United States District Court, D. New Mexico
JOSEPH DION TORRES, on his behalf and on behalf of similarly situated persons, Plaintiffs,
CITY OF ALBUQUERQUE, et al., Defendants,
C. Flores Joseph P. Kennedy Kennedy Kennedy & Ives
Attorneys for Plaintiffs.
Kristin J. Dalton Assistant City Attorney Michael E. Fondino
Assistant City Attorney Attorneys for Defendants.
MEMORANDUM OPINION AND ORDER
VÁZQUEZ UNITED STATES DISTRICT JUDGE.
MATTER comes before the Court on Plaintiffs'
Motion for Temporary Restraining Order, or in the
Alternative, An Expedited Hearing for Preliminary Injunction
[Doc. 17], filed August 25, 2017. This Court held an
evidentiary hearing on September 5, 2017, at 9:30 a.m., and
at the end of the hearing ordered that the Motion was
GRANTED, while also ordering Mr. Torres to
comply with some conditions laid out by Defendants.
allegations of the Complaint are summarized as follows.
Plaintiff Joseph Dion Torres is a resident of Albuquerque and
has owned his home for several years. [Doc. 17-1 ¶¶
1-4]. On April 14, 2016, Defendant Ricardo Vialpando, a Code
Enforcement Inspector for the City of Albuquerque, inspected
Mr. Torres' property and discovered that the utility
services had been shut off. Mr. Vialpando made a
determination that the home was a substandard building, in
violation of city ordinances pertaining to utilities, and he
posted a “Notice and Order” on the home stating
that Mr. Torres had four days to vacate. [Doc. 1-1
¶¶ 12-16]. The Notice and Order provided for an
appeal, but stated that such appeal “must be in writing
and filed with the Mayor's office prior to the effective
date of this order. The effective date of this order is:
14-APR-2016.” [Doc. 17-2 at 3].
he has nowhere else to go, Mr. Torres did not vacate his
home. [Doc. 1-1 ¶ 23]. On April 18, 2016, the City put a
lien on the property for the alleged costs of boarding up and
cleaning the property, see Doc. 22-2 at 43, but
nobody boarded up or cleaned the property. [Doc. 1-1
¶¶ 24-25]. Several months later, on December 22,
2016, Defendant Stephanie Garcia, a Code Enforcement
Specialist for the City of Albuquerque, entered the side yard
of the property, without a warrant or consent, to photograph
the premises. She determined that the property had violations
because of “weed[s] in the front yard of the property
and a “wood crate and a weight bench” along the
side of the house. Id. ¶ 26-28. Ms. Garcia
re-posted the previous Notice and Order. Id. ¶
29. Mr. Torres then called the phone number listed on the
Notice and Order, and was advised that he should pay his
water bill. Id. ¶ 30. Mr. Torres paid his water
bill and his water service was restored on February 27, 2017.
Id. ¶ 31.
two months later, on March 10, 2017, Mr. Torres was arrested
for criminally trespassing in his own home. Id.
¶ 37. Defendant Michelle Wall, another Code Enforcement
Specialist for the City, contacted the Albuquerque Police
Department, and two officers, Defendants Hanes and Barela,
were dispatched to Mr. Torres' home. Ms. Wall met the
officers at the property and told Officer Hanes that Mr.
Torres was trespassing. During his arrest, Mr. Torres told
Ms. Wall and the officers that his water had been restored
and that his property should not be considered substandard.
Id. ¶¶ 32-38; but see Doc. 22-C,
D, E (officer body camera footage from the arrest, which does
not appear to include this conversation). Nevertheless, Mr.
Torres was transported to jail and spent several hours in
handcuffs. [Doc. 1-1 ¶ 39]. Officers Hanes and Barela
searched the interior of the home and Ms. Wall took
photographs of the interior of the home and the backyard,
allegedly without a warrant or consent. Id.
¶¶ 40-41; but see Doc. 22-C, E (officer
body camera footage from the arrest, indicating that Mr.
Torres may have given consent to the search of his home). Ms.
Wall used the fruits of this search to justify another
substandard building determination and she issued an Amended
Notice and Order, alleging new violations, on March 13, 2017.
[Doc. 1-1 ¶¶ 42-43]. The Amended Notice states that
the property must be vacated immediately and that entry into
the home is a criminal offense, but also orders Mr. Torres to
make repairs to the interior and exterior of his home.
Id. ¶ 45. Like the earlier notices, the
deadline to appeal the Amended Notice was the same date that
the notice was posted. Id. ¶¶ 46-47. The
Complaint further alleges that the home was boarded up with
Mr. Torres' possessions inside and that the gas meter was
removed from the house. Id. ¶ 50.
Torres has been homeless since the date of his arrest, March
10, 2017. Id. ¶ 52. Mr. Torres ran out of money
to stay in a hotel and has been sleeping in a friend's
backyard. [Doc. 17 at 4]. Mr. Torres has gone into debt to
pay for these arrangements. Id. Furthermore, Mr.
Torres suffers from post-traumatic stress disorder and his
condition has been exacerbated by his current living
situation. Id. Despite these difficulties, however,
Mr. Torres has fully paid his water and gas bills. His home
can have utilities services restored as soon as he is
permitted to be on his property to meet with the gas
company's representative. Id.
Torres filed a Class Action Complaint for Deprivation of
Civil Rights in the Second Judicial District Court,
Bernalillo County, on June 27, 2017. The Complaint was
removed to federal court on July 20, 2017. [Doc. 1-1]. Count
I alleges unreasonable seizure of Mr. Torres' home in
April, 2016. Id. ¶¶ 56-66. Count II
alleges unreasonable search of the curtilage of Mr.
Torres' home in December, 2016. Id. ¶¶
67-74. Count III and IV allege unreasonable search and
seizure of Plaintiff's home in March, 2017. Id.
¶¶ 75-92. Count V alleges unreasonable seizure and
malicious prosecution of Mr. Torres in March, 2017.
Id. ¶¶ 93-102. Counts VI and VII allege
violations of Procedural and Substantive Due Process under
the U.S. Constitution. Id. ¶¶ 103-21.
Count VIII alleges all claims common to a class of
“individuals or entities whose property interests have
been impaired by Defendant City within three years prior to
the filing of this complaint, based on a form notice that
fails to provide any pre-deprivation hearing and sets the
deadline for appeal on or prior to the date notice is posted
or mailed.” Id. ¶ 128. Counts IX and X
allege false imprisonment, false arrest, and malicious
prosecution under New Mexico Tort Claims Act. Id.
¶¶ 137-50. Counts XI and XII allege New Mexico
constitutional violations. Id. ¶¶ 151-71.
Defendants Answered the Complaint on August 3, 2017. [Doc.
Torres filed the present Motion for Temporary Restraining
Order or Preliminary Injunction on August 25, 2017. [Doc.
17]. Mr. Torres asks the Court to order Defendants to
“cease denying Joseph [Torres] entry onto his
property.” [Doc. 17 at 11]. Specifically, Mr. Torres
asks that the City remove all boards on doors or windows, any
notices posted on the property, and any encumbrances or liens
on the property. Id.
filed a Response to the Motion, with supporting affidavits
and exhibits, on August 31, 2017. [Doc. 22]. In sum,
Defendants argue that they acted reasonably in determining
that the home was substandard, attempting to communicate to
Mr. Torres what repairs were needed, and in ultimately having
to arrest Mr. Torres for remaining in the home and taking
down the City's notices, which it reposted repeatedly.
[Doc. 22 at 13-16; 22-1 at 1-4]. Defendants assert that Mr.
Torres was not summarily evicted because the Notice and Order
provided four days for Mr. Torres to restore his utilities,
during which time he was not required to vacate his home, but
that even with Mr. Vialpando's willingness to “work
with Mr. Torres, . . . Mr. Torres was not willing to
cooperate with Code Enforcement.” [Doc. 22 at
9-10]. Defendants explain that the City stands
ready to allow Mr. Torres onto his property, stating that
“[o]nce the utilities are turned on, the backdoor exit
is corrected, and the biohazards (namely, the feces covering
the bathroom of the home) are cleaned up, Plaintiff may again
occupy his home.” Id. at 5. Given that Mr.
Torres is already prepared to address his utilities,
Defendants argue that their additional requirements
“are not so onerous that a preliminary injunction
should issue.” Id. at 6.
Court held a hearing on September 5, 2017, during which the
Court heard arguments on the Motion and invited the parties
to present evidence. No additional evidence was presented,
although the City provided the Court with color copies of the
photographs of the home previously submitted in Doc. 22-2.
Counsel for Mr. Torres assured the Court that Mr. Torres was
able to complete the remediation steps specified by the City.
At the conclusion of the hearing, ...