Lowrey v. Portis et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
JARROD LOWREY,
Plaintiff,
vs. 	Civ. No. 23-372 JCH/JFR
DAVID PORTIS, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
THIS MATTER is before the Court on the Proposed Findings and Recommended
Disposition (“PFRD”) filed by United States Magistrate Judge John F. Robbenhaar on September
25, 2025. PFRD, Dkt. No. 206. As per Federal Rule of Civil Procedure 72(b)(2), objections were
due no later than October 14, 2025.1 Plaintiff Jarod Lowrey filed timely objections on October 14,
2025. See Pl.’s Obj., Dkt. No. 207. Defendants David Portis, Phillip Gallegos, and Nick Army
(collectively, “Defendants”) did not file a response in opposition to the objections and the deadline
for doing so has passed. In accordance with Rule 72(b), the Court has conducted a de novo review
of the record. After conducting its review and having thoroughly considered the Magistrate Judge’s
PFRD and the objections, the Court finds no reason either in law or fact to depart from the
Magistrate Judge’s recommendation to grant Defendants’ Motion for Summary Judgment
Dismissing Counts 2-9 (Dkt. No. 95) and to dismiss with prejudice all of Plaintiff’s federal claims.
Regarding Plaintiff’s state law claims, the Magistrate Judge sua sponte recommends their
1 Objections were due within fourteen days. See PFRD 33, Dkt. No. 206; accord Fed. R. Civ. P. 72(b)(2). However,
three additional days were added to accommodate service by mail, and accounting for the federal holiday, objections
were due October 14, 2025. See Fed. R. Civ. P. 6(a), (d).
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dismissal without prejudice on various grounds. The Court concurs in the recommendation to
dismiss without prejudice all Plaintiff’s state law claims but will modify in part the reasons for
doing so. The Court declines to exercise supplemental jurisdiction over all remaining state law
claims asserted and will dismiss them without prejudice.
I. 	BACKGROUND
Defendants filed a Motion for Summary Judgment Dismissing Counts 2-9 (Dkt. No. 95) on
March 20, 2024. Defendants moved for summary judgment on the 42 U.S.C. § 1983 claims
asserted against them as well as dismissal of Plaintiff’s claim brought under the “Civil Rights Act
of 1964 (Title VII)” in Count 2. Defs.’ Mot. 1, 10, Dkt. No. 95.
Plaintiff did not respond to the motion for summary judgment. Instead, Plaintiff filed a
Rule 56(d) Motion for Dismissal of Summary Judgement Without Prejudice (Dkt. No. 105), and a
Rule 36(a)6 and 37(a) Motion to Compel (Dkt. No. 120). In the Rule 56(d) motion, Plaintiff
asserted, among other things, that the summary judgment motion was premature because discovery
was ongoing, he had 173 outstanding discovery requests, and he could not adequately respond to
the motion until the completion of discovery. See Pl.’s Rule 56(d) Mot. 1-4, Dkt. No. 105. Plaintiff
asked the Court in the motion to compel to review specified discovery requests for sufficiency and
to impose sanctions based on Defendants’ alleged failure to respond properly to the 173 discovery
requests. Pl.’s Mot. to Compel 2-3, Dkt. No. 120.
On May 30, 2024, Judge Robbenhaar entered an Order Denying Plaintiff’s Motion to
Compel, concluding that Plaintiff failed to show the inadequacy of Defendants’ discovery
responses and that sanctions were not warranted. Order 17-18, Dkt. No. 136. Judge Robbenhaar
subsequently entered an Order Denying Plaintiff’s Motion Under Rule 56(d) on June 11, 2024,
after finding that Plaintiff did not meet his Rule 56(d) burden to identify facts not available to him
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that he expected to uncover in discovery, why such facts could not be presented at the time, the
steps he took to obtain the facts, and how additional time would allow him to do so. Order 3-4, 7,
Dkt. No. 141. Although Judge Robbenhaar gave Plaintiff 14 days to file a summary judgment
response, see id. at 7, Plaintiff instead filed a motion to reconsider the orders on the motion to
compel and Rule 56(d) motion, Pl.’s Mot. to Reconsider, Dkt. No. 144. Judge Robbenhaar entered
an Order (Dkt. No. 158), denying the motion to reconsider, which Plaintiff appealed to the Tenth
Circuit, see Notice of Appeal, Dkt. No. 159. The Tenth Circuit dismissed the appeal on October 9,
2024, determining that it lacked jurisdiction because Plaintiff attempted to appeal an order on a
non-dispositive pretrial matter. Order 2, Dkt. No. 168.
On October 15, 2024, Defendants filed a notice of completion of briefing on the motion
for summary judgment. Notice, Dkt. No. 171. The same day, Plaintiff filed objections to Judge
Robbenhaar’s May 30, 2024 Order (Dkt. No. 173), objections to his June 11, 2024 Order (Dkt.
No. 174), and a Motion to Dismiss Prior RRPD Counsel’s Summary Judgement Motion and 12(C)
Motion (Dkt. No. 172). On January 30, 2025, the undersigned judge overruled the objections and
denied the motion to dismiss the motion for summary judgment. Mem. Op. and Order 17, Dkt. No.
196. Once again, the Court allowed Plaintiff 14 days from the date of entry of the Order to respond
to the motion for summary judgment, and it warned Plaintiff that no additional extensions of time
to respond would be granted. Id. On February 14, 2025, Defendant filed a second notice of
completion of briefing (Dkt. No. 198).
Four days later, Plaintiff filed objections to this Court’s January 30, 2025 Order. Pl.’s Obj.,
Dkt. No. 199. After construing the objections as a motion to reconsider, the Court denied them on
May 7, 2025. Mem. Op. and Order 16, Dkt. No. 203. On June 2, 2025, Judge Robbenhaar entered
an Order to Show Cause, requiring Plaintiff to respond in writing within ten days explaining why
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he failed to respond to the summary judgment motion. Order 2, Dkt. No. 204. Fourteen days later,
Plaintiff filed a response, repeating his prior arguments and incorporating arguments he set forth
in his prior objections (Dkt. No. 199) and his Rule 56(d) motion, including that this Court erred in
denying his Rule 56(d) motion and that he cannot by law respond to the summary judgment motion
without the full use of discovery. Pl.’s Resp. 1-5, Dkt. No. 205. Plaintiff states his belief that filing
a response to the motion for summary judgment is premature and “would only confuse the issues
now well preserved on appeal to the higher court.” Id. at 4. He asserts that the exhibits attached to,
and the videos lodged with, his complaint reveal that the motion for summary judgment is
meritless, although he failed to cite to any portions of those exhibits or videos. See id. at 5.
On September 25, 2025, Judge Robbenhaar entered a PFRD, recommending that the
undersigned judge grant the motion for summary judgment as to Plaintiff’s federal claims brought
under 42 U.S.C. § 1983. PFRD 33, Dkt. No. 206. The PFRD further recommends that the claims
brought under the “RRPD Standards and Procedures Manual” and Title VII be dismissed with
prejudice and that Plaintiff’s claims brought under articles II and III of the New Mexico
Constitution and under the New Mexico Human Rights Act (“NMHRA”) be dismissed without
prejudice. Id. Plaintiff timely filed objections (Dkt. No. 207) to the PFRD.
II. 	STANDARD
Where a party timely objects to the magistrate judge’s proposed disposition, the Court must
conduct a de novo review of all portions of the recommendation to which the party objected and
“may accept, reject, or modify, in whole or in part, the findings or recommendations.” 28 U.S.C.
§ 636(b)(1). See also Fed. R. Civ. P. 72(b)(3) (“The district judge must determine de novo any part
of the magistrate judge’s disposition that has been properly objected to.”) (emphasis added). De
novo review requires the district judge to consider the relevant portions of the record, not merely
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to review the magistrate judge’s recommendation. In re Griego, 64 F.3d 580, 584 (10th Cir. 1995).
The Tenth Circuit follows a “firm waiver rule” whereby “timely objection to the magistrate judge’s
recommendation is a condition for appellate review.” Wardell v. Duncan, 470 F.3d 954, 958 (10th
Cir. 2006). The failure to make timely and specific objections to the magistrate judge’s PFRD
waives appellate review of both factual and legal questions. United States v. One Parcel of Real
Property, 73 F.3d 1057, 1059-60 (10th Cir. 1996).
III. 	ANALYSIS
A. The Court overrules Plaintiff’s objections related to discovery and his
Rule 56(d) motion.
In his objections, Plaintiff repeats his arguments that he cannot respond to the motion for
summary judgment without additional discovery. As the record outlined above reflects, those
issues have been extensively litigated and re-litigated in this case. This Court has already overruled
the nearly identical objections. For the reasons given in its prior Memorandum Opinions and
Orders, the Court again overrules the objections related to discovery.
B. The Court overrules Plaintiff’s objections to the facts upon which the
PFRD relies.
In addition, Plaintiff objects to the PFRD relying on facts it says are undisputed. Plaintiff
argues that the Court continues to ignore his incorporated videos and exhibits that support his case.
See Pl.’s Obj. 4, 10, Dkt. No. 207. According to Plaintiff, Judge Robbenhaar falsely claimed the
facts in the PFRD were “undisputed” when Plaintiff’s amended complaint and its incorporated
facts and videos dispute Defendants’ facts.
A party opposing a motion for summary judgment “must file a response containing a short,
concise statement of the reasons in opposition to the motion with authorities.” D. N.M. Local Rule
56.1(b). The response must also “contain a concise statement of the material facts cited by the
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movant as to which the non-movant contends a genuine issue does exist.” Id. “Each fact in dispute
must be numbered, must refer with particularity to those portions of the record upon which the
non-movant relies, and must state the number of the movant's fact that is disputed.” Id. “All
material facts set forth in the Memorandum will be deemed undisputed unless specifically
controverted.” Id. Plaintiff had numerous opportunities to file a response to the motion for
summary judgment and to cite to the evidence in the record he believes supports his position in
accordance with this District’s local rules. He repeatedly declined to do so. Judge Robbenhaar thus
followed the Court’s procedural rules in deeming the facts set forth in Defendants’ motion for
summary judgment undisputed when considering the motion for summary judgment. See Reed v.
Bennett, 312 F.3d 1190, 1195 (10th Cir. 2002) (“By failing to file a response within the time
specified by the local rule, the nonmoving party waives the right to respond or to controvert the
facts asserted in the summary judgment motion.”); D.N.M. Local Rule 56.1(b).
Plaintiff also argues that Judge Robbenhaar should have analyzed the facts of the amended
complaint and the videos against the Defendants’ assertions of fact. The Court, however, is not
required to comb the record for previously available evidence to make a party’s case for it. Adler
v. Wal-Mart Stores, Inc., 144 F.3d 664, 672 (10th Cir. 1998); In re Rumsey Land Co., LLC, 944
F.3d 1259, 1280 (10th Cir. 2019) (explaining that courts do not need to sift through the record to
find evidence in support of a party, as it is the party’s responsibility to identify it with citations to
the record).
Plaintiff also objects to the “known lie” in the PFRD regarding the safety plan. Pl.’s Obj.
10, Dkt. No. 207. The PFRD stated, “The safety plan temporarily granted full custody of N.L. to
J.R. whilst CYFD investigated A.R.’s allegations.” PFRD 5, Dkt. No. 206. Plaintiff asserts that a
CYFD safety plan has no lawful authority unless agreed to by both parties, and that the RRPD
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officers were investigating the allegations, not CYFD. See Pl.’s Obj. 10-11, Dkt. No. 207. The
Court disagrees that Judge Robbenhaar erred in his factual recitation.
As an initial matter, Defendants attached to their summary judgment motion the sworn
statements of Officer Phillip Gallegos and Sergeant Portis in which they each stated their
understanding that a CYFD safety plan had been presented to Plaintiff on June 16, 2022. Gallegos
Statement ¶¶ 7, 10-13, Dkt. No. 95-1; Portis Statement ¶ 13, Dkt. No. 95-4. Officer Gallegos
described the safety plan as allowing N.L. to stay with his mother until the safe house interview
was conducted. Gallegos Statement ¶¶ 7, 10-13, Dkt. No. 95-1. Sergeant Portis likewise described
the safety plan as saying that N.L. was to remain in J.R.’s custody temporarily, due to allegations
of sexual abuse made against Plaintiff by J.R.’s minor daughter, a concern that Plaintiff would take
N.L. out of state and not return, and an alternative concern that Plaintiff would coach N.L. prior to
his interview. Portis Statement ¶ 13, Dkt. No. 95-4. Evidence in the record thus supported the
PFRD’s description of the safety plan as temporarily granting custody of N.L. to his mother while
CYFD investigated her daughter’s allegations. PFRD 5, Dkt. No. 206.
Plaintiff argues that the safety plan was not a legitimate state document. Judge Robbenhaar,
however, was setting forth what the safety plan said in the factual background statement, not ruling
on its legal relevance in that section. He then described how the safety plan was unsigned at the
time, the caseworker stated that Plaintiff initially agreed to it verbally, and that the officers were
unsure of its enforceability. PFRD 5-6, Dkt. No. 206. He further explained that Defendants over
the course of multiple hours conferred with the parents and caseworker, and finally the judge who
issued the joint custody order, to determine how to proceed. See id. at 6-7. Later in the PFRD,
Judge Robbenhaar discussed the legal relevance of the unsigned safety plan when analyzing
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Plaintiff’s claims. See id. at 18-24. For all these reasons, the Court overrules Plaintiff’s objections
concerning the PFRD’s recitation of the facts concerning the safety plan.2
Next, Plaintiff spends five pages of his objections highlighting evidence from the videos
and allegations of his complaint for consideration by the Court regarding the safety plan. See Pl.’s
Obj. 11-15, Dkt. No. 207. Once again, Plaintiff had the opportunity to cite this evidence in a
response to the motion for summary judgment, but he failed to do so. Judge Robbenhaar did not
err in failing to comb the video evidence for facts and arguments in support of Plaintiff.
C. The Court adopts the PFRD’s recommendation to grant Defendants’
motion for summary judgment and to dismiss all the federal claims in the
case.
The Magistrate Judge’s PFRD recommends that the motion for summary judgment be
granted and that all the federal claims in the case be dismissed. Even with the lack of a response,
Judge Robbenhaar carefully considered the facts and arguments set forth in the motion for
summary judgment before determining that Defendants met their burden and summary judgment
was appropriate, as the law requires. See Reed, 312 F.3d at 1194-95 (“If the nonmoving party fails
to respond, the district court may not grant the motion without first examining the moving party's
submission to determine if it has met its initial burden of demonstrating that no material issues of
fact remain for trial and the moving party is entitled to judgment as a matter of law.”).
Having conducted its de novo review of the case, the Court finds no reason either in law
or fact to depart from the Magistrate Judge’s recommended disposition regarding the federal
claims in Counts 2-9. Defendants raised the issue of qualified immunity on all Plaintiff’s Section
1983 claims. As Judge Robbenhaar correctly explained, when a defendant raises a qualified
2 Plaintiff asserts more than error – he claims that Judge Robbenhaar put forth the “known lie” and “fictional” contents,
suggesting an ill motive on the part of Judge Robbenhaar. This assertion is clearly spurious and without basis in the
record.
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immunity defense, the burden shifts to plaintiff to show that the defendant violated a constitutional
or statutory right and that the right was clearly established at the time of the alleged violation. See
Sanchez v. Guzman, 105 F.4th 1285, 1292-94 (10th Cir. 2024). By failing to respond to the motion
for summary judgment, Plaintiff failed to meet his qualified immunity burden. Plaintiff
additionally failed in his objections to identify on-point authority from the Tenth Circuit or
Supreme Court, or the clearly established weight of authority from other courts, that gave fair
warning to Defendants that their alleged conduct was unconstitutional. After reviewing the legal
arguments de novo and considering the relevant law, the Court concludes that Defendants are
entitled to qualified immunity on all the federal claims, for the same reasons given in Judge
Robbenhaar’s thorough PFRD.
Moreover, with respect to Count 3-9, Plaintiff objected that the Counts were “well
supported with facts.” See Pl.’s Obj. 17, Dkt. No. 207. This Court addressed Plaintiff’s objections
regarding the facts supra. Plaintiff asserts one legal argument in his objections regarding Count 2
that the Court will more specifically address. Plaintiff argues that the “only difference between
both situations is the immutable difference in sex between the father and the mother,” so he met
the similarly situated pleading standard. Pl.’s Obj. 17, Dkt. No. 207. Although Plaintiff asserts in
Count 2 that the Defendants treated “father” differently on June 22, 2021, than Defendants treated
the child’s mother on March 5, 2021, he does not allege that he was treated unequally on the basis
of sex. See Am. Compl. ¶¶ 11-22, Dkt. No. 42. The Court finds that Plaintiff did not sufficiently
allege an equal protection claim based on the protected class of sex, and instead, alleged a class-
of-one equal protection claim in Count 2. The Court agrees with Judge Robbenhaar that the
undisputed facts do not establish that Plaintiff and J.R. were similarly situated or that Defendants
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lacked a rational basis for the different treatment to prevail on a class-of-one equal protection
claim. Accordingly, the Court overrules Plaintiff’s objections to Judge Robbenhaar’s legal rulings.
Nor did Plaintiff specifically object to Judge Robbenhaar’s recommendation to dismiss
Plaintiff’s claims brought under Title VII and the RRPD Standards and Procedures Manual for
failure to state a cognizable claim. See PFRD 27-28, Dkt. No. 206. But even if his objections could
be construed to contain one, Judge Robbenhaar correctly concluded that those federal claims
should be dismissed under Rule 12(b)(6).
For 	all 	the 	foregoing 	reasons, 	the 	Court 	will 	adopt 	the 	PFRD’s 	findings 	and
recommendations to dismiss Plaintiff’s federal claims asserted under Section 1983, the “RRPD
Standards and Procedures Manual,” and Title VII.
D. The Court adopts the PFRD’s recommendation to dismiss the state claims
without prejudice, but for alternative reasons.
As for the state claims asserted in Counts 2-9, Defendants did not move for summary
judgment as to those claims. Nevertheless, the Magistrate Judge sua sponte considered their merits
under Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6), which he has discretion to do. See
Hall v. Bellmon, 935 F.2d 1106, 1109-10 (10th Cir. 1991) (explaining that a court may dismiss a
complaint sua sponte when it is patently obvious the plaintiff could not prevail on facts alleged
and allowing amendment would be futile). The Magistrate Judge recommends that the Court
dismiss without prejudice the state claims asserted by Plaintiff on various grounds. First, the PFRD
recommends dismissal of Plaintiff’s NMHRA claim because the allegations do not fall within the
NMHRA’s scope and Plaintiff failed to exhaust the required administrative remedies. See PFRD
28-29, Dkt. No. 206. Judge Robbenhaar recommends that dismissal be without prejudice because
Plaintiff could, in theory, cure the failure to exhaust. Id. at 29. Next, the PFRD recommends that
Plaintiff’s claims for violation of Article II of the New Mexico Constitution, brought pursuant to
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the New Mexico Civil Rights Act (“NMCRA”), be dismissed without prejudice under Rule
12(b)(1) for lack of jurisdiction because the NMCRA does not appear to waive sovereign immunity
in federal court. See PFRD 30-31, Dkt. No. 206. Finally, the Magistrate Judge recommends that
Plaintiff’s claim for violation of Article III of the New Mexico Constitution fails to state a claim
for relief. See id. at 32-33. However, the PFRD recommends that, because the other state claims
should be dismissed without prejudice, the Court should decline to extend its supplemental
jurisdiction and dismiss this claim too without prejudice. See id.
Given that the federal claims are all dismissed, the Court’s preference is to decline
supplemental jurisdiction as to all the state claims and not consider the merits of those claims, as
the Magistrate Judge recommends regarding the Article III claim. Under 28 U.S.C. § 1367(a), “in
any civil action of which the district courts have original jurisdiction, the district courts shall have
supplemental jurisdiction over all other claims that are so related to claims in the action within
such original jurisdiction that they form part of the same case or controversy under Article III of
the United States Constitution.” A district court, however, “may decline to exercise supplemental
jurisdiction” if “the district court has dismissed all claims over which it has original jurisdiction.”
28 U.S.C. § 1367(c). “When all federal claims have been dismissed, the court may, and usually
should, decline to exercise jurisdiction over any remaining state claims.” Koch v. City of Del City,
660 F.3d 1228, 1248 (10th Cir. 2011) (quoting Smith v. City of Enid ex rel. Enid City Comm'n, 149
F.3d 1151, 1156 (10th Cir. 1998)) (emphasis added). See also United Mine Workers of America v.
Gibbs, 383 U.S. 715, 726 (1966) (“Certainly, if the federal claims are dismissed before trial, even
though not insubstantial in a jurisdictional sense, the state claims should be dismissed as well.”).
The Court’s jurisdiction over this case was based on its federal question jurisdiction.
Having dismissed all of Plaintiff’s federal claims, the Court, in its discretion, declines under 28
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U.S.C. § 1367(c)(3) to exercise supplemental jurisdiction over Plaintiff’s remaining state law
claims in Counts 2-9. Cf. United Mine Workers, 383 U.S. at 726 (“Needless decisions of state law
should be avoided both as a matter of comity and to promote justice between the parties, by
procuring for them a surer-footed reading of applicable law.”); Board of County Comm’rs v.
Geringer, 297 F.3d 1108, 1115 n.6 (10th Cir. 2002) (“district courts should dismiss state claims
without prejudice after all federal claims have been dismissed, particularly when the federal claims
are dismissed before trial”).
IT IS THEREFORE ORDERED that
1. 	Plaintiff’s objections (Dkt. No. 207) are OVERRULED.
2. 	The Magistrate Judge’s Proposed Findings and Recommended Disposition (Dkt. No.
206) is ADOPTED in part and MODIFIED in part, as explained herein. The Court
CONCURS fully in the recommended dismissal with prejudice of Plaintiff’s federal
claims. The Court further CONCURS in the recommended dismissal without prejudice
of Plaintiff’s state claims, but for modified reasons.
3. 	Defendants’ Motion for Summary Judgment Dismissing Counts 2-9 (Dkt. No. 95) is
GRANTED. All Plaintiff’s federal claims asserted in Counts 2-9 are DISMISSED
WITH PREJUDICE.
4. 	The Court declines to exercise supplemental jurisdiction over Plaintiff’s state law
claims asserted in Counts 2-9, which are DISMISSED WITHOUT PREJUDICE.
_______________________________________
SENIOR UNITED STATES DISTRICT JUDGE
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