United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS'
MOTION TO DISMISS 
KHALSA, UNITED STATES MAGISTRATE JUDGE.
MATTER comes before the Court on Defendants'
Motion to Dismiss (Doc. 6), filed June 21, 2017. Plaintiff
Nelda Salcedo (“Plaintiff” or “Ms.
Salcedo”) filed a Response on July 21, 2017. (Doc. 14.)
Defendants filed a Reply on July 28, 2017. (Doc. 15.) The
Court has reviewed the parties' submissions and the
relevant law, and is otherwise fully advised. For the reasons
that follow, the Court Grants the Motion,
and dismisses Plaintiff's Complaint with prejudice in
part, and without prejudice in part.
purpose of ruling on Defendants' motion to dismiss, the
Court assumes that the following facts, taken from the
complaint, are true. Mayfield v. Bethards, 826 F.3d
1252, 1255 (10th Cir. 2016). (“In reviewing a motion to
dismiss, [the Court] accept[s] the facts alleged in the
complaint as true and view them in the light most favorable
to the plaintiff.”). On or about December 19, 2013, Ms.
Salcedo requested and obtained an Order of Protection from
the Second Judicial District Court of New Mexico against her
husband, Raymond Garcia (“Mr. Garcia”)
restraining and forbidding him from unauthorized contact with
her, pursuant to “NMSA 1978, § 40-13-1, et
seq.” (Doc. 1-1 at ¶ 7.) Less than a month
later, on or about January 11, 2014, Mr. Garcia broke into
Ms. Salcedo's home in Santa Fe, New Mexico, and took her
children. (Id. at ¶ 8.) Ms. Salcedo “fled
from [her] home in her night clothes” which led her
neighbors to call the police. (Id. at ¶¶
8-9) Defendant Bryan Martinez, a City of Santa Fe Police
Officer, arrived on scene whereupon Ms. Salcedo reported to
him that her husband, Mr. Garcia, had taken her children and
that she feared for her life. (Id. at ¶ 10.) As
Ms. Salcedo was reporting the incident to Officer Martinez,
Mr. Garcia drove by in his truck, which Ms. Salcedo
identified for the officer. (Id. at ¶ 11.) Ms.
Salcedo also gave Mr. Garcia's telephone number to
Officer Martinez. (Id. at ¶ 12.) In Ms.
Salcedo's presence, Officer Martinez contacted Mr. Garcia
by phone. (Id. at ¶ 13.) After speaking with
Mr. Garcia, Officer Martinez told Ms. Salcedo that
“everything was alright[, ]” and he gave her a
domestic violence relations card. (Id. at
¶¶ 13-14.) Ms. Salcedo did not know what to do, and
she stayed in her automobile for the remainder of the night.
(Id. at ¶ 15.)
following day, on January 12, 2014, Ms. Salcedo contacted the
City of Santa Fe Police Department and, with the assistance
of Defendant “Officers Yet to Be Identified, ”
she recovered her children from Mr. Garcia and returned home.
(Id. at ¶¶ 16-17.) These yet-to-be
identified City of Santa Fe police officers who assisted Ms.
Salcedo in recovering her children, became aware during the
search for, and recovery of, the children that Mr. Garcia had
broken into Ms. Salcedo's house when he took the
children, and that, by entering her home, he had violated an
Order of Protection. (Id. at ¶ 17, 18.)
that same day, Ms. Salcedo called the City of Santa Fe police
to report that Mr. Garcia was at her home, and that he was
being aggressive. (Id. at ¶ 19.) The unnamed
City Of Santa Fe police officers who were dispatched to
investigate the disturbance told Ms. Salcedo that they
“could or would not” do anything; that the
“Temporary Restraining Order” was not valid and
would not be enforced; and that she “would be better
off at a shelter.” (Id. at ¶ 21-22.) Ms.
Salcedo reiterated to the officers that Mr. Garcia was in
violation of a restraining order and that he was being
emboldened to take further aggressive action. (Id.
at ¶ 23.)
the officers' unsatisfying handling of her report, Ms.
Salcedo went to a family shelter. (Id. at ¶
24.) And, with the aid of the staff of the family shelter,
she made an appointment to go to the Santa Fe Courthouse on
January 13, 2014, to check the status of the restraining
order, and, if necessary, to obtain an extension or a new
order. (Id. at ¶ 25.) While Ms. Salcedo was on
her way to the her appointment at the courthouse, Mr. Garcia
brutally attacked her-stabbing her several times and causing
severe injuries that required that she be hospitalized.
(Id. at ¶¶ 26-27.)
lawsuit arises out of the foregoing events. In her Complaint,
Ms. Salcedo alleges several theories of liability against
Defendants (the City of Santa Fe Police Department,
Officer Bryan Martinez, and such other Defendant Officers yet
to be identified) under the New Mexico Tort Claims Act.
Specifically, Ms. Salcedo points to Defendants' failure
to conduct an investigation, failure to act to protect her,
failure to take reasonable steps and follow proper police
protocols in handling the incidents, and failure to take
appropriate action in controlling Mr. Garcia as grounds for
her tort claims of negligence, negligent and intentional
infliction of emotional distress, and assault and battery.
(Doc. 1-1 at ¶¶ 29-32.) Ms. Salcedo's Complaint
also includes an equal protection claim, based upon
Defendants' alleged “failure to protect [her] under
the laws and statutes of the State of New Mexico.”
(Id. at ¶ 32.) Finally, Ms. Salcedo alleges,
broadly, that Defendants' “actions or lack
thereof” were “taken under color of state law and
[were] in violation of Plaintiff's Constitutional
rights[, thereby] subjecting the Defendants to liability
under 42 U.S.C. § 1983.” (Id. at ¶
their Motion to Dismiss, Defendants argue (1) that Ms.
Salcedo's Complaint has not stated a claim upon which
relief can be granted because it fails to allege what
constitutional right was violated, what the violation
consisted of, or who committed the alleged violation; (2)
that Ms. Salcedo's state law tort claims under the New
Mexico Torts Claims Act are barred by the statute of
limitations; (3) that Defendant Officer Bryan Martinez and
the other officers yet to be identified are entitled to
qualified immunity; and (4) that Defendants City of Santa Fe
and Santa Fe Police Department are not subject to municipal
liability because Ms. Salcedo has failed to show that a
municipal employee committed a constitutional violation and
that the municipality's custom or policy was the moving
force behind any violation of her constitutional rights.
(Doc. 6 at 3-7.)
Response to Defendants' Motion to Dismiss, Ms. Salcedo
maintains that her Complaint states viable claims under the
New Mexico Tort Claims Act. (Doc. 14 at 2.) She maintains,
further, that the Complaint includes viable claims pursuant
to Section 1983- arguing that she has stated an equal
protection claim arising from gender and/or marital status
discrimination (Doc. 14 at 5-6.); and two due process claims
premised, respectively, upon a theory of state-created
danger, and the Defendant-officers' failure to comply
with the New Mexico Family Violence Protection Act
(“NMFVPA”) by arresting Mr. Garcia. (Id. at
6-7.) The Court examines the viability of each of Ms.
Salcedo's claims in turn.
The Legal Standards Governing a Motion to
of a complaint under Federal Rule of Civil Procedure 12(b)(6)
is appropriate only if “it appears beyond doubt that
the plaintiff can prove no set of facts in support of [her]
claim [that] would entitle [her] to relief.”
Ramirez v. Dep't of Corr., Colo., 222 F.3d 1238,
1240 (10th Cir. 2000) (quotation omitted). “The
court's function on a Rule 12(b)(6) motion is not to
weigh potential evidence that the parties might present at
trial, but to assess whether the plaintiff's . . .
complaint alone is legally sufficient to state a claim for
which relief may be granted.” Broker's Choice
of Am., Inc. v. NBC Universal, Inc., 757 F.3d 1125, 1135
(10th Cir. 2014). Accordingly, all well-pleaded factual
allegations in the complaint are accepted as true and are
viewed in the light most favorable to the non-moving party,
Burnett v. Mortg. Elec. Registration Sys., Inc., 706
F.3d 1231, 1235 (10th Cir. 2013), but the pleadings must
“contain sufficient factual matter, accepted as true,
to state a claim to relief that is plausible on its
face.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (“The plausibility standard is not akin to a
probability requirement[.]”). To achieve facial
plausibility, a plaintiff must plead “factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
Id. That is, the complaint must “make clear
exactly who is alleged to have done what to
whom[.].” Kansas Penn Gaming, LLC v.
Collins, 656 F.3d 1210, 1215 (10th Cir. 2011). The Court
“need not accept [a party's] conclusory allegations
as true.” S. Disposal, Inc. v. Tx. Waste
Mgmt., 161 F.3d 1259, 1262 (10th Cir. 1998). Nor are
pleading deficiencies overcome by mere “arguments that
extend beyond the allegations contained in the
complaint.” Bauchman v. W. High Sch., 132 F.3d
542, 550 (10th Cir. 1997).
Ms. Salcedo's State Law Tort Claims Under the New
Mexico Tort Claims Act Are Barred by the Statute of
argue that Ms. Salcedo's state law tort claims under the
New Mexico Tort Claims Act (“NMTCA”) are barred
by the statute of limitations. (Doc. 6 at 4.) Ms.
Salcedo's Response does not include a substantive
response to this argument. The NMTCA provides that
“[a]ctions against a governmental entity or a public
employee for torts shall be forever barred, unless such
action is commenced within two years after the date
of occurrence[.]” NMSA 1978, § 41-4-15(A) (1977)
(emphasis added). Here, Ms. Salcedo claims that the incidents
giving rise to her cause of action under the NMTCA occurred
between January 11, and January 13, 2014. (Doc. 1-1 at
¶¶ 8, 16, 19, 25, 26.) Ms. Salcedo filed her
Complaint in state court on January 11, 2017, three years
after the incidents giving rise to her claims. As such, Ms.
Salcedo's state law tort claims are barred by operation
of Section 41-4-15(A). Ms. Salcedo has not presented any
argument or evidence that the statute of limitations should
be tolled. Accordingly, Ms. Salcedo's NMTCA claims shall
be dismissed with prejudice.
Ms. Salcedo's Complaint Fails to State a Section 1983
Claim Upon Which Relief Can Be Granted
Law Governing a Section 1983 Claim
1983 does not create substantive rights; rather it provides a
recovery mechanism for deprivation of substantive rights
under the United States Constitution. Albright v.
Oliver, 5 ...