MARIANO MOYA; LONNIE PETRY, on behalf of themselves and all others similarly situated, Plaintiffs - Appellants,
ROBERT GARCIA, Santa Fe County Sheriff; MARK CALDWELL, Warden of Santa Fe County Adult Correctional Facility; MARK GALLEGOS, former Warden Santa Fe County Adult Correctional Facility, in their individual capacities; BOARD OF COMMISSIONERS OF SANTA FE COUNTY, Defendants - Appellees.
from the United States District Court for the District of New
Mexico (D.C. No. 1:16-CV-01022-WJ-KBM) (D. N.M.)
Nathaniel Chakeres (Todd A. Coberly with him on the briefs),
of Coberly & Martinez, LLLP, Santa Fe, New Mexico, for
Brandon Huss of The New Mexico Association of Counties, Santa
Fe, New Mexico, for Defendants-Appellees.
TYMKOVICH, Chief Judge, BRISCOE, LUCERO, HARTZ, HOLMES,
MATHESON, BACHARACH, PHILLIPS, McHUGH, MORITZ, EID, and
CARSON, Circuit Judges.
matter is before the court on the appellants'
Petition for Rehearing En Banc. We also have a
response from the appellees.
consideration, a majority of the original panel members grant
panel rehearing in part and only to the extent of the limited
changes made to the attached revised opinion. Panel rehearing
is otherwise denied. The Clerk is directed to file the
amended decision, with the original separate writing from
Judge McHugh, effective the date of this order.
addition, however, the petition and the response were
circulated to all of the judges of the court who are in
regular active service. A poll was called, and a majority
voted to deny the en banc petition. See Fed. R. App.
P. 35(a). Consequently, the request for en banc consideration
Judge Tymkovich, as well as Judges Lucero, McHugh and Moritz
voted to grant rehearing en banc.
BACHARACH, CIRCUIT JUDGE.
appeal involves claims of overdetention by Mr. Mariano Moya
and Mr. Lonnie Petry. Both men were arrested based on
outstanding warrants and detained in a county jail for 30
days or more prior to their arraignments. These arraignment
delays violated New Mexico law, which requires arraignment of
a defendant within 15 days of arrest. N.M. Stat. Ann. §
31-1-3; Rule 5-303(A) NMRA.
arraignment delays led Mr. Moya and Mr. Petry to sue under 42
U.S.C. § 1983 for deprivation of due process, alleging
. Sheriff Robert Garcia, Warden Mark
Caldwell, and former Warden Mark Gallegos in their individual
capacities under theories of personal participation and
supervisory liability and
. the Board of Commissioners of Santa Fe
County under a theory of municipal liability.
district court granted the defendants' motion to dismiss
for failure to state a valid claim. We affirm because Mr.
Moya and Mr. Petry failed to plausibly allege a factual basis
Standard of Review
engage in de novo review of the dismissal under Federal Rule
of Civil Procedure 12(b)(6). Albers v. Bd. of Cty.
Comm'rs, 771 F.3d 697, 700 (10th Cir. 2014). In
engaging in this review, we credit the well-pleaded
allegations in the complaint and construe them favorably to
the plaintiffs. Thomas v. Kaven, 765 F.3d 1183, 1190
(10th Cir. 2014). To withstand dismissal, the plaintiffs'
allegations must "state a claim to relief that is
plausible on its face." Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). The claim is
plausible only if it contains sufficient factual allegations
to allow the court to reasonably infer liability.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
individual defendants served as the sheriff and wardens of
the jail where Mr. Moya and Mr. Petry were detained. These
defendants could potentially incur liability under §
1983 if they had acted under color of state law. 42 U.S.C.
§ 1983. But individual officials enjoy qualified
immunity when their conduct does not violate
"'clearly established statutory or constitutional
rights of which a reasonable person would have
known.'" Cordova v. City of Albuquerque,
816 F.3d 645, 655 (10th Cir. 2016) (quoting Pearson v.
Callahan, 555 U.S. 223, 231 (2009)).
avoid qualified immunity at the motion-to-dismiss stage, a
plaintiff must show that
. "'the defendant's [alleged
conduct] violated a constitutional or statutory
. "the right was 'clearly
established at the time of the [violation].'"
Thomas v. Kaven, 765 F.3d 1183, 1194 (10th Cir.
2014) (quoting Archuleta v. Wagner, 523
F.3d 1278, 1283 (10th Cir. 2008)). There are two questions at
the first step:
1. whether the plaintiff has adequately alleged the violation
of a constitutional or statutory right and
2. whether the defendant's alleged conduct deprived the
plaintiff of that right.
See Dodds v. Richardson, 614 F.3d 1185, 1192-94
(10th Cir. 2010) (engaging in this two-part analysis of the
first step of qualified immunity).
first question is whether Mr. Moya and Mr. Petry have
adequately alleged a deprivation of due process. We need not
decide this question because of our answer to the second
question: in our view, the complaint does not plausibly
allege facts attributing the potential constitutional
violation to the sheriff or wardens.
prevail, Mr. Moya and Mr. Petry must have alleged facts
showing that the sheriff and wardens had been personally
involved in the underlying violations through their own
participation or supervisory control. Dodds v.
Richardson, 614 F.3d 1185, 1195 (10th Cir. 2010);
see also Brown v. Montoya, 662 F.3d 1152,
1163 (10th Cir. 2011) ("A § 1983 defendant sued in
an individual capacity may be subject to personal liability
and/or supervisory liability."). The district court
rejected both theories of liability. Here, though, Mr. Moya
and Mr. Petry rely only on their theory of supervisory
liability. For this theory, Mr. Moya and Mr. Petry blame the
sheriff and wardens for the delays in the arraignments. In
our view, however, the sheriff and wardens did not cause the
plaintiff may succeed on a § 1983 supervisory-liability
claim by showing that the defendant
. "promulgated, created, implemented or
possessed responsibility for the continued operation of a
policy that . . . caused the complained of constitutional
. "acted with the state of mind
required to establish the alleged constitutional
Dodds, 614 F.3d at 1199. But the arraignments could
not be scheduled by anyone working for the sheriff or
wardens; scheduling of the arraignments lay solely with the
state trial court.
Moya and Mr. Petry disagree, relying on Wilson v.
Montano, 715 F.3d 847 (10th Cir. 2013). There two
sheriff's deputies arrested Mr. Wilson without a warrant.
Wilson, 715 F.3d at 850. He was taken to jail and
detained for eleven days without the filing of a complaint or
an opportunity for a probable-cause determination.
Id. Mr. Wilson sued the sheriff and the warden,
alleging that they (1) had routinely allowed deputies to make
arrests without warrants and (2) had failed to file criminal
complaints or bring the arrestees to court. Id. at
851. The Wilson court upheld supervisory liability,
reasoning that under New Mexico law the sheriff and the
warden were responsible for running the jail and ensuring
prompt probable-cause determinations. Id. at 856-58.
differs from our case on who controlled the situation causing
the overdetention. In Wilson, the sheriff and the
warden were in control because (1) deputy sheriffs had
arrested Mr. Wilson and (2) the warden's staff had
detained Mr. Wilson without a warrant. These facts proved
decisive because (1) New Mexico law requires the sheriff to
"diligently file a complaint or information," N.M.
Stat. Ann. §§ 4-37-4, 29-1-1, and (2) the
sheriff's staff had never filed a complaint against Mr.
Wilson. Wilson, 715 F.3d at 851, 853. Without a
complaint, the court could not make a probable-cause
determination. By preventing a probable-cause determination,
the sheriff impeded the criminal-justice process; and the
warden exacerbated the delay by detaining Mr. Wilson for
eleven days without a court order. Id. at 857-59.
contrast, the court was firmly in control here. Grand juries
indicted Mr. Moya and Mr. Petry, and both individuals were
arrested based on outstanding warrants issued by the court.
And after these arrests, jail officials notified the court
that Mr. Moya and Mr. Petry were in custody.
arrests triggered New Mexico's Rules of Criminal
Procedure, which entitled Mr. Moya and Mr. Petry to
arraignments within fifteen days. Rule 5-303(A) NMRA.
Compliance with this requirement lay solely with the court,
for an arraignment is a court proceeding that takes place
only when scheduled by the court. See People v.
Carter, 699 N.E.2d 35, 38 (N.Y. 1998)
("Responsibility for scheduling an arraignment date and
securing a defendant's appearance lies with the court,
not the People.").
court failed to comply with this requirement, resulting in
overdetention of Mr. Moya and Mr. Petry. These overdetentions
were caused by the court's failure to schedule and
conduct timely arraignments rather than a lapse by the
sheriff or wardens. See Webb v. Thompson, 643
Fed.Appx. 718, 726 (10th Cir. 2016) (unpublished) (Gorsuch,
J., concurring in part and dissenting in part) ("[T]he
only relevant law anyone has cited to us comes from state
law, and it indicates that the duty to ensure a
constitutionally timely arraignment in Utah falls on the
arresting officer- not on correctional
Moya and Mr. Petry argue that the sheriff and wardens could
have mitigated the risk of overdetention by keeping track of
whether detainees had been timely arraigned, requesting
arraignments for those who had been overdetained, or bringing
detainees to court prior to a scheduled arraignment. But even
if the sheriff and wardens had taken these actions, the
allegations in the complaint give us no reason to think that
the state trial court would have conducted the arraignments
and ordered release any earlier than it did. Thus, the
sheriff and wardens did not cause the overdetention.
most, the sheriff and wardens failed to remind the court that
it was taking too long to arraign Mr. Moya and Mr. Petry. But
even with such a reminder, the arraignments could only be
scheduled by the court itself. See Estate of Brooks ex
rel. Brooks v. United States, 197 F.3d 1245, 1248 (9th
Cir. 1999) (holding that the county did not cause the
overdetention, reasoning that the county could only ask for
federal help and that the county lacked the "ability
itself to bring the prisoner before the appropriate judicial
plaintiffs rely in part on Armstrong v. Squadrito,
152 F.3d 564 (7th Cir. 1998), and Oviatt ex rel. Waugh v.
Pearce, 954 F.2d 1470 (9th Cir. 1992). In those cases, a
clerical error prevented the court from discovering the
arrests and the need to schedule arraignments. But here, Mr.
Moya and Mr. Petry do not allege a failure to tell the court
of their arrests in sufficient time to conduct the
arraignments within fifteen days.
Moya and Mr. Petry also rely on Jauch v. Choctaw
County, 874 F.3d 425 (5th Cir. 2017), and Hayes v.
Faulkner County, 388 F.3d 669 (8th Cir. 2004). But the
conclusions in Jauch and Hayes are not
precedential, pertinent, or persuasive.
Jauch, the sheriff's office adopted a procedure
of holding defendants in jail without any court proceeding
until the reconvening of the circuit court that had issued
the capias warrants. Jauch, 874 F.3d at 430, 435.
This procedure resulted in detention for 96 days, with jail
officials rejecting the defendant's requests to be
brought before a judge. Id. at 428. The Fifth
Circuit Court of Appeals held that the sheriff could incur
liability for the institution of this unconstitutional
policy. Id. at 436-37.
view, Jauch bears limited applicability.
Jauch rested on Mississippi law and the jailers'
authority to release detainees when they had been detained
too long without an opportunity for bail. Id. In
interpreting Mississippi law, the court pointed to
Sheffield v. Reece, 28 So.2d 745, 748 (Miss. 1947),
which had required sheriffs to prevent detention
"'for an unreasonable length of time.'"
Jauch, 874 F.3d at 437 (quoting Sheffield,
28 So.2d at 748). As Jauch pointed out,