Marker v. Dep't of Interior

• Decision Date: 23 February 2021
• Docket Number: No. 2:20-cv-00631 MV/KRS,2:20-cv-00631 MV/KRS
• Parties: LARRY MARKER, Plaintiff, v. DEPARTMENT OF THE INTERIOR, Bureau of Land Management, Pecos District; NEW MEXICO ENERGY MINERALS AND NATURAL RESOURCES, New Mexico Oil Conservation Division; and NEW MEXICO STATE LAND OFFICE, Defendants.
• Court: U.S. District Court — District of New Mexico

LARRY MARKER, Plaintiff, v. DEPARTMENT OF THE INTERIOR, Bureau of Land Management,

Pecos District; NEW MEXICO ENERGY MINERALS AND NATURAL RESOURCES,

New Mexico Oil Conservation Division; and NEW MEXICO STATE LAND OFFICE, Defendants.

No. 2:20-cv-00631 MV/KRS

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

February 23, 2021

PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

THIS MATTER is before the Court on the Motions to Dismiss filed by Defendants New Mexico State Land Office ("NM SLO") and New Mexico Oil Conservation Division ("NM OCD"). (Docs. 18 and 21). Plaintiff has filed responses to the Motions, (Docs. 22 and 25), and Defendants NM SLO and NM OCD ("State Defendants") have filed replies, (Docs. 23 and 28). The Honorable Martha Vázquez referred the case to the undersigned pursuant to 28 U.S.C. §§ 636(b)(1)(B) and (b)(3) to recommend an ultimate disposition of Plaintiff's claims. (Doc. 20). Having considered the Motions to Dismiss and briefing on the Motions, the record of the case, and relevant law, the Court finds the Motions to Dismiss are well-taken and recommends granting them.

I. Background

Plaintiff owns and operates oil and gas wells on federal and New Mexico state leases in Chaves and Eddy Counties. (Doc. 17) at 2 (Amended Complaint). Plaintiff alleges "a nefarious, planned, coordinated effort on the part of the named agencies that deprived Plaintiff of fundamental property rights, due process and fair, equal treatment." Id. at 3. He further alleges that a "continuing campaign of intimidation and harassment has resulted in an abusive boiling quagmire of investigations, audits, sanctions, fines, reviews, inspections and slander eroding Plaintiff[']s ability to properly operate his wells, maintain and manage his business." Id. Plaintiff states he filed a Federal Tort Claim with Defendant Bureau of Land Management ("BLM"), which was denied on January 28, 2020. Id. at 2.

In his Amended Complaint, Plaintiff brings seven claims:

1. Fourth Amendment Violation and Prima Facie Tort against BLM for inspections and regulatory actions regarding Plaintiff's production properties, a civil fine levied against Plaintiff, and verbal abuse by BLM agents;

2. Eighth Amendment Violation against BLM for the civil fine levied against Plaintiff;

3. Fraud against BLM and OCD regarding an order to shut two of his wells;

4. Negligence against BLM regarding the civil fine;

5. Civil Conspiracy against BLM, OCD, and SLO for targeting Plaintiff "for coercive investigative and regulatory action;"

6. Abuse of Discretion and Failure to Respond to Freedom of Information Act ("FOIA") Requests against BLM for not fully responding to Plaintiff's FOIA requests; and

7. Fifth Amendment Regulatory Taking against BLM, OCD, and SLO for depriving Plaintiff of his business, personal life, and health.

Id. at 4-11. Plaintiff asks the Court to award him "damages and compensation equal to the projected income of divested properties." Id. at 12.

In reviewing a pro se complaint, the Court liberally construes the factual allegations. See Northington v. Jackson, 973 F.2d 1518, 1520-21 (10th Cir. 1992). However, a pro se plaintiff's pleadings are judged by the same legal standards that apply to all litigants and a pro se plaintiff must abide by the applicable rules of court. Ogden v. San Juan County, 32 F.3d 452, 455 (10th Cir. 1994). The Court is not obligated to craft legal theories for the plaintiff or to supply factualallegations to support the plaintiff's claims. Nor may the Court assume the role of advocate for the pro se litigant. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).

II. Discussion

A. Jurisdiction

The State Defendants first move to dismiss Plaintiff's claims under Fed. R. Civ. P. 12(b)(1) for lack of jurisdiction. "Federal courts are courts of limited jurisdiction; they are empowered to hear only those cases authorized and defined in the Constitution which have been entrusted to them under a jurisdictional grant by Congress." Henry v. Office of Thrift Supervision, 43 F.3d 507, 511 (10th Cir. 1994) (citations omitted). As the party seeking to invoke the jurisdiction of this Court, Plaintiff bears the burden of alleging facts that support jurisdiction. See Dutcher v. Matheson, 733 F.3d 980, 985 (10th Cir. 2013) ("Since federal courts are courts of limited jurisdiction, we presume no jurisdiction exists absent an adequate showing by the party invoking federal jurisdiction.").

Plaintiff asserts three claims against the State Defendants - Fraud, Civil Conspiracy, and Fifth Amendment Regulatory Taking. (Doc. 17) at 8-10 (Claims 3, 5, and 7). He states that he brings his claims under the Federal Tort Claims Act ("FTCA") and 42 U.S.C. § 1983. Id. at 2. The Court lacks subject matter jurisdiction over any claims brought under the FTCA against the State Defendants because "[t]he United States is the only proper defendant in a federal tort claims action." Gaines v. Pearson, 516 Fed. Appx. 724, 726 (10th Cir. 2013) (concluding the district court lacked subject matter jurisdiction over plaintiff's FTCA claim against the defendant other than the United States) (citing Oxendine v. Kaplan, 241 F.3d 1272, 1275 n.4 (10th Cir. 2001)).

Title 42 Section 1983 also does not provide jurisdiction for Plaintiff's claims against the State Defendants. Section 1983 is the exclusive vehicle for vindication of substantive rights under the Constitution. Baker v. McCollan, 443 U.S. 137, 144 n. 3 (1979); Albright v. Oliver, 510 U.S. 266, 271 (1994) (Section 1983 creates no substantive rights; rather it is the means through which a plaintiff may seek redress for deprivations of rights established in the Constitution); Bolden v. City of Topeka, 441 F.3d 1129 (10th Cir. 2006). To proceed under Section 1983, a plaintiff must assert acts by government officials acting under color of law that result in a deprivation of rights secured by the United States Constitution. 42 U.S.C. § 1983; West v. Atkins, 487 U.S. 42, 48 (1988). A plaintiff must plead that each government official, through the official's own individual actions, has violated the Constitution. Ashcroft v. Iqbal, 556 U.S. 662, 676, (2009). Thus, Plaintiff must allege some personal involvement by an identified official in the alleged constitutional violation to succeed under § 1983. Fogarty v. Gallegos, 523 F.3d 1147, 1162 (10th Cir. 2008).

Plaintiff does not identify any individual official in his Amended Complaint and, instead, names NM SLO and NM OCD, which are state agencies. As such, the claims against the State Defendants are claims against the State of New Mexico and the State is not a "person" within the meaning of 42 U.S.C. § 1983. See Will v. Michigan Dept. of State Police, 491 U.S. 58, 67, 71 (1989) (explaining Section 1983 does not abrogate the states' sovereign immunity, and neither the states nor their agencies qualify as "persons" under Section 1983); see also Wood v. Milyard, 414 Fed. Appx. 103, 105 (10th Cir. 2011) (unpublished). Therefore, there is no remedy against the State under Section 1983.

In his Response to NM SLO's Motion to Dismiss, Plaintiff names two individuals - Ed Martin and Allison Marks of the SLO. (Doc. 22) at 2-3. These two individuals are not named inPlaintiff's Amended Complaint and Plaintiff does not move to amend his complaint and add them as defendants. While the Court liberally construes Plaintiff's pleadings since he is proceeding pro se, the Court cannot assert claims for Plaintiff and, in considering a motion to dismiss, the Court is "limited to assessing the legal sufficiency of the allegations contained within the four corners of the complaint." Jojola v. Chavez, 55 F.3d 499, 494 (10th Cir. 1995). Moreover, in order to state a claim for relief, a plaintiff must "make clear exactly who is alleged to have done what to whom, to provide each individual with fair notice as to the basis of the claims against him or her." Robbins v. Oklahoma, 519 F.3d 1242, 1250 (10th Cir. 2008). Plaintiff's only allegation about these two individuals is that Mr. Martin sent an email on March 28, 2017 labeling Plaintiff as a "problem operator." (Doc. 17) at 2. Plaintiff makes no allegations against Ms. Marks, and, as more fully set forth below, his statement about the email sent by Mr. Martin fails to state a claim for relief for any of the claims brought against the State Defendants. The Court, therefore, finds that Plaintiff's references to these individuals in his response brief are insufficient to establish jurisdiction over the State Defendants.

To the extent Plaintiff intends to assert claims under the New Mexico Tort Claims Act ("NMTCA"), the State Defendants argue they have not waived sovereign immunity for Plaintiff's claims. "The Eleventh Amendment to the United States Constitution bars suits for damages against a state or state agency absent congressional abrogation or waiver and consent by the state." Ross v. Bd. of Regents of the Univ. of N.M., 499 F.3d 1114, 1117 (10th Cir. 2010). Since Plaintiff's claims are not among those for which the State of New Mexico has waived sovereign immunity, the Court does not have jurisdiction to hear these claims. See N.M.S.A. 1978, § 41-4-4(A), 41-4-5 to 41-4-12 (listing claims for which the State of New Mexico has agreed to waive its sovereign immunity); Vallo v. United States, 298 F.Supp.2d 1231, 1234 (D.N.M. 2003) ("If there is no waiver of sovereign immunity, the government is immune from suit, and the court has no subject-matter jurisdiction to hear the case."); Derringer v. New Mexico, 2003-NMCA-073, ¶ 16 (explaining that "[p]rima facie tort is not included in the specific provisions of the [New Mexico] Tort Claims Act," so government entities and public employees acting within the scope of duty are immune from prima facie tort claims).

In addition, the NMTCA requires that before a plaintiff may sue the State of New Mexico for damages, the plaintiff must provide notice of intent to sue:

Every person who claims damages from the

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