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Benavidez v. Howard

United States Court of Appeals, Tenth Circuit

August 2, 2019

NATALIE HOWARD, Albuquerque City Clerk; JESSICA MARIE HERNANDEZ, City Attorney; WILLIAM ZARR, Assistant City Attorney; NICHOLAS BULLOCK, Assistant City Attorney, Defendants-Appellees.

          Appeal from the United States District Court for the District of New Mexico (D.C. No. 1:17-CV-00966-WJ-LF)

          A. Blair Dunn, Esq., Western Agriculture, Resource and Business Advocates, LLP, Albuquerque, New Mexico, for Plaintiffs-Appellants.

          Jerry A. Walz (James J. Grubel with him on the brief), Walz and Associates, P.C., Albuquerque, New Mexico, for Defendants-Appellees.

          Before BACHARACH, BALDOCK, and EBEL, Circuit Judges.

          PER CURIAM.

         Vanessa 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.

         I. Background

         Because 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).

         Less 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.

         A week 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 courts[.]").

         Padilla 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.

         The 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 redress."

         Attached to Plaintiffs' complaint, however, is a copy of Howard's motion for a protective order and her sworn affidavit in support thereof.[1] 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.

         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.

         II. District Court's Ruling

         Upon 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.[2] 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 nature." Id.

         Meanwhile, 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 original).

         III. City Attorney and Assistant City Attorneys

         We need 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 ...

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