FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT March 1, 2021
_________________________________
Christopher M. Wolpert
Clerk of Court
ROGER ROMERO; GEORGE ROMERO,
Plaintiffs - Appellants,
v. No. 19-2165
(D.C. No. 2:18-CV-01137-JAP-GJF)
THE BOARD OF COUNTY (D. N.M.)
COMMISSIONERS, County of Lincoln,
State of New Mexico; LINCOLN
COUNTY SHERIFF’S DEPARTMENT;
CHARLIE EVANS, Deputy of the Lincoln
County Sheriff’s Department of the County
of Lincoln, State of New Mexico;
PRESTON STONE, individually and as
Lincoln County Commissioner; ALAN P.
MOREL, Attorney at law, serving as
attorney for the Board of County
Commissioners of the County of Lincoln
County; LYNN WILLARD; DALLAS
DRAPER, Individually and as Lincoln
County Commissioner; THOMAS
STEWART, individually and as Lincoln
County Commissioner; ELAINE ALLEN,
individually and as Lincoln County
Commissioner; ERIC BURTON, guardian
ad litem,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT*
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent except under the doctrines of law of the case, res judicata, and collateral
_________________________________
Before BACHARACH, Circuit Judge, LUCERO, Senior Circuit Judge, and PHILLIPS,
Circuit Judge.
_________________________________
Roger and George Romero appeal the district court’s dismissal of their action
raising state-law tort claims and federal constitutional claims under 42 U.S.C. § 1983
against the Board of County Commissioners of Lincoln County (“the Board”) and its
individual commissioners, the Lincoln County Sheriff’s Department and one of its
deputies, and the county attorney. Exercising jurisdiction under 28 U.S.C. § 1291,
we affirm.
I
This appeal arises from the appellants’ allegation that the defendants
unlawfully prosecuted Roger Romero to take their property. Appellants own
property alongside a major highway in Lincoln County, New Mexico. Within their
community, they are known to be hoarders who place large numbers of wooden
pallets and other materials on their property. According to the appellants, it is
generally known that they suffer from mental illnesses. In particular, Roger Romero
suffers from dementia and receives Social Security due to his disability.
Over the past several years, the Board has tried to enforce County Ordinance
2016-02, regulating acceptable waste in Lincoln County, against appellants based on
the accumulation of waste on their property. On multiple occasions, appellants were
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
2
deemed incompetent and the cases were dismissed. In December 2016, Deputy
Charlie Evans of the Lincoln County Sheriff’s Office, acting at the Board’s direction,
issued a new citation to Roger Romero for violating Ordinance 2016-02. County
attorney Alan Morel (“Attorney Morel”), acting at the Board’s direction and as a
special prosecutor with the district attorney’s office, initiated criminal proceedings
based on the citation. At the trial in August 2017, no one—including Roger Romero,
his appointed counsel, Attorney Morel, or the judge—raised an issue regarding Roger
Romero’s competency. Roger Romero was found guilty and sentenced to thirty days
in jail and sixty days probation, with a condition that he clean his property and
comply with the ordinance. An appeal was not taken.
On September 22, while Roger Romero was serving his active sentence,
Attorney Morel served him with a notice and a copy of Ordinance 2016-02,
explaining that he had thirty days to remove all unlawful waste from his property or
else the property would be cleaned at his expense and the cost would constitute a lien
on the property to be enforced according to state law. When Roger Romero failed to
clean the property, the Board hired contractors to do so. In January 2018, Attorney
Morel sent Roger Romero a second notice, stating that he intended to file a Claim of
Lien on the property in the amount of $17,454.70. Attorney Morel then filed the
Claim of Lien and, in February, filed a foreclosure action, which remains pending.
In April 2018, Roger Romero, through his current counsel, filed a habeas
petition in state court, alleging that he was incompetent during his 2017 trial.
Although he had already served his sentence, he contended that the lien and
3
foreclosure action were collateral consequences of his conviction. In February 2019,
the state district court granted the writ and set aside the conviction. The state
appealed, and the matter is pending before the New Mexico Court of Appeals.
Proceedings leading to this appeal were filed in December 2018 raising state-
law tort claims and federal constitutional claims under § 1983. Appellants alleged
that Defendants, knowing of Roger Romero’s incompetence, used Ordinance 2016-02
to unlawfully prosecute him and take their property. The action was dismissed by the
district court, on the conclusion: (1) appellants failed to state a claim for relief;
(2) the commissioners, Deputy Evans, and Attorney Morel (collectively, “the
Individual Defendants”) were entitled to qualified immunity; and (3) Attorney Morel
was entitled to absolute immunity for actions taken as a prosecutor. Supplemental
jurisdiction over the state-law claims was declined and those claims were dismissed
without prejudice. This appeal was then filed by the Romeros, alleging the district
court erred in dismissing their substantive due process claims.1
1
Because they address only their substantive due process claims against the
Individual Defendants in their individual capacities, appellants have waived any
challenge to the dismissal of their: (1) procedural due process, equal protection,
takings, Eighth Amendment, and state-law claims; (2) official capacity claims against
the Individual Defendants; and (3) claims against the Board and the Sheriff’s
Department. See United States v. Walker, 918 F.3d 1134, 1151 (10th Cir. 2019)
(“[A] party’s failure to address an issue in its opening brief results in that issue being
deemed waived.”); United States v. Wooten, 377 F.3d 1134, 1145 (10th Cir. 2004)
(noting “issues adverted to in a perfunctory manner, unaccompanied by some effort
at developed argumentation” are waived (quotation omitted)).
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II
We review determinations of absolute immunity and qualified immunity de
novo. Perez v. Ellington, 421 F.3d 1128, 1133 (10th Cir. 2005) (absolute immunity);
Columbian Fin. Corp. v. Stork, 811 F.3d 390, 396 (10th Cir. 2016) (qualified
immunity). “To establish a substantive due process violation, a plaintiff must show
that the [defendants] acted in a manner so egregious, so outrageous, that it may fairly
be said to shock the contemporary conscience.” Ellis ex rel. Est. of Ellis v. Ogden
City, 589 F.3d 1099, 1101 (10th Cir. 2009) (quotation omitted).
A
Appellants contend that Attorney Morel committed prosecutorial misconduct
when he did not raise Roger Romero’s competency at trial and is, therefore, not
entitled to absolute immunity. However, a prosecutor is absolutely immune from a
§ 1983 suit for damages based on actions taken in “initiating a prosecution and in
presenting the State’s case.” Imbler v. Pachtman, 424 U.S. 409, 431 (1976). Though
such immunity may “leave the genuinely wronged defendant without civil redress
against a prosecutor whose malicious or dishonest action deprives him of liberty,” id.
at 427, absolute immunity still applies when a prosecutor withholds “information
relevant to the defense” from the court, id. at 431 n.34. Accordingly, we affirm the
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dismissal of appellants’ substantive due process claim against Attorney Morel for
actions based in his role as a prosecutor.2
B
Appellants allege that the Individual Defendants are not entitled to qualified
immunity because their conduct sufficiently shocks the conscience to support a
substantive due process claim. To overcome a defense of qualified immunity,
appellants must show “(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.”
Cummings v. Dean, 913 F.3d 1227, 1239 (10th Cir. 2019) (quotation and emphases
omitted).
We do not address whether appellants’ constitutional rights were violated
because they fail to satisfy the “clearly established” prong of qualified immunity.
See id. (noting we may address the prongs “in either order”). A right is clearly
established “if courts have previously ruled that materially similar conduct was
unconstitutional, or if a general constitutional rule already identified in the decisional
2
It is disputed whether Attorney Morel is also entitled to absolute immunity
for post-trial acts, including informing Roger Romero he had thirty days to clean the
property, assisting the Board in hiring contractors to clean up the property, filing the
Claim of Lien, and filing the foreclosure action. Attorney Morel was not afforded
absolute immunity below for the substantive due process claim based on these events.
And as we have explained, “[a]bsolute immunity does not extend to actions that are
primarily investigative or administrative in nature” and not necessary for a prosecutor
to “fulfill his function as an officer of the court.” Scott v. Hern, 216 F.3d 897, 908
(10th Cir. 2000) (quotation omitted). But we need not decide whether Attorney
Morel was entitled to absolute immunity for post-trial acts because this claim was
properly dismissed based on qualified immunity, as discussed below.
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law applies with obvious clarity to the specific conduct at issue.” Est. of Reat v.
Rodriguez, 824 F.3d 960, 964-65 (10th Cir. 2016) (quotation, emphases, and
alteration 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.” Cox v. Glanz, 800 F.3d 1231, 1247 (10th Cir. 2015)
(quotation omitted).
No showing has been made that “existing precedent . . . placed the . . .
constitutional question beyond debate.” White v. Pauly, 137 S. Ct. 548, 551 (2017)
(quotation omitted). Appellants contend that the trial or conviction of a person who
is legally incompetent is a substantive due process violation. But they cite no case
supporting the proposition that an individual, who allegedly knows that a defendant
was found incompetent several years prior, violates the defendant’s substantive due
process rights by not raising the issue of competency when neither the defense
attorney nor the judge raises it. Further, apart from Attorney Morel, who is entitled
to absolute immunity, it is unclear how any of the Individual Defendants could be
responsible for omissions at trial, and the appellants provide no case supporting such
an extension of responsibility.
As for the post-trial deprivation of property, appellants cite only Coleman v.
Turpen, 697 F.2d 1341 (10th Cir. 1983) (per curiam). However, Coleman did not
concern a substantive due process claim and is otherwise factually distinguishable.
Coleman held that a plaintiff stated a procedural due process claim on the ground that
7
the prosecutor and sheriff sold his personal property while he was in custody and
without prior notice or adequate procedural safeguards. Id. at 1343, 1345. Unlike
the plaintiff in Coleman, appellants assert substantive due process claims.
Additionally, appellants were provided the procedural safeguards we held were
lacking in Coleman. Attorney Morel followed the procedures in the ordinance and
notified Roger Romero that he had thirty days to clean his property or else he would
be responsible for the cleanup costs.3 After appellants failed to clean the property, he
notified Roger Romero of the Claim of Lien, which was supported by documentation
for the cleanup costs, and filed the foreclosure action.4
Because no authority has been offered that clearly establishes a substantive
due process violation on these facts, the claims against the Individual Defendants
were properly dismissed on the basis of qualified immunity.
3
In their reply brief, appellants also contend that Roger Romero’s due process
rights were violated when Attorney Morel sent a notice giving him only thirty days to
clean the property, at a time when he was still in jail and his sixty-day probation,
which included a condition that he clean the property, had not yet begun. But they
did not raise this argument in their opening brief, and thus, it is waived. See M.D.
Mark, Inc. v. Kerr-McGee Corp., 565 F.3d 753, 768 n.7 (10th Cir. 2009). In any
event, under the ordinance, thirty days was the most time he could have received to
cure the violation. And once released from custody, he still had over twenty days
left, more than double the ordinance’s ten-day minimum.
4
Appellants argue the Individual Defendants could have petitioned for the
appointment of a conservator under N.M. Stat. Ann. § 45-5-404 and, thus, could have
helped ensure Roger Romero’s compliance with the county’s waste ordinance. But
they cite no authority, much less clearly established law, requiring the filing of such a
petition before the Individual Defendants could enforce the ordinance. See N.M.
Stat. Ann. § 45-5-404 (noting categories of individuals who “may” file a petition).
8
III
The judgment of the district court is AFFIRMED.
Entered for the Court
Carlos F. Lucero
Senior Circuit Judge
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