United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
C. BRACK, UNITED STATES DISTRICT JUDGE
matter is before the Court on Defendant Albuquerque Police
Department's (Non-Suable Entity) Motion to Dismiss
Plaintiff's Complaint with Prejudice and Memorandum to
Support, filed on March 15, 2017. (Doc. 8.) Plaintiff did not
respond to Defendant's motion. Jurisdiction arises under
28 U.S.C. §§ 1441(a) and 1446(a). Having considered
the submissions of the parties and relevant law, the Court
will GRANT the motion as outlined below.
Procedural and Factual Background
Khalid Mohammad (Plaintiff) was arrested by an unidentified
police officer with the Albuquerque Police Department (APD)
on January 10, 2015. (Doc. 1-A (Compl.) ¶ 5.) It is
unclear from Plaintiff's Complaint why he was arrested.
The officer seized Plaintiff's personal property,
including a television, a shoulder bag that contained a
personal computer, cash, a cell phone, and a pair of shoes,
and a variety of legal documents. (Id. ¶ 6.)
The officer booked Plaintiff into the Bernalillo County
Metropolitan Detention Center (MDC) on January 10, 2015.
(Id. ¶ 8.) Plaintiff remained as an inmate at
the MDC until his release on April 28, 2015. (Id.
¶¶ 8, 11.) Plaintiff alleges that he
“exhausted ALL lower level remedies for relief
requested in this Complaint.” (Id. ¶ 12.)
Specifically, Plaintiff alleges he “filed a Citizens
[sic] Complaint on May 1, 2015, pursuant to section 41-4-16
of the New Mexico Tort Claims Act[, ] . . . multiple
complaints following the initial Citizens [sic] Complaint[,
]” and a second “Citizens [sic] Complaint on
January 17, 2017.” (Id.) The APD did not
respond to any of these complaints. (Id.)
filed a “Complaint Pursuant to § 41-13-1 through
§ 41-13-3 NMSA 1978” in the Second Judicial
District Court, County of Bernalillo, State of New Mexico, on
February 2, 2017. (See Compl.) Plaintiff brings claims
against the APD pursuant to 42 U.S.C. § 1983 and the New
Mexico Tort Claims Act, § 41-4-12. (Id. ¶
14.) APD removed the Complaint to this Court pursuant to 28
U.S.C. §§ 1441(a) and 1446(a) on March 8, 2017.
(Doc. 1.) APD now moves to dismiss. (Doc. 8.) Plaintiff did
not respond to APD's motion.
reviewing a motion to dismiss under Fed.R.Civ.P. 12(b)(6),
the Court “must accept all the well-pleaded allegations
of the complaint as true and must construe them in the light
most favorable to the plaintiff.” In re Gold Res. Corp.
Sec. Litig., 776 F.3d 1103, 1108 (10th Cir. 2015) (quotation
omitted). “To survive a motion to dismiss, ” the
complaint does not need to contain “detailed factual
allegations, ” but it “must contain sufficient
factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.'” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555, 570 (2007)). “A claim has
facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
Id. (citing Twombly, 550 U.S. at 556). Plausibility
does not equate to probability, but there must be “more
than a sheer possibility that a defendant has acted
unlawfully.” Id. (citing Twombly, 550 U.S. at
moves to dismiss Plaintiff's claims on several grounds.
First, APD argues that Plaintiff may not bring claims against
it under 42 U.S.C. § 1983, because it is not a
“person” within the meaning of that statute.
(Doc. 8 at 3.) Second, APD argues Plaintiff may not bring
claims against it pursuant to the NMTCA, because it is not a
separate entity from the City of Albuquerque and thus is not
a proper party. (Id. at 4.) Third, APD contends
Plaintiff failed to provide appropriate written notice of his
claims pursuant to N.M. Stat. Ann. § 41-4-16(A), and
thus his claims are barred. (Id. at 5.) Finally, APD
argues Plaintiff's claims pursuant to the NMTCA are time
barred, because he did not bring his claims within two years
of the date of loss as required by N.M. Stat. Ann. §
41-4-15. (Id. at 6.)
is not a person for purposes of claims pursuant to 42 U.S.C.
Tenth Circuit has stated that ‘police departments . . .
are not suable entities under § 1983, because they lack
legal [identities] apart from the municipality.'”
Young v. City of Albuquerque, 77 F.Supp.3d 1154, 1186 (D.N.M.
2014) (quoting Ketchum v. Albuquerque Police
Dep't, No. CIV 91-2200, 1992 WL 51481, at *2 (10th
Cir. Mar. 12, 1992) (internal and subsequent citations
omitted). “Accordingly, the United States District
Court for the District of New Mexico has consistently held
that the APD is not a suable entity.” Id.
(citing Costales v. Schultz, No. CIV 07-827 MV/ACT,
Mem. Op. & Order ¶¶ 4-5, at *3 (D.N.M. Nov. 13,
2009) (Doc. 25); Maxwell v. City of Albuquerque Police
Dep't, No. CIV 02-0568 LH/LFG, Mem. Op. & Order,
at *2 (D.N.M. Dec. 30, 2002) (Doc. 24); Diaz v. Second
Judicial Dist. Court, No. CIV 00-0700 JC/DJS, Mem. Op. &
Order, at *8-9 (D.N.M. Aug. 1, 2001) (Doc. 75)).
“Because the APD is merely a department of the City of
Albuquerque, it is not a proper party and cannot be held
liable for [Plaintiff's] § 1983 claims.”
Id. Consequently, the Court will grant the Motion on
this basis and dismiss Plaintiff's claims brought
pursuant to § 1983 without prejudice.
Plaintiff may not sue the APD as a separate entity.
Police Department is an administrative department of the City
of Albuquerque.” Maxwell, No. CIV 02-0568 LH/LFG, Mem.
Op. & Order, at *2 (D.N.M. Dec. 30, 2002) (Doc. 24).
“When a police department is an integral part of city
government and merely the vehicle through which government
fulfills its policing function, it may not be sued as a
separate entity.” Id. (quoting Flores v.
City of Albuquerque Police Dep't, CIV No. 92-046
LH/LFG, Mem. Op. & Order (D.N.M. May 28, 1993) (Doc. 67)
(citing Martinez v. Winner, 771 F.2d 424 (10th Cir.
1985), vacated on other grounds, 800 F.2d 230 (10th Cir.
1985))). “Because the [APD] is merely a part of the
Albuquerque city government, it lacks a legal identity apart
from the City, and it is not a proper party.”
Id. Accordingly, the Court will grant the Motion and
dismiss Plaintiff's state law claims without prejudice.
Plaintiff has not demonstrated that he gave appropriate