United States District Court, D. New Mexico
JACKIE MARTINEZ, as Personal Representative on behalf of the Estate of Russell Martinez, Plaintiff,
JOSEPH SALAZAR, in his individual capacity, GREG ESPARZA, in his individual capacity, THE ESPANOLA DEPARTMENT OF PUBLIC SAFETY, LEO MONTOYA, and THE CITY OF ESPANOLA, Defendants.
MEMORANDUM OPINION AND ORDER
matter comes before the Court upon Defendant Joseph Salazar,
Greg Esparza, the Espanola Department of Public Safety, Leo
Montoya, and the City of Espanola's
(“Defendants'”) Motion to Dismiss for Failure
to State a Claim and Memorandum of Law in Support
(“Motion to Dismiss”), filed on July 14, 2015.
(Doc. 93). Plaintiff filed a response on July 31, 2015, and
Defendants filed a reply on August 14, 2015. (Docs. 96 and
97). Having reviewed the Motion to Dismiss and the
accompanying briefs, the Court GRANTS IN PART and DENIES IN
PART the Motion to Dismiss.
a police excessive force case arising from interactions
between Russell Martinez (“Mr. Martinez”) and
Defendants Joseph Salazar and Greg Esparza on May 11, 2012.
Mr. Martinez originally filed this case on May 5, 2014, in
the First Judicial District Court, County of Rio Arriba, New
Mexico. (Doc. 1-1). Defendants later removed the case to this
Court on June 6, 2014. (Doc. 1). Subsequently, Mr. Martinez
filed his First Amended Complaint for Damages Resulting from
Civil Rights Violations, Intentional Torts, Negligence, and
Violations of Title II of the Americans with Disabilities Act
(“Amended Complaint”). (Doc. 88).
Amended Complaint, Plaintiff alleges that Mr. Martinez is
paraplegic, has had his lower left leg amputated, and has no
feeling in his lower body. Id. at 3:10. On May 11,
2012, Mr. Martinez and his wife, Mrs. Jackie Martinez, had an
argument in their car in a parking lot. Id. at
3:11-12. During the argument, bystanders called the police,
and Espanola Police Department Officer Joseph Salazar
(“Defendant Salazar”) arrived at the scene.
Id. at 3:12-13. Mrs. Martinez spoke to Defendant
Salazar and told him that Mr. Martinez was paraplegic,
immobile, and unable to drive. Id. at 3:14. Mr.
Martinez remained in the car. Id. at 3:13. While
investigating the incident, Defendant Salazar approached the
car and asked Mr. Martinez to exit the vehicle. Id.
at 3:16. Mr. Martinez responded that he is immobile.
Id. Defendant Salazar then pulled Mr. Martinez from
his car, beat him, and drive stunned him with a taser,
despite the fact that he could not move his lower body.
Id. at 4:17-18. During the encounter, Officer Greg
Esparza (“Defendant Esparza”) arrived on the
scene and shot Mr. Martinez in the chest with a taser.
Id. at 4:21. As a result, Mr. Martinez suffered
excruciating pain and injuries, and was transported to
Espanola Hospital. Id. at 4:22-23. Although
Defendant Salazar claimed in a police report that Mr.
Martinez had committed the offense of Battery Upon a Peace
Officer, neither Defendant Salazar nor Defendant Esparza ever
brought charges against Mr. Martinez. Id. at 4:24.
on these allegations, the Amended Complaint alleges four
counts. In Count I, Plaintiff brings 42 U.S.C. § 1983
excessive force claims against Defendants Salazar and
Esparza. (Doc. 88) at 5. In Count II, Plaintiff brings New
Mexico Tort Claims Act (“NMTCA”) claims against
Salazar and Esparza for the intentional torts of assault,
battery, false arrest, and violation of the United States and
New Mexico constitutions. Id. at 5-6. In addition,
the Amended Complaint alleges respondeat superior
claims against the Espanola Department of Public Safety
(“EDPS”) and the City of Espanola for the
intentional torts allegedly committed by Salazar and Esparza.
Id. In Count III, Plaintiff brings state negligence
claims against Joe Montoya, the Director of the EDPS, for
negligently hiring, training, and/or supervising Salazar and
Esparza, and thereby causing Salazar and Esparza to commit
the intentional torts listed in Count II. Id. at
6-7. The Amended Complaint also alleges that EDPS and the
City of Espanola are liable for Montoya's negligent
actions under respondeat superior. Id. at
7. Finally, in Count IV, Plaintiff asserts claims under Title
II of the Americans with Disabilities Act (“ADA”)
against the EDPS and the City of Espanola for failing to
reasonably accommodate Mr. Martinez's disability in the
course of questioning, interacting with, and detaining him.
now move to partially dismiss the Amended Complaint for
failure to state a claim pursuant to Federal Rule of Civil
Procedure 12(b)(6). (Doc. 93). As grounds for dismissal,
Defendants first argue that Plaintiff's claims pursuant
to the ADA under a “wrongful arrest” theory must
be dismissed, since Plaintiff does not adequately allege that
Defendants wrongfully arrested Mr. Martinez because they
misperceived the effects of his disability as criminal
activity. (Doc. 93) at 4-6. Second, Defendants contend that,
to the extent Plaintiff asserts Section 1983 claims for
Defendants' failure to accommodate Mr. Martinez's
disability, Defendants are entitled to qualified immunity on
that claim, because that right was not clearly established at
the time of the encounter. Id. at 6-9. Plaintiff
opposes the Motion to Dismiss in its entirety. (Doc. 96). In
the event the Court finds Plaintiff's allegations
insufficient to state a claim, Plaintiff asks that she be
granted leave to amend the Amended Complaint. Id. at
Standard of Review
reviewing a Rule 12(b)(6) motion asserting a failure to state
a claim upon which relief can be granted, the Court must
accept all well-pleaded allegations as true and must view
them in a light most favorable to the plaintiff. Zinermon
v. Burch, 494 U.S. 113, 118 (1990). Rule 12(b)(6)
requires that a complaint set forth the grounds of a
plaintiff's entitlement to relief through more than
labels, conclusions and formulaic recitation of the elements
of a cause of action. See Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). To survive a 12(b)(6)
motion to dismiss, a complaint does not need to include
detailed factual allegations, but “[f]actual
allegations must be enough to raise a right to relief above
the speculative level.” Id. In other words,
dismissal of a complaint under Rule 12(b)(6) is proper only
where it is obvious that the plaintiff failed to set forth
“enough facts to state a claim to relief that is
plausible on its face.” Id. at 570. Dismissal
with prejudice is appropriate where a complaint fails to
state a claim under Rule 12(b)(6) and granting leave to amend
would be futile. Brereton v. Bountiful City Corp.,
434 F.3d 1213, 1219 (10th Cir. 2006).
move to partially dismiss two of the four counts alleged in
the Amended Complaint for failure to state a claim. The Court
will address each in turn.
Plaintiff's Claims under the ADA
first argue that this Court should partially dismiss
Plaintiff's claims under the ADA in Count IV of the
Amended Complaint. Under the ADA, two cognizable theories of
liability exist: (1) “wrongful arrest;” and (2)
“failure to accommodate” a disability. Defendants
do not challenge Plaintiff's claims under the
“failure to accommodate” theory. Rather,
Defendants argue that the Amended Complaint fails to state a
claim under the “wrongful arrest” theory because
Plaintiff does not allege that Defendants wrongfully arrested
Mr. Martinez because they misperceived the effects of his
disability as criminal activity. In response, Plaintiff
argues that, under the facts alleged in the Amended
Complaint, it is plausible that Defendant Salazar
misperceived Mr. Martinez's inability to follow orders,
as a result of his paraplegia, as unlawful conduct, which led
to the assault and detention of Mr. Martinez. Thus, Plaintiff
contends that she has plausibly alleged a “wrongful
arrest” claim under the ADA.
ADA Claims Based on Police Conduct During an Arrest or
Title II of the ADA, “no qualified individual with a
disability shall, by reason of such disability, be excluded
from participation in or be denied the benefits of such
services, programs or activities of a public entity, or be
subjected to discrimination by any such entity.” 42
U.S.C. § 12132. In the Tenth Circuit, a plaintiff must
prove three factors to establish a claim under Title II: (1)
that he or she is a qualified individual with a disability;
(ii) that he or she was either excluded from participation in
or denied the benefits of some public entity's services,
programs, or activities, or the public entity otherwise
discriminated against the plaintiff; and (iii) that such
exclusion, denial of benefits, or discrimination was by