Garcia v. Boyea et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
GERARDO GARCIA,
Plaintiff,
vs. 	No. CIV 25-0210 JB/JHR
DENISE BOYEA, EDDIE HARRELL,
DALE JANWAY, NADINE MIRELES
and JEFF PATTERSON, in their capacities
as officials for the CITY OF CARLSBAD,
NEW MEXICO,
Defendants.
MEMORANDUM OPINION AND ORDER
THIS MATTER comes before the Court on the Defendants’ Motion to Dismiss for Failure
to State a Claim, filed March 7, 2025 (Doc. 3)(“MTD”). Pro se Plaintiff Gerardo Garcia does not
file a response. The Court considers the motion, the record, and the relevant law. For the reasons
stated below, the Court grants the motion.
FACTUAL AND PROCEDURAL BACKGROUND
This case stems from several encounters Garcia and his wife have with City of Carlsbad
code enforcement officer Jeff Patterson and police officer Jessie Rodriguez over service of a city
resolution requiring Garcia to clean up debris on his property pursuant to relevant city codes. See
Civil Action Complaint, Profession and Official Capacities, at 4-5, filed February 28, 2025
(“Complaint”); MTD at 2. Garcia alleges that Patterson and Rodriguez trespass and commit a
litany of constitutional violations against him and his family when serving notice of the resolution,
pointing to the “no trespassing” signs posted around his property. See Complaint at 5. He says
his complaints to various law enforcement agencies go unanswered. See Complaint at 5. Garcia
thus files this lawsuit on February 4, 2025, asserting “scattershot civil rights claims against the
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City Defendants under the First, Fourth, Fifth, and Fourteenth Amendments, and torts for
trespassing, harassment, and stalking.” MTD at 2. See Complaint at 5-6. Defendants remove the
matter to federal court on February 28, 2025, see Notice of Removal of Action Under 28 U.S.C. §
1441(a), filed February 28, 2025 (Doc. 1), and file the MTD instead of an answer. Garcia does not
file a response.
Defendants argue that dismissal is proper on several grounds. First, they contend that none
of Garcia’s civil rights are violated, because law enforcement are constitutionally permitted to
“knock-and-talk” at an individual’s residence regardless of “no trespassing” signage. MTD at 6
(collecting Tenth Circuit cases). The Defendants argue that this is the case here, where Defendants
approach Garcia’s home to leave papers on the porch but do not linger or search the home. See
MTD at 7 (“As recognized by [United States v. Carloss, 818 F.3d 988, 994 (10th Cir. 2016)] even
placing a “NO TRESPASSING” sign on the front door does not revoke the implied license to
approach a home and leave papers on the porch.”)(brackets added). Defendants contend, therefore,
that Garcia’s facts, taken as true, show “only that papers were left on the porch” within
constitutional parameters. MTD at 7. “In sum, [Garcia’s] Section 1983 and 241 claims, as well as,
any New Mexico Civil Rights Act claims, should be dismissed.” MTD at 7, 8.
Defendants similarly assert that Garcia’s tort claims for trespass, harassment and stalking
pursuant to the Federal Tort Claims Act (“FTCA”) are subject to dismissal. See MTD at 8. This
is primarily because no federal employees or other federal government action is involved in this
case. See MTD at 8. 	Further, Defendants argue Garcia cannot allege these claims in the criminal
context because he lacks any state prosecutorial authority. See MTD at 9.
Defendants finally address Garcia’s remaining “scattershot” claims. 	MTD at 8. 	They
explain that no facts allege they incited violence nor committed any other liable conduct under the
First, Fifth, or Fourteenth Amendments of the United States Constitution. 	See MTD at 8.
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Alternatively, these claims cannot survive, because Garcia is not the real party in interest; Garcia
was not at home during the alleged violations, and he cannot assert them on behalf of his wife or
grandson. See MTD at 9.
LAW REGARDING 12(b)(6) MOTION TO DISMISS
The Court preliminarily notes that “[a] pro se litigant must ‘follow the same rules of
procedure that govern other litigants.” Mayfield v. Presbyterian Hosp. Admin., 772 Fed. Appx.
680, 685 (10th Cir. 2019)(citation omitted).1 	Courts also, however, construe pro se litigants’
pleadings liberally, holding them “to a less stringent standard than formal pleadings drafted by
lawyers.” Greer v. Moon, 83 F.4th 1283, 1292 (10th Cir. 2023)(quoting Hall v. Belmon, 935 F.3d
1106, 1110 (10th Cir. 1991)). And although the Court does not act as an advocate for a pro se
litigant, if it “can reasonably read the pleadings to state a valid claim on which the plaintiff could
prevail, [it] should do so despite the plaintiff’s failure to cite proper legal authority, his confusion
of various legal theories . . . or his unfamiliarity with pleading requirements.” Greer v. Moon, 83
F.4th at 1292 (quoting Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)).
1 Mayfield v. Presbyterian Hosp. Admin., 772 Fed. Appx. 680, 685 (10th Cir. 2019) is an
unpublished opinion, but the Court can rely on an unpublished opinion to the extent its reasoned
analysis is persuasive in the case before it. See 10th Cir. R. 32.1(A)(“Unpublished decisions are
not precedential, but may be cited for their persuasive value.”). The Tenth Circuit states:
In this circuit, unpublished orders are not binding precedent, . . . And we have
generally 	determined 	that 	citation 	to 	unpublished 	opinions 	is 	not 	favored.
However, if an unpublished opinion or order and judgment has persuasive value
with respect to a material issue in a case and would assist the court in its disposition,
we allow a citation to that decision.
United States v. Austin, 426 F.3d 1266, 1274 (10th Cir. 2005). The Court concludes that Mayfield
v. Presbyterian Hosp. Admin. and Persik v. Manpower Inc., 85 Fed. Appx. 127 (10th Cir. 2003),
have persuasive value with respect to a material issue, and will assist the Court in its disposition
of this Memorandum Opinion and Order.
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Nonetheless, the Federal Rules of Civil Procedure require a complaint to be “plausible on
its face” or face dismissal under rule 12(b)(6) for failure to state a claim upon which relief can be
granted. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “The nature of a Rule 12(b)(6) motion tests
the sufficiency of the allegations within the four corners of the complaint after taking those
allegations as true.” Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir.1994). The sufficiency of
a complaint is a question of law, and when considering a rule 12(b)(6) motion, a court must accept
as true all well-pleaded factual allegations in the complaint, view those allegations in the light
most favorable to the non-moving party, and draw all reasonable inferences in the plaintiff's favor.
See Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007)( “[O]nly if a reasonable
person could not draw . . . an inference [of plausibility] from the alleged facts would the defendant
prevail on a motion to dismiss.”); Smith v. United States, 561 F.3d 1090, 1098 (10th Cir.2009)(
“[F]or purposes of resolving a Rule 12(b)(6) motion, we accept as true all well-pleaded factual
allegations in a complaint and view these allegations in the light most favorable to the plaintiff.”)
(quoting Moore v. Guthrie, 438 F.3d 1036, 1039 (10th Cir.2006)(internal quotation marks
omitted)).
A complaint need not set forth detailed factual allegations, but a “pleading that offers labels
and conclusions or a formulaic recitation of the elements of a cause of action” is insufficient.
Ashcroft v. Iqbal, 556 U.S. at 678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements,
do not suffice.” Ashcroft v. Iqbal, 556 U.S. at 678. “Factual allegations must be enough to raise a
right to relief above the speculative level, on the assumption that all the allegations in the complaint
are true (even if doubtful in fact).” Bell Atl. Corp. v. Twombly, 550 U.S. at 555 (internal citations
omitted).
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To survive a motion to dismiss, a complaint must contain sufficient facts that, if assumed
to be true, state a claim to relief that is plausible on its face. See Bell Atl. Corp. v. Twombly, 550
U.S. at 570; Mink v. Knox, 613 F.3d 995, 1000 (10th Cir. 2010)(“To determine whether a motion
to dismiss was properly granted, we apply a plausibility standard to ascertain whether the
complaint includes enough facts that, if assumed to be true, state a claim to relief that is plausible
on its face.”). “A claim has facial plausibility when the pleaded factual content allows the court to
draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. at 678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. at 556). “Thus, the mere
metaphysical possibility that some plaintiff could prove some set of facts in support of the pleaded
claims is insufficient; the complainant must give the court reason to believe that this plaintiff has
a reasonable likelihood of mustering factual support for these claims.” Ridge at Red Hawk, LLC
v. Schneider, 493 F.3d 1174, 1177 (10th Cir.2007).
The Tenth Circuit has held that “Iqbal establishes the importance of context to a plausibility
determination.” Gee v. Pacheco, 627 F.3d 1178, 1185 (10th Cir.2010). “‘[P]lausibility’ in th[e
general pleading] context must refer to the scope of the allegations in a complaint: if they are so
general that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs ‘have
not nudged their claims across the line from conceivable to plausible.’” Robbins v. Oklahoma,
519 F.3d 1242, 1247 (10th Cir.2008)(quoting Bell Atl. Corp. v. Twombly, 550 U.S. at 570). “The
allegations must be enough that, if assumed to be true, the plaintiff plausibly (not just
speculatively) has a claim for relief.” Robbins v. Oklahoma, 519 F.3d at 1247.
ANALYSIS
While Garcia does not file a response to the MTD, the Tenth Circuit has directed that “[a]
district court may not grant a 12(b)(6) dismissal based solely on the plaintiff's failure to respond.”
Persik v. Manpower Inc., 85 Fed. Appx. 127, 130 (10th Cir. 2003)(citation omitted). Instead, the
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court “must still examine the allegations in the plaintiff's complaint and determine whether the
plaintiff has stated a claim upon which relief can be granted.” Persik v. Manpower Inc., 85 Fed.
Appx. at 130 (citation omitted). The Court independently reviews Garcia’s allegations and finds
that none of his claims survive under the Rule 12(b)(6) standard.2
I. 	GARCIA’S 	FIRST, 	FOURTH, 	FIFTH, 	AND 	FOURTEENTH 	AMENDMENT
CLAIMS MUST BE DISMISSED.
The First Amendment provides that “Congress shall make no law ... prohibiting ... the right
of the people peaceably to assemble, and petition the Government for a redress of grievances.”
U.S. C ONST . amend. I. Included among the protections the First Amendment guarantees, the
Supreme Court has recognized “a First Amendment right to associate for the purpose of speaking,
which [it has] termed a ‘right of expressive association.’” Rumsfeld v. Forum for Acad. & Inst.
Rights, Inc., 547 U.S. 47, 68 (2006)(quoting Boy Scouts of Am. v. Dale, 530 U.S. 640, 644 (2000)).
See also Grace United Methodist Church v. City of Cheyenne, 451 F.3d 643, 658 (10th
Cir.2006)(“In addition to freedom of speech, the First Amendment also implicitly protects the
corresponding freedom to expressive association.”). The First Amendment protects associational
rights in two distinct ways: (i) it “protects against unjustified government interference with an
individual's choice to enter into and maintain certain intimate or private relationships”; and (ii) it
ensures “the freedom of individuals to associate for the purpose of engaging in protected speech
or religious activities.” Bd. of Dirs. v. Rotary Club of Duarte, 481 U.S. 537, 544 (1987). See also
Grace United Methodist Church v. City of Cheyenne, 451 F.3d at 658.
2 The Court notes that Defendants are state actors and therefore any constitutional
violations must be asserted through a Section 1983 action. See Chacon v. Albuquerque Police
Dep't, 347 F. Supp. 3d 694, 700 (D.N.M. 2018). The Court does not reach this step, however,
because Garcia’s complaint fails to state any claim, including any civil rights violation.
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“The right to associate for expressive purposes is not, however, absolute,” and the Supreme
Court has cautioned that “[i]nfringements on that right may be justified by regulations adopted to
serve compelling state interests, unrelated to the suppression of ideas, that cannot be achieved
through means significantly less restrictive of associational freedoms.” Nat'l Commodity & Barter
Ass'n v. Archer, 31 F.3d 1521, 1531 (10th Cir.1994)(quoting Roberts v. U.S. Jaycees, 468 U.S.
609, 623 (1984)). 	Indeed, there is no independent First Amendment right of expressive
association; 	the 	First 	Amendment 	protects 	the 	freedom 	of 	association 	only 	in 	certain
circumstances. 	See City of Dallas v. Stanglin, 490 U.S. 19, 23 (1989)(“While the First
Amendment does not in terms protect a ‘right of association,’ our cases have recognized that it
embraces such a right in certain circumstances.”). Although an opportunity “might be described
as ‘associational’ in the common parlance,” it does not necessarily follow that it involves “the sort
of expressive association that the First Amendment has been held to protect.” City of Dallas v.
Stanglin, 490 U.S. at 24. Although “[i]t is possible to find some kernel of expression in almost
every activity a person undertakes . . . such a kernel is not sufficient to bring the activity within
the protection of the First Amendment.” City of Dallas v. Stanglin, 490 U.S. at 25. 	In City of
Dallas v. Stanglin, the Supreme Court declares that a municipal ordinance creating age-restricted
dance halls did not violate a “generalized [First Amendment] right of ‘social association’” because
such a right does not exist. 	490 U.S. at 25. 	The Supreme Court declines to extend First
Amendment protection to dance hall encounters, because “they simply do not involve the sort of
expressive association that the First Amendment has been held to protect” and “there [is] no
suggestion that these patrons ‘take positions on public questions.’” City of Dallas v. Stanglin, 490
U.S. at 24–25 (quoting Bd. of Dirs. of Rotary Int'l v. Rotary Club of Duarte, 481 U.S. at 548).
Here, Garcia does not state a claim for a First Amendment violation. He does not plead
any particularized facts that Defendants infringe his right to protected speech or private
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relationships. 	To the contrary, he narrates exercising his freedom of expression to engage with
Patterson and Rodriguez: “I met them on my front yard which I took my camera and recorded the
contact, I tried to converse with them and accused them of committing crimes and violating my
civil rights.” 	Complaint at 5. 	He does not allege that Patterson and Rodriguez retaliate or
otherwise punish him for speaking; instead, Patterson and Rodriguez say nothing and drive away.
See Complaint at 5. To the extent Garcia believes the resolution and municipal code requiring him
to pick up his litter violates his rights, the First Amendment does not protect him. Garcia offers no
further facts from which a First Amendment claim can survive.
The Fourth Amendment “protects ‘[t]he right of the people to be secure in their person,
houses, papers, and effects, against unreasonable searches and seizures.’” United States v.
Thompson, 524 F.3d 1126, 1132 (10th Cir. 2008)(quoting U.S. CONST . amend. IV). It also
commands that “no Warrants shall issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be searched, and the persons or things to be
seized.” U.S. CONST . amend. IV. “The security of one's privacy against arbitrary intrusion by the
police -- which is at the core of the Fourth Amendment -- is basic to a free society.” Wolf v.
Colorado, 338 U.S. 25, 27 (1949), overruled on other grounds by Mapp v. Ohio, 367 U.S. 643,
(1961).
For purposes of analyzing Fourth Amendment seizures, the Tenth Circuit has divided
interactions between police and citizens into three categories: (i) consensual encounters; (ii)
investigative stops; and (iii) arrests. See Oliver v. Woods, 209 F.3d 1179, 1186 (10th Cir. 2000).
A consensual encounter occurs when a police officer approaches a person to ask questions under
circumstances where a reasonable person would feel free to refuse to answer and to end the
encounter. See Oliver v. Woods, 209 F.3d at 1186. For example, officers generally may “go to a
person's home to interview him,” United States v. Daoust, 916 F.2d 757, 758 (1st Cir.1990),
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because “[i]t is not improper for a police officer to call at a particular house and seek admission
for the purpose of investigating a complaint or conducting other official business.” 1 W. LaFave,
Search and Seizure: A Treatise on the Fourth Amendment § 2.3(b), at 475 (3d ed.1996). Such
encounters generally “are not seizures within the meaning of the Fourth Amendment, and need not
be supported by suspicion of criminal wrongdoing.” Oliver v. Woods, 209 F.3d at 1186.
For Fourth Amendment purposes, houses “include a home’s curtilage, and a home’s ‘front
porch is a classic exemplar’ of a curtilage.” United States v. Carloss, 818 F.3d at 992 (10th Cir.
2013)(citation 	omitted). 	Significantly, 	the 	Supreme 	Court 	and 	Tenth 	Circuit 	“expressly
recognize[] that a police officer like any member of the public, has an implied license to enter a
home’s curtilage to knock on the front door, seeking to speak with the home’s occupants.” United
States v. Carloss, 818 F.3d at 992. 	Moreover, “No Trespassing” signs do not, by themselves,
revoke the implied license that an officer or other member of the public has to enter a home’s
curtilage and knock on the front door. See United States v. Carloss, 818 F.3d at 995.
Here, Garcia cannot state a claim for a Fourth Amendment violation. He alleges that
Defendants Patterson and Rodriguez are at his property on three occasions -- April 4, 2024, April
8, 2024, and February 3, 2025 -- to deliver papers despite the “No Trespassing” signs. See
Complaint at 4, 5. Garcia does not allege Patterson and Rodriguez enter or search his home, or
meander around the property. Rather, his allegations align with the strictures of Carloss which
permits officers to do as they did here: utilize “an implied license to approach a home, knock on a
front door, and ask to speak with the occupants,” notwithstanding the “No Trespassing” signs. 818
F.3d at 995. Thus, Defendants do not violate Garcia’s Fourth Amendment rights by approaching
his home and leaving papers on the porch. Accordingly, Garcia does not state a viable claim for a
violation of his Fourth Amendment rights.
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A suspect's Fifth Amendment right to remain silent is shielded from police inquiry only
when the suspect is in the custody of law enforcement. See Miranda v. Arizona, 384 U.S. 436,
460–61 (1966); Cooper v. Dupnik, 963 F.2d 1220, 1238 (9th Cir. 1992). The Supreme Court has
held that a police officer's demand that a suspect identify himself or provide basic biographical
information does not violate the suspect's Fifth Amendment or Miranda rights. See Hoffman v.
United States, 341 U.S. 479, 486 (1951); Hiibel v. Sixth Judicial Dist. Ct. of Nev., 542 U.S. 177,
188 (2004)(“An identity request has an immediate relation to the Terry stop's purpose, rationale,
and practical demands.”).
Here, Garcia does not state a claim for a Fifth Amendment violation. Nowhere in the
complaint does Garcia allege that he is taken into custody such that the Fifth Amendment applies.
No other facts suggest that the Defendants violate Garcia’s right to remain silent. Accordingly,
the Court concludes that Garcia does not state a plausible claim for a violation of his Fifth
Amendment rights.
The Fourteenth Amendment's Due Process Clause provides that “no State shall ... deprive
any person of life, liberty, or property without due process of law.” U.S. CONST . amend. XIV, § 1.
In general, state actors may be held liable under § 1983 only for their own affirmative acts that
violate a plaintiff's due process rights and not for third parties' acts. See Robbins v. Oklahoma,
519 F.3d at 1251 (citing DeShaney v. Winnebago Cnty., 489 U.S. 189, 197 (1989)). “[N]othing in
the language of the Due Process Clause itself requires the State to protect the life, liberty and
property of its citizens against invasion by private actors.” DeShaney v. Winnebago Cnty., 489
U.S. at 195. The Due Process Clause does not guarantee a minimal level of safety and security.
DeShaney v. Winnebago Cnty., 489 U.S. at 195. Where a plaintiff's rights are protected by a
specific provision of the Constitution, such as the Fourth Amendment, then a Fourteenth
Amendment claim for substantive due process cannot be brought. 	See Graham v. Connor, 490
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U.S. 386, 395 (1989). Because the Fourth Amendment specifically protects against unreasonable
searches and seizures, and because it provides an explicit textual source of constitutional protection
against intrusive governmental conduct, the Fourth Amendment, not the more generalized notion
of “substantive due process,” must apply. See Graham v. Connor, 490 U.S. at 395.
Here, Garcia does not state a claim for a Fourteenth Amendment violation. As before,
Garcia does not allege Defendants conduct an unlawful entry or search of his home, detain him, or
take anything from his property. Aside from being upset that Defendants disregard his “No
Trespassing” signs, as they are permitted to do, Garcia has not alleged a deprivation of life, liberty
or property. Accordingly, Garcia does not allege any facts which support the finding of a
Fourteenth Amendment violation.
Additionally, a Section 1983 claim must be personal. In other words, it “must be based upon
the violation of a plaintiff’s personal rights, and not the rights of someone else.” Archuleta v.
McShan, 897 F.2d 495, 497 (10th Cir. 1990). Therefore, to the extent Garcia tries to bring
constitutional claims on behalf of his wife or anyone else, such third-party claims fail to state a
claim.
Next, Garcia alleges several times that Defendants commit crimes to include harassment,
trespass, coercion, and stalking. 	See Complaint at 5. Criminal cases cannot be brought pro se,
however. See City of Roswell v. Smith, 2006-NMCA-040, ¶¶ 10-12, 133 P.3d 271, 273–74. The
Court’s consequent lack of jurisdiction is fatal to Garcia’s criminal claims. See City of Roswell
v. Smith, 2006-NMCA-040, ¶¶ 10-12, 133 P.3d 271, 273–74. 	Even assuming the Court could
consider their merit, Garica does not allege facts to meet the elements of stalking and harassment
under the state criminal code. See N.M. STAT . ANN . §§ 30-3A-2 to -4 (1978). These claims still
must be dismissed even assuming Garcia intends to plead these claims as torts under the Federal
Tort Claims Act (“FTCA”). The Court agrees with Defendants that the FTCA “has no place in
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this case” because Defendants “are not federal employees acting within the scope of their
employment” as required to sustain an FTCA claim. See Tolbert v. Gallup Indian Med. Ctr., 555
F. Supp. 3d 1133, 1148–1150 (D.N.M. 2021).
Finally, Garcia’s citations to 18 U.S.C. §§ 241 and 242 fail as a matter of law because these
criminal statutes do not provide a basis for civil liability, nor does Garcia plead any supporting
facts. See Romine v. Big O Tires Corp. Headquarters, 685 Fed. Appx. 516, 517 (9th Cir. 2017).
Similarly, Garcia’s citation to 42 U.S.C. § 1986, though not a criminal statute, is inapposite and
implausible on its face. See 42 U.S.C. § 1986 (Action for neglect to prevent).
IT IS ORDERED that: (i) the Defendants’ Motion to Dismiss for Failure to State a
Claim, filed March 7, 2025 (Doc. 3), is granted; and (ii) the case is dismissed with prejudice.
_________________________________
UNITED STATES DISTRICT JUDGE
Parties and counsel:
Gerardo Garcia
Carlsbad, New Mexico
Plaintiff pro se
Jonas M. Nahoum
Nancy R. Long
Long, Komer & Associates, P.A.
Santa Fe, New Mexico
Attorneys for Defendants
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