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Jan. 22, 2026 Get Citation Alerts Download PDF Add Note

Dilley v. New Mexico Corr. Dep't

New Mexico Court of Appeals

• Citations: None known
• Docket Number: Unknown

• Precedential Status: Non-Precedential

• Opinion

• Authorities (4)

• Cited By (0)

• Summaries (0)

• Similar Cases (18.8K)

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Combined Opinion

This decision of the New Mexico Court of Appeals was not selected for publication in
the New Mexico Appellate Reports. Refer to Rule 12-405 NMRA for restrictions on the
citation of unpublished decisions. Electronic decisions may contain computer-
generated errors or other deviations from the official version filed by the Court of
Appeals.

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

No. A-1-CA-41750

ROBERT F. DILLEY,

Plaintiff-Appellant,

v.

NEW MEXICO CORRECTIONS
DEPARTMENT, BERNALILLO COUNTY
DISTRICT ATTORNEY’S OFFICE, and
SECOND JUDICIAL DISTRICT COURT,

Defendants-Appellees.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Jason Lidyard, District Court Judge

Law Office of Stephen B. Waller, LLC
Stephen B. Waller
Albuquerque, NM

for Appellant

Alcaraz Law, P.A.
Jordi Kandarian
Jason R. Alcaraz
Albuquerque, NM

for Appellees

MEMORANDUM OPINION

YOHALEM, Judge.

{1} This appeal is before this Court on remand from certification under Rule 12-606
NMRA to our Supreme Court. Our Supreme Court held this matter in abeyance pending
the Court’s disposition in Bolen v. New Mexico Racing Commission, 2025-NMSC-034,
578 P.3d 1121. Our Supreme Court having issued an opinion in Bolen on June 2, 2025,
the Supreme Court remanded this appeal to this Court for further proceedings
consistent with Bolen. We now address the issues raised by Plaintiff Robert F. Dilley, in
light of our Supreme Court’s opinion in Bolen, and affirm.

{2} Plaintiff appeals from the district court’s dismissal of his complaint for money
damages under the New Mexico Civil Rights Act (CRA), NMSA 1978, §§ 41-4A-1 to -13
(2021).1 Plaintiff, the victim of a felony, sued the Second Judicial District Court, the
Bernalillo County District Attorney’s Office, and the New Mexico Corrections
Department (NMCD) (collectively, Defendants). Plaintiff alleges in his complaint that a
judge in the Second Judicial District Court, prosecutors in the Bernalillo County District
Attorney’s Office, and a probation officer employed by the NMCD each failed to ensure
that that an order of restitution was entered by the district court before the criminal
defendant responsible for Plaintiff’s injuries was released from probation. As required by
Section 41-4A-3(C) of the CRA, Plaintiff sued only the public bodies under whose
authority the judge, prosecutor, and probation officer acted. Plaintiff’s complaint relies
on Article II, Section 24(A)(8) of the New Mexico Constitution, a section of the Bill of
Rights, which establishes the right of the victims of certain listed crimes to receive
restitution from the criminal defendant who caused their injury. See NMSA 1978, § 31-
17-1 (2005) (implementing victim restitution statute). The sole issue raised by Plaintiff
on appeal is whether common law absolute judicial immunity, including prosecutorial
immunity and immunity for probation officers and others acting as an arm of the court,
extends to the public bodies on whose behalf the judges, prosecutors, and probation
officers serve.

{3} We conclude that our Supreme Court’s holding in Bolen that common law judicial
immunity is a defense available to public bodies that are defendants under the CRA
applies to this case. See Bolen, 2025-NMSC-034, ¶ 48. We therefore affirm the district
court’s dismissal of the complaint in this matter. We briefly explain our reasoning.

{4} Plaintiff was the victim of the crime of great bodily injury by vehicle in March
2014, a crime that is included in the constitutional provision giving victims of certain
crimes a right to restitution. See N.M. Const. art. II, § 24(A)(8). The criminal defendant
who committed the crime that injured Plaintiff was prosecuted by the Bernalillo County
District Attorney’s Office and, following her conviction, was required by an order entered
by a judge in the Second Judicial District Court to pay restitution “as determined by the
probation authorities.” A probation officer was assigned to the criminal defendant by the
NMCD’s probation office to develop a restitution plan and make a recommendation to
the district court as to the amount and schedule of payment.

{5} The New Mexico Constitution’s Bill of Rights, Article II, Section 24(A)(8), provides
in relevant part that a victim of certain felonies, including great bodily injury by vehicle,
the crime which injured Plaintiff, “shall have . . . the right to restitution from the person
convicted of the criminal conduct that caused the victim’s loss or injury.” The

1This appeal concerns only the dismissal of Plaintiff’s claim for damages—Counts I, II, III, IV, and IX of
the first amended complaint.
constitution requires the Legislature to enact implementing legislation prior to the
provision becoming effective. See N.M. Const. art. II, § 24(C). The Legislature enacted
Section 31-17-1 setting forth the procedure to be followed after a criminal conviction to
require a criminal defendant to pay restitution. Section 31-17-1 assigns to the trial court,
as part of the court’s sentencing procedure, the role of deciding whether restitution is
required, and setting the amount and conditions of restitution by court order. Section 31-
17-1(B). The criminal defendant’s probation officer is charged with preparing a plan of
restitution, and recommending to the trial court an amount and schedule of repayment.
Section 31-17-1(B), (C); see State v. Carrasco, 1997-NMCA-123, ¶ 9, 124 N.M. 320,
950 P.2d 293 (“Although the trial court may request that an inquiry into [the d]efendant’s
ability to pay be made by a probation officer, it is mandatory that the actual
determination of [the d]efendant’s ability to pay be made by the court.”).

{6} The trial court, after reviewing the probation officer’s recommendation, is charged
with entering an order either approving the plan, disapproving it, or modifying it based
on the policy guidance provided by the statute. Section 31-17-1(C). The victim of the
crime is permitted to enforce the court’s order to pay restitution against the criminal
defendant in the same manner as a civil judgment. Section 31-17-1(D).

{7} Section 41-4A-3(B) of the CRA provides that “[a] person who claims to have
suffered a deprivation of any rights, privileges or immunities pursuant to the bill of rights
of the constitution of New Mexico due to acts or omissions of a public body or person
acting on behalf of, under color of or within the course and scope of the authority of a
public body may maintain an action to establish liability and recover actual damages
and equitable or injunctive relief in any New Mexico district court.”

{8} Plaintiff’s complaint for violation of the CRA alleges that the judge in the Second
Judicial District Court, who was required by statute to enter an order of restitution as
part of the criminal defendant’s sentence under the New Mexico Constitution’s Bill of
Rights, failed to do so; the prosecutor assigned to the case by the Bernalillo County
District Attorney’s Office failed to pursue the order in a scheduled court hearing, and did
not reschedule the hearing despite a request from the court to do so; and the probation
officer assigned to the criminal defendant responsible for Plaintiff’s injuries failed to
timely seek a restitution order from the trial court. Plaintiff’s complaint also alleges that
all three failed to adequately inform Plaintiff of the progress of the restitution plan, as
allegedly required by Article II, Section 24(9) of the New Mexico Constitution. Plaintiff
claims in his complaint that these actions and omissions caused him to be deprived of
his rights and privileges under the New Mexico Constitution’s Bill of Rights, thereby
violating the CRA.

{9} The three public bodies that Plaintiff named in the complaint—the Second
Judicial District Court, the Bernalillo County District Attorney’s Office, and the NMCD—
filed a joint motion to dismiss the complaint on the basis that each defendant public
body was protected by absolute common law judicial immunity. Defendants argued that
Section 41-4A-10 of the CRA, which specifically provides that the waiver of sovereign
immunity in Section 41-4A-9 “shall not abrogate judicial immunity, legislative immunity,
or any other constitutional, statutory, or common law immunity” applied to public body
defendants, and that public bodies were equally entitled to absolute common law
immunity as were the individuals—the judge, the prosecutor, and the probation officer—
who acted on behalf of or under color of law for the public bodies.

{10} The district court agreed, concluding that under the facts pleaded in the
complaint, judicial immunity plainly applied to the conduct of the individuals who acted
on behalf of each public body, and that the public bodies who are the defendants in a
CRA case are equally entitled to absolute judicial immunity if the individuals who acted
on their behalf would be entitled to such immunity. The district court relied on Section
41-4A-10 of the CRA.

{11} Plaintiff makes three arguments on appeal: (1) “absolute immunity appl[ies] only
to individuals rather than to judicial or other governmental entities”; (2) no immunity of
any sort other than sovereign immunity is available to public bodies by analogy to
federal official-capacity claims under 42 U.S.C. § 1983; and (3) as a matter of public
policy, the Legislature’s choice to provide a remedy for violations of the bill of rights in
the CRA outweighs the policy interests protected by judicial immunity.

{12} An order granting or denying a motion to dismiss raises a question of law that we
review de novo. Garcia v. Dorsey, 2006-NMSC-052, ¶ 13, 140 N.M. 746, 149 P.3d 62.
Questions of immunity and issues of statutory interpretation are also reviewed de novo
by this Court. See Hunnicutt v. Sewell, 2009-NMCA-121, ¶ 8, 147 N.M. 272, 219 P.3d
529 (reviewing question of immunity); Morris v. Brandenburg, 2016-NMSC-027, ¶ 14,
376 P.3d 836 (reviewing question of statutory interpretation).

{13} All three of the arguments raised by Plaintiff on appeal are directly addressed by
our Supreme Court’s opinion in Bolen. First, Bolen holds that “a public body may raise
judicial immunity as an affirmative defense to claims brought pursuant to the CRA.”
2025-NMSC-034, ¶ 2. Second, Bolen reviews and rejects the analogy to 42 U.S.C.
§ 1983 argued by Plaintiff, noting that although the CRA, like § 1983, waives sovereign
immunity for civil rights actions under the statute, the CRA, unlike § 1983, “explicitly
preserves other immunity defenses,” Bolen, 2025-NMSC-034, ¶ 14, by providing in
Section 41-4A-10 of the CRA that the CRA’s “‘prohibition on the use of the defense of
qualified immunity pursuant to [Section 41-4A-4 of the CRA] and the waiver of sovereign
immunity pursuant to [Section 41-4A-9 of the CRA] shall not abrogate judicial immunity,
legislative immunity or any other constitutional, statutory or common law immunity.’”
Bolen, 2025-NMSC-034, ¶ 14 (quoting § 41-4A-10 (emphasis added)). The Bolen Court
relies on this plain statutory language, deciding that Section 41-4A-10 of the CRA would
be “meaningless” if it prohibited common law immunity defenses when asserted by a
public body, since only public bodies are subject to suit under the CRA. Bolen, 2025-
NMSC-034, ¶ 20; see § 41-4A-3(C) (limiting the defendants in a CRA action to public
bodies).

{14} Third, our Supreme Court also addresses the policy argument raised as Plaintiff’s
final argument on appeal. Bolen rejects the argument that policy considerations require
limiting judicial and the other related common law immunities to individuals only. The
Court concludes that the policy reasons for judicial immunity, including the related
judicial or quasi-judicial immunity for prosecutors in the performance of their duties of
advocacy in court, and for probation officers when functioning as an arm of the court,
are primarily intended to protect the judicial function—the office and not the person. See
Bolen, 2025-NMSC-034, ¶¶ 18, 22, 25. Bolen holds that judicial immunity properly
applies to the public bodies on whose behalf judges, prosecutors, and probation officers
act, so long as the judges, prosecutors, and probation officers are “participat[ing] in the
adjudicatory process,” id. ¶ 24 (internal quotation marks and citation omitted), and
“performing a judicial function,” id. ¶ 33. The Court notes that “[i]f we were to hold that
judicial immunity protects individuals but not entities, then litigants who are dissatisfied
with a judge’s order could circumvent the purpose and effects of the doctrine simply by
suing the judicial entity instead of an individual judge.” Id. ¶ 25. The Court concludes
that this is not what the Legislature intended. See id.

{15} Additionally, our Supreme Court acknowledges the possibility of some conflict
between the purpose of the CRA—providing a remedy to those deprived of
constitutional rights—and the purpose of absolute judicial immunity: protecting the
integrity of the court and those performing a judicial function integral to the court
proceedings. Id. ¶ 32. The Court expresses its confidence that these interests can be
balanced as long as the absolute judicial privilege is limited to persons, and to the public
entities that employ them, that are participating in the adjudicatory process or
performing judicial functions. See id. (stating that “judicial immunity can be applied
consistently with the CRA if it is tailored to promote the doctrine’s underlying rationale”).

{16} Plaintiff has not challenged the district court’s conclusion that under the pleaded
facts, all three individuals who were acting respectively on behalf of the Second Judicial
District Court, the Bernalillo County District Attorney’s Office, and the NMCD, were
either directly performing a judicial function (in the case of the judge); were engaging in
conduct associated with the judicial phase of an active criminal case in state district
court (in the case of the prosecutor); or serving as an extension or arm of the court (in
the case of the probation officer).2

{17} We affirm the district court’s order dismissing Plaintiff’s CRA claims.

{18} IT IS SO ORDERED.

2We note that unlike Bolen, this appeal does not involve a claim of quasi-judicial immunity for
administrative proceedings, where further inquiry may be required to determine whether the adjudicatory
proceeding “shares enough of the characteristics of the judicial process to warrant the extension of
judicial immunity to the proceedings and (2) whether the conduct at issue consists of a judicial function.”
See Bolen, 2025-NMSC-035, ¶ 38; see also id. ¶¶ 44-47 (remanding for limited factual inquiry). In
contrast to Bolen, in this case the claims arise in the context of a criminal case proceeding in state district
court before a district court judge. Judicial immunity for the judge, the prosecutor, and the probation
officer under the circumstances pleaded is settled law, reaffirmed in our Supreme Court’s opinion in
Bolen. See 2025-NMSC-034, ¶ 24 (providing immunity to judges and prosecutors participating in a court
proceeding); id. ¶ 35 (extending immunity to probation officers acting as an arm of the court).
JANE B. YOHALEM, Judge

WE CONCUR:

JACQUELINE R. MEDINA, Chief Judge

JENNIFER L. ATTREP, Judge