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Torres v. City of Albuquerque

United States District Court, D. New Mexico

September 18, 2017

JOSEPH DION TORRES, on his behalf and on behalf of similarly situated persons, Plaintiffs,
CITY OF ALBUQUERQUE, et al., Defendants,

          Adam 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.



         THIS 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.


         The 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].

         Because 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.

         Over 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.

         Mr. 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.

         Mr. 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. 15].

         Mr. 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.

         Defendants 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].[1] 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.

         This 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, ...

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