Pueblo of Pojoaque v. New Mexico

MEMORANDUM OPINION AND ORDER

JAMES 0. BROWNING, UNITED STATES DISTRICT JUDGE

THIS MATTER comes before the Court on: (i) Defendants Susana Martinez, Jeremiah Ritchie, Jeffrey S. Landers, Salvatore Maniaci, Paulette Becker, Robert M. Doughty III, and Carl E. Londone’s Motion to Dismiss Count IV on the Basis of Qualified Immunity, filed December 4, 2015 (Doc. 60)(“Qualified Immunity Motion”); (ii) Defendants Susana Martinez, Jeremiah Ritchie, Jeffry [sic] S. Landers, Salvatore Maniaci, Paulette Becker, Robert M. Doughty III, and Carl E. Londene’s Motion for Stay of Discovery Pending Qualified Immunity Rulings, filed December 4, 2015 (Doc. 61)(“Motion to Stay Discovery”); (iii) the Defendants’ Motion to Stay or Suspend the Court’s October 7, 2015 Preliminary Injunction, filed December 18, 2015 (Doc. 64)(“Motion to Stay Injunction”); (iv) the Defendants’ Motion to Reconsider and Either Vacate or Modify the Court’s October 7, 2015 Preliminary Injunction, and for Relief Pursuant to Fed. R. Civ. P. 62.1, filed December 18, 2015 (Doc. 65)(“Motion to Reconsider Injunction”); (v) Defendant State of New Mexico’s Motion' to Modify October 7, 2015 Preliminary Injunction and to Dismiss Defendant State of New Mexico Based on the State’s Eleventh Amendment Sovereign Immunity, filed December 22, 2015 (Doc. 69)(“Sovereign Immunity Motion”); (vi) the Defendants’ Motion to Dismiss Counts III and IV of the Plaintiffs’ Complaint, filed December 22, 2015 (Doc. 71)(“Motion to Dismiss Counts III and IV”); (vii) the Defendants’ Motion to Dismiss Count II of Plaintiffs’ Complaint, filed December 22, 2015 (Doc. 72)(“Motion to Dismiss Count II”); (viii) the Defendants’ Motion to Dismiss Count V of Plaintiffs’ Complaint, filed December 22, 2015 (Doc. 73)(“Motion to Dismiss Count V”); (ix) the Pueblo’s Motion to Stay Proceedings Pending Defendants’ Interlocutory Appeal of Order Issuing Preliminary Injunction, filed February 17, 2016 (Doc. 93)(“Motion to Stay Proceedings”); and (x) the Pueblo’s Motion for Leave to Submit Supplemental Brief in *1041 Support of Pueblo’s Motion to Stay Proceedings Pending Defendants’ Interlocutory Appeal of Order Issuing Preliminary Injunction, filed March 29, 2016 (Doc. lll)(“Supplemental Briefing Motion”). The Court held a hearing on the Qualified Immunity Motion and Motion to Stay Discovery on January 12, 2016. The Court held a hearing on the Sovereign Immunity Motion, the Motion to Stay Discovery, the Motion to Reconsider Injunction, the Motion to Dismiss Counts III and IV, the Motion to Dismiss Count II, and the Motion to Dismiss Count V on March 2, 2016. The Court held a hearing on the Motion to Stay Proceedings and Supplemental Briefing Motion on April 22, 2016.

The primary issues are: (i) whether the Defendants’ interlocutory appeal of the Court’s October 7, 2015, preliminary injunction, divests the Court of its jurisdiction over the present motions; (ii) whether Defendants Susana Martinez, Jeremiah Ritchie, Jeffrey S. Landers, Salvatore Maniaci, Paulette Becker, Robert M. Doughty III, and Carl E. Londone (collectively, the “Individual Defendants”), violated Plaintiff Pueblo of Pojoaque’s federal rights by taking a series of actions under color of state law against non-Indian, state-licensed gaming manufacturer vendors — thereby potentially affecting Poj-oaque Pueblo’s ability to do business with such vendors — based on the Individual Defendants’ determination that the vendors violated New Mexico law in supplying equipment to or receiving proceeds from gaming enterprises that the Pojoaque Pueblo allegedly conducted on its tribal lands in the absence of a compact with Defendant State of New Mexico, as the Indian Gaming Regulatory Act of 1988, 25 U.S.C. §§ 2701-2721 (“IGRA”), requires; (iii) whether the Individual Defendants are entitled to qualified immunity with respect to Count IV, and whether discovery should be stayed pending the Court’s ruling on the qualified immunity defense; (iv) whether Defendant State of New Mexico is entitled to dismissal of all Counts on the basis of sovereign immunity; (v) whether the Individual Defendants are entitled to immunity from the Plaintiffs’ claim for tor-tious interference with contractual relations; and (vi) whether the Court should stay, suspend, vacate or modify Judge Brack’s October 7, 2015, preliminary injunction enjoining the Defendants “from taking any action that threatens, revokes, conditions, modifies, fines, or otherwise punishes or takes enforcement against any licensee in good standing with the New Mexico Gaming Control Board based wholly or in part on grounds that such licensee is conducting business with the Pueblo.”

FACTUAL BACKGROUND

This action arises out of New Mexico and Pojoaque Pueblo’s failure to negotiate a state-tribal gaming compact pursuant to IGRA § 2710(d), and an ensuing dispute as to New Mexico’s authority to regulate non-Indian gaming activities in New Mexico— regulations which are motivated by, and have an indirect impact on, the Pojoaque Pueblo’s gaming operations, notwithstanding the absence of a compact. The material facts of this case are undisputed. See, e.g., Qualified Immunity Motion at 5-7 (listing, without disputing, the Plaintiffs’ factual allegations).

Pojoaque Pueblo is a federally recognized Indian Tribe with 482 enrolled members located in northern New Mexico. See Complaint [Failure To Conclude Compact Negotiations in Good Faith, 25 U.S.C. § 2710 (d); Declaratory Judgment and In-junctive Relief; Violation of Civil Rights, 42 U.S.C. § 1983 ; Pendant Claim of Tor-tious Interference with Existing Contractual Relationships] ¶ 1, at 1, filed July 18, 2015 (Doc. 1). The Pojoaque Pueblo operates two gaming facilities on its Indian lands: the Buffalo Thunder Resort & Casi *1042 no and the Cities of Gold Hotel & Casino. See Complaint ¶ 14, at 7; Pueblo of Poj-oaque, http:llpojoaque.orslvisit/gaming/ (last visited September 20, 2016). Plaintiff Joseph M. Talachy is Governor of the Poj-oaque Pueblo. See Complaint ¶ 15, at 7.

New Mexico is a sovereign state government. See Complaint ¶ 16, at 7. Landers, Maniaci, Becker, Doughty, and Londene (collectively, the “Gaming Board Members”) are Members of the New Mexico Gaming Control Board. Complaint ¶¶ 19-23, at 7-8. Landers also serves as the Chairman of the Gaming Board. See Complaint ¶ 19, at 7. Martinez, the Governor of New Mexico, appointed each Gaming Board member. 2 See Complaint ¶¶ 17, at 7; id. at ¶¶ 19-23 , at 7-8. Ritchie serves as Martinez’ Deputy Chief of Staff and primary compact negotiator. 3 See Complaint ¶ 18, at 7.

On July 19, 2005, New Mexico and Poj-oaque Pueblo executed a Class III gaming compact 4 pursuant to IGRA, 25 U.S.C. §§ 2710 (d), permitting the operation of casino-style gaming on Pojoaque Pueblo’s tribal lands, see 25 U.S.C. § 2703 (8). See Complaint ¶ 46, at 16. Before the compact’s expiration on June 30, 2015, the Pojoaque Pueblo formally requested that New Mexico enter into a new agreement. See Complaint ¶ 2, at 2. Talks were unsuccessful, however, and on December 13, 2013, the Pojoaque Pueblo filed suit against the State for failing to negotiate a compact under IGRA in good faith. See Complaint ¶ 55, at 19. New Mexico promptly asserted sovereign immunity under the Eleventh Amendment to the Constitution of the United States of America as an affirmative defense, and accordingly, the Honorable James A. Parker, Senior United States District Judge for the United States District Court for the District of New Mexico, dismissed the lawsuit on March 3, 2014. See Complaint ¶ 56, at 19; Pueblo of Pojoaque v. New Mexico, 2014 U.S. Dist. LEXIS 188665 (D.N.M. 2014) (Parker, J.).

After Judge Parker dismissed Pojoaque Pueblo’s suit against New Mexico for failure to negotiate a compact in good faith, the Pojoaque Pueblo submitted a proposal for Class III gaming to the United States Secretary of the Interior pursuant to IGRA, 25 U.S.C. § 2710 (d)(7)(B), and 25 C.F.R. Part 291. The remedial scheme in 25 U.S.C. § 2710 (d)(7)(B) empowers the Secretary of the Interior to promulgate procedures for Class III gaming if a state refuses to agree to a compact. See 25 U.S.C. § 2710 (d)(7)(B)(vii). The Secretary may initiate such procedures once a federal court makes a determination that a state acted in bad faith in failing to negotiate a compact. See 25 U.S.C. § 2710 (d)(7)(B)(iv)-(v). However, this remedial scheme is effectively neutralized by *1043 the fact that a state may assert sovereign immunity as an affirmative defense to such a suit. See Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 47 , 116 S.Ct. 1114 , 134 L.Ed.2d 252 (1996)(holding that Congress had no authority to subject states to suit by Indian tribes for negotiating in bad faith under IGRA). To resolve this issue, the Interior Secretary created the regulations in 25 C.F.R. Part 291 to provide tribes with an alternate path to obtain Class III gaming procedures. These regulations provide that, where “[a] State and an Indian tribe are unable to voluntarily agree to a compact” and “[t]he state has asserted its immunity from suit brought by an Indian tribe,” 25 C.F.R. Part 291.1, then a tribe “may use the Secretarial Procedures to obtain permission to operate Class III gaming without the State’s consent,” New Mexico v. Dep’t of Interior, 2014 WL 10298036 , at *7, 2014 U.S. Dist. LEXIS 184655 , at *5 (D.N.M. 2014)(Parker, J.), on appeal 14-2222.

On August 7, 2014, New Mexico filed a lawsuit against the United States of America challenging the Secretary of the Interi- or’s authority to promulgate the regulations in 25 C.F.R. Part 291. See New Mexico v. Dep’t of Interior, 2014 WL 10298036 , 2014 U.S. Dist. LEXIS 184655 . On October 17, 2014, Judge Parker granted summary judgment to the State and enjoined the United States from taking action to enforce 25 C.F.R. Part 291. New Mexico v. Dep’t of Interior, 2014 WL 10298036 , at *16, 2014 U.S. Dist. LEXIS 184655 , at *43. An appeal to the Tenth Circuit Court of Appeals is pending. See New Mexico v. Dep’t of the Interior, 14-2222.

On November 3, 2014, the Pojoaque Pueblo informed New Mexico of its renewed desire to negotiate a compact to govern its Class III gaming operations past the June 30, 2015, termination of the current state-tribal agreement. See Complaint ¶ 60, at 19. New Mexico and Poj-oaque Pueblo representatives subsequently met on several occasions to negotiate a new compact; however, talks again were unsuccessful, and New Mexico and the Pojoaque Pueblo never reached an agreement. See Complaint ¶¶ 62-64, at 19-20.

On February 26, 2015, Becker, on the Gaming Board’s behalf, requested to perform the Gaming Board’s routine annual compliance review of Pojoaque Pueblo’s gaming operations on November 3-5, 2015. See Complaint ¶ 65, at 20. On May 6, 2015, however, Becker notified the Pojoaque Pueblo by letter of the Gaming Board’s intention to conduct an earlier compliance review in advance of the compact’s expiration. See Complaint ¶ 65-66, at 20. In the letter, Becker requested that the Pojoaque Pueblo provide “[a]ny and all contract[s] with Class III Gaming Machine Manufacturers, including [any] Lease, Purchase and Service Agreements.” Complaint ¶ 66, at 20. Pursuant to its obligations under the outstanding compact, the Pojoaque Pueblo produced the requested vendor contracts on June 24, 2015. See Complaint ¶ 66, at 20.

The Class III gaming compact between New Mexico and Pojoaque Pueblo expired at midnight on June 30, 2015. See Complaint ¶ 69, at 21. Earlier that day, the United States Attorney for the District of New Mexico, Damon P. Martinez, issued a letter to Talachy stating that, once the compact expired, “[cjontinued gaming operations by the Pueblo ... would violate federal law.” Letter From Damon P. Martinez to Joseph M. Talachy Regarding Expiration of Pojoaque Pueblo’s Class III Gaming Compact with New Mexico (dated June 30, 2015), at 1, filed October 1, 2015 (Doc. 28-3)(“U.S. Attorney’s Letter”). Notwithstanding this pronouncement, the U.S. Attorney’s Letter indicated that Mr. Martinez would “exercise [ ] discretion to with *1044 hold enforcement action against the Pueblo” during the pendency of the appeal challenging Judge Parker’s ruling that the Secretarial Procedures in 25 C.F.R. Part 291 are invalid, see New Mexico v. Dep’t of the Interior, 14-2222. U.S. Attorney’s Letter at 1. Mr. Martinez expressly conditioned his decision on Pojoaque Pueblo agreeing to maintain the status quo of its gaming operations as the expiring compact outlines and on the Pojoaque Pueblo placing in trust funds that it would otherwise pay to New Mexico under the compact. See U.S. Attorney’s Letter at 1. The U.S. Attorney’s Letter stipulated that it did not “create any rights, substantive or procedural, enforceable at law or in equity by any party in any matter, civil or criminal .... ” U.S. Attorney’s Letter at 1.

That same day, on June 30, 2015, the Gaming Board issued a public statement that Mr. Martinez’ decision to allow the Pojoaque Pueblo’s casinos to remain in operation “provides no protection to banks, credit card vendors, gaming machine vendors, advertisers, bondholders, and others that are now doing business with an illegal gambling enterprise.” Complaint ¶ 68, at 21. Shortly thereafter, on July 15, 2015, the Gaming Board held a closed meeting to discuss tribal gaming compliance issues. See Complaint ¶ 73, at 22. Following the meeting, the Gaming Board announced that it had determined that the Pojoaque Pueblo’s casinos were operating illegally in the absence of a Class III gaming compact and “placed in abeyance approval of any license application or renewal for the Pueblo’s vendors.” Complaint ¶ 73, at 22. The Gaming Board did not place any other vendors’ applications in abeyance. See Complaint ¶ 73, at 22.

PROCEDURAL BACKGROUND

The Plaintiffs commenced this action on July 18, 2015. See Complaint at 1. The Complaint seeks redress for two principal claims: (i) that New Mexico failed to conclude compact negotiations in good faith for the regulation of Class III gaming activities on the Plaintiffs’ lands in violation of 25 U.S.C. § 2710 (d); and (ii) that the Individual Defendants conspired under color of state law to “deprive the federal right of the Pueblo and its members to be free of state jurisdiction over activities that occur on the Pueblo lands.” Complaint ¶ 1, at 1-2. The Plaintiffs also bring a pendent state law claim for tortious interference with contractual relations. See Complaint ¶ 1, at 2. The Plaintiffs allege that New Mexico “wrongfully assert[ed] State jurisdiction over gaming activities on the Pueblo’s Indian lands” in the absence of a Class III gaming compact, thereby violating the Supremacy Clause of the Constitution of the United States and federal civil rights statutes. Complaint ¶ 8, at 4. The Plaintiffs seek extensive declaratory relief, an injunction preventing New Mexico from interfering with their vendors, the appointment of a mediator to facilitate negotiations, $50,000,000 per year in money damages, attorney’s fees, and “such other relief as may be just and equitable, including ancillary relief.” Complaint ¶¶ A-W, at 37-40. The case was assigned to the Honorable Robert C. Brack, United States District Judge for the United States District Court for the District of New Mexico. See Notice of Case Reassignment to District Judge Robert C. Brack as Trial Judge, filed September 10, 2015 (Doc. 19 [text-only-entry] )(reassigning the case from the Honorable Steven C. Yarbrough, United States Magistrate Judge).

On September 9, 2015, the Gaming Board sent letters to the Pojoaque Pueblo’s gaming manufacturer vendors. See Letter From Donovan Lieurance to Manufacturer Licensee (dated September 9, 2015), at 1, filed September 25, 2015 (Doc. 23-14)(“Vendor Letter”). The Vendor Letter informed the vendors that Mr. Martinez has determined that the Pojoaque *1045 Pueblo’s continued gaming operations past the June 30, 2015, expiration of its gaming compact with New Mexico violates federal law. See Vendor Letter at 1 (referencing and attaching the U.S. Attorney’s Letter). The Vendor Letter indicates that the Gaming Board intended to conduct an audit of the vendors’ records to ensure compliance with New Mexico law and the Gaming Board’s regulations. See Vendor Letter at 1. To that end, the Gaming Board demanded production of the vendors’ communications and business records with respect to sixteen casinos and tribal gaming operations, including the Pojoaque Pueblo’s Class III operations at Buffalo Thunder Resort & Casino and Cities of Gold Casino. See Vendor Letter at 3-4.

On September 25, 2015, the Gaming Board “issued State Citations to all of the vendors doing business with the Pueblo.” Second Supplemental Declaration of Terrence “Mitch” Bailey 5 ¶ 5, at 2 (executed October 1, 2015), filed October 01, 2015 (Doc. 30)(“Bailey Decl.”). Each citation includes similar language charging the vendors with violating “New Mexico Gaming laws, rules and regulations, minimum internal controls or New Mexico Bingo and Raffle act [sic]” as a consequence of doing business with the Pojoaque Pueblo’s casinos. Bailey Decl. ¶ 6.a-c, at 2-4.

The Plaintiffs promptly moved for a temporary restraining order and/or a preliminary injunction on September 25, 2015. See Pueblo of Pojoaque’s Motion for Temporary Restraining Order and/or Preliminary Injunction, filed September 25, 2015 (Doc. 23)(“PI Motion”). In the PI Motion, the Plaintiffs frame the Gaming Board’s recent issuance of letters and citations to the Pojoaque Pueblo’s vendors as an attempt at asserting “jurisdiction over gaming activities on the Pueblo’s Indian lands,” PI Motion at 13, despite that New Mexico’s jurisdiction over such activities “ended on June 30, 2015 when the Compact expired,” PI Motion at 14. In the Plaintiffs’ view, the Gaming Board’s actions are “a throw-back to one of the darkest times in the history of the European conquest, when the pueblos were required to pay a tribute tax, whereby the Spanish confiscated the pueblo’s, maize and other resources ....” PI Motion at 3. The Plaintiffs therefore sought redress from Judge Brack to “force the State to recognize the modern federal policies of tribal self-sufficiency and tribal self-governance.” PI Motion at 3 (citation omitted). To that end, the Plaintiffs sought to prohibit the Defendants “from taking any action that threatens, revokes, conditions, modifies, fines, or otherwise punishes or takes enforcement against any licensee in good standing with the New Mexico Gaming Control Board [ ] based wholly or in part on grounds that such licensee is conducting business with the Pueblo.” PI Motion at 1.

In their response to the PI Motion, the Defendants stressed that the Gaming Board did “not engage[ ] in any regulatory actions against Plaintiffs .... ” State Defendants’ Response to Plaintiffs’ Request for Temporary Restraining Order at 3, filed October 1, 2015 (Doc. 28)(“PI Motion Response”). The Defendants pointed out that no direct enforcement action was threatened against Pojoaque Pueblo; rather, the Gaming Board’s actions at best “threatened regulatory consequences to third parties with ‘employment and business relationships with the Pueblo.’” PI Motion Response at 13. The Defendants stated that, in any event, vendors “have not been instructed ... that they cannot conduct business with the Pueblo.” PI Mo *1046 tion Response at 4. The Defendants further argued that, as stipulated in the U.S. Attorney’s Letter, Pojoaque Pueblo’s continued Class III gaming operations after the expiration of its compact with New Mexico violates federal law. PI Motion Response at 16 (citation omitted). Thus, according to the Defendants, because New Mexico law requires the Gaming Board to regulate third parties that do business with gaming entities who are operating in violation of federal law, the Gaming Board has a statutory duty to regulate Pojoaque Pueblo’s vendors. See PI Motion Response at 19.

Judge Brack held a hearing on the PI Motion on October 2, 2015. See Transcript of Preliminary Injunction Order Hearing held on October 2, 2015 (Doc. 38)(“PI Hearing”). At the hearing, Plaintiffs’ counsel, Scott Crowell, argued extensively about Pojoaque Pueblo’s “right to be free from state jurisdiction over its gaming activities absent a tribal-state compact,” see PI Hearing at 82:9-18, and the requirements for issuance of a preliminary injunction, especially irreparable harm, see, e.g., PI Hearing at 36:18-25, 37:1-25, 38:1-4. In response, the Defendants’ counsel, Jerry A. Walz, repeatedly reiterated that New Mexico had no intention of barring vendors from continuing to do business with Poj-oaque Pueblo. See, e.g., PI Hearing at 57:7-9 (“[Njobody’s been ordered that they cannot do business with the Pueblo of Poj-oaque”). The Plaintiffs’ counsel countered that New Mexico had “assert[ed] jurisdiction over the tribe’s gaming activities in the form of threatening vendors regarding their licenses to do business with other entities in the state over which they [] have jurisdiction.” PI Hearing at 37:16-19. The consequence of this action, the Plaintiffs argued, would be to deter vendors from dealing with Pojoaque Pueblo, thereby “shutting] off a source of revenue [] upon which all of the tribe’s governmental operations ... very heavily rely.” See PI Motion at 37:21-24.

On October 7, 2015, Judge Brack granted the preliminary injunction, adopting the proposed language in the Plaintiffs’ PI Motion. See 2015 U.S. Dist. LEXIS 178096 , at *33 (“Judge Brack’s MOO”). Judge Brack’s MOO is critical of the Defendants’ collective actions:

Defendants’ protestations that the regulation of vendors doing business with the Pueblo does not constitute regulation of the Pueblo’s gaming activities are disingenuous and inconsistent with the record. Defendants’ actions are based, quite clearly, on Defendants’ own determination that the post-June 30, 2015 Class III gaming at the Pueblo is illegal — a determination that the Defendants, just as clearly, are without jurisdiction or authority to make.

Judge Brack’s MOO at *28. Determining that the Plaintiffs had established a likelihood of irreparable harm in the absence of preliminary relief, Judge Brack observed:

Defendants’ harassment and threatening conduct directed at the vendors is a thinly disguised attempt to accomplish indirectly that which Defendants know they are without authority or jurisdiction to accomplish directly. Defendants’ contention that the enforcement actions against the vendors do not harm the Pueblo is also disingenuous. The undisputed evidence establishes that the Pueblo will lose significant revenue and its Casinos may shut down due to Defendants’ intimidation of the Pueblo’s vendors.

Judge Brack’s MOO at *29. Accordingly, Judge Brack granted the PI Motion, ordering that “Defendants are enjoined from taking any action that threatens, revokes, conditions, modifies, fines, or otherwise punishes or takes enforcement against any licensee in good standing with the New Mexico Gaming Control Board based whol *1047 ly or in part on grounds that such licensee is conducting business with the Pueblo.” Preliminary Injunction by District Judge Robert C. Brack at 1, filed October 7, 2015 (Doc. 32). Further,- Judge Brack concluded that the public interest would be served by the preliminary injunction “maintaining the status quo for the duration of the appeal in New Mexico v. Department of the Interior[, 14-2222] and for 30 days thereafter.” Judge Brack’s MOO at *32-33. The Gaming Board held its first formal public meeting following Judge Brack’s issuance of the preliminary injunction on October 21, 2015. See 2016 U.S. Dist. LEXIS 72413 , at *10 (“Contempt MOO”), At the meeting, the Gaming Board considered a total of twenty-nine applications 6 *1048 by vendors for “gaming license” renewals and “certification[s] of fínding[s] of suitability.” Contempt MOO at *10-12. With respect to companies not doing business with Pojoaque Pueblo, the Gaming Board approved eighteen applications, 7 deferred one application for a one-month period, and took no vote on one application. See Contempt MOO at *12. The Gaming Board deferred all nine applications 8 — without a date set for future consideration — by companies doing business with Pojoaque Pueblo. See Contempt MOO at *12.

As a result of the Gaming Board’s actions at its October 21, 2015, meeting, the Plaintiffs moved the Court on November 19, 2015, to: (i) “issue an Order to Show Cause” for the Gaming Board Defendants to “appear and present evidence as to why [they] should not be held in civil contempt of court for violating the Preliminary Injunction issued by [Judge Brack]”; (ii) impose sanctions on the Gaming Board Defendants upon a finding of civil contempt; and (iii) award the Plaintiffs attorney’s fees and costs. Motion for Order to Show Cause Re Civil Contempt, filed November 19, 2015 (Doc. 53)(“Contempt Motion”). The Plaintiffs argued that the Gaming Board had violated the preliminary injunction by “deferring license decisions on all applications for persons or companies doing business with the Pueblo.” Contempt Motion at 2. In the Plaintiffs’ view, the Gaming Board’s actions were new attempts at “asserting jurisdiction over the Pueblo’s gaming activities by threatening the licenses of those persons or companies doing business with the Pueblo’s gaming operations.” Contempt Motion at 3.

On October 29, 2015, the Defendants appealed Judge Brack’s preliminary injunction to the United States Court of Appeals for the Tenth Circuit. See Notice of Appeal at 1, filed October 29, 2015 (Doc. 40). On March 3, 2016, the Tenth Circuit set oral argument on the appeal for May 4, 2016. See Calendar Notice Setting Arguments for 05/04/2016 at 9:00 A.M., filed March 3, 2016 (10348232 [text-only-entry] ). On March 24, 2016, however, the panel assigned to review the matter sua sponte ordered that the appeal be abated pending issuance of a decision on the appeal of Judge Parker’s opinion invalidating the regulations in 25 C.F.R. Par 291, in New Mexico v. Department of the Interior, 14-2222. See Tenth Circuit Court of Appeals Order Abating Appeal at 1, filed March 24, 2016 (Doc. 112).

The Court denied the motion on April 21, 2016. See Contempt MOO at *31. The Court held that the Gaming Board’s license deferrals did not “threaten” the vendor applicants within the meaning of Judge Brack’s preliminary injunction. See Contempt MOO at *32. The Court reasoned that the deferrals would not affect the vendors’ continued operations for two reasons:

First, as the Gaming Board contends, “[i]f there is a conflict or inconsistency between statutes and regulations promulgated by an agency, the language of the statutes shall prevail.” Response at 7 (citing Jones v. Employment Servs. Divot Human Servs. Dep’t, 1980-NMSC-120 , ¶ 3, 95 N.M. 97 , 619 P.2d 542, 544 ). The regulations here are inconsistent with § 60-2E-16(H), so the statute governs the effect on the vendors’ licenses. This principle also negates the Plaintiffs’ argument that bingo and raffle licensees, which are subject to a regulation with almost identical language, require variances to continue operating after their *1049 licenses expire. See Reply at 9. Compare N.M. Admin. Code § 15.4.3.16 (“Any licensee that fails to renew its license as required by the act and this rule shall cease the games of chance authorized by the license on the date the license expires.”), with N.M. Admin. Code § 15.1.13.11 (“Any licensee that fails to renew its license as required by the act and this rule shall cease the gaming activity authorized by the license on the date the license expires.”).

Although the regulations governing bingo and raffle licenses are very similar to the regulations applicable here, there is no conflicting statute governing bingo and raffle licenses. The rough equivalent of § 60-2E-16(H) for bingo and raffle licenses does not address whether licenses remain valid upon the submission of a renewal application. See N.M. Stat. Ann. § 60 -2F-12.

Second, the Gaming Board has established a “pattern of practice” of allowing licenses to remain in effect between the time that a licensee flies for a renewal and the time that it approves the renewal. Reply at 8. Defendant Jeffrey Lan-ders has submitted a declaration describing his review of the Gaming Board’s licensing records. See Declaration of Jeffrey S. Landers ¶ 3, at 2 (taken December 7, 2015), filed December 7, 2015 (Doc. 62-2)(“Landers Declaration”). Landers states that the Gaming Board has “approved a renewal application after the nominal expiration date of an existing license” on approximately thirty occasions between 2003 and 2015. Lan-ders Declaration ¶ 3, at 2. Landers adds that “all” of the licensees “were permitted to continue operating during the period between the expiration date of the existing license and the approval of the renewal application.” Landers Declaration ¶ 3, at 2. The Gaming Board also represented during the hearing that this practice “isn’t something that the board has done just recently and only in the case of the manufacturers who are doing business with the pueblo. This is something that the board has done as Mr. Landers stated in his declaration over 30 times since 2003.” Tr. at 37:14-19 (Bohn-hoff). The Plaintiffs’ argument that they cannot rely on the Gaming Board’s past practice as a defense to an enforcement action is unconvincing. See Reply at 11 (“The Certain Defendants want this Court to believe that ... a [Gaming Board] track record of defying the applicable statute and its own regulations will be a successful defense[.]”). As discussed above, § 60-2E-16(H) is inconsistent with the regulations that the Gaming Board would use to support an enforcement action. Given this conflict, the statute would govern the dispute, and its language — that “a license, certification or permit shall continue in effect upon proper payment of the initial and renewal fees” — would not support an enforcement action here. N.M. Stat. Ann. § 60 -2E-16(H).

Moreover, it is likely that any enforcement action — whether grounded in statutes or regulations, or not — would be seen as a threat and a violation of Judge Brack’s PI. The important thing is that the Gaming Board’s practice and representations send a signal to the vendors that it is not going to do anything while Judge Brack’s PI is in place. After all, preserving the status quo is the aim of injunctive relief, and at the present time, the vendors are not threatened and do not appear to feel threatened.

2016 U.S. Dist. LEXIS 72413 , at *38-41. The Court concluded that:

The Gaming Board must proceed with caution. Although it can defer applications under Judge Brack’s PI, its actions may become threats if the vendors start pulling their business from Pojoaque Pueblo. It is true that the situation does *1050 not have to get to that point before there is a violation, but right at the moment, the vendors — who are smart, savvy business people — understand what is going on in New Mexico. These gaming vendors are a salty bunch, and not easily scared off from doing business. Moreover, the State of New Mexico has little economic self-interest in ruining the business of all vendors by eventually penalizing them down the road, so the threat, if any, appears not to exist now or in the future. Judge Brack’s PI has, for the time being, achieved what he wanted — maintaining the status quo until the case is over. Until a vendor appears and states that the situation is no longer working, the Court does not think it prudent to take the prophylactic action of contempt that the Plaintiffs suggest.

2016 U.S. Dist. LEXIS 72413 , at *45-46.

The Parties have since filed a litany of motions. Since all of the pleadings present overlapping arguments, the Court will discuss only a few of the pleadings that highlight the parties’ primary arguments. The Court will discuss the remaining pleadings where relevant in the analysis.

1. The Motion to Dismiss Count IV on the Basis of Qualified Immunity.

On December 4, 2015, the Individual Defendants moved to dismiss Count IV of the Complaint on the basis of qualified immunity. See Qualified Immunity Motion at 1. Count IV seeks money damages for actions that the Individual Defendants allegedly took in their personal capacities under color of state law in violation of 42 U.S.C. §§ 183 and 1985. See Complaint ¶¶ 143-151, at 35-37. The Complaint alleges that the “Individual Defendants knew or should have known that actions purporting to assert jurisdiction of the State over conduct occurring on Pueblo Indian lands wrongfully deprives Plaintiff Talachy and the individual members of their federal right to engage in conduct free from the jurisdiction of the State.” 9 Complaint ¶ 145, at 36. The Plaintiffs submitted a response on December 18, 2015. See Plaintiffs Pueblo of Pojoaque and Joseph M. Talachy’s Opposition to Defendants’ Susana Martinez, Jeremiah Ritchie, Jeffrey S. Landers, Salvatore Maniaci, Paulette Becker, Robert M. Doughty III, and Carl E. Londene Motion to Dismiss Count IV on the Basis of Qualified Immunity, filed December 18, 2015 (Doc. 66)(“Qualified Immunity Motion Response”). The Individual Defendants replied on January 8, 2016. See Individual Defendants’ Reply in Support of Their Motion to Dismiss Count IV on the Basis of Qualified Immunity, filed January 8, 2016 (Doc. 79)(“Qualified Immunity Motion Reply”). The Court will discuss these pleadings in turn.

*1051 a. The Qualified Immunity Motion.

The Individual Defendants make two principal arguments in support of their Qualified Immunity Motion. First, they contend that they did not violate any federal constitutional or statutory right by regulating non-Indian, state-licensed gaming manufacturer vendors pursuant to New Mexico’s police power. See Qualified Immunity Motion at 8. Second, they argue that, at a minimum, the Plaintiffs have failed to prove that there is a clearly established right under federal law that the Individual Defendants’ actions violated. See Qualified Immunity Motion at 18. The Individual Defendants also advance an ancillary argument that Martinez and Ritchie are entitled to dismissal of Count IV on the basis that the Gaming Board, not Martinez or Ritchie, took the actions of which the Pojoaque Pueblo complain. See Qualified Immunity Motion at 21.

i. The Individual Defendants’ Alleged Violation of Plaintiffs’ Federal Rights.

The Individual Defendants open by contending that the Supremacy Clause, upon which the Plaintiffs ground their claims of violation of a federal right, see Complaint ¶ 8, at 4, is “not a source of any federal rights.” Qualified Immunity Motion at 8 (quoting Golden State Transit Corp. v. Los Angeles, 493 U.S. 103, 107 , 110 S.Ct. 444 , 107 L.Ed.2d 420 (1989)(internal quotation marks and citation omitted)). Rather, the Supremacy Clause “secures federal rights by according them priority whenever they come into conflict with state law.” Qualified Immunity Motion at 8 (citations and internal quotation marks omitted). Thus, according to the Individual Defendants, they have not violated a federal right on that basis, as one does not exist. See Qualified Immunity Motion at 8.

In any event, the Individual Defendants assert that their actions were “properly taken in connection with the State’s legitimate regulation of non-tribal New Mexico gaming activities in the exercise of its police power.” Qualified Immunity Motion at 9 (citation omitted). See also id. (“[T]he police power of a state ‘extends to all matters affecting the public health or the public morals.’ ’’)(quoting Stone v. Mississippi, 101 U.S. 814, 818 , 25 L.Ed. 1079 (1879)). The Individual Defendants explain that New Mexico law permits gaming in New Mexico only “if conducted in compliance with and pursuant to [New Mexico’s Gaming Control Act,.N.M.S.A. §§ 60-2E-1 to 60-2E-62] or another State or federal law that expressly permits the activity .... ” Qualified Immunity Motion at 9 (citing N.M.S.A. § 60-2E-4)(internal quotation marks omitted). The Individual Defendants assert that, under the Gaming Control Act, the Gaming Board must license New Mexico gaming vendors. Qualified Immunity Motion at 10 (citing N.M.S.A. § 60-2E-13). The Individual Defendants note that the Act subjects licensees to “broad disclosure requirements and to a detailed investigation by the [Gaming Board] .... ” Qualified Immunity Motion at 10 (citing N.M.S.A. §§ 60-2E, - 14(E),-16(C),-18 to-25). The Individual Defendants further contend that a license is a revocable privilege that may be forfeited. See Qualified Immunity Motion at 10 (citing N.M.S.A. § 60-2E-2(B)).

The Individual Defendants note that, under regulations the Gaming Board promulgated pursuant to the Act, vendor licensees must comply with all “laws and regulations governing the operations of a gaming establishment,” and must not “further[ ], or profit[ ] from any illegal activity or practice.” Qualified Immunity Motion at 10 (quoting N.M.A.C. § 15.1.10.9(f)). The Individual Defendants contend that Gaming Board regulations specifically prohibit licensees from “selling] or transferfing] a gaming device to any person that could not lawfully own or operate the gaming de *1052 vice.” Qualified Immunity Motion at 10 (quoting N.M.A.C. § 15.1.16.8(B)). The Individual Defendants also note that it is “unlawful for a manufacturer or distributor to ship a gaming device ‘to any destination where possession of gaming devices is illegal.’ ” Qualified Immunity Motion at 10 (citing N.M.A.C. § 15.1.16.12(B)). If the Gaming Board’s executive director determines that a licensee has violated one of these regulations or a Gaming Control Act provision, the Gaming Board is empowered to issue an administrative citation. See Qualified Immunity Motion at 10 (citing N.M.S.A. § 60-2E-10(D)(3)).

Against this regulatory backdrop, the Individual Defendants assert that the Gaming Board’s actions with respect to vendor licensees doing business with Poj-oaque Pueblo were a valid exercise of New Mexico’s police power. See Qualified Immunity Motion at 11. The Gaming Board, they argue, merely acted to “ensure that gaming activities in New Mexico are conducted in accordance with the law .... ” Qualified Immunity Motion at 11 (citation omitted). The Individual Defendants contend that, indeed, the Gaming Board was statutorily obligated to act as it did. See Qualified Immunity Motion at 9 (noting that the Gaming Control Act commands the Gaming Board to “strictly regulate[ gaming activities] to ensure honest and competitive gaming that is free from criminal and corruptive elements and influences”)(quoting N.M.S.A. § 60-2E-2(A)).

Turning to federal law, the Individual Defendants argue that IGRA “neither preempts the State’s proper exercise of its police powers nor applies to the actions taken by the Individual Defendants.” Qualified Immunity Motion at 11. The Individual Defendants frame the issue by noting the “strong presumption against federal preemption of state law .... ” Qualified Immunity Motion at 11 (citing Maryland v. Louisiana, 451 U.S. 725, 746 , 101 S.Ct. 2114 , 68 L.Ed.2d 576 (1981)). See id. at 11-12 (noting that the presumption is especially strong where, as here, “the state law ... is aimed at promoting the public welfare, safety, and morals”)(citation omitted). With that presumption in mind, the Individual Defendants proceed to discuss preemption law at length, moving from a discussion of general preemption principals to specific applications in the Indian law context. See Qualified Immunity Motion at 12-18.

The Individual Defendants first note that preemption occurs only where Congressional intent is “clear and manifest.” Qualified Immunity Motion at 12 (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, at 230 , 67 S.Ct. 1146 , 91 L.Ed. 1447 (1947)). In the present case, they argue, Congress has not clearly manifested its intent to preempt the Individual Defendants’ actions. See Qualified Immunity Motion at 12. First, the Individual Defendants contend that “[n]o federal law explicitly preempts the State’s authority to regulate gaming within its jurisdiction.” Qualified Immunity Motion at 12. Second, they argue that “[f]ederal law does not conflict with the State’s regulatory authority over non-Indian licensees conducting gaming within the State and outside tribal lands.” Qualified Immunity Motion at 12. And third, they argue that “IGRA cannot be read to occupy the field because IGRA does not apply outside of Indian Country.” Qualified Immunity Motion at 12.

Indeed, the Individual Defendants stress, “Everything — literally everything — in IGRA affords tools (for either state or federal officials) to regulate gaming on Indian lands, and nowhere else.” Qualified Immunity Motion at 12 (quoting Michigan v. Bay Mills Indian Cmty., — U.S. —, 134 S.Ct. 2024, 2034 , 188 L.Ed.2d 1071 (2014)). The Individual Defendants argue that it follows that IGRA *1053 does not preempt actions taken to enforce New Mexico’s gaming laws outside of Indian lands. See Qualified Immunity Motion at 13 (citation omitted). The Individual Defendants rely heavily on the Supreme Court of New Mexico’s opinion in Srader v. Verant, 1998-NMSC-025 , 125 N.M. 521 , 964 P.2d 82 , for this important distinction. See Qualified Immunity Motion at 13-14. There, the Supreme Court of New Mexico considered whether New Mexico officials could “enforce New Mexico’s anti-gambling laws by [] preventing] the flow of gambling money between financial institutions, gamblers, and tribal casinos operating without a compact.” Qualified Immunity Motion at 13 (citing Srader v. Verant, 1998-NMSC-025, ¶ 86 , 125 N.M. 521 , 964 P.2d at 86 ). The Individual Defendants argue that the Court held that IGRA preempted New Mexico from enforcing its anti-gambling laws on tribal lands. See Qualified Immunity Motion at 13 (citing Srader v. Verant, 1998-NMSC-025, ¶ 88 , 125 N.M. 521 , 964 P.2d at 88 ). The Individual Defendants contend, however, that the Supreme Court of New Mexico held that, absent a compact, “it was the responsibility of the government [] to determine if New Mexico’s existing gaming or other laws were being violated outside of the reservation.” Qualified Immunity Motion at 13 (quoting Srader v. Verant, 1998-NMSC-025, ¶ 16 , 125 N.M. 521 , 964 P.2d at 88 ).

The Individual Defendants’ position— both in this motion and throughout their pleadings — hinges on the distinction that the Supreme Court of New Mexico made in Srader v. Verant. The Individual Defendants stress that they have not taken any direct regulatory action towards Pojoaque Pueblo “nor have they asserted their authority on Pueblo lands.” Qualified Immunity Motion at 14. They argue that the Gaming Board has not regulated Pojoaque Pueblo at all — it has regulated only non-Indian, state-licensed vendors. Qualified Immunity Motion at 14. As to Pojoaque Pueblo, the Gaming Board has, consistent with Srader v. Verant, merely acted on its obligation to “enforce State law against licensees conducting business with illegal gaming enterprises, including illegal enterprises operating on tribal land.” Qualified Immunity Motion at 14.

The Individual Defendants further contend that it is immaterial whether the Gaming Board’s regulatory actions have indirect impacts on Pojoaque Pueblo’s gaming operations. See Qualified Immunity Motion at 14. The Individual Defendants discuss a number of cases where the Supreme Court of the United States of America and the Tenth Circuit upheld “off-Indian country seizure of cigarettes pursuant to state law despite the effect of these seizures on the tribe.” Qualified Immunity Motion at 14-16 (citation omitted). In fact, they note, the Supreme Court has held that, when “state interests outside the reservation are implicated, States may regulate the activities even of tribe members on tribal land.” Qualified Immunity Motion at 15-16 (quoting Nevada v. Hicks, 533 U.S. 353, 362 , 121 S.Ct. 2304 , 150 L.Ed.2d 398 (2001)). In the Individual Defendants’ view, significant state interests are implicated here; however, according to the Individual Defendants “the State has limited its regulatory reach to non-tribal members acting outside of tribal lands.” Qualified Immunity Motion at 16.

In light of the above arguments, the Individual Defendants contend that the Plaintiffs’ allegation that the Gaming Board acted beyond the scope of its authority in determining that Pojoaque Pueblo is operating its gaming operations illegally in the absence of a Class III compact, see Complaint ¶ 7, at 1, is “obviously incorrect.” Qualified Immunity Motion at 16. In short,

*1054 [i]f the State properly may take action against the licenses of non-Indian manufacturers in connection with their dealings with off-reservation non-Indian gaming operators, it follows that it may make determinations about the illegality of the Pueblo’s and thus the Vendors’ conduct in accordance with [ N.M. Stat. Ann. § 60 -2E-4] and [N.M. Admin. Code § 15.1.10.9(f)].

Qualified Immunity Motion at 16. The Individual Defendants concede that the United States has “exclusive jurisdiction over criminal prosecutions of violations of State gambling laws .... ” Qualified Immunity Motion at 16 (quoting 18 U.S.C. § 1166 (d)). The Individual Defendants argue, however, that New Mexico has not “criminally prosecut[ed] anyone, let alone the Pueblo.” Qualified Immunity Motion at 16. Certainly, they assert, New Mexico is empowered to “decide whether the Pueblo’s gaming operations are lawful — something the State must do in order to enforce its own law .... ” Qualified Immunity Motion at 16-17.

The Individual Defendants conclude this line of argumentation by positing that, even if the Gaming Board’s issuance of citations to the vendors was just an indirect attempt to regulate Pojoaque Pueblo’s gaming operations, as Judge Brack argued in his preliminary injunction opinion, the “Supreme Court [has] recognized ... that a state is within its rights to assert ‘leverage’ to enforce its laws against an Indian tribe that is conducting illegal gaming.” Qualified Immunity Motion at 17 (quoting Michigan v. Bay Mills Indian Cmty., 134 S.Ct. at 2035 ). In Michigan v. Bay Mills Indian Cmty. — upon which the Individual Defendants rely heavily in all of their pleadings — the Supreme Court explained that, although federal law may preempt a state from acting directly against a tribe that is gaming illegally, “the state’s ability to assert its authority indirectly by enforcing its law on its own lands remains ‘capacious.’ ” Qualified Immunity Motion at 17 (quoting Michigan v. Bay Mills Indian Cmty., 134 S.Ct. at 2034 ).

ii. Whether the Allegedly Violated Federal Right was Clearly Established.

Turning to the other inquiry of qualified immunity analysis, the Individual Defendants argue that the “Plaintiffs cannot show that there is a clearly established right under federal law that they allege the Individual Defendants violated.” Qualified Immunity Motion at 18. For this inquiry, they reason, the Plaintiffs “ ‘must show legal authority which makes it apparent that in the light of pre-existing law a reasonable official ... would have known that’ the specific conduct at issue violated Plaintiffs’ constitutional rights.” Qualified Immunity Motion at 19 (quoting Green v. Post, 574 F.3d 1294, 1300 (10th Cir. 2009)). The Individual Defendants contend that the Plaintiffs, however, “have no authority to support the proposition that the alleged illegality of [the Individual Defendants’] actions is clearly established.” Qualified Immunity Motion at 20.

In the Complaint, the Plaintiffs assert that the “Individual Defendants knew or should have known that actions purporting to assert jurisdiction of the State over conduct occurring on Pueblo Indian lands wrongfully deprives Plaintiff Talachy and the individual members of the Pueblo of their federal right to engage in conduct free from the Jurisdiction of the State.” Complaint ¶ 145, at 36. The Individual Defendants note that the Plaintiffs do not support this allegation by “citfing any] case holding, or even suggesting, that a tribe or its officials have a right enforceable in an action under Section 1983 or 1985 to be free from state jurisdiction in these circumstances.” Qualified Immunity Motion at 20. Moreover, they argue that no authority supports the proposition that, *1055 “even if the state laws being enforced by the Defendants were preempted — which they are not — application of state law to third-party vendors (not to Plaintiffs) would violate any right held by Plaintiffs.” Qualified Immunity Motion at 20.

In short, the Individual Defendants argue that it is not clearly established that the Gaming Board’s “actions taken against non-Pueblo entities with regard to their ability to contract with non-Pueblo gaming operations are barred by any federal law, much less that they rise to the level of a right protectable under Section 1983.” Qualified Immunity Motion at 20. Thus, they contend that, even assuming “the Individual Defendants wrongfully interfered with the Pueblo’s tribal sovereignty, [they] are nevertheless entitled to qualified immunity because the right allegedly being violated by the Individual Defendants is not supported by clearly established law.” Qualified Immunity Motion at 21.

iii. Count IV as to Martinez and Ritchie.

The Individual Defendants conclude by arguing that Martinez and Ritchie are entitled to dismissal of Count TV for the additional reason that “the actions of which Plaintiffs complain are not actions taken by either Governor Martinez or Rit-chie.” Qualified Immunity Motion at 21. The Individual Defendants note that the Tenth Circuit “requires a plaintiff to demonstrate that the defendant before the court is responsible for the constitutional deprivation at issue.” Qualified Immunity Motion at 21 (citations omitted). However, all but one of the “allegations that the Plaintiffs complain of in their Complaint and subsequent pleadings are allegations of wrongdoing by [the Gaming Board] .... ” Qualified Immunity Motion at 22. According to the individual Defendants, the only wrongdoing attributed to Martinez is her June 30, 2015, statement that the U.S. Attorney’s Letter “provides no protection to banks, credit card vendors, gaming machine vendors, advertisers, bondholders, and others that are now doing business with an illegal gambling enterprise.” Qualified Immunity Motion at 22 (quoting Complaint ¶ 68, at 21). The only allegation against Ritchie is a derivative claim that he “made or caused to be made” similar “official pronouncements.” Qualified Immunity Motion at 22 (quoting Complaint ¶ 72, at 22).

These allegations, the Individual Defendants contend, do not establish that Martinez or Ritchie “personally participated in the alleged constitutional violations, or acquiesced in the alleged wrongdoing.” Qualified Immunity Motion at 22 (citation omitted). The Individual Defendants cite a recent case decided by the United States District Court for the District of Arizona involving letters written by the Arizona Governor and. Attorney General to the Arizona Department of Gaming “reciting their views regarding the illegality of the [Tohono O’odham Nation’s gaming] actions.” Qualified Immunity Motion at 22 (citing Tohono O’odham Nation v. Ducey, 2015 U.S. Dist. LEXIS 124979, at *15-18 (D. Ariz. 2015)) (Campbell, J.). There, the court held that the letters “influenced the [Arizona Department of Gaming’s] decision to deny the tribe’s gaming certification .... ” Qualified Immunity Motion at 22. Yet the officials’ “indirect involvement was insufficient to subject [them] to individual liability under Ex parte Young[, 209 U.S. 123 , 28 S.Ct. 441 , 52 L.Ed. 714 (1908),] because neither the governor nor the attorney general took ‘actual enforcement action’ against the tribe.” Qualified Immunity Motion at 22-23 (quoting Tohono O’odham Nation v. Ducey, 2015 U.S. Dist. LEXIS 124979, at *16-18 ).

The Individual Defendants ask the Court to apply the same standard here. See Qualified Immunity Motion at 23. In *1056 their view, Martinez and Ritchie took no “actual enforcement action” against Poj-oaque Pueblo. See Qualified Immunity Motion at 23 (citation omitted). The Individual Defendants contend that there is certainly “no clearly established authority that would have alerted Governor Martinez and Ritchie that any warning to the Vendors of potential enforcement action against them would violate the Pueblo’s federal rights.” Qualified Immunity Motion at 23. Thus, the Individual Defendants argue that Martinez and Ritchie are entitled to qualified immunity for this additional reason. See Qualified Immunity Motion at 23.

b. The Plaintiffs’ Response.

Plaintiffs Pojoaque Pueblo and Talachy raise three primary arguments in opposition to the Individual Defendants’ motion to dismiss Count IV on the basis of qualified immunity. First, they contend that Pojoaque Pueblo’s federal right to be free from New Mexico’s jurisdiction over its gaming operations is clearly established, and that the Individual Defendants knew or should have known that their actions violated those rights. See Qualified Immunity Motion Response at 4. Second, they argue that the Complaint’s allegations against Martinez and Ritchie are sufficient to keep both Defendants in the case and subject to further discovery. See Qualified Immunity Motion at 7. Finally, they argue that because this litigation will proceed on the merits regardless of the Court’s disposition as to the qualified immunity defense, the policies underlying that defense are immaterial to this action. See Qualified Immunity Motion at 11.

i. Clarity of the Law Regarding State Jurisdiction Over Tribal Gaming.

The Plaintiffs begin by characterizing the Qualified Immunity Motion as “a poorly veiled attempt to re-litigate ... the preliminary injunction motion, which was granted in Plaintiffs’ favor after full briefing and a hearing.” Qualified Immunity Motion Response at 5. Further, the Plaintiffs contend they are “not required to defeat the qualified immunity defense on the merits at this juncture in the litigation.” Qualified Immunity Motion Response at 6. Rather, according to the Plaintiffs “[t]he Pueblo merely needs to demonstrate that it has presented a plausible claim that a clearly-established federal right has been violated by the [Individual Defendants], and that it would be ‘clear to a reasonable officer that his conduct was unlawful in the situation he confronted.’ ” Qualified Immunity Motion Response at 6. See id. at 4-5 (noting that the Court previously denied a motion to dismiss on qualified immunity grounds because the complaint alleged a “plausible” cause of action even though “there was not a precise appellate court case on point”)(citing Hunt v. Central Cosol. School District, 951 F.Supp.2d 1136, 1233-34 (2013))(Browning, J.). The Plaintiffs argue that the very fact that Judge Brack granted the Plaintiffs a preliminary injunction, based on a finding of a substantial likelihood that the Plaintiffs would prevail on the merits, illustrates a plausible claim that defeats this motion. See Qualified Immunity Motion Response at 5.

The Plaintiffs rely heavily on Judge Brack’s MOO, arguing that Judge Brack found that a clearly-established federal right was violated by the Individual Defendants and that his reasoning “compels denial of [the] Motion to Dismiss.” Qualified Immunity Motion Response at 6. Specifically, the Plaintiffs cite to Judge Brack’s admonition that the Individual Defendants’ actions are “ ‘based, quite clearly, on Defendants’ own determination that the post-June 30, 2015 Class III gaming at the Pueblo is illegal — a determination that the Defendants, just as clearly, are without jurisdiction or authority to make.’ ” Qualified Immunity Motion Response at 6 (quoting Judge Brack’s MOO at *28)(citations *1057 omitted). The Plaintiffs also portray Judge Brack’s MOO as concluding that the Individual Defendants “ ‘know that they have stepped over the line in their attempt to assert state jurisdiction over the Pueblo’s gaming.” Qualified Immunity Motion Response at 6. They note that Judge Brack found that the “Defendants’ harassment and threatening conduct directed at the vendors is a thinly disguised attempt to accomplish indirectly that which the defendants know they are without authority or jurisdiction to accomplish directly.” Qualified Immunity Motion Response at 6 (quoting Judge Brack’s MOO at *29)(emphasis added).

Thus, the Plaintiffs argue that the reasoning in Judge Brack’s MOO defeats both prongs of qualified immunity analysis'— that the Individual Defendants violated a federal right and that they knowingly violated that right. See Qualified Immunity Motion Response at 6. As a result, according to the Plaintiffs, the Qualified Immunity Motion “falls far short of establishing ‘beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.’ ” Qualified Immunity Motion Response at 7 (quoting Peterson v. Jensen, 371 F.3d 1199, 1201 (10th Cir. 2004))(reciting the standard of review for a motion to dismiss).

ii. The Allegations Against Defendants Martinez and Ritchie.

The Plaintiffs next argue that the Complaint’s allegations against Martinez and Ritchie “are sufficient, on their own, to survive the Motion to Dismiss.” Qualified Immunity Motion Response at 7. The Plaintiffs argue that Martinez’ and Rit-chie’s statements to the public — statements which the Individual Defendants do not dispute they made — constitute “threats to licensees doing business with the Pueblo, and are part of the State’s unlawful attempt to assert jurisdiction over the Pueblo’s gaming activities.” Qualified Immunity Motion Response at 7-8. The Plaintiffs again refer to Judge Brack’s MOO, which “expressly identified the press statements ... as part of the actions that caused him to conclude that ‘Plaintiffs have established that the Individual Defendants are attempting to enforce state gaming regulations on the Pueblo’s Indian lands in the absence of a tribal-state compact.’ ” Qualified Immunity Motion Response at 8 (quoting Judge Brack’s MOO at *22). It is immaterial, the Plaintiffs argue, whether the Gaming Board members “engaged in more frequent and concrete examples of threatening behavior ....” Qualified Immunity Motion Response at 8.

In fact, the Plaintiffs contend that the Individual Defendants have refused to provide key information that is likely to further substantiate the Complaint’s allegations against Martinez and Ritchie. See Qualified Immunity Motion Response at 8. Specifically, the Plaintiffs argue that certain correspondence between the Governor’s Office and the Gaming Board “will likely reveal additional manifestations of misconduct” by Martinez and/or Ritchie, or “provide evidence of a conspiracy between officials in the Governor’s Office and the [Gaming Board].” Qualified Immunity Motion Response at 8. The Plaintiffs note that their requests for this correspondence have been pending since September, 2015, yet the Individual Defendants have made only excuses and delayed production. See Qualified Immunity Motion Response at 9-10. In light of these circumstances, the Plaintiffs appeal to the Court to delay consideration of the Qualified Immunity Motion to allow an opportunity for the Plaintiffs to discover facts material to the qualified immunity issue. See Qualified Immunity Motion Response at 9-10 (citation omitted).

Finally, the Plaintiffs argue that the facts in Tohono O’odham Nation v. Du *1058 cey — which the Individual Defendants cite as analogous to this case’s facts — are “critically distinguishable.” Qualified Immunity Motion Response at 10. There, the Arizona Governor and Attorney General wrote letters to the Arizona Department of Gaming regarding enforcement action against vendors dealing with the Tohono O’odham Nation. See Qualified Immunity Motion Response at 10 (citing Tohono O’odham Nation v. Ducey, 2015 U.S. Dist. LEXIS 124979, at *5 ). Yet here, Martinez and Ritchie made public threats and “intended to assert jurisdiction over the Pueblo’s gaming activities .... ” Qualified Immunity Motion Response at 10. The Plaintiffs view this factual difference as an important distinction warranting keeping Martinez and Ritchie in the case,

iii. Qualified Immunity and Claims for Prospective Equitable Relief.

The Plaintiffs devote a sizeable portion of their Response to arguing that “qualified immunity is not available as a defense to claims seeking prospective equitable relief.” See Qualified Immunity Motion Response at 11-13. The Plaintiffs cite numerous cases with holdings- to that effect. See Qualified Immunity Motion Response at 11-13. The Plaintiffs further note that none of the cases relied on which the Individual Defendants rely were “brought in the context of defeating a claim for prospective equitable relief;” thus, the Plaintiffs contend, those cases have no relevance to Counts II and III of the Plaintiffs’ Complaint, which seek prospective equitable relief. See Qualified Immunity Motion Response at 13.

The point of this line of analysis, it seems, is that the Court should deny the Qualified Immunity Motion, because the litigation will still proceed against the Individual Defendants regardless whether Count IV stands. See Qualified Immunity Motion Response at 11. Consequently, according- to the Plaintiffs, the Individual Defendants will still be “subject to the same burdens of litigation, including discovery .... ” Qualified Immunity Motion Response at 11. The Plaintiffs contend that such discovery, particularly with respect to Counts II and III, will involve the development of matters that are necessary to the Individual Defendants’ qualified immunity defense. See Qualified Immtmity Motion Response at 13. Thus, the Plaintiffs argue that the Court should “decline ... to definitively rule on this issue in the context of a motion to dismiss.” See Qualified Immunity Motion Response at 13 (citations omitted).

c. The Individual Defendants’ Reply.

The Individual Defendants’ Reply first addresses the Plaintiffs’ argument that the Court should deny the Qualified Immunity Motion because it is too early in the litigation to consider this defense. See Qualified Immunity Motion Reply at 2. The Individual Defendants note that the Tenth Circuit, and the Court’s precedent counsels that the Court should resolve qualified immunity “at the earliest possible stage in litigation.” Qualified Immunity Motion Reply at 2 (quoting Albright v. Rodriguez, 51 F.3d 1531, 1534 (10th Cir. 1995)). See id. (noting that the Court has stressed that, “to avoid unnecessary exposure to burdensome discovery, the preferred practice is for the government officials to move to dismiss the action based on qualified immunity before discovery is ordered”)(quoting Saenz v. Lovington Mui. Sch. Dist.,. 2015 WL 1906140 , at *5, 2015 U.S. Dist. LEXIS 55175 , *11 (D.N.M. 2015)(Browning, J.)). The Individual Defendants also note that the Supreme Court, the Tenth Circuit, and the Court and have all held that “qualified immunity properly can be granted in the context of a motion to dismiss.” Qualified Immunity Motion Reply at 2 (citations omitted).

*1059 Turning to the qualified immunity analysis’ merits, the Individual Defendants argue that the Plaintiffs wholly fail to address the Individual Defendants’ central thesis: that qualified immunity is warranted, because New Mexico can “enforce its gaming laws and regulations against non-Indian gaming manufacturers in connection with their dealings with non-Indian gaming operators off tribal lands without violating the Pueblo’s clearly established federal rights.” Qualified Immunity Motion Reply at 4. Rather, the Plaintiffs contend that they must simply show that they have “presented a plausible claim that a clearly-established federal right has been violated .... ” Qualified Immunity Motion Reply at 4. This, the Individual Defendants argue, confuses the factual pleading standard under Bell Atlantic Corp. v. Twombly, 550 U.S. 544 , 127 S.Ct. 1955 , 167 L.Ed.2d 929 (2007), with the two-part legal theory required for a qualified immunity defense. See Qualified Immunity Motion Reply at 4. The Individual Defendants note that Tenth Circuit precedent requires more than mere allegations that a defendant has violated a clearly established legal right; rather, the “ ‘plaintiff must demonstrate a substantial correspondence between the conduct in question and prior law allegedly establishing that the defendant’s actions were clearly prohibited.’ ” Qualified Immunity Motion Reply at 4 (quoting Hannula v. Lakewood, 907 F.2d 129, 131 (10th Cir. 1990)). Thus, a “plausible” violation of a clearly established federal right is insufficient; the Plaintiffs must illustrate a specific connection between the actions of which they complained complained and the allegedly violated federal right. See Qualified Immunity Motion Reply at 5.

The Individual Defendants next argue that the Plaintiffs’ appeal to Judge Brack’s analysis in the preliminary injunction as “conclusive on this issue” is improper. Qualified Immunity Motion Reply at 5. The PI Motion, they note, “did not address the issue of whether the Individual Defendants’ actions violated Plaintiffs’ federal rights (as opposed to more generally violating federal law), or whether those rights were clearly established.” Qualified Immunity Motion Reply at 5. Judge Brack’s findings based on the PI Motion are therefore inapposite. See Qualified Immunity Motion Reply at 5.

In any event, the Individual Defendants argue that the conclusions in Judge Brack’s MOO are simply not binding on the Court in considering the Qualified Immunity Motion. See Qualified Immunity Motion Reply at 6. The Individual Defendants note that the Supreme Court has stated that “ ‘the findings of fact and conclusions of law made by a court granting a preliminary injunction are not binding at the trial on the merits.’ ” Qualified Immunity Motion Reply at 6 (quoting Navajo Health Found. v. Burwell, 100 F. Supp. 3d 1122, 1126 (D.N.M. 2015))(Browning, J.)(quoting Attorney Gen. of Okla. v. Tyson Foods, Inc., 565 F.3d 769, 776 (10th Cir. 2009))(quoting Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 , 101 S.Ct. 1830 , 68 L.Ed.2d 175 (1981)). Further, the Tenth Circuit has held that a preliminary injunction ruling is not applicable to a court’s disposition of a motion to dismiss or motion for summary judgment. See Qualified Immunity Motion Reply at 6 (citing Chanute v. Williams Natural Gas Co., 955 F.2d 641 , 649 (10th Cir. 2009) overruled on other grounds by Systemcare, In. v. Wang Labs. Corp., 117 F.3d 1137 (10th Cir. 1997); Berrigan v. Sigler, 499 F.2d 514, 518 (D.C. Cir. 1974); American Ass’n of Disabilities v. Herrera, 690 F.Supp.2d 1183, 1211 (D.N.M. 2010)(Browning, J.)). This is because of the “ ‘limited purpose’ of a preliminary injunction ‘and given the haste that is often necessary’ to effectuate the purpose of a preliminary injunction, which is ‘customarily granted on the basis of procedures that are less formal and evi *1060 dence that is less complete than in a trial on the merits.’ ” Qualified Immunity Motion Reply at 6-7 (quoting Univ. of Tex. v. Camenisch, 451 U.S. at 395 , 101 S.Ct. 1830 ). Importantly here,

[t]he Individual Defendants did not have adequate opportunity to brief, and Judge Brack therefore did not have the benefit of their analysis of, the complicated and core questions of whether the Individual Defendants’ exercise of the State’s police power was preempted by IGRA, or whether IGRA even reaches actions taken off-reservation.

Qualified Immunity Motion Reply at 7. Consequently, according to the Individual Defendants, Judge Brack simply “accepted as correct Plaintiffs’ contention that IGRA applied to and preempted the Individual Defendants’ ability to act against non-Indians off tribal lands.” Qualified Immunity Motion Reply at 7-8. Additionally, according to the Individual Defendants, “the issue of whether there was a violation of a clearly established federal right (as opposed to a more general violation of federal law) was not addressed at all in connection with the preliminary injunction.” Qualified Immunity Motion Reply at 8.

Notwithstanding the above, the Individual Defendants argue that Judge Brack “made findings and conclusions regarding Plaintiffs’ likelihood of success on the merits, not a decision on the merits.” Qualified Immunity Motion Reply at 8. The Individual Defendants posit that the preliminary and temporary nature of the preliminary injunction order mean that it is “neither binding nor persuasive authority.” Qualified Immunity Motion Reply at 8.

Moving to the violation prong of qualified immunity analysis, the Individual Defendants argue that the Plaintiffs have failed to establish that the Individual Defendants violated federal law, because no federal law preempts New Mexico’s exercise of its “authority to enforce its gaming laws in the manner alleged in the Complaint.” See Qualified Immunity Motion Reply at 8-9. As in the Qualified Immunity Motion, the Individual Defendants explain that: (i) there is no explicit preemption language in IGRA; (ii) federal law does not conflict with New Mexico’s “regulatory authority over non-Indian licensees conducting gaming within the State and outside tribal lands”; and (iii) “IGRA does not occupy the field because it does not apply outside of tribal lands .... ” Qualified Immunity Motion Reply at 9. Thus, neither “IGRA nor any other federal law preempts [New Mexico’s] police powers in this manner.” Qualified Immunity Motion Reply at 9.

With respect to the clearly established prong, the Individual Defendants argue that the Plaintiffs still fail to establish a violation of a clearly established right. See Qualified Immunity Motion Reply at 9. The Plaintiffs, they contend, “have not and cannot identify in IGRA or any other federal statute an ‘unambiguously conferred right’ that supports their Section 1983/1985 claim.” Qualified Immunity Motion Reply at 9. Indeed, according to the Individual Defendants, the Plaintiffs fail to “identify a single ‘Supreme Court or Tenth Circuit decision on point, or [show that] the clearly established weight of authority from other courts [ ] have found the law to be as the [Plaintiffs maintain[].’” Qualified Immunity Motion Reply at 10 (quoting Green v. Post, 574 F.3d 1294, 1300 (10th Cir. 2009)). Instead, the Plaintiffs simply allege that the Individual Defendants are “wrongfully asserting State jurisdiction over gaming activities on the Pueblo’s Indian lands.” Qualified Immunity Motion Reply at 10 (quoting Complaint ¶ 148, at 36). The Individual Defendants argue that this cursory allegation provides “no authority that, even if the state laws being enforced ... were preempted — which they are not — application of state law to third-party ven *1061 dors (not to Plaintiffs) would violate any clearly established federal right held by Plaintiffs.” Qualified Immunity Motion Reply at 10. Consequently, according to the Individual Defendants, “Count IV fails to state a claim upon which relief can be granted.” Qualified Immunity Motion Reply at 9.

Finally, the Individual Defendants advance the argument that Martinez and Rit-chie are entitled to dismissal, because “they are alleged to have done nothing but make statements about the potential legal consequences faced by non-Indian vendors continuing to do business with the Pueblo’s illegal gaming operation after the expiration of the compact.” Qualified Immunity Motion Reply at 10. The Individual Defendants argue that the Plaintiffs’ attempt to distinguish Tohono O’odham Nation v. Ducey on the basis that the statements in that case were made privately, not publicly, is immaterial. See Qualified Immunity Motion Reply at 11. The important issue, they argue, is “the fact that the officials in Tohono (and Governor Martinez and Rit-chie here), ‘have not written directly to the Nation or otherwise directly threatened enforcement of the law against the nation.’ ” Qualified Immunity Motion Reply at 11 (quoting Tohono O’odham Nation v. Ducey, 2015 U.S. Dist. LEXIS 124979, at *18 ). Moreover, the Individual Defendants argue that the Court has previously rejected the Plaintiffs’ request for additional discovery to potentially uncover additional evidence of wrongdoing on Martinez and Ritchie’s part. See Qualified Immunity Motion Reply at 11 (citing Saenz v. Lovington Mun. Sch. Dist., 2015 WL 1906140 , 2015 U.S. Dist. LEXIS 55175 (D.N.M. 2015)(Browning, J.)). There, the Court explained, in the context of a motion to dismiss, “ ‘the Court will consider all factual allegations as true. Additional discovery would not assist Saenz in responding to the MTD, because the Court would not consider additional discovery.’” Qualified Immunity Motion Reply at 11-12 (quoting Saenz v. Lovington Mun. Sch. Dist., 2015 WL 1906140 , at *11, 2015 U.S. Dist. LEXIS 55175 , at *25-26). Thus, the Individual Defendants contend that the Court should deny the Plaintiffs’ request for additional discovery, and dismiss Count IV as against Martinez and Ritchie. See Qualified Immunity Motion Reply at 12.

2, The Motion for Stay of Discovery Pending Qualified Immunity Rulings.

Contemporaneously with their Qualified Immunity Motion, the Individual Defendants moved the Court on December 4, 2015, for a “stay of discovery pending a ruling on their motion to dismiss.” Motion to Stay Discovery at 1. The Plaintiffs submitted a response on December 18, 2015. See Plaintiffs Pueblo of Pojoaque and Joseph M. Talachy’s Opposition to Defendants’ Susana Martinez, Jeremiah Ritchie, Jeffrey S. Landers, Salvatore Maniaci, Paulette Becker, Robert M. Doughty III, and Carl E. Londene Motion to Stay Discovery Pending Qualified Immunity Rulings at 1, filed December 18, 2015 (Doc. 67)(“Motion to Stay Discovery Response”). The Individual Defendants replied on January 8, 2016. See Defendants Susana Martinez, Jeremiah Ritchie, Jeffrey S. Lan-ders, Salvatore Maniaci, Paulette Becker, Robert M. Doughty III, and Carl E. Lon-dene’s Reply in Support of Their Motion For Stay of Discovery Pending Qualified Immunity Rulings at 1, filed December 8, 2016 (Doc. 81)(“Motion to Stay Discovery Reply”). The Court discusses these pleadings in turn.

a. The Motion To Stay Discovery.

The Individual Defendants argue that a stay of discovery is warranted in light of the policies underlying the qualified immunity defense. See Motion to Stay Discovery at 2. The defense, they argue, is “ ‘meant *1062 to give government officials a right, not merely to avoid standing trial, but also to avoid the burdens of such pretrial matters as discovery.’ ” Motion to Stay Discovery at 2 (quoting Behrens v. Pelletier, 516 U.S. 299, 308 , 116 S.Ct. 834 , 133 L.Ed.2d 773 (1996)). The Individual Defendants note that “ ‘the Supreme Court has repeatedly stressed the importance of resolving immunity questions at the earliest possible stage in litigation.’ ” Motion to Stay Discovery at 2 (quoting Albright v. Rodriguez, 51 F.3d 1531, 1534 (10th Cir. 1995)). Thus, they argue that once a qualified immunity defense has been raised, “ ‘discovery should not be allowed.’ ” Motion to Stay Discovery at 2 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818-19 , 102 S.Ct. 2727 , 73 L.Ed.2d 396 (1982)). Given these principles, the Individual Defendants argue that a stay of discovery is appropriate in this case. See Motion to Stay Discovery at 2.

b. The Plaintiffs’ Response.

The Plaintiffs argue that the policy rationale underlying the principle that qualified immunity issues should be resolved at the “earliest possible stage in litigation,” see Motion to Stay Discovery at 2 (citation omitted), do not apply to the present litigation. See Motion to Stay Discovery Response at 2. Specifically, the Plaintiffs argue the policy urging early resolution of qualified immunity issues is “grounded on the notion that an immune official should not be forced to endure the burdens of the litigation.” Motion to Stay Discovery Response at 2 (citing Anderson v. Creighton, 483 U.S. 635 , 646 n.6, 107 S.Ct. 3034 , 97 L.Ed.2d 523 (1987)). Yet here, the Plaintiffs note, “that justification is inapplicable [ ] because the Defendant Officials will remain in, and be burdened by this litigation regardless of whether Count IV is dismissed.” Motion to Stay Discovery Response at 3. See id. (Distinguishing the cases cited by the Individual Defendants because none involve “additional claims for prospective equitable relief’).

Finally, the Plaintiffs argue that the ultimate resolution of the Qualified Immunity Motion will require additional discovery. See Motion to Stay Discovery Response at 3. The Plaintiffs note that the Supreme Court in Anderson v. Creighton observed that “the discovery of facts material to the issue of qualified immunity may be necessary before a court’s consideration of a qualified immunity defense may be resolved.” Motion to Stay Discovery Response at 4 (citing 483 U.S. at 646 n.6, 107 S.Ct. 3034 ). As a result, the Plaintiffs argue that the issue of qualified immunity should not be resolved this early in the litigation. See Motion to Stay Discovery Response at 4.

c. The Individual Defendants’ Reply.

The Individual Defendants first emphasize that qualified immunity defenses should be resolved at the “ ‘earliest possible stage in the litigation.’ ” Motion to Stay Discovery Reply at 2. The Individual Defendants argue that this is true even where, as here, there are multiple claims, not all of which can be disposed of on qualified immunity grounds. See Motion to Stay Discovery Reply at 2. The Individual Defendants cite Saenz v. Lovington Muni. Sch. Dist., 2015 WL 1906140 , 2015 U.S. Dist. LEXIS 55175 (D.N.M. 2015)(Browning, J.), where the Court granted a stay on qualified immunity grounds despite the fact that the complaint alleged multiple claims outside the scope of that defense. See Motion to Stay Discovery Reply at 2. Thus, the Individual Defendants argue that the policy rationale for staying discovery in this context is “particularly applicable to the Individual Defendants.” Motion to Stay Discovery Reply at 3 (citing Harlow v. Fitzgerald, 457 U.S. at 817 , 102 S.Ct. 2727 ).

The Individual Defendants also contend that the Plaintiffs’ argument that additional discovery should be permitted to bolster *1063 their claims has previously been considered an rejected by the Court. See Motion to Stay Discovery Reply at 3. The Individual Defendants cite the Court’s decision in Saenz v. Lovington Muni. Sch. Dist., which explained that “the Court will consider all factual allegations as true. Additional discovery would not assist Saenz in responding ... because the Court would not consider additional discovery.” Motion to Stay Discovery Reply at 3 (quoting 2015 WL 1906140 , at *11, 2015 U.S. Dist. LEXIS 55175 , at *25-26). The Individual Defendants stress the Court’s pronouncement in that case that, “ ‘[o]nce the qualified immunity defense has been raised, the Court must not let a plaintiff use discovery as a fishing expedition to flesh out the merits of his claim.’ ” Motion to Stay Discovery Reply at 3-4 (quoting Saenz v. Lovington Muni. Sch. Dist., 2015 WL 1906140 , at *11, 2015 U.S. Dist. LEXIS 55175 , at *26). Considering this analysis, the Individual Defendants argue that the “Plaintiffs have no legitimate reason to conduct discovery on the Individual Defendants’ qualified immunity defense.” Motion to Stay Discovery Reply at 4.

3. The Motion to Dismiss Count II of the Complaint.

On December 22, 2015, the Individual Defendants moved to dismiss Count II of the Complaint. See Motion to Dismiss Count II at 1. Count II, brought by Ta-lachy in his “personal capacity and on behalf of the enrolled members of the Pueblo,” alleges that the Individual Defendants violated the Plaintiffs’ “right, based on the Supremacy Clause, to engage in activity on the Pueblo’s Indian lands in a manner that is free from state interference.” Complaint ¶ 133, at 34. Talachy seeks a declaratory relief and an injunction barring the “Individual Defendants from taking any action on licenses issued by the [Gaming Board] based on the licensed entity conducting business with the Pueblo” and “from taking any official action, or refraining to take any official action that is based upon the legal status of gaming activity occurring on the Pueblo’s Indian lands.” Complaint ¶¶ D-K. The Plaintiffs submitted a response on January 25, 2016. See Response in Opposition to State Defendants’ Motion to Dismiss Count II of the Plaintiffs [sic] Complaint at 1, filed January 25, 2016 (Doc. 86)(“Motion to Dismiss Count II Response”). The Individual Defendants replied on February 23, 2016. See Defendants’ Reply in Support of Their Motion to Dismiss Count II of Plaintiffs’ Complaint, filed February 23, 2016 (Doc. 97)(“Motion to Dismiss Count II Reply”). The Court will discuss these pleadings briefly, as the arguments made therein are largely dupli-cative of the parties’ earlier filings.

a. The Motion to Dismiss Count II.

The Defendants make four arguments in support of their Motion to Dismiss Count II. First, the Individual Defendants note that the Supremacy Clause, upon which Count II is explicitly based, is “‘not a source of any federal rights’; it ‘secures federal rights by according them priority whenever they come in conflict with state law.’ ” Motion to Dismiss Count II at 6 (quoting Golden State Transit Corp v. Los Angeles, 493 U.S. 103, 107 , 110 S.Ct. 444 , 107 L.Ed.2d 420 (1989)). Accordingly, the Individual Defendants contend that, “because the Supremacy Clause does not support a private right of action, Count II fails to state a claim as a matter of law and should be dismissed.” Motion to Dismiss Count II at 6.

Second, the Individual Defendants argue that Count II fails to allege facts that would support a claim that the Individual Defendants violated the Plaintiffs’ federal rights, since “no federal law prevents the State of New Mexico from exercising its authority to enforce its gaming laws in the manner alleged in Plaintiffs’ Complaint.” *1064 Motion to Dismiss Count II at 7. The Individual Defendants largely replicate the arguments in their Qualified Immunity Motion, discussed supra, about the exercise of New Mexico’s police powers, the lack of federal preemption of those powers, and the immateriality of the indirect impacts of the Gaming Board’s regulations’ on Pojoaque Pueblo’s gaming operations. See Motion to Dismiss Count II at 7-11.

Third, the Individual Defendants contend that Talachy is an improper plaintiff to bring Count II of the complaint, as he is not a “sovereign[ ], and therefore [has] no rights of sovereigns to engage in gaming ‘free from state interference.’ ” Motion to Dismiss Count II at 11. The Individual Defendants assert that, in the context of a 42 U.S.C. § 1983 claim, “individual tribal officials and members have no independent ownership interest in the [Pueblo’s gaming operations]; they are tribal officers and members attempting to obtain immunity from state laws based upon the sovereign status of the tribe.” Motion to Dismiss Count II at 11-12 (citing Winnebago Tribe v. Kline, 297 F.Supp.2d 1291, 1298 (D. Kan. 2004)(internal quotation marks omitted)). Thus, they argue, Talachy, as an individual tribal official, has no “no independent rights, derived from the Pueblo’s claimed sovereignty rights, that he may vindicate on behalf of himself, other tribal members, or the Pueblo itself.” Motion to Dismiss Count II at 12 (citation omitted).

Finally, the Individual Defendants argue that Martinez and Ritchie are entitled to dismissal for additional reason that “the actions of which Plaintiffs complain are not actions taken by either Governor Martinez or Ritchie.” Motion to Dismiss Count II at 12. The Individual Defendants largely repeat the arguments in their Qualified Immunity Motion, discussed supra.

b. The Plaintiffs’ Response.

The Plaintiffs open by disputing the Individual Defendants’ contention that Count II fails to state a cause of action because the Supremacy Clause is not a source of rights. See Motion to Dismiss Count II Response at 2. The Plaintiffs concede that the Supremacy Clause does not create a private right of action, but counter that the “Supreme Court has recently affirmed and recognized the existence of the cause of action set forth in Count II in Armstrong v. Exceptional Child Ctr., Inc., — U.S. -[, 135 S.Ct. 1378 , 191 L.Ed.2d 471 (2015)].” Motion to Dismiss Count II Response at 2. The Plaintiffs note that there, the Supreme Court held that “if an individual claims federal law immunizes him from state regulation, the court may issue an injunction upon finding the state regulatory actions preempted.” 135 S.Ct. at 1384 (citing Ex parte Young, 209 U.S. at 155-156 , 28 S.Ct. 441 ). The Plaintiffs argue that the Court should apply this analysis to find that Count II presents a cognizable claim brought pursuant to the Court’s equitable power. See Motion to Dismiss Count II Response at 4.

The Plaintiffs’ remaining arguments are largely duplicative of their earlier filings. First, the Plaintiffs argue that the Individual Defendants’ actions are preempted by federal law. See Motion to Dismiss Count II Response at 5. The Plaintiffs refer to and incorporate the preemption arguments in their Motion to Reconsider Response, discussed supra. Next, the Plaintiffs contend that Talachy has standing to bring Count II. The Plaintiffs refer to and incorporate the standing arguments in their Motion to Dismiss Counts III and IV Response, discussed supra. Finally, the Plaintiffs argue that “the allegations against Governor Martinez and Mr. Ritchie are sufficient, on their own, to survive the Motion to Dismiss.” Motion to Dismiss Count II Response at 8. The Plaintiffs replicate the same arguments in their Qualified Immunity Motion Response, discussed supra.

*1065 c. The Individual Defendants’ Reply.

Beginning with the Supremacy Clause issue, the Individual Defendants argue that the Plaintiffs’ contention that Count II states a cognizable claim pursuant to the Court’s equitable power is inaccurate. See Motion to Dismiss Count II Reply at 2. Instead, they argue, Count II is “explicitly ‘based on the Supremacy Clause,’ ” not on the Court’s equitable power. Motion to Dismiss Count II Reply at 2 (quoting Complaint ¶ 133, at 34).

With respect to the preemption issue, the Individual Defendants refer to and incorporate their lengthier analysis in their Qualified Immunity Motion and Motion to Reconsider Reply, discussed supra. The Individual Defendants add that “‘Tribes do not have supersovereign authority to interfere with another jurisdiction’s right to enforce laws within its borders.’ ” Motion to Dismiss Count II Reply at 3 (quoting Muscogee (Creek) Nation v. Pruitt, 669 F.3d 1159 , 1182 n.11 (10th Cir. 2012)).

The Individual Defendants argue next that Talachy has no standing to bring Count II. Motion to Dismiss Count II Reply at 3. The Individual Defendants refer to and incorporate the arguments made in their Motion to Dismiss Counts III and IV Reply, discussed supra.

Finally, with respect to the allegations against Martinez and Ritchie, the Individual Defendants extend the argument that both individuals are entitled to dismissal, as there is an “absence of fairly direct connection” between their actions and the Gaming Board’s actions. See Motion to Dismiss Count II Reply at 4 (citation and internal quotation marks omitted). The Individual Defendants’ arguments largely resemble the arguments in their Qualified Immunity Motion Reply, discussed supra.

4. The Motion to Dismiss Count V of the Complaint.

On December 22, 2015, the Defendants moved to dismiss Count V of the Complaint. See Motion to Dismiss Count V at 1. Count V seeks unspecified relief against New Mexico and all of the Individual Defendants based on the Individual Defendants’ alleged tortious interference with existing contract relations as “recognized by the courts of the State of New Mexico.” Complaint ¶ 153. The Plaintiffs submitted a response on January 25, 2016. See Response to State Defendants’ Motion to Dismiss Count V of Plaintiffs [sic] Complaint at 1, filed January 25, 2016 (Doc. 89)(“Mo-tion to Dismiss Count V Response”). The Defendants replied on February 23, 2016. See Defendants’ Reply in Support of their Motion to Dismiss Count V of Plaintiffs’ Complaint at 1, filed February 23, 2016 (Doc. 95)(“Motion to Dismiss Count V Reply”). The Court discusses these pleadings in turn.

a. The Motion to Dismiss Count V.

The Defendants make two main arguments in support of their Motion to Dismiss Count V. First, the Defendants argue that New Mexico is “immune from suit in federal court pursuant to the Eleventh Amendment to the United States Constitution.” Motion to Dismiss Count V at 1. The Defendants note that New Mexico has not waived its Eleventh Amendment immunity in this case. See Motion to Dismiss Count Vat 3.

Second, the Defendants argue that, pursuant to the New Mexico Tort Claims Act, N.M.S.A §§ 41-4-1 to -30 (“the NMTCA”), New Mexico and its employees are “immune from liability under state tort liability.” Motion to Dismiss Count V at 1. The Defendants note that, under the NMTCA, “[a] governmental entity and any public employee while acting within the scope of duty are granted immunity from liability *1066 for any tort except as waived by the New Mexico Religious Freedom Restoration Act and by Sections 41-4-5 through 41-4-12 N.M.S.A. 1978.” Motion to Dismiss Count V at 1 (quoting N.M.S.A §§ 41-4^4). In turn, the Defendants note that “scope of dut[ies]” as used in the NMTCA encompasses “any duties that a public employee is requested, required or authorized to perform by the governmental entity, regardless of the time or place of performance.” Motion to Dismiss Count V at 2 (quoting N.M.S.A §§ 41-4-3(G)). The Defendants argue that the Complaint’s allegations concern “actions taken by the Individual Defendants within the scope of their duties, as that term is used in the NMTCA.” Motion to Dismiss Count V at 2. Thus, the Defendants argue that the Defendants are not liable under Count V, as “intentional tort liability, including liability for tortious interference with contract, is not waived by the NMTCA.” Motion to Dismiss Count V at 2 (citing El Dorado Utils., Inc. v. Eldorado Area Water and Sanitation Dist., 2005-NMCA-036, ¶¶ 24-25 , 137 N.M. 217 , 109 P.3d 305 ). Accordingly, the Defendants argue that Count V should be dismissed, as the Defendants have not waived their immunity under the NMTCA. See Motion to Dismiss Count V at 3.

b. The Plaintiffs’ Response.

In response to the Defendants’ Motion to Dismiss Count V, the Plaintiffs agree to the dismissal of Count V “by reason of the State’s assertion of Eleventh Amendment immunity.” Motion to Dismiss Count V Response at 2. The Plaintiffs “concur[] with the Defendants that under these circumstances, this Court lacks jurisdiction to hear Count V.” Motion to Dismiss Count V Response at 2.

c. The Defendants’ Reply.

The Defendants’ reply simply reiterates that “it is uncontested that Count V of the Complaint should be dismissed.” Motion to Dismiss Count V Reply at 1.

LAW REGARDING A DISTRICT COURT’S JURISDICTION WHILE MATTERS ARE ON APPEAL

A district court does not have jurisdiction over issues involved in matters pending appellate review. See Lancaster v. Indep. School Dist. No. 5, 149 F.3d 1228 , 1237 (1998); McKissick v. Yuen, 618 F.3d 1177, 1196 (10th Cir. 2010). See also 20 James Wm. Moore, Moore’s Federal Practice § 303.32(2)(a), at 303-74 (3d ed. 2012)(explaining that a district court “cannot alter the status of a case as it rests before a circuit court” on appeal). Conversely, the district court retains jurisdiction over collateral matters, those being matters not involved in the appeal. See Garcia v. Burlington N.R. Co., 818 F.2d at 721; Avendano v. Smith, 2011 U.S. Dist. LEXIS 126945 , at *4 (citing McKissick v. Yuen, 618 F.3d at 1196 ). The Court has ruled that certain matters are definitively collateral, including the decision to award attorneys’ fees, and correcting a clerical error in an order or judgment. See Avendano v. Smith, 2011 U.S. Dist. LEXIS 126945 , at *4; Guidance Endontics, LLC v. Dentsply Intern., Inc., 2011 U.S. Dist. LEXIS 37491 , at *3.

A matter is collateral if it involves different claims against different parties than those claims and parties in a matter pending appellate review. See Int’l Paper Co. v. Whitson, 595 F.2d 559 , 561-62 (10th Cir. 1979). In Int’l Paper Co. v. Whitson, a defendant asserted that the district court did not have jurisdiction to enter judgment against one defendant’s cross-claims while the district court’s judgment as to the cross-claimant in the same case was on appeal. See 595 F.2d at 561-62. The Tenth Circuit cited the “general rule [that] ... filing of a notice of appeal divests the trial *1067 court of jurisdiction ... with respect to any matters involved in the appeal” in explaining that the cross-claims were collateral, because they involved different parties and different claims than those on appeal. Int’l Paper Co. v. Whitson, 595 F.2d at 561-62. Thus, cross-claims were “not involved in the appeal by [the plaintiffs]” and were within the district court’s jurisdiction. 595 F.2d at 562.

In the same respect, a motion for a preliminary injunction which involves the same issues as those in a matter pending appeal is not a collateral matter and is beyond the district court’s jurisdiction. See Int’l Bus. Mach. Corp, v. Johnson, 355 Fed.Appx. 454 (2d Cir. 2009). The United States Court of Appeals for the Second Circuit has addressed this issue with particularity. See Int’l Bus. Mach. Corp. v. Johnson, 355 Fed.Appx. at 454. In Int’l Bus. Mach. Corp. v. Johnson, the Second Circuit ruled on a district court’s jurisdiction over a second motion for a preliminary injunction, while the moving party’s appeal from the district court’s prior denial of the same motion was pending review. See 355 Fed.Appx. at 455-56. Because the second motion presented the same issues and arose from the same facts as those in the motion on appeal, the Second Circuit found that the appeal divested the district court of its jurisdiction. See Int’l Bus. Mach. Corp. v. Johnson, 355 Fed.Appx. at 455-56 (“An interlocutory appeal from the denial of preliminary injunctive relief divests the court ... of jurisdiction with regard to questions raised and decided upon the interlocutory order appealed from.”). The Second Circuit explained: “[T]he relevant issues were on appeal before [the Second Circuit], [thus,] the district court was correct in not allowing a second preliminary injunction motion that would have re-argued those issues before the district court as well.” Int’l Bus. Mach. Corp. v. Johnson, 355 Fed.Appx. at 455-56. A district court, therefore, has no jurisdiction over a motion for a preliminary injunction which requests the same relief and involves the same issues as a matter awaiting appellate review. See Int’l Bus. Mach. Corp. v. Johnson, 355 Fed.Appx. at 455-56.

In the Tenth Circuit, one district court has also found that its jurisdiction was divested over a preliminary injunction which involved issues pending appeal. In Mountain Solutions, Inc. v. State Corp. Comm’n of State of Kan., 982 F.Supp. 812 (D. Kan. 1997)(Van Bebber, J.), the plaintiffs had requested preliminary and permanent injunctive relief in district court. See 982 F.Supp. at 816 . After the district court denied the plaintiffs’ request for preliminary injunctive relief, the plaintiffs filed an interlocutory appeal of that order. See Mountain Solutions, Inc. v. State Corp. Comm’n of State of Kan., 982 F.Supp. at 815 Before the Tenth Circuit ruled on the plaintiffs’ appeal, the defendants brought a motion for partial summary judgment, moving the court to deny the plaintiffs’ request for permanent injunctive relief. See Mountain Solutions, Inc. v. State Corp. Comm’n of State of Kan., 982 F.Supp. at 814-15 . The relief that the plaintiffs requested in their motion for a preliminary injunction and that which the defendants’ motion requested the district court to grant was identical — the parties raised the same legal arguments and requested the same relief. See Mountain Solutions, Inc. v. State Corp. Comm’n of State of Kan., 982 F.Supp. at 816 . In both the plaintiffs’ and defendants’ motions, the facts were not in dispute; rather, the parties disagreed only upon the district court’s interpretation of the applicable law. See Mountain Solutions, Inc. v. State Corp. Comm’n of State of Kan., 982 F.Supp. at 816 . Although the district court noted that normally it would have jurisdiction to proceed on the merits of a case notwithstanding an *1068 interlocutory appeal, and a motion for partial summary judgment would appear to go to the merits of a case, the district court nonetheless found that the plaintiffs’ appeal had divested it of its jurisdiction. See Mountain Solutions, Inc. v. State Corp. Comm’n of State of Kan., 982 F.Supp. at 815-16 . Because the legal issues and arguments in the partial summary judgment motion were “identical to those the court addressed in denying plaintiffs a preliminary injunction,” the district court ruled that it did not have jurisdiction while appellate review was pending of the plaintiffs motion. Mountain Solutions, Inc. v. State Corp. Comm’n of State of Kan., 982 F.Supp. at 816 . The district court distinguished other cases where courts had made rulings during a pending appeal on the grounds that “the merits upon which the district courts were empowered to proceed did not involve the same issues pending on appeal.” Mountain Solutions, Inc. v. State Corp. Comm’n of State of Kan., 982 F.Supp. at 815 . Thus, where a motion presents the same legal issues as those which are on appeal, a district court has no jurisdiction over the matters on appeal until the appellate court has ruled. See 982 F.Supp. at 816 (citing Int’l Paper Co. v. Whitson 595 F.2d at 561-62.).

LAW REGARDING RULE 12(b)(6)

Rule 12(b)(6) of the Federal Rules of Civil Procedure 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)(Brorby, J.). 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 nonmoving party, and draw all reasonable inferences in the plaintiffs favor. See Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 , 127 S.Ct. 2499 , 168 L.Ed.2d 179 (2007)(“[O]nly 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)(Briscoe, J.)(“[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)(McKay, J.)).

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. 662, 678 , 129 S.Ct. 1937 , 173 L.Ed.2d 868 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. at 555 , 127 S.Ct. 1955 ). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory 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. 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 defen *1069 dant 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, 493 F.3d 1174, 1177 (10th Cir. 2007)(Kelly, J.)(emphasis omitted). The Tenth Circuit has stated:

“[P]lausibility” 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)(McConnell, J.)(citations omitted)(quoting Bell Atl. Corp. v. Twombly, 550 U.S. at 570 , 127 S.Ct. 1955 ).

Although affirmative defenses must generally be pled in the defendant’s answer, not argued on a motion to dismiss, see Fed. R. Civ. P. 8(c), there are exceptions. First, a defendant can argue an affirmative defense on a motion to dismiss where the defendant asserts an immunity defense — the courts handle these cases differently than other motions to dismiss. See Glover v. Gartman, 899 F.Supp.2d 1115, 1137-39, 1141 (D.N.M. 2012)(Browning, J.)(citing Pearson v. Callahan, 555 U.S. 223 , 129 S.Ct. 808 , 172 L.Ed.2d 565 (2009)); Robbins v. Oklahoma, 519 F.3d 1242 . Second, the defendant can raise the defense on a motion to dismiss where the facts establishing the affirmative defense are apparent on the face of the complaint. See Miller v. Shell Oil Co., 345 F.2d 891, 893 (10th Cir. 1965)(Hill, J.)(“Under Rule 12(b), a defendant may raise an affirmative defense by a motion to dismiss for the failure to state a claim. If the defense appears plainly on the face of the complaint itself, the motion may be disposed of under this rule.”). The defense of limitations is the affirmative defense that the complaint’s uncontroverted facts is most likely to establish. See 5 Charles Alan Wright et al., Federal Practice & Procedure: Civil § 1277, at 643 (3d ed. 2004). If the complaint sets forth dates that appear, in the first instance, to fall outside of the statutory limitations period, then the defendant may move for dismissal under rule 12(b)(6). See Rohner v. Union P. R. Co., 225 F.2d 272, 273-75 (10th Cir. 1955)(Wallace, J.); Gossard v. Gossard, 149 F.2d 111, 113 (10th Cir. 1945)(Phillips, J.); Andrew v. Schlumberger Tech. Co., 808 F.Supp.2d 1288, 1292 (D.N.M. 2011)(Browning, J.).

The plaintiff may counter this motion with an assertion that a different statute of limitations or an equitable tolling doctrine applies to bring the suit within the statute. The Tenth Circuit has not clarified whether this assertion must be pled with supporting facts in the complaint or may be merely argued in response to the motion. Cf. Kincheloe v. Farmer, 214 F.2d 604 (7th Cir. 1954)(Major, J.)(holding that, once a plaintiff has pled facts in the complaint indicating that the statute of limitations is a complete or partial bar to an action, the plaintiff must plead facts establishing an exception to the affirmative defense). It appears that, from case law in several Courts of Appeals, the plaintiff may avoid this problem altogether — at least at the motion-to-dismiss stage — by refraining from pleading specific or identifiable dates. See Goodman v. Praxair, Inc., 494 F.3d 458, 465-66 (4th Cir. 2007)(Niemeyer, J.); Hollander v. Brown, 457 F.3d 688 , 691 n.1 *1070 (7th Cir. 2006)(Ripple, J.). Although the Tenth Circuit has not squarely addressed this practice, the Court has permitted this practice. See Anderson Living Trust v. WPX Energy Prod., LLC, 27 F.Supp.3d 1188 (D.N.M. 2014)(Browning, J.).

LAW REGARDING PREEMPTION

Article VI, clause 2, of the Constitution provides that the laws of the United States “shall be the Supreme Law of the Land; ... any Thing in the Constitution or Laws of any state to the Contrary notwithstanding.” U.S. Const, art. VI, cl. 2. Consistent with the Supremacy Clause, the Supreme Court of the United States has “long recognized that state laws that conflict with federal law are ‘without effect.’” Altria Grp., Inc. v. Good, 555 U.S. 70, 75 , 129 S.Ct. 538 , 172 L.Ed.2d 398 (2008)(quoting Maryland v. Louisiana., 451 U.S. 725, 746 , 101 S.Ct. 2114 , 68 L.Ed.2d 576 (1981)). The Supreme Court has summarized the situations in which preemption is likely to be found:

Pre-emption may be either expressed or implied, and is compelled whether Congress’ command is explicitly stated in the statute’s language or implicitly contained in its structure and purpose. Absent explicit pre-emptive language, we have recognized at least two types of implied pre-emption: field pre-emption, where the scheme of federal regulation is so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it, and conflict pre-emption, where compliance with both federal and state regulations is a physical impossibility, or where state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.

Gade v. Nat’l Solid Wastes Mgmt. Assoc., 505 U.S. 88, 98 , 112 S.Ct. 2374 , 120 L.Ed.2d 73 (1992)(citations omitted).

Preemption may be express or implied. See Gade v. Nat’l Solid Wastes Mgmt. Assoc., 505 U.S. at 98 , 112 S.Ct. 2374 . When faced with express preemption — where a statute expressly states that it preempts certain areas of state law — a court must determine the scope of the preemption that Congress intended. See Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 , 116 S.Ct. 2240 , 135 L.Ed.2d 700 (1996)(stating that “the purpose of Congress is the ultimate touch-stone in every pre-emption case”). “Congress may indicate pre-emptive intent through a statute’s express language or through its structure and purpose.” Atria Grp., Inc. v. Good, 555 U.S. at 77 , 129 S.Ct. 538 . When the text of a preemption clause is susceptible to more than one plausible reading, courts ordinarily “accept the reading that disfavors pre-emption.” Bates v. Dow Agrosciences, LLC, 544 U.S. 431, 449 , 125 S.Ct. 1788 , 161 L.Ed.2d 687 (2005). Preemption arguments are analyzed under rule 12(b)(1). See Cedars-Sinai Med. Center v. Nat’l League of Postmasters of U.S., 497 F.3d 972, 975 (9th Cir. 2007)(applying rule 12(b)(1) when reviewing motion to dismiss asserting preemption defense).

Addressing express preemption requires a court to determine the scope of the preemption. That task entails scrutinizing the preempting words in light of two presumptions. First,

[i]n all pre-emption cases, and particularly in those in which Congress has legislated ... in a field which the States have traditionally occupied, we start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.

Medtronic, Inc. v. Lohr, 518 U.S. at 485 , 116 S.Ct. 2240 (citations omitted)(internal quotation marks omitted). Second, “[t]he *1071 purpose of Congress is the ultimate touchstone in every pre-emption case.” Medtronic, Inc. v. Lohr, 518 U.S. at 485 , 116 S.Ct. 2240 (citations omitted)(internal quotation marks omitted).

Congress’ intent, of course, primarily is discerned from the language of the preemption statute and the statutory framework surrounding it. Also relevant, however, is the structure and purpose of the statute as a whole, as revealed not only in the text, but through the reviewing court’s reasoned understanding of the way in which Congress intended the _ statute and its surrounding regulatory scheme to affect business, consumers, and the law.

Medtronic, Inc. v. Lohr, 518 U.S. at 486 , 116 S.Ct. 2240 (citations omitted)(internal quotation marks omitted).

In one of its most recent express preemption decisions, see Bruesewitz v. Wyeth, LLC, 562 U.S. 223 , 131 S.Ct. 1068 , 179 L.Ed.2d 1 (2011), the Supreme Court concluded that the National Childhood Vaccine Injury Act, 42 U.S.C.A. §§ 300aa-11(c)(1), 300aa-13(a)(l)(A), preempted all design-defect claims that the plaintiffs seeking compensation brought against vaccine manufacturers for injury or death that certain vaccine side effects caused. See 562 U.S. at 230 , 131 S.Ct. 1068 . The Supreme Court noted that Congress passed this act to “stabilize the vaccine market and facilitate compensation.” Bruesewitz v. Wyeth, LLC, 562 U.S. at 228 , 131 S.Ct. 1068 . The Supreme Court pointed out that this federal statutory scheme provided for “[f]ast, informal adjudication,” allowing “[cjlaim-ants who show that a listed injury first manifested itself at the appropriate time are prima facie entitled to compensation.” Bruesewitz v. Wyeth, LLC, 562 U.S. at 228 , 131 S.Ct. 1068 . Additionally,

[a] claimant may also recover for unlisted side effects, and for listed side effects that occur at times other than those specified in the Table, but for those the claimant must prove causation. Unlike in tort suits, claimants under the Act are not required to show that the administered vaccine was defectively manufactured, labeled, or designed.

562 U.S. at 228-229 , 131 S.Ct. 1068 (footnote omitted). The Supreme Court also noted that the statutory scheme had relatively favorable remedy provisions. See 562 U.S. at 229 , 131 S.Ct. 1068 . “The quid pro quo for this, designed to stabilize the vaccine market, was the provision of significant tort-liability protections for vaccine manufacturers,” such as limiting the availability of punitive damages and expressly eliminating liability for a vaccine’s unavoidable, adverse side effects. 562 U.S. at 229 , 131 S.Ct. 1068 . The statutory text at issue in Bruesewitz v. Wyeth, LLC was as follows:

No vaccine manufacturer shall be liable in a civil action for damages arising from a vaccine-related injury or death associated with the administration of a vaccine after October 1, 1988, if the injury or death resulted from side effects that were unavoidable even though the vaccine was properly prepared and was accompanied by proper directions and warnings.

562 U.S. at 230 , 131 S.Ct. 1068 (quoting 42 U.S.C. § 300aa-22(b)(l)). The Supreme Court emphasized the use of the word “unavoidable” in reaching its conclusion that the statute preempted design defect claims resulting from unavoidable side effects. 562 U.S. at 231-232 , 131 S.Ct. 1068 . The Supreme Court also found it persuasive that the statutory text directly mentioned other aspects of product liability law. See 562 U.S. at 232-233 , 131 S.Ct. 1068 .

Implied conflict preemption is found when it is impossible for a private party to comply with both state and federal re *1072 quirements, see English v. General Elec. Co., 496 U.S. 72, 78-79 , 110 S.Ct. 2270 , 110 L.Ed.2d 65 (1990), or where state law “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress,” Hines v. Davidowitz, 312 U.S. 52, 67 , 61 S.Ct. 399 , 85 L.Ed. 581 (1941). “Pre-emptive intent may also be inferred if the scope of the statute indicates that Congress intended federal law to occupy the legislative field, or if there is an actual conflict between state and federal law.” Hines v. Davidowitz, 312 U.S. at 67 , 61 S.Ct. 399 (citing Freightliner Corp. v. Myrick, 514 U.S. 280, 287 , 115 S.Ct. 1483 , 131 L.Ed.2d 385 (1995)).

The Supreme Court, in the past, found that implied preemption may take the form of “obstacle” preemption. Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 373 , 120 S.Ct. 2288 , 147 L.Ed.2d 352 (2000) (holding that preemption is appropriate where the challenged state law “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress”); Pharm. Research and Mfrs. of Am. v. Walsh, 538 U.S. 644, 679 , 123 S.Ct. 1855 , 155 L.Ed.2d 889 (2003)(Thomas, J., concurring)(“Obstacle pre-emption turns on whether the goals of the federal statute are frustrated by the effect of the state law.”). The Supreme Court instructed that, in obstacle preemption cases, “there is no federal pre-emption in vacuo, without a constitutional text or a federal statute to assert it.” P.R. Dep’t of Consumer Affairs v. Isla Petroleum Corp., 485 U.S. 495, 503 , 108 S.Ct. 1350 , 99 L.Ed.2d 582 (1988). See Gade v. Nat’l Solid Wastes Mgmt. Assoc., 505 U.S. at 98 , 112 S.Ct. 2374 . A reviewing court must still “examine the explicit statutory language and the structure and purpose of the statute.” Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 138 , 111 S.Ct. 478 , 112 L.Ed.2d 474 (1990). In 2000, the Supreme Court decided Geier v. Am. Honda Motor Co., 529 U.S. 861 , 120 S.Ct. 1913 , 146 L.Ed.2d 914 (2000), which held, by a flve-to-four vote, that a federal regulation which permitted, but did not require, airbags to be installed in passenger vehicles preempted claims that a ear was defective because it lacked an airbag. See 529 U.S. at 874 , 120 S.Ct. 1913 . The majority found: “The rule of state tort law for which petitioners argue would stand as an ‘obstacle’ to the accomplishment of [the federal regulation’s] objective. And the statute foresees the application of ordinary principles of pre-emption in cases of actual conflict. Hence, the tort action is pre-empted.” 529 U.S. at 886 , 120 S.Ct. 1913 . Justice Stevens, in his dissenting opinion, expressed a desire to eliminate obstacle preemption. He argued that the presumption against preemption

serves as a limiting principle that prevents federal judges from running amok with our potentially boundless (and perhaps inadequately considered) doctrine of implied conflict pre-emption based on frustration of purposes — i.e., that state law is pre-empted if it stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.

Geier v. Am. Honda Motor Co., 529 U.S. at 907-08 , 120 S.Ct. 1913 (Stevens, J., dissenting).

The Supreme Court has now begun to back away from finding implied preemption based on an alleged conflict with the purposes underlying federal regulations. In 2003, the Supreme Court issued a unanimous decision in Sprietsma v. Mercury Marine, 537 U.S. 51 , 123 S.Ct. 518 , 154 L.Ed.2d 466 (2002), rejecting implied conflict preemption of state law claims that a boat engine was defective because it lacked a propeller guard. In 2008, in Altria Group. Inc. v. Good, the Supreme Court rejected the plaintiffs’ obstacle-preemption claim that the Federal Cigarette Labeling and Advertising Act, 15 U.S.C. §§ 1331-41 , *1073 preempted a similar state act, Maine’s Unfair Practices Act, Me. Rev. Stat. Ann., Tit. 5, § 207 (2008), because it presented an obstacle to the Federal Trade Commission’s longstanding policy of encouraging consumers to rely on representations of tar and nicotine content based on an approved methodology. See 555 U.S. at 90, 129 S.Ct. 588 . In 2009, in Wyeth v. Levine, 555 U.S. 555 , 129 S.Ct. 1187 , 173 L.Ed.2d 51 (2009), six Justices of the Supreme Court, including Justices Breyer and Kennedy, who joined in the majority decision in Geier v. Am. Honda Motor Co., rejected the plaintiffs two implied preemption arguments — impossibility preemption and obstacle preemption. See Wyeth v. Levine, 555 U.S. at 581 , 129 S.Ct. 1187 . The Supreme Court held that

“it is not impossible for Wyeth to comply with its state and federal law obligations and that Levine’s common-law claims do not stand as an obstacle to the accomplishment of Congress’ purposes in the ( [Federal Food, Drug, and Cosmetic Act, 21 U.S.C.A. §§ 301 , 321, 331-337, 341-350, 361-364, and 381-399; 21 C.F.R. § 201.80 (e)]”).

Wyeth v. Levine, 555 U.S. at 581 , 129 S.Ct. 1187 . In so ruling, Justice Stevens, writing for the majority, narrowly limited Geier v. Am. Honda Motor Co. to its facts, finding that the decision in that case was based on the “complex and extensive” history of the substantive regulation at issue. 555 U.S. at 566, 129 S.Ct. 1187 . The Supreme Court rejected obstacle preemption, stating: “If Congress thought state-law suits posed an obstacle to its objectives, it surely would have enacted an express pre-emption provision at some point during the FDCA’s 70-year history.” 555 U.S. at 609, 129 S.Ct. 1187 . Justice Stevens quoted Justice O’Connor’s explanation in Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141 , 109 S.Ct. 971 , 103 L.Ed.2d 118 (1989): “The case for federal pre-emption is particularly weak where Congress has indicated its awareness of the operation of state law in a field of federal interest, and has nonetheless decided to stand by both concepts and to tolerate whatever tension there is between them.” Wyeth v. Levine, 555 U.S. at 575 , 129 S.Ct. 1187 (quoting Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. at 166-67 , 109 S.Ct. 971 ).

Of particular import for the current status of implied obstacle preemption is Justice Thomas’ concurring opinion in Wyeth v. Levine, in which he wrote:

I write separately, however, because I cannot join the majority’s implicit endorsement of far-reaching implied preemption doctrines. In particular, I have become increasingly skeptical of this Court’s “purposes and objectives” preemption jurisprudence. Under this approach, the Court routinely invalidates state laws based on perceived conflicts with broad federal policy objectives, legislative history, or generalized notions of congressional purposes that are not embodied within the text of federal law. Because implied pre-emption doctrines that wander far from the statutory text are inconsistent with the Constitution, I concur only in the judgment.

555 U.S. at 583, 129 S.Ct. 1187 (Thomas, J., concurring in the judgment). Justice Thomas stressed his concern:

Under the vague and potentially boundless doctrine of purposes and objectives pre-emption ... the Court has preempted state law based on its interpretation of broad federal policy objectives, legislative history, or generalized notions of congressional purposes that are not contained within the text of federal law ... Congressional and agency musings, however, do not satisfy the Art. I, § 7 requirements for enactment of federal law and, therefore, do not pre-empt state law under the Supremacy Clause.

*1074 555 U.S. at 587, 129 S.Ct. 1187 . Justice Thomas emphasized that, when analyzing the preemptive effect of federal statutes or regulations, “[e]vidence of pre-emptive purpose must be sought in the text and structure of the provision at issue” to comply with the Constitution. 555 U.S. at 588, 129 S.Ct. 1187 (citing CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 664 , 113 S.Ct. 1732 , 123 L.Ed.2d 387 (1993)). Justice Thomas, writing for the five-to-four majority in PLIVA, Inc. v. Mensing, 564 U.S. 604 , 131 S.Ct. 2567 , 180 L.Ed.2d 580 (2011), recently concluded, however, that conflict preemption required the preemption of inconsistent state laws on generic drug labeling that conflicted with the respective federal law, because it was impossible to comply with both. See 564 U.S. at 617-618 , 131 S.Ct. 2567 . The Supreme Court sought to reconcile Wyeth v. Levine, however, recognizing that the respective statutory schemes in each case was distinguishable. See PLIVA, Inc. v. Mensing, 564 U.S. at 626 , 131 S.Ct. 2567 (“It is beyond dispute that the federal statutes and regulations that apply to brand-name drug manufacturers are meaningfully different than those that apply to generic drug manufacturers.”).

Moreover, the Supreme Court has put renewed emphasis on the presumption against preemption. See Wyeth v. Levine, 555 U.S. at 565 n.3, 129 S.Ct. 1187 . “In areas of traditional state regulation, [the Supreme Court] assumefc] that a federal statute has not supplanted state law unless Congress has made such an intention clear and manifest.” Bates v. Dow Agrosciences, LLC, 544 U.S. 431, 449 , 125 S.Ct. 1788 , 161 L.Ed.2d 687 (2005)(internal quotation marks omitted). If confronted with two plausible interpretations of a statute, the court has “a duty to accept the reading that disfavors pre-emption.” Bates v. Dow Agrosciences, LLC, 544 U.S. at 449 , 125 S.Ct. 1788 . See Wyeth v. Levine, 555 U.S. at 565 , 129 S.Ct. 1187 ; Cipollone v. Liggett Grp., Inc., 505 U.S. 504, 518 , 112 S.Ct. 2608 , 120 L.Ed.2d 407 (1992)(plurality opinion).

In Arizona v. United States, 567 U.S. 387 , 132 S.Ct. 2492 , 183 L.Ed.2d 351 (2012), the Supreme Court once again emphasized the importance of clear Congressional intent when applying obstacle preemption. The Supreme Court struck down provisions of an Arizona immigration law that would penalize aliens who sought, or engaged in, unauthorized employment, because it “would interfere with the careful balance struck by Congress with respect to unauthorized employment of aliens.” 132 S.Ct. at 2505 . With Justice Kagan taking no part in the consideration or decision of the case, writing for a five-to-three majority, which included Chief Justice Roberts and Justices Ginsburg, Breyer, and Soto-mayor, Justice Kennedy wrote: “The correct instruction to draw from the text, structure, and history of [the Immigration Reform and Control Act of 1986, 8 U.S.C. § 1101 ] is that Congress decided it would be inappropriate to impose criminal penalties on aliens who seek or engage in unauthorized employment.” 132 S.Ct. at 2505 . The Supreme Court ruled that Congressional intent was clear; Congress had considered and rejected penalizing aliens who sought unauthorized employment. See 132 S.Ct. at 2504 . Federal immigration law therefore preempted the Arizona law that would have penalized aliens seeking unauthorized employment, because it would have created a penalty that Congress had clearly and intentionally omitted. See 132 S.Ct. at 2505 .

The Tenth Circuit has recognized federal preemption of state law in three categories: (i) when a federal statute expressly preempts state law (“express preemption”); (ii) where Congress intends to occupy a field (“field preemption”); and (iii) to the extent that a state law conflicts with *1075 a federal law (“conflict preemption”). Colo. Dept. of Pub. Health and Env’t., Hazardous Materials and Waste Mgmt. Div. v. United States, 693 F.3d 1214, 1222 (10th Cir. 2012). As the defendant in Colo. Dept. of Pub. Health and Env’t., Hazardous Materials and Waste Mgmt. Div. v. United States, the United States invoked only conflict preemption to dismiss Colorado’s claims against it; the Tenth Circuit therefore did not address field preemption in this area. See 693 F.3d at 1222 . “To avoid conflict preemption, ‘it is not enough to say that the ultimate goal of both federal and state law is the same. A state law also is pre-empted if it interferes with the methods by which the federal statute was designed to reach this goal.” Chamber of Commerce v. Edmondson, 594 F.3d 742, 769 (10th Cir. 2010)(quoting Int’l Paper Co. v. Ouellette, 479 U.S. 481, 494 , 107 S.Ct. 805 , 93 L.Ed.2d 883 (1987)(altera-tions, citation omitted)). In Colo. Dept. of Pub. Health and Env’t., Hazardous Materials and Waste Mgmt. Div. v. United States, the state of Colorado created a schedule for the United States to follow in the destruction of hazardous waste stored in the state, in an attempt to prohibit the storage of hazardous waste within the state. See 693 F.3d at 1223 . The Tenth Circuit held that the state statute creating this schedule was in conflict with a statute Congress passed, mandating a deadline for the destruction of the materials. See 693 F.3d at 1224 . The Tenth Circuit reasoned that allowing Colorado to set a deadline for the destruction of the materials would impede the flexibility Congress had intended in its deadline. See 693 F.3d at 1224 . Because the Colorado- deadline would interfere with the that method Congress had intended for the disposal of the waste, the Tenth Circuit found that the state law was in conflict with the federal law, and therefore, that the federal law preempted Colorado’s schedule. See 693 F.3d at 1224 .

LAW REGARDING 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 ..., 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 ....

42 U.S.C. § 1983 . Section 1983 creates only the right of action; it does not create any substantive rights; substantive rights must come from the Constitution or federal statute. See Nelson v. Geringer, 295 F.3d 1082, 1097 (10th Cir. 2002)(“[S]ection 1983 did create any substantive rights, but merely enforces existing constitutional and federal statutory rights ...”). Section 1983 authorizes an injured person to assert a claim for relief against a person who, acting under color of state law, violated the claimant’s federally protected rights. To state a claim upon which relief can be granted under § 1983, a plaintiff must allege: (i) a deprivation of a federal right; and (ii) that the person who deprived the plaintiff of that right acted under color of state law. See West v. Atkins, 487 U.S. 42, 48 , 108 S.Ct. 2250 , 101 L.Ed.2d 40 (1988). The Court has noted:

[A] plaintiff must establish (1) a violation of rights protected by the federal Constitution or created by federal statute or regulation, (2) proximately caused (3) by the conduct of a “person” (4) who acted under color of any statute, ordinance, regulation, custom[,] or usage, of any State or Territory or the District of Columbia.

Schaefer v. Las Cruces Public School Dist., 716 F.Supp.2d 1052, 1063 (D.N.M. *1076 2010)(Browning, J.)(quoting Summum v. City of Ogden, 297 F.3d 995, 1000 (10th Cir. 2002)). The Supreme Court has made clear, that in alleging a § 1983 action against a government agent in the agent’s individual capacity, “a plaintiff must plead that each Government-official defendant, through the official’s own individual actions, has violated the Constitution.” Ashcroft v. Iqbal, 556 U.S. at 676 , 129 S.Ct. 1937 .

LAW REGARDING 42 U.S.C. § 1985 (3)

Claims under 42 U.S.C. § 1985 are less common than claims under § 1983. Section 1985 pertains to the prohibition of conspiracies which interfere with civil rights. See 42 U.S.C. § 1985 . The Supreme Court recognizes “five broad classes of conspiratorial activity” that § 1985 prohibits. Kush v. Rutledge, 460 U.S. 719, 724 , 103 S.Ct. 1483 , 75 L.Ed.2d 413 (1983). “Three of the five broad categories ... relate to institutions and processes of the Federal Government.” Kush v. Rutledge, 460 U.S. at 724 , 103 S.Ct. 1483 . The fourth and fifth classes of § 1985 claims apply to conspiracies to “obstruct the course of justice in state courts” and to “go in disguise on the highway or in the premises of another.” Kush v. Rutledge, 460 U.S. at 724 , 103 S.Ct. 1483 (internal quotation marks omitted). Both of these latter categories require an “intent to deprive their victims of the equal protections of the laws,” which means that there must be some “racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspiratorial action.” Kush v. Rutledge, 460 U.S. at 724, 726 , 103 S.Ct. 1483 (internal quotation marks omitted). See Campbell v. Amax Coal Co., 610 F.2d 701, 702 (10th Cir. 1979)(“[I]n the absence of allegations of class based or racial discriminatory animus, the complaint fails to state a claim under § 1985.”).

To succeed on a § 1985 claim, a plaintiff must prove a conspiracy. See Dixon v. City of Lawton, Okl, 898 F.2d 1443, 1447 (10th Cir. 1990). To state a valid claim for conspiracy, “a plaintiff must allege specific facts showing an agreement and concerted action amongst the defendants.” Tonkovich v. Kan. Bd. of Regents, 159 F.3d 504 , 533 (10th Cir. 1998)(discussing conspiracy under § 1983). “[M]ere conclusory allegations with no supporting factual averments are insufficient; the pleadings must specifically present facts tending to show agreement and concerted action.” Sooner Prods. Co. v. McBride, 708 F.2d 510 , 512 (10th Cir. 1983)(discussing conspiracy under § 1983).

The Tenth Circuit has held that it is error to “precondition consideration of a plaintiffs § 1985(3) claim upon the finding of § 1983 liability.” Dixon v. City of Lawton, Okl., 898 F.2d at 1447 (10th Cir. 1990).

Although neither § 1983 nor § 1985(3) create any substantive rights, a § 1983 claim generally describes a substantive violation of a right secured by the Constitution or laws, whereas a § 1985(3) claim generally describes a conspiracy of two or more persons for the purpose of depriving of another of equal protection of the laws or equal privileges and immunities under the laws.

Dixon v. City of Lawton, Okl., 898 F.2d at 1447 .

To state a claim under § 1985(3), a plaintiff must show: (i) a conspiracy, motivated by racially discriminatory animus; (ii) to deprive the plaintiff of equal protection or equal protections of the laws; (iii) an act in furtherance of the conspiracy; and (iv) an injury or deprivation resulting therefrom. See Paris v. Sw. Bell Tel. Co., 94 Fed.Appx. 810, 815 (10th Cir. 2004)(unpublished); Tilton v. Richardson, 6 F.3d 683, 686 (10th Cir. 1993). “Conclusory allegations that the defendants acted in concert or conspired, without specific factual allegations to support such asser *1077 tions, are insufficient to state a claim under § 1985(3).” Martinez v. Martinez, 2010 U.S. Dist. LEXIS 38109 , 2010 WL 1608884 , at *12 (D.N.M. Mar. 30,2010) (citing Merritt v. Hawk, 153 F.Supp.2d 1216, 1225 (D. Colo. 2001)).

The Tenth Circuit has stated that § 1985(3) was intended “to provide redress for victims of conspiracies impelled by a commingling of racial and political motives.” Brown v. Reardon, 770 F.2d 896, 907 (10th Cir. 1985). “[I]n the absence of allegations of class based or racial discriminatory animus, the complaint fails to state a claim under § 1985.” Campbell v. Amax Coal Co., 610 F.2d at 702 . The Tenth Circuit has consistently dismissed § 1985(3) claims devoid of racial, discriminatory animus. For example, in Paris v. Sw. Bell Tel. Co., the Tenth Circuit held that the plaintiffs hostile-work-environment claim failed, because she did not show racial discriminatory animus on the part of the alleged conspirators. See 94 Fed.Appx. at 815 .

In Martinez v. Martinez, the plaintiff alleged that M. Martinez, her ex-husband, Lynda Latta, her ex-husband’s attorney, and the Honorable Elizabeth Whitefield, the judge who presided over the Mar-tinezes’ divorce in state court, conspired against her to deprive her of her rights guaranteed under the Equal Protection Clause. See 2010 U.S. Dist. LEXIS 38109 , 2010 WL 1608884 , at *1, *26. The Court noted:

The entirety of the constitutional claims appear to be these:

14. In the Court’s Defendant 4’s [i.e., Judge Whitefield’s] ruling to dismiss this case against Plaintiff first of all is a violation of Federal Rule 60(b)(4) because the Court lacked jurisdiction over the subject matter and that dismissal, for lack of prosecution, which conduct was done as a state actor under color of law by [Judge Whitefield] and in conspiracy with [Ms. Latta] on behalf of [M. Martinez], to achieve these ends. [Ms. Latta] is included in this legal process, entered into knowingly and fraudulently to achieve the illegitimate end of depriving Plaintiff of her due civil rights by [Judge Whitefield’s] void ruling, which rights are afforded by USC 42 §§ 1983 and 1985(3) to a fair hearing of the property as she has attempted to litigate for these last years.

15. [Ms. Latta and Judge Whitefield] are participants with [M. Martinez] and have conspired to keep Plaintiff at bay in obtaining her rights to this undivided property by engaging improper courts and attempts to harass and exhaust Plaintiff of her financial resources ....

17. The Fourteenth Amendment states thus: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any State deprive any person of life, liberty or property without due process of law ... And further in the Fifth Amendment “the Bill of Rights protects against abuse of government — the ‘double jeopardy’ clause seems to be applied here, because Plaintiffs same former case 95-2963 was voluntarily dismissed by Plaintiff without prejudice in 2003, and resurrected from the dead improperly by [M. Martinez, Ms. Latta, and Judge Whitefield] on August 28, 2007 by Motion.

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18. [Judge Whitefield] attempts to adjudicate a new dismissal of this same closed case by dismissing it again against Plaintiff for lack of prosecution and would attempt by doing so, to take away her right to adjudicate it elsewhere — this would be a gross violation for Plaintiff from [Judge Whitefield] and finds into the double jeopardy type of thinking easily — a double dismissal, one *1078 legitimate by Plaintiff and one illegitimate (reopened by Defendants by Motion) after this dismissal, and done (the second) with intention by [M. Martinez and Ms. Latta] and especially with the power of [Judge Whitefield], to attempt to deprive Plaintiff of her due process rights of hearing and eliminating her possibility to adjudicate her claim because [Judge Whitefield’s] ruling would then be the second dismissal on the basis of lack of prosecution which then adjudicates a case and it could not be brought again by this Plaintiff.

2010 U.S. Dist. LEXIS 38109 , 2010 WL 1608884 at **24-25 (alterations in original). The Court dismissed the § 1985 claim, reasoning that the plaintiff “makes no allegation of discriminatory animus by [the defendants]” and that “there is nothing more than a conclusory allegation of conspiracy, lacking any underlying facts.” 2010 U.S. Dist. LEXIS 38109 , 2010 WL 1608884 at *27. The Court noted that “[n]o alleged facts touch on any individual’s race, political or religious affiliation, or any other categorization against which the Defendants might hold a discriminate animus.” 2010 U.S. Dist. LEXIS 38109 , 2010 WL 1608884 at *27.

LAW REGARDING QUALIFIED IMMUNITY

Qualified immunity recognizes the “need to protect officials who are required to exercise their discretion and the related public interest in encouraging the vigorous exercise of official authority.” Harlow v. Fitzgerald, 457 U.S. 800, 807 , 102 S.Ct. 2727 , 73 L.Ed.2d 396 (1982). “Qualified immunity protects federal and state officials from liability for discretionary functions, and from ‘the unwarranted demands customarily imposed upon those defending a long drawn-out lawsuit.’ ” Roybal v. City of Albuquerque, No. CIV 08-0181 JB/LFG, 2009 WL 1329834 , at *10 (D.N.M. Apr. 28, 2009)(Browning, J.) (quoting Siegert v. Gilley, 500 U.S. 226, 232 , 111 S.Ct. 1789 , 114 L.Ed.2d 277 (1991)). The Supreme Court deems it “untenable to draw a distinction for purposes of immunity law between suits brought against state officials under § 1983 and suits brought directly under the Constitution against federal officials.” Butz v. Economou, 438 U.S. 478, 504 , 98 S.Ct. 2894 , 57 L.Ed.2d 895 (1978). “The qualified immunity analysis is the same whether the claims are brought under Bivens or pursuant to the post-Civil War Civil Rights Acts.” Breidenbach v. Bolish, 126 F.3d 1288, 1291 (10th Cir. 1997), overruled on other grounds as recognized in Currier v. Doran, 242 F.3d 905 (10th Cir. 2001).

Under § 1983 (invoked in this case) and Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 , 91 S.Ct. 1999 , 29 L.Ed.2d 619 (1971), a plaintiff may seek money damages from government officials who have violated her constitutional or statutory rights. But to ensure that fear of liability will not “unduly inhibit officials in the discharge of their duties,” Anderson v. Creighton, 483 U.S. 635, 638 , 107 S.Ct. 3034 , 97 L.Ed.2d 523 (1987), the officials may claim qualified immunity; so long as they have not violated a “clearly established” right, they are shielded from personal liability, Harlow v. Fitzgerald, 457 U.S. 800, 818 , 102 S.Ct. 2727 , 73 L.Ed.2d 396 (1982). That means a court can often avoid ruling on the plaintiffs claim that a particular right exists. If prior case law has not clearly settled the right, and so given officials fair notice of it, the court can simply dismiss the claim for money damages. The court need never decide whether the plaintiffs claim, even though novel or otherwise unsettled, in fact has merit.

Camreta v. Greene, 563 U.S. 692, 705 , 131 S.Ct. 2020 , 179 L.Ed.2d 1118 (2011).

*1079 Issues of qualified immunity are best resolved at the “earliest possible stage in litigation.” Pearson v. Callahan, 555 U.S. 223, 232 , 129 S.Ct. 808 , 172 L.Ed.2d 565 (2009)(quoting Hunter v. Bryant, 502 U.S. 224, 227 , 112 S.Ct. 534 , 116 L.Ed.2d 589 (1991)(per curiam)). “If qualified immunity is to mean anything, it must mean that public employees who are just doing their jobs are generally immune from suit.” Lewis v. Tripp, 604 F.3d 1221, 1230 (10th Cir. 2010).

Qualified immunity shields government officials from liability where “their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Pearson v. Callahan, 555 U.S. at 231 , 129 S.Ct. 808 (quoting Harlow v. Fitzgerald, 457 U.S. at 818 , 102 S.Ct. 2727 ). Qualified immunity also shields officers who have “reasonable, but mistaken beliefs,” and operates to protect officers from the sometimes “hazy border[s]” of the law. Saucier v. Katz, 533 U.S. 194 , 205, 121 S.Ct. 2151 , 150 L.Ed.2d 272 (2001). When a defendant asserts qualified immunity, the plaintiff must demonstrate: (i) that the defendant’s actions violated his or her constitutional or statutory rights; and (ii) that the right was clearly established at the time of the alleged misconduct. See Riggins v. Goodman, 572 F.3d 1101, 1107 (10th Cir. 2009).

1. Procedural Approach to Qualified Immunity.

The Supreme Court recently revisited the proper procedure for lower courts to evaluate a qualified immunity defense. In Pearson v. Callahan, the Supreme Court held that lower courts “should be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances of the particular case at hand.” 555 U.S. at 236, 129 S.Ct. 808 . The Supreme Court also noted that, while no longer mandatory, the protocol that Saucier v. Katz outlined — by which a court first decides if the defendant’s actions violated the Constitution, and then the court determines if the right violated was clearly established — will often be beneficial. See Pearson v. Callahan, 555 U.S. at 241 , 129 S.Ct. 808 . In rejecting the prior mandatory approach, the Supreme Court recognized that “[t]here are cases in which it is plain that a constitutional right is not clearly established but far from obvious whether in fact there is such a right,” and that such an approach burdens district court and courts of appeals with “what may seem to be an essentially academic exercise.” 555 U.S. at 237, 129 S.Ct. 808 . The Supreme Court also recognized that the prior mandatory approach “departs from the general rule of constitutional avoidance and runs counter to the older, wiser judicial counsel not to pass on questions of constitutionality unless such adjudication is unavoidable.” 555 U.S. at 241, 129 S.Ct. 808 (alterations omitted)(internal quotation marks omitted). See Reichle v. Howards, 566 U.S. 658 , 132 S.Ct. 2088, 2093 , 182 L.Ed.2d 985 (2012)(affirming Pearson v. Callahan’s procedure and noting that deciding qualified immunity issues on the basis of a right being not “clearly established” by prior case law “comports with our usual reluctance to decide constitutional questions unnecessarily”). Once the plaintiff establishes an inference that the defendant’s conduct violated a clearly established constitutional right, a qualified immunity defense generally fails. See Cannon v. City & Cty. of Denver, 998 F.2d 867 , 870-71 (10th Cir. 1993).

The Supreme Court recognizes seven circumstances where district courts should proceed directly to and “should address only” the clearly established prong of the qualified immunity analysis: when (i) the first, constitutional violation question “is so *1080 factbound that the decision provides little guidance for future cases”; (ii) “it appears that the question will soon be decided by a higher court”; (in) deciding the constitutional question requires “an uncertain interpretation of state law”; (iv) “qualified immunity is asserted at the pleading stage,” and “the precise factual basis for the ... claim ... may be hard to identify”; (v) tackling the first element “may create a risk of bad decisionmaking,” because of inadequate briefing; (vi) discussing both elements risks “bad decisionmaking,” because the court is firmly convinced the law is not clearly established and is thus inclined to give little thought to the existence of the constitutional right; or (vii) the doctrine of “constitutional avoidance” suggests the wisdom of passing on the first constitutional question when “it is plain that a constitutional right is not clearly established but far from obvious whether in fact there is such a right.” Kerns v. Bader, 663 F.3d 1173, 1180-81 (10th Cir. 2011)(quoting Pearson v. Callahan, 555 U.S. at 236-42 , 129 S.Ct. 808 ). Regarding the last of these seven circumstances, the Supreme Court has clarified that courts may “avoid avoidance” and address the first prong before the second prong in cases involving a recurring fact pattern, where guidance on the constitutionality of the challenged conduct is necessary, and the conduct is likely only to face challenges in the qualified immunity context. Camreta v. Greene, 563 U.S. at 706-707 , 131 S.Ct. 2020 . See Kerns v. Bader, 663 F.3d at 1181 . 10 “Courts should think carefully be *1081 fore expending ‘scarce judicial resources’ to resolve difficult and novel questions of constitutional or statutory interpretation *1082 that ■will ‘have no effect on the outcome of the case.’ ” Ashcroft v. al-Kidd, 563 U.S. 731 , 735, 131 S.Ct. 2074 , 179 L.Ed.2d 1149 (2011)(quoting Pearson v. Callahan, 555 U.S. at 236-37, 129 S.Ct. 808 ). See Camreta v. Greene, 563 U.S. at 707 , 131 S.Ct. 2020 (“In general, courts should think hard, and then think hard again, before turning small cases into large ones.”). 11 *1083 The Tenth Circuit will remand a case to the district court for further consideration when the district court has given cursory treatment to the clearly established prong of the qualified immunity analysis. See Kerns v. Bader, 663 F.3d at 1182 .

2. Clearly Established Rights in the Qualified Immunity Analysis.

To determine whether a right was clearly established, a court must consider whether the right was sufficiently clear that a reasonable government employee in the defendant’s shoes would understand that what he or she did violated that right. See Casey v. W. Las Vegas Indep. Sch. Dist., 473 F.3d 1323, 1327 (10th Cir. 2007). “A clearly established right is generally defined as a right so thoroughly developed and consistently recognized under the law of the jurisdiction as to be ‘indisputable’ and ‘unquestioned.’” Lobozzo v. Colo. Dep’t of Corr., 429 Fed.Appx. 707, 710 (10th Cir. 2011)(unpublished)(quoting Zweibon v. Mitchell, 720 F.2d 162, 172-73 (D C. Cir. 1983)).

“Ordinarily, in order for the law to be clearly established, there must be a Supreme Court or Tenth Circuit decision on point, or the clearly established weight of authority from other courts must have found the law to be as the plaintiff maintains.” Currier v. Doran, 242 F.3d 905, 923 (10th Cir. 2001). On the other hand, the Supreme Court has observed that it is generally not necessary to find a controlling decision declaring the “very action in question ... unlawful.” Anderson v. Creighton, 483 U.S. 635, 640 , 107 S.Ct. 3034 , 97 L.Ed.2d 523 (1987). “In determining whether the right was ‘clearly established,’ the court assesses the objective legal reasonableness of the action at the time of the alleged violation and asks whether ‘the contours of the right [were] sufficiently clear that a reasonable official would understand that what he is doing violates that right.’ ” Holland ex rel. Overdorff v. Harrington, 268 F.3d at 1186 (alteration in original)(quoting Saucier v. Katz, 533 U.S. at 202 , 121 S.Ct. 2151 ). A court should inquire “whether the law put officials on fair notice that the described conduct was unconstitutional” rather than engage in “a scavenger hunt for cases with precisely the same facts.” Pierce v. Gilchrist, 359 F.3d 1279, 1298 (10th Cir. 2004).

The Supreme Court has clarified that the clearly established prong of the qualified immunity test is a very high burden for the plaintiff:- “A Government official’s conduct violates clearly established law when, at the time of the challenged conduct, the contours of a right are sufficiently clear that every reasonable official would have understood that what he is doing violates that right.” Ashcroft v. al-Kidd, 563 U.S. at 741 , 131 S.Ct. 2074 . “In other words, ‘existing precedent must have placed the statutory or constitutional question beyond debate.’ ” Reichle v. Howards, 132 S.Ct. at 2093 (quoting Ashcroft v. al-Kidd, 563 U.S. at 741 , 131 S.Ct. 2074 ). “The operation of this standard, however, depends substantially upon the level of generality at which the relevant ‘legal rule’ is to be identified.” Anderson v. Creighton, 483 U.S. at 639 , 107 S.Ct. 3034 . “The general proposition, for example, that an unreasonable search or seizure violates the Fourth Amendment is of little help in determining whether the violative nature of particular conduct is clearly established.” *1084 Ashcroft v. al-Kidd, 563 U.S. at 742 , 131 S.Ct. 2074 . The level of generality at which the legal rule is defined is important, because qualified immunity shields officers who have “reasonable, but mistaken beliefs” as to the application of law to facts and operates to protect officers from the sometimes “hazy border[s]” of the law. Saucier v. Katz, 533 U.S. at 205 , 121 S.Ct. 2151 .

The Tenth Circuit held in Kerns v. Bader that, although “a case on point isn’t required if the impropriety of the defendant’s conduct is clear from existing case law,” the law is not clearly established where “a distinction might make a constitutional difference.” 663 F.3d at 1188 (emphasis in original). In Kerns v. Bader, dealing with the search of a home, the Tenth Circuit explained that the relevant question “wasn’t whether we all have some general privacy interest in our home,” but “whether it was beyond debate in 2005 that the officers’ entry and search lacked legal justification.” 663 F.3d at 1183 (emphasis added). Earlier Tenth Circuit cases, clarifying the level of generality at which a legal rule must be defined, applied a sliding scale to determine when the law is clearly established. See Casey v. City of Fed. Heights, 509 F.3d 1278, 1284 (10th Cir. 2007)(“The more obviously egregious the conduct in light of prevailing constitutional principles, the less specificity is required from prior case law to clearly establish the violation.”). “[W]hen an officer’s violation ... is particularly clear ..., [the Tenth Circuit] does not require a second decision with greater specificity to clearly establish the law.” Casey v. City of Fed. Heights, 509 F.3d at 1284 . Furthermore, “general statements of the law are not inherently incapable of giving fair and clear warning .... ” Hope v. Pelzer, 536 U.S. 730, 741 , 122 S.Ct. 2508 , 153 L.Ed.2d 666 (2002).

LAW REGARDING STAYS

A court has broad discretion in managing its docket, which includes decisions regarding issuing stays for all or part of a proceeding. See Clinton v. Jones, 520 U.S. 681, 706 , 117 S.Ct. 1636 , 137 L.Ed.2d 945 (1997)(citing Landis v. N. Am. Co., 299 U.S. 248, 254 (1936))(“The District Court has broad discretion to stay proceedings as an incident to its power to control its own docket.”).

[T]he power to stay proceedings is incidental to the power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants. How this can best be done calls for the exercise of judgment, which must weigh competing interests and maintain an even balance.

Landis v. N. Am. Co., 299 U.S. at 254-55 , 57 S.Ct. 163 . Recognizing that district courts must exercise moderation in issuing stays, the Supreme Court of the United States has noted that there are no strict rules for the district court to apply, because “[s]uch a formula ... is too mechanical and narrow.” Landis v. N. Am. Co., 299 U.S. at 255 , 57 S.Ct. 163 .

The party seeking a stay generally faces a difficult burden. See Clinton v. Jones, 520 U.S. at 708 , 117 S.Ct. 1636 (“The proponent of a stay bears the burden of establishing its need.”); S2 Automation LLC v. Micron Technology, Inc., 2012 U.S. Dist. LEXIS 107962 , at *2 (D.N.M. 2012) (Browning, J.)(citing Commodity Futures Trading Comm’n v. Chilcott Portfolio Mgmt., Inc., 713 F.2d 1477, 1484 (10th Cir. 1983)). “In particular, where a movant seeks relief that would delay court proceedings by other litigants he must make a strong showing of necessity because the relief would severely affect the rights of others.” Commodity Futures Trading Comm’n v. Chilcott Portfolio Mgmt., Inc., *1085 713 F.2d at 1484 . “The underlying principle clearly is that ‘[t]he right to proceed in court should not be denied except under the most extreme circumstances.’ ” Commodity Futures Trading Comm’n v. Chilcott Portfolio Mgmt., Inc., 713 F.2d at 1484 (quoting Klein v. Adams & Peck, 436 F.2d 337, 339 (2d Cir. 1971)).

The Tenth Circuit has acknowledged a district court’s discretion in issuing discovery stays. In Cole v. Ruidoso Mun. Sch., 43 F.3d 1373 (10th Cir. 1994), the defendants argued “that they had an absolute right to a stay of discovery” after they filed a motion for qualified immunity, and appealed to the Tenth Circuit because the district court imposed conditions on the stay. 43 F.3d at 1386. The Tenth Circuit rebuffed the strict rules that the defendants suggested:

As a general rule, discovery rulings are within the broad discretion of the trial court. The trial court’s decision on discovery matters will not be disturbed unless the appellate court has a definite and firm conviction that the lower court made a clear error of judgment or exceeded the bounds of permissible choice in the circumstances.

43 F.3d at 1386.

Whether to issue a discovery stay depends greatly on the facts and progress in each case. In S2 Automation LLC v. Micron Technology, Inc., the Court granted in part and denied in part the motion to stay discovery, extend pretrial deadlines, vacate trial setting and for protective order. See 2012 U.S. Dist. LEXIS 107962 , at *1. The Court denied the motion to the extent it requested a discovery stay, because “[ultimately, a stay is unnecessary.” S2 Automation LLC v. Micron Technology, Inc., 2012 U.S. Dist. LEXIS 107962 , at *3. The parties had made “significant progress on the disputed matters,” and the Court had “issued rulings on many of the motions that Micron Technology contended needed to be resolved before the case proceeded.” S2 Automation LLC v. Micron Technology, Inc., 2012 U.S. Dist. LEXIS 107962 , at *3. Instead of granting the discovery stay, the Court extended deadlines that it had previously set in the case based on the case’s increasing complexity. See S2 Automation LLC v. Micron Technology, Inc., 2012 U.S. Dist. LEXIS 107962 , at *3. In Walker v. THI of N.M. at Hobbs Ctr., 2011 WL 2728326 (D.N.M. 2011)(Browning, J.), the Court evaluated whether to stay deposition discovery until thirty days after it ruled on the motions to dismiss two of the defendants, which would determine whether those defendants would remain in the suit and participate in discovery. See 2011 WL 2728326 , at *1. The plaintiffs argued that the Court had already extended discovery deadlines and that issuing a stay would require rescheduling deadlines. See Walker v. THI of N.M. at Hobbs Ctr., 2011 WL 2728326 , at *1. The Court denied the motion to stay, because it did “not see a benefit to staying discovery.” Walker v. THI of N.M. at Hobbs Ctr., 2011 WL 2728326 , at *2. The Court noted that counsel for the two defendants who were subject to the motions to dismiss had already indicated that they would not participate in deposition discovery. See Walker v. THI of N.M. at Hobbs Ctr., 2011 WL 2728326 , at *2. “There is thus no benefit to staying deposition discovery, and staying deposition discovery would further delay the case.” Walker v. THI of N.M. at Hobbs Ctr., 2011 WL 2728326 , at *2.

LAW REGARDING ELEVENTH AMENDMENT IMMUNITY

The Eleventh Amendment provides: “The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” *1086 U.S. Const, amend. XI. The Supreme Court has construed Eleventh Amendment immunity to prohibit federal courts from entertaining suits against states brought by their own citizens or citizens of another state without their consent. See Port Auth. Trans-Hudson Corp. v. Feeney, 495 U.S. 299, 304 , 110 S.Ct. 1868 , 109 L.Ed.2d 264 (1990). State agencies and state officials are likewise provided immunity as “an arm of the state.” Mt. Healthy City Bd. of Ed. v. Doyle, 429 U.S. 274, 280-81 , 97 S.Ct. 568 , 50 L.Ed.2d 471 (1977).

Exceptions to a state’s Eleventh Amendment immunity are few. See, e.g., Ex parte Young, 209 U.S. 123 , 28 S.Ct. 441 , 52 L.Ed. 714 (Recognizing exception for suits challenging the constitutionality of a state official’s actions). A state may, however, voluntarily waive its immunity. See Edelman v. Jordan, 415 U.S. 651, 673 , 94 S.Ct. 1347 , 39 L.Ed.2d 662 (1974). Congress may also abrogate Eleventh Amendment immunity pursuant to Section 5 of the Fourteenth Amendment to the Constitution of the United States, where the statute explicitly manifests Congress’ intent to do so. See Fitzpatrick v. Bitzer, 427 U.S. 445, 456 , 96 S.Ct. 2666 , 49 L.Ed.2d 614 (1976). Congress did not, however, abrogate Eleventh Amendment immunity when enacting 42 U.S.C. § 1983 . See Quern v. Jordan, 440 U.S. 332, 340 , 99 S.Ct. 1139 , 59 L.Ed.2d 358 (1979). Consequently, Eleventh Amendment immunity extends to defendants under that statute, and claims against the state pursuant to § 1983 in the federal courts are barred as a matter of law.

Although not properly characterized as an exception to a state’s Eleventh Amendment immunity, the doctrine announced in Ex parte Young, 209 U.S. at 128 , 28 S.Ct. 441 , allows for suits against state officials under certain circumstances. See Elephant Butte Irrigation Dist. of N.M. v. Dep’t of the Interior, 160 F.3d 602 , 607-08 (10th Cir. 1998)(“The Ex parte Young doctrine is not actually an exception to Eleventh Amendment state immunity because it applies only when the lawsuit involves an action against state officials, not against the state.”). In Ex parte Young, the Supreme Court held that the Eleventh Amendment bar generally does not apply to state officials defending suit in federal court which seeks only prospective relief from violations of federal law. Ex parte Young, 209 U.S. at 28 , 28 S.Ct. 441 . The Ex parte Young doctrine allows suit to proceed against defendant state officials if the following requirements are met: (i) the plaintiffs are suing state officials rather the state itself; (ii) the plaintiffs have alleged a non-frivolous violation of federal law; (in) the plaintiffs seek prospective equitable relief rather than retroactive monetary relief from the state treasury; and (iv) the suit does not implicate special sovereignty interests. See Elephant Butte Irrigation Dist. of N.M. v. Dep’t of the Interior, 160 F.3d at 609 (10th Cir. 1998).

LAW REGARDING THE NMTCA

The New Mexico Legislature enacted the NMTCA, because it recognized “the inherent unfair and inequitable results which occur in the strict application of the doctrine of sovereign immunity.” N.M.S.A. § 41-4-2(A). The New Mexico Legislature also recognized, however,

that while a private party may readily be held liable for his torts within the chosen ambit of his activity, the area within which the government has the power to act for the public good is almost without limit, and therefore government should not have the duty to do everything that might be done.

N.M.S.A. § 41-4-2(A). As a result, it is “declared to be the public policy of New Mexico that governmental entities and public employees shall only be liable within *1087 the limitations of the Tort Claims Act and in accordance with the principles established in that act.” N.M.S.A. § 41-4-2(A). The NMTCA is also “based upon the traditional tort concepts of duty and the reasonably prudent person’s standard of care in the performance of that duty.” N.M.S.A. § 41-4-2(C).

The NMTCA is the

exclusive remedy against a governmental entity or public employee for any tort for which immunity has been waived under the Tort Claims Act and no other claim, civil action or proceeding for damages, by reason of the same occurrence, may be brought against a governmental entity or against the public employee or his estate whose act or omission gave rise to the suit or claim.

N.M.S.A. § 4H-17(A). A plaintiff may not sue a New Mexico governmental entity, or its employees or agents, unless the plaintiffs cause of action fits within one of the exceptions to immunity that the NMTCA grants. See Begay v. State, 1985-NMCA-117 , 104 N.M. 483 , 723 P.2d 252, 255 (“Consent to be sued may not be implied, but must come within one of the exceptions to immunity under the Tort Claims Act.”), rev’d on other grounds by Smialek v. Begay, 1986-NMSC-049 , 104 N.M. 375 , 721 P.2d 1306 . A plaintiff also may not sue a governmental entity or its employees for a damage or damages claim arising out of violations of rights under the New Mexico Constitution unless the NMTCA contains a waiver of immunity. See Barreras v. N.M. Corr. Dep’t 2003-NMCA-027, ¶ 24 , 133 N.M. 313 , 62 P.3d 770, 776 (“In the absence of affirmative legislation, the courts of this state have consistently declined to permit individuals to bring private lawsuits to enforce rights guaranteed by the New M

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