United States District Court, D. New Mexico
DAVID A. SPENCER, Plaintiff,
STATE OF NEW MEXICO, et al., Defendants.
MEMORANDUM OPINION AND ORDER OF DISMISSAL
CHRISTINA ARMIJO CHIEF UNITED STATES DISTRICT JUDGE.
MATTER comes before the Court on Defendant H. Steven
Murphy's Motion to Dismiss Civil Complaint, Doc. 20,
filed April 24, 2017. For the reasons stated below, the Court
will GRANT the Motion.
was a party in a civil case in state court. Defendant Murphy
was counsel for a party opposing Plaintiff in the state court
civil case. Several of the approximately 69 allegations which
expressly refer to Defendant Murphy indicate that Defendant
Murphy was performing normal attorney duties such as making a
jury demand, serving complaints, interrogatories and requests
for production, faxing documents to opposing counsel,
submitting proposed orders, and filing motions and responses.
See Amended Complaint ¶¶ 26, 32, 48, 51,
59, 99, 101, 107. Many of the other allegations are
conclusory and either state that Defendant Murphy
“conspired” with other Defendants or refer to
Defendant Murphy's “conspiracy” with other
Defendants. See Amended Complaint ¶¶ 27,
31-32, 65, 84, 90, 109, 113, 119, 123, 131, 144, 148, 152,
157, 163, 166, 173. The general contention of the Amended
Complaint is that Defendant Murphy and some of the other
Defendants in this case conspired to obtain state court
rulings unfavorable to Plaintiff and to bring false criminal
charges against Plaintiff resulting in Plaintiff's arrest
and incarceration. See Doc. 8, filed September 14,
federal law claims include violation of the automatic
bankruptcy stay pursuant to 11 U.S.C. § 362,
false imprisonment, conspiracy against rights,  deprivation of
prisoner rights and medical attention, and violation of the
5th (right to grand jury), 6th (right to speedy trial), 7th
(right to trial by jury), 8th (prohibiting cruel and unusual
punishment), and 14th (right to due process) Amendments.
Plaintiff seeks relief pursuant to 42 U.S.C. § 1983.
1983 only authorizes suits against persons acting under color
of state law. See McCarty v. Gilchrist, 646 F.3d
1281, 1285 (10th Cir. 2011) (“Section 1983 provides a
federal civil remedy for the deprivation of any rights,
privileges, or immunities secured by the Constitution by any
person acting under color of state law”). The
“state action doctrine requires that the deprivation
must be caused by the exercise of some right or privilege
created by the State or by a rule of conduct imposed by the
state or by a person for whom the State is responsible and
the party charged with the deprivation must be a person who
may fairly be said to be a state actor.” Stone v.
Elohim, Inc., 336 Fed.Appx. 841, 842 (10th Cir. 2009)
(quoting Lugar v. Edmondson Oil Co., Inc., 457 U.S.
922, 937 (1982)). “Private persons may be said to act
under color of state law if they are jointly engaged with
state officials in the challenged action . . . But private
conduct that is not fairly attributable to the State is
simply not actionable under § 1983, however
discriminatory or wrongful the conduct is.” Hall v.
Witteman, 584 F.3d 859, 864 (10th Cir. 2009). A
plaintiff can state a cognizable § 1983 claim against
private citizens if he adequately alleges that the private
citizen defendants conspired with the state actors to violate
his federal rights. See Beedle v. Wilson, 422 F.3d
1059, 1073 (10th Cir. 2005). “[W]hen a plaintiff
attempts to assert the state action required for a §
1983 claim against private actors based on a conspiracy with
government actors, ‘mere conclusory allegations with no
supporting factual averments are insufficient, '
[instead] the plaintiff must specifically plead “facts
tending to show agreement and concerted action.”
Id.; see also Brooks v. Gaenzle, 614 F.3d
1213, 1227-28 (10th Cir. 2010) (“under § 1983 and
§ 1985, we have generally held a federal conspiracy
action brought under either of these statutes requires at
least a combination of two or more persons acting in concert
and an allegation of a meeting of the minds, an agreement
among the defendants, or a general conspiratorial
Court will dismiss the federal law claims against Defendant
Murphy for failure to state a claim. Plaintiff alleges that
Defendant Murphy is “an officer of the State of New
Mexico Courts by virtue of his position as a licensed
practicing Attorney admitted by the N.M. Supreme
Court.” Amended Complaint ¶ 5 at 2. However,
Defendant Murphy is not a state actor because “a lawyer
representing a client is not, by virtue of being an officer
of the court, a state actor ‘under color of state
law' within the meaning of § 1983.”
DiCesare v. McAnally, 657 Fed.Appx. 800, 802 (10th
Cir. 2016) (quoting Polk Cnty. v. Dodson, 454 U.S.
312, 318 (1981)). Furthermore, Plaintiff makes only
conclusory allegations that Defendant Murphy conspired with
others. Plaintiff does not allege specific facts tending to
show agreement and concerted action between Defendant Murphy
and the other Defendants.
also asserts state law claims for malicious prosecution,
malicious abuse of process, false imprisonment, tortious
interference with business practices and intentional
infliction of emotional distress. See Amended
Complaint at 1, 17, 19, 26, 27.
Court, having dismissed all of Plaintiff's federal law
claims against Defendant Murphy, declines to exercise
supplemental jurisdiction over Plaintiff's state law
claims against Defendant Murphy. See 28 U.S.C.
§ 1367(c)(2) (“The district courts may decline to
exercise supplemental jurisdiction over a claim . . . if . .
. the district court has dismissed all claims over which it
has original jurisdiction”).
Request to Amend
filed a Response to Defendant Murphy's Motion to Dismiss.
See Doc. 50, filed September 13, 2017.
Plaintiff's Response is untimely because it was filed
over four months after Defendant Murphy's Motion to
Dismiss was filed. See D.N.M.LR-Civ. 7.4(a) (a
response must be filed within 14 days after service of the
motion; if all parties do not agree to an extension of time
to file a response, the party seeking the extension of time
must file a separate motion within the 14-day period). At the
end of his Response, Plaintiff requests that the Court either
deny Defendant Murphy's Motion to Dismiss or grant
Plaintiff 30 days to amend his Amended Complaint.
See Doc. 50 at 9.
Court recognizes that it “should freely give leave [to
amend] when justice so requires, but will deny Plaintiffs
request to amend his Amended Complaint. See Fed. R.
Civ. P. 15(a)(2). When it granted Plaintiff leave to file an
amended complaint, the Court notified Plaintiff that it was
impossible for opposing parties to reasonably prepare a
response to his original Complaint because it was vague and
ambiguous, and because some of the allegations were
conclusory and did not identify the specific Defendants
Plaintiff was referring to. See Mem. Op. and Order
at 3, Doc. 7. The Court also notified Plaintiff that he must
comply with Federal Rule of Civil Procedure 8 which requires
that a complaint set out a short, plain statement of the
claim showing that the pleader is entitled to relief, and
that each allegation must be simple, concise, and direct.
See Doc. 7 at 2. Plaintiff had an opportunity to
amend his original Complaint to state a claim against
Defendant Murphy, but despite the Court's notification of
the original Complaint's deficiencies, Plaintiff ...