from the United States District Court for the District of New
Mexico (D.C. No. 1:17-CV-00966-WJ-LF)
Blair Dunn, Esq., Western Agriculture, Resource and Business
Advocates, LLP, Albuquerque, New Mexico, for
A. Walz (James J. Grubel with him on the brief), Walz and
Associates, P.C., Albuquerque, New Mexico, for
BACHARACH, BALDOCK, and EBEL, Circuit Judges.
Benavidez and Stella Padilla contend that Defendants violated
their First Amendment rights by filing a motion in a civil
case. The district court dismissed their complaint. For the
following reasons, we affirm.
Stella Padilla's nominating petition for Albuquerque
mayor lacked the required number of valid signatures, the
Albuquerque City Clerk, Natalie Howard, rejected her request
to appear on the ballot as a candidate in the city's 2017
mayoral election. Padilla promptly sued Howard in her
official capacity in state court for a declaration that she
had satisfied the nominating petition requirements to be a
candidate for mayor. Padilla v. Howard, No.
D-202-CV-2017-03556 (Bernalillo Co., NM, filed May 19, 2017).
than a month later, Howard, represented by the city
attorney's office in the state action, filed a
"Motion for a Protective Order Against Harassment of the
Defendant by any Volunteer or Other Person Associated with
Plaintiff's Campaign Organization." Attached to
Howard's motion was her "Affidavit in Support of
Motion for Protective Order." In her affidavit, Howard
complained specifically about harassing conduct that
Padilla's daughter, Vanessa Benavidez, had exhibited
toward her on two recent occasions.
later, Howard filed a motion to dismiss Padilla's
complaint for failure to state a claim. Without comment and
with Howard's motion for a protective order still
pending, the state district court dismissed Padilla's
complaint with prejudice on July 7, 2017. Rather than
pursuing a direct appeal of the state court's ruling,
Padilla unsuccessfully sought a Writ of Superintending
Control from the New Mexico Supreme Court. See N.M.
Const. art. VI, § 3 ("[T]he supreme court . . .
shall have a superintending control over all inferior
and Benavidez then filed this collateral § 1983 action
for damages in federal district court on September 21, 2017.
Plaintiffs' complaint asserts that Howard's motion
for a protective order in the state action chilled their free
speech rights and effectively sought, through a
"vindictive prosecution," to prevent them from
exercising their rights to petition the state court for
redress. Plaintiffs sued not only Howard in her official
capacity, but also the city attorney, Jessica Hernandez, and
the two assistant city attorneys assigned to represent Howard
in the state action, William Zarr and Nicholas Bullock.
four corners of the complaint are woefully short on the facts
giving rise to Plaintiffs' claims. The complaint alleges
little more than that Defendants, "acting in
concert," filed a motion for a protective order
inconsistent with New Mexico law "without justification
and cause, solely to harass Plaintiffs and prevent the
continued criticism of the City of Albuquerque employees and
to deny Plaintiffs the right to petition their government for
to Plaintiffs' complaint, however, is a copy of
Howard's motion for a protective order and her sworn
affidavit in support thereof. Howard's unrebutted affidavit
states that on May 19, 2017, Benavidez served her with
Padilla's state court complaint in the public area of the
city clerk's office on the seventh floor of
Albuquerque's Plaza del Sol building. But then Benavidez
erroneously insisted that Howard sign the affidavit of
service. Howard refused and walked toward the door leading
into the private secured area of her office. Benavidez yelled
at Howard and told her she could not leave until she signed
the affidavit. Howard attests: "I continued to the
secured area, and, as the door was closing, [Benavidez]
pushed the door open and entered into the non-public area of
the clerk's office. [Benavidez] followed me into the
secured area, stood approximately 12 inches away from me and
continued to insist that I sign the affidavit."
Benavidez left the secured area only after Howard directed
staff to contact security. Moments later, Howard departed her
seventh-floor office with a staff member and security officer
to attend a meeting outside the building. When the elevator
reached the seventh floor and its door opened, Benavidez was
standing alone in the elevator. Benavidez remained in the
elevator for the ride down, all the while staring at Howard.
further attests that on June 5, 2017, she was preparing to
attend a hearing in Padilla's state action when Benavidez
again confronted her, this time on the steps of the
Bernalillo County Courthouse. Benavidez approached Howard at
the top of the steps carrying a "Stella for Mayor"
sign. Benavidez "positioned herself approximately six
inches away from me while yelling at me about the case. She
proceeded to walk backward directly in front of me, with the
'Stella for Mayor' sign in front of my face, blocking
my path. I felt [Benavidez] was attempting to intimidate
me." When Howard told Benavidez to stop harassing her,
Benavidez replied: "'You don't know what
harassment is.'" Howard concluded her affidavit by
stating that Benavidez's "pattern of conduct"
had caused Howard to become "reasonably concerned"
for her physical safety.
District Court's Ruling
motion and after a hearing during which the district court
expressed legitimate reservations about numerous aspects of
Plaintiffs' federal complaint, the court entered a
written order dismissing the case. Benavidez v.
Howard, No. 17-966, 2018 WL 565706 (D.N.M. Jan. 24,
2018) (unpublished). The court held that all Defendants were
absolutely immune from Plaintiffs' § 1983
action. The court ruled that the named Defendants
from the city attorney's office were immune because in
submitting the motion for a protective order to the state
court they were participating as advocates in the judicial
process: "They did so as part of their duty in defending
City Clerk Natalie Howard against a state court lawsuit which
Plaintiff Stella Padilla initiated, and their objective in
taking that action was one of advocacy, which earmarks it for
the protections of absolute immunity." Id. at
*5. The court reasoned that the filing of the motion for a
protective order "belongs in the category of actions
that are associated with the judicial process rather than
those that are investigative or administrative in
the district court held that Defendant Howard, the city
clerk, was entitled to absolute immunity because
Plaintiffs' constitutional claims arose out of a motion
based on a sworn affidavit that she presented to the state
court in a pending lawsuit. The district court explained that
the absolute immunity enjoyed by witnesses in judicial
proceedings extends to witnesses presenting testimony by way
of affidavit. Howard's attorneys filed the motion for a
protective order on her behalf "and it was her sworn
description of the events that transpired-that is, her
testimony-that formed the basis for the requested
protective order." Id. at *6 (emphasis in
City Attorney and Assistant City Attorneys
not tarry long in disposing of this appeal from the district
court's final judgment in favor of Defendants Hernandez,
Zarr, and Bullock. See 28 U.S.C. § 1291.
Setting aside the obvious and multiple facial deficiencies in
Plaintiffs' § 1983 complaint, we first address the
city attorney and assistant city attorney's threshold
defense of absolute immunity as a complete bar to
Plaintiffs' suit. Imbler v. Pachtman, 424 U.S.
409, 419 n.13 (1976) ("An absolute immunity defeats a
suit at the outset, so long as the official's actions
were within the scope of immunity."). Our review is de
novo. Scott v. Hern, 216 F.3d 897, 908 (10th Cir.
2000). Public officials who seek absolute immunity, i.e., an
absolute exemption ...