Jeremy Dear v. Sarita Nair; Tim Keller; City of Albuquerque

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_________________________________
JEREMY DEAR,
Plaintiff - Appellant,
v.
SARITA NAIR; TIM KELLER; CITY OF
ALBUQUERQUE,
Defendants - Appellees.
No. 21-2124
(D.C. No. 1:21-CV-00250-KG-KK)
(D. N.M.)
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before BACHARACH, BALDOCK, and EID, Circuit Judges.
_________________________________
Jeremy Dear alleges the City of Albuquerque, New Mexico, and two of its
officials, violated his First Amendment rights by responding to his records-request suit
with a counterclaim for malicious abuse of process seeking compensatory and punitive
damages. The district court dismissed Dear’s 42 U.S.C. § 1983 suit, reasoning that the
officials did not act under color of state law when they caused the city to file its
counterclaim, and that a municipality cannot violate a person’s First Amendment rights
* After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
FILED
United States Court of Appeals
Tenth Circuit
June 16, 2022
Christopher M. Wolpert
Clerk of Court
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by filing a civil counterclaim against the person. Exercising jurisdiction under
28 U.S.C. § 1291, we reverse and remand for further proceedings.
I. Background
Dear sought documents related to his termination from the Albuquerque Police
Department under New Mexico’s Inspection of Public Records Act (IPRA), N.M.
Stat. Ann. §§ 14-2-1 to 14-2-12. Albuquerque rejected his request, asserting the
documents were “exempt from inspection” as “attorney work product” “because
allowing their inspection would reveal the thought process used by the Legal
Department to identify them.” Aplt. App. at 17. Dear then sued the city in state
court, seeking to enforce the provisions of the IPRA to get the documents.
The city responded by filing a civil counterclaim for malicious abuse of
process and seeking discovery from Dear. It did so “due to the number of lawsuits
filed against [Albuquerque] and its employees by [Dear], and due to the nature of the
[IPRA] lawsuit brought by [Dear].” Aplee. Resp. Br. at 8. The city’s counterclaim
sought compensatory damages, punitive damages, and costs. The state court
ultimately granted summary judgment in favor of Dear on the city’s counterclaim,
reasoning the First Amendment’s Petition Clause provided him immunity from
liability for exercising his right to file suit under the IPRA.
Dear rejoined with this § 1983 action, alleging that by filing its counterclaim
and seeking discovery in the state-court IPRA suit, the city engaged in a vindictive
civil prosecution to suppress his suit and free speech. He named as Defendants the
city itself, the city’s chief administrative officer, Sarita Nair, who he alleged
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“directed [the] plan to use the judicial system to deny [Dear] his First Amendment
right to petition his government for redress,” Aplt. App. at 10, and the city’s mayor,
Tim Keller, who he alleged “failed to properly train, supervise, and admonish
Defendant Nair,” id. at 13.
The district court dismissed the § 1983 case with prejudice under Federal Rule
of Civil Procedure 12(b)(6). It found Dear did not, and could not in a revised
complaint, (1) sufficiently allege municipal action to maintain a § 1983 action
because the Defendants did not act under color of state law, or (2) allege a viable
First Amendment retaliation claim because its counterclaim against Dear was civil,
and not criminal.
II. Discussion
“We review de novo the district court’s grant of a Rule 12(b)(6) motion to
dismiss for failure to state a claim.” VDARE Found. v. City of Colorado Springs,
11 F.4th 1151, 1158 (10th Cir. 2021) (brackets omitted), cert. denied, 142 S. Ct. 1208
(2022). “To survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)).
A. Municipal Action
“A claim pleaded under § 1983 requires (1) deprivation of a federally
protected right by (2) an actor acting under color of state law.” VDARE, 11 F.4th at
1160 (internal quotation marks omitted). “The traditional definition of acting under
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color of state law requires that the defendant in a § 1983 action exercised power
possessed by virtue of state law and made possible only because the wrongdoer is
clothed with the authority of state law.” Schaffer v. Salt Lake City Corp., 814 F.3d
1151, 1156 (10th Cir. 2016) (internal quotation marks omitted). “However, the fact
that a tort was committed by an individual employed by the state does not, ipso facto,
warrant attributing all of the employee’s actions to the state.” Id. (internal quotation
marks omitted). “Rather, before conduct may be fairly attributed to the state because
it constitutes action under color of state law, there must be a real nexus between the
employee’s use or misuse of their authority as a public employee, and the violation
allegedly committed by the defendant.” Id. (internal quotation marks omitted).
The district court found that Dear did not, and could not if he amended his
complaint, allege that any Defendant acted under color of state law. Dear argues the
district court erred in making this finding, and we agree with Dear.
The district court acknowledged Dear alleged “that Defendant Nair, supervised
by Defendant Keller, authorized or directed attorneys for the City of Albuquerque to
file a counterclaim and pursue discovery against Mr. Dear in an underlying state
court case.” Aplt. App. at 143. Taking these allegations at face value, Nair acted
under color of state law by using his authority as the city’s chief administrative
officer to direct the city’s attorney in the litigation. See Beedle v. Wilson, 422 F.3d
1059, 1068 (10th Cir. 2005) (holding that an allegation that a municipal hospital’s
executives caused the hospital to file a civil action against an individual was
“sufficient to state a claim against the [h]ospital and its policy makers for the
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infringement of [the individual’s] First Amendment rights”). And Keller acted under
color of state law by exercising his responsibilities as the city’s Mayor to supervise
Nair. See West v. Atkins, 487 U.S. 42, 50 (1988) (“[G]enerally, a public employee
acts under color of state law while acting in his official capacity or while exercising
his responsibilities pursuant to state law.”). We therefore conclude the complaint
sufficiently alleged the individual Defendants acted under color of law because there
is a “real nexus” between their use of “authority as . . . public employee[s], and the
violation[s] alleged[].” Schaffer, 814 F.3d at 1156 (internal quotation marks
omitted). With respect to Defendant Albuquerque, it necessarily acted under color of
state law when it filed its counterclaim because it can only act via state law. See
Purcell v. City of Carlsbad, 126 F.2d 748, 751 (10th Cir. 1942) (“[M]unicipalities
are creatures of the laws of the state of which they are a part, and their powers are
derived solely therefrom.” (emphasis added)).
The district court relied on an unpublished Tenth Circuit case, O’Connor v.
Williams, 640 F. App’x 747 (10th Cir. 2016), to reach a contrary conclusion. In
O’Connor, the court addressed a § 1983 claim brought against a Colorado state
representative for her action in seeking a protective order against a belligerent
constituent. In that context, the court framed the “under color of state law” inquiry
by reference to “whether [the state representative] used her authority—authority
made possible only because of her elected office—to do something an ordinary
citizen can’t do.” Id. at 751. And the court reasoned that the state representative did
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not act under color of state law because in seeking a protective order, she was taking
an action any ordinary citizen could take. Id.
The district court read O’Connor as holding that § 1983 liability cannot attach
to any action if an ordinary citizen could also take that action. It therefore reasoned
that because “[t]he ability to bring a counterclaim for malicious abuse of process is
not ‘something an ordinary citizen can’t do[,]’ . . . Dear failed to allege that any
defendant acted ‘under color of law.’” Aplt. App. at 144 (quoting O’Connor,
640 F. App’x at 751). And it further reasoned that “amending the complaint on this
point would be futile because no set of facts will convert a counterclaim for
malicious abuse of process into something an ordinary citizen cannot do.” Id.
The district court’s reasoning fails to account for the fact that Dear’s
complaint alleges Nair caused the counterclaim to be filed by the city. As Dear
points out, “an ordinary citizen cannot initiate (even through a counterclaim) a civil
prosecution against another citizen on behalf of the government.” Aplt. Opening Br.
at 9–10 (emphasis added).
Also, the district court’s suggestion that municipal employees only act under
color of law if they do something an ordinary citizen cannot do incorrectly states the
law and misreads the unpublished O’Connor case. The test, as quoted above, is
whether there is “a real nexus between the employee’s use or misuse of their
authority as a public employee, and the violation allegedly committed by the
defendant.” Schaffer, 814 F.3d at 1156 (internal quotation marks omitted).
O’Connor applied this nexus test, asking whether the plaintiff had “establish[ed] a
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real connection between [the] defendant’s actionable conduct and her badge of state
authority.” 640 F. App’x at 751. Read in context, O’Connor’s fact-specific inquiry
into whether the state representative had done something an ordinary citizen could
not do was an application of the nexus test to the facts of that case, not a modification
of the nexus test. And even if O’Connor did purport to modify the nexus test, it “is
not binding precedent.” Id. at 748 n.*; see also Fed. R. App. P. 32.1; 10th Cir. R.
32.1.
B. Constitutional Violation
The First Amendment’s “Petition Clause protects the right of individuals to
appeal to courts and other forums established by the government for resolution of
legal disputes.” Borough of Duryea v. Guarnieri, 564 U.S. 379, 387 (2011); see also
DeMartini v. Town of Gulf Stream, 942 F.3d 1277, 1289 (11th Cir. 2019) (“[A]
citizen’s public records requests and lawsuits against the government can clearly
constitute protected First Amendment activity.”). The “right to petition [is] one of
the most precious of the liberties safeguarded by the Bill of Rights.” BE & K Const.
Co. v. NLRB, 536 U.S. 516, 524 (2002) (internal quotation marks omitted). “[T]he
right is implied by the very idea of a government, republican in form.” Id. at 524–25
(brackets and internal quotation marks omitted).
“Immunity flows from this right, protecting those who seek redress through the
courts from liability for petitioning activities.” CSMN Invs., LLC v. Cordillera
Metro. Dist., 956 F.3d 1276, 1282 (10th Cir. 2020). And “[b]ecause the First
Amendment applies to state and local governments through the Fourteenth
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Amendment, the petition clause applies fully to municipal activities.” Id. at 1282 n.8
(internal quotation marks omitted).
To state a First Amendment retaliation claim, a plaintiff must allege:
(1) that the plaintiff was engaged in constitutionally protected activity;
(2) that the defendant’s actions caused the plaintiff to suffer an injury
that would chill a person of ordinary firmness from continuing to
engage in that activity; and (3) that the defendant’s adverse action was
substantially motivated as a response to the plaintiff’s exercise of
constitutionally protected conduct.
Shero v. City of Grove, 510 F.3d 1196, 1203 (10th Cir. 2007).
The district court found that Dear’s complaint did not, and could not, allege a
First Amendment retaliation claim because the city’s counterclaim against Dear in
the state court action was civil, and not criminal. It reasoned:
In his thorough treatment of the standard for alleging a First
Amendment claim based on vindictive prosecution, Mr. Dear does not
address or acknowledge that his cited cases uniformly deal with
allegedly vindictive criminal prosecutions. . . .
This case involves neither criminal complaints nor a criminal
prosecution. It does not even involve a civil enforcement action that
could only be brought by a government actor. Instead, this case
involves a counterclaim for a common law tort—a matter frequently
brought by all manner of civil defendants in all manner of standard civil
litigation.
As such, Mr. Dear cannot show that his First Amendment rights
have been violated or impinged by the filing of the counterclaim.
Aplt. App. at 145.
Dear argues the district court’s reasoning “ignored clear precedent from this
Circuit that vindictive prosecution taken in retaliation for First Amendment exercise
is not limited to criminal prosecutions.” Aplt. Opening Br. at 5. We agree.
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In opposing the city’s motion to dismiss, Dear cited Beedle. Aplt. App. at 110.
Beedle, in turn, discussed two cases that involved criminal prosecutions, Wolford v.
Lasater, 78 F.3d 484, 488 (10th Cir.1996), and Gehl Group v. Koby, 63 F.3d 1528,
1534 (10th Cir. 1995), abrogated on other grounds by Currier v. Doran, 242 F.3d
905, 916 (10th Cir. 2001), and observed “[t]hese cases make clear that a
governmental lawsuit brought with the intent to retaliate against a citizen for the
exercise of his First Amendment rights is itself a violation of the First Amendment
and provides grounds for a § 1983 suit.” 422 F.3d at 1066. And Beedle held that a
retaliatory civil libel suit filed by a municipality could violate a person’s First
Amendment rights. Id. at 1067 (“We conclude, therefore, that [the plaintiff] has
sufficiently pled, for the purposes of surviving a 12(b)(6) motion, that the Hospital,
as a governmental entity, violated his First Amendment rights by filing the malicious
libel action against him.”). 1
The district court erred by finding Dear “cannot show that his First
Amendment rights have been violated or impinged by the filing of the counterclaim,”
1 Other circuits have similarly held or suggested that civil actions filed as
retaliation for a plaintiff’s exercise of First Amendment rights can support § 1983
liability. See, e.g., DeMartini, 942 F.3d at 1300–09 (suggesting retaliatory suit filed
by a town under the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C.
§§ 1961–68, could result in § 1983 liability); Greenwich Citizens Comm., Inc. v.
Cntys. of Warren & Washington Indus. Dev. Agency, 77 F.3d 26, 27–29 (2d Cir.
1996) (remanding for further fact-finding on municipalities’ intent where jury found
municipalities violated the First Amendment by bringing retaliatory counterclaims
“for prima facie tort, interference with contract, and frivolous litigation”); Harrison
v. Springdale Water & Sewer Comm’n, 780 F.2d 1422, 1428 (8th Cir. 1986) (holding
retaliatory counterclaim filed by municipality to condemn property supported § 1983
liability).
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just because the counterclaim was “for a common law tort” that could be asserted by
an ordinary citizen, Aplt. App. at 145. We held in Beedle that a retaliatory civil tort
claim could give rise to § 1983 liability. 422 F.3d at 1067. And tort claims for
malicious abuse of process fall within Beedle’s ambit.
We further see no reason government officials should be able to sidestep
Beedle’s holding by bringing tort claims as counterclaims instead of bringing
standalone actions. It will often be the case, as it was here, that when a citizen
petitions the government for redress, the government has the procedural option to
bring a counterclaim. If exercising this procedural option inoculated officials from
liability for their actions, they might “feel free to wield the powers of their office as
weapons against those who question their decisions.” Van Deelen v. Johnson,
497 F.3d 1151, 1155 (10th Cir. 2007). This, in turn, would “do damage not merely to
the citizen in their sights but also to the First Amendment liberties and the promise of
equal treatment essential to the continuity of our democratic enterprise.” Id.
In reaching this conclusion, we acknowledge this court’s holding in Shero that
government suits seeking declaratory judgments do not give rise to First Amendment
retaliation claims. 510 F.3d at 1204. Shero reasoned that “[t]he nature and purpose
of a declaratory judgment is to declare rights, not to attack the opposing party,” and
found it significant that in that case, “the state court was prohibited from awarding
damages against [the §1983 plaintiff].” Id. (internal quotation marks omitted). But a
counterclaim like the one brought by the city here that seeks compensatory and
punitive damages is different. Being exposed to claims for monetary damages would
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chill a person of ordinary firmness from exercising their right to petition the
government. See Beedle, 422 F.3d at 1067 (holding complaint stated § 1983 claim
for First Amendment retaliation where it alleged a municipal entity brought a civil
action “with the purpose and effect of chilling [the § 1983 plaintiff’s] speech and
violating his First Amendment rights”).
III. Conclusion
We reverse the district court’s dismissal of the complaint and remand for
further proceedings.
Entered for the Court
Allison H. Eid
Circuit Judge
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