fourth Amendment seizure claim not only on the seven days he spent in jail, but on a “continuous seizure ... affecting his liberty interest during the entire period of probation.” Tr. at 51:24-53:4 (Frost).

In response to the Court’s question regarding whether Reid could have immediately appealed the Order of Probation, Reid said that there was no hearing in his case, and so neither the district attorney nor Reid’s attorney was involved. Tr. at 54:14-55:14 (Court, Reid). Reid explained that he did not get an attorney to appeal the Order of Probation, because “he’s destitute,” was previously represented through a public defender, and thought that Ross was “shooting him straight.” Tr. at 56:5-11 (Frost). Reid said that he signed the Order of Probation, but that “I' think we can demonstrate that he signed that prior to the judge signing it, so ... by him signing it I think [the Defendants were] representing to the Court that he agrees with that, but they didn’t actually have a hearing where he could express his disagreement with the Court.” Tr. at 56:23-57:5 (Frost). In his view, “[t]his was a circumstance where because of their shoddy procedures^] there was no procedure available for him to do anything without going out and affirmatively hiring his own lawyer and challenging that.” Tr. at 57:10-14 (Frost). The Court asked Reid how a ruling that there was not a procedural due-process violation based on Reid’s failure to appeal the Order of Probation would affect his Fourth Amendment claims; Reid responded that the order was not valid and that the other probation officers should have seen that the order was not valid, meaning that they conducted the searches and seizure without probable cause. See Tr. at 59:19-61:22 (Court, Frost); id. at 63:8-13 (Frost). Reid argued that the Defendants violated the Fourth Amendment, and state law impacts whether the Defendants were acting reasonably; he agreed with the Court that it is federal law, not state law, that governs whether the law is clearly established for the qualified immunity analysis, >and he compared his case to Marshall v. Columbia Lea Regional Hospital, 474 F.3d 733 (10th Cir.2007), and Brown v. Montoya. See Tr. at 63:8-66:1 (Frost, Court).

The Defendants argued that, if the Court finds that there is not a procedural due-process violation, then Valdez v. City and County of Denver and Gose v. Board of County Commissioners, 778 F.Supp.2d 1191 (D.N.M.2011) (Browning, J.), dictates that there are no Fourth Amendment violations. See Tr. at 66:8-18 (James). The Defendants also contended that the FAC, in some places, refers generally to the Defendants rather than to individual Defendants, and that Reid needed to identify with specificity what each Defendant did. See Tr. at 67:18-68:2 (James). The Court asked Reid what he was alleging against Ross; Reid explained that Ross presented the Order of Probation to Reid and then to the court, and that “it’s the presentment to the Court that is the problem from my perspective.” Tr. at 70:14-71:9 (Court, Frost). Reid maintained that, although police officers may ask for consent, this situation was more coercive, because the state court had already directed Reid to follow his probation officer’s orders. See Tr. at 71:15-72:16 (Court, Frost). In Reid’s view, probation officers have “immense power” over probationers, because *1101 “they’ve got so much authority over you[r] day-to-day” activities. Tr. at 73:5-74:3 (Frost).

Regarding Muller, the Defendants reiterated their arguments that Reid did not sufficiently allege that she was personally involved in any alleged constitutional violations, or that she promulgated, created, implemented, or possessed responsibility for any policy that caused the alleged constitutional harm. See Tr. at 74:13-75:8 (James). Reid argued that he named Muller in the FAC, because she supervised Garcia and because the Arrest Order includes a line for her signature as a supervisor, although she did not sign the Arrest Order. See Tr. at 76:18-78:3 (Frost); id. at 79:10-14 (Frost). The Court noted that, for purposes of the MTD, it may have to consider the typed name as sufficient to require Muller to stop any constitutional violations that she sees. See Tr. at 79:22-80:24 (Court, James). The Defendants emphasized that, although Muller’s typed name appears on the Arrest Order, she did not sign it and that Reid might have a case against her if she had signed it. See Tr. at 81:9-82:5 (James, Court). Reid maintained that he is alleging direct involvement, not supervisory liability, against Muller. See Tr. at 82:22-24 (Frost).

The Court said that it agreed with the parties that the analysis for quasi-judicial immunity considers whether the probation officer is performing a judicial function, but it would need to look at the interplay between Judge Purcell’s order and whether the people enforcing the order have immunity. See Tr. at 84:9-85:14 (Court). The Court said that it thought that Reid could have appealed the Order of Probation, which would eliminate liability against Ross, and that it did not think the other probation officers would have any duty to look beyond the Order of Probation. See Tr. at 86:1-87:4 (Court).

In a Minute Order, filed May 24, 2014 (Doc. 45), the Court asked the parties to analyze the following issues related to Reid’s procedural due-process claim against Ross: (i) “[W]hat process did Reid have available before and after the June, 2007, Order of Probation was entered in CR-139, and what authority shows that he had that process available?”; (ii) “What process does the due process clause require Reid to have been given before or after the new Order of Probation was entered?”; and (iii) “How would Ross, an individual, violate Reid’s procedural due process rights?” Minute Order at 1.

In the Plaintiffs Supplemental Brief, filed May 29, 2014 (Doc. 46) (“Reid Supp.”), Reid argues that he “had the right to be present at the hearing extending his probation.” Reid Supp. at 1 (bold and title case omitted). He points to United States v. Santiago, 977 F.2d 517 (10th Cir.1992), and, quoting from the case, asserts that a criminal defendant has a right to confront witnesses and evidence offered against him pursuant to the Sixth Amendment to the Constitution of the United States’ confrontation clause, and that, for any other criminal proceeding, he has a right under the Fifth Amendment to the Constitution of the United States of America’s due process clause “ ‘to be present whenever his presence has a relation, reasonably substantial, to the fullness of his opportunity to defend against the charge,’ ” and that this right to be present “ ‘exists to the extent that a fair and just hearing would be thwarted by his absence, and to that extent only.’ ” Reid Supp. at 1-2 (quoting United States v. Santiago, 977 F.2d at 522 ) (internal quotation marks omitted). He asserts that he had “the right to be present at whatever type of ‘hearing’ was conducted concerning” the Order of Probation, especially because the Order of Probation increased the severity *1102 of the sentence. Reid Supp. at 2 (citing, e.g., United States v. Moree, 928 F.2d 654, 656 (5th Cir.1991) (explaining that a defendant has a right to be present at the imposition of the sentence and to speak on his own behalf, even if he has had the opportunity to speak earlier in the proceedings (quoting United States v. Behrens, 375 U.S. 162, 167 , 84 S.Ct. 295 , 11 L.Ed.2d 224 (1963) (Harlan, J., concurring in the result))); State v. Sommer, 1994-NMCA-070 , 118 N.M. 58 , 878 P.2d 1007 (holding that defendant did not have a right to be present at the hearing on his motion to reconsider his sentence under SCRA 1986, 5-801(B) (effective until August 1, 1992) (repealed 1992), and explaining that neither the New Mexico rules nor the Constitution of the United States of America requires a defendant to be present at post-conviction hearings where a sentence is not imposed); State v. Allen, 1971-NMSC-026 , 82 N.M. 373 , 482 P.2d 237 (stating that, when a defendant’s sentence has been set aside, the defendant’s presence is necessary at resentencing, and that increasing a sentence, after a defendant has started to serve the sentence, violates the constitutional guarantee against double jeopardy)).

Reid acknowledges that “the constitutional right to be present at a hearing, like all constitutional rights, can be waived under the appropriate circumstances,” but he asserts that there is no evidence that he waived his right to be present at a hearing for new Order of Probation. Reid Supp. at 2. In his view, “[h]ad there actually been a hearing before the court” regarding the Order of Probation, he could have informed the Court what he asserts he told Ross — that he believed he had finished his term of probation — and “a judge would likely have looked at the history of the case, known that there was a five (5), [year] limit on probation and been able to refuse to enter the 2007 Order of Probation.” Reid Supp. at 3.

Reid argues that “there is not basis under the New Mexico Statutes for a new or amended Order of Probation that , has the effect of increasing the penalty or adding additional conditions of probation.” Reid Supp. at 3 (citing State v. Castillo, 1980-NMCA-020 , 94 N.M. 352 , 610 P.2d 756 ; State v. Crespin, 1981-NMCA-095 , 96 N.M. 640 , 633 P.2d 1238 ).

In response to the Court’s question what process Reid had available before Judge Purcell entered the Order of Probation in CR-139, the Defendants assert that Reid had the right to counsel and right to be present at his sentencing for CR-139. See Defendants’ Response to Court’s Minute Order at 1-2, filed May 29, 2014 (Doc. 47) (“Defendants’ Supp.”) (citing State v. Garcia, 1980-NMSC-132 , ¶ 15, 95 N.M. 246 , 620 P.2d 1271 (stating that a “defendant’s right to be present at every stage of the trial is grounded in the Sixth Amendment to the United States Constitution and made applicable to the states through the Fourteenth Amendment”); Rule 5-612(A) (“Except as otherwise provided by these rules, the defendant shall be present at all proceedings, including the arraignment, all hearings and conferences, argument, the jury trial and during all communications between the court and the trial jury.”)). The Defendants assert that, after Judge Purcell entered the Order of Probation, Reid could: (i) move to correct or modify the sentence pursuant to rule. 5-801 NMRA, see Defendants’ Supp. at 2; (ii) appeal to the Court of Appeals of New Mexico pursuant to N.M. Stat. Ann. § 39-3-3 , see Defendants’ Supp. at 3 (citing State v. Williams, 2006-NMCA-092 , ¶ 3, 140 N.M. 194 , 141 P.3d 538 (stating that “[t]he grant of probation is a discretionary act of the sentencing court” and setting forth the standard of review for terms and conditions of probation); State v. Diaz, No. 31,288, 2011 WL 5041541 , at *1 (N.M.Ct. *1103 App. Sept. 28, 2011) (unpublished) (stating that the defendant appealed from her order of probation)); (hi) petition for a writ of habeas corpus pursuant to N.M. Stat. Ann. § 44-1-1 , see Defendants’ Supp. at 3; or (iv) petition for writ of habeas relief under 28 U.S.C. § 2241 , see Defendants’ Supp. at 4. The Defendants argue that Reid “clearly had several avenues of relief at least theoretically available to him” in 2007 when Judge Purcell signed the Order of Probation, but that Reid “completely failed to pursue” those avenues of relief “even though he admittedly questioned the vahdity of the probation order at the time.” Defendants’ Supp. at 4.

Next, the Defendants respond to the Court’s question regarding the amount of process that the due process clause requires Reid to have been given before Judge Purcell entered the Order of Probation. See Defendants’ Supp. at 5. They assert that they have “searched in vain for authority explaining what, if any, additional process is due a person already convicted of a crime, and judgment and sentence ■ entered, before the judge signs the order of probation.” Defendants’ Supp. at 5. They explain that,

[bjecause probation limits one’s liberty less than imprisonment, as a matter of logic, it seems that so long as the probationer had been duly convicted, and judgment and sentence entered, no additional process would be due before the sentencing judge signs the order of probation. In any event, the inability of defendants’ counsel to find authority on this issue suggests that whatever procedural due process right claimed by plaintiff to have been violated by Ross by scribing, or Judge Purcell by signing, the order or probation without a hearing, was not “clearly established” in June 2007.

Defendants’ Supp. at 5. The Defendants analogize to the process that is due before extending a probationer’s term 'of probation; they assert that the Third, Fifth, Sixth, Eighth, and Ninth Circuits “have held that a hearing is not constitutionally required prior to the extension of probation.” Defendants’ Supp. at 5 (emphasis in original) (citing Skipworth v. United States, 508 F.2d 598 (3d Cir.1975); United States v. Cornwell, 625 F.2d 686 (5th Cir.1980); Forgues v. United States, 636 F.2d 1125 (6th Cir.1980); United States v. Carey, 565 F.2d 545 (8th Cir.1977); United States v. Silver, 83 F.3d 289 (9th Cir.1996)). The Defendants quote at length from United States v. Silver, in which the Ninth Circuit explained that, “ ‘[wjhile the probationer who has found his period of probation extended does have some restrictions placed upon him, a “grievous loss” has not occurred and a liberty interest has not been so infringed as to require this court to call for additional protections as per the Due Process Clause.’ ” Defendants’ Supp. at 6 (quoting United States v. Silver, 83 F.3d at 292 ). The Defendants note that there is “[n]o Supreme Court or Tenth Circuit authority [that] appears to be controlling on this issue,” but that the Tenth Circuit cited Skipworth v. United States, 508 F.2d 598 (3rd Cir.1975), with “apparent approval” in United States v. Ortiz, 733 F.2d 1416, 1417 (10th Cir.1984). Defendants’ Supp. at 6-7 n. 3. In the Defendants’ view,

to the extent entry of the probation order by Judge Purcell in June 2007 can be conceptualized as an extension of Reid’s probation (and, in a sense, it can because the sentence in CR139 was to run consecutively to the sentences in CR137 and 138), no established law required that Ross (or anyone else) give Reid a hearing before Judge Purcell signed the subject order of probation.

Defendants’ Supp. at 7.

Regarding the amount of process that the Due Process clause required Reid to *1104 have been given after Judge Purcell entered the Order of Probation, the Defendants contend that “[o]ne element of process due a probationer after he or she is placed on probation is that the probationer be given a hearing within a reasonable time after he or she is taken into custody for a probation violation.” Defendants’ Supp. at 7. According to the Defendants, a two-month delay is not unreasonable. See Defendants’ Supp. at 7 (citing, e.g., Morrissey v. Brewer, 408 U.S. 471, 485-89 , 92 S.Ct. 2593 , 33 L.Ed.2d 484 (1972); Gagnon v. Scarpelli, 411 U.S. 778 , 93 S.Ct. 1756 , 36 L.Ed.2d 656 (1973)). They point out that Reid received a hearing within seven days of his arrest for violating his probation. See Defendants’ Supp. at 8.

In response to the Court’s question how an individual violates a probationer’s procedural due-process rights, the Defendants assert that “there exists legal authority for the proposition that an individual may be held personally liable in damages under § 1983 for depriving an individual of his or her constitutional rights under the due process clause of the Fourteenth Amendment.” Defendants’ Supp. at 8 (citing Hafer v. Melo, 502 U.S. 21, 31 , 112 S.Ct. 358 , 116 L.Ed.2d 301 (1991) (explaining that state officials sued in their individual capacities are “persons” within the meaning of § 1983); Brown v. Montoya, 662 F.3d at 1160-61 (recognizing that an individual sued in his individual capacity may be held liable under § 1983 for denying a plaintiff of his right to procedural due process)). According to the Defendants, “the ever-important element of causation in a § 1983 claim ... is missing in plaintiffs due-process-based claim against Ross.” Defendants’ Supp. at 8. They assert that “Judge Purcell’s signing of the subject order of probation scribed by Ross constituted an intervening cause of any harm suffered by plaintiff.” Defendants’ Supp. at 8 (citing Trask v. Franco, 446 F.3d at 1046 (holding that the probation officers’ conduct was not the proximate cause of a plaintiffs injuries “if another act intervened and superseded the officer’s liability for subsequent events”)).

In the Minute Order, the Court also asked the parties to address whether there is’“any authority to show that Reid’s consent to the Order of Probation was not voluntary[.]” Minute Order at 1.

Reid asserts that “[a] criminal defendant cannot voluntarily consent to an illegal order which extends his probation.” Reid Supp. at 3. He asserts that the Supreme Court' of New Mexico addressed this “precise issue” in State v. Crespin, “where the defendant requested the judge allow him to go to a rehab that extended past the period of his probation, instead of being incarcerated for the remaining two (2) months of probation. The Court of Appeals upheld the judge’s refusal to allow the plaintiff to agree to an extension of his probation, because there is no statutory basis for such an extension.” Reid Supp. at 3 4.

The Defendants respond that Reid “may argue that State v. Baldon, 829 N.W.2d 785 (Iowa 2013), supports the proposition that Reid’s consent to the order of probation was not voluntary,” but they contend that “[i]t does not.” Defendants’ Supp. at 9. The Defendants explain that, in State v. Baldón, the Supreme Court of Iowa “concluded that ‘a parole agreement containing a prospective search provision is insufficient evidence to establish consent’ and held that ‘the search provision contained in Baldon’s parole agreement does not represent a voluntary grant of consent within our constitutional meaning.’ ” Defendants’ Supp. at 9 (quoting State v. Baldon, 829 N.W.2d at 802-03 ). The Defendants point out that, in reaching that conclusion, the Supreme Court of *1105 Iowa distinguished parole agreements from probation agreements, because the latter are often obtained through plea bargaining. See Defendants’ Supp. at 9. In the Defendants’ view, “Reid was a probationer, not a parolee, and, represented by counsel, reached a plea deal with the state of New Mexico (according to the judgment and sentence in CR-1B9) that provided for probation ‘under the standard order of probation of this judicial district....’” Defendants’ Supp. at 10. Further, they contend that “Reid’s consent to the probation order and its conditions was purely voluntary,” and, thus, his claims for Fourth Amendment searches and seizures “must fail.” Defendants’ Supp. at 10.

The Court entered a second minute order on June 9, 2014, requesting the parties to brief the following issues:

(i) Regarding the Fourth Amendment seizure claim against Defendant Flyshia Ross, was Plaintiff Richard Reid’s conduct in violating a term of the Order of Probation foreseeable, or was it a superseding intervening cause cutting off Ross’ liability for causing a Fourth Amendment seizure? (ii) Regarding the procedural due process claim against Ross, and assuming that Ross violated Reid’s procedural due process rights by not providing notice and a hearing before Judge Purcell signed the Order of Probation, did Reid have to exhaust his state remedies before bringing an action under 42 U.S.C. § 1983 , such as moving to correct or amend the Order of Probation, appealing the Order of Probation, or filing a petition for a writ of habeas corpus? In the Defendants’ Response to Court’s Minute Order[, filed May 29, 2014 (Doc. 47) ], the Defendants offered to brief issues related to Heck v. Humphrey, 512 U.S. 477 [ 114 S.Ct. 2364 , 129 L.Ed.2d 383 ] (1994), and Wilkinson v. Dotson, 544 U.S. 74 [ 125 S.Ct. 1242 , 161 L.Ed.2d 253 ] (2005), and the Court invites the parties to address these cases, (iii) Regarding thé procedural due process claim against Defendants Gregory Garcia, Susan Pautler, and Wes Hatley, did they fail to provide the process described in Morrissey v. Brewer, 408 U.S. 471 [ 92 S.Ct. 2593 , 33 L.Ed.2d 484 ] (1972), and Gagnon v. Scarpelli, 411 U.S. 778 [ 93 S.Ct. 1756 , 36 L.Ed.2d 656 ] (1973), by failing to provide a preliminary hearing after completing the Arrest Order?

Minute Order, filed June 9, 2014 (Doc. 49).

Regarding the first question — whether Reid’s conduct in violating a probation term was foreseeable to Ross — Reid asserts that “Ross could easily foresee that at some point during his probation the Plaintiff would test positive for marijuana use.” Plaintiffs Supplemental Brief in Opposition to the Defendants’ Motion to Dismiss [Doc. 26] at 1, filed June 12, 2014 (Doc. 50) (“Reid’s Second Supp.”). To demonstrate that his use of marijuana was foreseeable, he points to three facts: (i) he “pled guilty to the distribution of marijuana,” Reid’s Second Supp. at 2 (citing Judgment and Sentence in CR-01-00051, filed in state court October 1, 2001, filed in federal court June 12, 2014 (Doc. 50-1) (“CR-01-051 J & S”)); (ii) the NMCD policy “requires standardized drug screens and outlines the implications to the probationer should they fail a drug test,” Reid’s Second Supp. at 2 (citing New Mexico Corrections Department PPD Substance Abuse Testing for Offenders, dated August 20, 2013, filed June 12, 2014 (Doc. 50-2) (“PPD Substance Abuse Testing”)); and (iii) “it is widely known within the corrections industry that there is an overwhelming correlation between people placed on probation and the use of illegal drugs,” Reid’s Second Supp. at 3 (citing Beth M. Huebner & Jennifer Cobbina, The Effect of Drug Use, Drug Treatment Participation, *1106 and Treatment Completion on Probationer Recidivism, available at http://www. icjia.state.il.us/public/pdf7ResearchReports/ Drug% 20Abuse% 20Treatment% 20and% 20Probationer% 20Recidivism.pdf, first three pages filed June 12, 2014 (Doc. 50-3) (“Huebner Article”)). Reid also contends that, “[l]ike the defendants in Martinez v. Carson, 697 F.3d 1252 (10th Cir.2012), and Trask v. Franco, 446 F.3d 1036 (10th Cir.2006), it was easily foreseeable” that he would, at some point during his five years of probation, test positive for marijuana. Reid’s Second Supp. at 3.

The Defendants state that they were “unable to locate authority standing for the proposition that a probationer’s violation of a term of his or her probation order is foreseeable (or unforeseeable) as a matter of law.” Defendants’ Response to Minute Order of June 9, 2014 at 2, filed June 13, 2014 (Doc. 51) (“Defendants’ Second Supp.”). Responding to Reid’s Second Supp. on the foreseeability issue, they argue that the Court should not consider the documents that Reid attached as exhibits, including CR-01-051 J & S, Substance Abuse Testing, and Huebner & Cobbina, supra, because Reid did not refer to these documents in the FAC and they “are not ‘central’ ” to Reid’s claims. Defendants’ Second Supp. at 11.

Regarding the Court’s second question — whether Reid had to exhaust his state remedies before bringing a § 1983 action — Reid contends that the question “presupposes that the Plaintiff knew that under New Mexico law he could only be placed on probation for five (5) years and that he knew that the 2007 Order of Probation that he was being asked to sign was invalid under New Mexico law and unconstitutional,” but that this presupposition “is not correct.” Reid’s Second Supp. at 3. Reid argues that

[tjhere is no question that had the Plaintiff been aware of his rights under the law, he could have done a lot of things to prevent being placed on an additional five (5) years of probation. He could have refused to sign the Order of Probation. He could have demanded to see the judge or ask for a hearing in association with the Order of Probation. If the judge rejected his argument, he could have appealed the additional Order of Probation to the New Mexico Court of Appeals and, ultimately, to the New Mexico Supreme Court. But, he did not know.

In fact, at the point that the Plaintiff hired an attorney in 2011 it was not because he was aware that he had been on probation for four (4) years longer than he was supposed to, but because he had been thrown in jail and he was trying to get out. It was not until after the district court entered its order discharging him from probation that the Plaintiff was informed by his attorney that he should not have been on probation for the last four (4) years, drug tested or incarcerated for testing positive for marijuana.

Reid’s Second Supp. at 3-4 (citing Stipulated Order at 1). Reid explains that, by the time he discovered that he should not have been on probation, “there was no administrative remedy available to him,” because he had been discharged from probation, an appeal would be moot, and he could not file a declaratory judgment, “because the State agreed that he had been improperly placed on an extra four (4) years of probation.” Reid’s Second Supp. at 4 (citing Log from October 17, 2011 Hearing in CR-139, filed in state court October 17, 2011, filed in federal court June 12, 2014 (Doc. 50-5) (“Oct. 17, 2011 Log”)). Finally, Reid contends that “the Supreme Court and the Tenth Circuit have long held that it is unnecessary to exhaust *1107 administrative remedies prior to pursuing a 1983 claim,” and, while there are exceptions, such as the Prison Litigation Reform Act of 1995, 42 U.S.C. § 1997e(a), no exceptions apply in this case. Reid’s Second Supp. at 4-5 (citing Patsy v. Bd. of Regents, 457 U.S. 496 , 102 S.Ct. 2557 , 73 L.Ed.2d 172 (1982); Hopkins v. Oklahoma Pub. Employees Retirement Sys., 150 F.3d 1155 (10th Cir.1998)). He concludes that, “[d]ue to the Plaintiffs ignorance of New Mexico law and his lack of legal training, he cannot be held to have failed to exhaust administrative remedies concerning the violation of his rights, because he did not know his rights were being violated.” Reid’s Second Supp. at 5. Reid further contends that he has met the Heck v. Humphrey favorable termination requirement:

On October 17, 2011 the district court entered a Stipulated Order of Satisfactory Discharge, which clearly demonstrated the Plaintiff was only to spend five (5) years on probation. See [Stipulated Order]. The actual court log demonstrates that the district court actually stated there were no grounds to keep the Plaintiff on probation any longer. See [Oct. 17, 2011 Log]. The determination by the court and the stipulation by both the Plaintiff and the State that there was no basis for him to be on probation any longer than five (5) years satisfies the Heck standard.

Reid’s Second Supp. at 6-7.

The Defendants respond that Reid had to exhaust his state remedies before bringing his § 1983 action. See Defendants’ Second Supp. at 2. Pointing to Heck v. Humphrey and Wilkinson v. Dotson, 544 U.S. 74 , 125 S.Ct. 1242 , 161 L.Ed.2d 253 (2005), the Defendants assert that Reid cannot maintain his § 1983 action, because Judge Purcell’s order of probation has not been invalidated; although the FAC states that the parties “stipulated to an order discharging the Plaintiff based on fulfilling the terms of probation,” the Defendants argue that

those allegations merely act as an admission that the June 2007 order of probation was never “reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court’s issuance of a writ of habeas corpus”' as required by Heck .

Defendants’ Second Supp. at 3 (quoting Heck v. Humphrey, 512 U.S. at 486-87 , 114 S.Ct. 2364 ). The Defendants explain that the Stipulated Order that Reid references in the Complaint and is attached to Reid’s Second Supp. does not find that Judge Purcell’s order was illegal or invalid, but it “merely ‘orders’ that ‘it further appearing to the Court that the Defendant is, satisfactorily discharged from Supervised Probation.’ ” Defendants’ Second Supp. at 3-4. In the Defendants’ view, the Stipulated Order releasing Reid from supervised release is “not a judicial declaration under Heck that Judge Purcell’s June 2007 order of probation was illegal or invalid.” Defendants’ Second Supp. at 4. The Defendants note that, although Reid is no longer on probation and, thus, does not have a habeas remedy, he cannot avoid Heck v. Humphrey’s favorable termination requirement, because, in their view, he did not act diligently: “[T]here is no allegation that plaintiff, during his alleged five years of wrongful probation, ever sought to avail himself of relief through federal habeas or through other state remedies (although he had at least four such mechanisms to do so).” Defendants’ Second Supp. at 5 (citing Cohen v. Longshore, 621 F.3d 1311 (10th Cir.2010) (“[A] petitioner who has no available remedy in habeas, through no lack of diligence on his part, is not barred by Heck from pursuing a § 1983 claim.” *1108 (emphasis added))). The Defendants argue that

[Requiring diligence in pursuing habeas or state-court remedies for an illegal sentence is consistent with the well-known rule requiring a plaintiff to mitigate his damages — a probationer ought not be allowed to turn a blind eye to his allegedly illegal sentence for a multi-year period (especially when, as here, the probationer questions the validity of the probation at the time it is ordered), then tap the public till by collecting damages for those years he later asserts his liberty was limited and during which he made no effort to pursue habeas relief or relief through state courts.

Defendants’ Second Supp. at 6. Finally, the Defendants contend that Reid’s “position that he can avoid Heck’s exhaustion requirement because he was ignorant of his rights under New Mexico law is flatly contradicted by his allegation that in 2007 ‘Plaintiff questioned the validity of extending his probation any further.’ ” Defendants’ Second Supp. at 11-12 (quoting FAC ¶ 11, at 3). The Defendants emphasize that Reid did not cite any authority supporting his argument that the Stipulated Order “constitutes a declaration of invalidity of Judge Purcell’s June 2007 order of probation of the type required by Heck.” Defendants’ Second Supp. at 12. The Defendants ask the Court not to consider the Oct. 17, 2011 Log, because Reid did not cite to it in the FAC, nor is it central to his claims; further, they contend that it “includes hearsay (and hearsay within hearsay) and is also not the best evidence.” Defendants’ Second Supp. at 11.

Regarding the Court’s third question— whether Garcia, Pautler, and Hatley failed to provide the process described in Morrissey v. Brewer and Gagnon v. Scarpelli by failing to provide a preliminary hearing-Reid notes that the failure to give Reid a hearing within twenty-four hours of incarceration “does not in [and] of itself give rise to a due process claim,” Reid’s Second Supp. at 5 (citing Petaway v. City of New Haven Police Dep't, 541 F.Supp.2d 504, 512 (D.Conn.2008) (stating that the failure to provide arraignment the day of arrest pursuant to statute did not violate due process)), but explains that he must “demonstrate that the delay was both unreasonable and prejudicial,” Reid’s Second Supp. at 5. He explains, because the Tenth Circuit has found that a three-month delay does not violate due process when the plaintiff cannot establish prejudice, see Reid’s Second Supp. at 5 (citing Paul v. McFadin, 117 F.3d 1428 , 1997 WL 407843 (10th Cir.1997) (unpublished)), “[i]t is clear that under no circumstances could the Plaintiff argue that a seven (7) day delay amounts to a due process violation unless he can also demonstrate prejudice,” Reid’s Second Supp. at 5-6. He argues that

[t]here can be no question that the Plaintiff was prejudiced as a result of the seven (7) day delay. Had there been a court review of the Arrest Order leading to his arrest within a couple of days following the arrest, he could have avoided spending four (4) or five (5) days in jail. As a result of the Defendants’ conduct in not notifying the district attorney’s office according to the statute or in some other way ensuring that the issue of his continued incarceration was brought before the court, the Plaintiff spent several additional days incarcerated. Under the circumstances of this case he was not provided with a hearing “as promptly as convenient after arrest”. Morrissey v. Brewer, 408 U.S. 471 [ 92 S.Ct. 2593 , 33 L.Ed.2d 484 ] (1972). In this instance, seven (7) days was a violation of the due process rights.

Reid’s Second Supp. at 6.

The Defendants respond that “neither Morrissey nor Gagnon specify a minimum *1109 period during which the ‘preliminary hearing’ must be provided,” and state that they could not locate any controlling authority that indicates a seven day delay between arrest for a probation violation and the preliminary hearing violates a probationer’s due-process rights. Defendants’ Second Supp. at 7. Although Reid alleges in the FAC that the Defendants failed to provide the proper procedure under SCRA 5-805(B), the Defendants reiterate that such a failure did not result in any harm, because Reid received a hearing within the time specified in the rule, and, further, a failure to follow state law “does not amount to a constitutional violation.” See Defendants’ Second Supp. at 8 n. 5. The Defendants next explain that the hearing which Reid received on September 14, 2011, seven days after he was arrested, “could be considered the ‘preliminary hearing’ or a combined preliminary/final hearing,” because “[njeither Morrissey nor Gagnon foreclose the possibility of the preliminary hearing and the final hearing being consolidated.” Defendants’ Second Supp. at 8 (citing, e.g., Pierre v. Washington State Bd. of Prison Terms & Paroles, 699 F.2d 471, 473 (9th Cir.1983)). Third, the Defendants argue that Reid “was, in effect, given an immediate ‘preliminary hearing’ when Pautler and Hatley, after administering the urine test that came back positive and after having been told by plaintiff that he had consumed marijuana, contacted Garcia on the telephone, and discussed the situation with him.” Defendants’ Second Supp. at 10-11. The Defendants contend that, because Garcia was not “present at the time of the urinalysis and admission,” he “independently evaluated whether probable cause existed for the arrest pending a court hearing.” Defendants’ Second Supp. at 11.

LAW REGARDING RULE 12(b)(6)

Rule 12(b)(6) authorizes a court to dismiss a complaint for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). “The nature of a Rule 12(b)(6) motion tests the sufficiency of the allegations within the four corners of the complaint after taking those allegations as true.” Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir.1994). The sufficiency of a complaint is a question of law, and when considering a rule 12(b)(6) motion, a court must accept as true all well-pled factual allegations in the complaint, view those allegations in the light most favorable to the non-moving party, and draw all reasonable inferences in the plaintiffs favor. See Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. at 322 , 127 S.Ct. 2499 (“[Ojnly if a reasonable person could not draw ... an inference [of plausibility] from the alleged facts would the defendant prevail on a motion to dismiss.”); Smith v. United States, 561 F.3d 1090, 1098 (10th Cir.2009) (“[F]or purposes of resolving a Rule 12(b)(6) motion, we accept as true all well-pled factual allegations in a complaint and view these allegations in the light most favorable to the plaintiff.” (citing Moore v. Guthrie, 438 F.3d 1036, 1039 (10th Cir.2006))).

A complaint need not set forth detailed factual allegations, yet a “pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action” is insufficient. Ashcroft v. Iqbal, 556 U.S. at 678 , 129 S.Ct. 1937 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 , 127 S.Ct. 1955 , 167 L.Ed.2d 929 (2007)). “Threadbare recitals of the elements of a cause of action, supported by mere conclu-sory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. at 678 , 129 S.Ct. 1937 . “Factual allegations must 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).” Bell Atl. Corp. v. *1110 Twombly, 550 U.S. at 555 , 127 S.Ct. 1955 (citation omitted).

To survive a motion to dismiss, a plaintiffs complaint must contain sufficient facts that, if assumed to be true, state a claim to relief that is plausible on its face. See Bell Atl. Corp. v. Twombly, 550 U.S. at 570 , 127 S.Ct. 1955 ; Mink v. Knox, 613 F.3d 995, 1000 (10th Cir.2010). “A claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. at 678 , 129 S.Ct. 1937 (citing Bell Atl. Corp. v. Twombly, 550 U.S. at 556 , 127 S.Ct. 1955 ). “Thus, the mere metaphysical possibility that some plaintiff could prove some set of facts in support of the pleaded claims is insufficient; the complainant must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims.” Ridge at Red Hawk, LLC v. Schneider, 498 F.3d 1174, 1177 (10th Cir.2007) (emphasis omitted). The Tenth Circuit stated:

“[Plausibility” in this context must refer to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs “have not nudged their claims across the line from conceivable to plausible.” The allegations must be enough that, if assumed to be true, the plaintiff plausibly (not just speculatively) has a claim for relief.

Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir.2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. at 570 , 127 S.Ct. 1955 ) (internal citations omitted).

LAW REGARDING THE USE OF DOCUMENTS OUTSIDE THE PLEADINGS IN A RULE 12(b)(6) MOTION

Generally, the sufficiency of a complaint must rest on its contents alone. See Casanova v. Ulibarri, 595 F.3d 1120, 1125 (10th Cir.2010); Gossett v. Barnhart, 139 Fed.Appx. 24, 24 (10th Cir.2005) (unpublished) 7 (“In ruling on a motion to dismiss, the district court is limited to the facts pled in the complaint.”). Emphasizing this point, the Tenth Circuit, in Carter v. Daniels, 91 Fed.Appx. 83 (10th Cir. *1111 2004) (unpublished), stated: “When ruling on a Rule 12(b)(6) motion, the district court must examine only the plaintiffs complaint. The district court must determine if the complaint alone is sufficient to state a claim; the district court cannot review matters outside of the complaint.” 91 Fed.Appx. at 85 . There are three limited exceptions to this general principle: (i) documents that the complaint incorporates by reference, see Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 , 127 S.Ct. 2499 , 168 L.Ed.2d 179 (2007); (ii) “documents referred to in the complaint if the documents are central to the plaintiffs claim and the parties do not dispute the documents’ authenticity,” Jacobsen v. Deseret Book Co., 287 F.3d 936, 941 (10th Cir.2002); and (iii) “matters of which a court may take judicial notice,” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. at 322 , 127 S.Ct. 2499 . In Gee v. Pacheco, 627 F.3d 1178 (10th Cir.2010), the defendants “supported their motion with numerous documents, and the district court cited portions of those motions in granting the [motion to dismiss].” 627 F.3d at 1186 . The Tenth Circuit held that “[s]uch reliance was improper” and that, even if “the district court did not err initially in reviewing the materials, the court improperly relied on them to refute Mr. Gee’s factual assertions and effectively convert the motion to one for summary judgment.” Gee v. Pacheco, 627 F.3d at 1186-87 . In other cases, the Tenth Circuit has emphasized that, “[bjecause the district court considered facts outside of the complaint, however, it is clear that the district court dismissed the claim under Rule 56(c) and not Rule 12(b)(6).” Nard v. City of Okla. City, 153 Fed.Appx. 529 , 534 n. 4 (10th Cir.2005) (unpublished). In Douglas v. Norton, 167 Fed.Appx. 698 (10th Cir.2006) (unpublished), the Tenth Circuit addressed an untimely filed charge with the Equal Employment Opportunity Commission, and the Tenth Circuit analogized the deadline to a statute of limitations. The Tenth Circuit found that, because the requirement was not jurisdictional, the district court should have analyzed the question under rule 12(b)(6), and “because the district court considered evidentiary materials outside of Douglas’ complaint, it should have treated Norton’s motion as a motion for summary judgment.” 167 Fed.Appx. at 704-05 .

The Court has previously ruled that, when a plaintiff references and summarizes statements from defendants in a complaint for the purpose of refuting the statements in the complaint, the Court cannot rely on documents the defendants attach to a motion to dismiss which contain their un-redacted statements. See Mocek v. City of Albuquerque, No. CIV 11-1009 JB/KBM, 2013 WL 312881 , at *50-51 (D.N.M. Jan. 14, 2013) (Browning, J.). The Court in Mocek v. City of Albuquerque reasoned that the statements were neither incorporated by reference nor central to the plaintiffs allegations in the complaint, because the plaintiff cited the statements only to attack their reliability and truthfulness. See 2013 WL 312881 , at *50-51. Additionally, the Court has ruled that, when determining whether a statute of limitations has run in an action alleging fraud and seeking subrogation from a defendant, it may not use interviews and letters attached to a motion to dismiss which evidence that a plaintiff was aware of the defendant’s alleged fraud before the statutory period expired. See Great Am. Ins. Co. v. Crabtree, No. CIV 11-1129 JB/KBM, 2012 WL 3656500 , at *3, *22-23 (D.N.M. Aug. 23, 2012) (Browning, J.). The Court in Great American Insurance Co. v. Crabtree determined that the documents did not fall within any of the Tenth Circuit’s exceptions to the general rule that a complaint must rest on the sufficiency of its contents alone, as *1112 the complaint did not incorporate the documents by reference or refer to the documents. See 2012 WL 3656500 , at *22-23. On the other hand, in a securities class action, the Court has found that a defendant’s operating certification, to which plaintiffs refer in their complaint, and which was central to whether the plaintiffs adequately alleged a loss, falls within an exception to the general rule, and the Court may consider the certification when ruling on the defendant’s motion to dismiss without converting the motion into one for summary judgment. See Genesee Cnty. Emps.’ Retirement Sys. v. Thornburg Mortg. Sec. Trust, 825 F.Supp.2d 1082, 1150-51 (D.N.M.2011) (Browning, J.).

LAW REGARDING DISMISSING CLAIMS UNDER HECK v.

HUMPHREY

In Preiser v. Rodriguez, 411 U.S. 475 , 93 S.Ct. 1827 , 36 L.Ed.2d 439 (1973), the Supreme Court held “that habeas corpus is the exclusive remedy for a state prisoner who challenges the fact or duration of his confinement and seeks immediate or speedier release, even though such a claim may come within the literal terms of § 1983.” Heck v. Humphrey, 512 U.S. at 481 , 114 S.Ct. 2364 (citing Preiser v. Rodriguez, 411 U.S. at 488-90, 93 S.Ct. 1827 ). Justice Scalia 8 stated in Heck v. Humphrey, “We emphasize that Preiser did not create an exception to the ‘no exhaustion’ rule of § 1983; it merely held that certain claims by state prisoners are not cognizable under that provision, and must be brought in habeas corpus proceedings, which do contain an exhaustion requirement.” Heck v. Humphrey, 512 U.S. at 481 , 114 S.Ct. 2364 (emphasis in original). In Heck v. Humphrey, the Supreme Court addressed the issue whether a damages claim that calls into question the lawfulness of conviction or confinement is cognizable under § 1983. See 512 U.S. at 483 , 114 S.Ct. 2364 (“The issue with respect to monetary damages challenging conviction is not, it seems to us, exhaustion; but rather, the same as the issue was with respect to injunctive relief challenging conviction in Preiser : whether the claim is cognizable under § 1983 at all. We conclude that it is not.”).

We hold that, in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court’s issuance of a writ of habeas corpus, 28 U.S.C. § 2254 . A claim for damages bearing that relationship to a conviction or sen- • fence that has not been so invalidated is not cognizable under § 1983. Thus, when a state prisoner seeks damages in *1113 a § 1983 suit, the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated. But if the district court determines that the plaintiffs action, even if successful, will not demonstrate the invalidity of any outstanding criminal judgment against the plaintiff, the action should be allowed to proceed, in the absence of some other bar to the suit.

Heck v. Humphrey, 512 U.S. at 486-87 , 114 S.Ct. 2364 (footnotes omitted) (emphasis in original).

The Supreme Court made it clear that § 1983 does not require a § 1983 plaintiff to first exhaust state remedies:

We do not engraft an exhaustion requirement upon § 1983, but rather deny the existence of a cause of action. Even a prisoner who has fully exhausted available state remedies has no cause of action under § 1983 unless and until the conviction or sentence is reversed, expunged, invalidated, or impugned by the grant of a writ of habeas corpus.

512 U.S. at 489 , 114 S.Ct. 2364 . Justice Thomas, in a concurring opinion, explained the benefit of using the favorable-termination requirement in § 1983 cases:

It is at this point that the malicious-prosecution tort’s favorable-termination requirement becomes helpful, not in dictating the elements of a § 1983 cause of action, but in suggesting a relatively simple way to avoid collisions at the intersection of habeas and § 1983. A state prisoner may seek federal-court § 1983 damages for unconstitutional conviction or confinement, but only if he has previously established the unlawfulness of his conviction or confinement, as on appeal or on habeas. This has the effect of requiring a state prisoner challenging the lawfulness of his confinement to follow habeas’s rules before seeking § 1983 damages for unlawful confinement in federal court, and it is ultimately the Court’s holding today.

512 U.S. at 498 , 114 S.Ct. 2364 (Thomas, J., concurring). He warned, however, that the holding could cause problems for “individuals not ‘in custody’ for habeas purposes’ ”:

If these individuals (people who were merely fined, for example, or who have completed short terms of imprisonment, probation, or parole, or who discover (through no fault of their own) a constitutional violation after full expiration of their sentences), like state prisoners, were required to show the prior invalidation of their convictions or sentences in order to obtain § 1983 damages for unconstitutional conviction or imprisonment, the result would be to deny any federal forum for claiming a deprivation of federal rights to those who cannot first obtain a favorable state ruling. The reason, of course, is that individuals not “in custody” cannot invoke federal habeas jurisdiction, the only statutory mechanism besides § 1983 by which individuals may sue state officials in federal court for violating federal rights. That would be an untoward result.

512 U.S. at 500 , 114 S.Ct. 2364 (Thomas, J., concurring).

In Wilkinson v. Dotson, 544 U.S. 74 , 125 S.Ct. 1242 , 161 L.Ed.2d 253 (2005), the Supreme Court reviewed its cases related to when a prisoner in state custody may pursue a § 1983 claim, and when the prisoner must instead seek federal habeas corpus relief or appropriate state relief. 544 U.S. at 78 , 125 S.Ct. 1242 (citing Preiser v. Rodriguez, 411 U.S. 475 , 93 S.Ct. 1827 , 36 L.Ed.2d 439 (1973); Wolff v. McDonnell, *1114 418 U.S. 539 , 94 S.Ct. 2963 , 41 L.Ed.2d 935 (1974); Heck v. Humphrey, 512 U.S. 477 , 114 S.Ct. 2364 , 129 L.Ed.2d 383 (1994); Edwards v. Balisok, 520 U.S. 641 , 117 S.Ct. 1584 , 137 L.Ed.2d 906 (1997)).

Throughout the legal journey from Preiser to Balisok , the Court has focused on the need to ensure that state prisoners use only habeas corpus (or similar state) remedies when they seek to invalidate the duration of their confinement — either- directly through an injunction compelling speedier release or indirectly through a judicial determination that necessarily implies the unlawfulness of the State’s custody. Thus, Preiser found an implied exception to § 1983’s coverage where the claim seeks — not where it simply “relates to” — “core” habeas corpus relief, i.e., where a state prisoner requests present or future release. Cf. post, at 1253 (Kennedy, J., dissenting) (arguing that Preiser covers challenges that “relate ... to” the duration of confinement). Wolff makes clear that § 1983 remains available for procedural challenges where success in the action would not necessarily spell immediate or speedier release for the prisoner. Heck specifies that a prisoner cannot use § 1983 to obtain damages where success would necessarily imply the unlawfulness of a (not previously invalidated) conviction or sentence. And Balisok , like Wolff , demonstrates that habeas remedies do not displace § 1983 actions where success in the civil rights suit would not necessarily vitiate the legality of (not previously invalidated) state confinement. These cases, taken together, indicate that a state prisoner’s § 1983 action is barred (absent prior invalidation) — no matter the relief sought (damages or equitable relief), no matter the target of the prisoner’s suit (state conduct leading to conviction or internal prison proceedings)— if success in that action would necessarily demonstrate the invalidity of confinement or its duration.

544 U.S. at 81-82 , 125 S.Ct. 1242 (emphasis in- original). The Supreme Court applied these principles in Wilkinson v. Dotson to conclude that the plaintiffs, who were challenging the state procedures used to deny parole eligibility and parole suitability, could bring their § 1983 claims, because “neither prisoner’s claim would necessarily spell speedier release,” and, thus, “neither lies at ‘the core of habeas corpus.’ ” 544 U.S. at 82 , 125 S.Ct. 1242 .

Success for Dotson does not mean immediate release from confinement or a shorter stay in prison; it means at most new eligibility review, which at most will speed consideration of a new parole application. Success for Johnson means at most a new parole hearing at which Ohio parole authorities may, in their discretion, decline to shorten his prison term.

544 U.S. at 82 , 125 S.Ct. 1242 (emphasis in original).

One question remaining after Heck v. Humphrey is “whether the Heck doctrine pertains even when the § 1983 claimant cannot pursue federal habeas corpus because she is not in custody, either because the claimant had never been incarcerated or because a sentence of incarceration had expired.” Martin A. Schwartz, Section 1983 Litigation Claims and Defenses § 10.06[F] Section 1983 and Federal Habe-as Corpus: Solving Preiser-Heck-Ed-wards Puzzles at 10-68.4 to-68.5 (4th ed. 2012-1 Supp.). In Cohen v. Longshore, 621 F.3d 1311 (10th Cir.2010), the Tenth Circuit recognized a circuit split on, the issue, but ultimately held that “a petitioner who has no available remedy in habeas, through no lack of diligence on his part, is not barred by Heck from pursuing a § 1983 claim.” 621 F.3d at 1317 . In that case, the Tenth Circuit reviewed de novo *1115 the district court’s denial of the plaintiffs request for leave to amend his complaint to include a false imprisonment claim; the district court had concluded that the claim “lacked merit because Plaintiff had not invalidated his imprisonment and thus could not recover damages under Heck v. Humphrey.” 621 F.3d at 1315 . The plaintiff argued “that Heck should not bar this action because Plaintiff has no available habeas remedy,” and the Tenth Circuit acknowledged that he had “in fact sought to invalidate his imprisonment through a 28 U.S.C. § 2241 petition but was prevented by his transfer out of Immigration and Customs Enforcement custody, which mooted his habeas claims.” 621 F.3d at 1315 . The Tenth Circuit noted that “[t]he circuits have split on the question of whether the Heck favorable-termination requirement applies when the plaintiff lacks an available habeas remedy,” 621 F.3d at 1315 , based in part on a footnote in Heck v. Humphrey, in which the Supreme Court stated that “ ‘the principle barring collateral attacks — a longstanding and deeply rooted feature of both the common law and our own jurisprudence — is not rendered inapplicable by the fortuity that a convicted criminal is no longer incarcerated,’ ” 621 F.3d at 1315 (quoting Heck v. Humphrey, 512 U.S. at 490 n. 10, 114 S.Ct. 2364 ). “Based on this dicta and the Court’s broad language in its holding, several circuits have held that the Heck favorable-termination requirement prevents § 1983 claims for damages even when brought by petitioners whose release from custody has made habeas relief unavailable.” Cohen v. Longshore, 621 F.3d at 1315 (citing cases from the First, Third, Fifth, and Eighth Circuits). The Tenth Circuit pointed to other circuits that have “reached the opposite conclusion” based on the Supreme Court’s decision in Spencer v. Kemna, 523 U.S. 1 , 118 S.Ct. 978 , 140 L.Ed.2d 43 (1998). Cohen v. Longshore, 621 F.3d at 1316 (citing cases from the Second, Fourth, Sixth, Seventh, Ninth, and Eleventh Circuits).

In Spencer , a majority of the Court affirmed the dismissal for mootness of a habeas claim brought by a petitioner who was no longer in custody because the petitioner had failed to show that he suffered continuing collateral consequences from his parole revocation following his release. [523 U.S.] at 14-16, 118 S.Ct. 978 In a concurrence, four Justices articulated an additional reason why this result was correct — “a former prisoner, no longer ‘in custody,’ may bring a § 1983 action establishing the unconstitutionality of a conviction or confinement without being bound to satisfy a favorable-termination requirement that it would be impossible as a matter of law for him to satisfy,” and thus “the answer to Spencer’s argument that his habeas claim cannot be moot because Heck bars him from relief under § 1983 is that Heck has no such effect.” Id. at 21, 118 S.Ct. 978 (Souter, J., concurring). Justice Stevens dissented from the majority opinion, concluding that the case should not be moot based on the petitioner’s interest in vindicating his reputation. Id. at 22-25 , 118 S.Ct. 978 (Stevens, J., dissenting). He agreed with the concurring Justices, however, that a petitioner without a remedy under the habeas statute may bring an action under § 1983. Id. at 25 n. 8, 118 S.Ct. 978 .

After discussing the Court’s state- ■ ments in Heck and Spencer , the Fourth Circuit explained that its decision to follow the reasoning of the five-justice plurality in Spencer was informed by equitable concerns and consideration of the purpose of § 1983. Wilson [v. Johnson], 535 F.3d [262,] 268 [ (4th Cir.2008)]. The court noted that the purpose of § 1983 is to “provid[e] litigants *1116 with ‘a uniquely federal remedy against incursions ... upon rights secured by the Constitution and laws of the Nation,’ ” and that “[bjarring [the plaintiffs] claim would leave him without access to any judicial forum in which to seek relief for his alleged wrongful imprisonment.” Id. (quoting Wilson v. Garcia, 471 U.S. 261, 272-73 , 105 S.Ct. 1988 , 85 L.Ed.2d 254 (1985)[, superseded by 28 U.S.C. § 1658 as stated in Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369 , 124 S.Ct. 1836 , 158 L.Ed.2d 645 (2004) ]). The Fourth Circuit then explained that it simply “d[id] not believe that a habeas ineligible former prisoner seeking redress for denial of his most precious right — freedom—should be left without access to a federal court.” Id. Similarly, the Eleventh Circuit reasoned in Harden [v. Pataki, 320 F.3d 1289 (11th Cir.2003),] that, “because federal habeas corpus is not available to a person extradited in violation of his or her federally protected rights, even where the extradition itself was illegal, § 1983 must be” available to redress an unconstitutional extradition. Harden, 320 F.3d at 1299 .

Cohen v. Longshore, 621 F.3d at 1316 . Noting that the Supreme Court has not settled the issue, see 621 F.3d at 1316 (citing Muhammad v. Close, 540 U.S. 749 , 752 n. 2, 124 S.Ct. 1303 , 158 L.Edüd 32 (2004) (stating that “[mjembers of the Court have expressed the view that unavailability of habeas for other reasons may also dispense with the Heck requirement,” but that “[t]his case is no occasion to settle the issue”)), the Tenth Circuit stated that, “in light of the fact that Heck involved a petitioner who was still incarcerated,” it was “not persuaded that Heck must be applied to petitioners without a habeas remedy,” 621 F.3d at 1316 . The Tenth Circuit concluded that “a petitioner who has no available remedy in habeas, through no lack of diligence on his part, is not barred by Heck from, pursuing a § 1983 claim,” and held that the district court “erred in holding that Plaintiffs false imprisonment claim lacked merit where Plaintiffs prior attempt to obtain a favorable termination in habeas was dismissed based on mootness.” 621 F.3d at 1317 . See Carbajal v. Hotsenpiller, 524 Fed.Appx. 425, 428 (10th Cir.2013) (unpublished) (“A plaintiffs inability to obtain habeas relief lifts the Heck bar only if that ‘inability is not due to the petitioner’s own lack of diligence.’ ”). In Carbajal v. Hotsenpiller, 524 Fed.Appx. 425 (10th Cir.2013) (unpublished), the Tenth Circuit applied the rule from Cohen v. Longshore and affirmed a district court’s application of Heck v. Humphrey to bar the plaintiffs § 1983 claim. See 524 Fed.Appx. at 428 . Even though the plaintiff was not in custody and thus could not pursue a habeas remedy, the Tenth Circuit “agree[d] with the district court that [the plaintiffs] actions evince a lack of diligence,” because “the complaint is clear that Carbajal was aware of the claimed defects in the investigation that led to his convictions in 2000, but only set out to investigate in 2010.” 524 Fed.Appx. at 428 .

The Heck v. Humphrey bar also “applies to proceedings that call into question the fact or duration of parole or probation.” Crow v. Penry, 102 F.3d 1086, 1087 (10th Cir.1996) (per curiam). In Crow v. Penny, the plaintiff brought a suit under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 , 91 S.Ct. 1999 , 29 L.Ed.2d 619 (1971) (“Bivens ”), 9 “against *1117 his probation officer, the Probation Department of the District Court, and the United States Parole Commission,” alleging that the defendants violated “his constitutional rights against unreasonable searches or seizures and due process of law.” 102 F.3d at 1087 . “He sought damages for his arrest as a parole violator and his subsequent incarceration, the revocation of his parole and the ensuring additional period of incarceration.” 102 F.3d at 1087 . Four months after the district court dismissed the complaint, the plaintiff filed a motion for leave to file an amended complaint, which the district court dismissed “as untimely and unjustified.” 102 F.3d at 1087 . On appeal, the Tenth Circuit concluded that the plaintiffs

§ 1983 claim is barred by Heck v. Humphrey, ... which held that to recover damages for an unconstitutional conviction or imprisonment a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by an authorized state tribunal, or called into question by a federal court’s issuance of a writ of ha-beas corpus. Heck applies to Bivens actions. Stephenson v. Reno, 28 F.3d 26 (5th Cir.1994). It applies to proceedings that call into question the fact or duration of parole or probation. Jackson v. Vannoy, 49 F.3d 175 (5th Cir.), cert. denied, 516 U.S. 851 , 116 S.Ct. 148 , 133 L.Ed.2d 93 (1995).

Crow’s claim necessarily implies the invalidity of his parole revocation. He alleges that the probation officer and others conspired to have the search and arrest warrants issued and that the probation officer falsely testified at his probation revocation hearing. The civil claim for damages amounts to a collateral attack on his parole revocation and subsequent- incarceration. Heck does not permit this.

Crow v. Penry, 102 F.3d at 1087 .

When Heck v. Humphrey bars a claim, “the dismissal should be without prejudice.” Fottler v. United States, 73 F.3d 1064, 1065 (10th Cir.1996). See McDow v. Gonzales, CIV 07-1266 JB/WPL, 2008 WL 5979833 (D.N.M. Sept. 30, 2008) (Browning, J.) (“Although a dismissal under Rule 12(b)(6) for failure to state a claim is generally with prejudice, when a § 1983 claim is dismissed under Heck , the dismissal is without prejudice.” (emphasis in original)), aff'd, 330 Fed.Appx. 765 (10th Cir.2009).

LAW REGARDING LIABILITY FOR CONSTITUTIONAL VIOLATIONS UNDER 42 U.S.C. § 1983

Section 1983 of Title 42 of the United States Code provides:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, 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, except that in any action brought against a judicial officer for an act or omission taken in such *1118 officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.

42 U.S.C. § 1983 . “To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 , 108 S.Ct. 2250 , 101 L.Ed.2d 40 (1988). Individual, non-supervisory defendants may be liable if they knew or reasonably should have known that their conduct would lead to the deprivation of a plaintiffs constitutional rights by others, and an unforeseeable intervening act has not terminated their liability. See Martinez v. Carson, 697 F.3d 1252, 1255 (10th Cir.2012) (“The requisite causal connection is satisfied if [the defendants] set in motion a series of events that [the defendants] knew or reasonably should have known would cause others to deprive [the plaintiffs] of [their] constitutional rights.”) (quoting Trask v. Franco, 446 F.3d 1036, 1046 (10th Cir.2006)). The Supreme Court has made clear that there is no respondeat superior liability under 42 U.S.C. § 1983 . See Ashcroft v. Iqbal, 556 U.S. 662, 675 , 129 S.Ct. 1937 , 173 L.Ed.2d 868 (2009) (“Because vicarious liability is inapplicable to Bivens [v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 , 91 S.Ct. 1999 , 29 L.Ed.2d 619 (1971),] and § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official’s own individual actions, has violated the Constitution.”); Bd. of Cnty. Comm’rs v. Brown, 520 U.S. 397, 403 , 117 S.Ct. 1382 , 137 L.Ed.2d 626 (1997). “An entity cannot be held liable solely on the basis of the existence of an employer-employee relationship with an alleged tortfeasor.” Garcia v. Casuas, No. CIV 11-0011 JB/RHS, 2011 WL 7444745 , at *25 (D.N.M. Dec. 8, 2011) (Browning, J.) (citing Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 689 , 98 S.Ct. 2018 , 56 L.Ed.2d 611 (1978)). Supervisors can be held liable only for their own unconstitutional or illegal policies, and not for the employees’ tortious acts. See Barney v. Pulsipher, 143 F.3d 1299, 1307-08 (10th Cir.1998).

1. Color of State Law.

“Under Section 1983, liability attaches only to conduct occurring ‘under color of law.’ ” Gallagher v. Neil Young Freedom Concert, 49 F.3d 1442, 1447 (10th Cir.1995). The under-color-of-state-law requirement is a “jurisdictional requisite for a § 1983 action, which ... furthers the fundamental goals of preserving an area of individual freedom by limiting the reach of federal law ... and avoiding imposing on the state, its agencies or officials, responsibility for conduct for which they cannot fairly be blamed.” Jojola v. Chavez, 55 F.3d 488, 492 (10th Cir.1995). “The traditional definition of acting under color of state law requires that the defendant in a § 1983 action have exercised power ‘possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.’ ” West v. Atkins, 487 U.S. at 49 , 108 S.Ct. 2250 (quoting United States v. Classic, 313 U.S. 299, 326 , 61 S.Ct. 1031 , 85 L.Ed. 1368 (1941)). “The authority with which the defendant is allegedly ‘clothed’ may be either actual or apparent.” Jojola v. Chavez, 55 F.3d at 493 . Accordingly, at a base level, to find that an action was taken under color of state law, the court must find that “ ‘the conduct allegedly causing the deprivation of a federal right’ must be ‘fairly attributable to the State.’ ” Gallagher v. Neil Young Freedom Concert, 49 *1119 F.3d at 1447 (quoting Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 , 102 S.Ct. 2744 , 73 L.Ed.2d 482 (1982)).

In the context of a public employee, the Tenth Circuit has directed that, while “ ‘state employment is generally sufficient to render the defendant a state actor .... [,]’ at the same time, it is ‘well settled that an otherwise private tort is not committed under color of law simply because the tortfeasor is an employee of the state.’ ” Jojola v. Chavez, 55 F.3d at 493 (quoting Lugar v. Edmondson Oil Co., 457 U.S. at 935-36 n. 18, 102 S.Ct. 2744 ; Mark v. Borough of Hatboro, 51 F.3d 1137, 1150 (3d Cir.1995)). Thus, “before conduct may be fairly attributed to the state because it constitutes action ‘under color of state law,’ there must be ‘a real nexus’ between the employee’s use or misuse of their authority as a public employee, and the violation allegedly committed by the defendant.” Jojola v. Chavez, 55 F.3d at 493 . What constitutes the required real nexus, however, is not completely clear. As the Tenth Circuit has stated, whether there is a real nexus in a particular case depends on the circumstances:

The under color of law determination rarely depends on a single, easily identifiable fact, such as the officer’s attire, the location of the act, or whether or not the officer acts in accordance with his or her duty. Instead one must examine “the nature and circumstances of the officer’s conduct and the relationship of that conduct to the performance of his official duties.”

David v. City & Cnty. of Denver, 101 F.3d 1344 , 1353 (10th Cir.1996) (internal citations omitted) (quoting Martinez v. Colon, 54 F.3d 980, 986 (1st Cir.1995)).

2. Individual Liability.

Government actors may be liable for the constitutional violations that another committed, if the actors “set in motion a series of events that the defendant knew or reasonably should have known would cause others to deprive the plaintiff of her constitutional rights,” thus establishing the “requisite causal connection” between the government actor’s conduct and a plaintiffs constitutional deprivations. Trask v. Franco, 446 F.3d at 1046 . The Tenth Circuit has explained that § 1983 liability should be “‘read against the background of tort liability that makes a man responsible for the natural consequences of his actions.’ ” Martinez v. Carson, 697 F.3d at 1255 (quoting Monroe v. Pape, 365 U.S. 167, 187 , 81 S.Ct. 473 , 5 L.Ed.2d 492 (1961), overruled in part by Monell v. Dep’t of Soc. Servs., 436 U.S. 658 , 98 S.Ct. 2018 , 56 L.Ed.2d 611 (1978)). “Thus, Defendants are liable for the harm proximately caused by their conduct.” Martinez v. Carson, 697 F.3d at 1255 (citing Trask v. Franco, 446 F.3d at 1046 ). As the Court has previously concluded: “[A] plaintiff who establishes liability for deprivations of constitutional rights actionable under 42 U.S.C. § 1983 is entitled to recover compensatory damages for all injuries suffered as a consequence of those deprivations. The recovery should be guided by common-law tort principles — including principles of causation .... ” Train v. City of Albuquerque, 629 F.Supp.2d 1243, 1251 (D.N.M.2009) (Browning, J.).

The Tenth Circuit has found liability for those defendants who proximately caused an injury complained-of under § 1983 and stated that the fact that the “conduct of other people may have concurrently caused the harm does not change the outcome as to [the defendant],” so long as there was not a superseding-intervening cause of a plaintiffs harm. Lippoldt v. Cole, 468 F.3d 1204, 1220 (10th Cir.2006).

*1120 Even if a factfinder concludes that the residential search was unlawful, the officers only “would be liable for the harm ‘proximately’ or ‘legally’ caused by their tortious conduct.” Bodine v. Warwick, 72 F.3d 393, 400 (3d Cir.1995). “They would not, however, necessarily be liable for all of the harm caused in the ‘philosophic’ or but-for sense by the illegal entry.” Id. In civil rights eases, a superseding cause, as we traditionally understand it in tort law, relieves a defendant of liability. See, e.g., Warner v. Orange County Dep’t of Prob., 115 F.3d 1068, 1071 (2d Cir.1997); Springer v. Seaman, 821 F.2d 871, 877 (1st Cir.1987), abrogated on other grounds by Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701 , 109 S.Ct. 2702 , 105 L.Ed.2d 598 (1989).

Trask v. Franco, 446 F.3d at 1046 . Thus, in the context of a claim under the Fourth Amendment, the Tenth Circuit has held that government actors “may be held liable if the further unlawful detention and arrest would not have occurred but for their conduct and if there were no unforeseeable intervening acts superseding their liability.” Martinez v. Carson, 697 F.3d at 1255 . The Tenth Circuit gave an example of a superseding intervening cause, quoting the Honorable Samuel J. Alito, then-Circuit Judge for the United States Court of Appeals for the Third Circuit, now-Associate Justice for the Supreme Court:

Suppose that three police officers go to a suspect’s house to execute an arrest warrant and that they improperly enter without knocking and announcing their presence. Once inside, they encounter the suspect, identify themselves, show him the warrant, and tell him that they are placing him under arrest. The suspect, however, breaks away, shoots and kills two of the officers, and is preparing to shoot the third officer when that officer disarms the suspect and in the process injures him. Is the third officer necessarily liable for the harm caused to the suspect on the theory that the illegal entry without knocking and announcing rendered any subsequent use of force unlawful? The obvious answer is “no.” The suspect’s conduct would constitute a “superseding” cause, see Restatement (Second) of Torts § 442 (1965), that would limit the officer’s liability. See id. § 440.

Trask v. Franco, 446 F.3d at 1046 (quoting Bodine v. Warwick, 72 F.3d at 400 ). Additionally, “ ‘[foreseeable intervening forces are within the scope of the original risk, and ... will not supersede the defendant’s responsibility.” Trask v. Franco, 446 F.3d at 1047 (quoting W. Page Keeton et al., Prosser and Keeton on Torts § 44, at 303-04 (5th ed.1984)). If

the reasonable foreseeability of an inter--vening act’s occurrence is a factor in determining whether the intervening act relieves the actor from liability for his antecedent wrongful act, and under the undisputed facts there is room for reasonable difference of opinion as to whether such act was wrongful or foreseeable, the question should be left for the jury.

Trask v. Franco, 446 F.3d at 1047 (citing Restatement (Second) of Torts § 453 cmt. b (1965)).

3. Supervisory Liability.

The Tenth Circuit has held that supervisors are not liable under 42 U.S.C. § 1983 unless there is “ ‘an affirmative link ... between the constitutional deprivation and either the supervisor’s personal participation, [ ] exercise of control or direction, or [ ] failure to supervise.’ ” Gallagher v. Shelton, 587 F.3d 1063, 1069 (10th Cir.2009) (quoting Green v. Branson, 108 F.3d 1296, 1302 (10th Cir.1997)) (internal alterations omitted). Because supervisors can *1121 be held liable only for their own constitutional or illegal policies, and not for the torts that their employees commit, supervisory liability requires a showing that such policies were a “deliberate or conscious choice.” Barney v. Pulsipher, 143 F.3d at 1307-08 (citations omitted) (internal quotation marks omitted). Cf. Bd. of Cnty. Comm’rs v. Brown, 520 U.S. at 404, 117 S.Ct. 1382 (“[I]t is not enough for a § 1983 plaintiff merely to identify conduct properly attributable to the municipality. The plaintiff must also demonstrate that, through its deliberate conduct, the municipality was the ‘moving force’ behind the injury alleged.” (emphasis in original)).

The Tenth Circuit has recognized that Ashcroft v. Iqbal limited, but did not eliminate, supervisory liability for government officials based on an employee’s or subordinate’s constitutional violations. See Garcia v. Casuas, 2011 WL 7444745 , at *25-26 (citing Dodds v. Richardson, 614 F.3d 1185 (10th Cir.2010)). The language that may have altered the landscape for supervisory liability in Ashcroft v. Iqbal is as follows: “Because vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official’s own individual actions, has violated the Constitution.” 556 U.S. at 676 , 129 S.Ct. 1937 . The Tenth Circuit in Dodds v. Richardson held:

Whatever else can be said about Iqbal , and certainly much can be said, we conclude the following basis of § 1983 liability survived it and ultimately resolves this case: § 1983 allows a plaintiff to impose liability upon a defendant-supervisor who creates, promulgates, implements, or in some other way possesses responsibility for the continued operation of a policy the enforcement (by the defendant-supervisor or her subordinates) of which “subjects, or causes to be subjected” that plaintiff “to the deprivation of any rights ... secured by the Constitution.... ”

614 F.3d at 1199 . The Tenth'Circuit noted that Ashcroft v. Iqbal “does not purport to overrule existing Supreme Court precedent,” but stated that “Iqbal may very well have abrogated § 1983 supervisory liability as we previously understood it in this circuit in ways we do not need to address to resolve this case.” Dodds v. Richardson, 614 F.3d at 1200 . It concluded that Ashcroft v. Iqbal did not alter “the Supreme Court’s previously enunciated § 1983 causation and personal involvement analysis.” Dodds v. Richardson, 614 F.3d at 1200 . The Tenth Circuit, based on this conclusion, set forth a test for supervisory liability under § 1983 after Ashcroft v. Iqbal:

A plaintiff may [ ] succeed in a § 1983 suit against a defendant-supervisor by demonstrating: (1) the defendant promulgated, created, implemented or possessed responsibility for the continued operation of a policy that (2) caused the complained of constitutional harm, and (3) acted with the state of mind required to establish the alleged constitutional deprivation.

Dodds v. Richardson, 614 F.3d at 1199 -1200 (citing Summum v. City of Ogden, 297 F.3d 995, 1000 (10th Cir.2002)). The Tenth Circuit noted, however: “We do not mean to imply that these are distinct analytical prongs, never to be intertwined.” 614 F.3d at 1200 n. 8. Relying on the Supreme Court’s opinion in Bd. of Cnty. Comm’rs v. Brown, the Tenth Circuit reasoned that two of the prongs often, if not always, are sufficient proof that the third prong has been met also:

Where a plaintiff claims that a particular municipal action itself violates federal law, or directs an employee to do so, resolving these issues of fault and causa *1122 tion is straightforward. Section 1988 itself contains no state-of-mind requirement independent of that necessary to state a violation of the underlying federal right. In any § 1983 suit, however, the plaintiff must establish the state of mind required to prove the underlying violation. Accordingly, proof that a municipality’s legislative body or authorized decisionmaker has intentionally deprived a plaintiff of a federally protected right necessarily establishes that the municipality acted culpably. Similarly, the conclusion that the action taken or directed by the municipality or its authorized decisionmaker itself violates federal law will also determine that.the municipal action was the moving force behind the injury of which the plaintiff complains.

Dodds v. Richardson, 614 F.3d at 1200 n. 8 (quoting Bd. of Cnty. Comm’rs v. Brown, 520 U.S. at 404-05, 117 S.Ct. 1382 ) (internal quotation marks omitted). The Tenth Circuit noted that “[w]e think the same logic applies when the plaintiff sues a defendant-supervisor who promulgated, created, implemented or possessed responsibility for the continued operation of a policy that itself violates federal law.” Dodds v. Richardson, 614 F.3d at 1200 n. 8. Thus, the Tenth Circuit reduced the test to what can be seen as a two-part test for supervisor liability, requiring the plaintiff to prove “an ‘affirmative’ link ... between the unconstitutional acts by their subordinates and their ‘adoption of any plan or policy ... — express or otherwise — showing their authorization or approval of such misconduct.’ ” Dodds v. Richardson, 614 F.3d at 1200 -01 (quoting Rizzo v. Goode, 423 U.S. 362, 371 , 96 S.Ct. 598 , 46 L.Ed.2d 561 (1976)).

4. Municipal Liability.

A municipality will not be held liable under § 1983 solely because its officers inflicted injury. See Graves v. Thomas, 450 F.3d 1215, 1218 (10th Cir.2006). Rather, to establish municipal liability under § 1983, a plaintiff must demonstrate: (i) that an officer committed an underlying constitutional violation; (ii) that a municipal policy or custom exists; and (iii) that there is a direct causal link between the policy or custom and the injury alleged. See Graves v. Thomas, 450 F.3d at 1218 . When a claim is brought against a municipality for failing to train its officers adequately, the plaintiff must show that the municipality’s inaction was the result of deliberate indifference to the rights of its inhabitants. See Graves v. Thomas, 450 F.3d at 1218 .

LAW REGARDING ABSOLUTE IMMUNITY

In cases against federal officials for violating the Constitution or of acting outside their federal statutory authority, “the officials ‘in general are not absolutely immune ... unless they are performing a narrowly defined judicial, executive, or legislative function.’” Tripati v. U.S.I.N.S., 784 F.2d at 347 (alterations in original) (quoting Strothman v. Gefreh, 739 F.2d 515, 520 (10th Cir.1984)). The Supreme Court takes a “functional approach” to identify the “governmental functions that were historically viewed as so important and vulnerable to interference by means of litigation that some form of absolute immunity from civil liability was needed to ensure that they are performed ‘with independence and without fear of consequences.’ ” Rehberg v. Paulk, — U.S. -, 132 S.Ct. 1497, 1503 , 182 L.Ed.2d 593 (2012) (quoting Pierson v. Ray, 386 U.S. 547, 554 , 87 S.Ct. 1213 , 18 L.Ed.2d 288 (1967)) (secondary quotation marks omitted).

Taking this approach, we have identified the following functions that are absolute *1123 ly immune from liability for damages under § 1983: actions taken by legislators within the legitimate scope of legislative authority; actions taken by judges within the legitimate scope of judicial authority; actions taken by prosecutors in their role as advocates; and the giving of testimony by witnesses at trial. By contrast, the Court has found no absolute immunity for the acts of the chief executive officer of a State, the senior and subordinate officers of a State’s National Guard, the president of a state university, school board members, the superintendent of a state hospital, police officers, prison officials and officers, and private co-conspirators of a judge.

Rehberg v. Paulk, 132 S.Ct. at 1503 (citations omitted). The Tenth Circuit has also identified that officials may be absolutely immune for some functions, but only quali-fiedly immune for others:

Judges are protected by absolute immunity in civil rights actions from liability based on their judicial actions. At the same time, only qualified immunity protects a judge’s decision to fire a probation officer. Absolute immunity also protects prosecutors from damages arising from the presentation of testimony at a criminal trial. But prosecutors are only qualifiedly immune when they give legal advice to policemen. Police officers are absolutely immune from a suit for damages for their testimony at a criminal trial, even if the testimony is perjurious. However, because of the functional difference in the activities at issue, a police officer seeking an arrest warrant may only claim the protection of qualified immunity.

Mee v. Ortega, 967 F.2d 423, 425 (10th Cir.1992) (citations omitted).

1. Judicial Immunity for Judges.

“Judges of courts of superior or general jurisdiction are not liable to civil actions for their judicial acts, even when such acts are in excess of their jurisdiction, and are alleged to have been done maliciously or corruptly.” Stump v. Sparkman, 435 U.S. 349, 355-56 , 98 S.Ct. 1099 , 55 L.Ed.2d 331 (1978). That same immunity continues even if the judge’s “exercise of authority is flawed by the commission of grave procedural errors.” Stump v. Sparkman, 435 U.S. at 359 , 98 S.Ct. 1099 . The Supreme Court has emphasized that a judge’s immunity from § 1983 liability “is overcome in only two sets of circumstances. First, a judge is not immune from liability for nonjudicial acts, ie., actions not taken in the judge’s judicial capacity. Second, a judge is not immune for actions, though judicial in nature, taken in the complete absence of all jurisdiction.” Mireles v. Waco, 502 U.S. 9, 11-12 , 112 S.Ct. 286 , 116 L.Ed.2d 9 (1991) (citations omitted). The Supreme Court has also held that absolute judicial immunity was not affected or abolished “by § 1983, which makes liable ‘every person’ who under col- or of law deprives another person of his civil rights.” Pierson v. Ray, 386 U.S. 547, 554 , 87 S.Ct. 1213 , 18 L.Ed.2d 288 (1967), overruled in part on other grounds by Harlow v. Fitzgerald, 457 U.S. 800 , 102 S.Ct. 2727 , 73 L.Ed.2d 396 (1982).

Absolute judicial immunity is immunity from suit altogether. See Mireles v. Waco, 502 U.S. at 11, 112 S.Ct. 286 (citing Mitchell v. Forsyth, 472 U.S. 511, 526 , 105 S.Ct. 2806 , 86 L.Ed.2d 411 (1985)). Judges are not entitled to absolute judicial immunity for non judicial acts, ie., acts taken that are not in the judge’s judicial capacity. See Mireles v. Waco, 502 U.S. at 11, 112 S.Ct. 286 (citing Forrester v. White, 484 U.S. 219, 227-229 , 108 S.Ct. 538 , 98 L.Ed.2d 555 (1988); Stump v. Sparkman, *1124 435 U.S. at 360 , 98 S.Ct. 1099 ). “[Whether an act by a judge is a ‘judicial’ one relates to the nature of the act itself, ie., whether it is a function normally performed by a judge, and to the expectations of the parties, ie., whether they dealt with the judge in his judicial capacity.” Mireles v. Waco, 502 U.S. at 12, 112 S.Ct. 286 (citations omitted). Judges are, however, entitled to legislative immunity when acting in a legislative capacity. See Supreme Court v. Consumers Union of the United States, Inc., 446 U.S. 719, 734 , 100 S.Ct. 1967 , 64 L.Ed.2d 641 (1980).

The rationale of the doctrine of judicial immunity — “the risk that judges will be harassed and their independence compromised by the threat of having to defend themselves against suits by disgruntled litigants” — also is equally applicable to [a party’s] charge that in performing their judicial duties the judges of [a] court were engaging in a conspiracy against [a party].

Green v. Seymour, 59 F.3d 1073, 1078 (10th Cir.1995) (citing Pulliam v. Allen, 466 U.S. 522, 537-38 , 104 S.Ct. 1970 , 80 L.Ed.2d 565 (1984)).

Judges acting in regards to state disciplinary issues sometimes act in a judicial capacity and sometimes act in a legislative capacity. A judge acts in a judicial capacity when hearing appeals from disciplinary proceedings. See Supreme Court v. Consumers Union of United States, Inc., 446 U.S. at 734 , 100 S.Ct. 1967 . Because “[disciplinary rules are rules of general application and are statutory in character,” because “[t]hey act not on parties litigant but on all those who practice law in [a state],” and because “[t]hey do not arise out of a controversy which must be adjudicated, but instead out of a need to regulate conduct for the protection of all citizens,” a court acts in a législative capacity when it enacts disciplinary rules. Id. at 731 , 100 S.Ct. 1967 (citation and internal quotations omitted).

2. Quasi-Judicial Immunity for Officials who Enforce Judicial Orders.

“Absolute immunity has long been available to protect judges from liability for acts performed in their judicial capacity,” and, “[o]ver time the defense has been extended to ‘certain others who perform functions closely associated with the judicial process.’ ” Dahl v. Charles F. Dahl, M.D., P.C. Defined Ben. Pension Trust, 744 F.3d 623, 630 (10th Cir.2014) (quoting Cleavinger v. Saxner, 474 U.S. 193, 199, 200 , 106 S.Ct. 496 , 88 L.Ed.2d 507 (1985)). “Just as judges acting in their judicial capacity are absolutely immune from liability under section 1983, ‘officials] charged with the duty of executing a facially valid court order enjoy[ ] absolute immunity from liability for damages in a suit challenging conduct .prescribed by that order.’ ” Turney v. O’Toole, 898 F.2d 1470 , 1472 (10th Cir.1990) (alterations in original) (citations omitted) (quoting Valdez v. City & Cnty. of Denver, 878 F.2d at 1286 ). See Henriksen v. Bentley, 644 F.2d 852, 855 (10th Cir.1981) (stating that absolute immunity applies where an official acts “under the command of a court decree or explicit instructions from a judge”). “[I]t is simply unfair to spare the judges who give orders while punishing the officers who obey them.” Valdez v. City & Cnty. of Denver, 878 F.2d at 1289 . “Enforcing a court order or judgment is intrinsically associated with a judicial proceeding. If losing parties were free to challenge the will of the court by threatening its officers with harassing litigation, the officers might neglect the execution of their sworn duties.” Valdez v. City & Cnty. of Denver, 878 F.2d at 1288 (citation omitted).

In Valdez v. City and County of Denver, the Tenth Circuit held that “an *1125 official charged with the duty of executing a facially valid court order enjoys absolute immunity from liability for damages in a suit challenging conduct prescribed by that order.” 878 F.2d at 1286 . In that case, the plaintiff Robert Valdez was “present as a spectator in state traffic court,” and at some point, the Denver County Court Judge presiding over the proceedings “said something to a defendant with which Valdez disagreed.” 878 F.2d at 1286 . As a result of his disagreement, the plaintiff exclaimed “bullshit” and had an exchange of words with the judge. 878 F.2d at 1286 . The judge held the plaintiff in contempt and ordered one of the defendants, a police officer, to arrest the plaintiff. See 878 F.2d at 1286 . The officer complied, and, later the same day, the judge issued a mittimus 10 directing the municipality to retain custody of Valdez. See 878 F.2d at 1286 . Pursuant to the judge’s order, Valdez was incarcerated for two weeks under the administrative supervision of another defendant. See 878 F.2d at 1286 . The Tenth Circuit, in holding that the arresting officer and the defendant who was the administrative supervisor of the jail where the plaintiff was held were entitled to absolute immunity, reasoned:

To force officials performing ministerial acts intimately related to the judicial process to answer in court every time a litigant believes the judge acted improperly is unacceptable. Officials must not be called upon to answer for the legality of decisions which they are powerless to control. We explained in [T & W Inv. Co. v.] Kurtz, 588 F.2d [801,] 802 [(10th Cir.1978)], that it is simply unfair to spare the judqges who give orders while punishing the officers who obey them. Denying these officials absolute immunity for their acts would make them a “lightning rod for harassing litigation aimed at judicial orders.” Id.

Tension between trial judges and those officials responsible for enforcing then-orders inevitably would result were there not absolute immunity for both. Kurtz, 588 F.2d at 802. Officials employed to implement facially valid court orders could choose: They may disregard the judge’s orders and face discharge, or worse yet criminal contempt, or they may fulfill their duty and risk being haled into court.... Officials such as the defendants must not be required to act as pseudo-appellate courts scrutinizing the orders of judges.

878 F.2d at 1289 . Although “absolute immunity always comes at a price,” such that an individual “wrongly deprived of liberty or property by a judge’s decision will be unable to pursue a remedy under the civil rights statute,” the aggrieved party is not without recourse. 878 F.2d at 1289 . “In most cases, the defendant should appeal: The proper procedure for a party who wishes to contest the legality of a court order enforcing a judgment is to appeal that order and the underlying judgment, not to sue the official responsible for its execution.” 878 F.2d at 1289-90 (internal quotation marks omitted).

There are limits, however, to “how unlawful an order can be and still immunize the officer executing it.” Moss v. Kopp, 559 F.3d 1155, 1163 (10th Cir.2009) (citing Turney v. O’Toole, 898 F.2d at 1474). For the state official to be entitled to quasi-judicial immunity, “the judge issuing the disputed order must be immune from liability in his or her own right, the officials executing the order must act within the scope of their own jurisdiction, *1126 and the officials must only act as prescribed by the order in question.” Moss v. Kopp, 559 F.3d at 1163 (citing Turney v. O’Toole, 898 F.2d at 1472, 1474). The order must also be facially valid. See Moss v. Kopp, 559 F.3d at 1164 . “[E]ven assuming that an order is infirm as a matter of, state law, it may be facially valid, as ‘facially valid’ does not mean ‘lawful,’ and erroneous orders can be valid.” Moss v. Kopp, 559 F.3d at 1165 (quoting Turney v. O’Toole, 898 F.2d at 1473).

When an official, in bad faith, obtains the order under which he or she claims immunity, that order does not provide the same quasi-judicial immunity as an order which the official played no part in procuring. See Moss v. Kopp, 559 F.3d at 1163 n. 10; Turney v. O’Toole, 898 F.2d at 1473 n. 3 (citing Guerro v. Mulhearn, 498 F.2d 1249, 1256 (1st Cir.1974)) (refusing to extend absolute immunity to police officers who acted pursuant to a wiretap court order when the officers allegedly obtained the wiretap order “in bad faith and on the basis of perjured testimony”).

3. Officials in Administrative Hearings.

The Tenth Circuit has recognized that “officials in administrative hearings can claim the absolute immunity that flows to judicial officers if they are acting in a quasi-judicial fashion.” Guttman v. Khalsa, 446 F.3d 1027, 1033 (10th Cir.2006) (citing Butz v. Economou, 438 U.S. 478, 514 , 98 S.Ct. 2894 , 57 L.Ed.2d 895 (1978)). For an official at an administrative hearing to enjoy absolute immunity, “(a) the officials’ functions must be similar to those involved in the judicial process, (b) the officials’ actions must be likely to result in damages lawsuits by disappointed parties, and (c) there must exist sufficient safeguards in the regulatory framework to control unconstitutional conduct.”

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