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Sabeerin v. Albuquerque Police Department

United States District Court, D. New Mexico

November 13, 2017

BOBACK SABEERIN, MICHELLE ROYBAL, J.R. and S.S. Plaintiffs,
v.
ALBUQUERQUE POLICE DEPARTMENT DETECTIVE TIMOTHY FASSLER, in his individual capacity, ALBUQUERQUE POLICE DEPARTMENT DETECTIVE JOHN DEER, in his individual capacity, CITY OF ALBUQUERQUE, STATE OF NEW MEXICO, SECRETARY GREGG MARCANTEL, in his official and individual capacity, NEW MEXICO CORRECTIONS DEPARTMENT, Defendants.

          MEMORANDUM OPINION AND ORDER

         On August 8, 2016 Secretary Marcantel and the New Mexico Corrections Department collectively filed a Motion to Dismiss (ECF No. 17) the claims against them. The Court, having reviewed the motion, briefs, relevant law, and otherwise being fully advised, finds that the motion should be granted. The Court also finds that Plaintiffs should be granted leave to file an amended complaint.

         I. FACTUAL BACKGROUND

         Plaintiff Boback Sabeerin is a national of Iran, but in 1986 he fled that county and came to this one as a political refugee. See Comp. ¶ 11, ECF No. 1. He obtained permanent residency soon after, and made a livelihood from working in and running auto repair and “body shops.” Id. ¶¶ 12-14. In 1991, Mr. Sabeerin had a run in with the law, and was criminally charged with two counts of vehicle theft. Id. ¶ 15. He pleaded no contest to those charges and it appears he avoided jail time. Id. This infuriated the then-officer working on the case, Defendant Detective John Deer, so much that he told Mr. Sabeerin to “watch his back.” Id.

         Nearly 20 years later, in 2009, another detective, Defendant Timothy Fassler executed a search warrant on the body shop that Mr. Sabeerin owned together with his “domestic partner, ” Plaintiff Michelle Roybal. Id. ¶¶ 14-15. When Detective Fassler entered Plaintiffs' shop to execute the warrant, he told Mr. Sabeerin, “the two detectives that worked on your case twenty years ago, work for me. Now we are going to make sure you don't get out this time. Foreigners like you don't belong in this country. I am going to do everything in my power to make sure you get deported this time.” Id. ¶ 18. Detective Deer, the officer from the 1991 incident, came out of retirement specifically to join the investigation against Mr. Sabeerin. Id. ¶ 17. The search turned up a number of stolen vehicles and evidence of a VIN-switching operation. Id. ¶ 23.

         The State brought four charges against Mr. Sabeerin for auto theft and similar charges. Id. ¶ 19. In Mr. Sabeerin's first case, he moved to suppress the evidence obtained as a result of the search of his business property, arguing that Detective Fassler lacked probable cause to support issuance of a warrant. Id. The state judge denied the motion, and Mr. Sabeerin was found guilty and jailed. Id. Before trial for his second charge, Mr. Sabeerin again moved to suppress the evidence, which the judge again denied. Id. While incarcerated, corrections officers subjected him to a number of humiliations, including dragging Mr. Sabeerin across the jail in his boxers, and refusing to let him shower before and during trial. Id. ¶ 20. Each time Mr. Sabeerin's appearance was required at trial or a motions hearing, corrections officers placed him in solitary confinement. Id. ¶ 28. These stints in solitary confinement pressurized Mr. Sabeerin - who is bipolar and suffers from other mental illnesses - so much that he pleaded guilty to the remaining charges to avoid further jail time. Id. ¶¶ 22, 90. His charges were consolidated and he was sentenced to a total of 27 years. Id. ¶¶ 21, 23.

         Mr. Sabeerin was placed in solitary confinement throughout his incarceration. Id. ¶ 28. His mental disorders made him particularly vulnerable to the effects of being segregated. Id. ¶ 81. His mental health deteriorated and he went long periods without sleep. Id. ¶¶ 81-82. Corrections officers deprived him of recreation and blocked his access to group therapy sessions. Id. ¶ 86. Officers also withheld or delayed giving him his medications. Id. ¶ 81.

         Meanwhile, Mr. Sabeerin appealed the trial court's denials of his motions to suppress. Id. ¶ 23. In August 2014 - after spending five years in prison - the New Mexico Court of Appeals reversed his conviction, holding that the property search of Plaintiffs' business was invalid for lack of probable cause. Id. ¶ 24. Without evidence for re-trial, the prosecution agreed to dismiss the charges against Mr. Sabeerin, and the state judge released him in November 2015. Id. ¶ 27. NMCD told him he would be deported, although it knew this was inaccurate because Mr. Sabeerin was a permanent resident. Id. ¶ 31. Instead of releasing Mr. Sabeerin, NMCD delivered him - nearly naked in a clear plastic jumpsuit - to U.S. Immigration and Customs Enforcement and intimated to ICE authorities that Mr. Sabeerin was “illegal.” Id. ¶¶ 31, 33, 41. ICE detected no problems, and released Mr. Sabeerin in less than an hour. Id. ¶ 31.

         Mr. Sabeerin's incarceration effectively destroyed his family and business life. Id. ¶¶ 34-41. His and Ms. Roybal's body shop was shuttered, its inventory impounded and sold at auction, and the couple's family unit broke apart. Id. ¶¶ 29, 36, 40.

         II. PROCEDURAL BACKGROUND

         Plaintiffs filed their Complaint in this Court against Defendants and asserted the following claims: (I) violation of Mr. Sabeerin's and Ms. Roybal's Fourth Amendment rights and Mr. Sabeerin's Fourteenth Amendment rights under 42 U.S.C. § 1983; (II) conspiracy to violate Mr. Sabeerin's and Ms. Roybal's Fourth and Fourteenth Amendment rights under 42 U.S.C. § 1983; (III) violation of Mr. Sabeerin's right to be free from cruel and unusual punishment under the Eighth Amendment pursuant to 42 U.S.C. § 1983; (IV) violation of Mr. Sabeerin's and Ms. Roybal's rights to be free from unlawful searches under N.M. Const. art. II, § 10; (V) conspiracy to violate N.M. Const. art. II, § 10; (VI) false arrest or imprisonment under the New Mexico Tort Claims Act; (VII) tortious abuse of process; and three claims of loss of consortium for each of Ms. Roybal, J.R., and S.S. In their Complaint, Plaintiffs' pleaded all counts against “Defendants.” Defendants Secretary Marcantel and NMCD collectively moved to dismiss, arguing that Secretary Marcantel, in his official-capacity, and NMCD are entitled to Eleventh Amendment immunity. See Defs.' Mot. at 1, ECF. No. 17. Secretary Marcantel additionally moved for dismissal in his individual capacity, asserting the defense of qualified immunity against Plaintiffs' federal claims. Id. Regarding Plaintiffs' state claims, Secretary Marcantel contends that the State of New Mexico has not waived immunity under the NMTCA for the claims asserted. Id. The parties agreed to drop Plaintiffs' claim against NMCD, but all other claims remain intact. See Pls.' Resp at 1, ECF No. 20; Defs.' Rep at 1-2, ECF No. 25.

         In their response brief, Plaintiffs raised new allegations that were not contained in their Complaint. For example, they alleged that Secretary Marcantel and NMCD placed Mr. Sabeerin in solitary confinement to block his access to court to pursue post-conviction remedies. Defendants placed Mr. Sabeerin - who appealed his convictions pro se - in solitary confinement before and after each motions hearing, according to Plaintiffs, to pressure him to drop his appeals. Plaintiffs also amplified some of their allegations against Secretary Marcantel, detailing his supervisory role in creating inmate discipline policies, including solitary confinement. Finally, Plaintiffs ask the Court to convert Defendants' Motion to a motion for summary judgment. Plaintiffs attached seven exhibits to their response brief that contest Defendants' version of events, and request limited discovery. Defendants oppose this request and ask the Court to ignore Plaintiffs' newly raised allegations.

         III. LEGAL STANDARDS

         A. Motion to dismiss based on qualified immunity

         To survive dismissal, a complaint must set forth factual allegations that “raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). When reviewing a plaintiff's complaint in ruling on a 12(b)(6) motion, the court must accept all well-pleaded allegations as true and construe them in a light most favorable to the plaintiff. Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009).

         Qualified immunity operates to protect officers from the “sometimes hazy border between excessive and acceptable force and to ensure that, before they are subjected to suit, officers are on notice that their conduct is unlawful.” Saucier v. Katz, 533 U.S. 194, 206 (2001) (internal citation and quotations omitted), overruled on other grounds by Pearson v. Callahan, 555 U.S. 223, 236 (2009). The doctrine protects “all but the plainly incompetent or those who knowingly violate the law.” Anderson v. Creighton, 483 U.S. 635, 638 (1987). “Officials who are mistaken about the lawfulness of their conduct may still be entitled to qualified immunity if the mistake is reasonable in light of the applicable law and the facts known to them at the time.” Gomes v. Wood, 451 F.3d 1122, 1136 (10th Cir. 2006). If officials of reasonable competence could disagree about the lawfulness of the challenged conduct, then the defendant is entitled to qualified immunity. Id.

         Although a plaintiff can overcome the defense without a favorable case directly on point, existing precedent must have placed the constitutional question “beyond debate.” Aldaba v. Pickens, 844 F.3d 870, 877 (10th Cir. 2016). “Clearly established law” must not be defined “at a high level of generality.” White v. Pauly, 137 S.Ct. 548, 552 (2017). “Once the qualified immunity defense is asserted, the plaintiff bears a heavy two-part burden to show, first, the defendant's actions violated a constitutional or statutory right, and, second, that the right was clearly established at the time of the conduct at issue.” Eckert v. Dougherty, 658 F.App'x 401, 405 (10th Cir. 2016). “Asserting a qualified immunity ...


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