Gaytan v. State of New Mexico ( 2020 )

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO DAVID GAYTAN Plaintiff, v. No. 19-cv-0778 SMV/KRS STATE OF NEW MEXICO and A. J. ROMERO, Defendants. ORDER TO SHOW CAUSE THIS MATTER is before the Court on Defendants’ Motion for Judgment on the Pleadings, [Doc. 40], filed on July 17, 2020. Plaintiff responded on July 30, 2020, [Doc. 43], and Defendants replied on August 13, 2020, [Doc. 48]. No oral argument was heard because the Motion was resolved on the briefs. In a Memorandum Opinion and Order, entered contemporaneously herewith, the Court found that Counts IV and V of the Complaint failed to state a claim against Defendant Romero and granted Plaintiff leave to file an amended complaint. Defendants argued that the Complaint also failed to state a claim against the State of New Mexico.1 [Doc. 40] at 2–3. This Court agrees. Further, on review of the relevant law, it appears that Counts IV and V, as asserted against Defendant State of New Mexico, should be dismissed with prejudice. See Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989). Therefore, Plaintiff must show cause why his claims against the State of New Mexico in Counts IV and V of the Complaint should not be 1 To the extent that Defendants argued that qualified immunity should apply to shield Defendant State of New Mexico, such argument is rejected. As a matter of law, qualified immunity is available for government officials, not states as entities. See, e.g., Anderson v. Creighton, 483 U.S. 635 (1987). Instead of qualified immunity, a state has sovereign immunity from suit in federal court, unless it consents, such as by removing the case from state court to federal court. See Cornforth v. Univ. of Okla. Bd. of Regents, 263 F.3d 1129, 1132 (10th Cir. 2001); McLaughlin v. Bd. of Trs. of State Colleges of Colo., 215 F.3d 1168, 1172 (10th Cir. 2000). dismissed with prejudice on the ground that the state is not a “person” and therefore not a proper defendant in § 1983 claims. Although the State of New Mexico waived its Eleventh Amendment immunity by removing this case to federal court, that wavier would not make it a proper defendant. See McLaughlin v. Bd. of Trs. of State Colleges of Colo., 215 F.3d 1168, 1172 (10th Cir. 2000). A cause of action under § 1983 requires the deprivation of a civil right by a “person” acting under color of state law. 42 U.S.C. § 1983; Will, 491 U.S. at 71 ¢‘[N]either a State nor its officials acting in their official capacities are ‘persons’ under § 1983.”). Accordingly, the State of New Mexico does not appear to be a proper defendant in Plaintiffs Counts IV and V in this case. See Will, 491 U.S. at 71. Thus, Plaintiff must show cause why Counts IV and V against the State of New Mexico should not be dismissed with prejudice.’ Plaintiff is notified that failure to show cause will result in Counts IV and V of the Complaint being dismissed with prejudice as to Defendant State of New Mexico. IT IS THEREFORE ORDERED that Plaintiff show cause no later than December 4, 2020, why his claims against the State of New Mexico in Counts IV and V should not be dismissed with prejudice because the state is not a proper defendant in § 1983 claims. IT ISSO ORDERED. Ly / } STEPHAN M. VIDMAR United States Magistrate Judge Presiding by Consent 2 For further background on when a State or one of its entities may be liable under § 1983, see generally Martin A. Schwartz, Section 1983 Litigation, (Kris Markarian, ed., Federal Judicial Center 3d ed. 2014).