Gardner v. New Mexico Board of Dental Health et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
WILLIAM GARDNER,
Plaintiff,
v. 	No. 1:25-cv-00421-SMD-SCY
NEW MEXICO BOARD OF DENTAL HEALTH as a public body
Individually in their Government official-capacities
JENNIFER THOMPSON,
MELISSA BARBARA,
PAULA JENKINS,
VALOREE ALTHOFF,
MAYA MASCARENAZ,
JEFFERY WEATON,
HOLLY BEAUMONT,
KEVIN MCMAHON,
NEW MEXICO DEPARTMENT OF JUSTICE as a public body,
DANIEL RUBIN in his official capacity,
Defendants.
ORDER GRANTING DEFENDANT NEW MEXICO DEPARTMENT OF JUSTICE’S
MOTION TO DISMISS
This case arises from proceedings before the New Mexico Board of Dental Health
(“Board”) regarding Plaintiff’s application to have his dental license reinstated. 	See Verified
Complaint for Violations of the New Mexico Civil Rights Act, Prima Facie Tortious Claim of Civil
Aiding, Abetting, Civil Conspiracy, a 1983 Claim for Damages and Injunctive Relief, Doc. 1-1,
filed May 2, 2025, in this Court after removal from state court (filed in state court on March 31,
2025) (“Complaint”). Defendants include the Board, individual members of the Board, the New
Mexico Department of Justice (“NMDOJ”) and Daniel Rubin, a NMDOJ employee.
Plaintiff asserts claims for violations of his due process rights under the New Mexico
Constitution pursuant to the New Mexico Civil Rights Act, for violations of his due process rights
under the United States Constitution pursuant to 42 U.S.C. § 1983, and for civil conspiracy. See
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Complaint at 1. Plaintiff seeks monetary damages, immediate reinstatement of his dental license
and a permanent injunction “prohibiting Defendants from undertaking any future meetings or
hearings unlawful actions against [Plaintiff] to the detriment of his Constitutional right to
procedural and substantive due process.” Complaint at 13.
NMDOJ seeks dismissal with prejudice of: (i) Plaintiff’s due process claims pursuant to
42 U.S.C. § 1983 for failure to state a Monell claim because there are “no[] allegations that
NMDOJ promulgated some policy or practice that was the driving force behind the asserted
constitutional violations;” and (ii) Plaintiff’s due process claims pursuant to the New Mexico Civil
Rights Act because NMDOJ’s attorney that participated in the Board hearings is entitled to
prosecutorial and absolute immunity. Defendant New Mexico Department of Justice’s Motion to
Dismiss at 8-10, Doc. 8, filed May 9, 2025 (“Motion”).
Plaintiff did not file a timely response to the Motion. See Notice of Completion of Briefing,
Doc. 16, filed June 3, 2025. United States Magistrate Judge Steven C. Yarbrough granted Plaintiff
an extension of time to June 25, 2025, to file a response to NMDOJ’s Motion. See Order, Doc. 24,
filed June 12, 2025. NMDOJ filed an Amended Notice of Completion of Briefing stating Plaintiff
failed to file a response by the extended deadline. 	See Doc. 32, filed July 8, 2025. 	Plaintiff
subsequently filed a Notice clarifying that “he DID respond on several occasions” citing Doc’s 25-
28. See Doc. 36, filed July 14, 2025 (emphasis in original). Document 25 is Plaintiff’s motion for
leave to file an amended complaint. 	Document 26 is NMDOJ’s response to Plaintiff’s motion for
leave to file an amended complaint. Document 27 is a response to the Board’s motion to dismiss
and is not a response to the NMDOJ’s Motion to Dismiss. See Doc. 27 at 3, filed June 24, 2025
(stating “The Plaintiff respectfully requests that the Dental Board[’s] motion to dismiss the case be
DENIED as proper service was effectuated as a motion to strike will follow for the same reasons”)
(emphasis in original). Document 28 is Plaintiff’s improperly filed Amended Complaint.
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Claims Pursuant to 42 U.S.C. § 1983
NMDOJ 	argues 	that 	Plaintiff 	fails 	to state 	a 	claim 	against 	NMDOJ 	pursuant 	to
42 U.S.C. § 1983 because there are “no factual allegations specifically lodged against NMDOJ.”
Motion at 7. NMDOJ also argues that Plaintiff fails to state a Section 1983 claim against NMDOJ
based on the actions of NMDOJ employee Defendant Daniel Rubin because there are “no[]
allegations that NMDOJ promulgated some policy or practice that was the driving force behind
the asserted constitutional violation.” Motion at 8.
The Court does not address NMDOJ’s arguments regarding Plaintiff’s failure to state a
Section 1983 claim because the Court concludes it does not have jurisdiction over Plaintiff’s
Section 1983 claim against NMDOJ. See Evitt v. Durland, 243 F.3d 388 *2 (10th Cir. 2000) (“even
if the parties do not raise the question themselves, it is our duty to address the apparent lack of
jurisdiction sua sponte”) (quoting Tuck v. United Servs. Auto. Ass'n, 859 F.2d 842, 843 (10th Cir.
1988).
As the party seeking to invoke the jurisdiction of this Court, Plaintiff bears the burden of
alleging facts that support jurisdiction. 	See Dutcher v. Matheson, 733 F.3d 980, 985 (10th Cir.
2013) (“Since federal courts are courts of limited jurisdiction, we presume no jurisdiction exists
absent an adequate showing by the party invoking federal jurisdiction”).
Generally, states and their agencies are protected from suit by sovereign immunity,
as guaranteed by the Eleventh Amendment. “The ultimate guarantee of the Eleventh
Amendment is that nonconsenting States may not be sued by private individuals in
federal court.” Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356, 363, 121 S.Ct.
955, 148 L.Ed.2d 866 (2001). However, there are three exceptions to the Eleventh
Amendment's guarantee of sovereign immunity to states:
First, a state may consent to suit in federal court. Second, Congress
may 	abrogate 	a 	state's 	sovereign 	immunity 	by 	appropriate
legislation 	when 	it 	acts 	under 	Section 	5 	of 	the 	Fourteenth
Amendment. Finally, under Ex parte Young, 209 U.S. 123, 28 S.Ct.
441, 52 L.Ed. 714 (1908), a plaintiff may bring suit against
individual state officers acting in their official capacities if the
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complaint alleges an ongoing violation of federal law and the
plaintiff seeks prospective relief.
Muscogee (Creek) Nation v. Pruitt, 669 F.3d 1159, 1166 (10th Cir. 2012) (internal
citations omitted and altered).
Levy v. Kansas Dept. of Social and Rehabilitation Services, 789 F.3d 1164, 1169 (10th Cir. 2015).
The Complaint fails to show that the Court has jurisdiction over Plaintiff’s Section 1983
claims against NMDOJ because there are no factual allegations showing that any of the three
exceptions to the Eleventh Amendment's guarantee of sovereign immunity to states apply to
Plaintiff’s claims against the State of New Mexico.
The first exception, consent to suit, does not apply. 	Plaintiff alleges that the New Mexico
Civil Rights Act prohibits “sovereign immunity as a defense or bar to an action.” Complaint at 5.
The New Mexico Civil Rights Act provides:
A person who claims to have suffered a deprivation of any rights, privileges or
immunities pursuant to the bill of rights of the constitution of New Mexico due to
acts or omissions of a public body or person acting on behalf of, under color of or
within the course and scope of the authority of a public body may maintain an action
to establish liability and recover actual damages and equitable or injunctive relief
in any New Mexico district court.
N.M.S.A. § 41-4A-3(B) (emphasis added), and:
The state shall not have sovereign immunity for itself or any public body within the
state for claims brought pursuant to the New Mexico Civil Rights Act, and the public
body or person acting on behalf of, under color of or within the course and scope
of the authority of the public body provided pursuant to the New Mexico Civil
Rights Act shall not assert sovereign immunity as a defense or bar to an action.
N.M.S.A. § 41-4A-9 (emphasis added). 	The New Mexico Civil Rights Act waives sovereign
immunity only for claims for deprivations of rights pursuant to the New Mexico Constitution; it
does not waive sovereign immunity for claims for deprivations of rights pursuant to the United
States Constitution.
The second exception, abrogation of sovereign immunity by Congress, does not apply
because “the United States Supreme Court has previously held that Congress did not abrogate
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states' Eleventh Amendment immunity when it enacted 42 U.S.C. § 1983.” 	Ruiz v. McDonnell,
299 F.3d 1173, 1180 (10th Cir. 2002) (citing Quern v. Jordan, 440 U.S. 332, 345 (1979)).
The third exception, bringing suit pursuant to Ex parte Young, does not apply to:
(i) Defendant NMDOJ as a public body because it is an arm of the State of New Mexico; or (ii)
NMDOJ employee Daniel Rubin in his official capacity because there are no allegations in the
Complaint of an ongoing violation of federal law. See Muscogee (Creek) Nation v. Pruitt, 669 F.3d
1159, 1167 (10th Cir. 2012) (for the Ex parte Young exception to state sovereign immunity to apply,
a plaintiff must show that he is: “(1) suing state officials rather than the state itself, (2) alleging an
ongoing violation of federal law, and (3) seeking prospective relief”).
The Court dismisses Plaintiff’s Section 1983 claims against NMDOJ without prejudice for
lack of subject-matter jurisdiction. See Fed. R. Civ. P. 12(h)(3) (“If the court determines at any
time that it lacks subject-matter jurisdiction, the court must dismiss the action”); Brereton v.
Bountiful City Corp., 434 F.3d 1213, 1218 (10th Cir. 2006) (“[D]ismissals for lack of jurisdiction
should be without prejudice because the court, having determined that it lacks jurisdiction over the
action, is incapable of reaching a disposition on the merits of the underlying claims.”) (emphasis
in original).
Claims Pursuant to the New Mexico Civil Rights Act
Plaintiff asserts claims against NMDOJ pursuant to the New Mexico Civil Rights Act based
on the actions of NMDOJ employee Defendant Daniel Rubin. 	NMDOJ states it is entitled to
immunity for the claims to the extent they are based on Defendant Rubin’s action because
Defendant Rubin is entitled to prosecutorial immunity and absolute immunity. See Motion at 9.
NMDOJ asserts that the New Mexico Civil Rights Act, “while prohibiting qualified immunity
arguments, has specifically preserved all other immunities, which would include the absolute
prosecutorial immunity.” Motion at 9; N.M.S.A. § 41-4A-10 (“The prohibition on the use of the
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defense of qualified immunity pursuant to Section 4 [41-4A-NMSA 1978] of the New Mexico
Civil Rights Act and the waiver of sovereign immunity pursuant to Section 9 [41-4A-9 NMSA
1978] of that act shall not abrogate judicial immunity, legislative immunity or any other
constitutional, statutory or common law immunity”).
The Court dismisses Plaintiff’s claims pursuant to the New Mexico Civil Rights Act and
for civil conspiracy. Plaintiff alleges that Defendant Rubin “acted as the administrative prosecutor
and conspired to control the entire [Board hearing] process” and “acted as the prosecutor and the
attorney for the Board.” Complaint at ¶¶ 79, 91. “Prosecutors are entitled to absolute immunity
for their decisions to prosecute, their investigatory or evidence-gathering actions, their evaluation
of evidence, their determination of whether probable cause exists, and their determination of what
information to show the court.” Chilcoat v. San Juan County, 41 F.4th 1196, 1209 (10th Cir. 2022)
(quoting Nielander v. Bd. of Cnty. Comm'rs, 582 F.3d 1155, 1164 (10th Cir. 2009)).
IT IS ORDERED that Defendant New Mexico Department of Justice’s Motion to Dismiss,
Doc. 8, filed May 9, 2025, is GRANTED in part1 as follows: (i) Plaintiff’s claims against NMDOJ
pursuant to 42 U.S.C. § 1983 are DISMISSED without prejudice for lack of jurisdiction; (ii)
Plaintiff’s claims against NMDOJ pursuant to the New Mexico Civil Rights Act and for civil
conspiracy are DISMISSED with prejudice.
_________________________________
UNITED STATES DISTRICT JUDGE
1 NMDOJ sought dismissal of all claims with prejudice. See Motion at 3, 15.
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