                                                                                    FILED
                                                                        United States Court of Appeals
                                        PUBLISH                                 Tenth Circuit

                      UNITED STATES COURT OF APPEALS                            July 10, 2018

                                                                            Elisabeth A. Shumaker
                             FOR THE TENTH CIRCUIT                              Clerk of Court
                         _________________________________

MARIANO MOYA; LONNIE PETRY, on
behalf of themselves and all others
similarly situated,

      Plaintiffs - Appellants,

v.                                                           No. 17-2037
                                                 (D.C. No. 1:16-CV-01022-WJ-KBM)
ROBERT GARCIA, Santa Fe County                                (D. N.M.)
Sheriff; MARK CALDWELL, Warden of
Santa Fe County Adult Correctional
Facility; MARK GALLEGOS, former
Warden Santa Fe County Adult
Correctional Facility, in their individual
capacities; BOARD OF
COMMISSIONERS OF SANTA FE
COUNTY,

      Defendants - Appellees.
                      _________________________________

                                      ORDER
                         _________________________________

Before TYMKOVICH, Chief Judge, BRISCOE, LUCERO, HARTZ, HOLMES,
MATHESON, BACHARACH, PHILLIPS, McHUGH, MORITZ, EID, and
CARSON, Circuit Judges.
                    _________________________________

       This matter is before the court on the appellants’ Petition for Rehearing En Banc.

We also have a response from the appellees.

       Upon consideration, a majority of the original panel members grant panel

rehearing in part and only to the extent of the limited changes made to the attached
revised opinion. Panel rehearing is otherwise denied. The Clerk is directed to file the

amended decision, with the original separate writing from Judge McHugh, effective the

date of this order.

       In addition, however, the petition and the response were circulated to all of the

judges of the court who are in regular active service. A poll was called, and a majority

voted to deny the en banc petition. See Fed. R. App. P. 35(a). Consequently, the request

for en banc consideration is denied.

       Chief Judge Tymkovich, as well as Judges Lucero, McHugh and Moritz voted to

grant rehearing en banc.


                                              Entered for the Court



                                              ELISABETH A. SHUMAKER, Clerk




                                             2
                                                                       FILED
                                                           United States Court of Appeals
                                PUBLISH                            Tenth Circuit

               UNITED STATES COURT OF APPEALS                     July 10, 2018

                                                              Elisabeth A. Shumaker
                      FOR THE TENTH CIRCUIT                       Clerk of Court
                      _________________________________

MARIANO MOYA, LONNIE
PETRY, on behalf of themselves and
all others similarly situated,

      Plaintiffs-Appellants,

v.                                                  No. 17-2037

ROBERT GARCIA, Santa Fe County
Sheriff; MARK CALDWELL,
Warden of Santa Fe County Adult
Correctional Facility; MARK
GALLEGOS, former Warden of
Santa Fe County Adult Correctional
Facility, in their individual
capacities; BOARD OF
COMMISSIONERS OF SANTA FE
COUNTY,

      Defendants-Appellees.
                    _________________________________

             Appeal from the United States District Court
                    for the District of New Mexico
                (D.C. No. 1:16-CV-01022-WJ-KBM)
                     _________________________________

A. Nathaniel Chakeres (Todd A. Coberly with him on the briefs), of
Coberly & Martinez, LLLP, Santa Fe, New Mexico, for Plaintiffs-
Appellants.

Brandon Huss of The New Mexico Association of Counties, Santa Fe, New
Mexico, for Defendants-Appellees.
                      _________________________________

Before MATHESON, BACHARACH, and McHUGH, Circuit Judges.
                         _________________________________

BACHARACH, Circuit Judge.
                  _________________________________

      This appeal involves claims of overdetention by Mr. Mariano Moya

and Mr. Lonnie Petry. Both men were arrested based on outstanding

warrants and detained in a county jail for 30 days or more prior to their

arraignments. These arraignment delays violated New Mexico law, which

requires arraignment of a defendant within 15 days of arrest. N.M. Stat.

Ann. § 31-1-3; Rule 5-303(A) NMRA.

      The arraignment delays led Mr. Moya and Mr. Petry to sue under 42

U.S.C. § 1983 for deprivation of due process, alleging claims against

           Sheriff Robert Garcia, Warden Mark Caldwell, and former
            Warden Mark Gallegos in their individual capacities under
            theories of personal participation and supervisory liability and

           the Board of Commissioners of Santa Fe County under a theory
            of municipal liability.

The district court granted the defendants’ motion to dismiss for failure to

state a valid claim. We affirm because Mr. Moya and Mr. Petry failed to

plausibly allege a factual basis for liability. 1




1
     The complaint contains claims based on both substantive and
procedural due process. Based on our disposition, we need not distinguish
between the claims involving procedural and substantive due process.

                                         2
I.    Standard of Review

      We engage in de novo review of the dismissal under Federal Rule of

Civil Procedure 12(b)(6). Albers v. Bd. of Cty. Comm’rs, 771 F.3d 697, 700

(10th Cir. 2014). In engaging in this review, we credit the well-pleaded

allegations in the complaint and construe them favorably to the plaintiffs.

Thomas v. Kaven, 765 F.3d 1183, 1190 (10th Cir. 2014). To withstand

dismissal, the plaintiffs’ allegations must “state a claim to relief that is

plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

(2007). The claim is plausible only if it contains sufficient factual

allegations to allow the court to reasonably infer liability. Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009).

II.   Supervisory Liability

      The individual defendants served as the sheriff and wardens of the

jail where Mr. Moya and Mr. Petry were detained. These defendants could

potentially incur liability under § 1983 if they had acted under color of

state law. 42 U.S.C. § 1983. But individual officials enjoy qualified

immunity when their conduct does not violate “‘clearly established

statutory or constitutional rights of which a reasonable person would have

known.’” Cordova v. City of Albuquerque, 816 F.3d 645, 655 (10th Cir.

2016) (quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009)).

      To avoid qualified immunity at the motion-to-dismiss stage, a

plaintiff must show that

                                       3
              “‘the defendant’s [alleged conduct] violated a constitutional or
               statutory right’” and

              “the right was ‘clearly established at the time of the
               [violation].’”

Thomas v. Kaven, 765 F.3d 1183, 1194 (10th Cir. 2014) (quoting Archuleta

v. Wagner, 523 F.3d 1278, 1283 (10th Cir. 2008)). There are two questions

at the first step:

          1.   whether the plaintiff has adequately alleged the violation of a
               constitutional or statutory right and

          2.   whether the defendant’s alleged conduct deprived the plaintiff
               of that right.

See Dodds v. Richardson, 614 F.3d 1185, 1192-94 (10th Cir. 2010)

(engaging in this two-part analysis of the first step of qualified immunity).

      The first question is whether Mr. Moya and Mr. Petry have

adequately alleged a deprivation of due process. We need not decide this

question because of our answer to the second question: in our view, the

complaint does not plausibly allege facts attributing the potential

constitutional violation to the sheriff or wardens. 2

      To prevail, Mr. Moya and Mr. Petry must have alleged facts showing

that the sheriff and wardens had been personally involved in the underlying

violations through their own participation or supervisory control. Dodds v.

2
      Even in the absence of qualified immunity, Mr. Moya and Mr. Petry
would have needed to adequately allege facts attributing the potential
constitutional violation to the defendants.


                                         4
Richardson, 614 F.3d 1185, 1195 (10th Cir. 2010); see also Brown v.

Montoya, 662 F.3d 1152, 1163 (10th Cir. 2011) (“A § 1983 defendant sued

in an individual capacity may be subject to personal liability and/or

supervisory liability.”). The district court rejected both theories of

liability. Here, though, Mr. Moya and Mr. Petry rely only on their theory

of supervisory liability. For this theory, Mr. Moya and Mr. Petry blame the

sheriff and wardens for the delays in the arraignments. In our view,

however, the sheriff and wardens did not cause the arraignment delays. 3

      A plaintiff may succeed on a § 1983 supervisory-liability claim by

showing that the defendant

           “promulgated, created, implemented or possessed responsibility
            for the continued operation of a policy that . . . caused the
            complained of constitutional harm” and

           “acted with the state of mind required to establish the alleged
            constitutional deprivation.”

Dodds, 614 F.3d at 1199. But the arraignments could not be scheduled by

anyone working for the sheriff or wardens; scheduling of the arraignments

lay solely with the state trial court.

      Mr. Moya and Mr. Petry disagree, relying on Wilson v. Montano, 715

F.3d 847 (10th Cir. 2013). There two sheriff’s deputies arrested Mr.

Wilson without a warrant. Wilson, 715 F.3d at 850. He was taken to jail

3
      The dissent disagrees with our causation analysis. In our view,
however, the dissent stretches both the plaintiffs’ theory of liability and
the standard of causation applicable to § 1983 claims.

                                         5
and detained for eleven days without the filing of a complaint or an

opportunity for a probable-cause determination. Id. Mr. Wilson sued the

sheriff and the warden, alleging that they (1) had routinely allowed

deputies to make arrests without warrants and (2) had failed to file

criminal complaints or bring the arrestees to court. Id. at 851. The Wilson

court upheld supervisory liability, reasoning that under New Mexico law

the sheriff and the warden were responsible for running the jail and

ensuring prompt probable-cause determinations. Id. at 856-58.

      Wilson differs from our case on who controlled the situation causing

the overdetention. In Wilson, the sheriff and the warden were in control

because (1) deputy sheriffs had arrested Mr. Wilson and (2) the warden’s

staff had detained Mr. Wilson without a warrant. These facts proved

decisive because (1) New Mexico law requires the sheriff to “diligently

file a complaint or information,” N.M. Stat. Ann. §§ 4-37-4, 29-1-1, and

(2) the sheriff’s staff had never filed a complaint against Mr. Wilson.

Wilson, 715 F.3d at 851, 853. Without a complaint, the court could not

make a probable-cause determination. By preventing a probable-cause

determination, the sheriff impeded the criminal-justice process; and the

warden exacerbated the delay by detaining Mr. Wilson for eleven days

without a court order. Id. at 857-59.

      In contrast, the court was firmly in control here. Grand juries

indicted Mr. Moya and Mr. Petry, and both individuals were arrested based

                                        6
on outstanding warrants issued by the court. And after these arrests, jail

officials notified the court that Mr. Moya and Mr. Petry were in custody.

      The arrests triggered New Mexico’s Rules of Criminal Procedure,

which entitled Mr. Moya and Mr. Petry to arraignments within fifteen days.

Rule 5-303(A) NMRA. Compliance with this requirement lay solely with

the court, for an arraignment is a court proceeding that takes place only

when scheduled by the court. See People v. Carter, 699 N.E.2d 35, 38

(N.Y. 1998) (“Responsibility for scheduling an arraignment date and

securing a defendant’s appearance lies with the court, not the People.”).

      The court failed to comply with this requirement, resulting in

overdetention of Mr. Moya and Mr. Petry. These overdetentions were

caused by the court’s failure to schedule and conduct timely arraignments

rather than a lapse by the sheriff or wardens. See Webb v. Thompson, 643

F. App’x 718, 726 (10th Cir. 2016) (unpublished) (Gorsuch, J., concurring

in part and dissenting in part) (“[T]he only relevant law anyone has cited

to us comes from state law, and it indicates that the duty to ensure a

constitutionally timely arraignment in Utah falls on the arresting officer—

not on correctional officers.”).

      Mr. Moya and Mr. Petry argue that the sheriff and wardens could

have mitigated the risk of overdetention by keeping track of whether

detainees had been timely arraigned, requesting arraignments for those who

had been overdetained, or bringing detainees to court prior to a scheduled

                                      7
arraignment. But even if the sheriff and wardens had taken these actions,

the allegations in the complaint give us no reason to think that the state

trial court would have conducted the arraignments and ordered release any

earlier than it did. Thus, the sheriff and wardens did not cause the

overdetention.

      At most, the sheriff and wardens failed to remind the court that it

was taking too long to arraign Mr. Moya and Mr. Petry. But even with such

a reminder, the arraignments could only be scheduled by the court itself.

See Estate of Brooks ex rel. Brooks v. United States, 197 F.3d 1245, 1248

(9th Cir. 1999) (holding that the county did not cause the overdetention,

reasoning that the county could only ask for federal help and that the

county lacked the “ability itself to bring the prisoner before the

appropriate judicial officer”). 4


4
      The dissent points out that (1) Estate of Brooks involved a federal
detainee’s claim against a county and (2) our case involves a state
detainee. Dissent at 14 n.7. This difference shrouds the underlying
rationale in Estate of Brooks. There the court reasoned that the county’s
policies did not cause the overdetention because the county lacked
authority to release the detainee or bring him before a federal magistrate
judge. Estate of Brooks, 197 F.3d at 1248. Here the defendants did not
cause the overdetention because they could not have initiated an
arraignment and, as discussed below, the plaintiffs have disavowed any
argument that the sheriff or wardens could have ordered release. See pp.
10-11, below.

      Although the circumstances differed in Estate of Brooks, the court
reasoned that the jailers’ limited powers prevented causation. That
rationale is applicable and persuasive.

                                      8
      The plaintiffs rely in part on Armstrong v. Squadrito, 152 F.3d 564

(7th Cir. 1998), and Oviatt ex rel. Waugh v. Pearce, 954 F.2d 1470 (9th

Cir. 1992). In those cases, a clerical error prevented the court from

discovering the arrests and the need to schedule arraignments. 5 But here,

Mr. Moya and Mr. Petry do not allege a failure to tell the court of their

arrests in sufficient time to conduct the arraignments within fifteen days.

      Mr. Moya and Mr. Petry also rely on Jauch v. Choctaw County, 874

F.3d 425 (5th Cir. 2017), and Hayes v. Faulkner County, 388 F.3d 669 (8th

Cir. 2004). But the conclusions in Jauch and Hayes are not precedential,

pertinent, or persuasive.

      In Jauch, the sheriff’s office adopted a procedure of holding

defendants in jail without any court proceeding until the reconvening of

the circuit court that had issued the capias warrants. Jauch, 874 F.3d at

430, 435. This procedure resulted in detention for 96 days, with jail

officials rejecting the defendant’s requests to be brought before a judge.

Id. at 428. The Fifth Circuit Court of Appeals held that the sheriff could




5
      Oviatt arguably implies that jailers can cause an arraignment delay
by failing to remind a court to schedule the arraignment. To the extent that
Oviatt draws this implication, we disagree.


                                      9
incur liability for the institution of this unconstitutional policy. Id. at 436-

37. 6

        In our view, Jauch bears limited applicability. Jauch rested on

Mississippi law and the jailers’ authority to release detainees when they

had been detained too long without an opportunity for bail. Id. In

interpreting Mississippi law, the court pointed to Sheffield v. Reece, 28 So.

2d 745, 748 (Miss. 1947), which had required sheriffs to prevent detention

“‘for an unreasonable length of time.’” Jauch, 874 F.3d at 437 (quoting

Sheffield, 28 So. 2d at 748). As Jauch pointed out, Sheffield had

recognized the responsibility of the sheriff to release an arrestee who has

been detained too long without bail. Id. at 437.

        Here, however, Mr. Moya and Mr. Petry have not alleged that they

could have been released. To the contrary, they expressly disavowed this

theory in their opening brief:

        [The district court] . . . noted that the [county jail] was legally
        prohibited from releasing detainees without a valid court order.

               Yet Mr. Moya and Mr. Petry never argued that
        Defendants should have unconditionally released them from
        jail, so the fact that the [county jail] may have been prohibited
        from releasing them absent a court order is irrelevant.




6
     On the basis of the sheriff’s policy, the county also incurred liability.
Jauch, 874 F.3d at 436.


                                        10
Appellants’ Opening Br. at 29 (citation omitted). In light of this disavowal

of an argument that Mr. Moya and Mr. Petry should have been released,

Jauch provides little guidance on what the sheriff and wardens could have

done to avoid the due process violations other than remind the state trial

court of its failure to schedule timely arraignments. 7

      Hayes, too, provides little that is pertinent or persuasive. There an

arrestee alleged that (1) he should have been brought before a judge in a

timely manner and (2) no one from the jail had told him when his court

date was (even though one had been set at the time of arrest). Hayes v.

Faulkner Cty., 388 F.3d 669, 672 (8th Cir. 2004). The Eighth Circuit Court

7
      In Jauch, the Fifth Circuit Court of Appeals recently denied a
petition for rehearing en banc. See Jauch v. Choctaw Cty., 886 F.3d 534
(5th Cir. 2018). Judge Southwick—joined by five other judges—dissented
from the denial, arguing that the sheriff should have obtained qualified
immunity. Id. at 535 (Southwick, J., dissenting). In making this argument,
the dissent concluded that

           under Mississippi law, the state district court had the sole
            responsibility to schedule an arraignment and

           no federal law clearly established that the sheriff would violate
            the U.S. Constitution by following state law.

Id. at 538-41. In reaching these conclusions, the dissent observed that
under Mississippi law, the jailers could not prevent the overdetention
because the state district court had the exclusive authority to schedule and
conduct arraignments. See id. at 535 (“I cannot discern how these
defendants had any effect on when this plaintiff was considered for
release.”); id. at 539 (“There was no obligation on the sheriff to have Jauch
arraigned because that is a duty that falls elsewhere.”); id. at 538 (“The
clear responsibilities relevant to this case are those of the county’s circuit
court judges.”).

                                      11
of Appeals concluded that an extended detention without a first

appearance, after an arrest by warrant, violated the Due Process Clause of

the Fourteenth Amendment. Id. at 673. The court added that responsibility

for the arrestee’s overdetention fell on the jailers, who could not delegate

responsibility for the first appearance to the court. Id. at 674.

      But Hayes sheds no light on what the jailers here could have done to

ensure timely court proceedings. In Hayes, the Eighth Circuit apparently

relied on a state procedural rule: Arkansas Rule of Criminal Procedure 8.1.

This rule requires arrestees to be brought before the court “‘without

unnecessary delay.’” Id. at 675 (quoting Ark. R. Crim. P. 8.1).

      Like Arkansas, New Mexico requires “[e]very accused” to be

“brought before a court . . . without unnecessary delay.” N.M. Stat. Ann.

§ 31-1-5(B). Arkansas’s version goes no further, omitting any mention of

who is required to bring the arrestee to court. Ark. R. Crim. P. 8.1. New

Mexico takes a different approach, clarifying elsewhere that the arresting

officer is obligated to bring the defendant to court “without unnecessary

delay.” N.M. Stat. Ann. § 31-1-4(C). 8

      Unlike the Arkansas rule, New Mexico’s version of the rule does not

impose any duties on the sheriff or warden to bring an arrestee to court in

8
      This statute did not apply here, for the plaintiffs do not allege that
they were arrested by officers subject to the defendants’ supervisory
authority. We thus have no occasion to decide whether a cause of action
could have been asserted against the arresting officers or their supervisors.

                                      12
the absence of a scheduled arraignment. In light of this difference between

the Arkansas and New Mexico rules, we see nothing in Hayes to tell us

what the sheriff or wardens could have done to provide timely

arraignments for Mr. Moya and Mr. Petry.

      The approach taken in Hayes is also inconsistent with our own

precedent. The Hayes court attributed responsibility to the jailers based

solely on federal law, not state law. By contrast, our precedent directs us

to focus on state law when determining the scope of the defendants’

responsibility to ensure prompt hearings. See Wilson v. Montano, 715 F.3d

847, 854 (10th Cir. 2013) (“We consider New Mexico state law insofar as

it bears on the scope of each appellant’s responsibility to ensure a prompt

probable cause determination.”).

      And as we have discussed, New Mexico law did not require the

sheriff or wardens to bring Mr. Moya and Mr. Petry to court. Accordingly,

once the arresting officers brought Mr. Moya and Mr. Petry to the jail and

the court was notified of the arrests, New Mexico law required the court

(not the sheriff or wardens) to schedule timely arraignments.

      Under New Mexico law, Jauch and Hayes provide little guidance to

us in addressing the issue framed by Mr. Moya and Mr. Petry. They allege

that the state trial court failed to schedule timely arraignments and that the

sheriff and wardens told the court about the arrests early enough for timely

arraignments. But Mr. Moya and Mr. Petry did not sue the court; they sued

                                      13
the sheriff and wardens, officials that could not have caused the

arraignment delays because of their inability to schedule the arraignments.

III.   The Dissent’s Theory

       The dissent argues that we have analyzed the wrong right. According

to the dissent, the right to an arraignment within fifteen days is “‘an

expectation of receiving process,’” which cannot alone be a protected

liberty interest. Dissent at 4-5, 8, 13 (quoting Olim v. Wakinekona, 461

U.S. 238, 250 n.12 (1983)). Thus, the dissent reasons that the right at issue

must be the right to freedom from pretrial detention rather than the right to

a timely arraignment. Based on this reasoning, the dissent concludes that

our misplaced focus on the arraignments has caused us to improperly focus

on the state district court’s role and overlook actions that the defendants

could have taken, such as releasing Mr. Moya and Mr. Petry.

       We have focused on the plaintiffs’ right to timely arraignment

because that’s what the plaintiffs have alleged. As the dissent admits, Mr.

Moya and Mr. Petry are imprecise about their asserted right, conflating the

right to an arraignment within fifteen days of arrest and the right to

pretrial release (or bail). This conflation is understandable because the

rights are coextensive under their theory of the case.

       Mr. Moya and Mr. Petry recognize freedom from detention as an

applicable liberty interest. See, e.g., Joint App’x at 7 (stating in the

complaint that the New Mexico Constitution creates a right to pretrial

                                       14
liberty); id. at 83 (asserting in district court briefing that Mr. Moya and

Mr. Petry “have a liberty interest in not being unnecessarily detained

without the opportunity to post bail”); Appellants’ Opening Br. at 16 (“The

principal protected liberty interest that may be created by state law is the

freedom from detention.”). But Mr. Moya and Mr. Petry also allege a right

to an arraignment within fifteen days of arrest. See, e.g., Joint App’x at 14

(alleging in the complaint that “[b]ecause detainees charged in New

Mexico district courts . . . are guaranteed the right under state law to have

their conditions of release set at the least restrictive level to assure their

appearance and the safety of . . . the community within fifteen days of their

indictment or arrest, they have a federally protected liberty interest in this

right”); id. at 69 (asserting in district court that “Plaintiffs had a liberty

interest in having bail set within fifteen days of their arrest”); Appellants’

Opening Br. at 36 (“In summary, under settled procedural due process

principles, Defendants deprived Mr. Moya and Mr. Petry of their liberty

interest in a prompt pretrial arraignment . . . .”).

      Under the theory articulated by Mr. Moya and Mr. Petry, the

defendants violated the right to freedom from detention by failing to

ensure timely arraignments. See, e.g., Appellants’ Opening Br. at 41 (“The

Complaint alleged that the failure to implement any policies ensuring that

detainees appear before a district court within fifteen days of indictment or

arrest caused Mr. Moya and Mr. Petry to be injured.”). The rights are

                                       15
coextensive to Mr. Moya and Mr. Petry because to them, a violation of the

right to a timely arraignment resulted in violation of their right to freedom

from prolonged detention. 9

      Yet the dissent disregards the claim of delay in the arraignment

because this claim would founder based on the absence of a due-process

violation. The dissent may be right about the absence of a due-process

violation from a delay in an arraignment. 10 But in our view, we should

interpret the claim and appeal based on what the plaintiffs have actually

said rather than which possible interpretation could succeed. In district

court, the plaintiffs based their claim on the delays in arraignments. And

on appeal, the plaintiffs have consistently framed their argument based on

the arraignment delays. The dissent’s theory is not the theory presented by

the plaintiffs. 11


9
      This link is illustrated by the plaintiffs’ definition of the class. In the
complaint, Mr. Moya and Mr. Petry identified the class to include everyone
detained at the same facility as the named plaintiffs within the previous
three years “who [had not been] brought before a district court within
fifteen days of their indictment or arrest to have their conditions of release
set or reviewed.” Joint App’x at 12-13. Timely arraignment is so
fundamental to Mr. Moya and Mr. Petry’s claims that the fifteen-day
demarcation defines class membership.
10
      As noted above, we have assumed for the sake of argument that the
arraignment delays would result in a deprivation of due process. See p. 4,
above.
11
     For this reason, we need not decide whether Mr. Moya and Mr. Petry
would have stated a valid claim if they had alleged a broader right to

                                       16
      As discussed above, the defendants were powerless to cause timely

arraignments because arraignments are scheduled by the court rather than

jail officials. The dissent agrees.

      But the dissent theorizes that jail officials could have simply

released Mr. Moya and Mr. Petry. This theory is not only new but also

contrary to what Mr. Moya and Mr. Petry have told us, for they expressly

disavowed this theory: “Mr. Moya and Mr. Petry never argued that

Defendants should have unconditionally released them from jail . . . .”

Appellants’ Opening Br. at 29; see pp. 10-11, above. Thus, Mr. Moya and

Mr. Petry have waived reliance on that theory as a basis for reversal. See

Modoc Lassen Indian Hous. Auth. v. U.S. Dep’t of Hous. & Urban Dev.,

864 F.3d 1212, 1224 n.8 (10th Cir. Jul. 25, 2017) (stating that a theory

never raised was waived as a basis for reversal).

      Even if it were otherwise appropriate to raise the issue sua sponte,

the dissent’s theory would create a Catch-22 for jailers. Under New

Mexico law, jailers commit a misdemeanor and must be removed from

office if they deliberately release a prisoner absent a court order. N.M.

Stat. Ann. § 33-3-12. Thus, a jailer would be forced to choose between

committing a crime and facing civil liability under § 1983.


freedom from pretrial detention (unrelated to Rule 5-303(A)’s fifteen-day
requirement). We are deciding only the validity of the theory advanced by
Mr. Moya and Mr. Petry.

                                      17
      According to the dissent, jailers can eventually defend themselves

based on the Supremacy Clause. But Mr. Moya and Mr. Petry do not

challenge the constitutionality of the state law preventing release in the

absence of a court order. See Estate of Brooks ex rel. Brooks v. United

States, 197 F.3d 1245, 1248 (9th Cir. 1999) (affirming the dismissal of a

§ 1983 claim involving overdetention when the county defendant was

required under state law to hold the plaintiff detainee until receiving an

order from the United States and the plaintiff made no allegation that the

statute was unconstitutional).

      Even if Mr. Moya and Mr. Petry had challenged the constitutionality

of the state law, the Supremacy Clause would supply cold comfort to a

jailer facing this dilemma, particularly in light of the dissent’s

acknowledgment that there is no bright-line rule for when a delayed

arraignment becomes a due-process violation. See Dissent at 5-11. We need

not decide whether the Constitution would subject jailers to this Catch-22.

                                     * * *

      The state trial court’s alleged failure to schedule timely arraignments

cannot be attributed to the sheriff or wardens. Thus, the complaint does not

plausibly allege a basis for supervisory liability of the sheriff or wardens.

IV.   Municipal Liability

      Mr. Moya and Mr. Petry also assert § 1983 claims against the county,

alleging that it failed to adopt a policy to ensure arraignments within

                                      18
fifteen days. These claims are based on the alleged inaction by the sheriff

and wardens. But, as discussed above, the sheriff and wardens did not

cause the arraignment delays. Thus, the county could not incur liability

under § 1983 on the basis of the alleged inaction. See Schneider v. City of

Grand Junction Police Dep’t, 717 F.3d 760, 777 (10th Cir. 2013).

Therefore, we affirm the dismissal of the claims against the county.

V.    Leave to Amend

      In opposing dismissal, Mr. Moya and Mr. Petry stated generically

that amendment would not be futile and that they should have the

opportunity to amend if an element were deemed missing from the

complaint. The district court dismissed the complaint without granting

leave to amend. Mr. Moya and Mr. Petry argue that the district court erred

by refusing to allow amendment of the complaint.

     Generally, leave to amend should be freely granted when justice

requires, but amendment may be denied when it would be futile. Full Life

Hospice, LLC v. Sebelius, 709 F.3d 1012, 1018 (10th Cir. 2013). We

conclude that the district court did not err because amendment would have

been futile based on the plaintiffs’ submissions.

     We ordinarily apply the abuse-of-discretion standard when reviewing

a denial of leave to amend. Fields v. City of Tulsa, 753 F.3d 1000, 1012

(10th Cir. 2014). But here, the district court denied leave to amend based

on futility. In this circumstance, “our review for abuse of discretion

                                     19
includes de novo review of the legal basis for the finding of futility.”

Miller ex rel. S.M. v. Bd. of Educ. of Albuquerque Pub. Schs., 565 F.3d

1232, 1249 (10th Cir. 2009).

      The complaint fails to allege a factual basis for supervisory or

municipal liability. To cure the pleading defect, the plaintiffs needed to

add factual allegations tying the arraignment delays to a lapse by the

sheriff or wardens. The plaintiffs did not say how they could cure this

pleading defect. Instead, they stated only that amendment would not be

futile if the complaint had omitted an element. They did not tell the district

court what they could have added to attribute the arraignment delays to the

sheriff or wardens.

      Mr. Moya and Mr. Petry have failed to say even now how they could

have cured this defect in the complaint. As a result, the district court did

not abuse its discretion in denying leave to amend the complaint. See Hall

v. Witteman, 584 F.3d 859, 868 (10th Cir. 2009) (holding that the district

court did not abuse its discretion in denying leave to amend when the

claimant had failed to explain how an amendment would cure the

deficiencies identified by the district court).

VI.   Conclusion

      Mr. Moya and Mr. Petry allege a deprivation of due process when

they were detained for more than fifteen days without arraignments. We

can assume, without deciding, that this allegation involved a constitutional

                                       20
violation. But Mr. Moya and Mr. Petry sued the sheriff, wardens, and

county, and these parties did not cause the arraignment delays. Thus, the

district court did not err in dismissing the complaint or in denying leave to

amend.




                                     21
17-2037, Moya v. Garcia

McHUGH, Circuit Judge, concurring in the result in part and dissenting in part.



       Mariano Moya was arrested pursuant to a valid bench warrant and booked into a

Santa Fe County jail. The warrant, issued by New Mexico’s First Judicial District Court,

commanded any authorized officer to (1) arrest Mr. Moya and (2) bring him “forthwith”

before said court. New Mexico’s law enforcement officers complied with the first

directive, but not the second. As a result, Mr. Moya sat in jail for more than two months.1

When finally brought before a judge—sixty-three days after he was first detained—the

judge set bond at $5,000 and directed the state to release Mr. Moya from custody

immediately. The same thing happened to Lonnie Petry, except that his jail stay was only

about half as long.

       Believing their prolonged detentions to be systemic of a policy and practice

affecting dozens, if not hundreds, of similarly situated arrestees, Mr. Moya and Mr. Petry

brought this § 1983 action against the Board of Commissioners of Santa Fe County (“the

County”) and three County officials who were responsible for implementing policy at the

jail. The majority affirms the dismissal of Plaintiffs’ claims for failure to allege plausibly

that any of these defendants violated their constitutional rights. Respectfully, I disagree. I

would reverse the district court’s order dismissing Plaintiffs’ claims against the County.


       1
        Because the district court dismissed Plaintiffs’ claims on a Rule 12(b)(6) motion,
we presume Plaintiffs’ factual allegations are true. See Dahn v. Amedei, 867 F.3d 1178,
1185 (10th Cir. 2017).
But because the Defendants did not violate clearly established law, I would hold that the

individual defendants are entitled to qualified immunity and, on that basis alone, partially

affirm the district court’s order.

                      I.     PLAINTIFFS’ THEORIES OF HARM

       To begin, it is important to be clear about the nature of the alleged constitutional

violations. Plaintiffs’ claims fall “into a category of claims which unfortunately have

become so common that they have acquired their own term of art: ‘overdetention,’ i.e.,

when the plaintiff has been imprisoned by the defendant for longer than legally

authorized, whether because the plaintiff’s incarcerative sentence has expired or

otherwise.” Dodds v. Richardson, 614 F.3d 1185, 1192 (10th Cir. 2010) (some internal

quotation marks omitted). In this case, Plaintiffs argue that their overdetention supports

both a procedural due process claim and a substantive due process claim. Although the

majority does not distinguish between these theories, see Maj. Op. at 2 n.1, I think it

worthwhile to consider how Plaintiffs’ allegations fit within each framework.

                               A.    Procedural Due Process

       “Procedural due process imposes constraints on governmental decisions which

deprive individuals of liberty or property interests within the meaning of the Due Process

Clause of the . . . Fourteenth Amendment.” Mathews v. Eldridge, 424 U.S. 319, 332

(1976) (quotations omitted). “To assess whether an individual was denied procedural due

process, courts must engage in a two-step inquiry: (1) did the individual possess a

protected interest such that the due process protections were applicable; and, if so, then



                                              2
(2) was the individual afforded an appropriate level of process.” Merrifield v. Bd. of Cty.

Comm’rs, 654 F.3d 1073, 1078 (10th Cir. 2011).2

       Starting with the first prong, “[p]rotected liberty interests may arise from two

sources—the Due Process Clause itself and the laws of the States.” Kentucky Dep’t of

Corr. v. Thompson, 490 U.S. 454, 460 (1989) (internal quotation marks omitted). We

have already held that the “right of an accused to freedom pending trial is inherent in the

concept of a liberty interest protected by the due process clause of the Fourteenth

Amendment.” Dodds, 614 F.3d at 1192; Meechaicum v. Fountain, 696 F.2d 790, 791–92

(10th Cir. 1983).3




       2
         In Jauch v. Chocraw Cty., 874 F.3d 425, 431 (5th Cir. 2017), the Fifth Circuit
analyzed a comparable procedural due process claim under the framework set forth in
Medina v. California, 505 U.S. 437, 443 (1992), rather than the framework set forth in
Mathews v. Eldridge, 424 U.S. 319, 332 (1976). In this case, both parties have assumed
that the Mathews framework applies. For purposes of this dissent, I will presume without
deciding that the Mathews framework is applicable.
       3
         There is no serious question that Plaintiffs have a protected liberty interest
arising from the Due Process Clause itself. “[T]o determine whether due process
requirements apply in the first place, we must look not to the ‘weight’ but to the nature of
the interest at stake.” Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 570–71 (1972)
(citation omitted). The liberty guaranteed by the Fourteenth Amendment “denotes not
merely freedom from bodily restraint but also the right of the individual to contract, to
engage in any of the common occupations of life, to acquire useful knowledge, [and so
on]. In a Constitution for a free people, there can be no doubt that the meaning of
‘liberty’ must be broad indeed.” Id. at 572 (citation omitted) (quoting Meyer v. Nebraska,
262 U.S. 390, 399 (1923)). In this case, the Plaintiffs allege they were deprived of
freedom from bodily restraint—the very core of liberty itself. This a state cannot do
without affording adequate process. See, e.g., Ingraham v. Wright, 430 U.S. 651, 674
(1977) (“It is fundamental that the state cannot hold . . . an individual except in
accordance with due process of law.”).

                                             3
       In this case, however, Plaintiffs assert that the protected liberty interest grounding

their procedural due process claims arises not from the Due Process Clause itself, but

rather from New Mexico law. This is fine. See Sandin v. Conner, 515 U.S. 472, 483–84

(1995) (“States may under certain circumstances create liberty interests which are

protected by the Due Process Clause[, b]ut these interests will be generally limited to

freedom from restraint . . . .” (citation omitted)). But it is imperative that we accurately

identify the exact nature of the state-created liberty interest Plaintiffs seek to protect. In

presenting their case, Plaintiffs have tended to conflate the right to freedom (or bail) with

the right to procedures requiring timely bail hearings. Although both are rights created by

New Mexico law, see State v. Brown, 338 P.3d 1276, 1282 (N.M. 2014) (“The New

Mexico Constitution affords criminal defendants a right to bail . . . .”); Rule 5–303(A)

NMRA (providing that defendants shall be arraigned within fifteen days of a triggering

event, such as an arrest), only the former can be a protected liberty interest. That is

because “an expectation of receiving process is not, without more, a liberty interest

protected by the Due Process Clause.” Olim v. Wakinekona, 461 U.S. 238, 250 n.12

(1983); accord Cordova v. City of Albuquerque, 816 F.3d 645, 657 (10th Cir. 2016)

(“[N]ot all state laws create constitutionally protected liberty interests.”).

       To the extent Plaintiffs argue that New Mexico’s fifteen-day rule “creates a liberty

interest protected by constitutional procedural due process,” their position “reflects a

confusion between what is a liberty interest and what procedures the government must

follow before it can restrict or deny that interest.” See Elliott v. Martinez, 675 F.3d 1241,

1245 (10th Cir. 2012). In other words, “[t]hey ‘collapse the distinction between the

                                               4
interest protected and the process that protects it.’” Id. (quoting Town of Castle Rock v.

Gonzales, 545 U.S. 748, 772 (2005) (Souter, J., concurring) (alterations omitted)). And

Plaintiffs are inconsistent in how they frame their protected liberty interest, sometimes

relying on New Mexico’s fifteen-day rule as an end unto itself and sometimes hinting at

the fundamental underlying right to be free of restraint. Compare Aplt. Br. at 16 (“New

Mexico[] . . . guaranteed Mr. Moya and Mr. Petry the opportunity to obtain pretrial

release no later than fifteen days after arrest.”), and id. at 32 (“[I]t should have been clear

to Defendants that, based on New Mexico law and settled due process principles, pretrial

detainees have procedural due process rights to adequate procedures allowing them to

timely obtain bail.”) (emphasis added)), with id. at 16 (“The principal protected liberty

interest that may be created by state law is the freedom from detention.”), and id. at 18

(“Mr. Moya and Mr. Petry . . . had a protected liberty interest in obtaining a prompt bail

determination”).

       I would, accordingly, begin the procedural due process analysis by clarifying that

Plaintiffs’ only relevant protected liberty interest is in their right to “freedom pending

trial.” Dodds, 614 F.3d at 1192; see Baker v. McCollan, 443 U.S. 137, 144 (1979)

(finding that arrestee was “deprived of his liberty” when detained in county jail for three

days). That right may be duly honored via a timely bail determination, but the timely bail

determination is a means, not an end. The source of Plaintiffs’ liberty interest does not

much matter, but it can be said to arise from either the United States Constitution, see

Baker, 443 U.S. at 144; Dodds, 614 F.3d at 1192, the New Mexico Constitution, see

Brown, 338 P.3d at 1282, or both. Although New Mexico is free to create procedural

                                               5
rights protecting the underlying right to bail, as it has done here, see Rule 5–303 NMRA,

the failure of its state officials to protect state-law procedural rights is not a Fourteenth

Amendment violation, so long as federal due process requirements (which may well be

lower) are satisfied. We would not be the first court to note the irony that, were the rule

otherwise, its effect would be to subject states offering more procedural protections to

stricter federal oversight. See Hewitt v. Helms, 459 U.S. 460, 471 (1983); Fields v. Henry

County, 701 F.3d 180, 186 (6th Cir. 2012) (noting that such a policy could even

discourage states from creating their own systems of procedural rights for fear of

triggering federal liability).

       The sufficiency of the process afforded Plaintiffs—the adequacy and timeliness of

their bail determinations—implicates the second prong of the procedural due process test,

not the first. As to this latter question, we ask whether Plaintiffs were afforded all the

process that was their due. See Thompson, 490 U.S at 460. I would have no difficulty

holding that Plaintiffs have plausibly alleged that they were not afforded an appropriate

level of process. See Jauch v. Choctaw Cty., 874 F.3d 425, 434 (5th Cir. 2017)

(“[B]lithely waiting months before affording the defendant access to the justice system is

patently unfair in a society where guilt is not presumed.”); Oviatt ex rel. Waugh v.

Pearce, 954 F.2d 1470, 1476 (9th Cir. 1992) (applying the Mathews v. Eldridge

balancing test and finding a county jail’s procedures for avoiding overdetention to be

inadequate); cf. Porter v. Epps, 659 F.3d 440, 445 (5th Cir. 2011) (“Detention of a

prisoner for over thirty days beyond the expiration of his sentence in the absence of a



                                               6
facially valid court order or warrant constitutes a deprivation of due process.” (internal

quotation marks omitted)).

                              B.      Substantive Due Process

       “Substantive due process bars ‘certain government actions regardless of the

fairness of the procedures used to implement them.’” Brown v. Montoya, 662 F.3d 1152,

1172 (10th Cir. 2011) (quoting Cty. of Sacramento v. Lewis, 523 U.S. 833, 840 (1998)).

Under our precedent there are “two strands of the substantive due process doctrine. One

strand protects an individual’s fundamental liberty interests, while the other protects

against the exercise of governmental power that shocks the conscience.” Seegmiller v.

LaVerkin City, 528 F.3d 762, 767 (10th Cir. 2008) (citing Chavez v. Martinez, 538 U.S.

760, 787 (2003) (Stevens, J., concurring in part and dissenting in part)). “A fundamental

right or liberty interest is one that is ‘deeply rooted in this Nation’s history and tradition’

and ‘implicit in the concept of ordered liberty.’” Id. (quoting Chavez, 538 U.S. at 775

(plurality opinion)). “Conduct that shocks the judicial conscience, on the other hand, is

deliberate government action that is ‘arbitrary’ and ‘unrestrained by the established

principles of private right and distributive justice.’” Id. (quoting Lewis, 523 U.S. at 845).

From this point in the analysis, our precedent is decidedly less clear.

       Substantive due process limits what the government may do in both its legislative

and executive capacities. And the Supreme Court has said that the doctrinal strand to be

applied “differ[s] depending on whether it is legislation or a specific act of a

governmental officer that is at issue.” Lewis, 523 U.S. at 846. Here, Plaintiffs challenge

executive action, which the Court has said violates substantive due process “only when it

                                               7
can properly be characterized as arbitrary, or conscience shocking, in a constitutional

sense.” Id. at 847 (emphasis added) (internal quotation marks omitted). In Seegmiller,

however, we refused to read Lewis as “establish[ing] an inflexible dichotomy” between

cases challenging legislative and executive action. 528 F.3d at 768. In that case, which

also involved executive action, the district court had found “that the only appropriate

standard with which to measure [the substantive due process] claim is the shocks the

conscience standard.” Id. at 767. We held that was error. Id. Although we had “no qualms

agreeing with the district court that the [Defendant’s] conduct would not meet the

requirements of the shocks the conscience test,” we proceeded to analyze the challenged

executive action under the “fundamental liberty” framework. See id. at 769–72 & 769

n.2. “[T]he distinction between legislative and executive action,” we explained, “is

ancillary to the real issue in substantive due process cases: whether the plaintiff suffered

from governmental action that either (1) infringes upon a fundamental right, or (2) shocks

the conscience.” Id. at 768. Those two tests, we continued, “are but two separate

approaches to analyzing governmental action under the Fourteenth Amendment.” Id. at

769. “They are not mutually exclusive,” we concluded, and “[c]ourts should not

unilaterally choose to consider only one or the other of the two strands. Both approaches

may well be applied in any given case.” Id.

       More recent opinions from this court have called the Seegmiller framework into

doubt. See Browder v. City of Albuquerque, 787 F.3d 1076, 1078–79 (10th Cir. 2015) (“If

the infringement is the result of executive action, the Supreme Court has instructed us to

ask whether that action bears a ‘reasonable justification in the service of a legitimate

                                              8
governmental objective’ or if instead it might be ‘characterized as arbitrary, or

conscience shocking.’” (quoting Lewis, 523 U.S. at 846, 847)); id. at 1079 n.1 (“[W]e can

say with certainty . . . that Chavez did not expressly overrule Lewis’s holding that the

‘arbitrary or conscience shocking’ test is the appropriate one for executive action so we

feel obliged to apply it.”); Dias v. City & Cty. of Denver, 567 F.3d 1169, 1182 (10th Cir.

2009) (clarifying that “when legislative action is at issue, . . . only the traditional

[fundamental rights] substantive due process framework is applicable”). Neither Browder

nor Dias was heard by the full court. “Because one panel of our court cannot overrule

prior panel decisions and earlier panel decisions control over later ones,” Storagecraft

Tech. Corp. v. Kirby, 744 F.3d 1183, 1191 n.2 (10th Cir. 2014), I would normally treat

Seegmiller’s gloss on Lewis as binding and ask whether Plaintiffs’ complaint alleges that

they “suffered from governmental action that either (1) infringes upon a fundamental

right, or (2) shocks the conscience.” Seegmiller, 528 F.3d at 768 (emphasis added).

       Notwithstanding our normal rule about favoring earlier panel decisions, it is an

open question in my mind whether Seegmiller is binding on this point. First, our

published decision in Brower characterizes Seegmiller’s analysis as dicta. Browder, 787

F.3d at 1079, n.1. Second, in a recent unpublished opinion, Chief Judge Tymkovich, who

wrote for the panel in Seegmiller and joined then-Judge Gorsuch’s panel opinion in

Browder, explained that he is in accord with Browder and Dias and that, to the extent

Seegmiller is inconsistent, the earlier case is properly dismissed as dicta. See Dawson v.

Bd. of Cty. Comm’rs, No. 17-1118, 2018 WL 1256477, at *9–10 (10th Cir. Mar. 9, 2018)

(Tymkovich, C.J., concurring) (“Our Circuit has settled on the following solution: if the

                                               9
case involves a legislative act, only the ‘rights’ strand applies. On the other hand, when

the case involves executive action by a government official or entity, we apply the

‘shocks the conscience’ test.” (citations omitted)).

       Following Lewis, the district court in this case applied only the “shocks the

conscience” test. See Moya v. Garcia, No. 1:16-CV-01022-WJ-KBM, 2017 WL

4536080, at *4 (D.N.M. Feb. 13, 2017) (“To establish a substantive due process

violation, Plaintiffs must show Defendants’ behavior was ‘so egregious, so outrageous,

that it may fairly be said to shock the contemporary conscience.’” (quoting Lewis, 523

U.S. at 847 n.8)). On appeal, the parties have argued past each other without ever

focusing on the tension in our case law. Neither side cited either Seegmiller or Broward.

Plaintiffs’ opening brief did not even reference the “shocks the conscience” test at all,

asserting instead a “fundamental liberty interest in pretrial release” as the basis for their

substantive due process claim. Aplt. Br. at 21. Defendants in turn did not engage with

Plaintiffs’ “fundamental liberty” analysis, urging instead that the district court be

affirmed because Plaintiffs “failed to allege conscience-shocking conduct on the part of

the defendants.” Aplee. Br. at 34–36. Plaintiffs then asserted in their reply brief that their

“allegations, if proven, shock the conscience.” Aplt. Reply Br. at 21. And at oral

argument Plaintiffs effectively adopted the Seegmiller view, stating “there’s two ways

you can get to substantive due process violations,” Oral Arg. 2:30–2:57. That is, either

the “shocks the conscience” standard or the fundamental rights standard will do. Id.

       I need not and, writing only for myself, cannot resolve the crosswinds in our case

law. I have already explained that Plaintiffs have plausibly pleaded a deprivation of their

                                              10
procedural due process rights. That is grist enough for me to engage with the majority’s

causation analysis.4

                                    II.    CAUSATION

         Properly understood, Plaintiffs’ alleged injury is the unconstitutional deprivation

of their liberty through overdetention. As to causation, Plaintiffs’ argument is

straightforward: they allege the sheriff and wardens jointly held the keys to their jail

cells. By keeping Plaintiffs behind bars—day after day after day—the sheriff and

wardens were deliberately indifferent to their constitutional right to freedom pending

trial.

         In finding causation lacking, the majority focuses on the state court’s conduct,

rather than the Defendants’ conduct. As portrayed by the majority, Mr. Moya and Mr.

Petry “blame the sheriff and wardens for the delays in the arraignments.” Maj. Op. at 5.

Because the sheriff and wardens had no power to schedule the arraignments, the

majority’s thinking goes, the sheriff and wardens had no power to prevent or cure the

alleged constitutional violations. See id. (“the sheriff and wardens did not cause the

arraignment delays”); id. at 8 (“[T]he sheriff and wardens did not cause the


         4
         Defendants argue that Plaintiffs should be permitted to litigate their claims only
under the rubric of procedural due process. We have previously said that “[w]here a
plaintiff has recourse to an ‘explicit textual source of constitutional protection,’ a more
general claim of substantive due process is not available.” Shrum v. City of Coweta, 449
F.3d 1132, 1145 (10th Cir. 2006) (quoting Graham v. Connor, 490 U.S. 386, 395
(1989)). Our sister circuits are divided as to whether overdetention claims sound in
procedural or substantive due process. See Jauch, 874 F.3d at 430 (collecting cases).
Although I would hold that Plaintiffs have pleaded a plausible procedural due process
claim, I decline to opine on whether a substantive due process claim might also be viable.

                                              11
overdetention. At most, the sheriff and wardens failed to remind the court that it was

taking too long to arraign Mr. Moya and Mr. Petry.”); id. at 19 (“The state trial court’s

alleged failure to schedule timely arraignments cannot be attributed to the sheriff or

wardens.”). But, in my view, causation follows from the constitutionally cognizable

injury that Plaintiffs alleged. Here we see why “a ‘careful description’ of the allegedly

violated right,” Browder, 787 F.3d at 1078, is so crucial. On my reading of the complaint,

Plaintiffs are not seeking to hold the sheriff and wardens accountable for the court’s

scheduling decisions; instead, they are seeking to hold them accountable for the lengthy

detentions that no court authorized.5 Again, a timely bail hearing is a means to securing

Plaintiffs’ protected liberty interests, not an end unto itself.

       The majority explains that it focused on the right to a timely bail hearing “because

that’s what the plaintiffs have alleged,” Maj. Op. at 14, all the while conceding that

Plaintiffs have also alleged a violation of their “right to freedom from detention,” id. at

16. Under the majority’s framing, these rights “are coextensive to Mr. Moya and Mr.

Petry because to them, a violation of the right to a timely arraignment resulted in

violation of their right to freedom from prolonged detention.” Id. But the majority’s own

description demonstrates that these rights are not one and the same.6 The state-law


       5
         Recall the Complaint alleges that the bench warrants authorizing Plaintiffs’
arrests “commanded any authorized officer to ‘arrest [Plaintiff], and bring him forthwith
before this court.’” Joint App’x 10–11, Compl. ¶¶ 26, 33; see Forthwith, Black’s Law
Dictionary (10th ed. 2014) (“1. Immediately; without delay. 2. Directly; promptly; within
a reasonable time under the circumstances; with all convenient dispatch.”).
       6
          According to the majority, the interchangeability of the liberty interests is
illustrated by Plaintiffs’ definition of the putative class, which would include only those
                                               12
procedural right to a timely arraignment is protective of, not coextensive with, the right to

liberty. The majority assumes without deciding that Plaintiffs alleged a violation of the

state-law procedural right to a timely arraignment and then concludes that their

constitutional claims fail because the warden and sheriffs did not cause the violation of

state procedural law. That analysis works fine as far as it goes, but it is incomplete. The

majority never considers whether the complaint adequately alleges a violation of the

more fundamental right. Nor does it consider whether the individual defendants’ alleged

conduct deprived Plaintiffs of that right. In my view, this more fundamental question is

fairly alleged in the complaint and presented in Plaintiffs’ briefing. Therefore, I think this

court is obliged to consider it, not least because it is an “interpretation [that] could

succeed.” Maj. Op. at 17.

       By focusing on the arraignment rather than the detention, the majority naturally

finds that the causal force lies with the state court’s conduct, rather than with the jailers’

conduct. And by focusing on the state court’s conduct, rather than the jailers’ conduct,

the majority reaches a result heretofore unseen in an overdetention case. As best I can

tell, our decision today puts us at odds with every circuit to consider the apportionment of

blame between state courts and state jailers where a § 1983 plaintiff alleges that he or she

was overdetained. See Jauch, 874 F.3d at 430, 436 (county’s policy of indefinitely

detaining arrestees until the court next convened was “the moving force” behind the

detainees held for longer than the fifteen days allowed under New Mexico law. Maj. Op.
at 16 n.9. This is a non sequitur. Plaintiffs’ proposed class definition tells us nothing
about whether their complaint plausibly alleges individual due process claims on any
theory fairly presented.

                                              13
constitutional injury); Hayes v. Faulkner Cty., 388 F.3d 669, 674 (8th Cir. 2004)

(county’s policy of waiting for the court to schedule a hearing “ignore[d] the jail’s

authority for long-term confinement” and was “deliberately indifferent to detainees’ due

process rights”); Armstrong v. Squadrito, 152 F.3d 564, 579 (7th Cir. 1998) (“[J]ailers

hold not only the keys to the jail cell, but also the knowledge of who sits in the jail and

for how long they have sat there. They are the ones directly depriving detainees of

liberty.”); Oviatt, 954 F.2d at 1476–77 (holding that due process required sheriff to enact

reasonable procedures for decreasing erroneous incarcerations).7 The majority

distinguishes Armstrong and Oviatt because, in those cases, “a clerical error prevented

the court from discovering the arrests and the need to schedule arraignments,” so there

would have been no basis for placing blame on the state court. Maj. Op. at 9. And in our

case, by contrast, “Mr. Moya and Mr. Petry do not allege a failure to tell the court of their

arrests in sufficient time to conduct the arraignments within” the time required under

state law. Id. at 9. I agree with the majority that Armstrong and Oviatt are distinguishable.

But that distinction does not change the underlying reasoning that the jailers are the ones

directly depriving the detainees of their protected liberty interest in freedom pending trial.

And, in any event, Jauch and Hayes are not so easily distinguished.


       7
         Estate of Brooks ex rel. Brooks v. United States, 197 F.3d 1245 (9th Cir. 1999),
is not to the contrary. That case also involved an overdetention claim brought under
§ 1983 against a county, but there the county acted pursuant to an order from the United
States Marshals Service. Id. at 1246. Distinguishing Oviatt, the Ninth Circuit held that
“[w]hereas Oviatt was a case involving whether the left hand knew what the right hand
was doing, this is a case involving whether my left hand knows what your right hand is
doing.” Id. at 1248. In this case, we consider only state actors, and so Brooks is easily
distinguishable.

                                             14
       In Jauch, the plaintiff, Jessica Jauch, was indicted by a grand jury, arrested, and

put in jail, where she waited for ninety-six days before she was brought before a judge.

874 F.3d at 428. She later brought suit under § 1983 against the county and the sheriff,

alleging, inter alia, violations of both procedural and substantive due process. Id. The

district court denied Ms. Jauch’s motion for summary judgment and instead ordered

judgment in favor of the defendants. Id. The Fifth Circuit reversed, holding that (a) the

sheriff was not entitled to qualified immunity and (b) Ms. Jauch was entitled to judgment

in her favor on her procedural due process claim. Id. at 429, 437.

       The majority distinguishes Jauch on the ground that its causation analysis “rested

on Mississippi law,” which “recognize[s] the responsibility of the sheriff to release an

arrestee who has been detained too long without bail.” Maj. Op. at 10 (citing Jauch, 874

F.3d at 437). As the Fifth Circuit explained, however, it merely cited Mississippi law for

the unremarkable propositions that (1) the sheriff is responsible for those incarcerated in

his jail, see Jauch, 874 F.3d at 436–37 (citing Miss. Code. Ann. § 19-25-69), and (2)

county sheriffs are responsible “to hold detainees in a manner consistent with their oaths

to uphold the federal and state constitutions,” id. at 437 (citing Sheffield v. Reece, 28 So.

2d 745, 748 (Miss. 1947)). New Mexico law does not differ on either point, except

perhaps that it extends those responsibilities to its wardens as well. See N.M. Stat. Ann.

§ 33–3–1 (“The common jails shall be under the control of the respective sheriffs. . . .”);

id. § 33–1–2(E) (stating “‘warden’ . . . means the administrative director of a correctional

facility”); Wilson v. Montano, 715 F.3d 847, 856–57 (10th Cir. 2013) (relying on these

provisions to conclude that, under New Mexico law, wardens and sheriffs share

                                             15
responsibility for the policies and customs at county jails and for any failure to

adequately train their subordinates); see also N.M. Const. art. XX, § 1 (requiring “[e]very

person elected or appointed to any office” to take an oath to support the federal and state

constitutions).

       Next, the majority finds Jauch of limited guidance because Mr. Moya and Mr.

Petry expressly disavowed any argument that the sheriff and wardens could have or

should have released them from custody without a valid court order. Maj. Op. at 10–11.

Respectfully, I am not persuaded. Mr. Moya and Mr. Petry argue there was “plenty

Defendants could, and should, have done short of releasing Mr. Moya and Mr. Petry to

ensure that they received prompt bail determinations.” Aplt. Br. at 29. For instance, they

suggest, the sheriff and wardens could have reviewed court dockets to determine whether

arraignments were being timely scheduled, and if not, they could have requested

immediate arraignments. Or they could have physically brought Mr. Moya or Mr. Petry

before a judicial officer at any time. But alas “we cannot know what . . . could have

[been] done to allow bail, because [the jailers] did nothing at all.” Jauch, 874 F.3d at 437

n.10.8 Even on the majority’s view of Plaintiffs’ alleged liberty interest, its causation


       8
         The Fifth Circuit recently decided against rehearing Jauch en banc. See Jauch v.
Choctaw Cty., No. 16-60690, 2018 WL 1542262 (5th Cir. Mar. 29, 2018). Six judges
voted in favor of rehearing; they would have held that qualified immunity applies. Id. at
*6 (Southwick, J., dissenting from denial of rehearing en banc). But the dissenting judges
seemingly were not in agreement as to whether Jauch’s holding as to Choctaw County
also should have been reconsidered. See id. at *7. In any event, they were not blind to the
possibility that jailers have the power to prevent constitutional violations in cases like
these. See id. (“[A] a county should not be allowing a prisoner’s pretrial release to be
unaddressed for extended periods. Judges and jailers could cooperate to minimize delays
in consideration. . . . Even a sheriff, though not having the power to schedule a hearing,
                                             16
analysis is “overly rigid.” Estate of Brooks ex rel. Brooks v. United States, 197 F.3d

1245, 1250 (9th Cir. 1999) (Hawkins, J., dissenting) (noting that the county could have

reminded the relevant authorities of the detainee’s right to see a magistrate; thus, “the

County was not helpless to avoid the injury to [the detainee] and so was a legal cause of

his injury”).

       Nor does the majority meaningfully distinguish the Eighth Circuit’s opinion in

Hayes. In that case, the plaintiff, James M. Hayes, was ticketed for not having automobile

tags and vehicle insurance. Hayes, 388 F.3d at 672. Mr. Hayes failed to appear at his

municipal court hearing, and so bench warrants were issued for his arrest. Id. On April 3,

1998, he was stopped for a traffic violation, arrested on the warrants, given a court date

of May 11, and jailed. Id. Mr. Hayes did not post a $593 cash-only bond and remained in

jail until appearing before the court on May 11, thirty-eight days after his arrest. Id. He

too brought suit under § 1983 against the county and sheriff. Id. The Eighth Circuit

affirmed the district court’s entry of judgment against the sheriff in his individual

capacity, finding that a “law enforcement officer cannot reasonably believe that holding a

person in jail for 38 days without bringing him before a judicial officer for an initial

appearance is constitutional.” Id. at 675. The majority explains that it cannot follow

Hayes because the Eighth Circuit’s approach, which “attributed responsibility to the

jailers based solely on federal law, not state law,” is “inconsistent” with Tenth Circuit

precedent that “directs us to focus on state law when determining the scope of the

might rattle the cage on behalf of such a prisoner so that those who have the authority to
do something will hear.” (emphasis deleted)).

                                             17
defendants’ responsibility to ensure prompt hearings.” Maj. Op. at 13 (emphasis deleted)

(citing Wilson, 715 F.3d at 854).9 Again, I differ with the majority, which in my view

focuses on the wrong deprivation and thus the wrong actor.

       Nothing in Wilson requires us to adopt the majority’s analytical approach. Nor

does Wilson preclude us from following our sister circuits’ persuasive reasoning in

comparable cases. In Wilson, the plaintiff, Michael Wilson Sr., was arrested without a

warrant and booked into a New Mexico county jail. 715 F.3d at 850. He was detained for

eleven days before he was released by order of a magistrate judge. Id. Because Mr.

Wilson was arrested without a judicial finding of probable cause, his ensuing § 1983

action sounded in the Fourth Amendment, rather than the Fourteenth. Id. We held that the

district court correctly denied the sheriff’s and warden’s motions to dismiss for failure to

state a claim and for qualified immunity. Id. at 857–58. In reaching that conclusion, as


       9
         I agree with the majority that Hayes “attributed responsibility to the jailers based
solely on federal law, not state law.” Maj. Op. at 13. And for that reason, the majority’s
comparative analysis of Arkansas and New Mexico criminal procedure rules is but a
distraction. See id. at 12–13. True, under New Mexico law, “[w]hen a warrant is issued in
a criminal action, . . . the defendant named in the warrant shall, upon arrest, be brought
by the [arresting] officer before the court without unnecessary delay.” N.M. Stat. Ann.
§ 31-1-4(C). The majority reads that rule and apparently concludes that, because the
arresting officer is vested with statutory responsibility to ensure a prompt hearing, the
arresting officer (and, one supposes, that officer’s supervisors) is alone responsible for
ensuring the state court promptly schedules a hearing. But § 31-1-4(C) does not make the
arresting officer responsible for protecting a defendant’s constitutional rights to the
exclusion of anyone else’s responsibility. Nor is it clear why the arresting officer would
be the proximate cause of an overdetention violation, which will not ripen until some
indeterminate amount of time has passed and in which, typically, the detainee will no
longer be held under the arresting officer’s authority. Under the majority’s approach,
there is no § 1983 remedy to be had, no matter how long an arrestee is unconstitutionally
held without an arraignment.

                                             18
the majority rightly notes, we “consider[ed] New Mexico state law insofar as it bears on

the scope of [a defendant’s] responsibility to ensure a prompt probable cause

determination.” Id. at 854. Likewise, here, we ought to consider New Mexico law insofar

as it bears on the scope of Defendants’ responsibility to ensure that detainees are not

deprived of their right to freedom pending trial. The majority puts it somewhat

differently. My colleagues look to New Mexico law only insofar as it bears on the scope

of the Defendants’ responsibility to ensure a prompt bail hearing. Finding no such

requirement in state law, the majority concludes the Defendants did nothing

unconstitutional. But ensuring a prompt bail hearing is just one possible means of

ensuring that Plaintiffs’ constitutional rights are not violated. Other means will also

suffice. Most obviously, the Defendants could have simply released Mr. Moya and Mr.

Petry from custody.10 To the extent doing so would have been inconsistent with

Defendants’ duties under state law, it is no matter, because federal constitutional law

trumps. See U.S. Const. art. VI, cl. 2.

       Wilson is not in tension with Jauch or Hayes. The New Mexico sheriff and warden

in Wilson could no more force the state court to make a probable cause determination

than the sheriffs in Mississippi (Jauch) or Arkansas (Hayes) could force their state courts

to make a bail determination. Any reference in Wilson to a duty to “ensure” a state court


       10
         I recognize that Plaintiffs have expressly disavowed that argument, see Maj. Op.
at 10–11 (citing Aplt. Br. at 29), but I comment on it anyway to acknowledge the reach of
my reasoning. In any case, Plaintiffs identified tactics short of outright release that the
defendants in this case could have adopted. See supra. In my view they have sufficiently
alleged causation at this stage of the proceedings.

                                             19
proceeding must simply mean that state officials have a duty to seek the state court’s

cooperation. And should the state court fail to cooperate, it will be left to the sheriff and

warden to desist from holding detainees when they lack continued constitutional

authority to do so. See Wilson, 715 F.3d at 853 n.6 (noting that it is settled law that

defendants “who effected the plaintiffs’ arrests and detentions[ ] could be held liable for

the plaintiffs’ prolonged detentions without probable cause” (emphasis added)). Again, in

my view it is the “prolonged detentions,” not the absence of a bail hearing or probable-

cause hearing, that is the fundamental due process concern.

       The majority’s chosen approach, moreover, comes with troubling implications. By

(a) looking to state law to determine the scope of state officials’ responsibility to ensure

prompt bail hearings, and (b) conceptualizing Plaintiffs’ liberty interest as an interest in a

state court proceeding, rather than in liberty itself, the majority sanctions a system by

which states could regularly violate detainees’ constitutional rights by holding them

indefinitely on account of untimely state courts, without any fear of their collaborating

municipalities or state officials ever incurring monetary penalties under § 1983. Such an

outcome is not farfetched. We know from Jauch that, in at least one part of Mississippi,

the only court empowered to set bail would sometimes go months between sessions. And,

accepting Plaintiffs’ allegations as true, as we must, we can infer that courts in Santa Fe

County—New Mexico’s third-most populous—routinely fail to schedule arraignments

with any earnest.

       The majority’s causation analysis also lacks a logical endpoint. What if the state

court had scheduled Mr. Moya’s arraignment a month later than it did? What about a year

                                              20
later? As I read the majority opinion, even then Mr. Moya would have no actionable

§ 1983 claim. See supra, n.9. To be sure, I agree with the majority that New Mexico

sheriffs and wardens are powerless to force New Mexico courts to schedule bail hearings

in a timely fashion. Only New Mexico courts can do that. But the solution is not to grant

jailers refuge behind judges cloaked with absolute immunity, enabling the jailers to

violate the Constitution with impunity.11 The better solution is to hold state officials and

municipalities responsible for the constitutional violations they themselves commit. True,

the effect could be that New Mexico sheriffs and wardens respond by releasing pre-trial

detainees, some of whom may have been arrested for alleged violent acts or pose a risk of

flight, without the deterrence of bail. But it is our role to assure that New Mexico runs its

criminal-justice system with the timeliness that the Fourteenth Amendment commands. If

it does not, there should be consequences: either pre-trial detainees go free pending trial,

or they will be entitled to civil damages against the state’s officials and municipalities so

that they may be compensated for the violations of their civil rights.

                            III.   QUALIFIED IMMUNITY

       As the Supreme Court recently reiterated, state officials “are entitled to qualified

immunity under § 1983 unless (1) they violated a federal statutory or constitutional right,

and (2) the unlawfulness of their conduct was ‘clearly established at the time.’” District

of Columbia v. Wesby, 138 S. Ct. 577, 589 (2018) (quoting Reichle v. Howards, 566 U.S.

       11
          It is no answer to say that Plaintiffs’ complaint was deficient for not alleging
that they were arrested by officers subject to the defendants’ supervisory authority, as the
majority opinion could be read to suggest. See Maj. Op. at 12 n.8. The arresting officer
can no more force the court to act than can the sheriff or warden.

                                             21
658, 664 (2012)). “Ordinarily, in order for the law to be clearly established, there must be

a Supreme Court or Tenth Circuit decision on point, or the clearly established weight of

authority from other courts must have found the law to be as the plaintiff maintains.”

Becker v. Bateman, 709 F.3d 1019, 1023 (10th Cir. 2013) (quotation omitted). The

Supreme Court has “repeatedly stressed that courts must not define clearly established

law at a high level of generality, since doing so avoids the crucial question whether the

official acted reasonably in the particular circumstances that he or she faced.” Wesby, 138

S. Ct. at 590 (internal quotation marks omitted). “This demanding standard protects ‘all

but the plainly incompetent or those who knowingly violate the law.’” Id. at 589 (quoting

Malley v. Briggs, 475 U.S. 335, 341 (1986)).

       In my view, the complaint plausibly alleges that Sheriff Garcia, Warden Caldwell,

and Warden Gallegos violated Plaintiffs’ constitutional rights. But I recognize that

conclusion is not foretold. No opinion from this court or the Supreme Court has ever

clearly established that a jailer violates the Constitution by detaining an individual

lawfully arrested in anticipation of an untimely scheduled arraignment. That principle of

law, to be sure, is clearly established in at least two of our sister circuits, but that is not

enough for the law to be clearly established here. I would thus affirm the district court’s

order insofar as it dismissed Plaintiffs’ claims against the sheriff and wardens on the basis

of qualified immunity, and so I partially concur in the majority’s result. But because

municipalities are not entitled to qualified immunity, I would reverse and remand to the

district court for further proceedings against the County.

       Thus, as to the County, I respectfully dissent.

                                               22
