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Salcedo v. City of Santa Fe

United States District Court, D. New Mexico

November 17, 2017

NELDA SALCEDO, Plaintiff,
v.
CITY OF SANTA FE and SANTA FE POLICE DEPARTMENT, City Police Officer BRYAN MARTINEZ, and such other officers yet to be identified, Defendants.

          MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS' MOTION TO DISMISS [1]

          KIRTAN KHALSA, UNITED STATES MAGISTRATE JUDGE.

         THIS 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.

         BACKGROUND

         For the 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.”[2] (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.)

         The 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.)

         Later 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.)

         Given 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.)

         This lawsuit arises out of the foregoing events. In her Complaint, Ms. Salcedo alleges several theories of liability against Defendants[3] (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 ¶ 31.)

         In 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.)

         In 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”)[4] by arresting Mr. Garcia. (Id. at 6-7.) The Court examines the viability of each of Ms. Salcedo's claims in turn.

         ANALYSIS

         I. The Legal Standards Governing a Motion to Dismiss

         Dismissal 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).

         II. Ms. Salcedo's State Law Tort Claims Under the New Mexico Tort Claims Act Are Barred by the Statute of Limitations.

         Defendants 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.

         III. Ms. Salcedo's Complaint Fails to State a Section 1983 Claim Upon Which Relief Can Be Granted

         The Law Governing a Section 1983 Claim

         Section 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 ...


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