United States District Court, D. New Mexico
“Asher” Kashanian, Albuquerque, New Mexico, for
Michael Dickman, Santa Fe, New Mexico, for Defendant William
ORDER GRANTING DEFENDANT PACHECO'S MOTION FOR
SUMMARY JUDGMENT BASED IN PART ON QUALIFIED IMMUNITY AND
DENYING PLAINTIFF ROSS AND GERARD'S MOTIONS FOR VOLUNTARY
DISMISSAL PURSUANT TO RULE 41(A)(2)
MATTER comes on for consideration of Defendant William
Pacheco's Motion for Summary Judgment Based in Part on
Qualified Immunity filed January 11, 2017. Doc. 118. In
resolving this motion, we also consider Plaintiffs Andrew
Ross and Susan Gerard's ancillary Motion for Voluntary
Dismissal Pursuant to Rule 41(a)(2) filed January 26, 2017
(Doc. 130), and their Corrected Motion for Voluntary
Dismissal Pursuant to Rule 41(a)(2) filed January 26, 2017
(Doc. 131). Upon consideration thereof, Defendant
Pacheco's motion for summary judgment is well taken and
should be granted, while Plaintiffs' motions for
voluntary dismissal are not well taken and should be denied.
judgment is appropriate if the movant demonstrates that there
is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law. Fed.R.Civ.P.
56(a). Local Rule 56.1(b) requires the movant to file a
memorandum containing a concise statement of all of the
material facts as to which the movant contends no genuine
issue exists. The rule also provides that the response of the
non-movant “must contain a concise statement
of the material facts cited by the movant as to which the
non-movant contends a genuine issue does exist.” D.N.M.
LR-Civ. 56.1(b) (emphasis added). “All material facts
set forth in the Memorandum will be deemed undisputed unless
specifically controverted.” Id.
Defendant Pacheco complied and included a concise statement
of all of the material facts as to which he contends no
genuine dispute exists. Plaintiffs Andrew Ross and Susan
Gerard, however, did not adequately respond. Missing is a
concise statement of the material facts as to which they
contend a genuine dispute does exist. See Doc. 132.
Accordingly, all material facts set forth by Defendant
Pacheco will be deemed undisputed. Fed.R.Civ.P. 56(e)(2);
D.N.M. LR-Civ. 56.1(b).
undisputed facts indicate that Defendant Pacheco is the
Captain of the Santa Fe County Sheriff's Department and
refutes Plaintiffs' allegations. Suffice it to say that
Defendant Pacheco never met either Plaintiff or Defendant
Brenda Wall's attorney, Robert Richards. And he only met
Defendant Wall once, when he directed her to a deputy to take
a report from her. He spoke briefly to Plaintiffs'
attorney when he called, and generated a packet of documents
for the County Attorney to review after Sheriff Garcia
forwarded a letter from Plaintiff Gerard threatening
litigation. Defendant Pacheco strongly denies acting at the
behest of any Defendant, let alone being offered anything for
any untoward activity directed at Plaintiffs. In fact, he
finds the accusations “defamatory and personally
offensive.” Doc. 118 ¶¶ 22, 24.
light of these undisputed, material facts, Defendant Pacheco
is entitled to summary judgment on the First, Second, and
Third Counts of the First Amended Complaint (Doc. 8).
First Count is brought under 18 U.S.C. § 1964(c), the
Racketeer Influenced and Corrupt Organizations Act
(“civil RICO”). To prevail under § 1964(c),
Plaintiffs must show “(1) that the defendant (2)
through the commission of two or more acts (3) constituting a
‘pattern' (4) of ‘racketeering activity'
(5) directly or indirectly invests in, or maintains an
interest in, or participates in (6) an ‘enterprise'
(7) the activities of which affect interstate or foreign
commerce. . . . [P]laintiff[s] must [also] allege that [they
were] ‘injured in [their] business or property by
reason of a violation of section 1962.'”
Moss v. Morgan Stanley Inc., 719 F.2d 5, 17 (2d Cir.
1983) (quoting 18 U.S.C. §§ 1962(a)-(c), 1964(c)
(1976)); see also Dummar v. Lummis, 543 F.3d 614,
620-21 (10th Cir. 2008). Defendant Pacheco did not
participate in or have knowledge of any acts that give rise
to the alleged racketeering set forth in the amended
complaint. Therefore, as a matter of law, his conduct cannot
constitute a violation of 18 U.S.C. § 1964(c).
Second Count is brought under 42 U.S.C. § 1983. It is
unclear whether Plaintiffs are pursuing Defendant Pacheco in
his official capacity, individual capacity, or both. As
noted, Plaintiffs lack a factual predicate for either because
they cannot rest on their unverified amended complaint; they
must respond with evidence demonstrating a genuine issue of
material fact. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). Moreover, a suit against a municipal or
state official in his or her official capacity is a suit
against that person's office, and is 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 basis for liability will not
work. Monell v. Dep't of Soc. Servs., 436 U.S.
658, 690-91 (1978); see also Pembaur v. City of
Cincinnati, 475 U.S. 469, 479-80 (1986). This they have
extent Plaintiffs are suing Defendant Pacheco in his
individual capacity, he has asserted the defense of qualified
immunity. Thus, Plaintiffs must allege facts to demonstrate a
violation of a constitutional right and demonstrate that it
was clearly established at the time of the actions at issue.
Pearson v. Callahan, 555 U.S. 223, 232 (2009). In
their amended complaint, Plaintiffs have failed to identify
the specific rights involved, and in their response to this
motion, they have not addressed either element of qualified
immunity. Accordingly, Plaintiffs have not explained how any
cases demonstrate a violation of clearly established law
particularized to the facts of this case. Qualified immunity
Third Count is for injunctive relief. To obtain such relief,
Plaintiffs must establish “(1) a likelihood of success
on the merits; (2) a likelihood that the movant will suffer
irreparable harm in the absence of [injunctive] relief; (3)
that the balance of equities tips in the movant's favor;
and (4) that the injunction is in the public interest.”
RoDa Drilling Co. v. Siegal, 552 F.3d 1203, 1208
(10th Cir. 2009) (citation omitted). From the foregoing, it
is enough to say that Plaintiffs have no substantive claims
warranting relief; hence, they cannot establish the first
request that the court grant their motion to dismiss
Defendant Pacheco in lieu of deciding this summary judgment
motion. See Fed.R.Civ.P. 41(a)(2). In exercising its
discretion, the court considers “the opposing
party's effort and expense in preparing for trial;
excessive delay and lack of diligence on the part of the
movant; insufficient explanation of the need for a dismissal;
and the present stage of litigation.” Cty. of Santa
Fe v. Public Serv. Co. of N.M., 311 F.3d 1031, 1048
(10th Cir. 2002) (quoting Ohlander v. Larson, 114
F.3d 1531, 1537 (10th Cir. 1997)). These factors are not
exhaustive. Id. Indeed, “factors that are
‘unique to the context of the case' must also be
considered.” Id. (quoting Ohlander,
144 F.3d at 1537).
Defendant Pacheco has invested considerable time and expense
answering the amended complaint and moving for summary
judgment, and wants summary judgment given the inflammatory
allegations in the amended complaint. Moreover, Defendant
Pacheco is concerned about impairing his eventual claim for
attorney's fees after accepting a voluntary dismissal
with prejudice. Doc. 134 at 4-5; see Vanguard Envt'l
Inc. v. Kerin, 528 F.3d 756, 760 (10th Cir. 2008).
Although Plaintiffs maintain that dismissal is appropriate
because they are no longer pursuing their RICO claims, civil
rights claims against Defendant Pacheco remain. See,
e.g., Doc. 8 ¶¶ 405-07. The court will
exercise its discretion to deny the motions for voluntary
THEREFORE, IT IS ORDERED that Defendant William Pacheco's
Motion for Summary Judgment Based in Part on Qualified