United States District Court, D. New Mexico
ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND
RECOMMENDATIONS AND DENYING MOTIONS
C. HERRERA, UNITED STATES DISTRICT COURT JUDGE
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
Mr. Mohammad's Objections to the
Standard of Review
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).
Mohammad filed timely objections to each of the magistrate
judge's recommendations and I will address each one in
Recommendation No. 1
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.
Recommendation No. 2
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.
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
Recommendation No. 3
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, 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.