KARINA TELLO v. LEA COUNTY BOARD OF COUNTY COMMISSIONERS, COREY HELTON, MICHAEL WALKER, FERNANDO JIMENEZ, SEAN ROACH, SONIA ESTRADA, DIANE JURADO-GARCIA, AILEEN VIZCARRA, ALYSSA PORRAS, DOE DEFENDANTS 1-50
No. 2:24-CV-00390-KG-GJF
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO
March 27, 2025
THIS MATTER comes before the Court on Defendants Lea County Board of County Commissioners, Corey Helton, Michael Walker, Fernando Jimenez, and Sean Roach‘s (County Defendants) Motion to Dismiss Count III of Plaintiff‘s Second Amended Complaint (Doc. 25), filed on July 30, 2024. Plaintiff Karina Tello filed her Response (Doc. 27), on August 13, 2024. County Defendants filed their Reply, (Doc. 30), on August 27, 2024. Having considered the briefing and the applicable law, the Court denies the Motion.
I. Background1
The facts giving rise to this case stem from certain law enforcement officers’ unauthorized distribution of an intimate video created by a fellow law enforcement officer. In February 2023, Plaintiff started working as a deputy at the Lea County Sheriff‘s Office (LCSO).
At the LCSO, there were at least three employees who disliked Plaintiff because they believed Plaintiff caused their friend to lose his job. Id. at 3, ¶ 21. These employees included: Defendant Sonia Estrada, a LCSO sergeant, Defendant Diane Jurado-Garcia, a LCSO deputy, and Defendant Aileen Vizcarra, a LCSO public relations officer (collectively, “LCSO Conspirators“). Id. at 2-3 ¶¶ 12-14, 21. These “LCSO Conspirators devised a scheme to humiliate Plaintiff and ruin her career.” Id. at 4, ¶ 25.
At some point, Defendant Alyssa Porras, a Lovington Police Department officer, acquired Plaintiff‘s Video and told the LCSO Conspirators as much. Id. at 4, ¶¶ 28, 30. The LCSO Conspirators told Defendant Porras they wanted to disseminate the Video, and Defendant Porras agreed. Id. at 4, ¶ 30. Prior to disseminating the Video, the LCSO Conspirators sought and obtained permission from their superiors: Defendants Michael Walker, LCSO‘s undersheriff, and Fernando Jimenez, a LCSO chief deputy. Id. at 2,4, ¶¶ 9-10, 31. Defendants “Walker and Jimenez authorized the LCSO Conspirators’ actions, and even offered to help.” Id. at 4, ¶ 31. Concerned the Video‘s distribution would be traced back to them, the LCSO Conspirators used a Tracfone—a prepaid cellular phone—to disseminate the video. Id. at 4, ¶¶ 26, 32-33.
On June 13, 2023, LCSO officials and others—including Plaintiff‘s fiancée—began receiving the Video over text message from the Tracfone. Id. at 5, ¶¶ 34-36. Plaintiff was mortified by the distribution of the Video and considered killing herself. Id. at 5, ¶ 38. Two days later, Plaintiff was called in for a meeting with Defendant Sean Roach, a LCSO captain, where—despite Plaintiff pointing out that she was the victim of revenge pornography—
No disciplinary action was taken against any of the LCSO Conspirators. Id. at 7, ¶ 59. Furthermore, Defendant Corey Helton, the Lea County Sheriff, did not notify the director of the New Mexico Law Enforcement Training Academy of his officers’ misconduct as required by the New Mexico Administrative Code. Id. at 7, ¶ 60.
Based on these events, Plaintiff brings eleven causes of action. This Motion relates to Plaintiff‘s Third Cause of Action, which claims that the LCSO violated her rights under the New Mexico Civil Rights Act. Plaintiff claims Defendants Estrada, Vizcarra, Jurado-Garcia, along with Defendants Walker and Jimenez, deprived her of the rights, privileges, or immunities secured by the New Mexico Constitution when they acquired and disseminated the Video. Id. at 9, ¶¶ 91-92. Plaintiff further claims these Defendants “acted on behalf of, under color of, or within the course and scope of, the authority of LCSO.” Id. at 10, ¶ 93. The deprivation of Plaintiff‘s rights caused her to suffer damages, including emotional distress. Id. at 10, ¶ 94.
II. Legal Standard
A. Motion to Dismiss Under Federal Rule of Civil Procedure 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.”
“To survive a motion to dismiss, a 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 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (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. (citing Twombly, 550 U.S. at 556). “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) (quoting Iqbal, 556 U.S. at 680).
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 1159 (quoting Iqbal, 556 U.S. at 679). “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. “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 1159 (alteration in original) (internal citations omitted).
III. Discussion
County Defendants argue Count III of Plaintiff‘s Second Amended Complaint should be dismissed for three reasons. (Doc. 25) at 2, 3-5. First, they argue a claim under the NMCRA can only be brought against a public body; Count III is alleged against the Sheriff‘s Office, which is not a public body. Id. at 2, 4. Second, they argue Plainitff‘s claim is prohibited under the New Mexico Civil Rights Act (NMCRA) because it arises from her employment. Id. at 2, 3-4. Third, they argue “the actions of individual employees of the County are not plausibly alleged
First, County Defendants argue Plaintiff cannot maintain her NMCRA claim against LCSO under Count III because it is not a public body. Id. at 4. County Defendants point to
Second, the Court turns to County Defendants’ argument that the plain language of the NMCRA precludes Plaintiff from bringing a claim against the Board because it “arises from” her employment. (Doc. 25) at 3. Plaintiff counters, arguing her claim does not “arise from” her employment. (Doc. 27) at 6.
The question in Bethke was whether the plaintiff, as a former employee, could bring a NMCRA claim against the defendant. Bethke, A-1-CA-40908 mem. op. at ¶ 4. The Court of Appeals held she could not because the plain language of
Although New Mexico courts have yet to define when a claim “arises from” employment in the NMCRA context, there is abundant case law interpreting when a claim “arises from” employment in the worker‘s compensation context. In the worker‘s compensation context, a claim “arises from” employment when the “causative danger [is] peculiar to the work itself and not independent of the employment relationship.” Flores v. McKay Oil Corp., 2008-NMCA-123, ¶ 10 (citing McDaniel v. City of Albuquerque, 1982-NMCA-164, ¶ 6). Put another way, a plaintiff‘s claim “arises from” employment only if it was reasonably foreseeable to the nature and manner of employment. Rodriguez v. Permian Drilling Corp., 2011-NMSC-032, ¶ 9. The Court sees no reason to depart from this established interpretation of whether a claim “arises from” employment.
Here, Plaintiff‘s injury was not a foreseeable consequence of her employment. It is not foreseeable that Plaintiff, as a deputy sheriff, would be at risk of having fellow coworkers surreptitiously acquire and widely disseminate an intimate video of herself. County Defendants do not argue otherwise. Thus, NMCRA‘s
Third, the Court addresses Defendants’ argument that Plaintiff‘s Second Amended Complaint “fails to make any plausible allegations that the ‘conspirators’ obtained and disseminated Plaintiff‘s video under color of law or in the course and scope of their authority as law enforcement officers.” (Doc. 25) at 4. The Court disagrees.
“[A]cting under color of state law requires that the defendant...exercised power ‘possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.‘” Jojola v. Chavez, 55 F.3d 488, 492-93 (10th Cir. 1995) (quoting West v. Atkins, 487 U.S. 42, 49 (1988)). This authority can be either actual or apparent. Id. at 493. (citations omitted). In the public employment context, “state employment is generally sufficient to render the defendant a state actor.” Id. (quoting Lugar v. Edmondson Oil Co., 457 U.S. 922, 935-36 n.18 (1982)). However, it is also “well settled that an otherwise private tort is not committed under color of law simply because the tortfeasor is an employee of the state.” Id. (quoting Mark v. Borough of Hatboro, 51 F.3d 1137, 1150 (3d Cir. 1995)). To demonstrate a party acted under color of state law, “there must be ‘a real nexus’ between the employee‘s use or misuse of their authority as a public employee, and the violation allegedly committed by the defendant.” Id. (citations omitted).
Here, Plaintiff alleges the LCSO Conspirators disseminated the Video only after receiving authorization from Undersheriff Walker and Chief Deputy Jimenez. The Court
IV. Conclusion
For the reasons stated above. The Court will allow Plaintiff to amend her complaint only as it relates to correcting the named defendant in Count III from the “LCSO” to the “Board“, and the Court denies Defendants’ Motion to Dismiss Count III of Plaintiff‘s Second Amended Complaint, (Doc. 25).
IT IS SO ORDERED.
/s/ KENNETH J. GONZALES2
CHIEF UNITED STATES DISTRICT JUDGE