PUBLISH 

UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

MARIANO MOYA; LONNIE PETRY, on 

behalf of themselves and all others 

similarly situated, 

 Plaintiffs - Appellants, 

v. 

ROBERT GARCIA, Santa Fe County 

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. 

No. 17-2037 

(D.C. No. 1:16-CV-01022-WJ-KBM) 

(D. N.M.) 

_________________________________ 

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 

FILED 

United States Court of Appeals 

Tenth Circuit 

July 10, 2018

Elisabeth A. Shumaker 

Clerk of Court
2 

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 
PUBLISH 

UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

MARIANO MOYA, LONNIE 

PETRY, on behalf of themselves and 

all others similarly situated, 

 Plaintiffs-Appellants, 

v. 

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. 

No. 17-2037 

_________________________________ 

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 PlaintiffsAppellants. 

Brandon Huss of The New Mexico Association of Counties, Santa Fe, New 

Mexico, for Defendants-Appellees. 

_________________________________ 

Before MATHESON, BACHARACH, and McHUGH, Circuit Judges. 

FILED 

United States Court of Appeals 

Tenth Circuit 

July 10, 2018

Elisabeth A. Shumaker 

Clerk of Court
2 

_________________________________ 

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. 
3 

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 
4 

 “‘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. 
5 

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. 
6 

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 
7 

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 
8 

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. 
9 

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. 
10 

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. 
11 

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.”). 
12 

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. 
13 

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 
14 

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 
15 

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 
16 

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 
17 

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. 
18 

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 
19 

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 
20 

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 
21 

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. 
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). 
2 

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 
3 

(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.”). 
4 

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 
5 

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 
6 

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 
7 

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 
8 

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 
9 

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 
10 

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 
11 

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. 
12 

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 
13 

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. 
14 

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. 
15 

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 
16 

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, 
17 

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)). 
18 

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. 
19 

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. 
20 

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 probablecause 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 
21 

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. 
22 

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.