Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Ross v. Balderas

United States District Court, D. New Mexico

January 31, 2017

ANDREW ROSS and SUSAN GERARD, Plaintiffs,
v.
HECTOR BALDERAS, JR., ROBERT GARCIA, SARAH MICHAEL SINGLETON, FRANCIS J. MATHEW, RAYMOND Z. ORTIZ, DAVID K. THOMPSON, JENNIFER ATTREP, T. GLENN ELLINGTON, SYLVIA LAMAR, DONITA OLYMPIA SENA, DONNA BEVACQUA-YOUNG, PAT CASADOS, FRANK SEDILLO, WILLIAM PACHECO, ANTONIO GUTIERREZ, ANNA MONTOYA, JUDAH BEN MONTANO, A. ARROYO, E. MONTIJO, MICHELLE PORTILLO, STEPHEN T. PACHECO, JANE GAGNE, JOYCE BUSTOS, LYNN PICKARD, PAMELA REYNOLDS, ROBIN MARTINEZ, ROBERT RICHARDS, BRENDA WALL, AUDREY MONTOYA, and ALLSTATE INSURANCE, INC., Defendants.

          Arash “Asher” Kashanian, Albuquerque, New Mexico, for Plaintiffs.

          Luis Robles and Jordon George, Robles, Rael & Anaya, P C, Albuquerque, New Mexico, for City Defendants Judah Ben Montano, A. Arroyo, and E. Montijo.

          ORDER GRANTING CITY DEFENDANTS' MOTION TO DISMISS PLAINTIFFS' AMENDED COMPLAINT

         THIS MATTER comes on for consideration of the City Defendants' (Santa Fe police officers Judah Ben Montano, A. Arroyo, and E. Montijo) 12(b)(6) Motion to Dismiss Plaintiffs' Amended Complaint filed December 15, 2016. Doc. 90. Upon consideration thereof, the Motion is well taken and should be granted.

         Background

         What began as a landlord-tenant dispute between Plaintiffs Andrew Ross and Susan Gerard (tenants) and Defendant Brenda Wall (landlord), evolved into an 89-page amended complaint alleging two counts (§ 1983 and RICO) against various defendants, including Defendant Wall's attorney, Robert Richards. In pertinent part, Plaintiffs allege that Defendant Wall made false allegations and/or bribed Santa Fe police officers to assist her in entering the rental property. Am. Compl. (Doc. 8) ¶ 47. According to the amended complaint, Defendant Richards directed Wall to use the Santa Fe police “as a tool for harassment, to obstruct justice, and to extort or conspire to extort against Plaintiffs, ” with Defendant Montano as the “point man.” Id. at ¶ 54. Supposedly, Defendants Wall and Richards “provided Montano with money, gifts, and/or sexual favors” and joined with Defendant Hector Balderas to facilitate unlawful entry into the rental property. Id. at ¶¶ 72, 315.

         Plaintiffs allege an “incident of police criminal trespass and false imprisonment and severe violation of civil rights” occurred on June 10, 2016, when Defendant Wall appeared at the property with four Santa Fe police officers escorting her. Id. at ¶ 73.

The officers demanded to enter Gerard's property, and when Ross refused, they threatened the couple with arrest. Two of the officers, Defendants Arroyo and Montijo, then entered Gerard's residence at 2990 UNAUTHORIZED, without a warrant, without exigent circumstances, and without any justification whatsoever. Gerard and Ross were half dressed when the officers entered, and the officers ordered the two to get dressed but otherwise wouldn't let Gerard and Ross move around inside their own home. Thus the officers held Gerard and Ross captive in their home for a period in excess of half an hour while threatening them with arrest and/or great bodily harm while searching the residence. The officers ordered them not to move, and not to get near Brenda Wall, when in fact, it was Wall who had assaulted Gerard.

Id. As RICO predicate acts, Plaintiffs allege that the City Defendants committed “obstruction of justice, extortion, and conspiring to commit extortion, and aiding and abetting extortion.” Id. at ¶¶ 314, 317, 319. They seek injunctive relief to prevent future civil rights violations (Defendant Montano), compensatory damages of $1.776 billion, punitive damages, as well as costs and attorneys' fees. Id. at ¶¶ 429; Prayer at 87, ¶¶ 1, 2(b), 6, 8.

         Discussion

         Rule 12(b)(6) is an important tool “for weeding out meritless claims.” Fifth Third Bancorp v. Dudenhoeffer, 134 S.Ct. 2459, 2471 (2014). A complaint may be dismissed for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6).

         Although a court is required to take all well-pleaded factual allegations as true in ruling on a motion to dismiss, a court is not required to accept legal conclusions appearing as factual allegations. Wood v. Moss, 134 S.Ct. 2056, 2065 n.5 (2014). Rather, a plaintiff must allege sufficient facts for the court to conclude that the complaint is plausible on its face, meaning that the complaint creates a reasonable inference that a defendant is responsible for the injury alleged. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

         This means moving beyond conceivable or possible to plausible. Ashcroft v. Iqbal, 556 U.S. 662, 678-80 (2009). The Court's understanding of Rule 12(b)(6) is aided by Rule 8(a)(2), which requires “a short and plain statement of the claim” showing entitlement to relief.

         A. Section 1983

         Plaintiffs have clarified that they are suing the City Defendants in their official capacities on the § 1983 claims, and in their individual capacities for RICO violations. Doc. 100 at 3. The § 1983 claims must be dismissed against the City Defendants. First, a suit against a municipal or state official in his or her official capacity is a suit against that person's office, and no different than a suit against the governmental entity itself. Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989). As such, Plaintiffs must allege a municipal custom or policy, and respondeat superior as a ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.