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.

Mohammad v. Albuquerque Police Department

United States District Court, D. New Mexico

March 1, 2017

KHALID MOHAMMAD, Plaintiff,
v.
ALBUQUERQUE POLICE DEPARTMENT, Defendant.

          ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATIONS AND DENYING MOTIONS

          JUDITH C. HERRERA, UNITED STATES DISTRICT COURT JUDGE

         THIS MATTER comes before the Court on magistrate judge Laura Fashing's Proposed Findings and Recommended Disposition filed on January 31, 2017 (“PF&RD”) (Doc. 20), and on pro se plaintiff Khalid Mohammad's objections to the PF&RD filed February 6, 2017 (Doc. 22), his Motion for Leave to Amend the Complaint, filed January 30, 2017 (Doc. 21), and his Motion for Service by Plaintiff, filed February 13, 2017 (Doc. 24). Defendant Albuquerque Police Department (“APD”) responded to the motion to amend (Doc. 23) but has not filed a response to the motion for service, and none is necessary. Having reviewed the PF&RD, the submissions of the parties and the relevant law, I find that Mr. Mohammad's objections to the PF&RD are without merit and, therefore, overrule them. Accordingly, I adopt the recommendations of the magistrate judge. I further find that Mr. Mohammad's motion to amend is futile and deny it. I also deny as moot his motion for service.

         I. Mr. Mohammad's Objections to the PF&RD

         A. Standard of Review

         District courts may refer dispositive motions to a magistrate judge for a recommended disposition. See Fed. R .Civ. P. 72(b)(1) (“A magistrate judge must promptly conduct the required proceedings when assigned, without the parties' consent, to hear a pretrial matter dispositive of a claim or defense . . . . The magistrate judge must enter a recommended disposition including, if appropriate, proposed findings of fact.”). “Within 14 days after being served with a copy of the recommended disposition, a party may serve and file specific written objections to the proposed findings and recommendations.” Fed.R.Civ.P. 72(b)(2). When resolving objections to a magistrate judge's proposal, “[t]he district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to. The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions.” Fed.R.Civ.P. 72(b)(3), see also 28 U.S.C. § 636(b)(1).

         Mr. Mohammad filed timely objections to each of the magistrate judge's recommendations and I will address each one in turn.

         B. Recommendation No. 1

         Mr. Mohammad objects to the magistrate judge's recommendation that APD be dismissed as a party because in Monell v. Dep't of Soc. Servs. of City of N.Y., 436 U.S. 658 (1978), the Supreme Court held that local governing bodies can be directly sued under 42 U.S.C. § 1983. Doc. 22 at 1. Mr. Mohammad argues that local governing bodies include “municipalities, towns, counties, cities, and entities.” Id. “Congress did intend municipalities and other local government units to be included among those persons to whom § 1983 applies.” Monell, 436 U.S. at 690 (emphasis in original). The Supreme Court, however, did not specifically include departments of local governments in its definition of persons to whom § 1983 applies. Rather, Monell speaks of “local governing bodies” and “local governments.” Monell, 436 U.S. at 690-91. A department of a local government is the instrument through which a local governing body executes its governmental functions and is legally no different than the local governing body itself. See Henry v. Albuquerque Police Dep't, 49 F. App'x 272, 274 n.1 (10th Cir. 2002) (unpublished). The magistrate judge correctly determined that an administrative department-such as APD-is not a separate, suable entity. See Doc. 20 at 4-5 and cases cited therein. Accordingly, Mr. Mohammad's objection to the magistrate judge's first recommendation is overruled, and his § 1983 claims against APD will be dismissed.

         C. Recommendation No. 2

         Mr. Mohammad next objects to the magistrate judge's recommendation that his claims against APD under the New Mexico Tort Claims Act (“NMTCA”) be dismissed for failure to comply with the notice requirements. Doc. 22 at 2. He contends he complied with these provisions. Id. He does not allege, however, that he presented a written notice stating the time, place, and circumstances of his loss or injury within 90 days of the occurrence giving rise to the claim. See N.M. Stat. Ann. § 41-4-16(A). While a complaint need not include detailed factual allegations, it must contain at least enough information to state a claim for relief that is plausible on its face. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). As the magistrate judge explained, the Court does not have jurisdiction to consider Mr. Mohammad's claims under the NMTCA because he has failed to allege that he complied with the notice provisions. See Doc. 20 at 6.[1]

         Mr. Mohammad argues that he has submitted a motion for leave to amend his complaint. Doc. 22 at 2. In his proposed amended complaint, Mr. Mohammad alleges that he submitted a “Citizens Complaint” on August 6, 2013, pursuant to § 41-4-16. Doc. 21 at 5. Mr. Mohammad's proposed amended complaint does not assist him here. APD's motion to dismiss addresses the operative complaint, which does not contain an allegation that he complied with the notice requirements. Further, the Court will deny the motion to amend, as discussed below. See § II., infra. Mr. Mohammad's objection to the magistrate judge's second recommendation is overruled, and his claims against APD pursuant to the NMTCA will be dismissed.

         D. Recommendation No. 3

         Mr. Mohammad objects to the magistrate judge's recommendation to dismiss his claim against Officer Vovigio under the NMTCA. Doc. 22 at 3. The magistrate judge recommended dismissal because Mr. Mohammad's NMTCA claims against Officer Vovigio are barred by the statute of limitations. Doc. 20 at 7-8. Mr. Mohammad again argues that he is a pro se litigant and that he has submitted a motion to amend. Doc. 22 at 3. While a pro se litigant's pleadings are to be construed liberally, Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991), he cannot revive a claim that he brought beyond the limitations period simply because he is appearing pro se. The limitations period still applies. Further, his motion to amend does not assist him because he continues to allege that the officer's actions that give rise to his claims took place in 2013, [2]more than two years before he filed his original complaint in this case. Mr. Mohammad's objection to the magistrate judge's third recommendation is overruled, and his claims against Officer Vovigio pursuant to the NMTCA will be dismissed.

         E. ...


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.