Searching over 5,500,000 cases.

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.

Montes v. Pinnacle Propane, LLC

United States District Court, D. New Mexico

February 3, 2017

ORLANDO MONTES, as Personal Representative of Viola Montes and individually, Plaintiff,
PINNACLE PROPANE, LLC, et al, Defendants.


         This matter is before the Court on County of Lincoln's and Sheriff Shepperd's Motion for Judgment on the Pleadings and Qualified Immunity [Doc. 77]. After a review of the allegations in the Amended Complaint, the arguments raised by the parties [Docs. 77, 99, 116], and the relevant legal precedents and authorities, the Court concludes that the motion should be granted in part. Specifically, Plaintiff's sole federal claim-violation of Viola Montes' Fourteenth Amendment right to due process-should be dismissed. However, the Court declines to exercise supplemental jurisdiction over Plaintiff's remaining state law claims, and the case will be remanded to state district court.


         This case arises from the alleged wrongful death of Viola Montes, who died of injuries she sustained from a propane tank explosion at the Lincoln County Fairgrounds on July 2, 2015. On January 19, 2016, Plaintiff Orlando Montes, the husband of Viola Montes, filed his original Complaint in the Twelfth Judicial District Court, County of Lincoln, State of New Mexico. Doc. 1-4. On February 22, 2016, Defendant Lincoln County removed the case to this federal district court on the basis of federal question jurisdiction, citing the claims brought against it for violation of Viola Montes' constitutional rights under 42 U.S.C. § 1983. Doc. 1. On June 6, 2016, Plaintiff filed his Amended Complaint [Doc. 49], which added both factual allegations and legal claims, as well as joined additional defendants in the case.

         Generally speaking, Montes alleges that his and Viola Montes' daughter, Corinne Prudencio, operated a food concession stand with Corinne's husband Fabian Prudencio, at the Lincoln County Fair on July 2, 2015. Doc. 49 at ¶¶ 13, 32, 34. On that date, Montes alleges that Defendants Allen Sultemeier[1] and Christopher Olson, employees of Defendants Pinnacle LLC, improperly over-filled the Prudencios' propane tank and did so without the necessary permits or safety equipment, and without ensuring that the tank had a valid certification date. Doc. 49 at ¶¶ 35, 37, 40. After Sultemeier and Olson improperly supercharged the tank, it overheated and exploded. Doc. 49 at ¶ 42. Viola Montes was working in the Prudencio's concession trailer. Doc. 49 at ¶ 34. As a result of the explosion, the concession trailer caught fire, and Viola Montes suffered extensive burns and other injuries; she died 17 days later. Doc. 49 at ¶¶ 43, 48. According to the Amended Complaint, shortly after the fire a deputy from the Lincoln County Sheriff's Office told his dispatcher that the propane explosion was under control and that the first ambulance dispatched could respond to a cardiac emergency instead of to the fairgrounds, causing a delay in emergency medical treatment. Doc. 49 at ¶ 46. Montes alleges that Defendants Robert Shepperd (Lincoln County Sheriff) and Billy Bob Schaffer (President of the Lincoln County Fair Association) ignored the orders of the local police chief and took down the evidence tape surrounding the area of the explosion, and then had all physical evidence at the scene destroyed by a backhoe. Doc. 49 at ¶¶ 114-118. Montes alleges that Lincoln County and the Lincoln County Fair Association (“LCFA”) “breached their duty to maintain the premises in a safe condition by allowing an unsafe, ultra-hazardous and potentially deadly condition to exist on the premises.” Doc. 49 at ¶ 29. He also alleges that Lincoln County and LCFA “failed to have a policy in place to verify vendors using propane had obtained the Special Events Permit required to dispense propane during special events on the Lincoln County Fairgrounds.” Doc. 49 at ¶ 31.

         With regard to Lincoln County and Sheriff Robert L. Shepperd, the movants currently before this Court, the Amended Complaint asserts claims as follows: wrongful death under the New Mexico Wrongful Death Act (Count I), against Lincoln County; violation of Fourth and Fourteenth Amendment rights under 42 U.S.C. § 1983 (Count II), against Lincoln County; negligent maintenance of public property (Count III) under the New Mexico Tort Claims Act, against Lincoln County; negligence per se (Count IV), against Lincoln County; loss of consortium (Count V) against Lincoln County; negligent infliction of emotional distress (Count VI), against Lincoln County; intentional or negligent spoliation of evidence (Count VIII) against Shepperd; and breach of contract (Count IX) against Lincoln County.

         On July 12, 2016, Lincoln County and Shepperd filed the motion now before the Court. However, on July 20, 2016, this Court entered a Stipulated Order [Doc. 82] in which the parties agreed to dismissal of all individual capacity claims against Shepperd. This rendered moot the portion of the motion asserting that Shepperd is entitled to qualified immunity.


         The same standards that govern a motion to dismiss under rule 12(b)(6) also govern a motion for judgment on the pleadings under rule 12(c). See Atl. Richfield Co. v. Farm Credit Bank, 226 F.3d 1138, 1160 (10th Cir. 2000). Under rule 12(b)(6), a court may dismiss a complaint for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). “The nature of a Rule 12(b)(6) motion tests the sufficiency of the allegations within the four corners of the complaint after taking those allegations as true.” Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir. 1994). The sufficiency of a complaint is a question of law, and when considering and addressing a rule 12(b)(6) motion, a court must accept as true all well-pleaded factual allegations in the complaint, view those allegations in the light most favorable to the non-moving party, and draw all reasonable inferences in the plaintiff's favor. See Moore v. Guthrie, 438 F.3d 1036, 1039 (10th Cir. 2006); Hous. Auth. of Kaw Tribe v. City of Ponca City, 952 F.2d 1183, 1187 (10th Cir. 1991).

         A complaint need not set forth detailed factual allegations, yet a “pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action” is insufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)(citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. See Brown v. Montoya, 662 F.3d 1152, 1163 (10th Cir. 2011) (stating that the “plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully”). “Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Twombly, 550 U.S. at 555 (citation omitted).



         Defendants argue that Montes has failed to name the proper entity in order to assert a viable claim against Lincoln County, and therefore his claims against the entity should be dismissed.

         New Mexico law provides that all lawsuits against a county must be brought against the board of county commissioners for that county. N.M. Stat. Ann. § 4-46-1. The caption of the Amended Complaint [Doc. 49] lists the defendant as “County of Lincoln, by and through its County Commission.” (emphasis added). Further, Paragraph 7 of that document states: “County is sued through its Board of Commissioners with the statutory power to sue and be sued.” Accordingly, the Court concludes that the Amended Complaint clearly shows that Lincoln County is being sued through its board of county commissioners. This argument is without merit.

         Next, Lincoln County argues that all claims against Shepperd in his official capacity as Sheriff should be dismissed because they are duplicative of the claims against Lincoln County itself. As the Tenth Circuit has noted, “[a]n action against a person in his official capacity is, in reality, an action against the government entity for whom the person works.” Pietrowski v. Town of Dibble, 134 F.3d 1006, 1009 (10th Cir. 1998). Because Montes has properly named Lincoln County as a defendant by suing its board of county commissioners as discussed above, there is no need to keep the claims against Shepperd in his official capacity as Lincoln County Sheriff. Further, in his response brief [Doc. 99] Montes does not ...

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.