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Mohammad v. Albuquerque Police Department

United States District Court, D. New Mexico

January 31, 2017



          Laura Fashing, United States Magistrate Judge

         THIS MATTER comes before the Court on defendant Albuquerque Police Department's Motion to Dismiss Plaintiff's Complaint with Prejudice, filed on July 12, 2016, and fully briefed on August 5, 2016. Docs. 8, 12, 15, 16. Having reviewed the submissions of the parties and the relevant law, I find that the motion is well taken in part and recommend that the Court grant the motion in part and deny it in part. I also recommend that Albuquerque Police Department Officers Gil Vovigio and Daniel Yurcisin be added to the caption as defendants.

         I. Background Facts[1] and Procedural Posture

         Khalid Mohammad initiated this lawsuit in the Second Judicial District Court for the State of New Mexico, naming the Albuquerque Police Department (“APD”) as the sole defendant. Doc. 1-1 at 1. In the body of his complaint, Mr. Mohammad alleges that on August 6, 2013, he was detained by a Walmart loss prevention employee, Renee Gonzales, who reported to APD Officer Gil Vovigio that she had observed Mr. Mohammad shoplifting on the store's closed-circuit video surveillance system. Id. at 3; Doc. 8 at 3 (identifying Officer Gil Vovigio). Officer Vovigio issued a no trespass notice to Mr. Mohammad along with a citation for him to appear in the Metropolitan Court. Doc. 1-1 at 3. Officer Vovigio further notified Mr. Mohammad that “a warrant for [his] arrest will issue as a direct result of [his] departure from the city of Albuquerque prior to a disposition of the shoplifting charge . . . .” Id. APD never prosecuted Mr. Mohammad for shoplifting. Id. at 4.

         On November 14, 2014, Mr. Mohammad filed a civil lawsuit in the Metropolitan Court against APD, Officer Vovigio, Walmart, and Gonzales (“Metro Court lawsuit”). Id. As part of his lawsuit, Mr. Mohammad filed a motion asking the court to issue a subpoena duces tecum for a copy of the Walmart video surveillance recordings. Id. On January 10, 2015, the day after filing his motion, APD Officer Daniel Yurcisin arrested Mr. Mohammad and threatened to imprison him until he pled guilty to the Walmart shoplifting charge. Id. When Mr. Mohammad denied that he was shoplifting at Walmart, Officer Yurcisin imprisoned Mr. Mohammad in the Metropolitan Detention Center (“MDC”). Id. On March 6, 2015, while Mr. Mohammad was incarcerated at MDC, Metropolitan Court Judge Fitzwater dismissed his Metro Court lawsuit for his failure to appear. Id. On February 24, 2016, almost a year after his lawsuit was dismissed, Mr. Mohammad was released from MDC without having been prosecuted. Id.

         In the section of his complaint entitled “Cause of Action, ” Mr. Mohammad states that he is bringing a cause of action against APD for the actions of Vovigio. Specifically, he alleges, “APD is sued for [Vovigio's] act to detain and imprison the plaintiff on August 6, 2013 and continue the plaintiff's imprisonment, indefinitely, without prosecuting the plaintiff.” Id. at 5. He does not specifically state a claim against Officer Yurcisin in this section.

         APD moves to dismiss Mr. Mohammad's complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. Doc. 8. Specifically, APD contends that Mr. Mohammad's complaint must be dismissed because it is not a suable entity under § 1983. APD further contends that Mr. Mohammad's claims pursuant to the New Mexico Tort Claims Act (“NMTCA”) should be dismissed for his failure to comply with the notice provisions, and because his claims are time-barred.

         II. Motions to Dismiss under Rule 12(b)(6)

         Federal Rule of Civil Procedure 12(b)(6) provides for dismissal for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). The Supreme Court has articulated a two-step approach for district courts to use when considering a motion to dismiss. See Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). First, a court must identify the adequately pleaded factual allegations contained in the complaint, disregarding any legal conclusions in the process. Id. at 678. While a complaint need not include detailed factual allegations, it must contain “more than an unadorned, the-defendant-unlawfully harmed-me accusation.” Id.

         Next, having identified the adequately pleaded facts, the Court “should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Id. at 679. Stated concisely, “[t]o 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.” Id. at 678. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556). In making this determination, the court views the complaint in the light most favorable to the plaintiff. Schrock v. Wyeth, Inc., 727 F.3d 1273, 1280 (10th Cir. 2013); see also Park Univ. Enters., Inc. v. Am. Cas. Co. of Reading, PA, 442 F.3d 1239, 1244 (10th Cir. 2006) (Court should “accept all facts pleaded by the non-moving party as true and grant all reasonable inferences from the pleadings in favor of the same.”).

         In this case, Mr. Mohammad fails to state a claim against APD because APD is not a suable entity under § 1983. Further, Mr. Mohammad's claims against APD under the NMTCA fail because he did not comply with the notice provisions and his claims are time-barred.

         III. Discussion

         A. APD is not a suable entity.

         In the instant motion, APD seeks dismissal of Mr. Mohammad's complaint because it is not a suable entity. Mr. Mohammad alleges that APD is a law enforcement agency for the City of Albuquerque. Doc. 1-1 at 2. Administrative departments of municipalities-such as law enforcement agencies-lack legal identities apart from the municipality itself. As such, they are not suable entities, and claims against them are subject to dismissal under Fed.R.Civ.P. 12(b)(2). See Henry v. Albuquerque Police Dep't, 49 F. App'x 272, 274 n.1 (10th Cir. 2002) (unpublished) (“The district court properly relied on an unpublished decision from this court holding that the Albuquerque Police Department lacks a legal identity apart from the City of Albuquerque.”); Biehl v. Salina Police Dep't, 256 F. App'x 212, 215 (10th Cir. 2007) (unpublished) (citing Martinez v. Winner, 771 F.2d 424, 444 (10th Cir. 1985)); Ketchum v. Albuquerque Police Dep't, 958 F.2d 381, *2 (10th Cir. 1992) (unpublished); Dean v. Barber, 951 F.2d 1210, 1214 (11th Cir. 1992) (“Sheriff's departments and police departments are not usually considered legal entities subject to suit.”); see also Stump v. Gates, 777 F.Supp. 808, 816 (D. Colo. 1991) (“[L]ocal government departments have no greater separate identity from cities than do their officials when they are ...

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