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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
JOSEPH SULLIVAN, Plaintiff, vs. Civ. No. 13-00016 JP/RHS RADIO STATION KUNM 89.9 FM,
RICHARD TOWNE, in his official and individual capacity, MATTHEW FINCH, in his official and individual capacity, and UNIVERSITY OF NEW MEXICO BOARD OF REGENTS, Defendants.
MEMORANDUM OPINION AND ORDER
On December 10, 2012, Plaintiff filed an AMENDED COMPLAINT FOR REPLEVIN
AND COMPLAINT FOR DAMAGES (Doc. No. 1-1) (Amended Complaint) in the Second
Judicial District Court, County of Bernalillo, State of New Mexico, which, for the first time,
added federal claims. Plaintiff brings those federal claims under 42 U.S.C. § 1983. On January
8, 2013, Defendants removed this lawsuit to fede ral court on the basis of federal question
jurisdiction. Defendants now move to dismiss Pl aintiff’s lawsuit under Fed. R. Civ. P. 12(b)(6)
for failure to state a cognizable cl aim upon which relief can be granted. See DEFENDANTS’
MOTION TO DISMISS (Doc. No. 5) (Motion to Dismiss), filed Jan. 23, 2013. Should the
Defendants prevail on the Motion to Dismiss, De fendants request that the Court award them
attorney’s fees and costs. Case 1:13-cv-00016-JAP-RHS Document 18 Filed 04/25/13 Page 1 of 18
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A. Background
1. The Amended Complaint
Plaintiff is a former volunt eer at Defendant Radio Sta tion KUNM 89.9 FM (KUNM), the
University of New Mexico’s (UNM) public radio station1 which Plaintiff alleges is a
“government entity.” See Amended Complaint at ¶ 48. Plainti ff claims that Defendants accused
him of embezzling record albums from KUNM. Id. at ¶ 10. On July 24, 2009, UNM police
allegedly executed a search warrant at Plainti ff’s home and seized ove r 500 record albums. Id. at
¶ 11. Plaintiff contends that the search warra nt was unlawful and was based on “fraudulent and
stale statements of one individual, not affiliated with” KUNM. Id. at ¶¶ 11-13. A state Grand
Jury subsequently indicted Plaintiff on felony charges. Id. at ¶ 15. According to Plaintiff, on
February 24, 2012, the state court dismissed the criminal charges against him because of a
Speedy Trial Act violation. Id. at ¶ 18. UNM police then turned over the seized record albums
to Defendant Richard Towne, KUNM’s General Manager, and to Defendant Matthew Finch,
KUNM’s Music Director. Id. at ¶ 17. Towne and Finch alle gedly made the record albums
available to “all personnel and volunteers” at KUNM. Id.
Plaintiff maintains that on March 12, 2012 he and Towne, along with their respective
attorneys, met at UNM. Id. at ¶ 19. Plaintiff contends that at the meeting he demanded that
1The Court takes judicial notice of the Rege nts’ Policy on KUNM which states, in part,
that “KUNM is licensed to the Board of Rege nts of the University of New Mexico, and
the Board has the responsibi lity, under the Communications Act of 1934, as amended, for
all aspects of the station’s operations, including programming.” kunm.net/pdf/KUNM-
RegentsPolicy.pdf. See also Berneike v. CitiMortgage, Inc. , 708 F.3d 1141, 1146 (10th
Cir. 2013) (although “[g]enerally, a court cons iders only the contents of the complaint
when ruling on a 12(b)(6) motion,” a court can, nonetheless, consider information which
it has taken judici al notice of.); Van Woudenberg ex rel. Foor v. Gibson , 211 F.3d 560,
568 (10th Cir. 2000), abrogated on other grounds by McGregor v. Gibson , 248 F.3d 946,
955 (10th Cir. 2001) (courts can take judici al notice of matters of public record).
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KUNM return the record albums to him. Id. According to Plaintiff, “Towne refused to answer
several of Plaintiff’s questions” and later “made findings of fact and decided the property would
not be returned.” Id. at ¶¶ 57 and 58.
Consequently, Plaintiff sued KUNM; the UNM Board of Regents (Board of Regents);
Towne, in his official and individual capacitie s; and Finch, in his o fficial and individual
capacities. Plaintiff brings six causes of action. Pl aintiff asserts various st ate tort claims in the
First, Second, Third, and Fourth Causes of Acti on. However, Plaintiff now agrees to withdraw
the state tort claims. See PLAINTIFF’S RESPONSE TO DEFENDANTS’ MOTION TO
DISMISS (Doc. No. 8) (Response) at 1, filed Fe b. 6, 2013. The Court will, therefore, dismiss
the First, Second, Third, and Four th Causes of Action with prejudi ce. The Fifth Cause of Action
includes a § 1983 claim for violati on of the takings clause of th e Fifth Amendment of the United
States Constitution and a claim for violation of the New Mexico Constitution’s takings clause.
The Sixth Cause of Action contai ns a § 1983 claim for violation of the procedural due process
clause of the Fourteenth Amendment of the Un ited States Constitution and a claim for violation
of the New Mexico Constitution’s procedural due process clause. Although the Fifth Cause of
Action appears to be against KUNM, Towne, and Finch while the Sixth Cause of Action appears
to be against KUNM, see Amended Complaint at ¶¶ 48 and 53, the parties treat the Fifth and
Sixth Causes of Action as if they are asserted against all Defendants. Accordingly, the Court
will address the Motion to Dismiss as applicable to all Defendants. Plaintiff seeks compensatory
damages as well as the return of the record albums.
2. The Motion to Dismiss
Defendants argue that Plaintiff has not stated a § 1983 claim against KUNM and the
UNM Board of Regents because they are not “per sons” subject to § 1983 and because Plaintiff Case 1:13-cv-00016-JAP-RHS Document 18 Filed 04/25/13 Page 3 of 18
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has not alleged that KUNM and the Board of Regent s have a policy or custom which resulted in
in any alleged civil rights viola tions. Defendants also argue that Towne and Finch are entitled to
qualified immunity for the § 1983 claims. Should Defendants prevail on the Motion to Dismiss,
Defendants seek an award of attorney’s fees a nd costs. Plaintiff opposes the dismissal of the
§ 1983 claims. See Response. On March 1, 2013, Defendants filed a REPLY TO PLAINTIFF’S
RESPONSE TO DEFENDANTS’ MOTION TO DISMISS (Doc. No. 13).
B. Standard of Review
Under Rule 12(b)(6), a court may dismiss a complaint or claim for “failure to state a
claim upon which relief can be granted.” In ru ling on a Rule 12(b)(6) motion to dismiss, the
Court must accept all well-pleaded allegations as true and must view them in the light most
favorable to the plaintiff. See Zinermon v. Burch , 494 U.S. 113, 118 (1990); Swanson v. Bixler ,
750 F.2d 810, 813 (10th Cir.1984). Rule 12(b)(6) requi res that a complaint set forth the grounds
of a plaintiff's entitlement to relief through more than labels , conclusions and a formulaic
recitation of the elements of a cause of action. See Bell Atlantic Corp. v. Twombly , 550 U.S. 544,
555 (2007). While a complaint does not need to in clude detailed factual allegations, “[f]actual
allegations must be enough to raise a right to relief a bove the speculative level….” Id. In other
words, dismissal of a complaint under Rule 12(b )(6) is proper only when it is obvious that the
plaintiff failed to set forth “enough facts to state a claim to relief that is plausible on its face.” Id.
at 570.
A claim has facial plausibility when the plai ntiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct
alleged. The plausibility standa rd is not akin to a “probab ility requirement,” but it asks
for more than a sheer possibility that a defendant has acted unlawfully. Where a
complaint pleads facts that are “merely consiste nt with” a defendant’s liability, it “stops
short of the line between po ssibility and plausibility of ‘entitlement to relief.’”
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Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) (citations omitte d). Courts must draw on their
“judicial experience and common sense” to assess a claim’s plausibility. Id. at 679.
To avoid a Rule 12(b)(6) dismissal base d on the defense of qualified immunity,
“plaintiffs must allege facts sufficient to show (assuming they are true) that the defendants
plausibly violated their constituti onal rights, and that those rights were clearly established at the
time. This requires enough allegations to give the defendants notice of the theory under which
their claim is made.” Robbins v. Oklahoma , 519 F.3d 1242, 1249 (10th Cir. 2008). The Tenth
Circuit more specifically articulated the test fo r qualified immunity when raised in a motion to
dismiss as follows:
Once a defendant raises qualified immunity in the context of a motion to dismiss, a court
must first determine whether the plaintiff has alleged a violation of federal law. Eaton v.
Meneley , 379 F.3d 949, 954 (10th Cir.2004). If the answ er is “yes,” then the court must
decide whether the right was clearly estab lished when the alleged violation occurred. Id.;
see also Smith v. Cochran , 339 F.3d 1205, 1211 (10th Cir.2003). To be clearly
established, “[t]he contours of the right must be sufficien tly clear that a reasonable
official would understand that what he is doing violat es that right.” Albright v .Rodriguez ,
51 F.3d 1531, 1535 (10th Cir.1995) (quoting Anderson v. Creighton , 483 U.S. 635, 640,
107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)). Although th e very conduct in question need not
have been held unlawful, “in the light of pre-existing law the unlawfulness must be
apparent.” Id. If a plaintiff fails to demonstrate that a defendant's conduct violated the
law, then we need not reach the additiona l question of whether the law was clearly
established. Butler v. Rio Rancho Pub. Schs. Bd. of Educ. , 341 F.3d 1197, 1200 (10th
Cir.2003).
Marino v. Mayger , 118 Fed. Appx. 393, 398 (10th Cir. 2004) (unpublished decision) (footnote
omitted).
C. Discussion
1. Whether Plaintiff has Stated a Plausible § 1983 Claim Against KUNM and the Board
of Regents
Defendants argue first that Plaintiff ca nnot bring § 1983 claims against KUNM and the
Board of Regents because they are not “persons” within the meaning of § 1983. To state a claim Case 1:13-cv-00016-JAP-RHS Document 18 Filed 04/25/13 Page 5 of 18
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for relief under § 1983, “a plaintiff must allege the violation of a right secured by the
Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988)
(citations omitted) (emphasis added). Plaintiff seem s to concede that states and their agencies or
entities, like the Board of Regents and KUNM,
2 are not considered “persons” under § 1983 when
compensatory damages are sought. See Response at 1. See also, e.g., Ross v. The Board of
Regents of the Unive rsity of New Mexico , 599 F.3d 1114, 1117 (10th Cir. 2010) (the Board of
Regents, a state entity, is not a person subject to a § 1983 claim for compensatory damages).
Plaintiff, however, argues that he can su e KUNM and the Board of Regents under § 1983 for
injunctive relief because those Defendants have a policy “that created th e hearing wherein the
official decision of Towne in his official capac ity, and therefore KUNM and the Regents, was to
take and deprive Mr. Sullivan of his personal proper ty.” Response at 2. Pl aintiff also appears to
argue that that the Board of Rege nts, as individual state officers, can be sued in their official
capacities for injunctive relief. Id. at 1-2.
As a preliminary matter, Plaintiff's conten tion that he can bring § 1983 claims against
state entities like KUNM and the Board of Rege nts raises the issue of whether Eleventh
Amendment sovereign immunity bars this lawsu it against KUNM and the Board of Regents.
Eleventh Amendment sovereign immunity applies to state agencies which function as arms of
the state. See, e.g., Hunt v. Colorado Dept. of Corrections , 271 Fed. Appx. 778, 780 (10th Cir.
2008) (unpublished decision). With two narrow exceptions, the Eleventh Amendment bars a
2Since Plaintiff is suing KUNM under § 1983 as a “government entity” and § 1983
requires state action, viewing the Amended Co mplaint in the light most favorable to
Plaintiff, the Court will assume for th e purpose of this MEMORANDUM OPINION
AND ORDER that Plaintiff is suing KUNM as a state entity acting und er color of state
law. Case 1:13-cv-00016-JAP-RHS Document 18 Filed 04/25/13 Page 6 of 18
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lawsuit in federal court by a citizen against a state agency. ANR Pipeline Co. v. Lafaver , 150
F.3d 1178, 1187 (10th Cir. 1998), cert. denied , 525 U.S. 1122 (1999), overruled on other
grounds by Hill v. Kemp , 478 F.3d 1236, 1259 (10th Cir. 2007) (citing Pennhurst State School &
Hosp. v. Halderman , 465 U.S. 89, 100 (1984)). The two narrow exceptions to Eleventh
Amendment sovereign immunity are: “1) A state may waive its Eleventh Amendment immunity
by consenting to be sued, but only in the cleare st and most unmistakable terms, and 2) Congress
may abrogate the states’ Eleventh Amendment i mmunity, but again, only by using the clearest
and most unmistakable terms, and only when Congress is exercising a power granted to it by a
constitutional amendment post-dating the Eleventh Amendment, i.e., principally section 5 of the
Fourteenth Amendment.” Id. at 1187-88 (citing Aaron v. State of Kan. , 115 F.3d 813, 814 (10th
Cir. 1997)). Moreover, the Eleventh Amendment can bar lawsuits against a state agency no
matter what relief the citizen seeks. Id. at 1187 (citing Cory v. White , 457 U.S. 85, 90 (1982)).
Here, Plaintiff is suing KUNM as a state “gove rnment entity” and, therefore, as an arm of
the state. It is already well-e stablished that the Board of Rege nts is an arm of the state. See
Buchwald v. University of New Mexico School of Medicine , 159 F.3d 487, 494 n.3 (10th Cir.
(1998) (“[W]e have no doubt that UNMSM, its Regents, and the Committee on Admissions are
‘arms of the state, entitled to Eleventh Amendm ent immunity.”). Plaintiff, however, has failed to
allege in the Amended Complaint that either KUNM or the Board of Regents has waived Eleventh Amendment immunity. Additionally, “C ongress did not abrogate Eleventh Amendment
immunity through Section 1983….” Hunt , 271 Fed. Appx. at 781 The fact that Plaintiff seeks
injunctive or prospective relief does not aff ect the application of Eleventh Amendment
immunity. Under these circumstances, Eleventh Amendment immunity seemingly bars this
lawsuit against KUNM and the Board of Regents. Fu rthermore, an agency that is an arm of the Case 1:13-cv-00016-JAP-RHS Document 18 Filed 04/25/13 Page 7 of 18
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state for the purpose of applyi ng the Eleventh Amendment is not a “person” under § 1983.
McLaughlin v. Board of Trustees of State Colleges of Colorado , 215 F.3d 1168, 1172 (10th Cir.
2000). In addition, Plaintiff’s argume nt that he has stated a § 1983 claim by virtue of asserting
that a policy led to the alleged § 1983 violations is unavailing. The policy argument Plaintiff is
referring to applies to § 1983 lawsuits against municipalities, which are not immune under the
Eleventh Amendment. Rounds v. Clements , 495 Fed. Appx. 938, 941 (10th Cir. 2012)
(unpublished decision). Plainti ff does not allege that KUNM and the Board of Regents are
municipal entities nor is it plausible to conc lude from the facts alleged in the Amended
Complaint that KUNM and the Board of Regents ar e municipal entities. Moreover, Plaintiff has
not alleged in the Amended Complaint a specifi c policy by KUNM and the Board of Regents to
unlawfully take property. Plaintiff engages in mere speculation when he insists that a policy
which resulted in a hearing, whether Plaintiff agr ees with the hearing’s outcome or not, is the
equivalent of a policy to unlawfully take property.
Next, Plaintiff’s apparent argument that he is suing the individual regents in their official
capacities for injunctive or prospective relief simply fails. Plaintiff does not allege anywhere in
the Amended Complaint that he is suing the regents individually in their official capacities.
Plaintiff only names the Board of Regents in th e caption of the Amended Complaint and does not
specifically refer to individual re gents anywhere in the Amended Complaint. Because Plaintiff
did not sue the individual regents and, instead, sued only the Board of Regents, which is not a
“person” under § 1983, Plaintiff has failed to stat e a plausible § 1983 claim against the Board of
Regents. See McLaughlin , 215 F.3d at 1172 (“Having sued only the Board rather than the
individual trustees, Mr. McLauglin has failed to state a claim ag ainst a person covered by section Case 1:13-cv-00016-JAP-RHS Document 18 Filed 04/25/13 Page 8 of 18
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1983.”). In sum, Plaintiff has failed to plau sibly state § 1983 claims against KUNM and the
Board of Regents. Hence, those claims will be dismissed without prejudice under Rule
12(b)(6).3
2. Whether Plaintiff has Plausibly Shown that Towne and Finch are not Entitled to
Qualified Immunity on the § 1983 Claims
a. The Fifth Amendment Takings Claim
Towne and Finch argue that Plaintiff has not alleged a Fifth Amendment takings claim
because they did not “take” the record albums from Plaintiff and there is no allegation that they
caused UNM police to seize the record albums. Moreover, Towne and Finch contend that even
assuming there was a violation of the takings cl ause, they could not have reasonably known that
their actions violated the takings clause of the Fifth Amendment. Plaintiff argues that the taking
occurred after the state court dismissed the crim inal charges against him, and Towne and Finch
subsequently received the record albums from th e UNM police. Plaintiff further appears to claim
that he can sue Towne and Finch in their indi vidual capacities for damages as well as for
injunctive relief. See Response at 2. In fact, qualified immunity only applies to individual
capacity claims for damages. See Trask v. Franco , 446 F.3d 1036, 1043 (10th Cir. 2006).
Consequently, Plaintiff’s indivi dual capacity claims against Towne and Finch which seek
injunctive relief, i.e., the return of his record albums, are not subject to qualified immunity.
However, those individual capacity claims for in junctive relief must still pass muster under Rule
12(b)(6) to avoid dismissal.
3 “Generally, dismissals of claims for failu re to state a claim upon which relief may be
granted are without prejudice, ” because the defect addressed by Rule 12(b)(6) may be
curable. Buchanan v. Oklahoma , 2010 WL 1449603 *4 n.7 (W.D. Okla.) (unpublished
decision). See also Douglas v. Hilligoss , 2010 WL 1329075 *2 (W.D. Okla.)
(unpublished decision) (citing Curley v. Perry , 246 F.3d 1278, 1282 (10th Cir. 2001)).
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As noted, Plaintiff has also sued Towne and Finch in their official capacities. For the
same reasons that KUNM and the Board of Re gents are apparently entitled to Eleventh
Amendment immunity from suit, Towne and Fi nch are entitled to Eleventh Amendment
immunity for Plaintiff’s damages claims agai nst them in their official capacities. See Buchheit v.
Green , 705 F.3d 1157, 1159 (10th Cir. 2012). The Elev enth Amendment does not, however, bar
Plaintiff’s lawsuit against Towne and Finch, in thei r official capacities, fo r prospective injunctive
relief. Id. Like the individual capacity claims for in junctive relief, the official capacity claims
for prospective injunctive relief must still be scrutinized under Rule 12( b)(6) to see if they
survive dismissal.
When the Court addresses the qualified immunity issue, it will analyze whether Plaintiff
has alleged sufficient facts to plausibly state cons titutional claims. That an alysis applies equally
to the § 1983 claims against Towne and Finch for prospective injunctive re lief. Accordingly, if
the Court determines that Plaintiff has failed to state a plausible constitu tional claim, the Court
can dismiss that claim as asserted against To wne and Finch for both compensatory damages and
prospective injunctive relief.
(1) Has Plaintiff Plausibly Alleged a Violation of the Fifth Amendment
Takings Clause?
Plaintiff asserts that the ta king by Towne and Finch occurred after the dismissal of the
criminal charges. Plaintiff does not cite any legal authority that substantiates his assertion that a
taking can occur when a state ent ity receives property from a third-party who is not the owner of
the property. Towne and Finch more convincin gly argue that the taki ng took place when UNM
police seized the record albums fr om Plaintiff, not when Towne and Finch received the record
albums from the UNM police. In other words, Pl aintiff has not plausibly alleged facts, nor has Case 1:13-cv-00016-JAP-RHS Document 18 Filed 04/25/13 Page 10 of 18
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he provided legal authority, show ing that Towne and Finch actu ally “took” the record albums
from Plaintiff. Furthermore, in order to allege a takings cl aim, Plaintiff must a llege facts which show
that Towne and Finch were authorized to take the record albums os tensibly belonging to
Plaintiff. See Hill v. Vanderbilt Capital Advisors, LLC , 834 F.Supp.2d 1228, 1264 (D.N.M.
2011). An allegation of simple “theft or misappr opriation” does not constitute a takings claim;
“a Takings claim arises only when the property is legally taken.” Id. (quoting Sanders v. United
States , 132 Fed. Appx. 378, 380 (Fed. Cir. 2005) (unpub lished decision)) (i nternal quotation
marks omitted). Accepting Plaintiff’s allegation that the seizure of the record albums by UNM
police was unlawful and that Towne and Finch appa rently knew that the record albums lawfully
belonged to Plaintiff, one could assume that the subsequent po ssession of the record albums by
the Towne and Finch is unlawful as well. The Cour t observes that Plainti ff does not allege that
Towne or Finch had the authority to la wfully condemn the record albums.
In addition, one could argue that the Towne and Finch’s possession of the record albums
is unlawful because it is based on error committed by the state court. In theory, the state court
should have ordered the return of the seized property to Plaintiff, again accepting Plaintiff’s
allegation that the property lawfu lly belonged to him, after the state court dismissed the criminal
charges. See United States v. Wright , 610 F.2d 930, 934-35 (D.C. Cir. 1979) (criminal trial court
should promptly return seized property to owne r once the property is no longer needed in the
criminal proceeding). The state court’s failure to return the record albums to Plaintiff could
arguably have led to the UNM police’s unlawful re tention of the record albums and to the UNM
police’s unlawful transfer of the record albums to Towne and Finch. Because Plaintiff has not
alleged sufficient facts to show that Towne and Fi nch were authorized to take the record albums, Case 1:13-cv-00016-JAP-RHS Document 18 Filed 04/25/13 Page 11 of 18
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Plaintiff has not plausibly stated a takings cl aim under the Fifth Amendment. Although this
conclusion is enough to dismiss the Fifth Am endment claim against Towne and Finch for
compensatory damages and prospective injunctive relief, the Court will, for the sake of completeness, address the second part of the qualified immunity analysis.
(2) Has Plaintiff Plausibly Allege d that His Rights Under the Fifth
Amendment Takings Clause were Clearly Established?
Plaintiff has also not alleged sufficient facts to plausibly demonstrate that officials in the
positions of Towne and Finch would have reas onably understood that they were violating
Plaintiff’s rights under the Fifth Amendment taki ngs clause when they received the record
albums from the UNM police. Interestingly, Pl aintiff does not allege that Towne and Finch
caused or participated in the UNM police’s seiz ure of the record albums from Plaintiff.
Furthermore, Plaintiff does not allege that To wne and Finch actually “took” the record albums
from Plaintiff. Even if Towne and Finch, offici als in the positions of a university public radio
station general manager and a music director, knew that the record albums belonged to Plaintiff,
Plaintiff does not allege enough facts to plausibly show that they would have reasonably
understood that receiving the record albums from the UNM police, a legitimate law enforcement
entity, violated the takings clau se of the Fifth Amendment. See, e.g., Pueblo Neighborhood
Health Centers, Inc. v. Losavio , 847 F.2d 642, 647 (10th Cir. 1988) (i t was reasonable to believe
that search and “seizure was lawful because [def endants] were told by law enforcement officials
that a valid search warrant w ould be obtained. If the search was unlawful under the fourth and
fifth amendments, it was not such that it would be apparent to reasonable officials in the position
of the defendants in this case.”). In other words, reasonable officials in the positions of Towne
and Finch would not necessarily have understood that receiving property from a law enforcement
entity, instead of from the owner of the prope rty, might constitute a taking under the Fifth Case 1:13-cv-00016-JAP-RHS Document 18 Filed 04/25/13 Page 12 of 18
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Amendment. Furthermore, even if Towne and Finch knew that the property did not belong to
KUNM, they could have reasonably viewed KUNM’s subsequent possession of the property as a
misappropriation not subject to th e protections of the takings cl ause. Moreover, Plaintiff does
not allege any specific facts, other than genera l conclusory statements, to support his contention
that he is actually the rightful owner of the record albums. Pl aintiff simply has not plausibly
alleged that Towne and Finch viol ated clearly established rights under the takings clause of the
Fifth Amendment.
In conclusion, Plaintiff has fa iled to allege sufficient facts to plausibly state a takings
claim under the Fifth Amendment and has failed to al lege sufficient facts to avoid a dismissal of
the takings claim under the doctrine of qualified immunity. The Fifth Amendment takings claim
against Towne and Finch for both compensatory damages and injunctive relief will, therefore, be dismissed without prejudice.
b. The Fourteenth Amendment Procedural Due Process Clause
Towne and Finch argue that they are entitle d to qualified immunity on the Fourteenth
Amendment procedural due process claim because Plaintiff has failed to show that he had a
clearly defined right to due process in the return of the record albums. Towne also contends that
he could not have reasonably known that he pers onally violated any of Plaintiff’s due process
rights at the March 12, 2012 meeting, especially si nce both parties were represented by counsel.
Plaintiff complains that Towne and KUNM did not provide Plaintiff with a proper post-
deprivation hearing including an impartial he aring officer, as required by due process
considerations. Case 1:13-cv-00016-JAP-RHS Document 18 Filed 04/25/13 Page 13 of 18
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(1) Has Plaintiff Plausi bly Alleged a Violation of the Procedural Due
Process Clause of the Fourteenth Amendment?
Plaintiff was arguably not entitled to a post-deprivation hearing by Towne and Finch
because they did not actually take the record albu ms from Plaintiff. Notwithstanding that Towne
and Finch did not actually take the record album s from Plaintiff, procedural due process was
available to Plaintiff in the st ate criminal proceedings. Once a criminal proceeding has been
terminated, the rightful owner of property seized during the course of th at criminal proceeding
can file a motion in that court for the return of the property. Wright , 610 F.2d at 934-35; 68 Am.
Jur. 2d Searches and Seizures § 312 (2d ed., updated Feb. 2103). “The court in which a criminal
charge was filed has exclusive jurisdiction to determine the ri ghts to seized property and the
property’s disposition.” 68 Am. Jur. 2d Searches and Seizures § 312. Plaintiff apparently did not
take advantage of this process nor does Plainti ff allege that the state court process would have
been procedurally inadequate unde r the due process clause. The Tenth Circuit Court of Appeals
and other jurisdictions have held that when a plaintiff chooses not to take advantage of available
and adequate process, that plaint iff cannot later complain that the defendant violated his right to
procedural due process. See Kirkland v. St. Vrain Valley School Dist. No. Re-1J , 464 F.3d 1182,
1195 (10th Cir. 2006); Tri County Paving, Inc. v. Ashe County , 281 F.3d 430, 438 (4th Cir.
2002). Since Plaintiff apparently fa iled to take advantage of the state court criminal proceedings
to obtain the record albums from the UNM police, and since Plaintiff did not allege that the state
criminal process for returning seized items to lawful owners is constitutionally deficient, Plaintiff has failed to allege a plausibl e violation of his right to pr ocedural due process under the
Fourteenth Amendment. Again, this conclusi on is sufficient to dismiss the Fourteenth
Amendment claim against Towne and Finch for both compensatory and injunctive relief. Case 1:13-cv-00016-JAP-RHS Document 18 Filed 04/25/13 Page 14 of 18
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However, as before, the Court w ill address the second part of the qualified immunity analysis for
the sake of completeness.
(2) Has Plaintiff Plausi bly Alleged that His Right to Procedural Due
Process Under the Fourteenth Amen dment was Clearly Established?
Officials like Towne and Finch, in the posit ions of a university public radio station
general manager and a music dire ctor who believed that the reco rd albums previously belonged
to Plaintiff, could have, nonetheless, reas onably believed that the UNM police lawfully
possessed the record albums and that the UNM police, therefore, had the lawf ul authority to give
the record albums to them without violating Plai ntiff’s procedural due process rights. Because
Plaintiff could have asked for the record albums in state court but did not do so, persons in the
positions of Towne and Finch could reasonably conc lude that either Plaintiff did not lawfully
own the record albums or that Plaintiff abandoned his ownership rights to the record albums.
Under those circumstances, officials like Town e and Finch would not have understood that it
was necessary to hold a post-depriv ation hearing with due process protections. Plaintiff has not,
otherwise, alleged sufficient fact s to plausibly show that Town e and Finch violated a clearly
established right to proc edural due process.
In conclusion, Plaintiff has not stated a pl ausible Fourteenth Amendment procedural due
process claim against Towne and Finch. Also, Plai ntiff has failed to allege sufficient facts to
plausibly show that Towne and Fi nch are not entitled to qualifi ed immunity on the procedural
due process claim. Hence, the Fourteenth Am endment procedural due process claims against
Towne and Finch, in their individual and official capacities, for both compensatory damages and
injunctive relief will be di smissed without prejudice.
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3. The Remaining New Mexico Constitutional Claims
The Court notes that Defendants have not argued for the dismissal of the state
constitutional claims. Since the Court has decided to dismi ss the federal § 1983 claims, the
Court must decide if it should c ontinue to exercise supplementa l jurisdiction over the remaining
state constitutional claims.4 According to 28 U.S.C. § 1367(c)(3), a district court may decline to
exercise supplemental jurisdiction once it has di smissed the claims over which it had original
jurisdiction. See Lancaster v. Independent School Dist. No. 5 , 149 F.3d 1228, 1236 (10th Cir.
1998). The decision to continue to exercise s upplemental jurisdiction is within the Court’s
discretion. See Carnegie-Mellon University v. Cohill , 484 U.S. 343, 351 (1988); Archuleta v.
Lacuesta , 131 F.3d 1359, 1368 n. 4 (10th Cir. 1997). The United States Supreme Court has
recognized that when “federal-law claims ar e eliminated before trial, the balance of
factors to be considered under the pendent [o r supplemental] jurisdic tion doctrine-judicial
economy, convenience, fairness, and comity-will point toward declining to exercise jurisdiction
over the remaining state-law claims.” See Carnegie-Mellon University , 484 U.S. at 350 n.7. The
United States Supreme Court has further conclude d, in the context of a removed case, that “a
district court has discretion to remand to stat e court a removed case involving pendent [or
supplemental] claims upon a proper determination that retaining jurisdic tion over the case would
be inappropriate.” Id. at 357. Because Plaintiff’s federal § 1983 claims are subject to dismissal
and the state court is in a better position to decide the state constitutional issues, the Court
declines to exercise supplemental jurisdiction over the state law claims and those claims will, therefore, be remanded to the state court.
4The Court can sua sponte decide whether to exercise s upplemental jurisdiction over a
remaining state claim. See, e.g., Porter v. Williams , 436 F.3d 917, 920 (8th Cir. 2006). Case 1:13-cv-00016-JAP-RHS Document 18 Filed 04/25/13 Page 16 of 18
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4. Defendants’ Request for an Award of Attorney’s Fees and Costs
In the event the Court grants the Motion to Dismiss, Defendants ask that the Court award
them attorney’s fees and costs. Three factors, however, warrant against an award of attorney’s
fees and costs. First, Plaintiff agreed to di smiss the state tort clai ms; second, there are still
outstanding state constitutional claims; and thir d, the dismissal of the § 1983 claims without
prejudice allows the Plaintiff an opportunity to reassert those claims , if possible, consistent with
the appropriate rule of civil procedure governing th e signing of pleadings, see Fed. R. Civ. P. 11
and Rule 1-011 NMRA 1998. Defendants’ request for an award of attorney’s fees and costs will,
therefore, be denied.
D. Conclusion
Plaintiff has agreed to dismiss his state to rt claims and the Court will dismiss those
claims with prejudice. The Court will dism iss without prejudice Plai ntiff’s § 1983 claims under
Rule 12(b)(6) for failure to state plausibl e Fifth and Fourteenth Amendment claims.
Additionally, the Court d eclines to exercise supplemental ju risdiction over the remaining state
constitutional claims. Consequently, those state claims will be remanded to state court. Finally,
the Court will deny Defendants’ request for an award of attorney’s fees and costs.
IT IS ORDERED that DEFENDANTS’ MOTI ON TO DISMISS (Doc. No. 5) is granted
in that:
1. the First, Second, Third, and Fourth Ca uses of Action will be dismissed with
prejudice;
2. the § 1983 claims in the Fifth and Sixth Causes of Action will be dismissed without
prejudice; Case 1:13-cv-00016-JAP-RHS Document 18 Filed 04/25/13 Page 17 of 18
3
remande d
4
. the state c
o
d to state co u
. Defendan t
onstitutiona l
urt; and
ts’ request f o
l claims in t h
or an award
_____ _
SENI O
18
he Fifth and
of attorney’ s
__________ _
OR UNITED
Sixth Caus e
s fees and c o
_________ _
STATES D
es of Action
osts is denie d
__________ _
DISTRICT C
will be
d.
_________ _
COURT JU D___
DGE Case 1:13-cv-00016-JAP-RHS Document 18 Filed 04/25/13 Page 18 of 18