United States District Court, D. New Mexico
“Asher” Kashanian, Albuquerque, New Mexico, for
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
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
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 ¶¶
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
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.
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).
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).
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.
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 ...