Hernandez v. Grisham

• Decision Date: 05 November 2020
• Docket Number: No. CIV 20-0942 JB\GBW,CIV 20-0942 JB\GBW
• Citation: 499 F.Supp.3d 1013
• Parties: Clarissa HERNANDEZ; Robert Hernandez; Shannon Woodworth and David Gallegos, Plaintiffs, v. Michelle Lujan GRISHAM; Ryan Stewart; Kathyleen M. Kunkel and the State of New Mexico, Defendants.
• Court: U.S. District Court — District of New Mexico

499 F.Supp.3d 1013

Clarissa HERNANDEZ; Robert Hernandez; Shannon Woodworth and David Gallegos, Plaintiffs,

v.Michelle Lujan GRISHAM; Ryan Stewart; Kathyleen M. Kunkel and the State of New Mexico, Defendants.

No. CIV 20-0942 JB\GBW

United States District Court, D. New Mexico.

Filed November 5, 2020

A. Blair Dunn, Jared R. Vander Dussen, Western Agriculture, Resource and Business Advocates, LLP, Albuquerque, New Mexico, Attorneys for the Plaintiffs.

Matthew L. Garcia, Chief General Counsel to Governor Michelle Lujan Grisham, Kyle P. Duffy, Maria S. Dudley, Associate General Counsel to Governor Michelle Lujan Grisham, Office of the Governor, Santa Fe, New Mexico, Attorneys for Defendants Governor Michelle Lujan Grisham, Secretary Ryan Stewart, and Secretary Kathyleen M. Kunkel.

Hector Balderas, Attorney General for the State of New Mexico, Erin Elizabeth Lecocq, Nicholas M. Sydow, Civil Appellate Chief, New Mexico Office of the Attorney General, Santa Fe, New Mexico, Attorneys for Defendant State of New Mexico.

MEMORANDUM OPINION AND ORDER ¹

JAMES O. BROWNING, UNITED STATES DISTRICT JUDGE

THIS MATTER comes before the Court on: (i) the Defendants’ Motion to Dismiss Governor Grisham, Secretary Kunkel, and Secretary Stewart, filed October 5, 2010 (Doc. 22)("Governor and Secretaries’ MTD"); and (ii) the State of New Mexico's Motion to Dismiss, filed October 5, 2020 (Doc. 23)("New Mexico's MTD"). The Court held a hearing on October 19, 2020. See Clerk's Minutes at 1, filed October 20, 2020 (Doc. 37). The primary issues are: (i) whether the Plaintiffs -- Clarissa Hernandez, Robert Hernandez, Shannon Woodworth, and David Gallegos -- have standing under Article III of the Constitution of the United States of America to sue New Mexico Governor Michelle Lujan Grisham; (ii) whether the Plaintiffs have Article III standing to sue Secretary for the New Mexico Department of Health Kathyleen M. Kunkel; (iii) whether the Plaintiffs have Article III standing to sue New Mexico Secretary of Education Ryan Stewart; (iv) whether the Plaintiffs have stated a claim for which relief can be granted under 42 U.S.C. § 1983 against Governor Grisham; and (v) whether the Plaintiffs have stated a claim for which relief can be granted under § 1983 against Secretary Kunkel. The Court concludes that that the Plaintiffs lack standing as to Secretary Kunkel,² but have standing to sue Governor Grisham and Secretary Stewart. The Court also concludes that the Plaintiffs have stated a claim for which relief can be granted under § 1983 against Governor Grisham. Accordingly, the Court grants the Governor and Secretaries’ MTD with respect to Secretary Kunkel, but denies the Governor and Secretaries’ MTD with respect to Governor Grisham and Secretary Stewart. The Court also grants New Mexico's MTD, because the Plaintiffs voluntarily dismissed New Mexico. See Stipulation of Voluntary Rule 41 Dismissal of the State of New Mexico, filed October 12, 2020 (Doc. 26)(voluntarily dismissing New Mexico "with prejudice as to Counts I and II of the Amended Complaint (ECF No. 4) and without prejudice as to Count III").

FACTUAL BACKGROUND

The Governor and Secretaries have filed a motion to dismiss under rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. See Governor and Secretaries’ MTD at 1. Rule 12(b)(1) motions to dismiss "generally take one of two forms: (1) a facial attack on the sufficiency of the complaint's allegations as to subject-matter jurisdiction; or (2) a challenge to the actual facts upon which subject-matter jurisdiction is based." Ruiz v. McDonnell, 299 F.3d 1173, 1180 (10th Cir. 2002). On a facial attack, the Court must consider the complaint's allegations to be true. See Ruiz v. McDonnell, 299 F.3d at 1180. By contrast, on a factual attack, the Court may refer to evidence outside the pleadings. See Holt v. United States, 46 F.3d 1000, 1003 (10th Cir. 1995) (citations omitted); World Fuel Servs., Inc. v. Nambe Pueblo Dev. Corp., 362 F. Supp. 3d 1021, 1086-87 (D.N.M. 2019) (Browning, J.). Further, in a factual rule 12(b)(1) motion, "no presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims." Williamson v. Tucker, 645 F.2d 404, 412-13 (5th Cir. 1981) (quoting Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977) ). See New Mexicans for Bill Richardson v. Gonzales, 64 F.3d 1495, 1499 (10th Cir. 1995) ; Holt v. United States, 46 F.3d 1000, 1003 (10th Cir. 1995). Here, the Governor and Secretaries have launched a factual attack under rule 12(b)(1). See Governor and Secretaries’ MTD at 1-6. The Court, accordingly, will consider facts outside the pleadings for the purposes of the rule 12(b)(1) portion of the Governor and Secretaries’ MTD.

By contrast, for the rule 12(b)(6) portion of the Governor and Secretaries’ MTD, the Court may consider 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 Court may also consider: (i) documents that the complaint incorporates by reference, see Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. at 322, 127 S.Ct. 2499 ; (ii) "documents referred to in the complaint if the documents are central to the plaintiff's claim and the parties do not dispute the documents’ authenticity," Jacobsen v. Deseret Book Co., 287 F.3d 936, 941 (10th Cir. 2002) ; and (iii) "matters of which a court may take judicial notice," Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322, 127 S.Ct. 2499, 168 L.Ed.2d 179 (2007) ; see Armstrong v. N.M. Disability Det. Servs., 278 F. Supp. 3d 1193, 1201 n.3 (D.N.M. 2017) (Browning, J.)(concluding that the Court could consider notices attached to the motion and not to the complaint, because the complaint referenced them, their adequacy was central to the plaintiffs’ claims, and their authenticity was unquestioned). See also Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. at 322, 127 S.Ct. 2499 ("[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."). Consequently, the Court will provide a bifurcated facts section in this opinion. The first subsection will summarize the facts for purposes of rule 12(b)(6), while the second subsection will summarize the facts for purposes of rule 12(b)(1).

1. Rule 12(b)(6) Factual Background.

The Court takes its facts, for the rule 12(b)(6) portion of the MTDs, from the Amended Complaint, filed September 17, 2020 (Doc. 4)("Am. Compl.").³ The Court provides these facts for background. It does not adopt them as the truth, and it recognizes that these facts are largely the Plaintiffs’ version of events.

This matter arises from claims for: (i) violation of the right to equal education without due process of law, under Article XII § 1 of the New Mexico Constitution and the Fourteenth Amendment of the United States Constitution, see Amended Complaint at 11; (ii) denial of equal protection under Article II § 18 of the New Mexico Constitution and the Fourteenth Amendment of the United States Constitution, see Amended Complaint at 12; and (iii) failure to provide a free and appropriate public education under 20 U.S.C. § 1401(8), see Amended Complaint at 13. The Plaintiffs also request that the Court "certify the classes," Amended Complaint ¶ A, at 14, and declare that: (i) the "Defendants have unlawfully denied" the Plaintiffs "a free and uniform public education without providing them due process of law," Amended Complaint ¶ B, at 15; (ii) "Defendants have unlawfully denied" the Plaintiffs "equal protection of the law without reasonable justification for doing so in an arbitrary and capricious manner," Amended Complaint ¶ C, at 16; and (iv) "the actions of the Defendants have denied students of a due and owing" free and public education "in violation" of the Individuals with Disabilities Act ("IDEA"), 20 U.S.C. § 1400 et seq., Amended Complaint ¶ D, at 15. The Plaintiffs also ask the Court to enjoin both preliminarily and permanently "Defendants from prohibiting in-person instruction without providing equal and acceptable alternatives that provide a uniform educational system that also meets critical socialization requirements." Amended Complaint ¶ E-F, at 15.

2. Rule 12(b)(1) Factual Background.

1. Plaintiffs Clarissa and Robert Hernandez are the parents of four children, ages eight to fifteen, in Lea County, New Mexico. See Am. Compl. ¶ 1, at 2; Declaration of Clarissa Hernandez in Support of Applications for a Temporary Restraining Order ¶¶ 1-9, at 1-2 (executed August 18, 2020), filed September 21, 2020 (Doc. 6-2)("Hernandez Decl.").

2. Plaintiff Shannon Woodworth is the parent of a school-aged child with special needs. See Am. Compl. ¶ 2, at 2.

3. Woodworth's child has "an individual education program (IEP)"⁴ and "has not been provided with many" of her IEP services "since school was shut down." Declaration of Shannon Woodworth in Support of Applications for a Temporary Restraining Order ¶¶ 5-6, at 2 (executed September 18, 2020), filed September 21, 2020 (Doc. 6-3)("Woodworth Decl.").

4. Woodworth's daughter has "regress[ed]" since schools closed for in person instruction and "is now failing in her courses." Woodworth Decl. ¶ 13, at 2-3.

5. Plaintiff David Gallegos is an elected representative in the New Mexico House of Representatives and is an elected member of the Board of Education for Eunice Public Schools. See Am. Compl. ¶ 3, at 2; Representative David M. Gallegos, New Mexico Legislature, https://nmlegis.gov/Members/Legislator?SponCode=HGADV (last visited Sept. 21, 2020).

6. Defendant Michelle Lujan Grisham is the Governor of New Mexico. See Am. Compl. ¶ 4, at 2; Michelle Lujan Grisham, Office of the Governor, https://www.governor.state.nm.us/our-lead...