In re Lopez

FLORA V. LOPEZ Plaintiff, v. BOARD OF COUNTY COMMISSIONERS FOR LEA COUNTY,the LEA COUNTY SHERIFF'S DEPARTMENT, JOHN DOE DEPUTIES 1 through 5, IN THEIR INDIVIDUALAND OFFICIAL CAPACITY, THE CITY OF HOBBS and the HOBBS POLICE DEPARTMENTand JOHN DOE OFFICERS 1 through 5, IN THEIR INDIVIDUAL AND OFFICIAL CAPACITY,CHIEF OF POLICE CHRIS MCCALL AND SHERIFF MARK C. HARGROVE, Defendants.

15-CV-0822 WPJ/LAM

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

March 4, 2016

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS COUNTS I, II, III, IV AND V OF PLAINTIFF'S COMPLAINT AS TO MOVANTS

THIS MATTER comes before the court upon a Motion to Dismiss Count I, Count II, Count III, Count IV and Count V of Plaintiff's Complaint, filed on December 14, 2015 by Defendants City of Hobbs, "The Hobbs Police Department," [sic] and Chief of Police Chris McCall (collectively "Hobbs Defendants") (Doc. 7). Having reviewed the parties' briefs and applicable law, the Court finds that Hobbs Defendants' motion is well-taken as to Counts I, II and III and, therefore, GRANTED as to these three counts; but is not well-taken as to Counts IV and V and, therefore, DENIED as to these two counts.

BACKGROUND

In this case, Plaintiff alleges that in September 2012, unknown deputies and police officers with the Lea County Sheriff's Department and City of Hobbs Police Department entered her home without a warrant searching for her son and used excessive force. According to the complaint, officers from the Hobbs Police Department, who were assisting Lea County Sheriff's deputies, jumped over Plaintiff's six-foot privacy fence, cut a rope and broke a lock on the security gate in the fence and came onto Plaintiff's property.

Plaintiff heard the dogs barking around her property and opened the front door of her home. The officers attempted to enter Plaintiff's home through the door. Plaintiff attempted to close the door, but the officers used the front door to pin Plaintiff against the wall of her home while the other officers entered the home with their weapons drawn. Plaintiff followed the officers outside and saw at least ten police cars outside her fenced property. While officers searched the house, Plaintiff pled with the officers not to kill her son, who was the apparent subject of the warrantless invasion. Plaintiff alleges that while she was begging for her son's life, Defendant Hargrove and other officers "grabbed her and pulled her away" and then left the scene. Compl., ¶ 19.

I. Causes of Action in the Complaint

The instant motion by the Hobbs Defendants seeks dismissal of Plaintiff's claims against the City of Hobbs and Chief of Police Chris McCall ("Chief McCall"). The complaint alleges the following:

Count I: Wrongful detention in violation of the New Mexico State Constitution as well as the Fourth Amendment of the United States Constitution, pursuant to 42 U.S.C. §1983;

Count II: Excessive use of force against the Plaintiff violated her rights under §1983 and the state constitution;

Count III: Warrantless Entry pursuant to §1983 and the state constitution;

Count IV: Supervisory Liability Claims against the Lea County Board of County Commissioners and the City of Hobbs;Count V: Request for punitive damages against the individual Defendants;

Count VI: Violations of the New Mexico Inspection of Public Records Act.

In setting out the claims in the complaint, Plaintiff's counsel makes no distinction between the individual defendants and the entities being sued, lumping all of the Defendants in all of the counts. As a result of the manner in which the Complaint was drafted, the Court has had difficulty determining with certainty which claims are being asserted against which Defendants, because the legal theories asserted by Plaintiff in the various counts of the Complaint do not apply equally to individuals and entities, particularly when some individual Defendants are being sued in their official capacities, and only two of the Hobbs Defendants are seeking relief through the instant motion.¹

Count IV is another example of imprecise pleading. Although it is described as a "Supervisory Liability" claim asserted against only the Lea County Board of County Commissioners and the City of Hobbs, it is actually a municipal liability claim based on the allegations made and the defendants involved. In this claim, Plaintiff alleges that the constitutional deprivations committed by the individual defendants were "the result of the policies, practices and procedures the [sic] Hobbs Police Department and the Lea County Sheriff's Department" and that the offending officers were not disciplined or given addition training "to prevent or discourage their conduct." Compl., ¶ 34. Count IV cannot reasonably be read to allege a supervisory liability claim because supervisory liability claims are properly asserted against individuals, and are not based on an entity's custom or policy. See Dodds v.Richardson, 614 F.3d 1185, 1195 (10th Cir. 2010) (supervisor may be liable for conduct of subordinate, although liability is not vicarious and requires some fault on part of supervisor); Schneider v. City of Grand Junction Police Dept, 717 F.3d 760, 767 (10th Cir. 2013) (noting that claims against supervisors are referred to as "supervisory liability" claims) (citing Meade v. Grubbs, 841 F.2d 1512, 1527 (10th Cir.1988)); Sutton v. Utah State School for the Deaf & Blind, 173 F.3d 1226, 1238 (10th Cir. 1999) ("a supervisor may be individually liable under §1983 if he directly participates in a constitutional violation. . . ."). Allegations which complain that police officers are not adequately disciplined or provided relevant training to discourage the alleged conduct form the basis for claims against governmental entities, not individual supervisory officials. The Court will therefore assume that Count IV is alleged as a municipal liability claim against Defendants Lea County and the City of Hobbs.²

II. Legal Standard

To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Although a court must accept all the complaint's factual allegations as true, the same is not true of legal conclusions. Id. Mere "labels and conclusions" or "formulaic recitation[s] of the elements of a cause of action" will not suffice. Twombly, 550 U.S. at 555. "Thus, in ruling on a motion to dismiss, a court should disregard all conclusory statements of law and consider whether the remaining specific factual allegations, if assumed to be true, plausibly suggest the defendant is liable." Kan. Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1214 (10th Cir. 2011).

Plaintiff maintains that the complaint satisfies Fed.R.Civ.P. 8(a)(2), which requires a complaint to contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Thus, the question here is whether, under the Iqbal/Twombly standard the complaint contains enough allegations of fact, taken as true "to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570, cited in Collins, 565 F.3d at 1214.

DISCUSSION

I. Sufficiency of Facts

The Hobbs Defendants contend that Plaintiff's federal claims should be dismissed against the City of Hobbs, Chief McCall in his official and individual capacities, and the Hobbs Police Department.

A. Defendants City of Hobbs and Chief McCall in Official Capacity

Counts I, II and III alleging wrongful detention, excessive use of force and warrantless entry, are directed against all Defendants, which would include Defendant City of Hobbs ("City") and Chief McCall in his official capacity.

1. Chieft McCall

For purposes of claims brought under §1983, a lawsuit naming Chief McCall in his official capacity is the same as a lawsuit against the City. See Kentucky v. Graham, 473 U.S. 159, 165 (1985) (official capacity suit is treated as a suit against the state); Greiss v. Colorado, 841 F.2d 1042, 1045 (10th Cir. 1988). Chief McCall accurately observes that Plaintiff's federal claims against him in his official capacity should be dismissed. Plaintiff fails to give any legal reason why Chief McCall's request should not be granted, she merely argues that the dismissal of Chief McCall in his official capacity is the same as a finding that McCall "could never be liable." Doc. 8 at 6. In the hope of dispelling Plaintiff's misconception of this issue, the Courtemphasizes that the dismissal of federal claims against Chief McCall in his official capacity is not a finding of non-liability but rather of redundancy because of the fact that the City is already a defendant in this lawsuit. In other words, Chief McCall in his official capacity is the City. See Moore v. Tulsa, 55 F.Supp.3d 1337, 1349 (N.D.Okla.,2014) (noting that where a government entity is already a defendant," any official capacity claims against its employees are redundant and may be dismissed") (citing Kentucky v. Graham, 473 U.S. at 166); Brandon v. Holt, 469 U.S. 464 (1985) (asserting an official capacity suit against a city department's official is sufficient to name the municipality itself) (citing Monell v. Dept. of Social Services, 436 U.S. 658 (1978)). Chief McCall still remains a named defendant in this lawsuit in his individual capacity, unless and until there is a legal basis for his dismissal.

2. City of Hobbs

The question then becomes whether Plaintiff has sufficiently alleged a claim against the City to withstand the motion to dismiss. The City cannot be held liable under §1983 based only on respondeat superior or vicarious liability. Monell, 436 U.S. 658; Mitchell v. Maynard, 80 F.3d 1433, 1441 (10th Cir. 1996). Municipalities or governmental entities are subject to § 1983 liability only for their official policies or customs, the execution of which causes...