Mark Bralley's Complaint Motion to Dismiss Opposition to Motion and affidavits

UNITED STATED DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

Mark G. Bralley, ) )

Plaintiff, ) )

v. ) ) The ALBUQUERQUE PUBLIC ) SCHOOLS BOARD OF EDUCATION, ) Former Member ROBERT LUCERO, in his ) individual capacity, Former Member ) DAVID ROBBINS, in his individual ) capacity, Former Member PAULA MAES, ) in her individual capacity, MARTIN ) ESQUIVEL, in his individual capacity, ) KATHERINE KORTE, in her individual ) capacity, The ALBUQUERQUE PUBLIC ) SCHOOLS, WINSTON BROOKS, in his ) individual capacity, BRADLEY WINTER, ) in his individual capacity, MONICA ) ARMENTA, in her individual capacity, ) RIGO CHAVEZ, in his individual capacity, ) JOHN MILLER, in his individual capacity, ) STEVE TELLEZ, in his individual ) capacity, STEVE GALLEGOS, in his ) individual capacity, ALBUQUERQUE ) PUBLIC SCHOOLS POLICE ) DEPARTMENT, ) )

Defendants. ) ____________________________________)

COMPLAINT FOR VIOLATIONS OF THE FIRST, FOURTH, FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION; VIOLATION OF ARTICLE II BILL OF RIGHTS SEC. 17. [FREEDOM OF SPEECH AND PRESS; LIBEL] AND SEC. 18. [DUE PROCESS; EQUAL PROTECTION] OF THE NEW MEXICO CONSTITUTION; AND TO ENFORCE THE NEW MEXICO OPEN MEETINGS ACT, AND TO ENFORCE THE NEW MEXICO INSPECTION OF PUBLIC RECORDS ACT

WRIT OF MANDAMUS TO ENFORCE THE NEW MEXICO OPEN MEETINGS ACT, AND TO ENFORCE THE NEW MEXICO INSPECTION OF PUBLIC RECORDS ACT. Mandamus Act, 28 U.S. C. §1361, and against the agency defendants under the Administrative Procedure Act, 5 U.S.C. § 706.

Plaintiff Mark G. Bralley, acting Pro Se, brings this complaint for violation of his civil rights under the First, Fourth, Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and 42 U.S.C. § 1983, and violations of Article II Bill of Rights Sec. 17. [Freedom of Speech and Press; Libel], and Sec. 18. [Due Process; Equal Protection] of the State of New Mexico Constitution and to enforce certain provisions of the New Mexico Open Meetings Act, NMSA 1978, , §§ 10-15-1 et seq, and to enforce the New Mexico Inspection of Public Records Act, NMSA 1978, §§ 14-2-1 et seq.

Plaintiff makes a demand a jury trial.

I. GENERAL NATURE OF THE ALLEGATIONS This case arises from Defendants’ willful, intentional, malicious, arbitrary

and capricious attempts to exclude plaintiff from attending open meetings and making reasonable accommodations to video and audio record, report, and photograph for publication members of the public interested in following the activities of the Albuquerque Public School system, by forceful removal, physically barring, and by serving a banning letter signed by defendants from any meetings on all Albuquerque Public School property, without due process in violation of plaintiff’s First, Fourth, Fifth, Sixth, and Fourteenth Amendment rights.

Background related to the First Amendment Claims Defendants severely limited access for “all persons desiring shall be

permitted to attend and listen to the deliberations and proceedings,” of an open meeting of the APS District Relations Committee hosting the APS 2010 Gubernatorial Education Debate on August 19, 2010, which was subject to the New Mexico Open Meetings Act requirements by selecting a small venue; the 400 seat performing arts center at Eldorado High School.

Defendants Executive Director of Communications Monica Armenta and Communications Specialist John Miller joined in cahoots with the political campaigns of: Democratic Party candidate Lt. Governor Diane Denish and Republican Party candidate Susana Martinez to limit the size of the venue for the gubernatorial debate.

Defendants Armenta and Miller ignored the mandatory language of the Open Meetings Act:

NMSA 1978, §§ 10-15-1. Formation of Public Policy.

Defendants created arbitrary and capricious rules, in addition to excluding all persons desiring to attend and took unreasonable efforts prohibiting the use of audio and video recording devices of non-media credentialed members of the public.

Defendants arbitrarily and capriciously defined members of the press and assumed the duty to, “credential media for debate attendance,” and further responded to requests for access to attend and listen to the … proceedings and to have reasonable accommodations for audio and video recording devices, by taking a position of plausible deniability for their deliberate violation of the Open Meetings Act, defendants notes included:

If we receive criticism for limited seating, simply say it’s due to the venue.

__________

Defendants Armenta and Miller systematically chose which media outlets would be granted APS credentials based on the method of publication. Defendants granted credentials to “broadcast stations licensed by the federal communications commission and newspapers of general circulation,” misapplying an example of “press,” as found in the Open Meetings Act of a partial list of media entitled to notice of agendas, if requested.

NMSA 1978, §§ 10-15-1. Formation of Public Policy Defendants Armenta and Miller specifically denied requests from Web-

log, on-line publications including: any representative of the web-log Heath Haussamen on N.M. Politics, Barbara Wold and Ellen Brodrick of Democracy for New Mexico, Rob Nikolewski from Capitol Reports, former APS teacher, Charles Edward “Ched” MacQuigg, who is an ethics activist and has a web-log “DIOGENES'SIX,” and plaintiff’s efforts through several media outlets, and possibly others.

That [the First] Amendment rests on the assumption that the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public, that a free press is a condition of a free society. Surely a command that the government itself shall not impede the free flow of ideas does not afford nongovernmental combinations a refuge if they impose restraints upon that constitutionally guaranteed freedom. Freedom to publish means freedom for all, and not for some. Freedom to publish is guaranteed by the Constitution, but freedom to combine to keep others from publishing is not. Freedom of the press from governmental interference under the First Amendment does not sanction repression of that freedom by private interests.

U.S. Supreme Court Associated Press v. United States,

326 U.S. 1 (1945) Emphasis added.

A journalistic colleague of plaintiff, who was working indirectly with APS with whom plaintiff attempted unsuccessfully to partner with, wrote:

If it makes you feel any better APS rejected a lot of requests from a lot of other organizations. One of the TV stations told me today they had two of their guys rejected—they have no talent going, only a camera.

__________

The court in Sheehan v. Gregoire, ruled that websites are “analytically indistinguishable from newspaper[s].” 272 F.Supp.2d 1135, 1139, n. 2, 1145 (W.D. Wash. 2003)

United States Department of Justice, Civil Rights Division, Special Litigation unit wrote a letter on May 14, 2012, to the lawyers in the case of Christopher Sharp v. Baltimore City Police Department, et. al., to guide them during an upcoming settlement conference before U.S. District Court Judge Paul W. Grimm.

In this letter, the Department of Justice took an unprecedented position of outlining their belief of what a government policy they would consider to meet the civil rights of citizen photographers:

F. Police departments should not place a higher burden on individuals to exercise their right to record police activity than they place on members of the press.

The Supreme Court has established that “the press does not have a monopoly on either the First Amendment or the ability to enlighten.” First Nat. Bank of Boston v. Bellotti, 435 U.S. 765, 782 (1978). Indeed, numerous courts have held that a private individual’s right to record is coextensive with that of the press. A private individual does not need “press credentials” to record police officers engaged in the public discharge of their duties. See e.g., Glik, 655 F.3d at 83 (“The First Amendment right to gather news is, as the Court has often noted, not one that inures solely to the benefit of the news media; rather, the public’s right of access to information is coextensive with that of the press.”); Lambert v. Polk County, Iowa, 723 F.Supp. 128, 133 (S.D. Iowa 1989) (“It is not just news organizations . . . who have First Amendment rights to make and display videotapes of events—all of us . . . have that right.”). The First Amendment “attempt[s] to secure ‘the widest possible dissemination of information from diverse and antagonistic sources,’” including the “promulgation of information and ideas by persons who do not themselves have access to publishing facilities-who wish to exercise their freedom of speech even though they are not members of the press.” New York Times Co. v. Sullivan, 376 U.S. 254, 266 (1964).

__________

Defendants published, that based on their selection of the size of the venue, they responded to requests from uninvited guests that it, ”… would exclude

accommodating all persons who wish to attend and to limit or exclude any person, media or otherwise for being allowed to cover the event as they see fit.”

Defendants further established arbitrary rules to be enforced by security, including:

No photography, cell phones. Give still photographers access at the beginning of debate (intros?), then they have to return to media section in back.

In a letter from defendant, APS Communications Specialist John Miller, “Final Guide to the 2010 Gubernatorial Education Debate,”

Please note:

… Please also note that photographers have been informed about when and where video and still photos may be shot.

… Remember, media must have an APS-issued credential to enter the school.

Such restrictive considerations are in violation of several specific points of the First, (Fifth, and Fourteenth to be discussed later) Amendments to the United States Constitution against government specifically:

...abridging the freedom … or of the press; or the right of the people peaceably to assemble….

Article II Bill of Rights Sec. 17. [Freedom Of Speech And Press; Libel],

of the State of New Mexico Constitution.

Every person may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or of the press….

Defendants devised restrictions, which further constitute prior restraint where there is no overriding compelling governmental interest needing such actions in an open society.

Plaintiff suffered direct harm by not being able to engage in the activities as a citizen and a photojournalist provided by law and protected by the First Amendment.

__________

Prior to the August 25, 2010, Audit Committee meeting coming to order, defendant Superintendent Winston Brooks complained about where plaintiff started to set up his video equipment. Plaintiff chose a location behind where defendant Brooks was seated, which is a large empty area where plaintiff had previously used to work on several occasions, and from which it drew no adverse attention. The location provided plaintiff with a good vantage point to see all the APS Board members and any witnesses without being in the way of any audience or staff members. Defendant Brooks objected

to having anyone behind him, because he felt uncomfortable, and he did not want his e-mail read on the electronic device he had in front of him.

Defendant Committee Chairman David Robbins ordered plaintiff to move to a specific location, which plaintiff did after a short discussion about what constituted reasonable accommodations for video recording under the Open Meetings Act.

Near the end of the meeting, defendant, APS Board member Robert Lucero, demanded plaintiff move again to a location behind the board, where the, “media traditionally set up.”

A reporter-photographer from KRQE, reporting on a story of the loss of a large number of laptop computers had worked from the corner so he could record the witnesses telling the committee about the situation. The reporter, having gotten the video he needed, abandoned the corner. Defendant Lucero, through his demand, was classifying plaintiff as the media.

From the corner location, Lucero’s face could not be documented. Defendant Robbins, ordered a second moving, but did not order another person video recording next to plaintiff to also move. This occurred just as Robbins recessed the meeting to go into a closed session.

The Open Meetings Act does not distinguish between, “persons desiring to attend,” and the press, nor does the requirement that reasonable efforts shall be made to accommodate the use of audio and video recording devices, apply differently from all persons, the press included. Consistent with the Open Meetings Act’s “all persons desiring shall be permitted to attend and listen to the deliberations and proceedings,” and accommodating “… the use of audio and video recording devices,” should not be relegated to an unreasonable location.

Defendant Robbins suspended the open meeting by instructing the recorder be turned off to go into the closed session. Plaintiff continued to record with his hand-held video camera approaching defendant Lucero near the exit.

“Maybe we should just throw them out, ... and lets eject them,” Lucero told Robbins.

Upon reconvening from the closed portion of the meeting, defendant Robbins, ejected plaintiff and Mr. MacQuigg.

Transcript of meeting as it reconvened from the closed session.

Robbins: Now, before we take a vote I’m going to ask those individuals that were in here with the recording devices in here earlier to leave ‘cause you violated my instructions to turn off your recording devices at the time I told you to so I’m asking you to take all of your equipment out of this room at this point in time. You are being expelled.

Mr. MacQuigg would take exception, as he had done nothing to record earlier, saying:

… I didn’t have any recording devices, what part of that do you not get?

Bralley: I’m going to speak to the matter of that -- the Open Meetings Act allows you to go into executive session (inaudible language) you were not in an executive session of the kind that I have (inaudible) the meeting. The reason I left the recorder on is Mr. Lucero was making commentary about throwing Mr. MacQuigg and myself out of this session and made the suggestion that we not be allowed to return. Now, I would ask you to consult with Mr. Melendres here about the requirements of the Open Meetings Act, specifically that an Open Meeting requires the reasonable accommodation of audio and video equipment and that you are attempting to make the ability (inaudible) to observe a public meeting less than reasonable by trying to move us out of a place that, I mean I have not previously…

Robbins: We’ve discussed this, you, you violated the instructions that I gave, I don’t really care if you believe we weren’t in closed session at the time I told the recorder to be turned off. We went into closed session at that point in time.

Bralley: Well, not everyone who was required to be out of the room had left the room at that moment (still talking but not audible).

Robbins: I instructed that all recording devices were to be shut off so please leave right now.

Bralley: I am going to suggest that you also, under the state law, do not have the authority to remove somebody from a public meeting, that, that power belongs to somebody else and it’s not the police officers.

Esquivel: Both of you get out of here now! Out!

Plaintiff’s suggested reference that Robbins did not have the authority to remove somebody from a public meeting is to state law:

Statutory Chapters in New Mexico Statutes Annotated 1978,Chapter 30 Criminal Offenses, Article 20 Crimes Against Public Peace, §§ 30-20-13 Interference with members of staff,

public officials or the general public; trespass; damage to property; misdemeanors; penalties.

This statute requires the "lawful custodian of the building, facility or property." to give the removal order, not a board chair.

Defendants APS Superintendent Winston Brooks, and APS Chief Operations Officer Brad Winter, were the two people at the meeting fitting the definition of "lawful custodian of the building, facility or property," empowered to take such action.

Defendant Winter instructed APS Police Officers, Sgt. Kim Murray and Officer Paul Cadena to escort us from the building, plaintiff acquiesced by leaving and Mr. MacQuigg followed.

Defendant Robbins made a personal comment after the plaintiff left the room, directed more towards Mr. MacQuigg.

Before I adjourn the meeting. This can go on the record. I was informed right after the last, well after the Governor’s debate, that Mr. MacQuigg has been making statements derogatory and has implied that he has never done anything wrong and I also have information that he has made implied threats and for that reason alone I feel justified in removing these individuals because I consider them to be hostile and although that in and of itself does not allow us to remove someone who may have made threats against personnel of APS, I consider that against all our public staff and people who work with us and against this Board. So, that can be on the record. I’ll adjourn the meeting.

Mr. MacQuigg had done nothing, nor had he said anything before or during the meeting, which under any analysis might give rise for defendant Robbins to eject him.

Plaintiff made no recording in the meeting room after the room was cleared; the doors were shut and guarded by two APS police officers as the closed portion of the meeting continued.

Defendant Robbins’ personal comment is convoluted:

… and for that reason alone I feel justified in removing these individuals because I consider them to be hostile and although that in and of itself does not allow us to remove someone who may have made threats against personnel of APS, I consider that against all our public staff and people who work with us and against this Board. So, that can be on the record.

Defendant Robbins did not suggest plaintiff had in any way engaged in making threats.

Defendant Robbins determined plaintiff to have been “hostile” because plaintiff asserted his First Amendment rights and questioned what was and was not a reasonable accommodation for allowing audio and video recording as a requirement of the Open Meeting Act:

… and all persons desiring shall be permitted to attend and listen to the deliberations and proceedings. Reasonable efforts shall be made to accommodate the use of audio and video recording devices.

NMSA 1978, §§ 10-15-1. Formation of Public Policy. Defendant Robbins’ ejection of plaintiff, backed by defendant Esquivel,

was not based on any actual action by the plaintiff, except it provided a pretext for defendant Robbins to eject Mr. MacQuigg based on a hearsay complaint from an unnamed staff member for making an implied threat.

Plaintiff and Mr. MacQuigg were well aware that defendant Monica Armenta had complained to former State Representative Janice Arnold-Jones, who had given her ticket to Mr. MacQuigg. Defendant Armenta had told Arnold-Jones, Mr. MacQuigg had threatened her, and her family, while at the Gubernatorial Education Debate.

Armenta would publish her accusation in an August 20, 2010, e-mail string with Arnold-Jones and James Hallinan, Press Secretary for the Democratic Party of New Mexico working with the Diane Denish campaign.

Defendant Armenta wrote Hallinan:

Re: Re: FYI: MacQuigg Blog Today Thanks James – this is mild compared to the ramblings usually entered in this blog. I let Janice Arnold-Jones know last night that I am personally fearful of Mr. MacQuigg as I believe him to be obsessed and extremely irrational. Members of my staff and several people in this building are also afraid that Mr. MacQuigg may someday act on his anger and frustration.

Hallinan wrote Armenta in response,

Thank you for everything and for being so accommodating. You and your team did an amazing job! I know Diane will be getting in touch with you all as well to express her gratitude. Ched is something else. He has blogged about me several times too and even called me Diane's evil henchman! I agree with everything you said about him, he is certainly irrational and dangerous. Sorry he caused problems, but last night was a huge success! Thanks, James

Armenta wrote Arnold-Jones

Hello Ms. Arnold-Jones, Thank you again for listening to my concerns last night. Almost all of my professional life has been public so I’ve had to learn when to be truly concerned with safety threats and when to let some things go. I’ve also learned to trust my gut. I thought I’d share this e-mail with you since you suggested I start documenting my concerns.

The arrest and ejection denied plaintiff from attending, observing, recording, documenting, photographing, reporting and publishing the activities of the end of the open meeting.

__________

On September 1, 2010, defendant APS Police Chief Steve Tellez, handed Mr. MacQuigg a sealed envelope containing a letter, banning him from APS Board meetings; he was not allowed in the building.

Defendant Tellez told plaintiff, “You’re allowed in.”

Plaintiff entered the building with his cameras and presented himself at the door to the John Milne Community Board Room. Two APS uniformed police officers: Sgt. Mora, Officer Green, and a plainclothes Detective Gary Georgia, confronted plaintiff, refusing to recognize him as media, denying, and physically barring his entry.

Defendant Deputy Chief of Police Steve Gallegos told plaintiff, “You, specifically, are not allowed in.”

Defendant Tellez refused to respond to plaintiff’s effort for him to confirm to defendant Deputy Chief Gallegos, his statement, “You’re allowed in.” By not responding, Tellez let stand Gallegos’ barring, further violating plaintiff’s rights.

__________

On October 8, 2012, defendant APS Board member Katherine Korte, physically applied force to plaintiff’s camera lens and through it, to his body, in an attempt to prevent her picture being taken. Plaintiff had questioned Korte about exceeding her authority as an individual board member, which resulted in an APS security aide barring another citizen, Mr. MacQuigg, from lawfully attending a forum, “APS Taking Input on Family, Community Engagement Policy, Procedures.” Mr. MacQuigg was specifically invited, by School Board Services and Government Affairs Executive Director Brenda B Yager, through an October 2, 2012, email entitled, “You Are Invited.”

Defendant Korte caused plaintiff’s arrest and ejection from the building. When plaintiff asked, to speak with the senior most APS official on-duty, acting Lieutenant, Police Sergeant Paul V. Brady responded:

Bralley: Why am I being expelled? Brady: For taking her (Korte’s) picture.”

Bralley: And what law prohibits taking pictures? Brady: None, but it’s a matter of courtesy, that when she

asked that you not take her picture, you don’t. Bralley: So, you’re going to violate the First Amendment?

Brady: I’m not violating you’re First Amendment rights. Bralley: My editorial right to cover a publicly elected

official, in a public place, doing her public duty?

Brady: I’m through talking to you; you’re just pushing my buttons.

In this case, Korte’s attempt to keep Mr. MacQuigg from attending the public discourse. Her physical attack on plaintiff, placing her hand on the camera lens blocking and preventing plaintiff photographing her is nothing short of an act of physical censorship.

__________ On October 10, 2012, two uniformed APS police offices came to

plaintiff’s home to serve a letter from defendants: Board President Paula Maes, Superintendent Winston Brooks, and Chief Operations Officer Brad Winter, banning plaintiff from attending any meeting on APS property.

Defendants allege no less than 10 acts of criminal conduct.

__________ On October 11, 2012, plaintiff received by certified mail, return receipt

requested, the same October 10, 2012, letter delivered by hand the day before. __________

On November 7, 2012, plaintiff responded to the banning letter refuting the allegations, as stated, and asserted that no crime(s) had been committed.

Plaintiff challenged the defendant signers, and defendant Chief Tellez, because they included him in their October 10, 2012, letter, when plaintiff wrote to defendant signers and Tellez, delivered by certified mail:

I am in receipt of your collective letter of October 10, 2012, in which you allege no less than 10 acts of criminal conduct. I have committed no crime.

The events surrounding your allegations were not only lawful, but were protected rights under both the United States and New Mexico Constitutions, specifically, the First Amendment of the U.S. Constitution and Section 17, [Freedom of speech and press; libel], of the New Mexico Constitution. Each of you, individually, as elected or appointed officers of Albuquerque Public Schools, along with your client, APS, lack jurisdiction to ban or condition my presence at any public gathering on APS property, or any public meeting(s), especially those set forth in the New Mexico Open Meeting Act, NMSA 1978, Sections 10-15-1 to 10-15-4, without first establishing probable cause for an: indictment, charge, or information, followed by a successful prosecution.” I will continue to act in accordance with the universally accepted, well-honed, thorough training and experience, sense of journalistic and photographic professionalism demanded of my craft. I do not seek nor do I ask anyone’s permission to exercise my

Constitutional rights, and you are Constitutionally prohibited from attempting to prevent me from doing so.

Therefore, I insist you either: 1) charge me with all allegations you’ve made and make your case, for conditioning my presence or banning me, to our judicial system (courts), Or 2), withdraw this notice and inform, by internal memorandum, all APS employees who may have been: told, informed, or have learned through gossip, or rumor of the substance of your letter that my rights to be present are guaranteed by law.

__________

Defendants did not respond. Defendant’s banning letter has a profound affect on plaintiff’s right to

observe and photograph, government, record its proceedings and report on their activities, making commentary, which may even be critical in nature.

The lack of any procedure to challenge the banning letter through an impartial due process mechanism results in an on-going abridgement by government of the freedom of the press, the right of the people to peaceably assemble, and to petition for redress of grievances.

__________ On January 28, 2013, plaintiff attended an APS Press Conference at West

Mesa High School arranged by defendant Robbins who made a public promise to do so, while campaigning for reelection to the board.

At the end of the press conference, plaintiff spoke with defendant Chief Tellez. Tellez said the banning only applied to APS headquarters, contrary to what the letter said. Plaintiff told Tellez that he was not going to allow any government official define how he practiced his craft as a precondition to attending a public meeting, or to lecture him on protocol at such meetings.

Plaintiff had an on-the-record conversation with defendant Tellez who indicated that the banning letter sent to me only applied to me at city center (APS headquarters, 6400 Uptown, N.E.).

Plaintiff told Tellez he doesn't ask permission to exercise his constitutional rights nor will he sit for a lecture about how he does his work; plaintiff said he had not done anything photographically at APS that he had not done in front of the President of the United States, Congressional members, Legislatures, Governors, or other elected people.

Defendant Tellez, a photographer himself, indicated he was trying to do neither.

Defendant Tellez said defendants only complaint was the board objected to plaintiff, was:

You put a camera in their face and take hundreds of pictures, and that intimidates them.

Plaintiff told Tellez that any sense of intimidation belongs to defendants. Plaintiff explained that similar to assault, it belongs to the person who believes they are about to receive an immediate battery. However, having a camera put in their face, the only reasonable fear they should have is of having their picture taken.

Plaintiff further responded with a standard line he uses with public officials who ask why so many pictures, or complain about having their pictures taken:

Public person – public place. Plaintiff has used the line on Tellez before, because he doesn’t particularly

like having his picture taken and has turned his back, stood behind pillar and post, attempting to avoid being photographed.

Plaintiff told Tellez that as far as he was concerned, they had the mandatory talk required by the banning letter.

Defendant Tellez didn't dispute plaintiff‘s statement. Plaintiff asked if Tellez had gotten his message from Sgt. Brady after the

incident with Korte, wanting to speak to him about policy issues. Defendant Tellez said he had received the message, but was not going to

respond because he had not been there. (Neither had Brady, but he spoke.) Plaintiff asked Tellez if APS PD had a written policy on recording audio

and or video of incidents, which might become issues of concern in the press? Defendant Tellez said there was a policy, but it was only suggestive, not

mandatory. Plaintiff asked Tellez how plaintiff could not have been on video the entire

time he was in the building; in the lobby and in the boardroom? Defendant Tellez said the boardroom only had camera coverage at the

front of the room. Defendant Tellez said, “they” came and looked at the video.

Plaintiff told Tellez he had not gotten a final response to his request for inspection of public records.

Plaintiff told defendant Tellez, that this discussion fulfilled the requirement of the October 10, 2012, banning letter’s requirement:

In the future, before you attend any meeting on APS property it will be necessary for you to make an appointment with APS Police Chief Steve Tellez to discuss these past problems and work out an agreement with respect to your behavior at the meeting. (It will be permissible for you to be on APS property for that mandatory meeting with Chief Tellez.) If you wish to meet with Chief Tellez, please call him at 243-7712 to arrange a mutually convenient time.

The defendants, by not rescinding their banning letter, continue to violate plaintiff’s First Amendment rights.

__________ On November 2, 2012, Mr. Charles "Ched" Macquigg filed in the United

States District Court for the District of New Mexico a verified complaint for violations of the First and Fourteenth Amendments to the United States Constitution and to enforce the New Mexico Inspection of Public Records Act. The case is, No. CIV 12-01137 MCAlKBM, captioned:

Charles "Ched" Macquigg, Plaintiff, v. The Albuquerque Public Schools Board Of Education, et al. Defendants.

__________

Background related to the Fourth Amendment Claims

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Fourth Amendment

The people shall be secure in their persons, papers, homes and effects, from unreasonable searches and seizures, and no warrant to search any place, or seize any person or thing, shall issue without describing the place to be searched, or the persons or things to be seized, nor without a written showing of probable cause, supported by oath or affirmation.

Article II Bill of Rights Sec. 10. [Searches and seizures.]


At the August 25, 2010, Audit Committee meeting, defendants APS Board members: Robert Lucero, Audit Committee Chairman David Robbins, President of the APS Board Martin Esquivel, along with Chief Operations Officer Bradley Winter, ejected plaintiff and Mr. MacQuigg, removing them under force of arms by APS police officers for allegedly video recording during a closed portion of the meeting.

Plaintiff objected to being ejected and asked Robbins to consult his legal counselor, Art Malendres, sitting next to plaintiff, to explain the meaning of the reasonable accommodation for audio and video recording of public meetings, found in the Open Meetings Act. Being moved to a location behind the board was not reasonable. A video should show what the public sees.

Defendant Robbins made a personal comment after the plaintiff left the room, directed more towards Mr. MacQuigg than towards plaintiff.

Before I adjourn the meeting. This can go on the record. I was informed right after the last, well after the Governor’s debate, that Mr. MacQuigg has been making statements derogatory and has implied that he has never done anything wrong and I also have information that he has made implied threats and for that reason alone I feel justified in removing these individuals because I consider them to be hostile and although that in and of itself does not allow us to remove someone who may have made threats against personnel of APS, I consider that against all our public staff and people who work with us and against this Board. So, that can be on the record. I’ll adjourn the meeting.

The minutes of the Audit Committee meeting would reflect the “official version,” not the factual version of events:

XI. Statement of Closure

Mr. Robbins stated that the Audit Committee met in executive session on August 25, 2010, for the purpose of discussing limited personnel matters in connection with Internal Audit as authorized by the limited personnel matters exception -NMSA 1978,10-15-1(H) (2). The matters discussed in the executive session were limited only to those specified.

At this point, David Robbins asked two members of the public to leave the meeting for not turning off their recording devices in a timely manner and for disrupting the meeting.

__________

On September 1, 2010, when Deputy Chief of Police Steve Gallegos refused plaintiff entry to the School Board meeting, he was uninformed whether plaintiff was similarly banned, as was Mr. MacQuigg.

After plaintiff was denied entry to the board meeting, APS Police Lt. Alan Rider approached Plaintiff, starting a conversation about the Board ejecting and banning of Mr. MacQuigg and plaintiff.

Rider: …The thing is, you know, as well as I do, what kind of problems we’re having.

Bralley: Yeah, the cause is at the front of the room, not the back of the room.

Rider: Why are you banned? Bralley: I’m not banned. Rider: Well, why is Chad (sic) banned? Bralley: They say because of a letter written in ‘09. Rider: And what does that letter say?

(I explained that MacQuigg was being banned for the content of his speech, that the board didn’t like what he was saying, and that was censorship.)

Rider: And how do you define censorship? Bralley: Not allowing someone to speak freely. How do you

define censorship? Rider: When you are disruptive and causing trouble. Bralley: Wouldn’t that be disorderly conduct? Rider: Probably, yeah, so that’s why people get banned. Bralley: So, why haven’t you ever charged anybody? Person

is innocent till proven guilty. Rider: So, you say you want to be charged? Bralley: What I’m saying is… Rider: Were you disruptive? Bralley: I’m not disruptive, but if you say I’m disruptive,

then you have to prove that in a court of law. Rider: Now you were a police officer, right? Bralley: I was. Rider: So you know what it’s all about?. Bralley: I absolutely know what it’s all about. Rider: Then I don’t need to explain it to you. Bralley: What you’re doing is not what it’s all about. Rider: Well, that’s what makes this country great, right? Bralley: Those opinions get exercised through Constitutional

process. Rider: Well…. Bralley: What part of the Sixth Amendment don’t you

understand? (In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district where in the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.)

Rider: I shouldn’t have to explain it to you. Bralley: You don’t have to explain it to me; I know you

don’t understand it.

Rider turned and walked away. __________

On September 23, 2010, plaintiff and Mr. MacQuigg went to the Alice and Bruce King Educational Complex, to inspect the public records we had individually requested.

Within moments of arriving at the communications office, Mr. MacQuigg was accosted by three APS police officers: defendant, Deputy Chief Steve Gallegos, Lt. Allan Rider and Officer Paul Cadena, who came into the office and confronted him.

When defendant Gallegos and the other officers opened the door, it blocked their view of plaintiff.

“Are you banned from APS property,” officers asked?

Mr. MacQuigg responded, no, that he was only banned from school board meetings.

The officers continued to challenge him until plaintiff stepped out from behind the door and said he had read the letter and the ban only applied to the board’s meetings.

Defendant Gallegos seemed to take plaintiff‘s word and left.

__________ On October 8, 2012, defendant APS Board member Katherine Korte,

physically applied force to plaintiff’s camera lens and through it, to his body, in an attempt to prevent her picture being taken. Plaintiff had questioned Korte about exceeding her authority as an individual board member, resulting in APS security barring another citizen, Mr. MacQuigg, from lawfully attending a forum, “APS Taking Input on Family, Community Engagement Policy, Procedures.” School Board Services and Government Affairs Executive Director Brenda B Yager, specifically invited Mr. MacQuigg through an October 2, 2012, email entitled “You Are Invited.”

Defendant Korte wrote in a statement to APS police, for inclusion in a information report, after the incident:

I was asked by Officer Tony (Sanchez) whether McQuigg was

allowed in. Tony told me that McQuigg was out front, telling him

he had been invited to the community meeting and since it was a

community meeting, he should be allowed in allowed in. Tony

asked if this was true.

I told Tony that to the best of my knowledge, McQuigg was not

allowed in any meetings at City Center and that I had not heard

anything on the contrary….

__________

Defendants: Board members: Robert Lucero, David Robbins, Martin Esquivel, Katherine Korte, and Deputy Chief Steve Gallegos, operated under mistaken hearsay, rumor, gossip, and speculation, rather than having any facts, or direct knowledge when it came to making decisions leading to arrests, ejections, banning and barring of plaintiff.

Defendants actions caused arrests and ejections of the plaintiff, without criminal charges being filed, and where there was no probable cause to believe a crime had been committed for which defendants could lawfully seize the plaintiff, but unreasonably did so at the whim of defendant board members for being questioned about their: arbitrarily, capriciously, and maliciously exceeding their presumed authority, and violating their own established board rules and APS policies; by enforcing some sort of orders, that defendant think might be proper, enforceable, or even legal. The APS police officers, present during some of the events, did not establish probable cause for any violation of the law occurring in their presence, on their own, to the extent they may have affected an arrest, under their own power and legal authority.

The actions of these defendants compounded the violations depriving plaintiff of his rights and liberty to go about his business of reporting and photographing government in operation under the protection of the First Amendment.

During the March 27, 2012, meeting of the District and Community Relations Committee, the entire board participated as a committee of the whole, addressing an agenda item; a petition submitted by the Citizens Advisory Council on Communications, seeking recognition in establishing two-way communication with the APS administration and the board.

Defendant Korte made a statement about why she would oppose the request:

I'm sorry to say, I know that one of your leaders is Ched

MacQuigg. I read his blog every now and then. It is the most

negative thing I have ever read. So I don't read it, actually. To be

honest with you, I don't read it. So I'm suspect of your intentions

because I know Ched MacQuigg plays a big Role in this, and he's

the most negative person I've ever met in my life.

Defendant Korte’s statement tends to show a bias against Mr. MacQuigg and his associates and would have brought into question the credibility of her statement under oath or affirmation before an independent magistrate.

However, at no time have the actions of the plaintiff, that were deemed inappropriate by the defendants, to the point of arresting, expelling, and giving plaintiff notice of his banning from APS property, been offered for consideration to an independent magistrate establishing probable cause, supported by oath or affirmation that would support issuing a warrant to seize the plaintiff.

__________

Background related to the Fifth Amendment Claims Plaintiff has a right to freely engage in the activities protected by the First

Amendment and especially that: Congress shall make no law ... or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Plaintiff has a right to engage in commerce, in business pursuits, and has a liberty and Property interest in doing so.

Being present at an open meeting, observing, listening, photographing, video and audio recording, and plaintiff going about the normal activities of the press in such public situations is not only constitutionally protected, but if the government attempts to deprive plaintiff of any rights, they must do so by due process of law.

No person shall be held to answer for a capital, or otherwise

infamous crime, unless on a presentment or indictment of a Grand

Jury, except in cases arising in the land or naval forces, or in the

Militia, when in actual service in time of War or public danger; nor

shall any person be subject for the same offense to be twice put in

jeopardy of life or limb; nor shall be compelled in any criminal

case to be a witness against himself, nor be deprived of life, liberty,

or property, without due process of law; nor shall private property

be taken for public use, without just compensation.

Fifth Amendment

Emphasis added.

Defendant’s actions in excluding plaintiff, as a person desiring to observe, record, video, photograph, report, and publish under the Open Meetings Act and for the defendants to create their own definition of who is a journalist or what is the media, ignoring the First Amendments to the United States Constitution against government specifically:

...abridging the freedom … or of the press; or the right of the

people peaceably to assemble….

Or the State of New Mexico Constitution’s Article II Bill of Rights Sec. 17. [Freedom Of Speech And Press; Libel], of.

Every person may freely speak, write and publish his sentiments

on all subjects, being responsible for the abuse of that right; and no

law shall be passed to restrain or abridge the liberty of speech or of

the press….

Defendants mistakenly favor the language found in the Open Meetings Act:

D. That notice shall include broadcast stations licensed by the

federal communications commission and newspapers of

general circulation that have provided a written request for

such notice.

NMSA 1978, §§ 10-15-1. Formation of Public

Policy.

Here is an example of such selective reading of the law, “notice shall include,” then by example listing broadcast stations and newspapers.

However, by the use of the word “include” the law does not specifically preclude anyone else, nor does it suggest that the list is in anyway exclusive, limiting, or exhaustive.

Defendants denied plaintiff‘s multiple requests for press credentials, as an individual, as a member of a free press, as a freelance photojournalist for NMPolitics.net, from highly respected on-line journalist, publisher and editor, Heath Haussamen on N.M. Politics, with whom plaintiff has worked with in the past.

Defendants, further have no standards, or policies, written and published for appealing a denial of requested press credentials.

Defendants offer no notice or opportunity for plaintiff to be heard in appealing the willful, intentional, malicious, arbitrary and capricious decision of the defendants against plaintiff rights and liberty.

In finding First and Fifth Amendment violations in Sherrill v. Knight:

… the Court remanded the case to the Secret Service, which was instructed to "devise and publicize narrow and specific standards" for press pass denials, and to institute procedures whereby an applicant is given notice of the evidence upon which the Secret Service proposes to base its denial, the journalist is afforded an opportunity to rebut or explain this evidence, and the Secret Service issues a final written decision specifying the reasons for its refusal to grant a press pass. The Service was instructed to reconsider appellee's application under these newly instituted standards and procedures. … With respect to its requirement of notice and opportunity to rebut, the Court relied on its determination that denial of a White House press pass constitutes a deprivation of "liberty" without due process of law within the meaning of the fifth amendment because it interferes with the free exercise of the profession of journalism. … We further conclude that notice, opportunity to rebut, and a written decision are required because the denial of a pass potentially infringes upon first amendment guarantees.

Such impairment of this interest cannot be permitted to occur in the absence of adequate procedural due process.

Robert Sherrill v. H. Stuart Knight, Director United States Secret Service, et al. United States Court of Appeals for the District of Columbia Circuit, 186 U.S. App. D.C. 293; 569 F.2d 124; 1977 U.S. App.

__________ Unlike Sherrill, plaintiff has not been convicted, or charged, or has any

outstanding warrant alleging any crime. In the course of discovery below, it was learned that, in addition to the conviction for assault (upon the Press Secretary to the Governor of Florida) referred to in the Rossides letter, the Secret Service decision to deny a pass to Mr. Sherrill was based on a 1962 assault charge in Texas (on which Mr. Sherrill may be subject to prosecution if he ever returns to that state) and on an allegation made by the Press Secretary to the Governor of Florida that Mr. Sherrill was "mentally unbalanced." 416 F. Supp. at 1028-29.

Also unlike Sherrill, plaintiff has been approved for White House credentials for coverage as local, national, and once, international media, after being vetted by the United States Secret Service, for presidents, vice presidents and candidates for presidents, vice presidents, before and after they were nominated by the national parties, and others under USSS protection, not less than 25 times since the Secret Service began protecting candidates and their families after Sen. Robert F. Kennedy was assassinated in 1968.

Notwithstanding plaintiff’s history as a photojournalist who also acts in a business model as a news agency, much like the non-profit internationally recognized Associated Press, except as an individual provider, not a large corporate one, defendants selectively excluded plaintiff and others based on the medium in which their work is published. At the same time, defendants selectively included on-line journalists and media outlets, which maintain a large on-line presence.

Defendants damage plaintiff’s business opportunities by not having a due process review mechanism.

On October 16, 2012, plaintiff received information from a source with access to defendant Korte’s restricted facebook page. On her facebook page, Korte posted the Code of Ethics of the National Press Photographers Association and she said that she highlighted the violations she claimed occurred against her on Monday. A commenter to her site, (not my source), John Fremont noted that nothing was highlighted and she replied ...

Katherine Shelley Korte Hi John: he's a stalker, period. He's not a photojournalist. I had to file a police report on his threatening behavior toward me when no one was in the board room but a few parents. He calls himself a "photojournalist" but my professional

photojournalist friends -- including a former photographer for George Bush II -- would wholeheartedly disagree with this person's tactics. Because of his history and his unprofessional and threatening behavior, I filed a police report to protect myself if he attempts a similar behavior in the future.

The acts of the defendants damage plaintiff’s liberty interest to attend government activities required to be open to all desiring to attend, and to deprive plaintiff of Property, the fruits of his labor in collecting material in the form of photography, audio and video recordings, and notes from such open meetings to publish his thoughts and observations to the public, which follows his on-line publication in open commerce through the world-wide-web.

__________

Background related to the Sixth Amendment Claims In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

Sixth Amendment

The right of trial by jury as it has heretofore existed shall be secured to all and remain inviolate. In all cases triable in courts inferior to the district court the jury may consist of six. The legislature may provide that verdicts in civil cases may be rendered by less than a unanimous vote of the jury.

Article II Bill of Rights 12. [Trial by jury; less than unanimous verdicts in civil cases.]


Defendants having caused arrests, without filing charges, ejections, barring and banning of plaintiff, from open meetings, have denied him of the right to clear his name in court, against the actions defendants have taken and alleged criminal acts by the plaintiff without an opportunity to, specifically:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury…

… be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence

In the November 7, 2012, letter to the defendants, plaintiff responded to the banning letter, refuting the allegations, as stated, and asserted that no crime(s) had been committed.

Defendant Korte, using her contacts, as a contract employee as, “Regional Elections Coordinator at the Associate Press for Albuquerque, New Mexico Area Newspapers,” and her former employment at the Albuquerque Tribune, along with her day-to-day contacts with journalists, and beat reporters from: print, radio, and television news stations, advanced the events of October 8, 2012, to become a front page story in the Albuquerque Journal, a major story on KOAT Action 7 News, and repeated coverage through numerous other media outlets.

Defendant Korte’s efforts in contacting the press, included attempting to question plaintiff’s reputation, credibility, and accused him of being a stalker.

Defendant Korte communicated false information in the community in furtherance to gain sympathy for herself, and attempt to damage plaintiff’s credibility and reputation among those in the APS system, in the community, and with his colleagues, and peers; without having to prove any of her allegations, beyond a reasonable doubt, in a court of law.

Defendants, at no time made any presentation to the District Attorney’s office for the consideration of bringing a criminal prosecution for any act of the plaintiff in which defendants, using the power of their elected office, caused arrests, ejections, barring and banning of plaintiff, from open meetings and events on APS property.

Plaintiff has a right, not only to due process under the Fifth Amendment, but to the protection of a trial by a jury of his peers to determine whether a crime(s) was/were committed, and to enjoy all the other protections contained in the Sixth Amendment.

__________

Background related to the Fourteenth Amendment Claims Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Fourteenth Amendment

The requirements of the U.S. Bill of Rights, specifically in this cause of action the: First, Fourth, Fifth and Sixth Amendments, are made binding upon the States and their political subdivisions, including all the defendants listed in this case. By the Fourteenth Amendment’s clauses, nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The State of New Mexico, through its Constitution’s Bill of Rights, established a Due Process and Equal Protection clause consistent with the Fourteenth Amendment.

No person shall be deprived of life, liberty or property without due process of law; nor shall any person be denied equal protection of the laws. Equality of rights under law shall not be denied on account of the sex of any person.

Bill of Rights Article II, Sec. 18. [Due Process; Equal Protection]

State of New Mexico Constitution

Defendants, through their acts described above, ignore and refuse to provide Due Process and Equal Protection rights, though they are required to do so by both Federal and State Constitutions.

Plaintiff has suffered due to defendants’ illegal actions.

… nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

__________

Background related to the Open Meetings Act Claims Plaintiff also brings this action to enforce the provisions of the New

Mexico Open Meetings Act, NMSA 1978 §§ 10-15-1, et seq. (“OMA”). The Open Meetings Act reflects the New Mexico Legislature’s

“recognition of the fact that a representative government is dependent upon an informed electorate, it is declared to be public policy of this state that all persons are entitled to the greatest possible information regarding the affairs of government and the official acts of those officers and employees who represent them

NMSA 1978 §§ 10-15-1, et seq. (“OMA”).

Defendants caused four violations of the Open Meetings Act’s requirement to allow “all people desiring to attend…” by barring or ejecting plaintiff on the following dates at the listed meeting:

August 19, 2010 – APS District Relations Committee hosting the

APS 2010 Gubernatorial Education Debate

August 25, 2010 – Audit Committee meeting

September 1, 2010 – APS Board meeting

October 8, 2012 – APS Taking Input on Family, Community

Engagement Policy, Procedures forum.

__________

Taking together defendant Lucero’s, “Maybe we should just throw them out,” “... and lets eject them,” statement, during the time defendant Robbins called a recess to clear the room for the closed meeting, and Robbins “We’ve discussed this,” statements, after coming back into session at the August 25, 2010, it appears that both statements were not on the agenda and an improper discussion occurred during the closed portion of the Audit Committee meeting, which violated several sections of the Open Meetings Act:

I. If any meeting is closed pursuant to the exclusions contained in Subsection H of this section, the closure:

(1) If made in an open meeting, shall be approved by a majority vote of a quorum of the policymaking body; the authority for the closure and the subject to be discussed shall be stated with reasonable specificity in the motion calling for the vote on a closed meeting; the vote shall be taken in an open meeting; and the vote of each individual member shall be recorded in the minutes. Only those subjects announced or voted upon prior to closure by the policymaking body may be discussed in a closed meeting; and

(2) if called for when the policymaking body is not in an open meeting, shall not be held until public notice, appropriate under the circumstances, stating the specific provision of the law authorizing the closed meeting and stating with reasonable specificity the subject to be discussed, is given to the members and to the general public.

J. Following completion of any closed meeting, the minutes of the open meeting that was closed, or the minutes of the next open meeting if the closed meeting was separately scheduled, shall state that the matters discussed in the closed meeting were limited only to those specified in the motion for closure or in the notice of the separate closed meeting. This statement shall be approved by the public body under Subsection G of this section as part of the minutes.

Emphasis added.

10-15-3. Invalid Actions; Standing. A. No resolution, rule, regulation, ordinance or action of any

board, commission, committee or other policymaking body shall be valid unless taken or made at a meeting held in accordance with the requirements of NMSA 1978, Section

10-15-1. Every resolution, rule, regulation, ordinance or action of any board, commission, committee or other policy-making body shall be presumed to have been taken or made at a meeting held in accordance with the requirements of NMSA 1978, Section 10-15-1.

NMSA 1978 §§ 10-15-1, et seq. (“OMA”).

Emphasis added. __________

Background related to the Inspection of Public Records Act Claims Plaintiff brings this action to enforce the provisions of the New Mexico

Inspection of Public Records Act, NMSA 1978 §§ 14-2-1, et seq. (“IPRA”).

The IPRA provides that, with only certain, specified limitations,

“[e]very person has a right to inspect public records of the state.” Id. at § 14-‐2-‐1A.

The IPRA reflects the New Mexico Legislature’s recognition “that a

representative government is dependent upon an informed electorate” and

embodies the Legislature’s intention that “that all persons are entitled to the

greatest possible information regarding the affairs of the government and the

official acts of public officers and employees.” Id. at § 14-‐2-‐5.

Defendant Director of the Communications Department Rigo Chavez

is also the Records Custodian. Chavez routinely engages in requiring plaintiff and

some others, including Mr. MacQuigg to follow “rules” that are placed by APS as

impediments to an orderly process in complying with the State’s Inspection of

Public Records Act.

14-2-9. Procedure for Inspection.

D. A custodian receiving a written request shall permit the inspection immediately or as soon as is practicable under the circumstances, but not later than fifteen days after receiving a written request. If the inspection is not permitted within three business days, the custodian shall explain in writing when the records will be available for inspection or when

the public body will respond to the request. The three-day period shall not begin until the written request is delivered to the office of the custodian.

NMSA 1978 §§ 14-2-9-D, et seq. (“IPRA”).

Emphasis added.

Defendant Chavez, as APS’ custodian of public records, ignores the

requirements of IPRA’s in that, “(a) custodian receiving a written request shall

permit the inspection immediately or as soon as is practicable under the

circumstances.

Chavez has seldom, if ever, made available records for inspection

immediately. He more often than not avoids making records available, “… as soon as

is practicable under the circumstances.”

Instead, Chavez will write that he will not permit the inspection of

records within three business days.

He will write that the records will be available for inspection in fifteen

days, or possibly sooner.

Chavez will use the postal service, which delays response and then

requires the requester to make an appointment to come to his office to inspect the

record(s).

Chavez has a history of providing only portions of the requested

material without complying with:

14-2-11. Procedure for Denied Requests.

B. If a written request has been denied, the custodian shall provide the requester with a written explanation of the denial. The written denial shall: (1) describe the records sought;

(2) set forth the names and titles or positions of each person responsible for the denial; and

(3) be delivered or mailed to the person requesting the records within fifteen days after the request for inspection was received. NMSA 1978 §§ 14-2-11-B, et seq. (“IPRA”).

The communications department treats plaintiff, Mr. MacQuigg, and

maybe other people who make requests, differently than they do members of local

media with whom they have established symbiotic relationships and normally

provide information and access to APS information, facilities, and personnel for

interviews, both on-‐camera or face to face.

Defendant Executive Director of Communications Monica Armenta, has on occasion refused to have open communications with some media outlets, or specific reporters, from time to time over her, or APS administration’s, or Board member’s objections to how the media reports a story about APS. The Communications Department has been known to express its displeasure when the media will not report (spin) the story as APS thinks it should be told. The Communications Department’s expression of displeasure may take a number of different forms from: providing “no comment,” ignoring the particular reporter by not returning phone calls, e-mails, or text messages; or by providing written statements, which are often not responsive to the question at hand.

__________ On September 29, 2011, defendant Executive Director of

Communications Monica Armenta speaking at a Goals forum at Jefferson Middle School, on the department’s interaction with the media said:

We, of course, the office that continues to work diligently to work with the media; It is never going to be a wonderful relationship, because that’s the nature of the business, but we feel there has been, at least some, some good progress that’s been made. We’re not ever going to love each other, but we do respect each other, and I don’t think you’ll ever hear a complaint that Albuquerque Public Schools is dishonest or unresponsive. Those are very very big changes over the last three years.

On October 18, 2011, defendant Armenta speaking at a Goals forum at Sandia High School on the topic of the Communications Department’s responsibility for two goals said:

The two goals we are responsible for: Changing the perception of the district, and

Better outreach with our stakeholders. Each and everyone of you is one of our stakeholders. If there is ever anything we can do better, or we can answer your questions, we’d be delighted to do so.

__________ Plaintiff’s experience with making requests for inspection of public

records has been in complete contradiction to Armenta’s public pronouncements. On March 01, 2013, David Walker made a request of Executive Director,

Board of Education Services Office Brenda Yager for a copy of Superintendent Winston Brooks’ contract.

On Mar 1, 2013, at 5:28 PM, "Yager, Brenda B" <[email protected]> wrote:

David Walker (I think he was part of the MacQuigg group) has asked for a copy of your contract. Do you want me to send it or do you want him to make an Inspection of Public Record request through Rigo?

Brenda Yager Executive Director Board of Education Services Office 6400 Uptown Blvd. NE, Suite 1 DOE P.O. Box 25704 Albuquerque, New Mexico 87125-0504 (505) 880-3731 [email protected]

Defendants Brooks responded: From: Brooks, Winston Sent: Friday, March 01, 2013 5:56 PM To: Yager, Brenda B Subject: Re: contract IPRA

Defendants Brooks, and Chavez used the Communications Department’s default practice and delayed delivery for the maximum fifteen-days, as “allowed by the Inspection of Public Records Act,” rather than, “… permit the inspection immediately or as soon as is practicable under the circumstances,” as required by the Act. Yager had a copy and should have allowed for the inspection, immediately. If Yager forwarded a copy to Chavez, he was required to “… permit the inspection immediately…”, but did not.

Walker told plaintiff he received a three-day notice and received the contract after a fifteen-day wait.

__________ On August 23, 2010, plaintiff submitted several written requests to APS,

through its records custodian, Defendant Rigo Chavez, requesting the inspection of certain public documents related to preparations for the APS District Relations Committee hosting the APS 2010 Gubernatorial Education Debate on August 19, 2010.

APS Records Custodian Rigo Chavez made available some 400+ documents in response to the IPRAs.

Plaintiff knows the responses were incomplete because there were

some e-‐mails transmitted to and/or from Executive Director of Communications

Monica Armenta, which were not included in the material requested in plaintiff’s

August 23, 2010, IPRA requests.

Armenta used an email address: [email protected].

There was an e-mail string containing a message generated by Armenta on Aug 20, 2010, at 9:51 AM, but the IPRA response did the not include one she forwarded to Janice Arnold-Jones, two-hours later, which was originated by James Hallinan, Press Secretary for the Democratic Party of New Mexico working with the Diane Denish campaign.

From: Monica Armenta <[email protected]>

To: [email protected] Cc: Winston Brooks <[email protected]>; Joe Escobedo <[email protected]>; Steve Tellez <[email protected]>; Art Melendres <[email protected]>; Marty Esquivel <[email protected]> Sent: Fri, Aug 20, 2010 11:53 am

Subject: FW: FYI: MacQuigg Blog Today

To date, three years after receiving Plaintiff’s IPRA request,

Defendants have not provided all of the public documents in its possession that are

responsive to Plaintiff’s request.

Plaintiff requests this Court order Defendants to produce all of the

documents responsive to Plaintiff’s request, in unredacted form, and award Plaintiff

statutory damages and costs reasonably incurred in bringing this action to enforce

the IPRA.

__________

On August 30, 2010, plaintiff submitted a written request to APS, through its records custodian, defendant Rigo Chavez, requesting the inspection of several certain public documents related to the August 25, 2010, APS Audit Committee meeting.

All public records, emails, text messages between and amongst any and all persons and entities including Superintendent Winston Brooks, members of the Board of Education’s Audit Committee, Chairman David Robbins, President Martin Esquivel, David Peercy, Robert Lucero, Dolores Griego, and Lorenzo Garcia; all administrators, staff, and contractors present at the August 25, 2010 APS Audit Committee meeting.

All public records, emails, text messages from and to Superintendent Winston Brooks beginning 1200 AM August 25, 2010, until you compile and are prepared to deliver the records for inspection.

All recordings of the August 25, 2010 APS Audit Committee, including, but not limited to, the official recording of the meeting created by the staff, the belt recording of APS Police Officers, specifically, Officer and the video captured by President Martin Esquivel on his hand held electronic device.

All police reports made by APS Police for the last five years naming Mark G. Bralley and or Charles Edward (Ched) MacQuigg.

All public records, from, amongst, and to APS police communications; for August 25, 2010, and since until you compile and are prepared to deliver the records for inspection, included but not limited to: telephonic, radio, e-mail, and text messages

All public records, emails, text messages, or telephone messages, made received by APS Superintendent Winston Brooks, with or amongst members of the Board of Education, administrators, staff, and in particular all emails, text messages, or telephone messages, made or received by APS Executive Director of Communications Monica Armenta and or her staff of Rigo Chavez and John Miller naming Mark G. Bralley and or Charles Edward (Ched) MacQuigg since January 1, 2010.

All public records, in the form of video or visual recordings from security cameras that show Mark G. Bralley and or Charles Edward (Ched) MacQuigg in at or near the APS Buildings located at 6400 Uptown Blvd., NE Albuquerque, NM 87110, on August 25, 2010.

APS Records Custodian Rigo never responded to this IPRA requests.

Plaintiff requests this Court order Defendants to produce all of the

documents responsive to plaintiff’s request, in unredacted form, and award Plaintiff

statutory damages and costs reasonably incurred in bringing this action to enforce

the IPRA.

__________ On October 11, 2012, plaintiff wrote an e-mail to defendant Chief Steve

Tellez seeking information, identification of APS Police employee, the Information Technician, and seeking comment.

__________ On October 12, 2012, plaintiff received an e-mail from defendant APS

Records Custodian Rigo Chavez, indicating Tellez had forwarded plaintiff’s request to make an identification of two APS employees. Chavez made the identification of the employees.

On October 12, 2012, plaintiff submitted in writing a further request to inspect:

All document, records, emails, from devices owned by APS or not, using APS email or similar accounts or not, to or from any APS employee regarding "the incident" of Monday October 8 at 6400 Uptown Blvd. NE. This requests includes audio records, surveillance video files. Any audio and/or video files recorded as or for external, internal or archives by the unit or units who cover similar forums and meetings.

I request the records pertaining to the incident beginning at Monday October 8 at 4:30, through the last work day that you are still researching but no earlier than October 14.

On October 15, 2012, defendant Rigo Chavez responded by U.S. Mail, indicating he had requested the audio records and surveillance video files from APS Police and would let plaintiff, “know within 15 days, allowed by the Inspection of Public Records Act of any records located.” Chavez enclosed the APS Police Information Report.

Chavez made no further response to the IPRA.

On January 28, 2013, plaintiff attended an APS Press Conference at West Mesa High School and spoke with defendant Chief Tellez.

Plaintiff asked Tellez how he could not have been captured on video the entire time he was in the building; in the lobby and in the boardroom?

Defendant Tellez said the boardroom only had camera coverage at the front of the room.

Chief Tellez said, “they” (employees from the Communications Department?) came and looked at the video.

Plaintiff told Tellez he had not gotten a final response to my request for inspection of public records.

To date, 10 months after receiving Plaintiff’s IPRA request,

Defendants have not provided all of the public documents in its possession that are

responsive to plaintiff’s request.

Plaintiff requests this Court order defendants to produce any of the

documents responsive to Plaintiff’s request, in unredacted form, and award plaintiff

statutory damages costs reasonably incurred in bringing this action to enforce the

IPRA.

__________ II. JURISDICTION AND VENUE

This Court has jurisdiction over this action pursuant to 42 U.S.C. §§ 1983 and 1988 and 28 U.S.C. § 1343, with pendent jurisdiction over the state law claims.

Venue is proper in this district pursuant to 28 U.S.C. § 1391, as Defendants are all residents of New Mexico and all the acts complained of occurred in New Mexico.

This action is brought in a timely fashion consistent with the State of New Mexico Statute of Limitations for Civil Cases. §37-1-8 Injury to person.

__________

III. PARTIES Plaintiff Mark G. Bralley is a resident of Albuquerque, Bernalillo County,

New Mexico. By statute, NMSA § 22-5-4, the Defendant Albuquerque Public Schools

Board of Education is the public body responsible for the supervision and control of the APS school district. As such, it is the proper institutional Defendant in this case.

Defendant Robert Lucero is former member of the APS Board, and is sued in his individual capacity.

Defendant David Robbins is former member of the APS Board, and Chairman of the Audit Committee, and is sued in his individual capacity.

Defendant Paula Maes is a former member of the APS Board, and President of the Board, and is sued in her individual capacity.

Defendant Martin Esquivel is the President of the APS Board, and is sued in his individual capacity.

Defendant Katherine Korte is Vice President of the Board, and is sued in her individual capacity.

Defendant Winston Brooks is the Superintendent of the APS District, and is sued in his individual capacity.

Defendant Bradley Winter, is Chief Operations Officer and oversees Public Safety (School Police) and is sued in his individual capacity.

Defendant Monica Armenta is the Executive Director of Communications of the APS District, and is sued in her individual capacity.

Defendant Rigo Chavez is the Records Custodian of the APS District, and is sued in his individual capacity.

Defendant John Miller is a Communications Specialist of the APS District, and is sued in his individual capacity.

Defendant Steve Tellez was the former acting chief and current Chief of Police of the APS Police Department, and is sued in his individual capacity.

Defendant Steve Gallegos was the former acting deputy chief and current Deputy Chief of Police of the APS Police Department, and is sued in his individual capacity.

The Albuquerque Public Schools Police Department is not authorized by State statute and has no basis in law for its existence. Officers of APS police are certified by the State’s Department of Public Safety and are commissioned by Bernalillo County Sheriff Dan Houston, who has no operational control over the department or its administration.

The State Legislature has attempted to grant authority to Albuquerque Public Schools as a political subdivision to maintain a police department, but all legislative efforts have failed.

__________

IV. FACTUAL STATEMENT APS is the largest public school system in New Mexico, educating almost

90,000 students in Albuquerque, Rio Rancho, Corrales, Los Ranchos de Albuquerque, Tijeras, San Antonio, Edgewood, Laguna and Isleta Pueblos, Chilili, Tohajiilee, and the Atrisco Land Grant. About 15,000 employees work for APS as well, making it the second largest employer in the Albuquerque metro area.

The APS Board consists of seven separately elected members. The members of the Board are responsible for the management and oversight of APS.

By law, the APS Board holds regular, special and committee meetings that are open to the public. This requirement is set out in the New Mexico Open Meetings Act, NMSA 1978, § 10-15-1 et seq. (declaring that “[a]ll meetings of any public body except the legislature and the courts shall be public meetings, and all persons so desiring shall be permitted to attend and listen to the deliberations and proceedings.”), and in Board Policy, BE – Board of Education Meetings (declaring that “[a]ll meetings of the [APS] Board of Education shall comply with the Open Meetings Act.”). The APS Board also permits “members of the public to comment regarding their concerns, complaints, or commendations” at regular meetings of the APS Board and, under certain circumstances, at special or committee meetings of the APS Board.

At all relevant times mentioned in this complaint, the defendants were acting under the color of law.

Plaintiff is a retired Albuquerque police officer who has also had a life-long interest in photography and journalism. Before, during, and after his law enforcement career, plaintiff has actively, if not sometimes sporadically, engaged in journalism, mostly as a freelance photojournalist. Plaintiff is an award-winning still and video photographer. With nearly 50-years of journalistic experience, plaintiff’s work has been published and broadcast: internationally, nationally, regionally, and locally, in nearly every imaginable form of media, including: radio, television, pamphlets, newspapers, magazines, books, and various other printed communications.

Plaintiff has photojournalistically covered many topics, including a particular interest in various governmental events and political activities since the late 1960s, of international, national, state, city, and political subdivisions.

Except for a period of less than two years in the early 1970s, when plaintiff was a full-time photographer employed by Newspaper Printing Corporation; doing business as the Albuquerque News, plaintiff has been a freelance photojournalist, meaning he takes assignments from media organizations or, more often, he independently covers events that are likely to be newsworthy, or potentially of historic value. Plaintiff has provided his work to outlets, which did not cover an event, or now provides archived photographs for retrospectives, books, documentaries, and historical publications.

Since retirement in 2000, plaintiff has completed the Journalism track of courses offered by the University of New Mexico Department of Communications and Journalism. Journalism schools have made the paradigm shift from the traditional newsprint model expanding into on-line methods of providing news and information, using the world-wide-web.

Plaintiff maintains an on-line presence with a website, “the blue flyer.com,” and by producing a Web-Log (Blog) called, “What’s Wrong With This Picture?”, using his photographs to drive reporting, analysis, and commentary of mostly local newsworthy events and politics. The site often attracts other media outlets to seek work from plaintiff’s extensive archives for use in other publications. Plaintiff’s work has been specifically used in on-line promotional material and on-air local programming, by

Albuquerque Public School’s two broadcast ventures: KANW 89.1 FM radio, and KNME TV 5, a PBS joint-venture between APS and UNM.

Plaintiff, writes of the purpose of his Web-Log, “What’s Wrong With This Picture?” in a posted profile:

M.G. Bralley I am a retired law enforcement officer who has a life long interest in photography and journalism. I focus mainly on issues of local politics, though I will step off into state, national and international issues. I have a history of watching government closely with a particular eye on process. I look carefully for the unusual, quirky and any exceptions that are granted which cause unfair treatment amongst citizens or businesses. I view governmental activity first through a constitutional lens. Then I assess adherence to process, the rule of law and the rules that govern them. I look for and attempt to expose hypocrisies and inconsistencies. I also look for laws that do not forward the ideals of human rights. I will rail at bad, unenforceable, unconstitutional laws and those who create and attempt to enforce them. Original photographs, photographic and video services are available upon request. All work is subject to Copyright, all rights reserved.

Plaintiff began specifically observing Albuquerque Public School’s Board of Education as a part of a Journalism school Intermediate Reporting class assignment, in the fall of 2006, to cover a meeting and published. “No Child Left Behind at Highland?”, on his blog.

Plaintiff would take a greater interest in APS upon covering other meetings where the Board attempted to eliminate public comments from their televised portion of their meeting, illegally discussing the matter, which was not on the agenda, and watching a retired teacher, Charles Edward “Ched” MacQuigg, who is an ethics activist, arrested and ejected from two meetings, in the same evening (a committee meeting followed by a special Board meeting) for the content of his public comments.

Plaintiff looked into procurement procedures and open government issues at APS and sensed a fair amount of animosity from APS Board members when publicly claiming the APS Administration had investigated and assured the Board, plaintiff’s reporting was inaccurate. Plaintiff stands by his reporting, as the evidence of violations of the procurement process and failing to abide by policy and procedures was indisputable.

Mr. MacQuigg is also an on-line pamphleteer posting a weblog, “DIOGENES' SIX,” in which he takes a very critical look, specifically at APS, it’s School Board of Education, the Superintendent, APS Administration and many other aspects of the school system, from commentary on policies, practices, problems, and newsworthy events.

Mr. MacQuigg through publishing DIOGENES' SIX also looks at other governments and public officials at all levels from federal to state, to municipalities and towns, commenting just as critically there as he does with APS.

Plaintiff eventually provided Mr. MacQuigg with access to his archives for pictures of APS personnel and other governmental employees and elected officials to illustrate his efforts.

Most of plaintiff’s pictures Mr. MacQuigg publishes on DIOGENES' SIX are working portraits. Such photographs show the subjects in public forums, often talking, or contemplating, or listening, and watching the activities as they happen. Some subjects do not appreciate their inability to control how their image is used.

Mr. MacQuigg’s use of plaintiff’s pictures of APS personnel and other subjects to illustrate postings on DIOGENES' SIX, of particular subject(s), is sometimes unwelcome.

Plaintiff started a long-term personal photojournalistic essay on Mr. MacQuigg’s interaction with APS and other governmental bodies where he has promoted legislation and advocated for ethics and transparency in government.

Plaintiff and Mr. MacQuigg have worked together on numerous occasions since 2008 and have been challenged by several governmental employees who refuse to recognize or acknowledge on-line pamphleteers, commentators, observers, and journalists, as being protected by the First Amendment to the Constitution of the United States, and the New Mexico Constitution Amendment, Article II Bill of Rights, Sec. 4. [Inherent rights.] and barred or ejected from newsworthy events where large commercial newspapers and broadcasters are “invited.”

__________ The First Amendment Violations

The APS Board is the governing body of APS. By law and policy, the public meetings of the APS Board are open.

Being subject to the State’s Open meeting Act, all board and committee meetings must provide for:

A. … and all persons desiring shall be permitted to attend and listen to the deliberations and proceedings. Reasonable efforts shall be made to accommodate the use of audio and video recording devices.

NMSA 1978, §§ 10-15-1. Formation of Public Policy. On August 9, 2010, plaintiff became aware APS was talking about

requirements for issuing press credentials, with a select group of media members, of their choosing.

__________ On August 11, 2010, plaintiff and Mr. MacQuigg went to the Alice and

Bruce King Educational Complex, (APS Headquarters) to ascertain what was necessary for us to cover the debate as members of the press. We asked defendant APS Communications Specialist John Miller, whose name was associated with a media advisory as the contact person for the APS 2010 Gubernatorial Education Debate on Aug. 19, about how to obtain credentials.

Plaintiff presented Miller with his business card and asked that plaintiff be placed on APS’ media advisory list; Miller said he would. To date, plaintiff has received no media advisory from Miller or the APS Communications Department.

D. That notice shall include broadcast stations licensed by the federal communications commission and newspapers of general circulation that have provided a written request for such notice.

NMSA 1978, §§ 10-15-1. Formation of Public Policy. The list of those seeking notice of public meeting “includes” broadcast

stations and newspapers…, but is not an exhaustive list. __________

Defendants entered into an illegal agreement with the political campaigns of the Republican and Democratic New Mexico Gubernatorial candidates to limit the size of the venue to deny “all persons desiring shall be permitted to attend and listen to the deliberations and proceedings,” though the forum was presented as a District Relations Committee Meeting, subject to the Open Meeting Act.

By limiting the size of the venue, the defendants and the political campaigns also limited the ability for, “… all persons desiring…,” to have reasonable accommodations for, “… the use of audio and video recording devices.”

Defendants set unreasonable rules for the media that did attend. APS agrees to:

Credential media for debate attendance. Armenta wrote in an e-mail:

Notes from the walk-through ,,, If we receive criticism for limited seating, simply say it’s due to the venue. Security has permission to toss out hecklers.

No photography, cell phones. Give still photographers access at the beginning of debate (intros?), then they have to return to media section in back.

Defendants gave further notice of restricted coverage in two letters from APS Communications Specialist John Miller, August 17 “Photo Shooting Instructions for APS Gubernatorial Debate” and August 18 “Final Guide to the 2010 Gubernatorial Education Debate”.

__________

August 16, 2010, Heath Haussamen Editor and publisher, NMPolitics.net, wrote Miller:

M.G. Bralley plans to cover the Aug. 19 gubernatorial debate for, NMPolitics.net, Please credential him to cover the event.

__________ August 17, 2010, Miller wrote Haussamen:

I’m writing to inform you that we will be unable to accommodate your request for a media credential for the APS 2010 Gubernatorial Education Debate on Aug. 19. Unfortunately, space is very limited at Eldorado High School and we not going to be able to fit everyone who wanted to attend the debate. APS offered a larger space, such as a gym, for the debate, but the two candidates preferred a smaller venue, like a performing arts center. Eldorado’s seats 400. We expect to be at full capacity….

__________ The August 19, 2010, Gubernatorial Debate at Eldorado High School

Plaintiff was ultimately denied his First Amendment protections against government, “Congress shall make no law … abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble…” by the defendants, Brooks, Armenta, and Miller not permitting entry to the debate, or recognizing, and credentialing plaintiff as a member of the press.

__________

The September 1, 2010, APS School Board meeting barring Defendant Deputy Chief of Police Steve Gallegos specifically barred plaintiff’s entry to the School board meeting in violation of the Open Meetings Act.

__________ The October 8, 2012, APS School Board forum of APS Taking Input on Family,

Community Engagement Policy, Procedures Defendant APS Board member Katherine Korte, physically applied force

to plaintiff’s camera lens by putting her left hand on it and through it, pushed it to his body, in an attempt to prevent her picture from being taken. Defendant caused plaintiff to be arrested, ejected, and to have APS officials ban him from APS property.

Defendants, President of the Board Paula Maes, Superintendent Winston Brooks, and Chief Operations Officer Bradley Winter signed a banning letter prohibiting plaintiff’s entry to any meeting on any APS property.

The defendants repeated and now continuous actions have culminated in multiple violations of plaintiff’s First Amendment rights.

__________ The Fourth Amendment Violations

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon

probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Fourth Amendment

The people shall be secure in their persons, papers, homes and effects, from unreasonable searches and seizures, and no warrant to search any place, or seize any person or thing, shall issue without describing the place to be searched, or the persons or things to be seized, nor without a written showing of probable cause, supported by oath or affirmation.

Article II Bill of Rights Sec. 10. [Searches and seizures.] of the State of New Mexico Constitution.

__________ Defendants violated plaintiff’s rights guaranteed by the Fourth

Amendment against his person being seized without a warrant and unreasonably acted where no probable cause existed that a crime occurred or had been committed by plaintiff.

The violations occurred:

1. At the August 25, 2010, Audit Committee meeting when

defendants Committee Chair David Robbins, APS Board

President Martin Esquivel, and APS Chief Operations

Officer Brad Winter ordered and caused plaintiff to be

removed from the meeting.

2. On October 8, 2012, when defendant APS Board member

Katherine Korte, caused plaintiff to be removed from

attending a forum, “APS Taking Input on Family,

Community Engagement Policy, Procedures.”

__________ The Fifth Amendment Violations

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty,

or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Fifth Amendment Emphasis added.



State of New Mexico Constitution Plaintiff has a liberty interest as a freelance photojournalist to engage in

his craft without the government willfully, intentionally, maliciously, arbitrarily, and capriciously denying plaintiff of his rights without due process of law.

… With respect to its requirement of notice and opportunity to rebut, the Court relied on its determination that denial of a White House press pass constitutes a deprivation of "liberty" without due process of law within the meaning of the fifth amendment because it interferes with the free exercise of the profession of journalism. … We further conclude that notice, opportunity to rebut, and a written decision are required because the denial of a pass potentially infringes upon first amendment guarantees. Such impairment of this interest cannot be permitted to occur in the absence of adequate procedural due process.

Robert Sherrill v. H. Stuart Knight, 186 U.S. App. D.C. 293; 569

F.2d 124; 1977 U.S. App. The violations occurred:

1. When the APS District Relations Committee announced

they were hosting the APS 2010 (New Mexico)

Gubernatorial Education Debate on August 19, 2010,

plaintiff sought media credentials from the APS

Communications Department.

2. Defendants Executive Director of Communications Monica

Armenta and Communications Specialist John Miller

joined the political campaigns to limit the size of the venue

for the gubernatorial debate.

3. Plaintiff made a number of attempts to gain recognition as

the press.

4. August 17, 2010, defendant Miller wrote Haussamen:

I’m writing to inform you that we will be unable to accommodate your request for a media credential for the APS 2010 Gubernatorial Education Debate on Aug. 19. Unfortunately, space is very limited at Eldorado High School and we not going to be able to fit everyone who wanted to attend the debate.

5. At the August 25, 2010, Audit Committee meeting when

defendants Committee Chair David Robbins, APS Board

President Martin Esquivel, and APS Chief Operations

Officer Brad Winter ordered and caused plaintiff to be

removed from the meeting.

6. On September 1, 2010, when defendant Deputy Chief of

Police Steve Gallegos refused plaintiff entry to the School

Board meeting.

7. On October 8, 2012, when defendant APS Board member

Katherine Korte, caused plaintiff to be removed from

attending a forum, “APS Taking Input on Family,

Community Engagement Policy, Procedures.”

__________ The Sixth Amendment Violations

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

Sixth Amendment

… In all criminal prosecutions, the accused shall have the right to appear and defend himself in person, and by counsel; to demand the nature and cause of the accusation; to be confronted with the

witnesses against him; to have the charge and testimony interpreted to him in a language that he understands; to have compulsory process to compel the attendance of necessary witnesses in his behalf, and a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed.

Article II Bill of Rights Sec. 14. [Indictment and information; grand juries; rights of accused.]

of the State of New Mexico Constitution. __________

Defendants, having violated plaintiff’s First, Fourth, and Fifth Amendment rights causes him to lose the protection of the Sixth Amendment to have the allegations made against him reviewed by an appropriate magistrate and the District Attorney to weigh the complaints made against him for the sufficiency of the facts, any investigation, and compliance with law.

Plaintiff is deprived of the Sixth Amendment’s protections to fend off the acts and reasoning of the defendants’ claims in an appropriate tribunal – a criminal court.

They’re being no other manner or means of relief under the law; plaintiff’s rights to be protected by the Sixth Amendments are likewise violated.

__________

The Fourteenth Amendment Violations Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Fourteenth Amendment



State of New Mexico Constitution Defendants, acting under color of law, have deprived plaintiff of liberty,

and/or property, without due process of law; and denied to plaintiff within its jurisdiction the equal protection of the laws.

The State of New Mexico Constitution does not contradict or violate the Fourteenth Amendment, but specifically acknowledges the same rights.

The defendants acted on their own in violation of Federal and State Constitutions.

__________ As to the request for a Writ of Mandamus to enforce the New Mexico

Open Meetings Act, and to enforce the New Mexico Inspection of Public Records Act. Mandamus Act, 28 U.S. C. §1361, and against the agency defendants

under the Administrative Procedure Act, 5 U.S.C. § 706. A writ of mandamus is an order from a court to an inferior government

official ordering the government official to properly fulfill their official duties or correct an abuse of discretion.

Defendants have a mandatory, nondiscretionary duty to follow the New Mexico Open Meetings Act, NMSA 1978, , §§ 10-15-1 et seq,

Specifically, Defendants have engaged in illegal actions in: 1. Limiting the size of a venue(s) in order to prevent “all

persons desiring shall be permitted to attend and listen to

the deliberations and proceedings.”

2. Creating there own definitions of the Press which, denied

plaintiff and others from being issued credentials on the

whim of the APS Communications Department based on

their preference for commercial outlets with Federal

Communications Commissions Broadcast License or a

newspaper of general circulation, while expressing a bias

against other press outlets, including and specifically world

wide web based outlets, which use web log technology, as

does plaintiff as one of several means he uses, along with

traditional technologies.

3. By ejecting plaintiff and others without justification from

open meetings.

4. By not making reasonable efforts to accommodate the use

of audio and video recording devices.

5. By willfully, intentionally, maliciously, arbitrarily and

capriciously requiring plaintiff to relocate after initially

moving him to a place within the room of their choice and

placing him behind the Board where members could not be

seen and recorded.

6. For arresting, ejecting, banning, and barring plaintiff and

others from attending, and participating in the public

meetings of the APS Board, its committees, forums, and

other events, such as press conferences, for having raised

questions about the proper implementation of the Open

Meetings Act.

NMSA 1978, §§ 10-15-1. Formation of Public Policy.

__________ The Request for Records under the New Mexico Inspection of Public Records Act,

NMSA 1978, § 14-2-1 et seq. Defendants have a mandatory, nondiscretionary duty to follow the New

Mexico Inspection of Public Records Act, NMSA 1978, §§ 14-2-1 et seq.

Defendant Director of the Communications Department Rigo Chavez

is APS’ Records Custodian. Chavez routinely engages in requiring plaintiff and some

others, including Mr. MacQuigg to follow “rules” that are placed by APS as

impediments to an orderly process in complying with the State’s Inspection of

Public Records Act.

On August 23, 2010, plaintiff submitted several written requests to APS, through its records custodian, Defendant Rigo Chavez, requesting the inspection of certain public documents related to preparations for the APS District Relations Committee hosting the APS 2010 Gubernatorial Education Debate on August 19, 2010.

On August 30, 2010, plaintiff submitted a written request to APS, through its records custodian, defendant Rigo Chavez, requesting the inspection of certain public documents related to the August 25, 2010 APS Audit Committee meeting.

On October 15, 2012, in response to plaintiff’s October 12, 2012, request, defendant Rigo Chavez responded by U.S. Mail, indicating he had requested the audio records and surveillance video files from APS Police and would let plaintiff, “know

within 15 days, allowed by the Inspection of Public Records Act of any records located.” Chavez enclosed the APS Police Information Report which had been sought directly from the APS Police Department which has its own method of releasing police reports.

Chavez made no further response to the IPRA.

__________ Plaintiff is aware through association of other members of the press that

APS’ Communications Department routinely handles requests for information from members of the press they wish to recognize and respond immediately, or as quickly as possible.

Plaintiff is further aware that the APS Communications Department and specifically, defendant Director of the Communications Department Rigo Chavez, as the Records Custodian, does not respond to requests in the same way, from those he does not wish to recognize as members of the press. In handling such requests, Chavez does not follow the Inspection of Public Records Act, which requires:

14-2-9. Procedure for Inspection. D. A custodian receiving a written request shall permit

the inspection immediately or as soon as is practicable under the circumstances,

Chavez takes a default position to delay and obfuscate the requests of

non-‐recognized members of the press, or persons with whom they do not wish to

deal.

D. …but not later than fifteen days after receiving a written request. If the inspection is not permitted within three business days, the custodian shall explain in writing when the records will be available for inspection or when the public body will respond to the request. The three-day period shall not begin until the written request is delivered to the office of the custodian.

NMSA 1978 §§ 14-2-9-D, et seq. (“IPRA”). Emphasis added.

__________

V. CLAIMS FEDERAL LAW CLAIMS

__________

COUNT 1 – CLAIM UNDER 42 U.S.C. § 1983 FOR VIOLATION OF PLAINTIFF’S FIRST AMENDMENT RIGHT TO FREEDOM OF THE PRESS –

PRIOR RESTRAINT

Plaintiff incorporates by reference all preceding allegations. At all material times, the Defendants’ conduct was under color of federal

law, statute or authority. The First Amendment protects plaintiff’s right to attend, listen to the

deliberations, proceedings, and to participate as a member of the public and/or of the press in: observing, recording, documenting, photographing, reporting and publishing the activities of public meetings of the APS Board, its committees, forums, and other events, such as press conferences.

Defendants deprived plaintiff of his First Amendment rights by refusing to provide a venue large enough to accommodate all persons desiring to attend, and not permitting plaintiff the free exercise of the public and/or of the press.

Defendants’ barring plaintiff from attending the APS District Relations Committee meeting of the APS 2010 (New Mexico) Gubernatorial Education Debate on August 19, 2010, is an impermissible prior restraint on plaintiff’s protected activities.

__________ COUNT 2 – CLAIM UNDER 42 U.S.C. § 1983 FOR VIOLATION OF

PLAINTIFF’S FIRST AMENDMENT RIGHT TO FREEDOM OF PRESS

Plaintiff incorporates by reference all preceding allegations. At all material times, the Defendants’ conduct was under color of federal


deliberations, proceedings, and to participate as a member of the press in: observing, recording, documenting, photographing, reporting and publishing the activities of open meetings of the APS Board.

Defendants deprived plaintiff of his First Amendment rights by arresting and ejecting him, not permitting plaintiff the free exercise as a person, and/or of the press, during the August 25, 2010, Audit Committee meeting.

Defendants’ barring plaintiff from attending the end of the August 25, 2010, Audit Committee meeting, is an impermissible action of plaintiff’s protected exercise of his free press activities, and his right to peaceably to assemble under the First Amendment.

Defendants deprived plaintiff of his First Amendment rights by ejecting or prohibiting him from exercising his right to attend, listen to the deliberations, proceedings, and to participate as a member of the press in: observing, recording,

documenting, photographing, reporting and publishing the activities of open meetings of the APS Board’s Audit Committee.

Defendants’ took these actions because plaintiff asserted his protected rights and questioned repeated unreasonable placement of plaintiff’s video and audio recording devices, under state law.

Defendants’ actions were not narrowly drawn to effectuate a substantial or compelling governmental interest.

__________

COUNT 3 – CLAIM UNDER 42 U.S.C. § 1983 FOR VIOLATION OF PLAINTIFF’S FIRST AMENDMENT RIGHT TO FREEDOM OF PRESS

Plaintiff incorporates by reference all preceding allegations.

At all material times, the Defendants’ conduct was under color of federal law, statute or authority.

The First Amendment protects plaintiff’s right to attend, listen to the deliberations, proceedings, and to participate as a member of the press in: observing, recording, documenting, photographing, reporting and publishing the activities of open meetings of the APS Board.

Defendants deprived plaintiff of his First Amendment rights by barring his entry and not permitting plaintiff the free exercise of the press, during the September 1, 2010, APS Board meeting.

Defendants deprived plaintiff of his First Amendment rights by barring his entry to the September 1, 2010, APS Board meeting and not permitting plaintiff the free exercise of the press.

The First Amendment “Congress shall make no law … abridging the freedom … or of the press; or the right of the people peaceably to assemble…” protects plaintiff in exercising his right to attend, listen to the deliberations, proceedings, and to participate as a member of the public, and the press in: observing, recording, documenting, photographing, reporting and publishing the activities of open meetings of the APS Board.

Defendants deprived plaintiff of his First Amendment rights by barring and prohibiting him from exercising his protected rights during the public meeting of the APS Board.

Defendant Deputy Chief of Police Steve Gallegos took this action, barring plaintiff’s entry to the Board meeting, by saying, “You, specifically, are not allowed in,” which was in direct contradiction of defendant APS Police Chief Steve Tellez’s statement to plaintiff, “You’re allowed in.” Tellez refused to talk with plaintiff to override Gallegos’ barring decree against plaintiff’s protected rights.

Defendants’ actions were not narrowly drawn to effectuate a substantial or compelling governmental interest.

__________ COUNT 4 – CLAIM UNDER 42 U.S.C. § 1983 FOR VIOLATION OF

PLAINTIFF’S FIRST AMENDMENT RIGHT TO FREEDOM OF PRESS

Plaintiff incorporates by reference all preceding allegations. At all material times, the defendants’ conduct was under color of federal


deliberations, proceedings, and to participate as a person and/or as member of the press in: observing, recording, documenting, photographing, reporting and publishing the activities of public meetings of the APS Board, its committees, forums, and other events, such as press conferences.

Defendant APS Board member Katherine Korte, deprived plaintiff of his First Amendment rights: by applying force with her hand to plaintiff’s camera lens, creating a physical censorship, and preventing plaintiff from the free exercise of his protected rights, and causing plaintiff to be arrested and ejected from APS property.

Defendants’ barring plaintiff from attending the October 8, 2012, forum, “APS Taking Input on Family, Community Engagement Policy, Procedures,” is an impermissible prior restraint on plaintiff’s protected activities.

__________

COUNT 5 – CLAIM UNDER 42 U.S.C. § 1983 FOR VIOLATION OF PLAINTIFF’S FIRST AMENDMENT RIGHT TO FREEDOM OF PRESS



The First Amendment protects plaintiff’s right to attend, listen to the deliberations, proceedings, and to participate as a person desiring to attend and/or a member of the press in: observing, recording, documenting, photographing, reporting and publishing the activities of public meetings of the APS Board, its committees, forums, and other events, such as press conferences.

Defendants deprived plaintiff of his First Amendment rights by banning plaintiff from attending all meetings on APS property.

Defendants’ banning plaintiff from attending all meetings on APS property is an impermissible prior restraint on plaintiff’s protected activities.

__________

COUNT 6 – CLAIM UNDER 42 U.S.C. § 1983 FOR VIOLATION OF PLAINTIFF’S FIRST AMENDMENT RIGHT TO FREEDOM OF PRESS –

RETALIATION



The First Amendment protects plaintiff’s right to attend, listen to the deliberations, proceedings, and to participate as a person desiring to attend and/or a member of the press in: observing, recording, documenting, photographing, reporting and publishing the activities of public meetings of the APS Board, its committees, forums, and other events, such as press conferences.

Defendants deprived plaintiff of his First Amendment rights by banning plaintiff from attending all meetings on APS property.

Defendants’ actions caused plaintiff to suffer injuries that would chill a person of ordinary firmness from continuing to engage in the protected activities.

Defendants’ actions were substantially motivated as a response to plaintiff’s exercise of constitutionally protected activities.

__________

COUNT 7 -- CLAIM UNDER 42 U.S.C. § 1983 FOR VIOLATION OF PLAINTIFF’S FOURTH AMENDMENT RIGHT AGAINST UNREASONABLE

SEIZURE

Plaintiff incorporates by reference all preceding allegations. At all material times, the defendants’ conduct was under color of federal

law, statute or authority. The Fourth Amendment protects plaintiff’s right to attend and to

participate in the public meetings of the APS Board without being seized, arrested, and ejected, without criminal charges being filed, and where there was no probable cause to believe a crime had been committed for which defendants could lawfully seize the plaintiff.

Plaintiff’s Fourth Amendment rights to be secure from unreasonable seizure of the body of his person without a warrant was violated when the defendants acted unreasonably where no probable cause existed to believe a crime occurred, or that plaintiff had committed any crime.

Defendants’ actions against plaintiff’s Fourth Amendment rights were taken: willfully, intentionally, maliciously, arbitrarily and capriciously.

__________ COUNT 8 -- CLAIM UNDER 42 U.S.C. § 1983 FOR VIOLATION OF PLAINTIFF’S FIFTH AMENDMENT RIGHT TO DUE PROCESS


At all material times, the defendants’ conduct was under color of federal law, statute or authority.

The Fifth Amendment protects plaintiff’s right to engage in commerce through his press activities and to participate in the public meetings of the APS Board, without defendants abridging his freedom of the press, or his right to peaceably assemble and to prohibit him from practicing his craft as a freelance photojournalist.

The Fifth Amendment protects plaintiff’s rights in a liberty interest. Defendants’ failed to provide plaintiff with an opportunity to be heard at a

meaningful time and in a meaningful manner, or to provide any other method to appeal the intentionally, malicious, arbitrary and capricious actions of the defendants in disrupting plaintiff’s business.

Defendants’ actions against plaintiff’s Fifth Amendment rights deprived him of his liberty interest, without due process of law.

__________

COUNT 9 -- CLAIM UNDER 42 U.S.C. § 1983 FOR VIOLATION OF PLAINTIFF’S SIXTH AMENDMENT RIGHT TO A FAIR TRIAL



The Sixth Amendment protects plaintiff’s right to have allegations made by defendants subject to review by the District Attorney for prosecutorial consideration and if found to have any lawful validity, plaintiff is entitled to a fair and impartial jury with all attendant rights including: a speedy and public trial, by an impartial jury, for him to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

Defendants’ actions against plaintiff expose him to the slander and libel caused by the publicity sought by the defendants in an effort to damage plaintiff’s: honor, name, reputation and credibility and to deprive him of any lawful recourse or protection, except through this cause of action.

Defendants’ actions against plaintiff’s Sixth Amendment protections were: willful, intentional, malicious, arbitrary and capricious depravation of his rights.

__________

COUNT 10 -- CLAIM UNDER 42 U.S.C. § 1983 FOR VIOLATION OF PLAINTIFF’S FOURTEENTH AMENDMENT RIGHT TO DUE PROCESS



The First Amendment protects plaintiff’s right to attend, listen to the deliberations, proceedings, and to participate in: observing, recording, documenting, photographing, reporting and publishing the activities of public meetings of the APS Board, its committees, forums, and other events, such as press conferences, without being deprived unlawfully by defendants’ actions in refusing to provide a venue large enough to accommodate all persons desiring to attend, and not permitting plaintiff the free exercise as a member of the public and/or of the press.

The First Amendment protects plaintiff’s right to attend meetings without being; arrested, ejected, bared, and banned, for asserting his right, and questioning the legality of arbitrary and capricious actions and rulings of the defendants contrary to state law, and APS policies.

The Fourth Amendment protects plaintiff’s right to attend, and participate in the public meetings of the APS Board, its committees, forums, and other events, such as press conferences, without being seized, arrested, and ejected, without criminal charges being filed, and where there was no probable cause to believe a crime had been committed for which defendants could lawfully seize the plaintiff.

The Fifth Amendment protects plaintiff’s right to engage in commerce through his press activities and to participate in the public meetings of the APS Board, its committees, forums, and other events, such as press conferences, without defendants abridging his freedom of the press, or his right to peaceably assemble and to prohibit him from practicing his craft as a freelance photojournalist, depriving him of his liberty interest, without due process of law.

The Sixth Amendment protects plaintiff’s right to have allegations made by defendants subject to review by the District Attorney for prosecutorial consideration and if found to have any lawful validity, plaintiff is entitled to a fair trial.

Plaintiff’s: First, Fourth, Fifth, and Sixth Amendment rights constitute a liberty interest protected by the Fourteenth Amendment.

Defendants’ failed to provide plaintiff with an opportunity to be heard at a meaningful time and in a meaningful manner.

Defendants’ actions against plaintiff’s: First, Fourth, Fifth, and Sixth Amendment protections were: willful, intentional, malicious, arbitrary and capricious depravation of his rights.

__________

COUNT 11 – DECLARATORY AND INJUNCTIVE RELIEF FOR VIOLATION OF

PLAINTIFF’S FIRST AND FOURTEENTH AMENDMENT RIGHTS

Plaintiff incorporates by reference the claims, facts, and allegations set

forth in the above paragraphs.

As demonstrated above in the preceding paragraphs, defendants have

violated plaintiff’s First, Fourth, Fifth, and Sixth, and Fourteenth Amendment rights

by restraining his right to attend and speak at the public meetings of the APS Board,

its committees meetings, forums, and other events, such as press conferences. As

such, Plaintiff is entitled to declaratory relief that defendants have violated his

constitutional rights.

Because defendants have violated plaintiff’s First, Fourth, Fifth, and

Sixth, and Fourteenth Amendment rights by restraining his right to attend, listen to

the deliberations, proceedings, and to participate in: observing, recording,

documenting, photographing, reporting and publishing the activities at the public

meetings of the APS Board, its committees, forums, and other events, such as press

conferences, plaintiff is entitled to an injunction ordering the defendants to revoke

the order banning him from any meetings on APS property.

__________ STATE LAW CLAIMS

COUNT 12 – VIOLATION OF THE NEW MEXICO OPEN MEETINGS ACT



Defendants, Executive Director of Communications Monica Armenta,

Communications Specialist John Miller, Superintendent Winston Brooks, APS Chief

Operations Officer Brad Winter, APS Police Chief Steve Tellez, Deputy Chief of Police

Steve Gallegos, Board’s Audit Committee Chair David Robbins, Board member

Robert Lucero, Board President Martin Esquivel, Board President Paula Maes, and

Board member Katherine Korte, engaged singularly, or in varying combinations in

one or more actions, and on one or more occasions, which deprived plaintiff of his

right as a person desiring to attend, listen to the deliberations proceedings, and to

have reasonable accommodations made for the use of audio and video recording

devices, in violation of the New Mexico Open Meetings Act.

NMSA 1978 § 10-‐15-‐1

Pursuant to:

NMSA 1978 § 10-‐15-‐4. Penalty; Any person violating any of the provisions of NMSA 1978, Section 10-‐15-‐1 or 10-‐15-‐2 is guilty of a misdemeanor and upon conviction shall be punished by a fine of not more than five hundred dollars ($500) for each offense.

__________

COUNT 13 – VIOLATION OF THE NEW MEXICO INSPECTION OF PUBLIC

RECORDS ACT



Defendant APS Director of the Communications Department, and

Records Custodian Rigo Chavez has violated the New Mexico Inspection of Public

Records Act by failing to produce the public records properly requested in writing

by the plaintiff in a timely and complete manner, as required by the IPRA.

Defendants have unlawfully denied the request made by plaintiff by

failing to respond to plaintiff’s request within a reasonable time period, as required

by NMSA 1978 § 14-‐2-‐10.

Defendants, if relying on any exception under the IPRA as a basis for

withholding records, failed to issue a proper denial of the records requests using the

denial procedure set forth in NMSA 1978§ 14-‐2-‐11(B).

__________

COUNT 14 – DECLARATORY AND INJUNCTIVE RELIEF FOR VIOLATION OF THE

NEW MEXICO INSPECTION OF PUBLIC RECORDS ACT



As demonstrated above in the preceding paragraphs, defendants have

violated the provisions of the New Mexico Inspection of Public Records Act by

withholding from inspection the public records plaintiff requested. As such, plaintiff

is entitled to declaratory relief that defendants have violated the IPRA.

The New Mexico IPRA provides thatL

(a)n action to enforce the IPRA may be brought by ... a person whose written request has been denied” and that, “a district court may issue a writ of mandamus or order an injunction or other appropriate remedy to enforce the provisions of the IPRA.

NMSA 1978 § 14-‐2-‐12. Because defendants have violated the IPRA by denying plaintiff all of

the public records he requested, plaintiff is entitled to an injunction ordering the

defendants to produce all relevant documents in the Defendants possession in

unredacted form.

Pursuant to NMSA 1978 § 14-‐2-‐11C and NMSA 1978 § 14-‐2-‐12D,

plaintiff is entitled to statutory damages, costs and reasonable attorneys’ fees.

Plaintiff acting Pro Se is not eligible for an award of attorneys’ fees, but is entitled to

statutory damages and costs.

__________

VI. PREVIOUS LAWSUITS AND ADMINISTRATIVE RELIEF

Plaintiff had not brought any lawsuit dealing with the same facts and

issues in either state or federal courts.

There is no administrative process available at law to the plaintiff to

hear and resolves the issues arising in this cause of action.

__________

VII. REQUESTED RELIEF WHEREFORE, Plaintiff respectfully requests the following relief:

A. That this Court enter a Declaratory Judgment adjudicating that the order banning plaintiff from attending the public meetings of the APS Board violates the First, Fourth, Fifth, and Sixth, and Fourteenth Amendments;

B. That this Court issue an Injunction prohibiting defendants from excluding plaintiff from the public meetings of the APS Board, its committees, forums, and other events, such as press conferences, or otherwise censoring his journalistic efforts at APS meetings and events;

C. That this Court award nominal and compensatory damages against Defendants for their violation of plaintiff’s clearly established constitutional rights;

D. That this Court award plaintiff his costs and expenses of this action, in accordance with 42. U.S.C. § 1988 (a);

E. That this Court enter a Declaratory Judgment adjudicating that defendant’s violations of the New Mexico Open Meetings Act occurred, and issue a writ of mandamus requiring defendants to fulfill their mandatory, nondiscretionary duty to follow the New Mexico Open Meetings Act.

F. That this Court enter Judgment in favor of plaintiff on defendant’s

violation(s) of the New Mexico Open Meetings Act.

G. That this Court enter an Injunction to enforce the provisions of the

New Mexico Open Meetings Act.

H. That this Court enter a Declaratory Judgment adjudicating that the denial of the public records requested by plaintiff is in violation of the New Mexico Inspection of Public Records Act, and issue a writ of mandamus requiring defendants to produce the requested records;

I That this Court enter Judgment in favor of plaintiff on defendant’s

violation(s) of the Inspection of Public Records Act;

J That this Court enter an Injunction to enforce the provisions of the

New Mexico Inspection of Public Records Act;

K. That this Court award plaintiff actual and statutory damages for

violations of the Inspection of Public Records Act;

L. That this Court enter an order awarding plaintiff his costs as provided

by the Inspection of Public Records Act; and

M. That this Court award plaintiff actual and statutory damages for

violations of the Inspection of Public Records Act;

N. That this Court enter an order awarding plaintiff his costs as provided

by the Inspection of Public Records Act; and

O. Such other and further relief as the Court deems just.

__________ Respectfully submitted,

__________________________ Mark G. Bralley (Pro Se)

2626 Morrow Rd. N.E. Albuquerque, NM 87106 (505) 232-8056

__________

Declaration Under Penalty Of Perjury

The undersigned declares under penalty of perjury that he is the plaintiff in the

above action, has prepared the above complaint and the information contained

herein is true and correct.

28 U.S.C Sec. 1746. 18 U.S.C Sec. 1621.

Executed at ___________________________________________________ on August 19, 2013.

____________________________________

Mark G. Bralley

1

UNITED STATES DISRICT COURT FOR THE DISTRICT OF NEW MEXICO

MARK G. BRALLEY,

Plaintiff, v. Cause No. 1:13-cv-00768 ACT/RHS THE ALBUQUERQUE PUBLIC SCHOOLS BOARD OF EDUCATION, et al.,

Defendants.

LIMITED ENTRY OF APPEARANCE

Yenson, Allen & Wosick, P.C. hereby enters its limited appearance on behalf of

Defendants Albuquerque Public Schools Board of Education, Robert Lucero, David Robbins,

Paula Maes, Katherine Korte, Albuquerque Public Schools, Winston Brooks, Bradley Winter,

Monica Armenta, Rigo Chavez, John Miller, Steve Tellez, Steve Gallegos, and Albuquerque

Public Schools Police Department in the above-entitled cause of action, for the sole purpose of

contesting service of process. Copies of all pleadings, orders and any other documents filed or

transmitted in this case should be served on counsel for these Defendants.

Respectfully submitted,

YENSON, ALLEN & WOSICK, P.C. Electronically signed by:

Patrick D. Allen 4908 Alameda Blvd NE Albuquerque, NM 87113-1736 (505) 266-3995 [email protected] Attorneys for Defendants Albuquerque Public Schools Board of Education, Robert Lucero, David Robbins, Paula Maes, Katherine Korte, Albuquerque Public Schools, Winston Brooks, Bradley Winter, Monica Armenta, Rigo Chavez, John Miller, Steve Tellez, Steve Gallegos

Case 1:13-cv-00768-ACT-RHS Document 8 Filed 01/03/14 Page 1 of 2

CERTIFICATE OF SERVICE

I hereby certify that on this 3d day of January 2013, the foregoing pleading was served via CM/ECF upon the following:

Luis E. Robles Robles, Rael & Anaya, P.C. 500 Marquette Ave NW, # 700 Albuquerque, NM 87102-5346 505-242-2228 [email protected] Counsel for Defendant Esquivel

Mark G. Bralley 2626 Morrow Rd., NE Albuquerque, NM 87106 (505) 232-8056 Plaintiff Pro Se

Electronically signed by:

Patrick D. Allen

2

!

Case 1:13-cv-00768-JB-RHS Document 13 Filed 01/10/14 Page 1 of 9

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

Mark G. Bralley, Plaintiff,

v. No. CIV 13-768 WJ/RHS

The ALBUQUERQUE PUBLIC ��SCHOOLS BOARD OF EDUCATION, Former Member ROBERT LUCERO, in his individual capacity, Former Member DAVID ROBBINS, in his individual capacity, Former Member PAULA MAES, in her individual capacity, MARTIN ESQUIVEL, in his individual capacity, KATHERINE KORTE, in her individual capacity, The ALBUQUERQUE PUBLIC SCHOOLS, WINSTON BROOKS, in his individual capacity, BRADLEY WINTER, in his individual capacity, MONICA ARMENTA, in her individual capacity, RIGO CHAVEZ, in his individual capacity, JOHN MILLER, in his individual capacity, STEVE TELLEZ, in his individual ��capacity, STEVE GALLEGOS, in his individual capacity, ALBUQUERQUE PUBLIC SCHOOLS POLICE DEPARTMENT,

Defendants.

MOTION TO DISMISS PLAINTIFF’S COMPLAINT FOR FAILURE TO PROPERLY SERVE DEFENDANTS

UNDER RULE 4(M) OF THE FEDERAL RULES OF CIVIL PROCEDURE

Defendant, Martin Esquivel (hereinafter referred to as “Defendant Esquivel”), through his attorneys Robles, Rael & Anaya, P.C. (Luis Robles, Esq.), and pursuant to Fed. R. Civ. P. 4(m),


moves to dismiss Plaintiff’s Complaint for Violations of the First, Fourth Fifth, Sixth and Fourteenth Amendments to the United States Constitution; Violation of Article II Bill of Rights Sec. 17 [Freedom of Speech and Press; Libel] and Sec. 18 [Due Process; Equal Protection] of the New Mexico Constitution; and to Enforce the New Mexico Open Meetings Act, and to Enforce the New Mexico Inspection of Public Records Act, and in support thereof, states as follows:

INTRODUCTION

Under Rule 4(m) of the Federal Rules of Civil Procedure, “[i]f 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 or order that service be made within a specified time.” Fed. R. Civ. P. 4(m). Plaintiff’s Complaint was filed with this Court on August 19, 2013, giving him until December 17, 2013 to serve Defendant Esquivel and the other named defendants. Plaintiff has not properly served any defendant in this case, and has misrepresented the completion of service to the Court. Accordingly, Defendant Esquivel seeks dismissal of Plaintiff’s Complaint under Rule 4 of the Federal Civil Rules of Procedure.

BACKGROUND

On August 19, 2013, Plaintiff filed his Complaint with the Court, alleging various constitutional violations. [Doc. 1]. In his Complaint, Plaintiff named some fifteen defendants, all of whom are affiliated with the Albuquerque Public School (APS) district in some regard. Since August 19, 2013, Plaintiff has failed to properly perfect service on any of the Defendants, though he did improperly attempt to serve the various Defendants through material misrepresentation.

On December 16, 2013, one day before the 120 day period had lapsed, Plaintiff attempted service through an individual, presumably a process server, who lied about his identity and left

2


copies of Plaintiff’s lawsuit with a person not authorized to accept service. On his way into his office on December 16, 2013, Mike Wilson, the Director of Risk Management for APS, encountered a man claiming to be from the office of Art Melendres, an attorney with the Modrall firm. See Affidavit of Mike Wilson, attached as Exhibit A at ¶ 2. The Modrall firm serves as outside counsel for APS and it is not unusual for someone to deliver papers from the firm. Id. The man stated that he had papers for APS from Art Melendres, and never informed Mr. Wilson that he was a process server. Id. at ¶¶ 2-3. Mr. Wilson accepted the papers, but is not authorized to accept service for APS, the APS Board of Education, or any current or former APS Board member or employee. Id. at ¶¶ 4-5. After speaking with Mr. Melendres, Mr. Wilson learned that the man had not come from Mr. Melendres’ office. Id. at 4, Letter from Art Melendres to Mark Bralley dated December 27, 2013, attached as Exhibit B. Before attempting this method of service, Plaintiff had called Mr. Melendres’ office and was informed that Mr. Melendres would not agree to accept service and that Mr. Wilson’s office might have more information about how service could be perfected. Plaintiff was not directed to serve the Complaint on Mr. Wilson.

After attempting this improper service, Plaintiff filed three returns of service with the Court. See [Doc. Nos. 5-7]. Document No. 5 is a Summons Return naming only Defendant David Robbins. Document No. 6 is a Summons Return naming only Defendant Steve Tellez. Document No. 7 is a Summons Return naming only Bradley Winter. Despite attaching only these three returns, Plaintiff has represented to the Court that he has perfected service on all fifteen Defendants. See Docket Sheet, printed December 30, 2013. Moreover, the Summons Returns indicate that service was effected on Mike Wilson, who is not authorized to accept service for any Defendant and was not told that the man he spoke with was a process server. See Exhibit A.��

3


On December 27, 2013, Mr. Melendres sent correspondence to Mr. Bralley, informing him that the service was not proper and that it was a material misrepresentation to invoke his name in an effort to perfect service. See Exhibit B. Despite this correspondence, Plaintiff has done nothing to correct service or, to Defendant Esquivel’s knowledge, to inform the Court of his failure to serve Defendants properly.

LEGAL ARGUMENT

Under Rule 4(m) of the Federal Rules of Civil Procedure, “[i]f 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 or order that service be made within a specified time.” Fed. R. Civ. P. 4(m).

The rules also describe the appropriate method to serve a defendant within the 120 day period. For example, Rule 4(e) describes the process for serving individuals, and states that service can be accomplished by following state law for serving a summons, or:

(A) delivering a copy of the summons and of the complaint to the individual personally; (B) leaving a copy of each at the individual’s dwelling or usual place of abode with someone of suitable age and discretion who resides there; or

(C) delivering a copy of each to an agent authorized by appointment or by law to receive service of process.

Fed. R. Civ. P. 4(e). Plaintiff has failed to accomplish service under the rules with regard to either

the individual defendants or the government entities.

I. PLAINTIFF HAS NOT SERVED DEFENDANT ESQUIVEL WITHIN THE 120 DAY PERIOD AND HIS COMPLAINT SHOULD BE DISMISSED WITHOUT PREJUDICE.

The Tenth Circuit has dictated that the first inquiry that the Court should undertake when considering dismissal under Rule 4(m) is “whether the plaintiff has shown good cause for the

4


failure to timely effect service.” Espinoza v. United States, 52 F.3d 838, 841 (10th Cir. 1995). “The good cause provision of Rule 4[(m)] should be read narrowly to protect only those plaintiffs who have been meticulous in their efforts to comply with the Rule.” Martinez-Jones, 2008 WL 2229457 *3 (quoting Despain v. Salt Lake Area Metro Gang Unit, 13 F.3d 1436, 1438 (10th Cir.1994)). It is irrelevant to good cause whether defendants have actual notice or whether defendants are prejudiced by the delay, “[t]he standard is whether plaintiffs have shown ‘good cause’ for their failure.” Despain, 13 F.3d at 1439 (citations omitted).

In determining whether a plaintiff has shown good cause for failure to effect service, courts within the Tenth Circuit have specifically considered whether the plaintiff was informed of the problem with his attempted service and whether he failed to correct the error. Jones v. Frank, 973 F.2d 872, 873-74 (10th Cir. 1992). For example, in Jones a pro se plaintiff sued the Postmaster General, requiring him to serve the Postmaster General, the U.S. Attorney General, and the U.S. Attorney for the District of Colorado. Id.; see also Fed. R. Civ. P. 4(i) (previously Fed. R. Civ. P. (d)(4) and (5)). Jones was informed by the U.S. Attorney on at least two occasions that service was deficient, but failed to correct the problem and make proper service. Id. at 873. In affirming the dismissal of =Jones’ complaint, the court explained, “we cannot sanction Plaintiff’s complete failure to correct his service defects after being told what was wrong.” Id. at 874. It should be noted that, where Jones failed to correct his mistake, the Tenth Circuit upheld the dismissal, even though the Rules of Procedure allow extra time to accommodate “the requirements of multiple service under [Rule 4(i), governing service on an officer of the United States]” and the rule “clearly evinces a solicitous attitude toward plaintiffs faced with ‘the complex requirements of multiple service’ under Rule 4(i).” Espinoza, 52 F.3d at 842 (10th Cir. 1995) (referencing Fed. R. Civ. P.

5


4(i) advisory committee’s notes). Essentially, where Jones completely failed to make an effort to follow the rules, the Tenth Circuit upheld the dismissal of his complaint even where service was notably more complex than service in this instance.

Though the rule grants the Court discretion to grant Plaintiff additional time to perfect service rather than dismissing the Complaint without prejudice, the Tenth Circuit has outlined several factors that should guide the use of that discretion. Espinoza, 52 F.3d at 842. Among those factors are whether the statute of limitations would bar the plaintiff from refiling his complaint, whether the plaintiff is proceeding pro se, and whether the defendants are evading service. See id. and Martinez-Jones v. Dulce Indep. Sch., CIV 07-0703 JB/WDS, 2008 WL 2229457 *4 (D.N.M. Mar. 14, 2008). However, in considering a motion under Rule 4(m), it is important to note that “[a] pro se litigant is still obligated to follow the requirements of Fed.R.Civ.P. 4.” DiCesare v. Stuart, 12 F.3d 973, 980 (10th Cir. 1993).

In the instant case, there is clearly no good cause for Plaintiff’s failure to timely effect service of his suit on the various Defendants. The rules of civil procedure describe the correct methods for serving the various government and individual defendants. Even assuming that Plaintiff was unsure how to find these rules or follow them, Defendant Esquivel is aware of only one attempt to obtain any information regarding proper service: Plaintiff’s phone call to Art Melendres’ office shortly before the 120 day period had lapsed. Then, after being told to speak with Mike Wilson, who would have presumably informed Plaintiff that Defendants were represented and that counsel would accept service, Plaintiff instead attempted to surreptitiously serve Mike Wilson on behalf of Defendants. It appears that Plaintiff realized he had waited too long to properly serve Defendants and attempted to circumvent the correct process to save time.

6


Likewise, the balance of factors that may justify an extension despite a lack of good cause weigh against giving Plaintiff an extension of time to serve Defendants. Though Plaintiff is proceeding pro se, he is obligated to abide by the rules and made no attempt to do so. See DiCesare, 12 F.3d at 980. Defendant Esquivel is not evading service; Plaintiff simply made no attempt to serve Defendants until the last minute. Then, Plaintiff improperly tried to effect service through a process server who materially misrepresented his purpose, and represented to the Court that service was completed on all Defendants while only providing three returns of service that Defendant Esquivel can see.

Moreover, since that time, Mr. Melendres sent correspondence to Plaintiff informing him of his mistake and putting Plaintiff on notice that service was improper and had not been completed. Plaintiff has taken no action to correct the deficient service, and is now well outside the 120 day period allowed by Rule 4(m). Plaintiff clearly does not meet the requirement of being “meticulous in [his] efforts to comply with the Rule,” Martinez-Jones, 2008 WL 2229457 *3, and where a pro se Plaintiff has failed to correct his mistake despite notice, the Tenth Circuit has upheld dismissal under Rule 4(m). See Jones, 973 F.2d at 874.

The Federal Rules of Civil Procedure clearly give 120 days to perfect service and explain the proper method for serving both a government entity and an individual. The timing of Plaintiff’s back door attempt to serve Defendants implies he was aware that the 120 days were about to run and that this is not a case where Plaintiff was simply unaware of the limitations imposed by the rules. Plaintiff has no good cause for his failure to serve Defendant Esquivel, and Plaintiff is aware that his attempts at service were deficient and has taken no actions to correct the error. Given the lack of good cause for complying with the rules, the material misrepresentation of Plaintiff or his

7


representative in delivering copies of the suit to Mike Wilson, and the lack of factors in favor of granting Plaintiff additional time, Plaintiff’s Complaint should be dismissed in accordance with Rule 4(m).

WHEREFORE, Defendant Esquivel respectfully requests that this Court grant his Motion to Dismiss Plaintiff’s Complaint without prejudice, dismiss Plaintiff’s Complaint against Defendant Esquivel in full, and for any other relief this Court deems proper.

I hereby certify that on this 10th day of January 2014, the

foregoing was electronically served through the CM/ECF system to the following:

Mark G. Bralley 2626 Morrow Rd., NE Albuquerque, NM 87106 (505) 232-8056 [email protected]

Respectfully submitted, ROBLES, RAEL & ANAYA, P.C.

By: /s/ Luis Robles Luis Robles

Attorneys for Defendant Esquivel 500 Marquette Ave., NW, Suite 700 Albuquerque, New Mexico 87102 (505) 242-2228 (505) 242-1106 (facsimile)

8


Patrick D. Allen Yenson, Lynn, Allen & Wosick, PC 4908 Alameda Blvd. NE Albuquerque, NM 87113-1736 (505) 266-3995 (505) 268-6694 facsimile [email protected]

/s/ Luis Robles Luis Robles

9

Case 1:13-cv-00768-JB-RHS Document 13-1 Filed 01/10/14 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

Mark G. Bralley, Plaintiff, No. CIV 13-768 WJ/RHS

v.

The Albuquerque Public Schools Board of Education, et al, Defendants

Opposition to Defendant Martin Esquivel’s Motion to Dismiss Plaintiff’s Complaint for Failure to Properly Serve Defendants

Under Rule 4(M) of the Federal Rules of Civil Procedure

INTRODUCTION

Plaintiff Mark G. Bralley, acting Pro Se, has properly completed service of summons and

complaint on the named defendants in this case within the within 120 days after the

complaint was filed by a person qualified and experienced in process serving by

delivering them upon a person designated by the Albuquerque Public School’s General

Counsel who would accept.

Named Defendant Martin Esquivel, through his attorney, Luis Robles brings a motion to

dismiss the complaint claiming failure to properly serve defendants under Rule 4(M) of

the Federal Rules of Civil Procedure.

BACKGROUND

Plaintiff brought a complaint for violation of his civil rights under the First, Fourth, Fifth,

Sixth, and Fourteenth Amendments to the United States Constitution and 42 U.S.C. §

1983, and violations of Article II Bill of Rights Sec. 17. [Freedom of Speech and Press;

Libel], and Sec. 18. [Due Process; Equal Protection] of the State of New Mexico

Constitution and to enforce certain provisions of the New Mexico Open Meetings Act,

NMSA 1978, §§ 10-15-1 et seq, and to enforce the New Mexico Inspection of Public

Records Act, NMSA 1978, §§ 14-2-1 et seq.

Plaintiff properly filed the complaint on August 19, 2013 with the Federal District of

New Mexico’s Court Clerks office in accordance with Rule 3. Commencing an Action,

under the Federal Rules of Civil Procedure.

Shortly after filing the complaint on August 19, 2013, in Mark G. Bralley v. the

Albuquerque Public Schools Board of Education, et al. 13CV 768 ACT/RHS, on August

23, 2013, plaintiff was deposed in the case of Charles "Ched" MacQuigg, vs. The

Albuquerque Public Schools Board of Education, et al, NO: 12-CV-01137-MCA/KBM.

MacQuigg v Albuquerque Public Schools, et al and Bralley v. Albuquerque Public

Schools Board of Education, et al, arise out of some of the same factual background and

several defendants are common to both cases. MacQuigg, as a retired school APS

teacher, is a regular critic of the school system and a prolific writer on a weblog (blog),

Diogenes' Six, http://ched-‐macquigg.blogspot.com, where he publishes his

observations and critique of APS and other governmental entities. Plaintiff observed

MacQuigg for the first time at an APS Board meeting that plaintiff was assigned to cover

as a journalism school reporting class project. Plaintiff covered a number of other APS

board and its committee’s meetings, especially because the board was trying to limit

citizen’s ability to speak to the board during their regular agenda item of their meetings –

public comments. MacQuigg was especially irksome because he challenged administrator

and board members to uphold the tenants of an adopted system wide policy called

Character Counts. Though the program is established as a board policy, MacQuigg

continuously calls them out, especially for not being role models of good character for

students to emulate. Plaintiff determined that MacQuigg represented an interesting

personality with a compelling story and began documenting him for an ongoing photo-

essay and possible video documentary.

MacQuigg’s issues are most related to the first amendment: freedom of speech, right to

peaceably assemble, and the right to petition government for redress of grievances

clauses. Along with other constitutional claims, MacQuigg seeks relief for a failure of

being provided due process after having been banned and bared from APS events where

the board takes public comments.

While similar, plaintiff’s issues are more closely related to the first amendment: freedom

of the press clause.

During the deposition, plaintiff provided copies of the complaint in this matter to

attorneys under contract to APS to defend the MacQuigg case, Patrick Allen, of Yenson,

Allen & Wosick, P.C., and Louis Robles, of Robles, Rael & Anaya P.C.

Q. So when you say there's been no response, are you still, in your view, banned from APS property? A. First of all, I don't recognize, though I acknowledge the letter, receipt of letter. Q. Let me rephrase it. Does APS -- is APS still imposing its ban on you? A. As far as I know, yes. Q. You've met with Mr. Tellez. What other steps, if any, have you taken to end APS's ban? A. I filed a Federal lawsuit. Q. When did you file a Federal lawsuit? A. Monday. Q. Who, if anyone, is your attorney? A. It's pro se. Q. Who are the named defendants in that lawsuit? A. I think maybe the best way to handle that at this moment is to give you a copy. Q. Fair enough.

MR. ALLEN: Can we take a quick break? (Recess was taken from 11:25 a.m. until ll:34 a.m.)

During this break, Robles indicated to plaintiff that he would accept service.

Plaintiff stated the copies were given to them for consideration, and that plaintiff had 120

days to serve the defendants.

Allen prepared a subpoena for all the photographs plaintiff had taken of APS personnel,

all the photographs plaintiff had taken of Ched MacQuigg, all videos, all audio

recordings, and all email exchanges between MacQuigg and plaintiff, Allen was very

interested in making sure that the video of the events during the November 17. 2011

community goal settings meeting at Manzano High were captured. See attached

subpoena.

Plaintiff delivered the bulk of the subpoenaed material in MacQuigg’s Federal Civil

Rights case to Allen on October 9, 2013, consisting of more than 32,000 individual files.

Several days prior to December 12, 2013, plaintiff made telephonic contact with Louis

Robles, plaintiff asked him if he was still willing to accept service of my complaint.

Robles stated he needed to clarify what was said during the deposition, in case I didn’t

understand that he was not able to accept service for all the defendants, because Allen

was representing APS and individuals except Robles was representing the individual APS

board member and president, Martin Esquivel. Robles went on to say, if need be, he

would accept service for Esquivel.

Robles suggested plaintiff call Allen about his accepting service.

Plaintiff told Robles of his difficulty in contacting Allen since October 9, 2013, when he

delivered the evidence responsive to the subpoena, in particular the inability to coordinate

a time to deliver the video that was recovered from a damaged disc.

Robles stated he was having no problem reaching Allen.

Plaintiff told Robles that was because he was a known name or had Allen’s desk number

and asked that the next time he talked with Allen that he tell him of my efforts to contact

him in reference to the additional evidence and plaintiff’s need to speak with him.

Plaintiff attempted to call Pat Allen several times over several days, leaving messages on

his voice mail and with his assistant to ascertain if he would accept service as Robles had

offered.

Plaintiff never received a return call from Allen personally or his office.

Because Allen did not return the calls, plaintiff began to have doubts about whether Allen

was involved representing APS in plaintiff’s case.

Plaintiff attempted to communicate with Arthur D. Melendres, of Modrall, Sperling,

Roehl, Harris & Sisk, P.A., also known as Modrall Sperling Lawyers, several times by

telephone, on December 12 and 13, 2013. Melendres neither took plaintiff’s call nor

answer his request to return the calls, left on Melendres’ voice mail both days. Plaintiff

also left voice mail messages with Melendres’ assistant and spoke with her in person.

On December 16, in the morning, when plaintiff called Melendres, he was again away

from his phone and plaintiff left another voice mail message.

Plaintiff redialed and spoke with Melendres’ assistant and put a direct question to her,

would Mr. Melendres, (as general counsel for APS) accept service for the APS clients?

She said she would check with Melendres.

Mid afternoon, plaintiff again called and when he could not connect with Melendres,

asked for and spoke with his assistant to check if she had an answer. Plaintiff was not at

his home number and was barrowing a friend’s cellular phone. The assistant stated she

had not gotten an answer, but would. Plaintiff asked her how long she thought it would

take? She said, by the end of the day. Plaintiff expressed some degree of urgency.

Plaintiff gave her a friend’s cellular phone number if she was going to communicate

shortly, and that plaintiff would be available at his home number later.

Melendres’ assistant communicated back to plaintiff’s friend’s cellular phone number

stating that, Mike Wilson (APS Risk Management) can accept service at the tower. See

attached email, and affidavit of Peter St. Cyr.

St. Cyr forwarded the message by e-mail to plaintiff, he wrote down the wrong first

name:

Lawfirm called back ... Said Mark Wilson (APS Risk Management) can accept service at the tower. Call Wilson 830-8460

The tower(s) being APS Headquarters.

See attached e-mail from St.Cyr to plaintiff.

When plaintiff arrived home he retrieved the e-mail and called St. Cyr, who immediately

corrected the first name to be Mike.

See attached St. Cyr affidavit.

In his motion Defendant Esquivel’s lawyer Robles is, guilty of factual inexactitudes, as

former Governor David F. Cargo, would say, when he wrote:

Before attempting this method of service, Plaintiff had called Mr. Melendres’ office and was informed that Mr. Melendres would not agree to accept service and that Mr. Wilson’s office might have more information about how service could be perfected. Plaintiff was not directed to serve the Complaint on Mr. Wilson.

Neither Melendres, nor his assistant spoke directly to plaintiff about the purported

contents of the above message, though he had left his home number no less than four

times within three days.

Contrary to Defendant Esquivel’s lawyer Robles’ assertion, “plaintiff was not directed to

serve the Complaint(s) on Mr. Wilson,” that is exactly what Melendres’ office did by

relaying the limited message through St. Cyr.

Neither Melendres, nor his assistant had answered the direct question head on, but

plaintiff took the failure to answer and the fact that plaintiff was told that Mike Wilson

can accept service at the tower… Melendres was not going to accept service for APS

defendants.

Plaintiff was a bit surprised that there was only a single name to accept service.

Having been in government with 27 plus years in law enforcement, previous experience

with serving process on governmental entities, specifically the City of Albuquerque, and

based upon plaintiff ‘s education with a masters of public administration, plaintiff had

never been personally served in his professional capacity, yet received numerous

summons and subpoenas because the government entity, or the department would accept

service and all other employees, then by administrative rule and procedure forward the

documents to plaintiff.

Plaintiff’s surprise was that plaintiff thought there might be up to three different offices

that might accept service at APS.

However, the director of risk management seems like a perfectly reasonable office to

accept service because it is the central location where questions of funding of and

assigning counsel to represent defendants of the entities. The other logical places to

accept service for administrator and employees might be the Superintendent’s office for

Albuquerque Public Schools Winston Brooks, administrator and employees. The office of

Board Services and Government Affairs for members of the Board of Education, and

possibly the office of the Albuquerque Public Schools Police for the entity and officer

defendants.

So, based on Melendres’ assistant’s comment, purportedly made on Melendres’ behalf,

the process server engaged by plaintiff, Galen Smith, approached Wilson who accepted

service.

See attached affidavit of Galen J. Smith who made the service.

Plaintiff asserts the process service for all defendants was perfected under Rule 4 (e)

SERVING AN INDIVIDUAL WITHIN A JUDICIAL DISTRICT OF THE

UNITED STATES. Unless federal law provides otherwise, an individual—other than a minor, an incompetent person, or a person whose waiver has been filed—may be served in a judicial district of the United States by:

(2) doing any of the following: (C) delivering a copy of each to an agent authorized by appointment or by law to receive service of process.

Melendres has not spoken with plaintiff at any time since this cause of action

commenced.

Robles, in his motion wrote:

Defendant Esquivel is aware of only one attempt to obtain any information regarding proper service: Plaintiff’s phone call to Art Melendres’ office shortly before the 120 day period had lapsed. Then, after being told to speak with Mike Wilson, who would have presumably informed Plaintiff that Defendants were represented and that counsel would accept service, Plaintiff instead attempted to surreptitiously serve Mike Wilson on behalf of Defendants.

Robles seems to forget plaintiff’s conversation a week to a week and a half earlier in

which he restated he would accept service for defendant Esquivel.

Plaintiff disputes Robles’ characterization:

It appears that Plaintiff realized he had waited too long to properly serve Defendants and attempted to circumvent the correct process to save time.

By plaintiff’s calculations service was made on the 118th day of 120, not the one day

before, Robles states.

Plaintiff asserts there was nothing surreptitious about the service and was prepared to

have the individual defendants served, but once plaintiff received the forwarded message

from Melendres’ assistant, plaintiff had Smith serve the documents.

Plaintiff had access to several retired associates experienced in serving process who could

be pressed into action to complete the individual service, even on short notice.

However, Wilson accepted the service and did not indicate he was not authorized to

accept service or to indicate who was.

Smith left the documents with Hope Kaehler, the secretary for Risk Management

Department.

The Risk Management Department reports to Chief Operating Officer Bradley Winter, a

defendant in this case.

Melendres has not entered his appearance on behalf of any defendants in this case.

Melendres wrote and sent a certified letter to plaintiff.

December 27, 2013 Re: Service of process Dear Mr. Bralley,

I have been informed by Mr. Mike Wilson, Director of Risk Management at the Albuquerque Public Schools, that on December 17, 2013 you or your agent attempted to accomplish service of process on multiple defendants in the matter of Bralley v. multiple defendants associated with APS by delivering copies of the above mentioned lawsuit to Mr. Mike Wilson’s office. This is not the proper way to serve process on the defendants in this lawsuit. Your attempted service is invalid and is not recognized or accepted as proper service of process. By improperly invoking my name as being the person who gave you direction to deliver papers to Mr. Wilson, you or your agent made a material misrepresentation and further compounded the defective attempt to accomplish service. Only proper service of process will be recognized.

Very truly your, Arthur D. Melendres

ADM/lm Cc: Mike Wilson

When plaintiff received an activity report from the Court Clerks office Case 1:13-cv-

00768-ACT-RHS Document 8 Filed 01/03/14 Page 1 of 2, by attorney Patrick Allen he

certified that on January 3, 2013, the pleading was served via CM/ECF upon plaintiff.

Allen made a limited entry of appearance representing 14 of the 15 defendants, for the

sole purpose of contesting service of process and wrote:

Copies of all pleadings, orders and any other documents filed or transmitted in this case should be served on counsel for these Defendants.

This was the first actual acknowledgement by Pat Allen that he was the attorney for all

the APS defendants except Esquivel.

Plaintiff learned since service was made, and the motion was filed, that Pat Allen was

already the attorney for the defendants and by refusing to take plaintiff’s call he was

engaging in deceit by not admitting his pre-existing representative role, makes a material

misrepresentation in order to avoid service.

Plaintiff might not be receiving activity reports from the Court Clerks office, as he has

not received notice of Robles’ motion, but did receive it directly from Robles by mail.

Plaintiff is unaware if Robles made a limited entry of appearance representing Esquivel

or the filing of the motion constitutes making his entry of appearance.

However, when Robles makes his request of the court:

WHEREFORE, Defendant Esquivel respectfully requests that this Court grant his Motion to Dismiss Plaintiff’s Complaint without prejudice, dismiss Plaintiff’s Complaint against Defendant Esquivel in full, and for any other relief this Court deems proper.

Especially when Robles asks that the court to “…dismiss Plaintiff’s Complaint against

Defendant Esquivel in full, and for any other relief this Court deems proper,” has

accepted the jurisdiction of the court over defendant Esquivel rendering the matter of

perfected service moot and the motion based on it invalid.

Even if the service of the human named defendants are deemed by the court to not be

perfected, plaintiff still has no idea who is the proper person at APS is designated to

accept service for the three institutional defendants: The Albuquerque Public ��Schools

Board of Education, the Albuquerque Public Schools, and, the Albuquerque Public

Schools Police Department.

Plaintiff made inquiry through the Albuquerque Public Schools web site in an attempt to

locate the name of anyone who would be the authorized person designated to accept

process service.

Plaintiff further asserts that, Arthur D. Melendres, of Modrall, Sperling, Roehl, Harris &

Sisk, P.A., Patrick Allen, of Yenson, Allen & Wosick, P.C., and Louis Robles, of Robles,

Rael & Anaya P.C. have through their actions and inactions failed to treat plaintiff in a

fair and honest manner by providing the name(s) and title(s) of the authorized person(s)

designated to accept process service.

Melendres provided a specific name, Mr. Mike Wilson, Director of Risk Management at

the Albuquerque Public Schools as the person who can accept service at the tower, and

then asserting that, “Your attempted service is invalid and is not recognized or accepted

as proper service of process,” and “By improperly invoking my name as being the person

who gave you direction to deliver papers to Mr. Wilson, you or your agent made a

material misrepresentation and further compounded the defective attempt to accomplish

service”.

Plaintiff learned on January 15, 2014, that in the above mentioned, MacQuigg, vs. The

Albuquerque Public Schools Board of Education, et al, that Luis Robles waived summons

and accepted service for Marty Esquivel and Pat Allen accepted service for all APS

defendants except for Marty Esquivel.

A cursory search of other cases in which APS is named as defendant, one will find that

there are no return of services or waivers of service in the court records.

Plaintiff asserts that it is the regular pattern and practice of APS to accept service for its

defendant clients.

This is a practice dating back at least 20 years as attested to by former APS board of

education member Donald P. Patterson.

See attached affidavit of Donald P. Patterson.

Allen, by refusing to return plaintiff’s several phone calls seeking pertinent information

about the identity of who might accept service, he aids in the inability of the plaintiff to

complete what the defense claims as a failure to perfect service on institutional

defendants. Allen avoided service of his defendant clients.

Plaintiff’s final attempt to reach Allen was on December 16, 2013, shortly before

receiving the information on the identity of Wilson passed on indirectly from Melendres

through his assistant.

Plaintiff’s continued unsuccessful attempts to communicate with Melendres and

especially Allen shows a diligent effort, by plaintiff, to make the service prior to the e-

mail from Melendres’ law office.

Robles further engages in speculation, when he wrote:

On December 16, 2013, one day before the 120 day period had lapsed, Plaintiff attempted service through an individual, presumably a process server, who lied about his identity and left copies of Plaintiff’s lawsuit with a person not authorized to accept service. On his way into his office on December 16, 2013, Mike Wilson, the Director of Risk Management for APS, encountered a man claiming to be from the office of Art Melendres, an attorney with the Modrall firm.

Plaintiff asserts that based on what he told the process server about how he knew to serve

Wilson, refutes Robles assertion, especially that the server had reason to or did lie. The

process server, though engaged by the plaintiff to serve the documents, does so under the

authority of the court and is bound to the rules and laws on service.

See attached affidavit of Galen Smith who made the service.

Quoting from the case cited by Robles, Espinoza v. United States, 52 F.3d 838, 841 (10th

Cir. 1995).

If good cause is shown, the plaintiff is entitled to a mandatory extension of time. If the plaintiff fails to show good cause, the district court must still consider whether a permissive 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.

Emphasis added Espinoza v. United States, 52 F.3d 838, 841 (10th Cir. 1995)

If the court were to find that the rule 4 was not complied with:

“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 or order that service be made within a specified time.” Fed. R. Civ. P. 4(m).

A dismissal without prejudice in this matter would in fact be a dismissal with prejudice,

because the chronologically the first action mentioned in the complaint occurred August

19, 2010, and plaintiff would be barred from re-filing back to original date of the first

injury.

CONCLUSIONS

Based on the forgoing, plaintiff has perfected service on all defendants based on the

information he received, believed, and relied upon from chief counsel for APS.

If the service is found to not have been proper, plaintiff has shown good cause as to why

it was deficient.

The reason for the deficiency was the direct result of the concerted efforts of chief

counsel for APS and Patrick Allen in not being open, candid, and responsive to plaintiff’s

efforts to make proper service and by misdirecting his good faith efforts to serve the

proper designated person who could accept service.

PRAYER FOR RELIEF

Plaintiff believes there are five options available the courts in disposing of this motion

made by defendant Esquivel:

1. By filing this motion and asking the court for relief beyond the limited

purpose of contesting proper service, defendant Esquivel has, in fact,

accepted the jurisdiction of the court intentionally or unintentionally,

making the matter of service moot and Esquivel actually recognizing the

court’s jurisdiction over him.

2. The court can find the service was perfected and service returned within

the limits Rule 4.

(m) TIME LIMIT FOR SERVICE. 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 or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period. This subdivision (m) does not apply to service in a foreign country under Rule 4(f) or 4(j)(1).

3. If the court finds the service was deficient, it may find plaintiff has shown

good cause as to why it was deficient.

If good cause is shown, the plaintiff is entitled to a mandatory extension of time… Espinoza v. United States, 52 F.3d 838, 841 (10th Cir. 1995)

4. The statute of limitations would bar the plaintiff from refilling his entire

complaint.

In considering dismissal without prejudice, the court should consider, whether the statute of limitations would bar the plaintiff from refilling his complaint, whether the plaintiff is proceeding pro se, and whether the defendants are evading service. Martinez-Jones v. Dulce Indep. Sch., CIV 07-0703 JB/WDS, 2008 WL 2229457 *4 (D.N.M. Mar. 14, 2008).

5. The court may find that plaintiff was hampered by the actions of

Defendant’s attorneys (Melendres) by misdirection and (Allen) by failure

to respond, thereby avoiding service of defendants.

WHEREFORE, Plaintiff respectfully requests that this Court dismiss Defendant’s

Motion to Dismiss Plaintiff’s Complaint without prejudice, by finding service completed.

Or within the courts finding that. “… plaintiff shows good cause for the failure, the court

must extend the time for service for an appropriate period.”

In order to assist the court in its considerations, to hold a hearing, if need be, to take

testimony from witnesses plaintiff has had no access to.

Respectfully submitted, __________________________ Mark G. Bralley (Pro Se) 2626 Morrow Rd. N.E. Albuquerque, NM 87106 (505) 232-8056

__________ Declaration Under Penalty Of Perjury

The undersigned declares under penalty of perjury that he is the plaintiff in the

above action, has prepared the above response and the information contained

herein is true and correct.

28 U.S.C Sec. 1746. 18 U.S.C Sec. 1621.

Executed at ___________________________________________________ on January 27, 2014.

____________________________________

I hereby certify that on this

27th day of January 2014, the foregoing was mailed to the following:

Luis Robles Attorneys for Defendant Esquivel 500 Marquette Ave., NW, Suite 700 Albuquerque, New Mexico 87102 (505) 242-2228 (505) 242-1106 (facsimile)

Patrick D. Allen Yenson, Lynn, Allen & Wosick, PC 4908 Alameda Blvd. NE Albuquerque, NM 87113-1736 (505) 266-3995 (505) 268-6694 facsimile

Arthur D. Melendres Modrall Sperling Roehl Harris & Sisk P.A. Bank of America Centre 500 Fourth Street NW Suite 1000 Albuquerque, New Mexico 87102 PO Box 2168 Albuquerque, New Mexico 87103-2168 Tel: 505.848.1800 www.modrall.com

__________________________ Mark G. Bralley (Pro Se)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

Mark G. Bralley

Plaintiff v

The ALBUQUERQUE PUBLIC SCHOOLS BOARD OF EDUCATION, et al.,

Defendants

Cause No: 1:13-‐cv-‐00768 WP/RHS

AFFADAVIT OF PETER ST. CYR

I, Peter St. Cyr, state the following from personal knowledge, and belief, and under penalty of perjury:

1. I am a personal friend and colleague of Mark Bralley. 2. On December 16, 2013 at around 2:15 p.m. Mark Bralley stopped by my

house. 3. He requested the use of my cellular telephone. 4. My AT&T phone bill provides an itemized log of both incoming and outgoing

phone calls. 5. The log indicated that at 2:26 p.m. Mr. Bralley dialed (505) 266-‐3995. 6. That number belongs to Yenson, Lynn, Allen & Wosick, PC. 7. I heard him ask whoever answered the phone call to have Mr. Allen call him

at my cell number. 8. Then, at 2:31 p.m. Mr. Bralley made another outgoing call. 9. The itemized phone bill indicates Mr. Bralley dialed (505) 848-‐1800 10. That number is assigned to to Modrall Sperling Law Firm. 11. I heard Mr. Bralley ask whomever answered the phone that he needed to talk

to Art Melendres. 12. During the same phone call I heard Mr. Bralley ask whether there had been a

determination as to whether Mr. Melendres would accept service for the Albuquerque Schools Board of Education.

13. I did not hear the answer. 14. I did hear Mr. Bralley ask when he would get an answer. 15. I did not hear an answer to his question. 16. Next, I heard Mr. Bralley indicate that the matter was urgent.

17. Mr. Bralley then gave whomever was on the phone my cellular number. He told them he would be at my house for a while and then could be reached at his home number.

18. Mark Bralley left my house around 2:45 p.m. 19. After Mark was gone, the itemized phone log for my AT&T customer account

indicates that at 2:59 p.m. I received an incoming call from (505) 848-‐1800. This is the same number that Mark had made an outgoing call to talk to Mr. Melendres.

20. I answered the phone and a woman asked to talk to Mark Bralley. 21. I indicated he was gone. 22. At that time, the woman, whose name I do not recall, told me to tell Mark

Bralley that Mike Wilson at APS Risk Management would accept service. 23. I told her thank you for the information and said that I would relay the

message to Mr. Bralley. 24. I emailed Mr. Bralley the information at 3:03 p.m., but used the name Mark

Wilson instead of Mike Wilson. (See email attached).

25. My itemized phone log shows that Mr. Bralley called me from his home phone (505) 232-‐8056 at 3:04 p.m. and told me that he had received the e-‐mail to thank me for forwarding the information to him.

26. During same phone conversation I told Mr. Bralley that I had written the name Mark Wilson but that Mr. Wilson’s first name was Mike, not Mark.

FURTHER AFFIANT SAYETH NAUGHT.

__________________ Peter St. Cyr

STATE OF NEW MEXICO ) ) ss. COUNTY OF BERNALILLO )

SUBSCRIBED AND SWORN to before me this ____ day of January 2014 by Peter St. Cyr

__________________ Notary Public

My Commission Expires:

__________________

Sponsored Listings

Credit CompanyBreachLifeLock.com

Brain TrainingGameswww.lumosity.com ADVERTISEMENT

[email protected] | Preferences | Help | Feedback | Sign Out | Use the previous WebMail

Email Folders [Edit]

Inbox [441]

Drafts [7] Sent [739] Trash

spamBlocker [Edit] Suspect Email [4]

Known Spam [7]

Virus Blocker

Safari Power SaverClick to Start FlashPlug-in

MessageMessage‹ Previous | Next › | « Back to INBOXINBOX

Reply Reply All Forward... Print Delete Spam Move to... More Actions...

From:From: "Peter St. Cyr" <[email protected]> [Edit Address Book]

To:To: "[email protected]" <[email protected]>Subject:Subject: Go to APS Risk MgtDate:Date: Dec 16, 2013 3:03 PMLawfirm called back ...

Said Mark Wilson (APS Risk Management) can accept service at the tower.

Call Wilson 830-8460

--

/s/ Peter St. Cyr(505) [email protected] portfolio

EMAIL NOTICE: UNINTENDED OR UNLAWFUL RECIPIENTS

The interception or theft of an email or the use of an illegally obtained email is a violation of law. This email may also contain informationthat is confidential or protected by this reporter's rights and federal and state shield laws. If you are not the addressee any dissemination,copying, distribution or use of this email is strictly prohibited and may violate a number of federal and state, criminal and civil laws includingNMSA 30-12-11; 30-45-1 et seq; 18 USC 2701 et seq; and 18 USC 2510 et seq.

Reply Reply All Forward... Print Delete Spam Move to... More Actions...

‹ Previous | Next › | « Back to INBOXINBOX

EarthLink.net | My Start Page | myVoice | My Account | Support |

96% of 100 MB used. Upgrade


Mark G. Bralley

Plaintiff v


Defendants

Cause No: 1:13-cv-00768 WP/RHS

AFFIDAVIT OF DONALD P. PATTERSON

I, Don Patterson, state the following from personal knowledge, and belief, and under penalty of perjury: I was an elected member of the Albuquerque Public Schools Board of Education serving from 1993 – 1997. During the time of my term, I was named in up to or about 20 cases a year. As memory serves, I was never served with a summons. APS attorneys always accepted the complaints. I would be advised by APS attorneys and briefed on the facts of the cases. FURTHER AFFIANT SAYETH NAUGHT.

________________________________

Donald P. Patterson STATE OF NEW MEXICO ) ) ss. COUNTY OF BERNALILLO )

SUBSCRIBED AND SWORN to before me this ____ day of January 2014 by Galen Smith

________________________ Notary Public


________________________


Mark G. Bralley

Plaintiff v


Defendants

Cause No: 1:13-‐cv-‐00768 WP/RHS

AFFIDAVIT OF GALEN J. SMITH

I, Galen J. Smith, declare and affirm under penalty of perjury that the

following statement is true and correct to the best of my knowledge and belief.

1. I am more than eighteen years of age and not a party to the above

titled action.

2. On December 16, 2013, I accepted a commission to serve process

from this Court on Mike Wilson, Director of Risk Management for the Albuquerque

Public Schools (APS) at its Uptown Towers offices, joining the fifteen defendants.

3. The plaintiff, Mark G. Bralley, from whom I received the commission,

could not accompany me when I went to do the service.

4. In accepting the commission I had no reason to expect that Mr. Wilson

either could not, would not or is not appointed to accept service of a civil summons

and complaint in this action on behalf of the fifteen defendants.

5. On arrival at the APS offices I checked in with Security, stating the

nature of my business being to serve process at the Risk Management Division.

6. There are a number of offices in the division suite, with a receptionist

at the entrance. The receptionist, Ms. Hope Kaehler, asked whether she could help

me. I asked her where I would find Mr. Mike Wilson. I said I had some legal papers

to deliver to him. She asked whether I would like to leave them with her. I declined

her offer, stating the papers were court process I needed to deliver to Mr. Wilson

personally.

7. She pointed down a hallway to my left toward a group of men talking

in an open area about forty feet away and said, “That's him right there.”

8. “The tall gentleman with the silver hair?” I asked.

9. “Yes.” She replied. I thanked her and started down the hall in his

direction. At the same time he finished his conversation and headed my way.

10. I had the service packets in a cardboard box under my left arm. In my

right hand I held the original summons/returns of service in a binder clip.

11. When he was about to pass me short of the halfway point –-‐ he moved

more quickly -‐-‐ I stopped him with a query, “Mr. Mike Wilson?”

12. “Yes,” he replied. “How can I help you?”

13. “I have summonses and complaints from the United States District

Court to serve you on behalf of a number of APS entities, Board members and

employees.” I said.

14. I held the sheaf up and turned the clerk's embossed, original seal on

the top original summons/return of service toward Wilson as I spoke.

15. He rolled his eyes, looking off into space. “Why me?” He asked, his

voice tinged with exasperation.

16. Although I suspected his question was rhetorical, I answered it

literally, telling him what Plaintiff Bralley told me about the APS General Counsel's

office, contracted to Modrall, Sperling, Roehl, Harris & Sisk, P.A., having

communicated to Bralley, in response to his inquiry directed to Mr. Arthur D.

Melendres, APS General Counsel, that Wilson was the man appointed to receive

service for all the defendants.

17. Wilson replied, “Then it's all right, I guess.”

18. I explained that it would take me a couple of minutes because I had

just received the papers and I needed to match each original summons/return of

service to its companion summons and complaint packet before giving the latter to

him so that I could make a positive affidavit for return to the Court stating that I had

served each one.

19. I apologized for not being prepared and suggested he might authorize

me to leave them with the receptionist when I was finished so that he would not

need to wait.

20. He said, “That would be fine,” and he went back down the hall from

whence he had come rather than continuing on toward the door to the suite.

21. Mr. Wilson never indicated he could not, would not or is not appointed

to accept service of a civil summons and complaint in this action on behalf of the

fifteen defendants.

22. Mr. Wilson did not ask for me to wait while he called Mr. Melendres or

anyone else for guidance or indicate that he needed any. He simply accepted the

papers without objection or stated reservation.

23. As a prerequisite to my execution of the affidavits of service, it was my

impression that he understood clearly before he left my presence that he was being

served process issued by the United States District Court in the form of a summons

and complaint directed to each of the fifteen defendants, and that the group

consisted of individual employees, APS School Board members and APS and

component entities.

24. I matched up each summons copy with its original/return of service

and departed, taking the returns of service with me and leaving the fifteen paired

copies of complaint and summons with Ms. Kaehler. I completed the service

affidavits and gave them to Mr. Bralley.

25. Affiant has not received any communication directed to him from Mr.

Wilson, Mr. Melelndres, Defendant Martin Esquivel (movant, the School Board

president and also an attorney), or Mr. Esquivel’s attorney Louis Robles, or from any

other party, or from Patrick D. Allen of Yenson, Lynn, Allen & Wosick, PC, the

attorney who has entered an appearance on behalf of all defendants except Mr.

Esquivel, to the effect that Affiant’s service on Wilson was in error.

26. However, Affiant was notified Mr. Bralley had received a certified

letter from General Counsel Melendres alleging the processes Affiant had carried

simply had been delivered to the Risk Management office and as such was improper

service and would not be accepted. Mr. Melendres did not indicate what he would

deem “proper process” that would be accepted.

27. Bralley provided Affiant a copy of a motion Plaintiff Bralley had been

served electronically on January 10, 2014, from attorney Louis Robles, Robles, Rael

& Anaya, P.C., filed in this case on behalf of Defendant Martin Esquivel (the Motion),

asking for dismissal of the entire complaint for lack of proper service on any of the

defendants.

28. Mr. Robles did not inquire of Affiant regarding the facts before filing

the Motion, in which he states Affiant “lied about [Affiant’s] identity ...” p.2.

29. Exhibit “A” to the Motion is an affidavit from Mr. Wilson setting forth a

much different description of the occasion of Affiant’s service on Mr. Wilson than

Affiant had related to Mr. Bralley, far too different to be carelessly mistaken or

innocently unintentional on Wilson’s part. Affiant believes Wilson lied deliberately.

30. Exhibit “B” to the Motion is the letter Mr. Melendres sent to Plaintiff

Bralley, now a part of the record of this Court, making scurrilous accusations against

Affiant and demonstrating coordination among Mr. Wilson, the lawyers and firms

appearing in this case, and one or more of the named defendants to mislead Affiant

and Mr. Bralley with the purpose of concealing the defendants to prevent or to delay

Affiant serving them until expiration of the 120 day period after filing of the

Complaint during which time Plaintiff had to complete service on the defendants or

face possible dismissal of the complaint.

a. Mr. Melendres, General Counsel for APS and associate attorney

at Modrall, et al., one of the largest law firms in the State of New Mexico,

falsely states that Affiant served Mr. Wilson on December 17, 2013,

apparently the last day of the 120 days in which the plaintiff had to serve the

defendants. Affiant served Mr. Wilson the day before, so Affiant had plenty of

time to serve the process on someone else, or for Mr. Bralley to obtain and

Affiant to serve, alias summons had either been apprized promptly that the

December 16, 2013 service on Mr. Wilson was not authorized.

b. Mr. Melendres falsely accuses Affiant of misrepresenting to Mr.

Wilson that Affiant was delivering papers from Mr. Melendres as a ruse to get

the process accepted. Affiant never represented himself as delivering papers

from Mr. Melendres’ office, rather, Affiant stated explicitly to Mr. Wilson that

Affiant was serving process under authority of the U.S. District Court.

c. Mr. Melendres falsely states that Affiant merely delivered

“copies of the above mentioned lawsuit to Mr. Wilson’s office.” In fact Affiant

served Mr. Wilson, who consented to accept service in the manner of Affiant

leaving the documents with the Risk Management receptionist after Mr.

Wilson had seen an original summons with its embossed seal from the Clerk

of the U.S. District Court.

d. Whether serving Wilson or simply delivering copies as Mr.

Melendres claims, Affiant had no reason to say he was from Melendres’ office.

e. Mr. Wilson did not ask to look at any of the rest of the

processes before he agreed to accept service via Affiant leaving the processes

for all defendants with the Risk Management receptionist, Ms. Hope Kaehler.

f. Mr. Melendres falsely states Affiant made a “defective attempt

to accomplish service.” In fact Affiant perfected service on Mr. Wilson, but

the service, if defective insofar as joining the defendants, is so because Mr.

Wilson withheld information, apparently within his knowledge according to

Defendant Esquivel’s Motion, p.6, that would have allowed Affiant to perfect

timely service otherwise on the defendants. Then Mr. Wilson lied under oath

in his affidavit, saying Affiant never said he was a process server, while not

admitting Wilson knew beyond doubt he was being served process in

Affiant’s perhaps mistaken belief Wilson was appointee for the defendants.

Wilson perjured himself as to Affiant’s representations, to cover up the fact

that Wilson deliberately had misled Affiant by withholding information

Wilson was obligated to disclose to Affiant, Wilson instead accepting service

he knew would not be effective as to the defendants. Director Wilson thus

purposefully prevented Affiant from making timely and effective service on

the defendants.

g. Affiant had no reason to serve the wrong person(s).

h. Affiant did not conspire with Plaintiff Bralley to make

ineffective service for any reason whatever.

i. To the best of Affiant’s knowledge and belief he was making,

and had made, proper and effective service on the defendants by serving Mr.

Wilson in the manner Affiant has described herein.

j. Had Wilson been appointed to receive service for the

defendants, the service made in the manner Affiant describes herein would

have joined the defendants to this case.

31. It is strictly true that Affiant “never said he was a process server.”

However:

a. Affiant told Mr. Wilson to his face, in direct and unambiguous

terms, that Affiant was there to serve Wilson as an agent Affiant believed was

appointed to receive, for the named entities, officers and employees, federal

court process joining them as defendants in the above-‐titled case.

b. When Wilson asked, “Why me?” Affiant told Mr. Wilson the

foundation of Affiant’s understanding that Wilson was the person appointed

to receive service for those named on the process. This was the only time

Affiant mentioned Melendres’ name to anyone at APS and then only as

Melendres’ office being Bralley’s source of information regarding service.

c. Affiant showed Wilson the embossed seal of the Clerk of the

U.S. District Court on the top original summons/return of service, the

indisputable badge of authority for Affiant’s commission to carry out such

service on Wilson for the named defendants.

d. Affiant told Wilson that Affiant would have to sign the affidavit

on the returns of service stating Affiant had made the service on Wilson for

each of the named defendants, an act only the server of process can -‐-‐ and

must -‐-‐ do.

e. There is no doubt whatever in Affiant’s mind that Mr. Mike

Wilson, Director of Risk Management for APS, knew and understood that

Affiant was serving on Wilson process from this Court asserting in personam

jurisdiction over the named defendants in the above-‐titled action.

32. Affiant understands his duty in serving process to be a ministerial

function of this Court, not an adversarial act between the parties.

33. Every person named in this affidavit (excluding the plaintiff and the

receptionist), all but one of whom is an officer of this Court, had an affirmative

duty to facilitate Affiant’s completion of service of this Court’s process on the

defendants.

34. Instead each one actively or passively obstructed service, resorting to

willful perjury, subornation of perjury and conspiracy to accuse Affiant falsely of

perjury and of dereliction of his duty as an arm of this Court, intending by their

actions to defraud this Court of its jurisdiction over these defendants and over this

case.

35. To Affiant’s knowledge, no one has come forward to say who is

authorized to accept service for any defendant in this case, or answered any inquiry

regarding service, other than the one Mr. Melendres now denies having made. If Mr.

Bralley commissions Affiant with alias summons, Affiant will proceed to serve each

individual defendant personally, barring other instructions from Plaintiff Bralley.

FURTHER AFFIANT SAYETH NAUGHT.

________________________ Galen J. Smith

STATE OF NEW MEXICO ) ) ss. COUNTY OF BERNALILLO )

SUBSCRIBED AND SWORN to before me this _______ day of January 2014 by Galen J. Smith.

________________________ Notary Public


________________________

Mark Bralley's Complaint Motion to Dismiss Opposition to Motion and affidavits

Documents

Transcript of Mark Bralley's Complaint Motion to Dismiss Opposition to Motion and affidavits