                                                                                FILED
                                                                    United States Court of Appeals
                                                                            Tenth Circuit

                        UNITED STATES COURT OF APPEALS                   February 25, 2019

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

    MARK MILNER; ROBERT J.
    GERHARDT; WILLIAM O. DALE;
    VANESSA BARTOO,

         Plaintiffs - Appellants,

    v.                                                     No. 17-2193
                                             (D.C. Nos. 1:17-CV-00254-KG-LF, 2:17-
    VINCENT MARES, Executive Director,       CV-0025-KG-LF. 1:17-CV-00256-KG-LF,
    New Mexico Racing Commission; DAVID             2:17-CV-00257-KG-LF)
    KEITER, Steward, New Mexico Racing                      (D. N.M.)
    Commission,

         Defendants - Appellees.
                        _________________________________

                              ORDER AND JUDGMENT*
                          _________________________________

Before BACHARACH, EBEL, and MORITZ, Circuit Judges.
                 _________________________________

         Plaintiffs—four race horse owners (“Owners”)—sued the executive director of

the New Mexico Racing Commission (“Commission”) and a race steward under 42

U.S.C. § 1983, alleging that Defendants deprived them of due process and equal

protection by using a rarely-if-ever enforced racing rule to scratch Owners’ horses

immediately before the start of a $1 million horse race. More specifically, Owners


*
 This order and judgment is not binding precedent, except under the doctrines of law
of the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
alleged that Defendants, acting in concert, scratched their horses moments before the

race for violating Commission Rule 15.2.5.12(B), the “Breed Certificate Rule,”

which provided in relevant part that “[a] horse shall be ineligible to start in a race

when: . . . B. its breed registration certificate is not on file with the racing secretary

or horse identifier . . . ” (2014; subsequently amended). On the day in question,

Defendants interpreted the Breed Certificate Rule to require that a horse’s original

breed certificate be on file at a race location on race day. Owners, instead, filed

copies of their horses’ breed certificates with the racing secretary at Ruidoso Downs;

the horses’ original breed certificates were on file in Farmington, New Mexico.

       Owners had filed copies of their horses’ breed certificates at Ruidoso Downs

because “[t]he ‘original’ certificate aspect of the Breed Certificate Rule had not been

enforced in recent history when two live races were ongoing,” which was the case on

that May 2014 weekend. (Aplt. App. 18 ¶¶ 22-23.) Further, Defendants did not

enforce this “‘original certificate’ requirement” “until the third day of [this three-day]

Ruidoso Downs race meet.” (Id. 19 ¶ 32.) Defendants gave no “notice to impacted

owners and trainers” (id. 19-20 ¶ 39), although Commission employees “informally

advised certain select owners/trainers that [the Commission] would begin enforcing

the implied Breed Certificate Rule during the May 22-24, 201[4] racing event” (id.

20 ¶ 40). In this § 1983 action, Owners alleged that Defendants’ actions in

scratching their horses deprived Owners of procedural and substantive due process,

as well as equal protection of the law under a “class of one” theory.



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      Defendants moved to dismiss Owners’ claims under Fed. R. Civ. P. 12(b)(6),

asserting qualified immunity. The district court granted that motion. Having

jurisdiction under 28 U.S.C. § 1291, we AFFIRM.1

      We review the district court’s decision de novo, accepting as true all well-pled

factual allegations and viewing them in the light most favorable to Owners. See

Straub v. BNSF Ry. Co., 909 F.3d 1280, 1287 (10th Cir. 2018). We disregard any

conclusory statements of law. See Kan. Penn Gaming, LLC v. Collins, 656 F.3d

1210, 1214 (10th Cir. 2011).

      In order to withstand Defendants’ Rule 12(b)(6) motion based on qualified

immunity, Owners had the burden of pleading (1) the violation of a constitutional

right (2) that was clearly established at the time of the race in May 2014. See

Pearson v. Callahan, 555 U.S. 223, 232 (2009); Doe v. Woodard, 912 F.3d 1278,

1289 (10th Cir. 2019). A court can consider these two qualified-immunity inquiries

in any order. See Pearson, 555 U.S. at 236. “If the plaintiff fails to establish either

prong of the two-pronged qualified-immunity standard, the defendant prevails on the


1
  We deny Defendants’ request that we dismiss this appeal because of deficiencies in
Owners’ briefs and appellate appendix. See MacArthur v. San Juan Cty., 495 F.3d
1157, 1161 (10th Cir. 2007) (“[W]here an appellant has provided defective briefs, the
court in its discretion may scrutinize the merits of the case insofar as the record
permits.” (internal quotation marks omitted)). But we will not consider the transcript
from the administrative proceeding that Owners included in their appellate appendix,
both because that transcript was not before the district court, see Leatherwood v.
Allbaugh, 861 F.3d 1034, 1051 (10th Cir. 2017), and because, at the 12(b)(6) stage of
litigation, this court, like the district court, is generally limited to considering only
Owners’ complaints, see Estate of Lockett ex rel. Lockett v. Fallin, 841 F.3d 1098,
1104 n.2 (10th Cir. 2016), and the documents Owners attached to those complaints,
see Straub v. BNSF Ry. Co., 909 F.3d 1280, 1287 (10th Cir. 2018).
                                            3
defense.” Cummings v. Dean, 913 F.3d 1227, 1239 (10th Cir. 2019) (internal

quotation marks, alteration omitted) (holding, on the second qualified-immunity

prong, that plaintiff failed to allege the violation of a clearly established right without

first addressing or assuming that plaintiff alleged a constitutional violation); see also

id. at 1242.

       Importantly, in order to meet their burden to state claims for the violation of

constitutional rights that were clearly established in May 2014, Owners “must

‘identify a case where [a state official] acting under similar circumstances . . . was

held to have violated’” the constitutional provisions at issue. Doe, 912 F.3d at 1296

(quoting White v. Pauly, 137 S. Ct. 548, 552 (2017)). “Ordinarily” that requires

identification of “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.” Grissom v. Roberts, 902 F.3d 1162, 1168 (10th Cir. 2018)

(internal quotation marks, alteration omitted). The Supreme Court has warned

against defining clearly established law “at a high level of generality.” White, 137

S. Ct. at 552 (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011)). Instead, “the

clearly established law must be ‘particularized’ to the facts of the case.” Id. (quoting

Anderson v. Creighton, 483 U.S. 635, 640 (1987)). Although there need not be “a

case directly on point for a right to be clearly established, existing precedent must

have placed the statutory or constitutional question beyond debate.” Kisela v.

Hughes, 138 S. Ct. 1148, 1152 (2018) (quoting White, 137 S. Ct. at 551). In this

way, objectively reasonable state officials in Defendants’ position (as Owners allege

                                            4
it) would have known in advance that their actions violated the federal constitutional

rights at issue. See Grissom, 902 F.3d at 1167.

      Plaintiffs made no effort, either in the district court or now on appeal, to cite to

any Supreme Court or Tenth Circuit case decided before May 2014 that clearly

established the constitutional rights they allege Defendants violated. Nor have we

found any factually analogous case that clearly established those rights. In light of

that, we AFFIRM the district court’s decision to dismiss this action on the basis of

qualified immunity.


                                            Entered for the Court


                                            David M. Ebel
                                            Circuit Judge




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