Tello v. Lea County Board of Commissioners et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
KARINA TELLO,
Plaintiff,
v. No. 2:24-cv-00390-KG-GJF
LEA COUNTY BOARD OF COUNTY
COMMISSIONERS, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
This matter is before the Court on two motions: (1) a motion to dismiss for failure to join
an indispensable party under Federal Rule of Civil Procedure 12(b)(7) filed by Defendants the
Lea County Board of County Commissioners, Corey Helton, Michael Walker, Fernando
Jimenez, and Sean Roach (“County Defendants”), Doc. 129; and (2) a motion to dismiss for
failure to state a claim under Rule 12(b)(6) filed by Defendants Sonia Estrada, Diane Jurado-
Garcia, and Aileen Vizcarra (“Law Enforcement Defendants”), Doc. 50. For the reasons below,
the Court denies the County Defendants’ Rule 12(b)(7) motion in its entirety and grants in part
the Law Enforcement Defendants’ Rule 12(b)(6) motion as to Count Ten but denies the motion
in part in all other respects.
I. Background
The Court draws this case’s background from the allegations in Plaintiff’s Third
Amended Complaint, which the Court must accept as true at the motion to dismiss stage. E.g.,
WildEarth Guardians v. U.S. Forest Serv., 2025 WL 2430383, at *1 n.1 (D.N.M.).
Plaintiff Karina Tello was a deputy with the Lea County Sherriff’s Office (“LCSO”) from
February to July 2023. Doc. 41 ¶¶ 20, 51. Estrada was Tello’s “immediate supervisor.”
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Id. ¶ 20. Estrada, Vizcarra (LCSO’s public relations officer) and Jurado-Garcia (a deputy at
LCSO) blamed Tello because “a friend of theirs” lost his job “after [Tello] reported him for
sexual harassment.” Id. ¶¶ 13, 14, 21.
In May 2023, Estrada began “spreading false rumors” about Tello “having an affair” with
“another LCSO deputy.” Id. ¶ 22. Tello “filed a complaint” with LCSO about “Estrada’s
harassment and threats.” Id. ¶ 24. “Hours after [Tello] filed [the] complaint,” Estrada, Vizcarra,
and Jurado-Garcia “devised a scheme to humiliate [Tello] and ruin her career.” Id. ¶ 25.
Estrada, Vizcarra, and Jurado-Garcia “purchased a Tracfone” to send “defamatory messages”
about Tello, thinking they “would be anonymous and untraceable.” Id. ¶ 26. Around that time,
Defendant Alyssa Porras, “a Lovington Police Department officer,” acquired an “intimate video
of [Tello].” Id. ¶ 28. Tello recorded this video “in October 2022…solely for her romantic
partner.” Id. ¶ 29. Porras “agreed” to “disseminate” the video and “offered it” to Jurado-Garcia.
Id. ¶ 30.
Around June 13, 2023, “LCSO officials” and others “began receiving the [v]ideo” “from
the Tracfone.” Id. ¶ 34. Recipients included Tello’s fiancée; Lea County Sherriff Helton; Chief
Deputy Jimenez; and Captain Roach. Id. ¶¶ 8, 10, 11, 35–36. A message accompanying the
video read: “Are these the kind of whores y’all hire at the Lea County Sheriff’s Office?” Id.
¶ 37. On June 16, 2023, Tello “was called [into] a meeting with Roach, and [was informed] that
because of the [v]ideo, she had violated LCSO’s code of ethics.” Id. ¶ 39. Tello “identified
Estrada as the likely culprit” who had disseminated the video, and “Roach agreed” “but took no
action.” Id. ¶ 41. Tello asked Roach to “notify New Mexico State Police” (“NMSP”) “so that
they could investigate” a possible criminal violation of New Mexico’s “revenge porn statute.”
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Id. ¶¶ 45, 47; see also NMSA 1978, § 30-37A-1 (Cum. Supp. 2015). Tello eventually “filed a
report with NMSP” on “July 3, 2023.” Id. ¶ 49.
Two weeks later, “NMSP requested a meeting with [Tello] to get her statement,” and
“[Tello] notified Roach.” Id. ¶ 50. The next morning, “Walker called [Tello] into his office and
fired her…because the [v]ideo violated LCSO’s code of ethics, and…[Tello] did not get along
with her coworkers.” Id. ¶ 51, 52. Tello allegedly violated “ADM 1-02-2(E),” which requires
that “deputies keep [their] private li[ves] unsullied as an example to all.” Id. ¶ 55. LCSO did not
similarly discipline a “male LCSO deputy” who “had sent an unwanted sexually explicit video to
a woman he had been talking with on a social media application.” Id. ¶ 61. The male deputy
was “exonerated” because the “incident occurred while off duty, was not repetitive, and there
was no indication that Sheriff’s Office paraphernalia was seen in the video.” Id. ¶ 62. Here,
Tello argues that she “was not even working at LCSO” “when the [v]ideo was made,” and “[t]he
recipient of the [v]ideo consented to receiving it.” Id. ¶ 63, 65. The policy manual “vest[s]
Helton with complete discretion to determine what conduct violates ADM 1-02-2(E).” Id. ¶ 66.
Estrada, Vizcarra, Jurado-Garcia, and Porras were criminally charged by NMSP with violating
the revenge porn statute in February 2024. Id. ¶ 68.
Tello filed a lawsuit in state court, and Defendants removed the case to this Court in
April 2024. Doc. 1. Tello filed her operative complaint (the Third Amended Complaint) on
April 1, 2025, alleging violations of Title VII; the Fourteenth Amendment’s due process and
equal protection clauses under § 1983; § 1985(3)’s prohibition against conspiracies to interfere
with civil rights; the First Amendment; intentional infliction of emotional distress (“IIED”); and
New Mexico’s Whistleblower Protection Act. Doc. 41. The County Defendants filed their Rule
12(b)(7) motion to dismiss on October 22, 2025, arguing that Daniel Soto and Victor Murillo,
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“former romantic partners” of Tello, are necessary and indispensable parties to the lawsuit
because “both individuals received explicit videos” from Tello “and felt animosity” toward her.
Doc. 129 at 1–2. The Law Enforcement Defendants filed their Rule 12(b)(6) motion to dismiss
Count Four, violation of the Equal Protection Clause under § 1983; Count Seven, conspiracy to
interfere with civil rights under § 1985; and Count Ten, IIED, on April 15, 2025. Doc. 50. The
Law Enforcement Defendants argue that Tello failed to state any “personal involvement” of
Estrada in her equal protection claim, that her conspiracy claim “was not the result of class-based
animus,” and that “sovereign immunity is not waived” under New Mexico’s Tort Claims Act
(“NMTCA”) for IIED liability “against a public employee.” Doc. 50 at 3, 6.
II. Legal Standards
Rule 12(b)(7) allows dismissal of a complaint for “failure to join a party under Rule 19.”
Fed. R. Civ. P. 12(b)(7). Ordinarily, the party seeking dismissal bears the burden to prove that
the absent party is necessary under Rule 19. See Citizen Band Potawatomi Indian Tribe of Okla.
v. Collier, 17 F.3d 1292, 1293 (10th Cir. 1994). When applying Rule 19, the district court “must
first determine whether the absent party is necessary to the lawsuit and, if so, whether joinder of
the absent party is feasible.” Davis v. United States, 192 F.3d 951, 957 (10th Cir. 1999). The
absent party is necessary if:
(1) in the person’s absence complete relief cannot be accorded among those already
parties, or (2) the person claims an interest relating to the subject of the action and
is so situated that the disposition of the action in the person’s absence may (i) as a
practical matter impair or impede the person’s ability to protect that interest or (ii)
leave any of the persons already parties subject to a substantial risk of incurring
double, multiple, or otherwise inconsistent obligations by reason of the claimed
interest.
Id. at 957–58. Complete relief contemplated by Rule 19(a) refers to “relief between the persons
already parties to the action,” “not as between a present party and the absent party whose joinder
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is sought.” Champagne v. Kansas City, 157 F.R.D. 66, 67 (D. Kan. 1994). A court can afford
complete relief when a party’s absence “does not prevent the plaintiffs from receiving their
requested…relief.” Sac & Fox Nation of Missouri v. Norton, 240 F.3d 1250, 1258 (10th Cir.
2001). If an absent party is found to be necessary but joinder is unfeasible, the district court
must decide “whether, in equity and good conscience, the action should proceed among the
existing parties or should be dismissed.” Fed. R. Civ. P. 19(b). If the “district court concludes
that the action cannot proceed” “it must deem the absent party indispensable and dismiss the
suit.” Davis, 192 F.3d at 959.
To survive a Rule 12(b)(6) motion to dismiss, a complaint must allege facts that, if true,
state a plausible claim for relief that is plausible on its face. See Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009). A complaint satisfies this standard if it contains sufficient factual allegations for the
court to “draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Id. When a complaint is dismissed pursuant to Rule 12(b)(6), courts generally permit plaintiffs
to file an amended complaint. See Brever v. Rockwell Int’l, 40 F.3d 1119, 1131 (10th Cir. 1994).
Section 1983 creates a cause of action for federal constitutional violations against persons
acting “under color of” state law. 42 U.S.C. § 1983; see McCarty v. Gilchrist, 646 F.3d 1281,
1285 (10th Cir. 2011). Section 1983 requires state action— i.e., that the deprivation of a
plaintiff’s rights “be caused by the exercise of some right or privilege created by the State or by a
rule of conduct imposed by the [S]tate or by a person for whom the State is responsible.” Lugar
v. Edmondson Oil Co., 457 U.S. 922, 937 (1982).
The Fourteenth Amendment’s Equal Protection Clause prohibits “a state actor from
engaging in discriminatory conduct.” Shepherd v. Robbins, 55 F.4th 810, 816 (10th Cir. 2022).
Sexual harassment “constitutes sex discrimination,” and a “state actor violates the Equal
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Protection Clause of the Fourteenth Amendment when he commits sexual harassment.” Id. at
817. Courts analyze the “nature of the relationship between the plaintiff and the defendant, and
not the specific harassing conduct…when determining whether a constitutional violation
occurred.” Id. at 818. Sexual harassment claims “exist[] for subordinates against their
supervisors in government positions.” Id. at 818. If a supervisor “participates in or consciously
acquiesces in sexual harassment,” the supervisor is liable. Woodward v. City of Worland, 977
F.2d 1392, 1401 (10th Cir. 1992); see also Bohen v. City of East Chicago, 799 F.2d 1180, 1185
(7th Cir. 1986) (“Creating abusive conditions for female employees and not for male employees
is discrimination.”).
Section 1985(3), originally passed as the Ku Klux Klan Act, states in relevant part that “if
two or more persons in any State or territory conspire or go in disguise on the highway or on the
premises of another, for the purpose of depriving, either directly or indirectly, any person or class
of persons of the equal protection of the laws, or of equal privileges and immunities under the
laws...the party so injured or deprived may have an action for the recovery of damages.” 42
U.S.C. § 1985(3). To bring a § 1985(3) claim, a plaintiff must plausibly allege a conspiracy to
interfere with their rights because of racial or other class-based animus, an act in furtherance of
the conspiracy, and a resulting injury or deprivation. See Tilton v. Richardson, 6 F.3d 683, 686
(10th Cir. 1993). The plaintiff must be a “member of a statutorily protected class, and the
actions taken by defendant must stem from plaintiff’s membership in the [protected] class.”
Yaklich v. Grand Cty., 2378 Fed. Appx 797, 802 (10th Cir. 2008); see, e.g., Nielson v. Soltis,
1994 WL 589460, at *9 (dog trainers are not members of statutorily protected class); see also
Lesley v. Bennett, 778 F. Supp. 3d 1201, 1215 (“while the Tenth Circuit has yet to make a
specific finding on whether sex is a class…discriminatory conspiracies motivated by a sex-based
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animus are within the scope of Section 1985(3)”). There “must be some…invidiously
discriminatory animus behind the conspirator’s action.” Griffin v. Breckenridge, 403 U.S. 88,
102 (1971).
States including New Mexico have passed laws prohibiting the nonconsensual
distribution of intimate images. See NMSA 1978, § 30-37A-1 (Cum. Supp. 2015). Congress
created a civil remedy for the nonconsensual distribution of intimate images as part of an
amendment to the Violence Against Women Act. 15 U.S.C. § 6851. Congress enacted the
Violence Against Women Act with the express purpose of redressing “the escalating problem of
violence against women.” S. REP. NO. 103–138, at 37 (1993).
The NMTCA is the “exclusive remedy against a governmental entity or public employee
for any tort for which immunity has been waived under the Tort Claims Act,” and “no other
claim…may be brought against a governmental entity or against the public employee or his
estate whose act or omission gave rise to the suit or claim.” NMSA 1978, § 41-4-17 (Cum.
Supp. 1976). “Public employee means an officer, employee or servant of a governmental
entity.” Id. “Unless the NMTCA contains a waiver of immunity,” a plaintiff “may not sue…for
a damage claim arising out of violations of rights under the New Mexico Constitution.” Lymon
v. Aramark Corp., 728 F. Supp. 2d 1222, 1251 (D.N.M. 2010). The statute provides exceptions
to the immunity of law enforcement officers for multiple torts, including “assault, battery, false
imprisonment,” but IIED is not included among those exceptions. NMSA 1978, § 41-4-12
(Cum. Supp. 2020).
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III. Analysis
For the reasons below, the Court (A) denies the County Defendants’ Rule 12(b)(7)
motion and (B) grants in part the Law Enforcement Defendants’ Rule 12(b)(6) motion as to
Count Ten but denies the motion in part in all other respects.
A. The Rule 12(b)(7) motion is denied.
The County Defendants argue that this case should be dismissed under Rule 12(b)(7)
because Soto and Murillo, “former romantic partners” of Tello, are indispensable parties that
have not been joined to this action. Doc. 129 at 2. The Court disagrees and denies the motion.
The County Defendants argue that, because “Soto had shared the video with Porras” and
Murillo “received videos from Plaintiff,” “in their absence, the [C]ourt cannot accord complete
relief among existing parties” for Tello’s §§ 1983 and 1985 claims. Doc. 129 at 5. This
argument lacks merit. Tello’s claims seek to “hold[] the Sheriff’s Office and the four
women…accountable” for creating a hostile work environment, sexually harassing her, and
wrongfully terminating her. Id. at 5. Soto and Murillo “had nothing to do with” the decision to
terminate Tello, they are both private actors, and Tello does not allege that they conspired with
any Defendant. Doc. 138 at 14.
The County Defendants fail to persuade the Court that complete relief may not be
accorded among the current parties for actions taken against Tello after the videos’ dissemination
without the addition of Murillo and Soto. See Rishell v. Jane Phillips Episcopal Mem’l Med.
Ctr., 94 F.3d 1407, 1411 (10th Cir. 1996) (“[T]he moving party has the burden of persuasion in
arguing for dismissal”). Murillo and Soto are not necessary parties within the terms of Rule
19(a)(1), and the County Defendants’ motion is therefore denied.
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B. The Rule 12(b)(6) motion is denied in part and granted in part.
Next, the Court denies in part and grants in part the Law Enforcement Defendants’ Rule
12(b)(6) motion to dismiss Counts Four, Seven, and Ten. Doc. 50. The Court considers each
Count below in turn.
Count Four. The Court first rejects the Law Enforcement Defendants’ arguments to
dismiss Count Four of Tello’s complaint.
Count Four alleges that Defendants violated the Fourteenth Amendment’s Equal
Protection Clause under § 1983. Doc. 41 ¶ 97. Tello alleges that Estrada, “acting under color of
law, punished [Tello] for sending an intimate video of herself” by “sexually harass[ing],
humiliat[ing], and subject[ing] [Tello] to a hostile work environment.” Id. ¶ 98, 99. The
“disparate” treatment of Tello “was motivated by a desire to enforce impermissible gender
stereotypes” and included “[m]ale deputies” “who engage in identical conduct are not subjected
to adverse employment action.” Id. ¶ 100–01.
The Law Enforcement Defendants argue that the § 1983 claim against Estrada should be
dismissed because there are no “plausible facts [alleged] demonstrating that Defendant Estrada
had any personal involvement…in the alleged violations of [Tello’s] right to equal protection.”
Doc. 50 at 3. Specifically, they argue that “[t]here are no facts asserted to suggest” that “Estrada
allegedly participated in the decision to terminate [Tello’s] employment.” Id. They argue that “a
supervisor cannot be held liable individually unless they affirmatively participated or acquiesced
in the constitutional violations.” Id.
The Court disagrees. Tello plausibly alleges in Count Four that Estrada conspired to
obtain and then disseminate the illicit video, thereby contributing to sex-based harassment and
that the harm to Tello resulted at least in part from Estrada’s actions.
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Count Seven. Next, the Law Enforcement Defendants move to dismiss Count Seven of
Tello’s complaint. Doc. 50 at 4.
Count Seven alleges that Defendants “conspired to deprive Plaintiff of the equal
protection of the laws” and caused “acts in furtherance of the conspiracy,” in violation of 42
U.S.C. § 1985. Doc. 41 ¶¶ 122, 123. The Law Enforcement Defendants argue that Count Seven
is “insufficient as a matter of law” because the alleged conspiracy “was not the result of class-
based discriminatory animus” but was instead “motivated purely by personal animus toward
[Tello].” Doc. 50 at 6. The Court, however, finds that Tello plausibly alleged sex-based animus
that survives the motion to dismiss. Section 1985(3) covers discriminatory conspiracies
motivated by sex-based animus. Lesley v. Bennett, 778 F. Supp. 3d at 1215. Here, Tello alleges
that the Law Enforcement Defendants disseminated, throughout the workplace, an intimate video
of her without her consent, along with a message reading: “Are these the kind of whores y’all
hire at the Lea County Sheriff’s Office?” Doc. 41 ¶ 37. The Violence Against Women Act’s
prohibitions against revenge porn suggest that revenge porn is, at least in part, grounded in sex-
based animus against women, see 15 U.S.C. § 6851, and the “term ‘whore’ is usually gender
specific” and “offensive when directed at a woman.” See EEOC v. Sam & Sons Produce Co.,
Inc., 872 F. Supp. 29, 35 (W.D.N.Y. 1994). Tello therefore plausibly alleges sex-based
violations of § 1985.
Count Ten. Finally, the Law Enforcement Defendants move to dismiss Count Ten of
Tello’s complaint alleging IIED under New Mexico law.
Count Ten alleges that the Law Enforcement Defendants “engaged in extreme and
outrageous conduct directed at [Tello]” causing her “extreme and severe emotional distress.”
Doc. 41 ¶¶ 154, 156. The Law Enforcement Defendants argue that, because “intentional
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infliction of emotional distress is not included in the list of torts for which immunity has been
waived” for public employees under the NMTCA, Tello’s IIED claim “fails as a matter of law.”
Doc. 50 at 6, 7.
The Court agrees that the NMTCA provides immunity to the Law Enforcement
Defendants and therefore dismisses Count Ten under Rule 12(b)(6) with prejudice. Tello’s
claims arise from the conduct of her co-workers as law enforcement officers and public
employees. Indeed, Tello concedes in her response that the Law Enforcement Defendants “were
acting within the scope of their employment” as public officials. Doc. 52 at 6. Because of that,
“[a]t this stage in the litigation, the Moving Defendants’ argument fails.” Id. at 7. Because
granting leave to amend would be futile, Count Ten is dismissed with prejudice. See Knight v.
Mooring capital Fund, LLC, 749 F.3d 1180, 1190 (10th Cir. 2014).
IV. Conclusion
The Court denies the County Defendants’ Rule 12(b)(7) motion. Doc. 129. The Court
denies in part and grants in part the Law Enforcement Defendants’ 12(b)(6) motion to dismiss.
Doc. 50. The motion is granted in part in that Count Ten is dismissed with prejudice, but the
motion is denied in all other respects.
IT IS SO ORDERED.
/s/Kenneth J. Gonzales___________________
CHIEF UNITED STATES DISTRICT JUDGE
• Please note that this document has been
electronically filed. To verify its
authenticity, please refer to the Digital File
Stamp on the NEF (Notice of Electronic
Filing) accompanying this document.
Electronically filed documents can be found
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