Opinion
No. CIV 20-0267 JB/JHR
02-09-2021
Leland T. TAYLOR, Plaintiff, v. Michelle Lujan GRISHAM, individually, and any persons acting in concert of enforcement or facilitation of the Order; Ausa United States of America and Steve Pearce, Defendants.
Leland T. Taylor, Albuquerque, New Mexico, Plaintiff Pro se. Luis E. Robles, Douglas E. Gardner, Robles, Rael & Anaya, P.C., Albuquerque, New Mexico, Attorneys for the Defendant Michelle Lujan Grisham. Fred J. Federici, Acting United States Attorney, Manuel Lucero, Assistant United States Attorneys, United States Attorney's Office, Albuquerque, New Mexico, Attorneys for the Defendant AUSA United States of America. Carter B. Harrison, IV, Harrison & Hart, LLC, Albuquerque, New Mexico, Attorneys for the Defendant Steve Pearce.
Leland T. Taylor, Albuquerque, New Mexico, Plaintiff Pro se.
Luis E. Robles, Douglas E. Gardner, Robles, Rael & Anaya, P.C., Albuquerque, New Mexico, Attorneys for the Defendant Michelle Lujan Grisham.
Fred J. Federici, Acting United States Attorney, Manuel Lucero, Assistant United States Attorneys, United States Attorney's Office, Albuquerque, New Mexico, Attorneys for the Defendant AUSA United States of America.
Carter B. Harrison, IV, Harrison & Hart, LLC, Albuquerque, New Mexico, Attorneys for the Defendant Steve Pearce.
MEMORANDUM OPINION AND ORDER ADOPTING THE MAGISTRATE JUDGE'S PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
JAMES O. BROWNING, UNITED STATES DISTRICT JUDGE
THIS MATTER comes before the Court on the Magistrate Judge's Proposed Findings and Recommended Disposition, filed December 29, 2020 (Doc. 60)("PFRD"). The Honorable Jerry H. Ritter, United States Magistrate Judge for the United States District Court of New Mexico, recommends that the Court grant Defendant Lujan Grisham's Motion for Summary Judgment No. II: Dismissal of Plaintiff's First, Second, Fourth, Tenth and Fourteenth Amendment Claims Based on Qualified Immunity, filed June 22, 2020 (Doc. 49)("Second MTD") and dismiss all of Plaintiff Leland T. Taylor's claim for monetary damages against Governor Grisham with prejudice. See PFRD at 1. The PFRD notifies the parties of their ability to file objections and that failure to do so waives appellate review. See PFRD at 6. Objections were due by January 12, 2021. See PFRD at 6. To date, no party has filed objections.
LAW REGARDING OBJECTIONS TO PROPOSED FINDINGS AND RECOMMENDATIONS
District courts may refer dispositive motions to a Magistrate Judge for a recommended disposition. See Fed. R. Civ. P. 72(b)(1) ("A magistrate judge must promptly conduct the required proceedings when assigned, without parties’ consent, to hear a pretrial matter dispositive of a claim or defense ...."). Rule 72(b)(2) of the Federal Rules of Civil Procedure governs objections to recommendations from a Magistrate Judge and provides that, "[w]ithin 14 days after being served with a copy of the recommended disposition, a party may serve and file specific written objections to the proposed findings and recommendations." Fed. R. Civ. P. 72(b)(2). Under the rule, when resolving objections "the district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to by a party. The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions." Fed. R. Civ. P. 72(b)(3).
Similarly, 28 U.S.C. § 636 provides:
A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge may also receive further evidence or recommit the matter to the magistrate judge with instructions.
12"The filing of objections to the magistrate's report enables the district judge to focus attention on those issues -- factual and legal -- that are at the heart of the parties’ dispute." United States v. One Parcel of Real Property, With Buildings, Appurtenances, Improvements, and Contents , 73 F.3d 1057, 1059 (10th Cir. 1996) (" One Parcel ")(quoting Thomas v. Arn , 474 U.S. 140, 147, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985) ). As the United States Court of Appeals for the Tenth Circuit has noted, "the filing of objections advances the interests that underlie the Magistrate's Act, including judicial efficiency." One Parcel , 73 F.3d at 1059 (citing Niehaus v. Kan. Bar Ass'n , 793 F.2d 1159, 1165 (10th Cir. 1986) ; United States v. Walters , 638 F.2d 947, 950 (6th Cir. 1981) ).
Congress enacted the Federal Magistrates Act, 28 U.S.C. §§ 631 -39, in 1968.
The Tenth Circuit held in One Parcel "that a party's objections to the magistrate judge's report and recommendation must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review." One Parcel , 73 F.3d at 1060. "To further advance the policies behind the Magistrate's Act, [the Tenth Circuit], like numerous other circuits, ha[s] adopted ‘a firm waiver rule’ that ‘provides that the failure to make timely objections to the magistrate's findings or recommendations waives appellate review of both factual and legal questions.’ " One Parcel , 73 F.3d at 1059 (citations omitted).
In addition to requiring specificity in objections, the Tenth Circuit has stated that "[i]ssues raised for the first time in objections to the magistrate judge's recommendation are deemed waived." Marshall v. Chater , 75 F.3d 1421, 1426 (10th Cir. 1996). See United States v. Garfinkle , 261 F.3d 1030, 1030-31 (10th Cir. 2001) ("In this circuit, theories raised for the first time in objections to the magistrate judge's report are deemed waived."). And, in an unpublished opinion, the Tenth Circuit stated that "the district court correctly held that [a petitioner] had waived [an] argument by failing to raise it before the magistrate." Pevehouse v. Scibana , 229 F. App'x 795, 796 (10th Cir. 2007) (unpublished).
The Court can rely on an unpublished opinion to the extent its reasoned analysis is persuasive in the case before it. See 10th Cir. R. 32.1(A) ("Unpublished opinions are not precedential, but may be cited for their persuasive value."). The Tenth Circuit has stated:
In this circuit, unpublished orders are not binding precedent, ... and we have generally determined that citation to unpublished opinions is not favored. However, if an unpublished opinion or order and judgment has persuasive value with respect to a material issue in a case and would assist the court in its disposition, we allow a citation to that decision.
United States v. Austin, 426 F.3d 1266, 1274 (10th Cir. 2005) (citations omitted). The Court concludes that Pevehouse v. Scibana, 229 F. App'x at 796, has persuasive value with respect to a material issue, and will assist the Court in its disposition of this Memorandum Opinion and Order.
In One Parcel , the Tenth Circuit, in accord with other Courts of Appeals, expanded the waiver rule to cover objections that are timely, but too general. See One Parcel , 73 F.3d at 1060. The Supreme Court of the United States -- in the course of approving the United States Court of Appeals for the Sixth Circuit's use of the waiver rule -- has noted:
It does not appear that Congress intended to require district court review of a magistrate's factual or legal conclusions, under a de novo or any other standard, when neither party objects to those findings. The House and Senate Reports accompanying the 1976 amendments do not expressly consider what sort of review the district court should perform when no party objects to the magistrate's report. See S. Rep. No. 94-625, pp. 9-10 (1976) (hereafter Senate Report); H.R. Rep. No. 94-1609, p. 11 (1976); U.S. Code Cong. & Admin. News 1976, p. 6162 (hereafter House Report). There is nothing in those Reports, however, that demonstrates an intent to require the district court to give any more consideration to the magistrate judge's report than the court considers appropriate. Moreover, the Subcommittee that drafted and held hearing on the 1976 amendments had before it the guidelines of the Administrative Office of the United States Courts concerning the efficient use of magistrates. Those guidelines recommended to the district courts that "[w]here a magistrate makes a finding or ruling on a motion or an issue, his determination should become that of the district court, unless specific objection is filed within a reasonable time." See Jurisdiction of the United States Magistrates, Hearings on S. 1283 before the Subcommittee on Improvements in Judicial Machinery of the Senate Committee on the Judiciary, 94th Cong., 1st Sess., 24 (1975)(emphasis added)(hereafter Senate Hearings). The Committee also heard Judge Metzner of the Southern District of New York, the chairman of a Judicial Conference Committee on the administration of the magistrate system, testify that he personally followed that practice. See id ., at 11 ("If any objections come in, ... I review [the record] and decide it. If no objections come in, I merely sign the magistrate's order."). The Judicial Conference of the United States, which supported the de novo standard of review eventually incorporated in § 636(b)(1)(C), opined that in most instances no party would object to the magistrate's recommendation, and the litigation would terminate with the judge's adoption of the magistrate's report. See Senate Hearings, at 35, 37. Congress apparently assumed, therefore, that any party who was dissatisfied for any reason with the magistrate's report would file objections, and those objections would trigger district court review. There is no indication that Congress, in enacting § 636(b)(1)(C), intended to require a district judge to review a magistrate's report to which no objections are filed. It did not preclude treating the failure to object as a procedural default, waiving the right to further consideration of any sort. We thus find nothing in the statute or the legislative history that convinces us that Congress intended to forbid a rule such as the one adopted by the Sixth Circuit.
Thomas v. Arn , 474 U.S. at 150-52, 106 S.Ct. 466 (emphasis in original)(footnotes omitted).
The Tenth Circuit also noted, "however, that ‘[t]he waiver rule as a procedural bar need not be applied when the interests of justice so dictate.’ " One Parcel , 73 F.3d at 1060 (quoting Moore v. United States , 950 F.2d 656, 659 (10th Cir. 1991) ("We join those circuits that have declined to apply the waiver rule to a pro se litigant's failure to object when the magistrate's order does not apprise the pro se litigant of the consequences of a failure to object to findings and recommendations.")(citations omitted)). Cf . Thomas v. Arn , 474 U.S. at 154, 106 S.Ct. 466 (noting that, while "[a]ny party that desires plenary consideration by the Article III judge of any issue need only ask," a failure to object "does not preclude further review by the district judge, sua sponte or at the request of a party, under a de novo or any other standard"). In One Parcel , the Tenth Circuit noted that the district judge had decided sua sponte to conduct a de novo review despite the lack of specificity in the objections, but the Tenth Circuit held that it would deem the issues waived on appeal, because it would advance the interests underlying the waiver rule. See One Parcel , 73 F.3d at 1060-61 (citing cases from other Courts of Appeals where district courts elected to address merits despite potential application of waiver rule, but the Courts of Appeals opted to enforce waiver rule).
3456 Where a party files timely and specific objections to the Magistrate Judge's PFRD, "on ... dispositive motions, the statute calls for a de novo determination, not a de novo hearing." United States v. Raddatz , 447 U.S. 667, 674, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980). "[I]n providing for a ‘de novo determination’ rather than a de novo hearing, Congress intended to permit whatever reliance a district judge, in the exercise of sound judicial discretion, chose to place on a magistrate's proposed findings and recommendations." United States v. Raddatz , 447 U.S. at 676, 100 S.Ct. 2406 (quoting 28 U.S.C. § 636(b) and citing Mathews v. Weber , 423 U.S. 261, 275, 96 S.Ct. 549, 46 L.Ed.2d 483 (1976) ). The Tenth Circuit requires a "district court to consider relevant evidence of record and not merely review the magistrate judge's recommendation" when conducting a de novo review of a party's timely, specific objections to the Magistrate Judge's report. In re Griego , 64 F.3d 580, 583-84 (10th Cir. 1995). "When objections are made to the magistrate's factual findings based on conflicting testimony or evidence ... the district court must, at a minimum, listen to a tape recording or read a transcript of the evidentiary hearing." Gee v. Estes , 829 F.2d 1005, 1008-09 (10th Cir. 1987).
7891011 A district court must "clearly indicate that it is conducting a de novo determination" when a party objects to the Magistrate Judge's report "based upon conflicting evidence or testimony." Gee v. Estes , 829 F.2d at 1009. On the other hand, a district court fails to meet the requirements of 28 U.S.C. § 636(b)(1) when it indicates that it gave "considerable deference to the magistrate's order." Ocelot Oil Corp. v. Sparrow Indus. , 847 F.2d 1458, 1464 (10th Cir. 1988). A district court need not, however, "make any specific findings; the district court must merely conduct a de novo review of the record." Garcia v. City of Albuquerque , 232 F.3d 760, 766 (10th Cir. 2000). "[T]he district court is presumed to know that de novo review is required.... Consequently, a brief order expressly stating the court conducted de novo review is sufficient." Northington v. Marin , 102 F.3d 1564, 1570 (10th Cir. 1996) (citing In re Griego , 64 F.3d at 583-84 ). "[E]xpress references to de novo review in its order must be taken to mean it properly considered the pertinent portions of the record, absent some clear indication otherwise." Bratcher v. Bray-Doyle Indep. Sch. Dist. No. 42 , 8 F.3d 722, 724 (10th Cir. 1993). The Tenth Circuit has held that a district court properly conducted a de novo review of a party's evidentiary objections when the district court's "terse" order contained one sentence for each of the party's "substantive claims" and did "not mention his procedural challenges to the jurisdiction of the magistrate to hear the motion." Garcia v. City of Albuquerque , 232 F.3d at 766. The Tenth Circuit has explained that brief district court orders that "merely repeat the language of § 636(b)(1) to indicate its compliance" are sufficient to demonstrate that the district court conducted a de novo review:
It is common practice among district judges in this circuit to make such a statement and adopt the magistrate judges’ recommended dispositions when they find that magistrate judges have dealt with the issues fully and accurately and that they could add little of value to that analysis. We cannot interpret the district court's statement as establishing that it failed to perform the required de novo review.
In re Griego , 64 F.3d at 584.
12 Notably, because a district court may place whatever reliance it chooses on a magistrate judge's proposed findings and recommendations, a district court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the [M]agistrate" Judge, 28 U.S.C. § 636(b)(1), as "Congress intended to permit whatever reliance a district judge, in the exercise of sound judicial discretion, chose to place on a magistrate's proposed findings and recommendations ...." United States v. Raddatz , 447 U.S. at 676, 100 S.Ct. 2406 (emphasis omitted). See Bratcher v. Bray-Doyle Indep. Sch. Dist. No. 42 , 8 F.3d at 724-25 (holding that the district court's adoption of the Magistrate Judge's "particular reasonable-hour estimates" is consistent with the de novo determination that 28 U.S.C. § 636(b)(1) and United States v. Raddatz require).
131415 Where no party objects to the Magistrate Judge's PFRD, the Court still reviews the Magistrate Judge's recommendations. In Pablo v. Soc. Sec. Admin. , No. CIV 11-0132 JB/ACT, 2013 WL 1010401 (D.N.M. 2013) (Browning, J.), the plaintiff failed to respond to the Magistrate Judge's PFRD, and thus, waived his right to appeal the recommendations, but the Court nevertheless conducted a review. The Court generally does not "review the PF&RD de novo, because the parties had not objected thereto, but rather review[s] the recommendations to determine whether they clearly erroneous, arbitrary, obviously contrary to law, or an abuse of discretion." Pablo v. Soc. Sec. Admin , 2013 WL 1010401, at *4. The Court, thus, does not determine independently what it would do if the issues had come before the Court first, but rather, adopts the PFRD where "[t]he Court cannot say that the Magistrate Judge's recommendation ... is clearly erroneous, arbitrary, obviously contrary to law, or an abuse of discretion." Pablo v. Soc. Sec. Admin. , 2013 WL 1010401, at *4. See Alexandre v. Astrue , No. CIV 11-0384 JB/SMV, 2013 WL 1010439, at *4 (D.N.M. 2013) (Browning, J.)("The Court rather reviewed the findings and recommendations of the Honorable Stephan M. Vidmar, United States Magistrate Judge, to determine if they are clearly erroneous, arbitrary, obviously contrary to law, or an abuse of discretion. The Court determines that they are not, and will therefore adopt the PFRD."); Trujillo v. Soc. Sec. Admin. , No. CIV 12-1125 JB/KBM, 2013 WL 1009050, at *5 (D.N.M. 2013) (Browning, J.)(adopting the proposed findings and conclusions, noting: "The Court did not review the PFRD de novo, because Trujillo has not objected to it, but rather reviewed the ... findings and recommendations to determine if they are clearly erroneous, arbitrary, obviously contrary to law, or an abuse of discretion, which they are not."). This review, which is deferential to the Magistrate Judge's work when there is no objection, nonetheless provides some review in the interest of justice, and seems more consistent with the waiver rule's intent than no review at all or a full-fledged review. Accordingly, the Court considers this standard of review appropriate. See Thomas v. Arn , 474 U.S. at 151, 106 S.Ct. 466 ("There is nothing in those Reports, however, that demonstrates an intent to require the district court to give any more consideration to the magistrate's report than the court considers appropriate."). The Court is reluctant to have no review at all, if its name is going to go at the bottom of the order adopting the Magistrate Judge's PFRD.
ANALYSIS
The Court has carefully reviewed the PFRD and the Second MTD. The Court did not review the PFRD de novo, because no objections have been filed, but rather the Court reviewed Magistrate Judge Ritter's PFRD to determine if it is clearly erroneous, arbitrary, obviously contrary to law, or an abuse of discretion. The Court determines that the PFRD is not clearly erroneous, arbitrary, obviously contrary to law, or an abuse of discretion. Accordingly, the Court will adopt the PFRD.
IT IS ORDERED that (i) Defendant Lujan Grisham's Motion for Summary Judgment No. II: Dismissal of Plaintiff's First, Second, Fourth, Tenth and Fourteenth Amendment Claims Based on Qualified Immunity, filed June 22, 2020 (Doc. 49), is granted, and (ii) all of the Plaintiff Leland T. Taylor's claims for monetary damages against Defendant Governor Grisham are dismissed with prejudice.
PROPOSED FINDINGS AND RECOMMEND DISPOSITION
JERRY H. RITTER, UNITED STATES MAGISTRATE JUDGE
THIS MATTER comes before the Court on Defendant Lujan Grisham's Motion for Summary Judgment No. II: Dismissal of Plaintiff's First, Second, Fourth, Tenth and Fourteenth Amendment Claims Based on Qualified Immunity [Doc. 49], filed June 22, 2020. Pursuant to 28 U.S.C. § 636(b), presiding District Judge James O. Browning referred this case to me "to conduct hearings, if warranted, including evidentiary hearings, and to perform any legal analysis required to recommend to the Court an ultimate disposition of the case." [Doc. 16]. Having reviewed the Motion and the relevant law, I recommend granting Defendant Grisham's motion for summary judgment based on qualified immunity and dismissing part of Plaintiff's Complaint against Defendant Grisham with prejudice.
I. BACKGROUND
Plaintiff seeks both monetary damages and injunctive relief from certain Executive Orders issued by Defendant Grisham in response to the coronavirus disease, commonly referred to as "COVID-19." [Docs. 1, 7, 13, 27-1]. Plaintiff filed his Complaint on March 24, 2020 and claims that the challenged Orders violate his rights under the First, Second, Fourth, Tenth, and Fourteenth Amendments to the United States Constitution. [Docs. 1, 7, 13]. On June 22, 2020, Defendant Grisham moved for summary judgment based on qualified immunity. [Doc. 49]. To date, Plaintiff has not filed a response to the motion.
II. ANALYSIS
A. Legal Standard for Summary Judgment
Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. See Fed. R. Civ. P. 56 ; Sealock v. Colorado , 218 F.3d 1205, 1209 (10th Cir. 2000). When reviewing a motion for summary judgment, "[t]he factual record and reasonable inferences therefrom are viewed in the light most favorable to the party opposing summary judgment." Byers v. City of Albuquerque , 150 F.3d 1271, 1274 (10th Cir. 1998). However, the nonmoving party may not rest upon his pleading but must put forth specific facts showing that there is a genuine issue for trial. Anderson v. Liberty Lobby , 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The existence of a mere scintilla of evidence in the nonmovant's favor will not forestall summary judgment. Id. at 252, 106 S.Ct. 2505.
B. Legal Standard for Qualified Immunity
"[G]overnment officials performing discretionary functions generally are granted a qualified immunity and are ‘shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’ " Wilson v. Layne , 526 U.S. 603, 609, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999) (internal citation omitted); see Pearson v. Callahan , 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). The Tenth Circuit reviews summary judgment decisions involving a qualified immunity defense somewhat differently than other summary judgment rulings. Barney v. Pulsipher , 143 F.3d 1299, 1309 (10th Cir. 1998). Once a defendant raises a qualified immunity defense in a motion for summary judgment, the burden shifts to the plaintiff, and the plaintiff must produce facts sufficient to show both that defendant's alleged conduct violated the law and that the law was clearly established when the alleged violation occurred. Bruning v. Pixler , 949 F.2d 352, 356-57 (10th Cir. 1991) ; see Gutierrez v. Cobos , 841 F.3d 895, 900–01 (10th Cir. 2016). "A necessary concomitant to the determination of whether the constitutional right asserted by a plaintiff is ‘clearly established’ at the time the defendant acted is the determination of whether the plaintiff has asserted a violation of a constitutional right at all." Siegert v. Gilley , 500 U.S. 226, 232, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991) ; see Bella v. Chamberlain , 24 F.3d 1251, 1254 (10th Cir. 1994). Courts have the discretion to address either prong first. Pearson , 555 U.S. at 236, 129 S.Ct. 808. Only after plaintiff produces sufficient facts to carry his two-fold burden of production must defendant bear the usual summary judgment movant's burden of showing that no material issues of fact remain that would defeat claim of qualified immunity. Bruning , 949 F.2d at 356-57 ; Pearson , 555 U.S. at 236, 129 S.Ct. 808. If the plaintiff fails to carry either part of the two-part burden, the defendant is entitled to qualified immunity. Albright v. Rodriguez , 51 F.3d. 1531, 1535 (10th Cir. 1995) ; see Estate of Booker v. Gomez , 745 F.3d 405, 411 (10th Cir. 2014).
C. Application
Here, Defendant Grisham seeks summary judgment on Plaintiff's First, Second, Fourth, Tenth and Fourteenth Amendment claims against Defendant Grisham based on qualified immunity. [See generally Doc. 59]. Plaintiff's claims against Defendant Grisham arise from Defendant's issuance of Executive Order 2020-022. [Doc. 58, p. 12; see Doc. 13].1 Defendant argues that the issuance of Executive Order 2020-022 is a constitutional exercise of Defendant's executive authority, namely, the State's police power under the Tenth Amendment. [Doc. 59, p. 6]. Alternatively, Defendant argues that the issuance of Executive Order 2020-022 did not violate Plaintiff's clearly established First, Second, Fourth, Tenth and Fourteenth Amendment rights. [See Doc. 59, p. 7-21].
Plaintiff's pro se status doesn't alleviate his burden on summary judgment, see e.g. Arnett v. Webster , 658 F.3d 742, 760 (7th Cir. 2011), especially where, as here, qualified immunity has been raised and the burden has shifted to the Plaintiff. See Bruning, 949 F.2d at 356-57 ; Roska ex rel. Roska v. Sneddon , 437 F.3d 964, 971 (10th Cir. 2006). The plaintiff bears the burden of directing the Court to authority that clearly establishes the right that was violated. See Washington v. Unified Gov't of Wyandotte Cty. , 847 F.3d 1192, 1201 n. 3 (10th Cir. 2017). "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." Hannula v. City of Lakewood , 907 F.2d 129, 131 (10th Cir. 1990). "If the plaintiff is unable to demonstrate that the law allegedly violated was clearly established, the plaintiff is not allowed to proceed with the suit." Hilliard v. City & Cty. of Denver , 930 F.2d 1516, 1518 (10th Cir. 1991). (internal quotation marks and citation omitted).
Plaintiff did not respond to Defendant's motion for summary judgment based on qualified immunity. Plaintiff did not explain why Defendant's Executive Order 2020-022 issuance is a violation of a constitutional right at all. As explained above, a violation of a constitutional right is a pre-requisite for the "clearly established" prong. Because Plaintiff did not direct the Court to any legal authority, I conclude that Plaintiff failed to carry the "clearly established" part of his two-part burden. Therefore, I recommend granting Defendant's summary judgment on this basis, and I do not reach the additional arguments advanced by the Defendant.
Plaintiff should note that doctrine of qualified immunity clearly protects government officials sued in their individual capacity from civil damage liabilities. See Richardson v. McKnight , 521 U.S. 399, 407-08, 117 S.Ct. 2100, 138 L.Ed.2d 540 (1997) ; Cmty. House, Inc. v. City of Boise, Idaho , 623 F.3d 945, 965 (9th Cir. 2010). Furthermore, State officials sued in their official capacity for damages are not "persons" for purposes of § 1983. See Hafer v. Melo , 502 U.S. 21, 27, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991) ; Will v. Mich. Dep't of State Police , 491 U.S. 58, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989). However, the Court is not persuaded that qualified immunity extends beyond monetary damages, and Defendant provides no legal basis for such an extension. See Hydrick v. Hunter , 669 F.3d 937, 940-41 (9th Cir. 2012) (Qualified immunity is only an immunity from suit for damages but not an immunity from suit for declaratory or injunctive relief.). Therefore, while I recommend that the Court grant qualified immunity as to all of Plaintiff's claims for monetary damages, I do not recommend dismissal of all his claims against Defendant Grisham.
D. Attorney's Fees
Defendant Grisham requests attorney's fees and costs but provides no basis for such an award. New Mexico Local Rule 54.5(a) governing motions for attorney's fees (other than those under the Equal Access to Justice Act, 28 U.S.C. § 2412(d) ) requires a separate motion complying with D.N.M.LR-Civ. 7 that must be filed "within thirty (30) days after entry of judgment." D.N.M.LR-Civ. 54.5(a). Therefore, I recommend that the Court note the request but take no action on attorney's fees unless and until the required separate motion is filed and briefed.
III. RECOMMENDATION
For the foregoing reasons, I recommend granting Defendant's motion for summary judgment based on qualified immunity and dismissing all of Plaintiff's claim for monetary damages against Defendant Grisham with prejudice.