Rushing v. City of Albuquerque et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
JOSHUA LUKE RUSHING,
Plaintiff,
v. 1:25-cv-00489-KG-SCY
CITY OF ALBUQUERQUE
AND LILLIAN BYRES-RICHARDSON,
Defendants.
MEMORANDUM OPINION AND ORDER
This matter is before the Court on Defendants City of Albuquerque and Lillian Byres-
Richardson’s Motion to Dismiss, Doc. 15, and Plaintiff Joshua Rushing’s Motion for Leave to
File a Surreply, Doc. 25. Because Mr. Rushing’s motion is unopposed, the Court grants the
motion and considers the surreply. For the reasons below, the Court grants in part and denies in
part Defendants’ motion to dismiss, Doc. 15. Mr. Rushing’s (A) First Amendment claim
survives, (B) class-of-one Equal Protection claim is dismissed without prejudice, and (C) spousal
discrimination claim under the New Mexico Human Rights Act (“NMHRA”) survives.
I. Background
The Court recounts this case’s background using the pleadings, drawing all reasonable
inferences in the nonmoving party’s favor and describing only those facts relevant to
Defendants’ motion to dismiss. E.g., WildEarth Guardians v. U.S. Forest Serv., 2025 WL
2430383, at *1 (D.N.M.).
During the relevant period, Mr. Rushing routinely conducted “reading, research, and
work” as a patron at the Taylor Ranch Branch of Albuquerque’s public library system. Id. at 3–
4. His spouse, Claire Laidlaw, worked at the branch. Doc. 1 at 3. When Mr. Rushing visited the
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branch, he acted like “an average patron”: he did not interrupt Ms. Laidlaw’s work, “enter
employee areas,” “use employee services,” or “use employee facilities.” Id. He complied with
the library’s posted policies and was never “asked to change his behavior.” Id. Other employees
“regularly had family members, spouses, and/or significant others visit them at work, at times
going behind the desk.” Id. at 5.
Nonetheless, the Taylor Ranch Branch manager, Defendant Lillian Byres-Richardson,
asked Ms. Laidlaw to limit Mr. Rushing’s “presence” at the library during Ms. Laidlaw’s
working hours. Id. Ms. Byres-Richardson attributed the request to “distractions to other
employees,” but did not cite specific complaints. Id. The “request was not based on any
established policy.” Id. Mr. Rushing believed it was “made in error” and continued using the
Taylor Ranch Branch “in accordance with all posted rules and guidelines.” Id.
Ms. Byres-Richardson met with Ms. Laidlaw for a second time approximately one month
later. Id. at 6. Ms. Byres-Richardson “threatened adverse employment action” against Ms.
Laidlaw if Mr. Rushing failed to “reduce[] his presence” in the library. Id. Ms. Byres-
Richardson provided Ms. Laidlaw with a library policy stating: “When staff bring their
children...or other family members are in the library for an extended period of time, it generally
impacts the ability of the staff member or other staff present to accomplish jobs effectively.” Id.
at 6–7. She also asserted that Mr. Rushing’s presence had caused staff members “to begin
speaking negatively about Ms. Laidlaw.” Id.
Ms. Laidlaw and Mr. Rushing reported the incidents to the library’s human resources
department, prompting the library to convene a meeting with Ms. Laidlaw, a human resources
representative, City of Albuquerque officials, and Ms. Byres-Richardson. Id. at 8. During that
meeting, the City’s representatives admitted that Mr. Rushing’s presence “did not violate the
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2001 policy.” Id. at 11. They nonetheless asserted that he “violated an internal policy” that was
not publicly posted. Id. They stated that Mr. Rushing was a “distraction” and posed a “‘liability’
issue from a ‘safety viewpoint’” in the event he became violent at the library. Id. at 11–12. Ms.
Byres-Richardson claimed that Mr. Rushing’s “presence was ‘unsettling’ and made her and
unnamed other employees ‘feel like they were being watched.’” Id. at 12–13. The City’s
representatives stated that Mr. Rushing could visit the Taylor Ranch Branch only to pick Ms.
Laidlaw up “15–20 minutes before the end of her shift” and otherwise directed him to use
another branch. Id. at 10. Mr. Rushing “had no choice but to obey the illegal order for the
remainder of Ms. Laidlaw’s employment.” Id. at 14.
Mr. Rushing alleges that Defendants violated his First Amendment right to access a
public library, his Fourteenth Amendment right to equal protection, and the New Mexico Human
Rights Act by discriminating against him on the basis of spousal affiliation See Doc. 1 at 14–17.
Defendants move to dismiss the complaint, arguing that Mr. Rushing has failed to state a claim
under Federal Rule of Civil Procedure 12(b)(6). See generally Doc. 15.
II. Standard of Review
To survive a Rule 12(b)(6) motion to dismiss, a complaint must contain “enough facts to
state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007). A claim is plausible if it creates a “reasonable inference that the defendant is liable for
the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). The Court treats the
allegations as true, but “labels and conclusions” and “formulaic recitation[s] of the elements of a
cause of action” are not credited. Twombly, 550 U.S. at 555. Under Rule 15(a)(2), courts
“should freely give leave when justice so requires.” The Court construes a pro se litigant’s
complaint liberally. Gaines v. Stenseng, 292 F.3d 1222, 1224 (10th Cir. 2002). However, pro se
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parties must still “follow the same rules of procedure that govern other litigants.” Garrett v.
Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005).
III. Analysis
For the reasons below, Mr. Rushing’s (A) First Amendment claim survives, (B) class-of-
one Equal Protection claim is dismissed without prejudice, and (C) spousal discrimination claim
under the NMHRA survives.
A. Mr. Rushing’s First Amendment claim survives.
First, Mr. Rushing plausibly alleges that Defendants violated his First Amendment rights
under 42 U.S.C. § 1983. It is “well established that the” First Amendment “protects the right to
receive information and ideas.” Stanley v. Georgia, 394 U.S. 557, 564 (1969). That protection
extends to access to public libraries, “the quintessential locus of the receipt of information.” Doe
v. City of Albuquerque, 2009 WL 10706998, at *4 (D.N.M.), aff’d, 667 F.3d 1111, 1119 (10th
Cir. 2012).
Public libraries are also “a type of designated public forum.” Doe, 667 F.3d at 1128. In
designated public forums, the government may impose only content-neutral time, place, and
manner restrictions that “(a) serve a significant government interest; (b) are narrowly tailored to
advance that interest; and (c) leave open ample alternative channels of communication.” Shero
v. City of Grove, 510 F.3d 1196, 1203 (10th Cir. 2007).
Mr. Rushing plausibly alleges that Defendants interfered with his First Amendment right
to access information. He alleges that he regularly visited the Taylor Ranch Branch Library for
“reading, writing,” “research,” and accessing the internet, and that Defendants barred him from
accessing the library for “45 hours a week.” Id. at 2–3. Accepting those allegations as true,
Defendants prevented Mr. Rushing from accessing a public library for most of the week,
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interfering with his First Amendment right to receive information. See Doe, 2009 WL
10706998, at *4 (denying motion to dismiss where plaintiff alleged that a ban from public
libraries violated his First Amendment right to receive information).
Defendants’ argument to the contrary is premature. They claim that their restriction was
“narrowly tailored” because it prohibited Mr. Rushing from visiting one of many library
branches during specified hours. Doc. 15 at 6. Defendants raise legitimate operational concerns.
However, the Court need not address those concerns at this stage. See Doe, 2009 WL 10706998,
at *4 (considering only whether the plaintiff plausibly alleged a restriction on his First
Amendment right to access the public library at the motion-to-dismiss stage). Discovery will
allow the parties to develop the factual record regarding whether Defendants’ asserted interest
was significant, whether the restriction on Mr. Rushing was narrowly tailored, and whether
requiring Mr. Rushing to use other branches left open adequate alternative channels for accessing
information.
B. Mr. Rushing’s class-of-one claim is dismissed without prejudice.
Next, Mr. Rushing fails to plausibly allege a class-of-one claim under 42 U.S.C. § 1983.
Under the Equal Protection Clause, the government “shall not treat similarly situated persons
differently unless the dissimilar treatment is rationally related to a legitimate legislative
objective.” Jurado-Gutierrez v. Greene, 190 F.3d 1135, 1152 (10th Cir. 1999). Where, as here,
a plaintiff is not a member of a suspect class and does not allege the deprivation of a fundamental
right, he may pursue an equal protection claim under a “class-of-one” theory. Village of
Willowbrook v. Olech, 528 U.S. 562, 564 (2000). Mr. Rushing concedes that the class-of-one
framework applies. Doc. 1 at 16.
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Class-of-one claims are generally disfavored. Jennings v. City of Stillwater, 383 F.3d
1199, 1214 (10th Cir. 2004). When “looking only at one individual there is no way to know
whether the alleged difference in treatment was” based on “legitimate or illegitimate
considerations without a comprehensive and largely subjective canvassing of all possible
relevant factors.” Id. Therefore, a plaintiff “must first establish that others similarly situated in
every material respect were treated differently,” and “then show this difference in treatment was
without rational basis, that is, the government action was irrational and abusive, and wholly
unrelated to any legitimate state activity.” Kansas Penn Gaming v. Collins, 656 F.3d 1210, 1216
(10th Cir. 2011). Accordingly, “[i]t is...imperative for the class-of-one plaintiff to provide a
specific and detailed account of the nature of the preferred treatment of the favored
class.” Jennings, 383 F.3d at 1214.
Mr. Rushing fails to allege facts meeting that demanding standard. He asserts that
“[o]ther employees at the Taylor Ranch Branch routinely hosted family members and friends
who would speak with staff, enter staff areas, and remain longer than a ‘brief pickup,’ yet none
were ever barred from the Taylor Ranch Branch.” Doc. 1 at 16. But these allegations are
conclusory and lack details permitting a meaningful comparison—such as who those individuals
were, how often they visited, how long they stayed, and whether they engaged in conduct like
that attributed to Mr. Rushing. Without factual allegations showing that these individuals were
similarly situated to Mr. Rushing in material respects yet treated differently, the claim fails. See,
e.g., Penn Gaming, 656 F.3d at 1216 (dismissing a class-of-one claim where the complaint failed
to identify an adequate comparator); Rocky Mountain Rogues, Inc. v. Town of Alpine, 375 F.
App’x 887, 896 (10th Cir. 2010) (same). Mr. Rushing may file an amended complaint
attempting to remedy these pleading deficiencies.
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C. Mr. Rushing’s spousal discrimination claim survives.
Finally, Mr. Rushing has adequately pled a spousal discrimination claim under the
NMHRA. As an initial matter, “the exhaustion of administrative remedies is a prerequisite to
suit under” the NMHRA. Mitchell-Carr v. McLendon, 1999-NMSC-025, ¶ 20.
Mr. Rushing’s allegations concern access to a public library—a paradigmatic public
accommodation under New Mexico law. See Johnson v. Bd. of Educ. for Albuquerque Pub.
Schs., 2025-NMSC-014, ¶ 18 (recognizing that public libraries are traditional public
accommodations). The Court therefore liberally construes Mr. Rushing’s pro se complaint as
asserting a claim under § 28-1-7(F). Under § 28-1-7(F), it is unlawful for a state entity, “in any
public accommodation,” to deny an individual its “services, facilities, accommodations or
goods” because of a protected characteristic, including “spousal affiliation.” See also Johnson,
2025-NMSC-014, ¶ 11.
Courts “may look at federal civil rights adjudication for guidance in interpreting the
NMHRA,” but that reliance “should not be interpreted as an indication that” New Mexico courts
“have adopted federal law.” Ocana v. Am. Furniture, 2004-NMSC-018, ¶ 23. The NMHRA’s
public-accommodation provision is analogous to Title II of the Civil Rights Act of 1964, which
guarantees individuals “the full and equal enjoyment of...any place of public accommodation”
without discrimination. 42 U.S.C. § 2000a(a). To establish a prima facie Title II public-
accommodation discrimination claim, a plaintiff must show that he: (1) is a member of a
protected class; (2) attempted to exercise his right to the full benefits and enjoyment of a place of
public accommodation; (3) was denied those benefits and enjoyment; and (4) was treated less
favorably than similarly situated persons outside the protected class. See United States v.
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Lansdowne Swim Club, 894 F.2d 83, 88 (3d Cir. 1990); Hornick v. Hoyes, 708 F.2d 321, 325 n.8
(7th Cir. 1983).
As an initial matter, Mr. Rushing has satisfied the NMHRA’s exhaustion requirement.
He attaches an Order of Non-Determination from the Department of Workforce Solutions’
Human Rights Bureau, see Doc. 1 at 31–32 (“Ex. E”), and filed this lawsuit less than 30 days
later. That is sufficient. Mitchell-Carr v. McLendon, 1999-NMSC-025, ¶¶ 14–15, 17; see, e.g.,
Campos v. Las Cruces Nursing Ctr., 828 F. Supp. 2d 1256, 1273 (D.N.M. 2011).
Next, accepting Mr. Rushing’s allegations as true, the Complaint plausibly alleges that
Defendants limited Plaintiff’s access to a public accommodation because of his spousal
relationship to a library employee. First, Mr. Rushing alleges he is a member of a protected class
because he is married to Ms. Laidlaw, a library employee. Doc. 1 at 1–2. Second, he alleges
that he attempted to exercise his right to use the Taylor Ranch Branch: he routinely visited the
branch for reading, research, and work. Id. at 3–5. Next, he alleges that Defendants denied him
the full benefits and enjoyment of the public library. Ms. Byres-Richardson directed Mr.
Rushing to “limit” his presence during Ms. Laidlaw’s working hours. Id. Library officials
ultimately directed him to use the Taylor Ranch Branch only to pick up Ms. Laidlaw at the end
of her shift and otherwise use a different branch. Id. at 14. Finally, Mr. Rushing alleges that
Defendants treated him differently from other patrons because of his relationship to Ms. Laidlaw.
Mr. Rushing alleges that he used the library like any ordinary patron—reading, researching, and
working while complying with all posted policies—yet Defendants restricted his access anyway.
Id. at 3–5. These allegations plausibly state a claim for discrimination under the NMHRA.
Defendants’ argument to the contrary is premature. They contend that they restricted Mr.
Rushing’s access to the Taylor Ranch Branch because employees found his presence distracting
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and he made them uncomfortable. That contention goes to Defendants’ potential
nondiscriminatory, legitimate justification for their actions. Courts evaluating NMHRA
discrimination claims consider such justifications under the burden-shifting framework of
McDonnell Douglas Corp. v. Green, 411 U.S. 792, typically at summary judgment. See Smith v.
FDC Corp., 1990-NMSC-020, ¶ 10. For example, in Goradia v. Hahn Co., 1991-NMSC-040, ¶
18, the New Mexico Supreme Court affirmed summary judgment on discrimination claims after
concluding that the defendants had legitimate business reasons for their actions. Mr. Rushing’s
claim therefore survives at this stage.
IV. Conclusion
The Court grants in part and denies in part Defendants’ motion to dismiss. Mr. Rushing’s
claims under the First Amendment and the New Mexico Human Rights Act survive. His class-
of-one claim is dismissed with prejudice.
IT IS SO ORDERED.
/s/Kenneth J. Gonzales___________________
CHIEF UNITED STATES DISTRICT JUDGE
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