New Mex. Elks Ass'n v. Grisham

• Decision Date: 31 March 2022
• Docket Number: Civ. No. 21-0354 KG/LF
• Citation: 595 F.Supp.3d 1018
• Parties: The NEW MEXICO ELKS ASSOCIATION; Fraternal Order of Eagles, New Mexico State Aerie; New Mexico Loyal Order of the Moose, Plaintiffs, v. Michelle Lujan GRISHAM, Individually, Acting Under the Color of Law; and Tracie C. Collins, Individually, Acting Under the Color of Law, Defendants.
• Court: U.S. District Court — District of New Mexico

595 F.Supp.3d 1018

The NEW MEXICO ELKS ASSOCIATION; Fraternal Order of Eagles, New Mexico State Aerie; New Mexico Loyal Order of the Moose, Plaintiffs,

v.Michelle Lujan GRISHAM, Individually, Acting Under the Color of Law; and Tracie C. Collins, Individually, Acting Under the Color of Law, Defendants.

Civ. No. 21-0354 KG/LF

United States District Court, D. New Mexico.

Filed March 31, 2022

Jared Robert Vander Dussen, A. Blair Dunn, Western Agriculture, Resource and Business Advocates, LLP, Albuquerque, NM, for Plaintiffs.

Holly Agajanian, Kyle P. Duffy, Maria S. Dudley, Office of the Governor Michelle Lujan Grisham, Santa Fe, NM, for Defendants.

MEMORANDUM OPINION AND ORDER

KENNETH J. GONZALES, UNITED STATES DISTRICT JUDGE

This matter comes before the Court on DefendantsMichelle Lujan Grisham(Governor Lujan Grishm) and Tracie C. Collins’ (Secretary Collins)(collectively, "Defendants")Motion to Dismiss Plaintiffs’ Verified Complaint(Motion).(Doc. 12).The Motion is fully and timely briefed.(Docs. 18, 22).Having considered the briefing and applicable law, and for the reasons stated herein, the Court grants Defendants’ Motion to Dismiss and dismisses this case without prejudice.

I.Standard of Review

A.Motion to Dismiss Pursuant to Rule 12(b)(6)

Federal Rule of Civil Procedure 12(b)(6) allows a court to dismiss a complaint for "failure to state a claim upon which relief can be granted."Fed. R. Civ. P. 12(b)(6).In ruling on a Rule 12(b)(6) motion to dismiss, the court does not "weigh potential evidence that the parties might present at trial, but [assesses] whether the plaintiff's complaint alone is legally sufficient to state a claim for which relief may be granted."VDARE Found. v. City of Colorado Springs , 11 F.4th 1151, 1158(10th Cir.2021)(quotingDubbs v. Head Start, Inc. , 336 F.3d 1194, 1201(10th Cir.2003) ).

"To survive a motion to dismiss, the complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ "Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868(2009)(quotingBell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929(2007) ).A claim "has facial plausibility" if the plaintiff"pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged."Id.(citingTwombly , 550 U.S. at 556, 127 S.Ct. 1955 )."A plaintiff must allege sufficient facts to ‘nudge[ ][his] claims ... across the line from conceivable to plausible.’ "VDARE Found. , 11 F.4th at 1158(alterations in original)(quotingIqbal , 556 U.S. at 680, 129 S.Ct. 1937 ).

In conducting the Rule 12(b)(6) analysis, courts"begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth."Id. at 1158(quotingIqbal , 556 U.S. at 679, 129 S.Ct. 1937 )."When there are well-pleaded factual allegations" remaining, courts"assume their veracity and then determine whether they plausibly give rise to an entitlement to relief."Iqbal , 556 U.S. at 679, 129 S.Ct. 1937.While " ‘[t]he nature and specificity of the allegations required to state a plausible claim will vary based on context,’the court need not accept ‘conclusory allegations without supporting factual averments.’ "VDARE Found. , 11 F.4th at 1158(alteration in original)(internal citations omitted)."A dismissal with prejudice is appropriate where a complaint fails to state a claim under Rule 12(b)(6) and granting leave to amend would be futile."Brereton v. Bountiful City Corp. , 434 F.3d 1213, 1219(10th Cir.2006).

A claim brought under Section 1983 requires: "(1) deprivation of a federally protected right by (2) an actor acting under color of state law."VDARE Found. , 11 F.4th at 1160(quotingSchaffer v. Salt Lake City Corp. , 814 F.3d 1151, 1155(10th Cir.2016) ).A complaint that fails to adequately allege either element necessarily fails to state a claim upon which relief can be granted.

B.Defense of Qualified Immunity

Defendants raise the defense of qualified immunity with respect to Plaintiffs’ claims brought against them in their individual capacities for money damages."The doctrine of qualified immunity protects government officials ‘from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’ "Pearson v. Callahan , 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565(2009)(quotingHarlow v. Fitzgerald , 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396(1982) ).Qualified immunity serves to balance "two important interests—the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably."Id.

Qualified immunity "protects ‘all but the plainly incompetent or those who knowingly violate the law.’ "White v. Pauly , 580 U.S. 73, 137 S. Ct. 548, 551, 196 L.Ed.2d 463(2017)(quotingMullenix v. Luna , 577 U.S. 7, 12, 136 S.Ct. 305, 193 L.Ed.2d 255(2015) ).To overcome a qualified immunity defense, "the onus is on the plaintiff to demonstrate ‘(1) that the official violated a statutory or constitutional right, and(2) that the right was clearly established at the time of the challenged conduct.’ "Quinn v. Young , 780 F.3d 998, 1004(10th Cir.2015)(quotingAshcroft v. al-Kidd , 563 U.S. 731, 735, 131 S.Ct. 2074, 179 L.Ed.2d 1149(2011) ).Courts may address the prongs in any order.Id.

"In order for a constitutional right to be clearly established, the contours of the rights must be sufficiently clear that a reasonable official would understand that what he is doing violates that right."Id. at 1004-05(internal quotation marks omitted)."A plaintiff may satisfy this standard by identifying an on-point Supreme Court or published Tenth Circuit decision; alternatively, the clearly established weight of authority from other courts must have found the law to be as the plaintiff maintains."Id. at 1005(internal quotation marks omitted)."To demonstrate that the law is clearly established under the ‘weight of authority’ approach, a plaintiff must identify more than ‘a handful of decisions from courts in other circuits that lend support to his claim.’ "Swanson v. Griffin , 2022 WL 570079, at *2(10th Cir.2022)(quotingChristensen v. Park City Mun. Corp. , 554 F.3d 1271, 1278(10th Cir.2009) );see alsoRoutt v. Howry , 835 Fed. Appx. 379, 385(10th Cir.2020).

While "the Supreme Court has ‘repeatedly told courts not to define clearly established law at a high level of generality,’ " it has also explained that " ‘officials can still be on notice that their conduct violates established law even in novel factual circumstances.’ "Quinn , 780 F.3d at 1005(first quoting al-Kidd , 563 U.S. at 742, 131 S.Ct. 2074; and then quoting Hope v. Pelzer , 536 U.S. 730, 741, 122 S.Ct. 2508, 153 L.Ed.2d 666(2002)).But more recent Supreme Courtcase law remarks that "the clearly established law must be ‘particularized’ to the facts of the case."White , 137 S. Ct. at 552(quotingAnderson v. Creighton , 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523(1987) ).Plaintiffs may not identify their claim through "extremely abstract rights" because this would "convert the rule of qualified immunity into a rule of virtually unqualified liability."Id.(quotingAnderson , 483 U.S. at 639, 107 S.Ct. 3034 ).Ultimately, courts must assess whether "existing precedent [has] placed the statutory or constitutional question beyond debate."Id. at 551(quotingMullenix , 577 U.S. at 12, 136 S.Ct. 305 ).

II.Factual and Procedural Background¹

PlaintiffsThe New Mexico Elks Association(Elks); Fraternal Order of Eagles, New Mexico State Aerie(Eagles); and Loyal Order of the Moose International (Moose)(collectively, "Plaintiffs") are nonprofit organizations operating several lodges or aeries throughout New Mexico.²(Doc. 1) at ¶¶ 1-3.The Elks are a "fraternal organization whose mission is to inculcate the principles of Charity, Justice, Brotherly Love and Fidelity; to recognize a belief in God; ... to quicken the spirit of American patriotism;" and to run benevolent programs.(Id. ) at ¶ 11.The Eagles are an "organization uniting fraternally in the spirit of liberty, truth, justice, and equality, to make human life more desirable by lessening its ills and promoting peace, prosperity, gladness and hope."(Id. ) at ¶ 12.The Moose is "about celebrating life together, serving those in need within [the] local community, supporting ... children at Mooseheart and standing by ... senior members at Moosehaven."(Id. ) at ¶ 13.

Since the onset of the COVID-19 pandemic in March 2020, Plaintiffs have been subject to a series of Public Health Orders (PHOs) enacted by Governor Lujan Grisham and Secretary Collins pursuant to the New Mexico Public Health Act (PHA), N.M.S.A. 1978, § 24-1-1 et seq. , the Public Health Emergency Response Act (PHERA), N.M.S.A. 1978, § 12-10A-1 et seq. , and the All Hazards Emergency Management Act (AHEMA), N.M.S.A. 1978, § 12-10-1 et seq.(Id. ) at ¶ 10.Plaintiffs were not classified as "essential businesses" in the March23, 2020 PHO and were required to cease in-person operations beginning on March 24, 2020.(Doc. 1-2)(March23, 2020 PHO).³Plaintiffs contend they were "completely prohibited ... from operating."(Doc. 1) at ¶ 15.Plaintiffs state that, as of April 16, 2021, the reasons underlying the PHOs "either never materialized or ha[ve] been successfully abated ... yet Plaintiffs’ organizations have been required to remain closed."(Id. ) at ¶ 17.

Plaintiffs allege that "other organizations that provide similar if not identical activities to Plaintiffs’ have been allowed to resume, such as golf courses, country clubs, gyms, and restaurants," but assert that fraternal organizations...