H.L. Rowley v. New Mexico Human Servs. Dep't

H.L. ROWLEY, individually, and as Representative for the Estate of SANTANA E. ROWLEY, Plaintiff, v. STATE OF NEW MEXICO HUMAN SERVICES DEPARTMENT; DAVID SCRASE, Secretary for the Human Services Department, individually and in official capacity; BRENT EARNTEST, former Secretary for Human Services Department, individually and in official capacity; STATE OF NEW MEXICO CHILDREN, YOUTH AND FAMILIES DEPARTMENT; BRIAN BLALOCK, Secretary for the Children, Youth and Families Department, individually and in official capacity; MONIQUE JACOBSON, former Secretary for Children, Youth and Families Department individually and in official capacity; RACHEL KOLMAN, employee of State of New Mexico Children, Youth and Families Department, individually and in official capacity; MICHELLE RAEL, employee of State of New Mexico Children, Youth and Families Department, individually and in official capacity; CORRINA PACHECO, employee of State of New Mexico Children, Youth and Families Department, individually and in official capacity; CHRISTY OLSEN, employee of State of New Mexico Children, Youth and Families Department, individually and in official capacity; KRISTY ROYBAL, employee of State of New Mexico Children, Youth and Families Department, individually and in official capacity; MELISSA MONTOYA, employee of State of New Mexico Children, Youth and Families Department, individually and in official capacity; MICHAEL TAFOYA and WIFE LISA TAFOYA, employees or contractor of State of New Mexico Children, Youth and Families Department; KATHY COOMBS and WIFE DARAH SPENCER, spouse of Kathy Coombs, employee or contractor of State of New Mexico Children, Youth and Families Department, individually and in official capacity; ALAN MAESTAS, in individual capacity and as employee or contractor of Children, Youth and Families Department; THE OFFICE OF THE EIGHTH JUDICIAL DISTRICT ATTORNEY; DONALD GALLEGOS, Eighth Judicial District Attorney, individually and official capacity; TAOS COUNTY; TAOS COUNTY SHERIFF'S OFFICE; JERRY HOGREFE, Taos County Sheriff, individually and in official capacity; SHERIFF'S OFFICERS DOES #1-4, names unknown, individually and in their official capacities; THE TAOS NEWS; ROBIN MARTIN, Owner of the Taos News; STACI MATLOCK, Editor of the Taos News; SAGEBRUSH INN; JAMES HAIMSON, former owner of the Sagebrush Inn; JARED STEINBERG, former owner of the Sagebrush Inn, and JP TAOS LLC, current owner of Sagebrush Inn, Defendants.

No. CIV 19-0683 JB/JFR

United States District Court, D. New Mexico

October 25, 2021

H.L Rowley Taos, New Mexico Plaintiff pro se

MEMORANDUM OPINION AND ORDER

THIS MATTER comes before the Court, under 28 U.S.C § 1915 and rule 12(b)(6) of the Federal Rules of Civil Procedure, on: (i) the Plaintiff's Civil Rights Complaint Pursuant to 42 U.S.C. § 1983, filed July 24, 2019 (Doc 1)(“Complaint”); and (ii) the Plaintiff's Response to Order Partially Granting and Partially Denying filed June 2, 2021 (Doc. 20)(“Response”). Plaintiff H.L. Rowley appears pro se. For the reasons set out below, the Court will: (i) dismiss the First Cause of Action pursuant to 42 U.S.C. 1983 against (a) Defendant Taos News; (b) its owner, Defendant Robin Martin; (c) its editor, Defendant Staci Matlock; (d) Defendant the Sagebrush Inn; (e) its former owners, Defendants James Haimson and Jared Steinberg; and (f) its current owner, Defendant JP Taos LLC, without prejudice for failure to state a claim upon which relief can be granted, because Rowley does not allege that they acted under color of state law; (ii) dismiss Rowley's § 1983 claims against Defendants State of New Mexico Human Services Department (“NMHSD”), the State of New Mexico Children, Youth and Families Department (“CYFD”) and their current and former employees whom Rowley named as Defendants in their official capacities, because the State, its agencies and its employees in their official capacities, do not qualify as “persons” under § 1983; (iii) dismiss Rowley's § 1983 claims against Defendant Eighth Judicial District Attorney Donald Gallegos, because prosecutors are entitled to immunity in the performance of their prosecutorial functions; (iv) dismiss Rowley's § 1983 claims against Defendant Taos County for failure to state a claim, because Rowley does not allege facts showing that a Taos County policy or custom was a motivating force behind the alleged constitutional violations; (v) dismiss Rowley's claims against Defendant Taos County Sheriff's Office (“TCSO”), because it is not a separate suable entity; (vi) dismiss Rowley's claims against NMHSD and the CYFD for violations of the Adoption and Safe Families Act^[1] (“ASFA”), because Rowley has not identified the specific provisions of the ASFA that NMHSD and CYFD allegedly violated, and, consequently, has not given the Defendants fair notice of what Rowley's claim is; (vii) dismiss Rowley's claims pursuant to the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101, because Rowley has not alleged that: (a) Rowley or Santana have a qualifying disability; (b) Rowley requested a modification in policies, practices, or procedures; or (c) such a request was reasonable; (viii) dismiss Rowley's claims pursuant to Section 504 of the Rehabilitation Act, because Rowley does not allege that Rowley or Santana have a disability as the Rehabilitation Act, 29 U.S.C. § 705, defines; (ix) dismiss Rowley's conspiracy-to-violate-civil-rights claim against all Defendants pursuant to 42 U.S.C. § 1985(3), because there are no factual allegations tending to show agreement and concerted action between the Defendants; and (x) deny Rowley's request to appoint counsel.

FACTUAL BACKGROUND

Rowley states: “This action is brought by HL Rowley, pro se, Mother and Personal Representative of the Estate of Santana E. Rowley (‘Mom'), for civil rights violations which lead to the violent death of minor child Santana Elvira Rowley in CUFD custody on 24 July 2016.” Complaint ¶ 1, at 2. “Santana's death in the wee hours of Taos Fiestas Sunday, 24 July 2016, was ruled suicide by self-inflicted gunshot by the Taos County Sheriff's Office (TCSO) and the NM Office of the Medical Investigator (OMI).” Complaint ¶ 60, at 21.

The Defendant [CYFD] employees allegedly:

violate[d] Santana's fundamental rights by, including but not limited to: failing to provide appropriate medical and behavioral health care for existing conditions and the trauma they compounded, failing to keep Santana safe, failing to provide stability, failing to ensure fundamental privacy; separating Santana from her Mom, her brother, her family, her friends, her spirituality her cultural activities, her medical/BH care team, her educational values, her home, her pets; throwing Santana into the gutter with criminals.

Complaint ¶ 18, at 9. Regarding Defendants Office of the Eighth Judicial District Attorney and District Mr. Gallegos,

in Santana's 2014 JQ case, Gallegos prosecuted her unevenly, did not provide Mom with GAL assistance in and did not provide victims services; in Santana's CYFD case, Gallegos coordinated with CYFD to falsely accuse Rowley and did not consult with Mom regarding prosecution of Ron Thomas, thus depriving Mom and the Thomas family the opportunity for continued good relations, perhaps via the restorative justice program.

Complaint ¶ 20, at 10. Taos County Sheriff Office and Sheriff Jerry Hogrefe

completely failed to perform even basic law enforcement procedures at the scene of Santana's death; released Santana's car to tow yard immediately, thereby preventing OMI and competent investigators from conducting a professional investigation of Santana's death; endangered Santana and other adolescent lives with a policy of refusing to take missing-persons calls until a child has been missing for twelve hours; conspired with CYFD to conceal facts and evidence of Santana's death; TCSO deputies made illegal entry into the locked and posted Rowley family farm on Easter Sunday of 2017, traumatizing Mom, who suffers from PTSD . . . TCSO has also failed to provide documents responsive to two IPRA requests, one of which was regarding suicide death records in Taos County in 2016.

Complaint ¶ 21, at 10-11. Defendant Taos News “published the private fact that Santana was in CYFD custody the morning after her death in the online edition of the newspaper.” Complaint ¶ 22, at 11. Defendant Sagebrush Inn “knew Santana was being bullied, harassed, threatened, and abused by an older male co-worker and failed to provide basic workplace protections or remedies.” Complaint ¶ 23, at 11.

PROCEDURAL BACKGROUND

Rowley's seventy-one-page Complaint lists thirty-three Defendants and asserts the following: (i) “First Cause of Action (Against All Defendants For Violations of The Fourteenth Amendment to the United States Constitution)”; (ii) “Second Cause of Action (Against HSD/CYFD and Taos County/TCSO Actors for Violation of The First Amendment to the United States Constitution)”; (iii) “Third Cause of Action (Against CYFD/HSD and Taos County/TCSO Defendants for Violations of the Civil Rights act of 1964)”; (iv) “Fourth Cause of Action of Action (Against HSD/CYFD Actors for Violations of the Adoption and Safe Families Act)”; (v) “Fifth Cause of Action (Against HSD/CYFD, Taos County/TCSO, and DA Gallegos for Violations of Section 504 of the Rehabilitation Act and the Americans with Disabilities Act)”; and (vi) “Sixth Cause of Action (Against All Defendants for Conspiracy to Violate Civil Rights).” Complaint at 46 62, 64, 66, 67 (no paragraph numbering).

Rowley asserts their First Cause of Action “Against All Defendants For Violations of The Fourteenth Amendment to the United States Constitution.” Complaint at 46 (no paragraph numbering).

Defendants “CYFD/HSD Failed to Provide Santana's Medical and Behavioral Health Care, ” and “Failed to Keep...