Reid v. Pautler (36 F. Supp. 3d 1067, 2014)

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on: (i) the Defendants’ Opposed Motion to Dismiss First Amended Complaint for Violation of Civil Rights, filed August 16, 2013 (Doe. 26) (“MTD”); and (n) the Plaintiffs Opposed Motion to Amend Complaint and Memorandum Brief in Support Thereof, filed May 30, 2014 (Doc. 48) (“Motion to Amend”). The Court held a hearing on the MTD on January 17, 2014. The primary issues are: (i) whether Defendant Flyshia Ross, a New Mexico Corrections Department (“NMCD”) employee in the Probation and Parole Division, was functionally acting in a judicial capacity when she filled out an Order of Probation, submitted it to the Honorable Ricky D. Purcell, District Judge for the Tenth District Court for the State of New Mexico, and then presented the signed Order of Probation to Plaintiff Richard Reid, and is thus entitled to absolute quasi-judicial immunity; (ii) whether Defendants Susan Pautler, Gregory Garcia, and Wes Hatley, NMCD employees in the Probation and Parole Division, were functionally acting in a judicial capacity when they enforced the Order of Probation, which included searching Reid’s home, ordering him to submit to urine drug tests, and arresting him for violating the Order of Probation, and are thus entitled to absolute quasi-judicial immunity; (iii) whether Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), bars Reid from bringing any of his claims under 42 U.S.C. § 1983; (iv) whether the Defendants are entitled to qualified immunity for allegedly violating Reid’s due-process rights under the Fourteenth Amendment to the Constitution of the United States of America, and rights to be free from unreasonable searches and seizures under the Fourth Amendment to the Constitution of the United States of America; (v) whether Reid sufficiently alleged that Defendant Kristy Muller, an NMCD employee in the Probation and Parole Division, was personally involved in any alleged constitutional violations; and (vi) whether the Court should permit Reid to amend the First Amended Complaint for Violation of Civil Rights, filed July 17, 2013 (Doc. 25) (“FAC”), to add two new claims, including a claim that the Defendants subjected him to double jeopardy in violation of the Fifth Amendment to the Constitution of the United States of America, and a claim that the Defendants denied him the right to counsel in violation of the Sixth Amendment to the Constitution of the United States of America. The Court will grant the MTD and will dismiss all of Reid’s claims against the Defendants, and it will deny the Motion to Amend. The Court concludes: (i) Ross was not acting in a judicial capacity when she secured the Order of Probation, and is thus not entitled to absolute immunity; (ii) Garcia, Hatley, and Pautler are entitled to absolute immunity for enforcing the Order of Probation, a facially valid court order, but they are not entitled to absolute immunity for falsely stating that Reid repeatedly violated his probation conditions and was a risk to himself; (iii) Heck v. Humphrey bars Reid from asserting the procedural due-process claim related to the additional term of probation as well as the Fourth Amendment search claim, because these claims depend on Reid establishing that the Order of Probation was invalid, but the Order of Probation has not been invalidated through the methods listed in Heck v. Humphrey, and Reid was not diligent in seeking to invalidate the Order of Probation; (iv) Ross is entitled to qualified immunity for the Fourth Amendment search and seizure claims against her, and Garcia, Hatley, and Pautler are entitled to qualified immunity for the procedural due process, Fourth Amendment search, and Fourth Amendment seizure claims against them; (v) Reid has not sufficiently alleged that Muller was involved in any of the purported constitutional violations; and (vi) Heck v. Humphrey would bar Reid’s proposed additional claims, and, thus, amending the FAC would be futile. The Court will dismiss all of the claims with prejudice, except it will dismiss without prejudice the procedural due-process claim against Ross based on Reid’s additional term of probation. The Court will also deny the Motion to Amend.

FACTUAL BACKGROUND

The' Court primarily takes the facts from the FAC. Normally, the sufficiency of a complaint must rest on its contents alone. See Casanova v. Ulibarri, 595 F.3d 1120, 1125 (10th Cir.2010). There are three limited exceptions to this general principle: (i) documents that the complaint incorporates by reference, see Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322, 127 S.Ct. 2499, 168 L.Ed.2d 179 (2007); (ii) “documents referred to in the complaint if the documents are central to the plaintiffs claim and the parties do not dispute the documents’ authenticity,” Jacobsen v. Deseret Book Co., 287 F.3d 936, 941 (10th Cir.2002); and (in) “matters of which a court may take judicial notice,” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. at 322, 127 S.Ct. 2499. The Defendants have requested that the Court consider a number of documents attached to the Memorandum in Support of Defendants’ Opposed Motion to dismiss First Amended Complaint for Violation of Civil Rights, filed August 16, 2013 (Doc. 27) (“MTD Memo.”), which, they assert, are referenced in the Complaint and are central to Reid’s allegations. See MTD Memo. ¶¶ 17-19, at 7-8. At the hearing, Reid initially stated that he did not think the Court should consider the documents, because he could not gain access to the probation department’s file for discovery, see Transcript of Hearing at 27:24-28:12 (Frost), taken January 17, 2014 (“Tr.”), but he did not dispute the documents’ authenticity, admitted that he referred to them in the FAC, and then said that he did not see any problem with the Court considering the documents for the MTD and argued that they supported his position, Tr. at 28:13-29:4 (Court, Frost). Because Reid referred to the documents in the FAC, the documents are central to Reid’s claims, and the parties do not dispute their authenticity, the Court will also consider the three documents that the Defendants attached to the MTD Memo., without converting the MTD into a motion for summary judgment. Further, Reid submitted to the Court the Stipulated Order on Satisfactory Discharge from Supervised Probation, filed in state court October 17, 2011, filed in federal court June 12, 2014 (Doc. 50-4) (“Stipulated Order”). Reid references this document in the FAC, and, additionally, the Defendants do not object to the Court considering it, see Defendants’ Response to Minute Order of June 9, 2014 at 3 n. 3, filed June 13, 2014 (Doc. 51) (“Defendants’ Second Supp.”), and thus, the Court will also consider the Stipulated Order for the MTD.

On April 19, 2001, Reid pled guilty to criminal charges in three separate cases: (i) Quay County Cause No. D-1010-CR-2000-00137 (“CR-137”); (ii) Quay County Cause No. D-1010-CR-2000-00138 (“CR-138”); and (iii) Quay County Cause No. D-1010-CR-2000-00139 (“CR-139”). FAC ¶ 5, at 1-2. The three cases cross-referenced each other, but only the Judgment and Sentence for CR-137 set out Reid’s incarceration and probation terms. See FAC ¶ 5, at 1-2. The Judgment, Sentence, and Commitment, No. CR-00-00139, filed August 16, 2013 (Doc. 27-2) (“CR-139 J & S”), states: “The aforesaid sentence shall be consecutive to the sentence imposed in Cause No. CR-00-00137 and CR-00-00138. Defendant has also pled guilty to charges in Cause No. CR-00-00137 and CR-00-00138 and the terms and conditions shall apply to all three cases.” CR-139 J & S ¶ 4, at 2. See MTD Memo. ¶ 18, at 7-8. Reid was sentenced to three hundred sixty-four days incarceration at the Quay County Detention Center; upon release, “he was to be transported directly to a residential rehabilitation treatment facility as determined by the Adult Probation and Parole Service,” and then placed on supervised probation for five years “with a standard Order of Probation of the Tenth Judicial District.” FAC ¶ 6, at 2.

In June, 2002, an Order of Probation was filed in CR-137 requiring Reid to be on supervised probation from May 2, 2002, until May 1, 2007. See FAC ¶ 7, at 2. On May 27, 2004, the court entered an Order of Early Discharge on the suspended sentence, relieving Reid of any further obligations in CR-137. See FAC ¶ 7, at 2. In February, 2006, an Amended Order of Probation was filed in CR-138 and CR-139, requiring Reid to serve probation from March 14, 2002, until March 13, 2007. See FAC ¶ 8, at 2. Reid alleges that, “[u]n-der New Mexico law, the total period of probation a defendant can be sentenced in district courts may not exceed five (5) years.” FAC ¶ 7, at 2 (citing N.M. Stat. Ann. § 31-20-5(A); State v. Devigne, 1981-NMCA-088, 96 N.M. 561, 632 P.2d 1199).

In June, 2007, three months after Reid completed five years of probation in CR-139, Ross “questioned why Plaintiff was no longer on probation.” FAC ¶ 10, at 3. “Even though the file and documentation contained therein clearly showed that the Plaintiffs probation had ended on March 13, 2007 and that he could not be placed on any additional probation,” Ross filled out a new Order of Probation, which extended Reid’s probation from March 14, 2007, until March 13, 2012, and “submitted it to the district court for its signature.” FAC ¶¶ 10-11, at 3.

Judge Purcell signed the Order of Probation. See Order of Probation at 2, dated June 12, 2007, filed August 16, 2013 (Doc. 27-1); MTD Memo. ¶ 17, at 7. After the court signed the Order of Probation, Ross presented it to Reid and required him to sign it; although Reid “questioned the validity of extending his probation any further,” Ross assured him that he had an additional five years of probation to serve for his April 19, 2001, convictions. FAC ¶¶ 11-12, at 3. Under the Order of Probation, Reid

was required to report to his Probation Officer (“PO”) once a month; get permission from his PO before leaving Quay County, changing jobs or changing residences; he was prohibited from associating with persons identified by his PO as being detrimental to his supervision; he was required to authorize his PO to visit his home and to allow them to conduct warrantless searches on his person, residence, automobiles or property; he was required to provide urine or breath tests at the PO’s request; and was required to pay monthly probation costs as well as pay Crime Stoppers, DNA and other fees.

FAC ¶ 12, at 3. Reid adhered to the terms of the Order of Probation until September, 2011, including monthly reporting to his PO and allowing his PO on at least one occasion to search his home in Logan, New Mexico. See FAC ¶ 13, at 3.

At some point before September, 2011, Garcia directly supervised Reid, and Muller supervised Garcia. See FAC ¶ 14, at 4. On September 7, 2011, Reid went to the Tucumcari, New Mexico, probation office for his monthly visit, where Hatley and Pautler were representing the probation office instead of his normal PO. See FAC ¶ 14, at 4. Hatley and Pautler demanded that Reid take a urine test, and he complied. See FAC ¶ 14, at 4. Hatley and Pautler told Reid that his test was positive, and Reid admitted that he had consumed marijuana at some point in the past. See FAC ¶ 14, at 4. Hatley then contacted Garcia to discuss what to do; Hatley, Pautler, and Garcia agreed that Reid should be immediately arrested. See FAC ¶ 15, at 4. They filled out an Arrest Order, which stated that Reid was not to be given bond. See FAC ¶ 15, at 4; Arrest Order, dated September 7, 2011, filed August 16, 2013 (Doe. 27-3). “As a justification for the arrest, Defendants Pautler, Garcia and Hatley falsely stated that the Plaintiff was a [risk] to himself and that he was guilty of repeated violations of supervised conditions.” FAC ¶ 15, at 4. The Arrest Order required the Defendants to identify the current convictions which formed the basis for Reid’s probation; each of the convictions that the Defendants identified “show that they were over ten (10) years prior to the date of the Arrest Order.” FAC ¶ 16, at 4. Pautler signed the Arrest Order on Garcia’s behalf, and Hatley signed the Arrest Order on Muller’s behalf. See FAC ¶ 15, at 4. Muller did not sign the Arrest Order. See Arrest Order at 1; MTD Memo. ¶ 19, at 8. Reid was “immediately taken into custody at the Quay County Detention Center.” FAC ¶ 15, at 4.

Reid alleges that NMRA 5-805(B) requires that the Defendants file a notice of the arrest, and give a copy to the probationer and the district court, and that the court then has five days to review the conditions of release for the incarcerated probationer. See FAC ¶ 17, at 4-5. The Defendants did not file a notice of arrest. See FAC ¶ 17, at 5.

Reid retained counsel to represent him, and on September 14, 2011, an order modifying his conditions of release was filed, and he was released on a $5,000.00 Own Recognizance Bond. See FAC ¶ 18, at 5. Reid’s counsel and the Tenth Judicial District Attorney’s Office then determined that Reid had completed his probation in March, 2007, and that “he was not legally on probation after that date.” FAC ¶ 19, at 5. The parties stipulated to an order discharging Reid based on fulfilling his term of probation, see FAC ¶ 19, at 5; that order states, in relevant part:

THIS MATTER having come before the Court this 17th day of October, 2011, upon the motion of the Defendant; by and through his attorney, Randal M. Harris, and the concurrence of the State of New Mexico, represented by Tim Rose, Deputy District Attorney, regarding the same, and the Court being fully-appraised in the premises orders the following:

1. This Court has jurisdiction over the parties and subject matter herein;

2. That the Defendant received a suspended sentence on the 19th day of April, 2001. for the charge of Burglary of Vehicle/Crafts/Structure-Non Residential, Criminal Damage to Properly Under $1,000 and was to be on probation for a period of five (5) years, zero (0) months, zero (0) days, and it further appearing to the Court that the Defendant is, satisfactorily discharged from Supervised Probation.

Stipulated Order at 1.

PROCEDURAL BACKGROUND

On July 17, 2013, Reid filed the FAC, alleging three counts: (i) Count I, due-process violation under the Fourteenth Amendment to the Constitution of the United States; (ii) Count II, a search in violation of the Fourth Amendment to the Constitution of the United States; and (in) Count III, a seizure in violation of the Fourth Amendment to the Constitution. See FAC at 5-7. In Count I, Reid alleges that “[t]he Defendants, while acting under the color of state law, deprived the Plaintiff of his liberty interest without due process of law,” in violation of the Fourteenth Amendment to the Constitution, by requiring him to submit to four and one-half years of supervised probation and seven days of incarceration. FAC ¶ 21, at 5. He alleges that “it was a clearly established law that an individual cannot be placed on probation and required to adhere to the terms of probation and arrested for allegedly violating those terms, without first being charged with a crime and being provided with due process prior to a conviction,” FAC ¶ 19, at 5, and that “[t]he conduct of the Defendants was intentional, willful, wanton, and in reckless disregard of the rights of the Plaintiff and he is therefore entitled to an award of punitive damages to punish the Defendants for their conduct to deter similar conduct on their part in the future,” FAC ¶ 23, at 6. In Count II, Reid alleges that “[t]he Defendants, while acting under the color of state law, forced the Plaintiff to submit to a urine test and searched his home, without a warrant, absent exigent circumstances,” in violation of the Fourth Amendment. FAC ¶ 26, at 6. He contends that “it was a clearly established law that a law enforcement officer could not require an individual to submit to a urine test or search his home without a warrant, unless there were exigent circumstances,” FAC ¶ 25, at 6, and that “the conduct of the Defendants was intentional, willful, wanton, and in reckless disregard of the rights of the Plaintiff,” entitling him to punitive damages, FAC ¶ 28, at 7. In Count III, Reid alleges that the “individual Defendants, while acting under the color of state law, arrested the Plaintiff on September 7, 2011 without probable cause and without a warrant,” in violation of the Fourth Amendment. FAC ¶ 31, at 7. He contends that “it was a clearly established law that a law enforcement officer could not arrest an individual without probable cause and/or an arrest warrant,” and that, “under New Mexico law a probation officer has no independent law enforcement authority, but may only enforce the terms of valid probation orders.” FAC ¶ 30, at 7. He alleges that the “conduct of the Defendants was intentional, willful, wanton, and in reckless disregard of the rights of the Plaintiff,” entitling him to punitive damages. FAC ¶ 33, at 7.

The Defendants move the Court, pursuant to rule 12(b)(6) of the Federal Rules of Civil Procedure, for an order dismissing the FAC with prejudice as to all Defendants. See MTD at 1. The Defendants argue that each Defendant is immune from suit and liability under absolute quasi-judicial immunity, or, alternatively, qualified immunity. See MTD at 1-2. The Defendants also alternatively contend that, if Muller is not entitled to immunity, the Court should dismiss the claims against them, because of “insufficient personal involvement.” MTD at 2.

The Defendants emphasize “two observations” from the United States Court of Appeals for the Tenth' Circuit “concerning probation officers and their ‘unique’ relationship to the sentencing court”:

(1) “the probation officer serves as an investigative and supervisory arm of the court,” United States v. Davis, 151 F.3d 1304, 1306 (10th Cir.1998) (internal quotation marks omitted); and (2) “[a]s a practical matter, then, the probation officer serves as a liaison between the sentencing court, which has supervisory power over the defendant’s term of supervised release, and the defendant, who must comply with the conditions of his supervised release or run the risk of revocation.” Id. at 1306-07.

MTD Memo, at 2. The Defendants note that the Tenth Circuit addressed “whether a federal probation officer had certain powers,” but argue that “there is no rational reason why the Davis court’s comments about the special role probation officers play is any less applicable to state probation officers.” MTD Memo, at 2 n. 2.

In the Defendants’ view, they are all entitled to absolute quasi-judicial immunity, because their work was “intimately or intrinsically associated with a judicial proceeding.” MTD Memo, at 11. The Defendants point to the Tenth Circuit’s holding that “a probation officer is entitled to quasi-judicial immunity for activities that are ‘intimately associated with the judicial phase of the criminal process’ such as preparation of a pretrial sentence report,” MTD Memo, at 11 (quoting Tripati v. U.S.I.N.S., 784 F.2d 345, 348 (10th Cir.1986) (per curiam)), and that “an ‘official charged with the duty of executing a facially valid court order enjoys absolute immunity from liability for damages in a suit challenging conduct prescribed by that order,’ ” because “ ‘[ejnforcing a court order or judgment is intrinsically associated with a judicial proceeding,’ ” MTD at 11 (quoting Valdez v. City & Cnty. of Denver, 878 F.2d 1285, 1286 (10th Cir.1989)).

The Defendants identify five allegations that Reid makes against Ross: (i) she questioned why Reid was no longer on probation; (ii) she filled out a new Order of Probation and submitted it to the district court for its signature; (iii) she presented Reid with the new Order of Probation; (iv) she assured Reid that he had an additional five years of probation to serve; and (v) she did not file a notice of arrest NMRA 5-805 allegedly required. See MTD Memo, at 11-12. Regarding the first allegation — that Ross questioned why Reid was no longer on probation — the Defendants contend that the FAC does not allege any “constitutionally infirm motive” for Ross’ actions; they argue that her actions were consistent with the language in the CR-139 J & S, which indicated that the sentence “shall be consecutive” to the sentence imposed in CR-137 and CR-138. MTD Memo, at 12. Further, although Reid alleges that “the file and documentation contained therein clearly showed that the Plaintiffs probation had ended on March 13, 2007 and that he could not be placed on any additional probation,” FAC ¶ 10, at 3, the Defendants argue that “there is simply no allegation that Ross was aware of such documentation” when she questioned why Reid was no longer on probation or submitted a new probation order to Judge Purcell,” MTD Memo, at 12. In the Defendants’ view, these allegations are insufficient to show that Reid is entitled to relief. See MTD Memo, at 12-13. Regarding the second and third allegations — that Ross filled out a new Order of Probation, submitted it to the district court for its signature, and presented it to Reid to sign — the Defendants contend that the Order of Probation is Judge Purcell’s order, that “he alone is legally responsible for its contents,” MTD Memo, at 13 (citing Kelly v. Cnty. of Montgomery, Civ. No. 08-01660, 2008 WL 3408123, at *7 (E.D.Pa. Aug. 8, 2008)), and that, “[b]y presenting the [Order of Probation] to plaintiff, Ross was merely acting as an arm of Judge Purcell,” MTD Memo, at 13. The Defendants contend that Judge Purcell would have absolute judicial immunity for signing the Order of Probation and causing it to be enforced, and, thus, “there is no rational reason why defendant Ross should not be similarly immune for ‘presenting’ that order to plaintiff — an act which Judge Purcell could have done himself.” MTD Memo, at 14. Regarding Reid’s fourth allegation — that Ross assured Reid that he had five remaining years of probation — the Defendants assert that Reid did not allege that he “was entitled to rely on Ross for an explanation” of his legal rights or that Ross prevented him from “exercising his due process rights” by appealing the Order of Probation. MTD Memo, at 15. The Defendants argue that Reid’s failure to appeal the Order of Probation, which he “admittedly thought was improper,” does not “now justify imposition of the burdens of litigation or liability — almost six years after the fact — on Ross.” MTD Memo, at 15. The Defendants also argue that Ross’ alleged assurance was “ ‘intimately associated with the judicial phase of the criminal process,’ ” because they were consistent with the CR 139 J & S and what Judge Purcell could have told Reid. MTD Memo, at 15 (quoting Tripati v. U.S.I.N.S., 784 F.2d at 348). In the Defendants’ view, New Mexico law did not clearly prohibit the imposition of a consecutive sentence in CR-139 after his probation in CR-137 and CR-138 had ended. See MTD Memo, at 15-16. The Defendants assert that Reid has not alleged that Ross knew the Order of Probation “contained an unlawful sentence ... or intentionally -lied to plaintiff as to the meaning and effect of the court’s probation order.” MTD Memo, at 16. Although the FAC alleges that the “conduct of Defendants was intentional, willful, wanton, and in reckless disregard of the rights of the Plaintiff,” FAC ¶¶ 23, 28, 33, at 6-7, the Defendants argue that this allegation is insufficient under the pleading standards of Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), and that Brown v. Montoya, 662 F.3d 1152, 1170 (10th Cir.2011)-in which the Tenth Circuit held that “an allegation that conduct was ‘intentional, malicious, sadistic, willful, wanton, obdurate, and in gross and reckless disregard of [Mr. Brown’s] constitutional rights’ satisfied the requirement for alleging a sufficiently culpable state of mind in a § 1983 action” — is “flatly at odds with the clear import of the holding of Iqbal.” MTD Memo, at 16 n. 16. The Defendants offer an alternative rationale for Brown v. Montoya:

[A] possible explanation for the Brown court’s conclusion that the boilerplate allegation of ‘intentional, malicious, sadistic, willful, wanton, obdurate and in gross and reckless disregard’ conduct of the probation officer sufficiently alleged the requisite state of mind is that the probation officer’s activities in Brown appear to have been performed in the absence of a probation order ordering the probation officer to direct the plaintiff to register as a sex offender or be placed in the sex offender probation unit.

MTD Memo, at 16 n. 16. The Defendants contend that, in this case, “the requisite mental state cannot be inferred in the absence of allegations of specific facts supporting the inference of intentional or reckless conduct,” and that “there is simply no allegation that Ross was aware of the alleged documentation in the file.” MTD Memo, at 16 n. 16. According to the Defendants, “[e]ven if Ross’ assurance was negligent, negligence does not support liability under § 1983.” MTD Memo, at 16 (citing Daniels v. Williams, 474 U.S. 327, 333-36, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986)).

Regarding the alleged failure to file a notice pursuant to NMRA 5-805(B), the Defendants argue that this allegation “cannot be used to predicate liability on Ross or any of the other defendants.” MTD Memo, at 17. NMRA 5-805(B) states:

If the probationer is arrested by the probation office without a warrant the probation office shall provide the district with a written notice within one (1) day of the arrest. The notice shall contain a brief description of each alleged probation violation. A copy of the notice shall be given to the probationer and filed with the court.

NMRA 5-805(B). See MTD Memo, at 17 (quoting NMRA 5-805(B)). The Defendants point out that NMRA 5-805(B) imposes an obligation on the probation office, not on a probation officer, and that Reid has not alleged that any of the Defendants are responsible within the probation office to file the notice. See MTD Memo, at 17. The Defendants assert that Reid’s FAC does not allege that Ross or Muller took any part in Reid’s arrest on September 7, 2011, and, thus, the “blanket reference to ‘Defendants’ ... that no notice of arrest was filed” cannot apply to Ross or Muller. MTD Memo, at 17. & n. 18. The Defendants further contend that “no harm resulted from the alleged failure to file the notice,” because, based on the calculations from NMRA 5-104(A), the judge had until September 14, 2011, to “review the notice of arrest or' warrant and consider conditions of release,” and the order modifying Reid’s conditions of released was filed on September 14, 2011. MTD Memo at 17-18 (citing NMRA 5-104(A)).

The Defendants argue that Hatley, Garcia, Pautler, and Muller are also entitled to quasi-judicial immunity, because their “alleged involvement with the violation of plaintiffs civil rights occurred in the context of them ‘executing a facially valid court order.’ ” MTD Memo, at 19 (quoting Valdez v. City & Cnty. of Denver, 878 F.2d at 1286). They note that Reid has not alleged that the Order of Probation was facially invalid and argue that “a review of such order reveals no facial invalidity.” MTD Memo, at 19 n. 19. They point to the Order of Probation, which, among other things, authorized them to have Reid arrested without a warrant if he violated a probation condition, and argue that their conduct was consistent with the Order of Probation’s authorizations and that they were “assisting Judge Purcell exercise his supervisory power” over Reid. MTD Memo, at 20-21. The Defendants contend that the Order of Probation authorized them to arrest Reid on September 7, 2011, and that the arrest was based on probable cause: “Pautler and Hatley administered a urine test as specifically authorized by the facially valid” Order of Probation, and when Reid then “admitted that he had used marijuana,” they had probable cause to believe that Reid had violated one of the conditions in the Order of Probation. MTD Memo, at 21.

The Defendants assert that Reid amended his complaint to “beef up” the allegations against them by adding that they “falsely stated that Plaintiff was a danger to himself and that he was guilty of repeated violations of supervised conditions,” and that each of the convictions on the Arrest Order was over ten years old. MTD Memo, at 21-22. In the Defendants’ view, the “ ‘falsely stated’ allegation” in the FAC is a “wholly conclusory ‘naked assertion devoid of further factual enhancement.’ ” MTD Memo, at 22 (quoting Ashcroft v. Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (secondary quotation marks omitted)). They argue that the Arrest Order controverts the allegation, because it states that Reid’s, detention “was necessary because of risk (not ‘danger’) — to himself.” MTD Memo, at 22. The Defendants maintain that Reid admitted to consuming marijuana, in violation of Judge Purcell’s specific order that he not consume marijuana, and that “it was not unreasonable for defendants Pautler, Garcia, and Hatley to believe that plaintiff would consume marijuana in the future and that such consumption posed a risk to plaintiff.” MTD Memo, at 22. The Defendants also assert that the FAC “does not allege how the listing of ten-year-old convictions in the Arrest Order constitute a violation of plaintiffs constitutional rights, and is thus insufficient in that regard.” MTD Memo, at 23 (emphasis in original). They maintain that, although the convictions were over ten years old, this reality “does not negate the fact that there existed probable cause to arrest plaintiff based on his admitted use of marijuana and Judge Purcell’s order that plaintiff not consume marijuana during the term of his probation.” MTD Memo, at 23. The Defendants cite a number of cases that they argue support their contention that Hatley, Garcia, Paut-ler, and Muller are immune under the doctrine of absolute quasi-judicial immunity: Tripati v. U.S.I.N.S., Valdez v. City and Cnty. of Denver, Engebretson v. Mahoney, 724 F.3d 1034, 1039-40 (9th Cir.2013); Gibbs v. Day, No. 3:09-cv-613, 2011 WL 1225898, at *4-5 (E.D.Tenn. Mar. 30, 2011); Beasley v. Allen, No. 05-1116-T/AN, 2006 WL 686338, at *3 & n. 3 (W.D.Tenn. Mar. 15, 2006); Huger v. Bogen, 503 Fed.Appx. 455, 461-62 (6th Cir.2012); Loggins v. Franklin County, Ohio, 218 Fed.Appx. 466, 476 (6th Cir.2007); Kelly v. Cnty. of Montgomery, 2008 WL 3408123, at *6-7. See MTD Memo, at 23-24. The Defendants point to Kelly v. Cnty. of Montgomery in particular, because it involved, in their view, similar facts:

(1) a probation officer incorrectly reporting to a re-sentencing court that plaintiffs sentence was consecutive, rather than concurrent (as Ross apparently did here); (2) other probation officers’ approval of the recommendation that the sentence be consecutive when they knew or should have known that the law permitted only a concurrent probation sentence; (3) unlawful extension of plaintiffs release date by the sentencing court as a result of the actions of the probation officers in giving or approving the recommendation to the court for a consecutive sentence; (4) representation to the court that plaintiff was subject to probation when he was not; and (5) the arrest and incarceration of plaintiff for an alleged probation violation when, under the law, he should not have been on probation. Kelly, 2008 WL 3408123 *1, *6. The probation officers moved to dismiss on the ground that they were entitled to absolute immunity, and alternatively, qualified immunity.

MTD Memo, at 25. The Honorable James T. Giles, former United States District Judge for the Eastern District of Pennsylvania, held that the probation officers’ conduct was adjudicatory in nature, and thus, granted the motion to dismiss based on absolute immunity. See MTD Memo, at 25-26.

The Defendants contend that, alternatively, they are entitled to qualified immunity. See MTD Memo, at 26. The Defendants assert that they

have been unable to find any authority for the proposition that a probation officer must independently determine the validity of a facially valid probation order prior to enforcing it, or that plaintiff had the right to be free from “presentation” by a probation officer of a facially valid probation order signed by a judge, or later “supervision” by probation officers pursuant to such facially valid probation order.

MTD Memo, at 27. The Defendants maintain that the weight of authority is to the contrary, that is, that the law is not clearly established that probation officers must independently research the lawfulness of a probation order which the sentencing judge signed. See MTD Memo, at 27-28. Although Reid alleged in the FAC that the maximum term of probation he could serve under New Mexico law is five years, the Defendants contend that the rule and case on which Reid relies — N.M. Stat. Ann. § 31-20-5(A) and State v. Devigne — show that the maximum probation term for convictions that occurred at one trial is five years, but that Reid’s situation involves.' crimes charged in three separate cases. See MTD Memo, at 28-29. They maintain that the law in New Mexico is not clearly established that a probationer may not serve more than five years’ probation in the aggregate for three separate cases. See MTD Memo, at 30.

Finally, the Defendants argue that the Court should dismiss the claims against Muller, because the FAC does not allege that she was personally involved in the alleged constitutional violations; in their view, the “sole non-conclusory allegations against Muller is that she supervised Garcia ... and she did not file a notice of arrest as allegedly required by Rule 5-805 NMRA.” MTD Memo, at 30-31. The Defendants maintain that “[mjere supervision of a person who violates another person’s constitutional rights is insufficient to impose § 1983 liability on the supervisor, as personal liability may not be predicated on a theory of respondeat superior.” MTD Memo, at 31. The Defendants contend that, although the law recognizes supervisory liability, the FAC does not contain allegations that support supervisory liability, because the FAC does not allege that Muller “promulgated, created, implemented or possessed responsibility for the continued operation of a policy that caused the complained of constitutional harm,” or that she did so “with the state of mind required to establish the alleged constitutional deprivation.” MTD Memo, at 31.

Reid responds that the Defendants are not entitled to absolute immunity or qualified immunity. See Plaintiffs Response in Opposition to the Defendants’ Motion to Dismiss First Amended Complaint for Violation of Civil Rights [Doc. 26], filed August 23, 2013 (Doc. 28) (“Response”). Reid asserts that Ross did not simply enforce the Order of Probation; she “made the determination” that Reid should serve five additional years of probation, completed the new Order of Probation, and presented it to the district court, “even though she knew the Plaintiff had already completed his period of probation.” Response at 3. He asserts that he “anticipates that testimony in this case will show that'district judges in New Mexico routinely sign off on probation orders submitted by the Probation and Parole Division without independently verifying the contents of those orders.” Response at 3. Reid points to several cases which he contends “have held that probation and parole officers in identical situations to those of the Defendants are not entitled to absolute immunity,” including Swift v. California, 384 F.3d 1184 (9th Cir.2004), Draine v. Leavy, 504 Fed.Appx. 494 (6th Cir.2012), Galvan v. Garmon, 710 F.2d 214 (5th Cir.1983), and Brown v. Montoya. Response at 4-5. Reid maintains that Ross was “not performing a judicial function in June of 2007 when, knowing that the Plaintiff had already completed his five (5) years of probation, she decided to fill out a new Order of Probation for submission to the court.” Response at 5. Further, he maintains that “Hatley, Pautler and Garcia were not performing a judicial function when, knowing that the Plaintiff had completed his probation, they decided to falsify the Arrest Order and have the Plaintiff incarcerated.” Response at 5. Reid argues that Valdez v. City and County of Denver — a case on which the Defendants “rely heavily” — is “easily distinguishable,” because, in that case, “a district court had independently held an individual in contempt and ordered that they be arrested.” Response at 5. Reid argues that “[n]o such order exists in this case.” Response at 5. Further, Reid asserts that the Defendants’ reliance on Tripoli v. U.S.I.N.S. is misplaced, because, in that case, “the plaintiff was suing the probation officers for allegedly false statements made in a pretrial bond report and in a presentence report,” activities that the district court had ordered and which “were an integral part of the court’s function in sentencing the defendant,” but that “[n]one of the Defendants in this case can claim a similar role.” Response at 5.

Reid argues that the Defendants are also not entitled to qualified immunity, because the FAC “alleges that the Defendants intentionally and recklessly imposed an additional five (5) years of probation on the Plaintiff, knowing that his legitimate term of probation ended on March 17, 2007,” and that “it was a clearly established law in the Tenth Circuit from June of 2007 through the date of the Plaintiffs arrest that a probationer who has completed his term of probation is entitled to the same constitutional rights as any other citizen.” Response at 6. Reid points to Trask v. Franco, 446 F.3d 1036 (10th Cir.2006), a case in which the probation officer mistakenly thought the plaintiff remained on probation, but in fact, the judge’s order releasing the plaintiff had not made its way into the probation officer’s file. See Response at 6. According to Reid, the Tenth Circuit denied qualified immunity, because a question of fact existed concerning the reasonableness of the officers’ belief that the plaintiff was still on probation. See Response at 6 (citing Trask v. Franco, 446 F.3d at 1044). Reid maintains that, because he has alleged that the probation officers knew his period of probation had expired, and yet imposed an additional four and one-half years of probation and seven days in jail, “[t]here can be no question” that if the allegations are true, the Defendants are not entitled to qualified immunity. Response at 7.

Regarding Muller, Reid explains that “the only involvement of which the Plaintiff is aware concerning Defendant Kristy Muller is the fact that she would have normally approved the Arrest Order, which was approved by Defendant Hat-ley.” Response at 7. He asserts that, “[a]t this early stage of the case,” he “believes that the form executed for the Plaintiffs arrest, which identifies Kristy Muller as the supervisor, is enough to keep her in this lawsuit.” Response at 7.

The Defendants reply that, in the Response, Reid attempts to defeat the MTD “by pretending that the Amended Complaint alleges things that it simply does not allege.” Reply Memorandum in Support of Defendants’ Opposed Motion to Dismiss First Amended Complaint for Violation of Civil Rights at 1-2, filed September 16, 2013 (Doc. 32) (“Reply”). The Defendants point out that, although Reid contends that Ross knew Reid had already completed his five years of probation and proceeded to fill out a new Order of Probation anyway,

there is simply no allegation in the Amended Complaint that Ross plausibly knew at the time she allegedly prepared and submitted the OOP [Order of Probation] to Judge Purcell that a consecutive 5-year term of probation in one case (Case No. 139) could not follow a 5-year term of probation in another case, when the sentencing document in 139 specifically stated “[t]he aforesaid sentence shall be consecutive to the sentence imposed in Cause No. CR-00-00137 and CR-00-00138.”

Reply at 2. They argue that “preparation of a judicial order is a quintessential ‘judicial function,’ ” and even if Reid establishes through testimony that district judges in New Mexico routinely sign off on probation orders without verifying them, “then plaintiff will merely have established that the district judges in New Mexico have delegated part of their judicial function to the probation officers who prepare the orders for the judges’ signatures.” Reply at 3. They maintain that it would be “patently unfair” for Judge Purcell to have immunity for an order that he prepared himself and not extend that immunity to those who prepare orders for him, even though state rules authorize others to prepare orders and judgments and such practice is routirife. Reply at 3 & n. 1 (citing NMRA 1-058; NMRA 5-121(A)).

The Defendants further contend that— although Reid alleges in the Response that Hatley, Pautler, and Garcia were not performing a judicial function when they falsified the Arrest Order, knowing that Reid had completed his probation — the FAC does not allege that they knew that Reid had completed his probation, that the Order of Probation was infirm, or that it was facially invalid. See Reply at 3. The Defendants maintain that Hatley, Pautler, and Garcia should enjoy quasi-judicial immunity for enforcing the terms of the Order of Probation. See Reply at 3-4 (citing Valdez v. City & Cnty. of Denver, 878 F.2d at 1286). Although Reid attempts to distinguish Valdez v. City & Cnty. of Denver by asserting that the Defendants in this case were not following a court’s direct order, the Defendants contend that, “whatever questions there might be about Ross and the OOP’s genesis,” Judge Purcell signed the Order of Probation, and Hatley, Pautler, and Garcia “were duty-bound to enforce” it. Reply at 4. Further, they assert that Reid did not allege in the FAC that Hatley, Pautler, and Garcia knew that the Order of Probation contained an illegal sentence of probation, “nor is such an allegation reasonably inferable from the non-conclusory factual allegations” within the FAC. Reply at 4. The Defendants compare their case to Tripati v. U.S.I.N.S., and contend that Ross’ “alleged submission of a new order of probation to Judge Purcell for his signature is functionally similar to the preparation of a pretrial release report,” because “preparation of an order of probation in a case where the judgment and sentence specifically said it was to run consecutively with the sentences in two other cases, is an ‘important part of the judicial process.’ ” Reply at 4-5 (emphasis in original) (quoting Tripati v. U.S.I.N.S., 784 F.2d at 348). Even if Ross was “wrong on the law — a point far from clear given the language” in the CR-139 J & S “and the fact that Devigne simply did not address the circumstances present in the instant case” — the Defendants contend that quasi-judicial immunity should still protect Ross. Reply at 5 (citing Kelly v. Cnty. of Montgomery, 2008 WL 3408123 at *1). The Defendants also rely on Tripati v. U.S.I.N.S., asserting that there is nothing in that case “that suggests that such immunity should not extend to a probation officer who prepares a probation order at the express or implied direction of a judge,” and on Valdez v. City & Cnty. of Denver, contending that the case “counsels immunity of defendants for all claims arising from their execution of the facially valid” Order of Probation. Reply at 5.

Regarding the qualified immunity defense, the Defendants contend that the FAC “does not allege that any of the defendants knew that plaintiffs ‘legitimate term of probation ended on March 17, 2007’ or that plaintiffs probation under the OOP was illegitimate,” other than the “conclusory — and therefore insufficient— allegations that ‘the conduct of the Defendants was intentional, willful, wanton, and in reckless disregard of the rights of the Plaintiff.’ ” Reply at 6. In the Defendants’ view, the FAC alleges “ho more” than that Hatley, Pautler, and Garcia “enforced a facially valid order signed by Judge Purcell.” Reply at 6. The Defendants argue that they are entitled to qualified immunity, because, under Hill v. Bogans, 735 F.2d 391, 393 (10th Cir.1984), an officer has no constitutional duty to independently determine a warrant’s validity, unless that warrant is facially invalid. See Reply at 7. The Defendants contend that the FAC’s allegation that their conduct was “intentional, willful, wanton, and in reckless disregard of the rights of the Plaintiff’ is conclusory under Ashcroft v. Iqbal, 556 U.S. at 678, 129 S.Ct. 1937, and that Brown v. Montoya “appears to be flatly at odds with the conclusion in Iqbal.” Reply at 7. The Defendants argue that the

only explanation discernible to defendants (other than the Brown court simply got it wrong) is that the bad acts of the probation officer defendant in Brown — wrongly directing the plaintiff to register as a sex offender and placing the plaintiff in the sex offender probation unit — were not apparently authorized by the probation order, and that somehow convinced the court that Iqbal’s seemingly contrary holding did not apply under the circumstances.

Reply at 7-8. The Defendants maintain that Trask v. Franco, a case on which Reid relies, does not dictate denial of qualified immunity, because “the ‘fact’ that plaintiff was later discharged from probation on agreement by plaintiffs counsel and the Tenth Judicial District Attorney’s office ... is irrelevant.” Reply at 8 (emphasis in original). Further, they point out that Trask v. Franco involved a motion for summary judgment and not a post — Ashcroft v. Iqbal motion to dismiss. See Reply at 8-9. The Defendants assert that Brown v. Montoya'is distinguishable, because the order did not permit the probation officer to order the probationer to register as a sex offender. See Reply at 9.

The Defendants maintain that the Court should dismiss the FAC against Muller, “because it fails to allege sufficient personal involvement in the alleged deprivation of plaintiffs constitutional rights.” Reply at 9. They contend that Reid’s argument for keeping Muller in the case — that a form identifies her as a supervisor — is “insufficient and wholly unsupported by the law.” Reply at 9-10. The Defendants point out that Reid also did not respond to their explanation of why a failure to file a notice pursuant to NMRA 5-805(B) “was of no constitutional consequence” and why State v. Devigne “does not stand for the proposition urged by plaintiff,” and, thus, argue that “the Court may conclude that plaintiff agrees with these arguments.” Reply at 10.

The Defendants direct the Court to McAllister v. District of Columbia, 653 A.2d 849, 851 (D.C.Ct.App.1995), to support their proposition that “the doctrine of absolute judicial or quasi-judicial immunity should be applied to defendant Ross even if she erred in preparation of the” Order of Probation, “submitting it to Judge Purcell for signature, or presenting it to plaintiff.” Defendants’ Notice of Supplemental Authority at 1, filed September 30, 2013 (Doc. 34) (“Supp”). They contend that McAllis-ter v. District of Columbia also supports their argument that “Pautler, Hatley, Garcia, and Muller had no duty to discover any error in the OOP signed by Judge Purcell.” Supp. at 2 (citing McAllister v. District of Columbia, 653 A.2d at 852 & n. 6).

At the hearing on January 17, 2014, the Defendants described the counts against them in Reid’s FAC, see Tr. at 5:23-6:23 (James), and urged the Court to dismiss all the counts against them based on absolute quasi-judicial immunity or qualified immunity, or to dismiss the counts against Muller based on insufficient personal involvement, see Tr. at 6:24-7:7 (James). The Defendants directed the Court to Tripati v. U.S.I.N.S. and Valdez v. City & Cnty. of Denver, arguing that, as the federal probation officer in Tripati v. U.S.I.N.S. preparing the pretrial report was entitled to absolute quasi-judicial immunity for performing an activity intimately associated with the judicial phase of the criminal process, so too are the Defendants in this case entitled to absolute quasi-judicial immunity for their involvement. See Tr. at 7:7-8:13 (James). The Court asked how the state probation system works; the Defendants explained that state probation officers are “employees of the New Mexico Corrections Department,” that they “are not law enforcement officers, they don’t carry guns,” but that they did not know whether they are housed in a building separate from the court in Tu-eumcari. Tr. at 8:14-9:14 (Court, James). The Defendants asserted that “there is no reason to treat state probation officers differently from federal probation officers.” Tr. at 10:9-11 (James). The Court noted that, if a police officer executed a warrant, he or she may have qualified immunity, but “nobody would suggest that a police officer would have judicial immunity,” and asked how a state probation officer executing a court order would have judicial immunity. Tr. at 10:14-24 (Court). The Defendants said that the probation officer could receive quasi-judicial immunity and that, while the label may not be important, “what’s important is that it’s absolute.” Tr. at 10:25-11:3 (James). The Defendants pointed to Valdez v. City and County of Denver, in which the Tenth Circuit “held that an officer charged with enforcing a facial[ly] valid Court order enjoys absolute immunity and is not required to act as a[n] ... appellate Court and second-guess the judge that issued that order, and in this case there is no allegation that the probation order required was not facially valid.” Tr. at 11:4-10 (James). The Defendants explained that the Tenth Circuit decided Tripati v. U.S.I.N.S. in 1986, Valdez v. City and County of Denver in 1989, and Brown v. Montoya in 2011, but that Valdez v. City and County of Denver is “still good law.” Tr. at 11:20-12:4 (James). The Court said that, if it were to issue an arrest warrant, then the United States Marshals would arrest the person, not the probation officer, and thus it would make sense that the marshals would receive absolute immunity for carrying out the court’s order, although the marshals would not be immune if they violated a person’s constitutional rights during the arrest. See Tr. at 12:18-13:20 (Court). The Defendants agreed that, while the probation officers had a court order to supervise Reid, they could not supervise in an unconstitutional way, “for example, forcing [Reid] to provide a urine sample in public.” Tr. at 13:21-14:7 (James). They argued that they are “entitled to absolute immunity for the arrest because again they were just enforcing and carrying out and implementing Judge Purcell’s order.” Tr. at 14:13-21 (James). The Court asked whether a probation officer who makes up a story and presents an application to a judge “filled with falsehoods” should be immune just because the judge signs off on the order. Tr. at 14:22-15:8 (Court). The Defendants asserted that, in Tripoli v. U.S.I.N.S., “it was specifically alleged that they made false statements in the reports that were presented to the Court,” which could cover reckless or intentional false statements, and that the Tenth Circuit still found that the probation officers were entitled to absolute immunity. Tr. at 15:9-20 (James, Court).

Regarding the pleading requirements, the Defendants asserted that Reid must make nonconclusory factual allegations to support that they acted maliciously, intentionally, or with bad faith, that he did not make non-conclusory factual allegations about scienter, and that, although Brown v. Montoya “is problematic,” there were facts in Brown v. Montoya “that are absent in this case.” Tr. at 18:1-19:7 (James, Court). The Court noted that, as a district court, it must “take the position of the Tenth Circuit” and that it may be “stuck” with Brown v. Montoya. Tr. at 19:8-21 (Court). The Defendants suggested that they could distinguish Brown v. Montoya, because, in that case, “the probation officer’s actions were clearly outside the scope” of the probation order, including “placing or forcing the defendant to register as a sex offender” and placing him on “sex offender probation.” Tr. at 19:22-20:15 (James, Court). The Court asked how “that is so qualitatively different than going to the judge and saying” that Reid had “five more years of supervised release or probation and making him serve time that he statutorily was not required to serve.” Tr. at 20:22-21:4 (Court). The Defendants noted that Ross submitted the order to Judge Purcell, but she did not participate in the September 7, 2011, arrest, while Hatley, Pautler, Garcia, and Muller followed the terms of the facially valid order. See Tr. at 21:5-17 (James). In the Defendants’ view, Judge Purcell made the order his own after Ross submitted it to him and he signed it, which “can be thought of as an intervening superseding cause of any harm that befell the plaintiff as a result of that order.” Tr. at 22:18-23:1 (James). The Defendants noted that, had Reid challenged the Order of Probation “by appeal or just a hearing with the judge at the time, we wouldn’t be here today,” and argued that it would be “unfair to allow Judge Purcell to be immune from liability for that order” and hold Ross liable for it, “[especially in light of the fact that it’s four and a half years after the fact and Mr. Reid could have appealed or just simply talked to the judge.” Tr. at 23:10-22 (James). The Defendants said the claim against Ross is a procedural due-process claim, and the Court noted that, when a plaintiff has not pursued an available procedural remedy, the plaintiff cannot maintain a procedural due-process claim. See Tr. at 24:1-25:17 (James, Court).

Reid contended that the Order of Probation was not facially valid, because it recites that Reid pled guilty on April 19, 2001, but the supervised probation was to run from March 14, 2007, until March 13, 2012; he argued: “[Ujnder what possible set of circumstances would a Court in 2001 place someone on probation to begin in 2007 for five years? They wouldn’t.” Tr. at 29:11-19 (Frost). Reid explained that, while the parties dispute how long he was incarcerated, he was at most incarcerated for six months. See Tr. at 29:22-30:3 (Frost). The Court noted that the Order of Probation seemed “a little bit unusual,” that it could not remember imposing a sentence “in 2001 saying in 2007 you’re going to start serving your supervised release,” but that, “effectively I do that all the time in the sense that I say I sentence you to 72 months and following that you’re going to serve five years of supervised release.” Tr. at 30:4-11 (Court). Reid responded that the three judgments show that no one intended Reid to be incarcerated and argued that the Order of Probation was not facially valid. See Tr. at 30:23— 31:7 (Frost). The Court asked why the Order of Probation had to be facially valid; Reid contended that whether it was facially valid is a factor in the qualified immunity or absolute immunity analysis. See Tr. at 31:8-17 (Court, Frost). He explained that “there is a continuum of not what you’re calling a probation officer, but actually what they’re doing on a day-to-day basis,” so that at one end of the continuum, when a probation officer acts like a police officer, he or she is not entitled to absolute immunity, but at the other end of the spectrum, when a court asks a probation officer to complete a presentence report, he or she is part of the judicial decision making process and is entitled to absolute immunity. Tr. at 32:5-33:3 (Frost). Reid argued that, unlike a probation officer preparing a presentence report, the officers in this case made “their own determinations of whether the order should be granted or should not be granted or what should be done. This is not something that’s directed by the Court.” Tr. at 33:3-9(Frost). The Court asked “how do these individual defendants fair with your spectrum analysis” and “when would a probation officer ever, then be entitled judicial immunity.” Tr. at 33:13-17 (Court). Reid responded that a probation officer would be immune in a situation like Valdez v. City and County of Denver; where the probation officer was not involved in any aspect of the court’s decision to have the person arrested, but that “none of the defendants in this case meet that requirement.” Tr. at 33:17-34:2 (Frost). Reid asserted that negligence can serve as the basis for liability in a § 1983 claim based on the Fourth Amendment, although not for a procedural due-process claim. See Tr. at 34:3-21 (Frost) (citing Berg v. Cnty. of Allegheny, 219 F.3d 261 (3rd Cir.2000); Pitchford v. Borough of Munhall, 631 F.Supp.2d 636 (W.D.Pa.2007)). He explained that those cases involved qualified immunity, not absolute immunity, because “I’ve never thought this case was absolute immunity, had anything to do with it. It’s qualified immunity.” Tr. at 35:12-36:2 (Frost). The Court asked if Reid had anything further to say about judicial immunity, and he said that he did not. See Tr. at 36:3-6 (Court, Frost).

The Defendants pointed out that the CR-139 J & S “specifically said that the sentence was to run consecutively” to CR-137 and CR-138, and, thus, Ross was “acting like a scribe of the Court, preparing an order.” Tr. at 36:12-16 (James). They contended that the portion of the Order of Probation that Reid emphasized was “a recital,” and that the “meat of the order still says, You’re on probation till this date, and you probation officers need to enforce[ ] this order.” Tr. at 36:17-20 (James). In the Defendants’ "view, “the responsible parties” for any incorrect probation order were the district attorney, Reid’s then-attorney, and the judge who signed the orders, but that it would not be fair to “mak[e] Ross stand for a suit for damages for these past acts when Reid failed to do anything about it at the time.” Tr. at 36:21-37:4 (James).

Reid contended that none of the Defendants are entitled to absolute immunity, “because first we don’t have a facially valid order, and we have additional evidence as we go through the file over the period of time that there were problems with this probation.” Tr. at 37:19-35 (Frost). He explained that, in 2007, the court issued orders of discharge in CR-137 and CR-138, showing that Reid “had committed no violations” and that “he’d been a model citizen.” Tr. at 38:2-6 (Frost). He asserted that “somebody looking through the file could have clearly determined that there is something not right here,” because CR-137, CR-138, and CR-139 were “intertwined at every stage of the proceeding.” Tr. at 38:6-11 (Frost). He asked “why wouldn’t somebody ask that if he’s discharged from probation in two other cases why would he continue to be on probation in this one and why would that probation start five years later?” Tr. at 38:11-15 (Frost). He pointed out that “Ross had all the documentation in front of her,” that “Garcia, as he supervised him over a period of three or four years, had available all the information,” and Muller, as Garcia’s supervisor, “participated as a supervisor” when Reid checked in each month and when the probation officer searched his house. Tr. at 39:16-6 (Frost). Reid further argued that it should have “r[u]ng a bell to somebody that something [wa]s not right” when Reid’s conviction was from 2001, “and yet in 2011 he’s going to go to jail.” Tr. at 39:12-16 (Frost). In Reid’s view, the officers had “malicious intent” by arresting Reid, because they could have “easily filed an application with the Court to revoke his probation” and then determined whether he needed to be arrested. Tr. at 39:18-24 (Frost). He contended that they “misrepresented his status and said the reason we’re going to hold him without a bond is because he’s a risk to himself,