Debra Gotovac; Brad Bolen v. IZZY TREJO, Executive Director, New Mexico Racing Commission

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
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DEBRA GOTOVAC; BRAD BOLEN,
Plaintiffs - Appellants,
v.
IZZY TREJO, Executive Director, New
Mexico Racing Commission,
Defendant - Appellee.
No. 20-2143
(D.C. No. 1:19-CV-00783-JB-LF)
(D. N.M.)
_________________________________
ORDER AND JUDGMENT*
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Before MATHESON, PHILLIPS, and CARSON, Circuit Judges.
_________________________________
Debra Gotovac and Brad Bolen sued Izzy Trejo, the executive director of the
New Mexico Racing Commission (“Commission”), under 42 U.S.C. § 1983, alleging
due-process and equal-protection violations. The district court dismissed Gotovac
and Bolen’s claims. Having jurisdiction under 28 U.S.C. § 1291, we affirm.
BACKGROUND
On August 9, 2019, the Commission suspended horse trainer Trey Woods after
one of his horses tested positive for albuterol, a Class 3 controlled substance.
According to Gotovac and Bolen, horses trained by individuals suspected of illegally
* This order and judgment is not binding precedent, except under the doctrines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.
FILED
United States Court of Appeals
Tenth Circuit
October 20, 2021
Christopher M. Wolpert
Clerk of Court
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drugging their horses are usually ineligible to be transferred to other trainers. 1 But
because of a delay in receiving the positive test results, Trejo allowed the transfer of
Woods’s horses to other trainers “in the spirit of fairness.” R. at 7. Two of the
transferred horses then competed alongside Gotovac and Bolen’s horse in the
qualifying race for the All American Futurity Race (“the Futurity”). 2 The two
transferred horses placed in the top five, which qualified them to race in the Futurity.
Gotovac and Bolen’s horse did not.
Afterward, Gotovac and Bolen sued Trejo under 42 U.S.C. § 1983. They
alleged that Trejo deprived them of their procedural and substantive due process
rights, as well as equal protection of the law. They also alleged that Trejo violated
§§ 15.2.1.9(B)(8) and 15.2.5.12(A)(5) 3 of the New Mexico Administrative Code 4
when he allowed the transfer of horses trained by Woods to other trainers, thus
1 We note that the New Mexico Administrative Code does not prohibit the
transfer of horses trained by an individual suspected of illegal drugging.
2 The Futurity is an annual race in Ruidoso Downs, New Mexico. It has a purse
of three million dollars—the highest prize for two-year-old horses in North America.
3 Gotovac and Bolen cite § 15.2.5.12(E) in their complaint, but no such section
exists. We assume, as the district court did, that Gotovac and Bolen were referring
instead to § 15.2.5.12(A)(5) because they cite its language in their complaint and in
their Opening Brief. They also cite § 12.2.1.9(B)(8) in their complaint, which we
assume was a typographical error as they only refer to § 15.2.1.9(B)(8) elsewhere in
their complaint and briefing.
4 Section 15.2.1.9(B)(8)(b) states that “[t]he transfer of a horse to avoid
application of a commission rule or ruling is prohibited.” Section 15.2.5.12(A)(5)
provides that a horse is ineligible to race if “it is wholly or partially owned by a
disqualified person or a horse is under the direct or indirect training or management
of a disqualified person[.]”
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enabling the transferred horses to compete in the Futurity. Trejo’s decision, they
argued, caused their horse to be “kicked out of the top five” because, had Trejo
barred the transferred horses from racing, Gotovac and Bolen’s horse would have
placed in the top five. R. at 8. Thus, Gotovac and Bolen alleged that Trejo’s decision
impacted their “ability to earn a living.” R. at 8.
Trejo moved to dismiss Gotovac and Bolen’s claims under Fed. R. Civ. P.
12(b)(6), asserting qualified immunity. The district court granted the motion, holding
in part that qualified immunity barred their claims because Gotovac and Bolen had
not alleged that Trejo violated a constitutional right, let alone one that was clearly
established.
DISCUSSION
We review de novo the district court’s grant of a Rule 12(b)(6) motion to
dismiss for failure to state a claim. Gee v. Pacheco, 627 F.3d 1178, 1183 (10th Cir.
2010). When resolving a Rule 12(b)(6) motion, we accept as true all well-pleaded
factual allegations and view them in the light most favorable to the non-movants.
Straub v. BNSF Ry. Co., 909 F.3d 1280, 1287 (10th Cir. 2018). And we disregard any
conclusory statements of law. Kan. Penn Gaming, LLC v. Collins, 656 F.3d 1210,
1214 (10th Cir. 2011).
“The doctrine of qualified immunity protects government officials from
liability for civil damages insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person would have known.”
Pearson v. Callahan, 555 U.S. 223, 231 (2009) (cleaned up). When a defendant
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invokes qualified immunity as a defense, the plaintiff must establish that “(1) the
defendant violated a federal statutory or constitutional right and (2) the right was
clearly established at the time of the defendant’s conduct.” Ullery v. Bradley, 949
F.3d 1282, 1289 (10th Cir. 2020). “[I]f the plaintiff fails to establish either prong of
the two-pronged qualified-immunity standard, the defendant prevails on the defense.”
A.M. v. Holmes, 830 F.3d 1123, 1134–35 (10th Cir. 2016). We may consider the
prongs in either order, as a defendant is entitled to qualified immunity if a plaintiff
fails to plausibly allege either requirement. VDARE Found. v. City of Colorado
Springs, 11 F.4th 1151, 1175 (10th Cir. 2021). Here, we restrict our analysis to the
clearly established prong because the case is more readily decided on that prong.
A constitutional right is clearly established if it is “sufficiently clear that every
reasonable official would have understood that what he is doing violates that right.”
Mullenix v. Luna, 577 U.S. 7, 11 (2015) (quoting Reichle v. Howards, 566 U.S. 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.” Toevs v. Reid, 685 F.3d 903, 916 (10th Cir. 2012) (internal quotation
marks omitted). The Supreme Court has advised lower courts “not to define clearly
established law at a high level of generality.” Ashcroft v. al-Kidd, 563 U.S. 731, 742
(2011). Although Supreme Court precedent “does not require a case directly on point
for a right to be clearly established, existing precedent must have placed the statutory
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or constitutional question beyond debate.” White v. Pauly, 137 S. Ct. 548, 551 (2017)
(quoting Mullenix, 577 U.S. at 12) (cleaned up).
In their Opening Brief, Gotovac and Bolen frame the right at issue as the “right
to engage fairly in one’s profession.” Opening Br. at 3. In arguing that such a right is
clearly established, they cite Barry v. Barchi, 443 U.S. 55 (1979) and State Racing
Comm’n v. McManus, 82 N.M. 108 (1970). In Barry, the Supreme Court held that a
horse trainer or owner has a constitutionally protected property interest in his license.
443 U.S. at 64. In McManus, the New Mexico Supreme Court established a horse’s
jockey, owner, or trainer’s “right to engage in his chosen profession” and his
entitlement “to due process of law if he is to be lawfully denied an opportunity to do
so.” 82 N.M. at 112.
We do not dispute that Gotovac and Bolen have a right to their license to own
horses and a right to engage in the horse-racing profession. But Trejo deprived them
of neither here. They competed in the qualifying race for the Futurity—they simply
failed to place in the top five. The relief they are truly requesting here, as evidenced
by the language in their complaint, is a recognition of a right to the “opportunity to
race in” and “to win” a specific race—the Futurity. R. at 10. But they have cited no
Supreme Court or Tenth Circuit case that clearly established such a right. Thus, we
affirm the district court’s dismissal of Gotovac and Bolen’s claims based on qualified
immunity.
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CONCLUSION
For these reasons, we affirm.
Entered for the Court
Gregory A. Phillips
Circuit Judge
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