Mata v. Anderson (760 F. Supp. 2d 1068, 2009)

MEMORANDUM OPINION AND ORDER

JAMES 0. BROWNING, District Judge.

THIS MATTER comes before the Court on the Defendant’s Motion and Brief to Dismiss Plaintiffs Complaint for Failure to Timely Serve or, In the Alternative, Motion for Judgment on the Pleadings, filed July 7, 2008 (Doc. 9) (“Motion”). The Court held a hearing on October 23, 2008. The primary issues are: (i) whether the Court should dismiss the suit for failure to timely serve when the Complaint was not served within 120 days potentially had run during the 40 days after the 120 days passed; (ii) whether the Plaintiff Juan Mata has stated the essential element of lack of probable cause for a claim for First-Amendment retaliation where a magistrate court jury found him guilty and a district court judge submitted two of three counts to a jury that acquitted him; (iii) whether Defendant Ron Anderson, a police officer who signed the criminal complaint and the underlying statement of probable cause, enjoys absolute immunity; and (iv) whether Anderson enjoys qualified immunity. The Court will excuse Mata’s failure to timely serve and will grant him an extension to complete service. The Court finds that, on the face of his Complaint, Mata has established a claim for First Amendment retaliation. The Court also finds that Anderson is not entitled to absolute or qualified immunity.

FACTUAL BACKGROUND

On a motion to dismiss, the Court must assume that the Complaint’s allegations are true. Thus, the Court sets forth the relevant facts as the Complaint alleges them. This motion, however, also involves some facts that are not ascertainable from the face of the pleadings, but which are necessary to fully understand the context of this lawsuit. The Court will therefore refer at times to facts that appear in exhibits, briefing, and in the transcript of the hearing to provide context. At the same time, the Court remains mindful of the standard for deciding a motion to dismiss.

Mata was one of several Mata family members who filed a civil-rights lawsuit on November 28, 2004. See Mata v. Briseno, No. CIV 04-1334 ACT/RLP, Complaint, filed November 28, 2004 (Doc. 1) (“First Mata case”). Mata, his brother Renee Barraza, and his mother, Gregoria, sued certain agents of the Farmington Police Department. See First Amendment Complaint for Violation of Civil Rights Under Color of State Law ¶ 7, at 2, filed June 18, 2008 (Doc. 6) (“First Amended Complaint”). The First Mata case settled a year later, on November 14, 2005. See Mata v. Briseno, the Honorable Richard L. Puglisi, United States Magistrate Judge’s Notice to Docket Clerk at 1, filed November 16, 2005 (Doc. 70) (“Settlement Notice”). The lawsuit that led to the November 2005 settlement has some relationship to this lawsuit. According to Mata, Anderson, a law enforcement officer and employee of the Farmington Police Department, became “enraged” because of the news coverage that the settlement received. First Amended Complaint ¶¶ 2 & 8, at 1-2. Motivated by a desire to retaliate against Mata for his outspoken criticism of Farmington police officers, for his protest activities outside the police station, and for the settlement he and his family members obtained in the first lawsuit, Anderson filed a criminal complaint against Juan Mata listing, among other things, criminal libel. See First Amended Complaint ¶¶ 10-13.

Although the First Amended Complaint provides little detail of the criminal proceedings that resulted from the criminal complaint, it is apparent from the briefing, exhibits, and arguments presented at the hearing, that the criminal complaint contained three counts-—-harassment, stalking, and criminal libel. Mata was tried in a Magistrate Court in San Juan County, and the magistrate jury convicted Mata on all three counts. See Exhibit E to Answer, Magistrate Verdict Forms, filed July 7, 2008 (Doc. 8-6).

Judges who are not usually trained in the law preside over municipal and magistrate courts in New Mexico. One of the safeguards against miscarriages of justice built into this structure is a defendant’s entitlement to a trial de novo in the state district court. Mata availed himself of this proceeding and sought a trial de novo in the state district court. At the district court, the district judge dismissed the criminal libel charge, finding it unconstitutional, and allowed the other two charges to proceed to the jury. See Transcript of Hearing at 15:19-25 (taken October 23, 2008) (Walker) (“Tr.”). It is to this second trial that Mata refers in his First Amended Complaint, stating: “A jury, after deliberating only a few minutes after trial, declared Plaintiff Juan Mata not guilty of all charges brought against him by Sgt. Anderson.” First Amended Complaint ¶ 20, at 4.

PROCEDURAL BACKGROUND

Mata filed this case on January 11, 2008, asserting a 42 U.S.C. § 1983 claim for alleged retaliation in violation of the First Amendment. Anderson asserts that Mata’s Complaint is premised on the impossible allegation that a desire to retaliate against Mata for the settlement of the First Mata case motivated Anderson’s alleged act of filing the criminal charges. See First Amended Complaint ¶ 10, at 3. According to Mata, this retaliation violated his First-Amendment right of free speech. See id., Count I, at 3. Mata filed his suit in this case for civil-rights violations three years to the day after the criminal charges against him were filed. See State v. Mata, M-47-MR-200500028, Farmington Magistrate Court, Copy of Docket Sheet at 1 (dated January 31, 2005). According to Anderson, the statute of limitations would have run on Mata’s claims the day that Mata filed his original complaint. Mata was required to serve Anderson by May 10, 2008. See Fed. R. Civ. 4(m) (“If a defendant is not served within 120 days after the complaint is filed, the court—on motion or on its own after notice to the plaintiff—must dismiss the action without prejudice against that defendant....”).

1. Service of the First Amended Complaint.

Mata filed his First Amended Complaint on June 18, 2008, which made no substantive change to his allegations and was identical to the original Complaint except that the Amended Complaint omitted an unnumbered prefatory paragraph that related to some other case. Mata filed the Amended Complaint outside of the 120-day period. Although Mata did not attach the criminal complaint to the Complaint or to the First Amended Complaint, the First Amended Complaint makes numerous references to that criminal complaint.

It is undisputed that Mata failed to serve Anderson within 120-days of filing the original Complaint. Mata did not served his Amended Complaint on Anderson until June 19, 2008, 160 days after he filed his Complaint and roughly 40 days after expiration of the 120-day deadline.

Anderson filed an Answer to Mata’s First Amended Complaint. See Answer to Amended Complaint, filed July 7, 2009 (Doc. 8) (“Answer”). In his Answer, Anderson raises several equitable defenses, including the defense of unclean hands, see Answer, Affirmative Defense 4, at 4; waiver and estoppel, see Answer, Affirmative Defense 5, at 4, and laches, see Answer, Affirmative Defense 7, at 5. Anderson attached the criminal complaint, along with other exhibits, to his Answer.

Anderson moves the Court for dismissal of Mata’s Complaint for failure to effect timely service under rule 12(b)(5) of the Federal Rules of Civil Procedure. See Motion at 1. Anderson alternatively requests that the Court enter judgment on the pleadings. Anderson requests that the Court dismiss Mata’s First Amended Complaint with prejudice. In support of his Motion, Anderson raises several arguments: (i) the Court should dismiss due to the lack of timely service; (ii) the Court should dismiss on the merits because Mata fails to state a claim upon which relief can be granted; (iii) the Court should dismiss because Anderson is absolutely immune from suit in this case; or (iv) the Court should dismiss the case because Anderson enjoys qualified immunity under the circumstances of this case.

2. Arguments Regarding Failure to Timely Serve and the Statute of Limitations.

Anderson points out that rule 12(b)(5) permits a party to move for the dismissal of a complaint for “insufficiency of service of process.” Motion at 2 (internal quotation marks omitted). He notes that the time limit that rule 4(m) lays out required Mata to complete service of process by May 10, 2008. Anderson quotes part of rule 4(m), and emphasizes the rule’s command that, if the 120-day deadline is missed, the Court “must dismiss the action without prejudice against the defendant____” Motion at 3 (quoting Fed. R.Civ.P. 4(m)) (internal quotation marks omitted) (emphasis added).

Anderson admits that the original filing came within the applicable statute of limitations and that Mata’s filing the lawsuit tolled the statute of limitations for the 120-day period that rule 4(m) provides for effectuating service of process. See Motion at 3. Anderson argues, however, that, although the statute of limitations is tolled during the 120-period, once the 120 days have passed, the clock on the statute of limitations resumes and the statute of limitations again becomes applicable. See id. Anderson insists that the clock began running on Mata’s claims on the day that the 120-day period expired and that, shortly thereafter, the limitations period ran out. According to Anderson, ' the result of Mata’s missing the deadline for service of process, and the application of the statute of limitations, is to bar Mata’s lawsuit. See id.

Although this result appears harsh, Anderson asks the Court to dismiss Mata’s claim and allow the statute of limitations to operate to its full effect. Anderson reminds the Court that “[procedural requirements established by Congress for gaining access to the federal courts are not to be disregarded by courts out of a vague sympathy for particular litigants.” Id. (quoting Baldwin County Welcome Center v. Brown, 466 U.S. 147, 152, 104 S.Ct. 1723, 80 L.Ed.2d 196 (1984)) (internal quotation marks omitted). Moreover, Anderson points out that, “in the long run, experience teaches that strict adherence to the procedural requirements specified by the legislature is the best guarantee of evenhanded administration of the law.” Motion at 3 (quoting Mohasco Corp. v. Silver, 447 U.S. 807, 826, 100 S.Ct. 2486, 65 L.Ed.2d 532 (1980)). Thus, Anderson urges the Court to strictly adhere to procedural requirements. See Motion at 3. Anderson also calls to the Court’s attention the fact that Mata presumably knows how to serve process on a police officer, given that he has successfully sued police officers in the past, and that Mata has offered no good cause for the delay. See id.

Mata counters that Anderson was served with the summons and Complaint in the case, albeit outside the prescribed time frame. See Plaintiffs Response to Sergeant Anderson’s Motion to Dismiss for Failure to Timely Serve or in the Alternative for Judgment on the Pleadings at 2, filed July 21, 2008 (Doc. 11) (“Response”). Mata also maintains that the Court routinely issues notices to plaintiffs in civil actions advising them when a complaint has not been served and setting deadlines for service. See id. at 2. Mata states that he did not receive such a notice, but nevertheless sought to rectify the failure of service as soon as possible. See id. at 3.

Mata challenges the contention that, if the Court dismisses his claims, the statute of limitations will bar refiling by arguing that the cause of action did not accrue until his criminal conviction was invalidated. See id. at 5. Mata argues that, given that his acquittal came nearly a year after the initial filing of the criminal complaint, Mata would still be within the applicable statute of limitations and his claim would therefore not be barred. See id. at 6.

Mata also argues that by raising several equitable defenses, including the defense of unclean hands, Anderson has evoked the Court’s jurisdiction. See id. According to Mata, by Anderson’s “extensive participation in the litigation process,” Anderson has waived the right to object to lack of timely service of process. Id. Mata contends that a waiver is not unjust in this case, because Anderson is not being asked to defend himself in a distant forum, and he cannot demonstrate true prejudice from the moderate delay in the service of process. See id. at 4.

Anderson replies that Mata did not attempt to demonstrate good cause for his failure to delay. See Reply in Support of Defendant’s Motion and Brief to Dismiss Plaintiffs Complaint for Failure to Timely Serve or, In the Alternative, Motion for Judgment on the Pleadings at 2, filed July 28, 2008 (Doc. 12) (“Reply”). Anderson also disputes the suggestion that he has waived the ability to object to Mata’s failure to timely serve and maintains that he has consistently asserted the defense that Mata failed to timely serve process. See id. Anderson notes that he filed his Answer, asserting lack of personal jurisdiction for failure to serve process, less than twenty days after he was served. See Reply at 3. Anderson therefore contends that his prompt and orderly conduct in responding to Mata’s lawsuit cannot fairly constitute a waiver of the right to challenge the adequacy of service of process.

3. Arguments Regarding Dismissal on the Pleadings.

As an alternative to his argument that the Court should dismiss Mata’s claim for untimely service of process, Anderson contends that Mata fails to state a cause of action for First Amendment retaliation. See id. at 4. Anderson asks the Court to take judicial notice of the fact that criminal charges were filed in January 2005. See id. Those charges, Anderson argues, came eleven months before the November 2005 settlement which, according to Mata, caused Anderson to retaliate. See id. It is this temporal discontinuity which compelled Anderson to note in his Answer that “the realities associated with the Earth’s time-space continuum preclude any reasonable conclusion that the execution of the Statement of Probable Cause on January 11, 2005 was done ‘to retaliate against’ Plaintiff for settling [the first lawsuit] in November 2005.” Answer ¶ 10, at 2-3.

Mata attributes Anderson’s interpretation of his claim as being based on retaliation solely for the settlement of the first lawsuit as a product of inartful drafting in the First Amended Complaint. See Response at 6. Mata argues that his claim arises out of a broader allegation that Anderson retaliated against him for bringing a civil rights action and for his protest activities. See id. To the extent that the First Amended Complaint does not reflect such an allegation, Mata requests leave to amend. See id.

Anderson also argues that Mata has failed to allege lack of probable cause for the criminal complaint. See Motion at 6. Anderson contends that the Supreme Court of the United States has held lack of probable cause to be an essential element to a First Amendment retaliation claim. See id. (citing Hartman v. Moore, 547 U.S. 250, 126 S.Ct. 1695, 164 L.Ed.2d 441 (2006)). Anderson cites cases which stand for the proposition that probable cause requires less than the evidence needed for a conviction and that, even when a conviction is subsequently overturned, courts will find the existence of probable cause. See Motion at 7 (citations omitted). Anderson asserts that he had probable cause. At least, he argues, Mata has failed to allege a lack of probable cause in his First Amended Complaint. See id. at 8.

Mata states in his Response that he “does not dispute that his First Amendment Retaliation claim requires that he allege, and later prove, that the charges brought against him lacked probable cause.” Response at 7. Mata insists, however, that the municipal court did not conduct a preliminary hearing and enter a finding of probable cause. See id. Mata criticizes the municipal and magistrate courts because the judges who preside over them are not typically trained in the law. See id. He asserts that trial de novo in the district court is designed to protect the miscarriages of justice that can occur in the municipal courts under such circumstances. Thus, the conviction by the magistrate jury is not sufficient at this stage to preclude his claim. See id.

In his Reply and at the hearing, Anderson brought to the Court’s attention one federal case in which the United States Court for the Northern District of Texas held that “a conviction was prima facie evidence of probable cause in a malicious prosecution suit, notwithstanding the fact that a new trial had been granted, and was conclusive on the issue of probable cause in the absence of evidence that the conviction was obtained by improper means or upon false arrest.” Reply at 11 (citing Adcox v. Safeway Stores, Inc., 512 F.Supp. 452, 454 (N.D.Tex.1980)). Anderson also cites the Restatement (Second) of Torts § 667(1) for the proposition that “ ‘the conviction of the accused by a magistrate or trial court, although reversed by an appellate tribunal, conclusively establishes the existence of probable cause, unless the conviction was obtained by fraud, perjury or other corrupt means.’ ” Reply at 11 (quoting Restatement (Second) of Torts § 667(1)). At the hearing, Anderson also asserted that the fact that the district judge allowed two of the criminal charges to go to the jury in the de novo trial suggests that the district judge made an implicit finding that there was probable cause. See Tr. at 16:17-28 (Court, Walker).

4. Arguments Regarding Absolute Immunity.

Referring to the process by which the criminal complaint was sworn, Anderson argues that, to the extent the First Amended Complaint is predicated on him “filing” the criminal case, his role was analogous to that of a prosecutor making or participating in the decision to prosecute. Motion at 5. Accordingly, he insists that he is entitled to absolute immunity in this case. See id. Mata counters that normally, police officers are not afforded absolute immunity. See Response at 10. Moreover, he notes that in Roberts v. Kling, 144 F.3d 710, 711 (10th Cir.1998), the United States Court of Appeals for the Tenth Circuit held that a prosecutor who executed a criminal complaint by which he affirmed the truth of the facts set forth in the complaint enjoyed only qualified immunity. See Response at 11. Although Mata does not explicitly say so, the Court interprets this citation to mean that Anderson’s conduct is analogous to that of the prosecutor in Roberts v. Kling, and that Anderson is consequently entitled, at most, to qualified immunity.

5. Arguments Regarding Qualified Immunity.

As a final defense, Anderson asserts qualified immunity because Mata did not sufficiently allege violation of a constitutional right, given that the supposed retaliation upon which the claim rests occurred before the alleged speech conduct that triggered the retaliation. See Motion at 9. Further, even if a constitutional violation occurred, Anderson maintains that Mata cannot establish that a reasonable person in Anderson’s shoes would have known his conduct amounted to a constitutional violation. See id. Anderson contends that the existence of probable cause at the time of filing the criminal complaint is sufficient for him to have qualified immunity from suit. See id. Mata charges that the long and clearly established law is that the “warrant requirement is violated when a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit if the false statement is necessary to a finding of probable cause.” Response at 12 (quoting Clanton v. Cooper, 129 F.3d 1147, 1154 (10th Cir.1997)) (internal quotation marks omitted).

6. The Hearing.

At the hearing, Anderson conceded that the First Amended Complaint contains some allegations that are not rooted in the settlement. See Tr. at 12:10-13 (Walker). Specifically, he admitted that the First Amended Complaint alleges retaliation for protesting or picketing. See id. at 12:8-9 (Walker). Anderson reserved the argument, however, that, to the extent Mata’s claim relies on allegations of retaliation for the settlement, the claim must fail.

While there has been some question whether Mata was alleging a Fourth-Amendment malicious-prosecution claim, Mata clarified at the hearing that, while he wished to amend his First Amended Complaint to include a malicious-prosecution claim, the current operative Complaint does not allege such a claim. See Tr. at 26:19-21 (Mata) (“I think the First Amended Complaint as it now stands brings only the First Amendment charges. We would seek to add a Fourth Amendment.”).

Mata contended at the hearing that the conviction by the magistrate jury constituted, at most, evidence of the existence of probable cause and that the evidence created ambiguity regarding the existence of probable cause. See Tr. at 22:23 (Montoya). Anderson countered that, if there was indeed ambiguity regarding whether probable cause existed, then he would entitled to qualified immunity. See id. at 30:12-18 (Walker). At the end of the hearing, the Court also clarified that, while the parties have referenced various exhibits and evidence outside the First Amended Complaint, the Court considers this a motion to dismiss. See Tr. at 46:23-47:3 (Court, Walker).

STANDARDS FOR DISMISSAL UNDER RULE 12(c)

“After the pleadings are closed— but early enough not to delay trial—a party may move for judgment on the pleadings.” Fed.R.Civ.P. 12(c). A rule 12(c) motion is designed to provide a means of disposing of cases when the material facts are not in dispute between the parties. See Kruzits v. Okuma Mach. Tool, Inc., 40 F.3d 52, 54 (3d Cir.1994) (“Under Rule 12(c), we will not grant judgment on the pleadings unless the movant clearly establishes that no material issue of fact remains to be resolved and that he is entitled to judgment as a matter of law.”) (internal quotation marks omitted). A “[jjudgment on the pleadings should not be granted ‘unless the moving party has clearly established that no material issue of fact remains to be resolved and the party is entitled to judgment as a matter of law.’ ” Park Univ. Enterprises, Inc. v. Am. Cas. Co. of Reading, PA 442 F.3d 1239, 1244 (10th Cir.2006) (citing United States v. Any & All Radio Station Transmission Equip., 207 F.3d 458, 462 (8th Cir.2000)).

“Any party may move for judgment on the pleadings if no material facts are in dispute and the dispute can be resolved on both the pleadings and any facts of which the Court can take judicial notice.” Ramirez v. Wal-Mart Stores, Inc., 192 F.R.D. 303, 304 (D.N.M.2000) (citing Fed.R.Civ.P. 12(c)). A motion pursuant to rule 12(c) is generally treated in the same manner as a motion to dismiss under rule 12(b)(6). See Ramirez v. Wal-Mart Stores, Inc., 192 F.R.D. at 304 (citing Irish Lesbian & Gay Org. v. Giuliani, 143 F.3d 638, 644 (2d Cir.1998)). A motion for a judgment on the pleadings will be granted if the pleadings demonstrate that the moving party is entitled to judgment as a matter of law. See Ramirez v. Wal-Mart Stores, Inc., 192 F.R.D. at 304.

A court considering a motion for judgment on the pleadings should “accept all facts pleaded by the non-moving party as true and grant all reasonable inferences from the pleadings in favor of the same.” Park Univ. Enterprises, Inc. v. Am. Cas. Co. of Reading, PA, 442 F.3d at 1244. The court must view the facts presented in the pleadings and draw the inferences therefrom in the light most favorable to the nonmoving party. See Ramirez v. Wal-Mart Stores, Inc., 192 F.R.D. at 304. All of the nonmoving parties’ allegations are deemed to be true, and all of the movants’ contrary assertions are taken to be false. See Nat’l Metro. Bank v. United States, 323 U.S. 454, 456-57, 65 S.Ct. 354, 89 L.Ed. 383 (1945); Ramirez v. Dep’t of Corr., 222 F.3d 1238, 1240 (10th Cir.2000); Freeman v. Dep’t of Corr., 949 F.2d 360, 361 (10th Cir.1991).

The same standards that govern a motion to dismiss under rule 12(b)(6) also govern a motion for judgment on the pleadings under rule 12(c). See Atl. Richfield Co. v. Farm Credit Bank, 226 F.3d 1138, 1160 (10th Cir.2000). Under rule 12(b)(6), a court may dismiss a complaint for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). “The nature of a Rule 12(b)(6) motion tests the sufficiency of the allegations within the four corners of the complaint after taking those allegations as true.” Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir.1994). The sufficiency of a complaint is a question of law, and when considering and addressing a rule 12(b)(6) motion, a court must accept as true all well-pleaded factual allegations in the complaint, view those allegations in the light most favorable to the non-moving party, and draw all reasonable inferences in the plaintiffs favor. See Moore v. Guthrie, 438 F.3d 1036, 1039 (10th Cir.2006); Hous. Auth. of Kaw Tribe v. City of Ponca City, 952 F.2d 1183, 1187 (10th Cir.1991).

A complaint challenged by a rule 12(b)(6) motion to dismiss does not require detailed factual allegations, but a plaintiffs obligation to set forth the grounds of his or her entitlement to relief “requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1965, 167 L.Ed.2d 929 (2007). “Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Id. at 1965 (internal citation omitted). “[T]he Supreme Court recently ... prescribed a new inquiry for us to use in reviewing a dismissal: whether the complaint contains ‘enough facts to state a claim to relief that is plausible on its face.’ ” Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 127 S.Ct. at 1967, 1969). “The [Supreme] Court [of the United States] explained that a plaintiff must ‘nudge his claims across the line from conceivable to plausible’ in order to survive a motion to dismiss.” Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d at 1177 (quoting Bell Atl. Corp. v. Twombly, 127 S.Ct. at 1974) (alterations omitted). “Thus, the mere metaphysical possibility that some plaintiff could prove some set of facts in support of the pleaded claims is insufficient; the complaint must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims.” Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d at 1177. The Tenth Circuit has stated:

“[Plausibility” in this context must refer to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs “have not nudged their claims across the line from conceivable to plausible.” The allegations must be enough that, if assumed to be true, the plaintiff plausibly (not just speculatively) has a claim for relief.

Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir.2008) (quoting Bell Atl. Corp. v. Twombly, 127 S Ct. at 1974) (internal citations omitted).

This requirement of plausibility serves not only to weed out claims that do not (in the absence of additional allegations) have a reasonable prospect of success, but also to inform the defendants of the actual grounds of the claim against them. “Without some factual allegation in the complaint, it is hard to see how a claimant could satisfy the requirement of providing not only ‘fair notice’ of the nature of the claim, but also ‘grounds’ on which the claim rests.” [Bell Atl. Corp. v. Twombly, 127 S.Ct.] at 1965 n. 3. See Airborne Beepers & Video, Inc. v. AT & T Mobility L.L.C., 499 F.3d 663, 667 (7th Cir.2007) (“[A]t some point the factual detail in a complaint may be so sketchy that the complaint does not provide the type of notice of the claim to which the defendant is entitled under Rule 8.”). The Twombly Court was particularly critical of complaints that “mentioned no specific time, place, or person involved in the alleged conspiracies.” 127 S.Ct. at 1971 n. 10. Given such a complaint, “a defendant seeking to respond to plaintiffs’ conclusory allegations ... would have little idea where to begin.” Id.

Robbins v. Oklahoma, 519 F.3d at 1248.

In determining the sufficiency of a complaint, all well-pleaded factual allegations are to be taken as true. See Timpanogos Tribe v. Conway, 286 F.3d 1195, 1204 (10th Cir.2002). “Nevertheless, conclusory allegations without supporting factual averments are insufficient to state a claim upon which relief can be based.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991). “Moreover, in analyzing the sufficiency of the plaintiffs complaint, the court need accept as true only the plaintiffs well-pleaded factual contentions, not his conclusory allegations.” Id. Only well-pleaded facts, as distinguished from conclusory allegations, are admitted when considering a motion to dismiss for failure to state a claim upon which relief can be granted. See Smith v. Plati, 258 F.3d 1167, 1174 (10th Cir.2001).

A court must convert a motion to dismiss into a motion for summary judgment if “matters outside the pleading are presented to and not excluded by the court” and “all parties ... [are] given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.” Fed.R.Civ.P. 12(d). Facts subject to judicial notice may be considered without converting a motion to dismiss into a motion for summary judgment. See Grynberg v. Koch Gateway Pipeline Co., 390 F.3d 1276, 1279, n. 1 (10th Cir.2004) (citing 27A Fed. Proc., L.Ed. § 62:520 (2003)). Furthermore, when considering a motion to dismiss, “the court is permitted to take judicial notice of its own files and records, as well as facts which are a matter of public record.” Van Woudenberg v. Gibson, 211 F.3d 560, 568 (10th Cir.2000) abrogated on other grounds by McGregor v. Gibson, 248 F.3d 946, 955 (10th Cir.2001). A court may consider documents to which the complaint refers if the documents are central to the plaintiffs claim and the parties do not dispute the documents’ authenticity. See Jacobsen v. Deseret Book Co., 287 F.3d 936, 941-42 (10th Cir.2002). If, however, a document is not incorporated by reference or attached to the complaint, but is referred to in the complaint and is central to the plaintiffs claim, the defendant may submit an “indisputably authentic copy to the court to be considered on a motion to dismiss.” GFF Corp. v. Assoc. Wholesale Grocers, Inc., 130 F.3d 1381, 1384 (10th Cir.1997). See 5A C. Wright & A. Miller, Federal Practice & Procedure § 1327 (3d ed. 2004) (“[Wjhen the plaintiff fails to introduce a pertinent document as part of her pleading ... the defendant may introduce the document as an exhibit to a motion attacking the sufficiency of the pleading.”).

RULES 4(m) AND 12(b)(5)

While rule 4 establishes the proper procedures and timing for service of process, rule 12(b)(5) presents litigants with a mechanism for raising a defense of insufficient service of process. “Procedural requirements established by Congress for gaining access to the federal courts are not to be disregarded by courts out of a vague sympathy for particular litigants.” Baldwin County Welcome Center v. Brown, 466 U.S. at 152, 104 S.Ct. 1723. “[I]n the long run, experience teaches that strict adherence to the procedural requirements specified by the legislature is the best guarantee of evenhanded administration of the law.” Mohasco Corp. v. Silver, 447 U.S. at 826, 100 S.Ct. 2486.

1. Rule 4(m).

Anderson’s motion is styled as a motion made pursuant to rule 12(b)(5) as informed by rule 4(m). Rule 4(m) provides the time limitation—120 days—within which service of process must be executed. Rule 4(m) provides that a district court must extend the time for service if a plaintiff shows good cause. See Espinoza v. United States, 52 F.3d 838, 841 (10th Cir.1995) (holding that, upon a showing of good cause, rule 4(m)’s exception is mandatory). Furthermore, “if the plaintiff fails to show good cause, the district court must still consider whether a permissible extension of time may be warranted. At that point the district court may in its discretion either dismiss the case without prejudice or extend the time for service.” Espinoza v. United States, 52 F.3d at 841. The advisory committee notes to the 1993 amendment also state that rule 4(m) “authorizes the court to relieve a plaintiff of the consequences of an application of this subdivision even if there is no good cause shown.” Fed.R.Civ.P. 4, Advisory Committee Notes at 56 (2008).

While a dismissal for failure to timely serve is without prejudice, rule 4(m) can interact with a statute of limitations, such that the dismissal without prejudice might, upon refiling, result in a defense that the statute of limitations on the claim has run. Some federal courts have held that, although the statute of limitations is tolled during the 120-days after filing, “if a plaintiff fails to effect service during the 120 days allotted by Rule 4(m), then the statute of limitations for the underlying claim again becomes applicable, and may serve to bar the claim if the statute runs before the plaintiff files another complaint.” Ocasio v. Fashion Inst. of Tech., 86 F.Supp.2d 371, 376 (S.D.N.Y.2000). See Frasca v. United States, 921 F.2d 450, 452, 453 (2d Cir.1990).

2. Rule 12(b)(5).

Rule 12(b)(5) permits the dismissal of a complaint for “insufficiency of service of process.” “Because the requirement of personal jurisdiction represents first of all an individual right, it can, like other such rights, be waived.” Insurance Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 703, 102 S.Ct. 2099, 72 L.Ed.2d 492 (1982). Extensive participation in the litigation process may constitute acceptance of the Court’s jurisdiction over all claims and defenses. See, e.g., Datskow v. Teledyne, 899 F.2d 1298, 1303 (2d Cir.) (finding that, even though faulty-service-of-process defense was asserted in timely answer, the defendant waived objection by participating in scheduling discovery and motion practice and attending conference with magistrate), cert. denied, 498 U.S. 854, 111 S.Ct. 149, 112 L.Ed.2d 116 (1990). In Datskow v. Teledyne, the defendant attended a scheduling conference with the magistrate judge, and participated in scheduling discovery and motion practice, without mentioning defective service of process. See 899 F.2d at 1303.

The United States Court of Appeals for the Fifth Circuit has recognized the “well-established rule that parties who choose to litigate actively on the merits thereby surrender any jurisdictional objections.” PaineWebber, Inc. v. Chase Manhattan Private Bank (Switzerland), 260 F.3d 453, 459 (5th Cir.2001). Further, “a party can be held to have waived a defense listed in Rule 12(h)(1) through conduct, such as extensive participation in the discovery process or other aspects of the litigation of the case even if the literal requirements of Rule 12(h)(1) have been met....” 5C C. Wright & A. Miller, Federal Practice & Procedure § 1391 (3d ed. 2004).

3. Rule 12(h)(1).

Rule 12 sets forth the requirements for a timely challenge to the Court’s personal jurisdiction based on insufficiency of process. Pursuant to rule 12(h)(1), a party must include a defense of insufficiency of process in its first rule 12 motion or the defense is waived. Rule 12(h)(1) mandates that “[a] defense of lack of jurisdiction over the person, ... insufficiency of process, or insufficiency of service of process is waived (A) if omitted from a motion in the circumstances described in subdivision (g)....” Fed.R.Civ.P. 12(h)(1).

STATUTE OF LIMITATIONS FOR § 1983 CLAIMS

“While state law governs limitations and tolling issues, federal law determines the accrual of section 1983 claims.” Fratus v. DeLand, 49 F.3d 673, 675 (10th Cir.1995). “A civil rights action accrues when facts that would support a cause of action are or should be apparent.” Id. “In general, under the federal discovery rule, claims accrue and [t]he statute of limitations begins to run when the plaintiff knows or has reason to know of the existence and cause of the injury which is the basis of his action.” Alexander v. Oklahoma, 382 F.3d 1206, 1215 (10th Cir.2004) (internal quotations omitted), cert. denied, 544 U.S. 1044, 125 S.Ct. 2257, 161 L.Ed.2d 1080 (2005). The focus is “on whether the plaintiff knew of facts that would put a reasonable person on notice that wrongful conduct caused the harm. In this context, a plaintiff must use reasonable diligence in seeking to discover facts giving rise to a claim for relief.” Alexander v. Oklahoma, 382 F.3d at 1216 (internal citations omitted).

A three-year statute of limitations applies to Mata’s claim under 42 U.S.C. § 1983 to enforce his First-Amendment rights. Federal law borrows the three-year statute of limitations from the statute of limitations for personal injury set forth in NMSA 1978 § 37-1-8. See Wilson v. Garcia, 471 U.S. 261, 280, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985); Goodman v. Lukens Steel Co., 482 U.S. 656, 661-62, 107 S.Ct. 2617, 96 L.Ed.2d 572 (1987).

LAW REGARDING FIRST-AMENDMENT RETALIATION CLAIMS

“Official reprisal for protected speech ‘offends the Constitution [because] it threatens to inhibit exercise of the protected right.’ ” Hartman v. Moore, 547 U.S. 250, 256, 126 S.Ct. 1695, 164 L.Ed.2d 441 (2006) (quoting Crawford-El v. Britton, 523 U.S. 574, 588 n. 10, 118 S.Ct. 1584, 140 L.Ed.2d 759 (1998)). It is therefore “settled that as a general matter, the First Amendment prohibits government officials from subjecting an individual to retaliatory actions, including criminal prosecutions, for speaking out.” Hartman v. Moore, 547 U.S. at 256, 126 S.Ct. 1695 (citation omitted).

The Supreme Court of the United States has described at least two variations of First-Amendment retaliation claims. First are those claims that arise when a public employee alleges that he has been fired or otherwise punished for speech criticizing the government. See id. at 260, 126 S.Ct. 1695 (citing Pickering v. Board of Education of Township High School Dist. 205, Will Cty., 391 U.S. 563, 566-67, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968)). In such cases, the Supreme Court has explained: “[0]ur discussions of the elements of the constitutional tort do not specify any necessary details about proof of a connection between the retaliatory animus and the discharge, which will depend on the circumstances.” Hartman v. Moore, 547 U.S. at 260, 126 S.Ct. 1695. Rather, “[t]he cases have simply taken the evidence of the motive and the discharge as sufficient for a circumstantial demonstration that the one caused the other.” Id.

In contrast, when a plaintiff asserts that the retaliation for protected conduct is a criminal charge, the “constitutional tort action will differ from this standard case in two ways.” Id. First, in retaliatory prosecution cases, there is always a “distinct body of highly valuable circumstantial evidence available and apt to prove or disprove retaliatory causation, namely evidence showing whether there was or was not probable cause to bring the criminal charge.” Id. at 261, 126 S.Ct. 1695. Second, the existence of absolute prosecutorial immunity gives rise to an added layer of complexity in retaliatory prosecution suits. Specifically, § 1983 actions for retaliatory prosecution

will not be brought against the prosecutor, who is absolutely immune from liability for the decision to prosecute.... [I]nstead, the defendant will be a non-prosecutor ... who may have influenced the prosecutorial decision but did not himself make it, and the cause of action will not be strictly for retaliatory prosecution, but for successful retaliatory inducement to prosecute.

Hartman v. Moore, 547 U.S. at 262, 126 S.Ct. 1695.

As a consequence, plaintiffs in retaliatory-prosecution cases must demonstrate a causal connection between one person’s retaliatory animus and that person’s injurious conduct, and a causal connection between the retaliatory animus of one person and that of another. See id. The allegation needed “both to bridge the gap between the nonprosecuting government agent’s motive and the prosecution’s action, and to address the presumption of prosecutorial regularity,” is “the absence of probable cause.” Id. In retaliatory-prosecution cases, the Supreme Court requires that lack of probable cause be pleaded and proven. See id. at 266, 126 S.Ct. 1695.

In light of Hartman v. Moore, the Tenth Circuit has held that,

[t]o establish a § 1983 retaliation claim against non-immune officials, [a plaintiff] must plead and prove (1) that she was engaged in a constitutionally protected activity; (2) that a defendant’s action caused her to suffer an injury that would chill a person of ordinary firmness from continuing to engage in that activity; and (3) that a defendant’s action was substantially motivated as a response to her exercise of her First Amendment speech rights. Worrell v. Henry, 219 F.3d 1197, 1212 (10th Cir.2000). She also must plead and prove the absence of probable cause for the prosecution. Hartman [v. Moore ], 126 S.Ct. at 1707.

Becker v. Kroll, 494 F.3d 904, 925 (10th Cir.2007).

The probative weight that a conviction by a magistrate jury has on the existence or lack of probable cause is an open question in First-Amendment retaliatory-prosecution claims. The Restatement (Second) of Torts states: “(1) The conviction of the accused by a magistrate or trial court, although reversed by an appellate tribunal, conclusively establishes the existence of probable cause, unless the conviction was obtained by fraud, perjury or other corrupt means.” Restatement (Second) of Torts § 667. In support of the rule that a conviction can be conclusive evidence of probable cause, the Restatement cites numerous state-court decisions. See, e.g., Alexander v. Laman, 225 Ark. 498, 283 S.W.2d 345 (1955); Bealmear v. Southern Cal. Edison Co., 22 Cal.2d 337, 139 P.2d 20 (1943); Addington v. Bates, 101 Colo. 293, 73 P.2d 529 (1937); Rodgers v. W.T. Grant Co., 326 So.2d 57 (Fla.App. 1975); Hartshorn v. Smith, 104 Ga. 235, 30 S.E. 666 (1898); Adams v. Bicknell, 126 Ind. 210, 25 N.E. 804 (1890); Earley v. Harry’s IGA, Inc., 223 Kan. 32, 573 P.2d 572 (1977); Taylor v. Nohalty, 404 S.W.2d 448 (Ky.1966). In one of the earliest cases applying the rule that a properly obtained conviction is conclusive evidence of probable cause in a malicious prosecution case, the Supreme Court of Georgia explained the rule’s underlying rationale: “Probable cause is defined to be the existence of such facts and circumstances as would excite the belief in a reasonable mind, acting on the facts within the knowledge of the prosecutor, that the person charged was guilty of the crime for which he was prosecuted.” Hartshorne v. Smith (State Report Title: Hartshorn v. Smith), 104 Ga.235, 30 S.E. 666, 667 (1898). Given that standard for probable cause, the Hartshorne v. Smith court explained that,

after a conviction by verdict, followed by sentence, it ceases to be a matter of conjecture, of argument, and of reasoning whether guilt could rationally be inferred from the facts admitted or proved; for such a state of things cannot occur but after full defense by the accused, with deliberation by the jury, aided by the court, upon all the evidence, as well explanatory as negative, offered by the accused, and, after all that, guilt was in fact inferred by a numerous body of men of competent understanding and integrity, and the court was also satisfied with it.

Hartshorne v. Smith, 30 S.E. at 667-68.

The Reporter’s Notes to the Restatement show that other courts have adopted less severe versions of the rule. Some courts, for example, have found that a conviction creates a prima-facie case or.a presumption that probable cause existed, and a plaintiff can overcome the presumption with competent evidence demonstrating a lack of probable cause. See, e.g., J.C. Penney Co. v. Blush, 356 So.2d 590 (Miss. 1978). Goodrich v. Warner, 21 Conn. 432, 1852 WL 635 (Conn.1852), expresses the notion that, while an undisturbed conviction may be conclusive evidence, the possibility exists that, where there is an appeal from a judgment, “if, upon a full and fair trial, the evidence against the plaintiff was sufficient to satisfy the court of his guilt, that circumstance will afford strong presumptive evidence of probable cause, existing at that time,” but, in “a subsequent trial, and perhaps upon other and further testimony, a jury might be of opinion, that it was not sufficient to justify a conviction.” Goodrich v. Warner, 21 Conn. 432, 1852 WL 635 *9. In other words, the possibility remains that further evidence and testimony might illuminate reasons why probable cause did not exist.

Yet other courts have held that, when a conviction that is subject to a de novo review is reversed on review, the conviction is not conclusive or prima-facie evidence of probable cause. See Sestrich v. R.H. Macy & Co., 493 S.W.2d 52 (Mo.App. 1973); Chapman v. City of Reno, 85 Nev. 365, 455 P.2d 618 (1969). The rule discussed in Sestrich v. R.H. Macy & Co. specifically allowed an exception to the presumption of probable cause for a conviction if the conviction was obtained in “police court.” 493 S.W.2d at 55. The “more appealing” justification for such a rule was that the police court suffered from various procedural irregularities and that the de novo trial was designed to protect litigants from those irregularities. Thus, where the original conviction was obtained in the police court, and later overturned, the presumption of probable cause should drop out. See id.

LAW REGARDING ABSOLUTE IMMUNITY

Traditionally, the doctrine of prosecutorial immunity did not apply to other public officials. Police officers, governors, and other executive officials were entitled only to qualified immunity for actions performed in their official capacity. See Imbler v. Pachtman, 424 U.S. 409, 421, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976). In Imbler v. Pachtman, the Supreme Court rejected the argument that qualified immunity would be adequate to protect prosecutors from the threat of litigation that affect their actions. Prosecutors are, however, absolutely immune only for those activities “intimately associated with the judicial phase of the criminal process.” Id. at 430, 96 S.Ct. 984.

Absolute immunity does not extend to “those aspects of the prosecutor’s responsibility that cast him in the role of an administrator or investigative officer rather than that of advocate.” Id. at 430-31, 96 S.Ct. 984.

We recognize that the duties of the prosecutor in his role as an advocate for the State involve actions preliminary to the initiation of a prosecution and actions apart from the courtroom.... Preparation, both for the initiation of the criminal process and for a trial, may require the obtaining, reviewing, and evaluating of evidence. At some point, and with respect to some decisions, the prosecutor no doubt functions as an administrator rather than as an officer of the court....

Id. at 431 n. 33, 96 S.Ct. 984. Concluding that the challenged conduct in Imbler v. Pachtman fell on the advocacy side of the spectrum, the Supreme Court granted the prosecutors absolute immunity against the claim that they had procured false testimony during the course of a criminal trial.

The Supreme Court later extended the doctrine of absolute immunity to some prosecutorial conduct occurring before the trial. In Burns v. Reed, 500 U.S. 478, 111 S.Ct. 1934, 114 L.Ed.2d 547 (1991), a prosecutor was accused of: (i) eliciting false testimony in a probable-cause hearing that led to the issuance of a search warrant; and (ii) advising police on inappropriate methods of interrogating a suspect. Regarding the probable-cause hearing, the Supreme Court concluded that absolute immunity extended to “any hearing before a tribunal which performed a judicial function,” and included the presentation of testimony in support of an application for a search warrant. Id. at 490, 111 S.Ct. 1934 (internal quotation marks omitted). Holding that the prosecutor’s actions of appearing before a judge, and presenting evidence in support of a motion for a search warrant, involved the prosecutor’s role as advocate for the State, rather than the role as administrator or investigative officer, the Supreme Court held that appearing at a probable-cause hearing was “intimately associated with the judicial phase of the criminal process.” Id. at 479, 111 S.Ct. 1934 (internal citations and quotations omitted). The Supreme Court read the plaintiffs claim narrowly, however, and did not consider the prosecutor’s motivations in seeking the search warrant or his actions outside the courtroom in relation to his procurement of the warrant. See id. at 487-89 & n. 5, 111 S.Ct. 1934.

Burns v. Reed did not, however, extend absolute immunity to every aspect of the prosecutor’s legal advice to the police. The Supreme Court concluded that advising police in the investigative phase of a criminal case could be too far removed from the judicial process to warrant extending immunity on that basis. It thus rejected the argument that legal advice is categorically “of a judicial nature because the prosecutor is, like a judge, called upon to render opinions concerning the legality of conduct.” Id. at 493, 111 S.Ct. 1934 (internal quotations omitted). Noting that it has previously rejected the extension of absolute immunity to police officers, the Supreme Court in Bums v. Reed found it “incongruous to allow prosecutors to be absolutely immune from liability for giving advice to the police, but to allow police officers only qualified immunity for following [that] advice.” Id. at 495, 111 S.Ct. 1934. To qualify for absolute immunity, then, an action must be “closely associated with the judicial process.” Id. at 495, 111 S.Ct. 1934.

“Immunity extends to those activities ‘intimately associated with the judicial phase of the criminal process,’ which undoubtedly includes initiating criminal proceedings.” Becker v. Kroll, 494 F.3d 904, 925 (10th Cir.2007) (quoting Imbler v. Pachtman, 424 U.S. at 430, 96 S.Ct. 984). The court looks to the “nature of the function performed, not the identity of the actor who performed it.” Buckley v. Fitzsimmons, 509 U.S. 259, 269, 113 S.Ct. 2606, 125 L.Ed.2d 209 (1993). The Tenth Circuit recently confirmed the applicable analysis where the prosecutor allegedly brought criminal charges in retaliation for public protest:

A prosecutor’s charging decisions are absolutely immune from civil suit for monetary damages. Hartman v. Moore, 547 U.S. 250, 126 S.Ct. 1695, 164 L.Ed.2d 441 (2006) (citing Imbler v. Pachtman, 424 U.S. 409, 431, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976)); see also Mink v. Suthers, 482 F.3d 1244, 1258-59 (10th Cir.2007). Immunity extends to those activities “intimately associated with the judicial phase of the criminal process,” which undoubtedly includes initiating criminal proceedings. Imbler v. Pachtman, 424 U.S. 409, 430, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976). This immunity applies even if the prosecutor files charges knowing he lacks probable cause. See id. at 431 n. 34, 96 S.Ct. 984 (applying immunity even when prosecutor deliberately withholds exculpatory information from the court).

Becker v. Kroll, 494 F.3d 904, 925 (10th Cir.2007). Based on this reasoning, the Tenth Circuit held that a First Amendment retaliation claim could not proceed against the prosecutor who initiated criminal charges. See Schenk v. Chavis, 461 F.3d 1043, 1046 (8th Cir.2006) (“The acts of preparing, signing, and filing a criminal complaint constitute prosecutorial functions, as they are advocacy on behalf of the government.”).

Given the functional analysis that the courts employ in determining whether absolute immunity attaches, the identity of the party asserting the immunity is not important. Thus, courts have found it necessary to confront when and whether police officers might, like a prosecutor, enjoy absolute immunity. The United States Court of Appeals for the Second Circuit has held that, “[w]here ... the constitutional tort is the action of a police officer in initiating a baseless prosecution, his role as a ‘complaining witness’ renders him liable to the victim under section 1983.” White v. Frank, 855 F.2d 956, 961 (2nd Cir.1988). In reaching its conclusion, the Second Circuit explained that the “critical initial question [in determining the availability of an immunity defense in § 1983 suits] is ‘whether an official claiming immunity under § 1983 can point to a common law counterpart to the privilege he asserts.’ ” White v. Frank, 855 F.2d at 961 (quoting Malley v. Briggs, 475 U.S. 335, 339-40, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986)). According to the Second Circuit, the common law “made subtle distinctions” between witnesses whose role was to provide testimony and witnesses who played a role in initiating a prosecution—i.e., complaining witnesses. White v. Frank, 855 F.2d at 961. While testimonial witnesses enjoyed immunity from suit, complaining witnesses did not. See id. Given the historical background out of which § 1983 immunities emerge, the Supreme Court has rejected the notion that a police officer should enjoy absolutely immune for swearing out an arrest warrant. See Malley v. Briggs, 475 U.S. at 340, 106 S.Ct. 1092. To the extent that an officer swearing out an arrest warrant resembles a complaining witness, complaining witnesses did not enjoy immunity, and neither should an officer. Rather, officers normally enjoy qualified immunity. See id. Based on the Supreme Court’s explanation in Malley v. Briggs, the Second Circuit held that an officer who initiates a baseless prosecution is analogous to a complaining witness and does not enjoy absolute immunity. White v. Frank, 855 F.2d at 961.

LAW REGARDING QUALIFIED IMMUNITY

As the Court has previously recognized in Holguin v. City of Albuquerque, No. CIV 05-0302 JB/RHS, 2006 WL 1228872, 2006 U.S. Dist. LEXIS 29489 (D.N.M. March 1, 2006), a case in which Mata’s counsel was counsel of record:

Qualified immunity recognizes the legitimate “need to protect officials who are required to exercise their discretion and the related public interest in encouraging the vigorous exercise of official authority.” Harlow v. Fitzgerald, 457 U.S. 800, 807 [102 S.Ct. 2727, 73 L.Ed.2d 396] (1982) (quoting Butz v. Economou, 438 U.S. 478, 506 [98 S.Ct. 2894, 57 L.Ed.2d 895] (1978)). “Qualified immunity therefore ‘provides ample protection to all but the plainly incompetent or those who knowingly violate the law.’ ” Malley v. Briggs, 475 U.S. 335, 341 [106 S.Ct. 1092, 89 L.Ed.2d 271] (1986).

2006 WL 1228872, at *6, 2006 U.S. Dist. LEXIS 29489, at *15-16. Qualified immunity protects federal and state officials from liability for discretionary functions and from “the unwarranted demands customarily imposed upon those defending a long drawn-out lawsuit.” Siegert v. Gilley, 500 U.S. 226, 232, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991). To balance the interests of the complaining individual, and the burden put upon the government official in defending such cases, “courts recognize the affirmative defense of qualified immunity, which protects ‘all but the plainly incompetent or those who knowingly violate the law.’ ” Gross v. Pirtle, 245 F.3d 1151, 1155 (10th Cir.2001) (quoting Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986)).

1. Rationale for Qualified-Immunity Doctrine.

Qualified immunity is judicially created and rooted in public policy. The fear of suit may have a chilling effect on official decision-making, seriously deterring officials from exercising judgment with the decisiveness important to their office. See Richardson v. McKnight, 521 U.S. 399, 407, 117 S.Ct. 2100, 138 L.Ed.2d 540 (1997) (describing the purposes of qualified immunity “as protecting government’s ability to perform its traditional functions by providing immunity where necessary to preserve the ability of government officials to serve the public good or to ensure that talented candidates were not deterred by the threat of damages suits from entering public service.”) (internal quotations omitted); Wyatt v. Cole, 504 U.S. 158, 165, 112 S.Ct. 1827, 118 L.Ed.2d 504 (1992) (detailing the public policy basis for the qualified immunity privilege). In Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), the Supreme Court of the United States stated:

It cannot be disputed seriously that claims frequently run against the innocent as well as the guilty—at a cost not only to the defendant officials, but to society as a whole.... [T]here is the danger that fear of being sued will dampen the ardor of all but the most resolute, or the most irresponsible [public officials], in the unflinching discharge of their duties.

Id. at 814, 102 S.Ct. 2727. (internal citations and quotations omitted).

2. Two-Part Test for Qualified Immunity.

Until recently, courts were required to apply a two-step analysis in deciding whether a party is entitled to qualified immunity. The broad protection afforded by qualified immunity gives officials “a right, not merely to avoid ‘standing trial,’ but also to avoid the burdens of ‘such pretrial matters as discovery.’ ” Holland ex rel. Overdorff v. Harrington, 268 F.3d 1179, 1185 (10th Cir.2001) (quoting Behrens v. Pelletier, 516 U.S. 299, 308, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996)). When a defendant raises the affirmative defense of qualified immunity, “a ruling on that issue should be made early in the proceedings so that the costs and expenses of trial are avoided where the defense is dispositive.” Saucier v. Katz, 533 U.S. 194, 200, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), overruled in part by Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 817-18, 172 L.Ed.2d 565 (2009). The qualified immunity privilege is “ ‘an immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial.’” Id. at 200-201, 121 S.Ct. 2151 (quoting Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985)).

Once a defendant asserts the affirmative defense of qualified immunity, the burden then shifts to the plaintiff to establish a violation of a constitutional or statutory right by the defendant. See Gross v. Pirtle, 245 F.3d at 1155; Currier v. Doran, 242 F.3d 905, 917 (10th Cir.2001), cert. denied, 534 U.S. 1019, 122 S.Ct. 543, 151 L.Ed.2d 421 (2001); Scull v. New Mexico, 236 F.3d 588, 595 (10th Cir.2000).

A court required to rule upon the qualified immunity issue must consider, then, this threshold question: Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer’s conduct violated a constitutional right? This must be the initial inquiry.... In the course of determining whether a constitutional right was violated on the premise alleged, a court might find it necessary to set forth principles which will become the basis for a holding that a right is clearly established. This is the process for the law’s elaboration from case to case, and it is one reason for our insisting upon turning to the existence or nonexistence of a constitutional right as the first inquiry. The law might be deprived of this explanation were a court simply to skip ahead to the question whether the law clearly established that the officer’s conduct was unlawful in the circumstances of the case.

Saucier v. Katz, 533 U.S. at 201, 121 S.Ct. 2151 (citations omitted).

If a plaintiff meets his or her burden of establishing a violation of a co