United States District Court, D. New Mexico
BOBACK SABEERIN, MICHELLE ROYBAL, J.R. and S.S. Plaintiffs,
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
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.
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
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.
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.
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.
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.
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.
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.
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.
Motion to dismiss based on qualified immunity
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
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.
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 ...