Rodgers v. Torrez

• Court: Court of Appeals for the Tenth Circuit
• Decided: July 10, 2025
• Docket: 24-2046
• Status: Unpublished

Opinion

Appellate Case: 24-2046 Document: 34-1 Date Filed: 07/10/2025 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT July 10, 2025 _________________________________ Christopher M. Wolpert Clerk of Court WESSLEY RODGERS,

Plaintiff - Appellant,

v. No. 24-2046 (D.C. No. 1:22-CV-00641-KG-JFR) RAUL TORREZ, (D. N.M.)

Defendant - Appellee. _________________________________

ORDER AND JUDGMENT* _________________________________

Before EID, KELLY, and CARSON, Circuit Judges. _________________________________

Plaintiff-Appellant Wessley Rodgers filed this suit under 42 U.S.C. § 1983

against Defendant-Appellee Raul Torrez, then-district attorney for Bernalillo County,

New Mexico, alleging that Torrez retaliated against Rodgers in violation of the First

Amendment. Rodgers claimed that Torrez retaliated against him by filing a civil

action in state court naming a number of defendants, including Rodgers, seeking

declaratory and injunctive relief for alleged violations of New Mexico law. The

district court granted summary judgment in favor of Torrez, concluding that he

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Appellate Case: 24-2046 Document: 34-1 Date Filed: 07/10/2025 Page: 2

enjoyed absolute prosecutorial immunity from § 1983 liability for bringing the

underlying civil action. Rodgers appealed. We affirm.

I.

A.

On July 13, 2020, then-Bernalillo County District Attorney Raul Torrez

initiated a civil action in the Second Judicial District Court for Bernalillo County, in

New Mexico. The complaint named the plaintiff as “STATE OF NEW MEXICO ex

rel. RAÚL TORREZ, District Attorney, Second Judicial District.” App’x at 14. The

named defendants included the New Mexico Civil Guard (“NMCG”), its members,

and affiliates, including Wessley Rodgers.

The action sought declaratory and injunctive relief. Specifically, it sought to

enjoin NMCG, a “private” group not affiliated with or overseen by the state of New

Mexico, from “operating as an organized military unit and from assuming law-

enforcement duties” without proper authority to do so. Id. at 14–18.

The suit followed a protest at the statue of Spanish conquistador Juan de Oñate

in Albuquerque, New Mexico. At that protest, per the complaint, NMCG was present

in military-style gear acting as a paramilitary unit without authority when an

individual, not affiliated with NMCG, shot and injured another protester. The

complaint claimed that NMCG’s paramilitary activity heightened the threat to public

safety and intimidated the public’s exercise of First Amendment rights.

The stated overarching purpose of the complaint was “to enforce the

Constitution and laws of the State and to protect the safety and well-being of the

2 Appellate Case: 24-2046 Document: 34-1 Date Filed: 07/10/2025 Page: 3

citizens of New Mexico.” Id. at 19. Among other provisions, the complaint alleged

that the defendants had violated (1) “Article V, Section 4; Article XVIII, Section l;

and Article II, Section 9 of the New Mexico Constitution,” and (2) Section 30-27-2.1

of the New Mexico Annotated Statutes, by creating “a per se public nuisance.”

App’x at 40–43. Torrez cited Sections 36-1-18(A)(1) and 30-8-8(B) of the New

Mexico Annotated Statutes as authorizing him to bring the suit.

Torrez named Rodgers in the lawsuit as “a member of NMCG.” App’x at 21.

Torrez based this allegation on Rodgers’s appearance on a podcast where Rodgers

discussed his affiliation with NMCG and participation in some of NMCG’s activities.

Rodgers, however, was not a member of NMCG when Torrez filed the lawsuit.

B.

On August 29, 2022, Rodgers initiated this lawsuit in the United States District

Court for the District of New Mexico by filing his “Complaint Pursuant to 42 U.S.C.

§ 1983 for Damages From First Amendment Retaliation.” App’x at 6 (formatting

altered). As that title suggests, Rodgers’s sole claim is one for “First Amendment

retaliation,” which he also describes as a “vindictive prosecution or malicious abuse

of process” claim. Id. at 6, 9 (formatting altered). Rodgers’s complaint alleges that

Torrez named Rodgers as a defendant in the state civil injunctive and declaratory suit

“to discourage [Rodgers’s] engagement in public political speech,” “out of malice

and spite to further [Torrez’s] own political ambitions.” Id. at 8–9. In particular, the

complaint alleges that Torrez retaliated against Rodgers for his speech during the

above-mentioned podcast.

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On June 29, 2023, Torrez moved for summary judgment, arguing that he is

entitled to absolute prosecutorial immunity for filing the underlying civil injunctive

and declaratory suit in state court. The district court granted Torrez’s motion,

agreeing that Torrez enjoyed absolute prosecutorial immunity from § 1983 liability

for bringing the state civil suit. The court then entered final judgment for Torrez.

Rodgers timely appealed.

II.

We review summary judgment decisions de novo. May v. Segovia, 929 F.3d

1223, 1234 (10th Cir. 2019). Summary judgment is appropriate “if the movant shows

that there is no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a). We also review de novo the

determination that a government actor is entitled to absolute immunity. Gagan v.

Norton, 35 F.3d 1473, 1475 (10th Cir. 1994).

III.

The sole question before us is whether Torrez’s conduct garners absolute

prosecutorial immunity. We are persuaded that it does.

“Absolute prosecutorial immunity is a complete bar to a suit for damages1

under 42 U.S.C. § 1983.” Mink v. Suthers, 482 F.3d 1244, 1258 (10th Cir. 2007)

1 Despite its title, Rodgers’s complaint seeks relief beyond damages. But Rodgers never mentions any of these other requested remedies on appeal. As a result, he has abandoned appellate review of any such sought forms of relief, if those desired remedies were not already abandoned below. See, e.g., Stender v. Archstone- 4 Appellate Case: 24-2046 Document: 34-1 Date Filed: 07/10/2025 Page: 5

(citing Imbler v. Pachtman, 424 U.S. 409, 419 n.13 (1976)). “It is well established

that prosecutors are absolutely immune from suit under [§] 1983 concerning activities

‘intimately associated with the judicial . . . process,’ such as initiating and pursuing

criminal prosecutions,” and “that this absolute prosecutorial immunity extends to

state attorneys and agency officials who perform functions analogous to those of a

prosecutor in initiating and pursuing civil and administrative enforcement

proceedings.” Pfeiffer v. Hartford Fire Ins. Co., 929 F.2d 1484, 1489 (10th Cir.

1991) (ellipsis in original) (quoting Imbler, 424 U.S. at 430–31). “The principal

rationale for applying absolute immunity in this context is ‘to allow functionaries in

the judicial system the latitude to perform their tasks absent the threat of retaliatory

§ 1983 litigation.’” Berryman v. Niceta, --- F.4th ----, No. 23-1263, 2025 WL

1872778, at *5 (10th Cir. July 8, 2025) (quoting Snell v. Tunnell, 920 F.2d 673, 686–

87 (10th Cir. 1990)). “[A]bsolute prosecutorial immunity is intended to protect the

judicial process, not the prosecutor.” Chilcoat v. San Juan County, 41 F.4th 1196,

1208 (10th Cir. 2022).

We take “a ‘functional approach’” to absolute prosecutorial immunity, where

we look “to ‘the nature of the function performed, not the identity of the actor who

performed it.’” Benavidez v. Howard, 931 F.3d 1225, 1230 (10th Cir. 2019) (per

Smith Operating Tr., 910 F.3d 1107, 1117 (10th Cir. 2018) (deeming claims abandoned where not mentioned in opening brief); Whitehead v. Marcantel, 766 F. App’x 691, 702 (10th Cir. 2019) (unpublished) (deeming request for injunctive relief waived where plaintiff sought such relief in the district court but failed to pursue that relief in his opening appellate brief). 5 Appellate Case: 24-2046 Document: 34-1 Date Filed: 07/10/2025 Page: 6

curiam) (quoting Buckley v. Fitzsimmons, 509 U.S. 259, 271 (1993)). That is, we

focus on “the conduct for which immunity is claimed, not on the harm that the

conduct may have caused or the question whether it was lawful.” Id. (quoting

Buckley, 509 U.S. at 271).

“[F]unctions that serve as an integral part of the judicial process or that are

intimately associated with the judicial process are absolutely immune.” Id. (quoting

Rogers v. O’Donnell, 737 F.3d 1026, 1031 (6th Cir. 2013)). “Ours is a continuum

based approach and the more distant a function is from the judicial process, the less

likely absolute immunity will attach.” Id. (brackets omitted) (quoting Mink, 482 F.3d

at 1261). Along this continuum, “the determinative factor is advocacy because that is

the prosecutor’s main function.” Rex v. Teeples, 753 F.2d 840, 843 (10th Cir. 1985)

(internal quotation marks omitted). On the immunity end of the continuum is an

actor “initiating and presenting the government’s case,” because the actor is cast “in

the role of an advocate for the government.” Mink, 482 F.3d at 1261. On the non-

immunity end lie “actions that are investigative or administrative in nature.” Id. at

1262. From these extremes, we have broadly set forth the rule of absolute immunity

as applied to government attorneys as follows:

A government attorney’s administrative duties and those investigatory functions that do not closely relate to an advocate’s preparation for judicial proceedings are not entitled to absolute immunity. Rather, absolute immunity shields those acts undertaken by a government attorney in preparation for judicial proceedings and which occur in the course of his or her role as an advocate for the government.

Benavidez, 931 F.3d at 1231.

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Applying our absolute immunity precedents to the facts of this case, we hold

that Torrez is entitled to absolute immunity for drafting and filing the complaint in

the state civil injunctive and declaratory suit and naming Rodgers as a defendant in

that suit. Acting as district attorney, Torrez brought the underlying suit on behalf of

New Mexico, in the name of “public safety,” App’x at 4, and sought to stop certain

individuals from engaging in certain conduct Torrez believed to violate state law.

Torrez’s actions here—preparing a court filing and initiating a civil proceeding to

enforce state law—were “functions analogous to those of a prosecutor” initiating a

criminal proceeding. See Pfeiffer, 929 F.2d at 1489. In filing the underlying state

suit and naming Rodgers as a defendant, Torrez took on the role of advocate for New

Mexico and its people, “the prosecutor’s main function,” Rex, 753 F.2d at 843,

through actions “‘intimately associated’ with the judicial process,” Benavidez, 931

F.3d at 1231 (quoting Imbler, 424 U.S. at 430). These are functions that enjoy

absolute prosecutorial immunity.

Rodgers chiefly resists on the basis that the underlying state civil suit “was a

civil proceeding, not a criminal proceeding.” Aplt. Br. at 5. But we have long

“recognized absolute immunity as extending to ‘government lawyers involved in civil

proceedings.’” Benavidez, 931 F.3d at 1230–31 (quoting Robinson v.

Volkswagenwerk AG, 940 F.2d 1369, 1373 n.4 (10th Cir. 1991)); see Pfeiffer, 929

F.2d at 1489. Thus, the civil nature of the underlying suit, by itself, does not defeat

absolute immunity.

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Rodgers recognizes that “government attorneys defending a [civil] case” can

engage in functions that garner absolute immunity, but he maintains that government

attorneys who “initiat[e] [ ] civil proceedings” cannot. See Aplt. Br. at 5 (emphases

added). But that broad argument, too, cannot get around our precedents. We have

previously held that government actors enjoy absolute prosecutorial immunity for

functions intimately associated with the civil proceedings those actors initiated. See,

e.g., Scott v. Hern, 216 F.3d 897, 909–10 (10th Cir. 2000) (holding county attorney

absolutely immune from a § 1983 claim arising out of the attorney filing a petition in

a civil commitment proceeding). We have even held government actors absolutely

immune where the conduct at issue was the government actor’s decision as to

whether to initiate the civil proceeding. See Meade v. Grubbs, 841 F.2d 1512, 1532–

33 & n.18 (10th Cir. 1988) (holding state attorney general and state health

department commissioner absolutely immune from § 1983 claim based on their

failure to initiate either a civil or criminal complaint against other state officials),

abrogated in part on other grounds by Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009).

And so, the lone fact that a government lawyer initiates a civil proceeding does not

render absolute prosecutorial immunity inapplicable, either.

We do not mean to suggest that there will never be a case where a government

lawyer initiating a civil proceeding will be acting so far outside of the prosecutorial

sphere such that absolute immunity will not attach. All we say here is that this is not

such a case. Again, Torrez sought to prevent further acts he believed to be illegal

from occurring. Torrez did not, for example, seek to recover personal damages in the

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underlying suit, ostensibly not as easily analogized to a prosecutor’s role and

function. There is also no suggestion that Torrez lacked the authority, in his capacity

as a district attorney, to initiate the underlying state civil suit.2 In all, Torrez carried

out functions analogous to those of a prosecutor, advocating for the government,

covered by absolute immunity.

At the end of the day, even if Rodgers is right that Torrez brought the state

suit and named Rodgers as a defendant “purely [to] punish” Rodgers “for the political

speech he had made,” and Torrez was “politically motivated” in so doing, see Oral

Arg. Audio at 5:57–58, 10:17–22, this “is a cost required” by Supreme Court

precedent “to be paid,” Lerwill v. Joslin, 712 F.2d 435, 441 (10th Cir. 1983). As the

Court has reasoned:

As is so often the case, the answer must be found in a balance between the evils inevitable in either alternative. In this instance it has been thought in the end better to leave unredressed the wrongs done by

2 In the underlying suit, as mentioned above, Torrez asserted that he had the authority to initiate the state suit pursuant to Sections 36-1-18(A)(1) and 30-8-8(B) of the New Mexico Annotated Statutes. Below, the district court concluded that Torrez was statutorily authorized to bring the state suit in his district attorney capacity. Rodgers has made no argument to us that the district court’s conclusion was wrong. But even if Torrez over-read his authority under those statutes and technically lacked the statutory authority to bring the underlying civil declaratory and injunctive suit (or any portion of it), the result here would not change. We have previously held that absolute prosecutorial immunity attaches where a government lawyer has carried out a prosecutorial function in a technically unauthorized manner. See Lerwill v. Joslin, 712 F.2d 435, 437–41 (10th Cir. 1983) (holding part-time city attorney absolutely immune from § 1983 suit based on attorney filing criminal charges against plaintiffs, even though the prosecution was initiated under statute that attorney was not authorized to invoke). And this is a not case where Torrez had “no colorable claim of authority” for filing the state suit. See id. at 439 (assuming that a prosecutor may lose his absolute immunity for such unauthorized prosecutorial acts). 9 Appellate Case: 24-2046 Document: 34-1 Date Filed: 07/10/2025 Page: 10

dishonest officers than to subject those who try to do their duty to the constant dread of retaliation.

Imbler, 424 U.S. at 428.

IV.

For the reasons stated, we AFFIRM.

Entered for the Court

Allison H. Eid Circuit Judge