United States District Court, D. New Mexico
PROPOSED FINDINGS AND RECOMMENDED
Fashing, United States Magistrate Judge
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
Background Facts and Procedural Posture
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.
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.
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.
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.
Motions to Dismiss under Rule 12(b)(6)
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.
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.”).
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.
APD is not a suable entity.
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 ...