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Ruff v. Board Of Regents Of University Of New Mexico

United States District Court, D. New Mexico

January 24, 2018



          M. CHRISTINA ARMIJO Chief United States District Judge

         THIS MATTER is before the Court on Defendants' Motion to Dismiss Plaintiffs' Section 1983 Claims [Doc. 16] and Defendants' Motion to Dismiss Plaintiffs' State Law Tort Claims [Doc. 18]. The Court, having considered the parties' submissions, the relevant law, and otherwise being fully advised in the premises, hereby GRANTS both Motions.


         Because the pending motions are motions to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the Court sets forth the relevant plausible factual allegations in Plaintiffs' First Amended Verified Complaint for Civil Rights Violations and State Tort Claims [Doc. 11] (hereafter, Complaint), accepts them as true, and grants all reasonable inferences the plausible factual allegations allow. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

         During the relevant period, Plaintiff Ryan Ruff was a student at Central New Mexico Community College. [Doc. 11, ¶ 121] Plaintiffs Crusoe Gongbay and SaQwan Edwards were students at the University of New Mexico (UNM) and were on UNM's football team. [Doc. 11, ¶¶ 127, 133');">33, 670] All three Plaintiffs are African American men. [Doc. 11, ¶ 452] In April of 2014, Courtney Spencer, a white female student at UNM, accused all three Plaintiffs of sexually assaulting her. [Doc. 11, ¶ 19] Plaintiffs, however, allege that Spencer engaged in consensual sexual activity with all three of them and that there were witnesses and video evidence which showed that the sexual acts were consensual.[1" name="FN1" id= "FN1">1] [Doc. 11, ¶¶ 363, 369, 379, 380, 383, 386] Plaintiffs now sue the Board of Regents of UNM, the Chief of Police of the UNM Police Department (UNMPD), and eight named UNMPD officers in their individual and official capacities. Plaintiffs generally allege that Defendants violated their constitutional rights, violated federal statutes, and committed various torts in conducting a deficient investigation and in pursuing criminal charges against them. [Doc. 11, ¶ 28]

         As pleaded by Plaintiffs, at some point in the late hours of April 12, 2014, or the early hours of April 13, 2014, Spencer reported to a resident advisor that she was “kidnapped and gang-raped by (3) three black men[] in the back seat of a small dark colored passenger vehicle.” [Doc. 11, ¶¶ 109-111] The resident advisor contacted UNM authorities and UNMPD began to investigate the alleged crime. [Doc. 11, ¶ 111] Shortly thereafter, Spencer met with a sexual assault nurse examiner and gave a detailed statement to UNMPD officers. [Doc. 11, ¶ 113]

         Plaintiffs allege that various statements by Spencer were inconsistent with other evidence available to UNMPD. Plaintiffs allege that evidence available to Defendants, but not collected, demonstrated that Spencer attended a gathering of ten people (none of whom were the Plaintiffs in this case) in a dorm room sometime after 9:00 p.m. on April 12, 2014. [Doc. 11, ¶ 343-44] At that gathering, several witnesses observed Spencer “engaging in stripping activities, partially unclothed lap dances, . . . kissing of various party attendees[, ]” and “groping the genitalia” of one of the attendees “during one of her provocative and lascivious ‘lap dances.'” [Doc. 11, ¶¶ 345, 347, 348, 349] “One of the attendees even videotaped” Spencer groping an attendee during a lap dance. [Doc. 11, ¶ 348] This gathering disbanded by 11:30 p.m., and Spencer left with two of the male attendees of the gathering to go to an “off campus house party.” [Doc. 11, ¶¶ 352, 353, 355, 356] On the way, Spencer offered to perform fellatio on the driver, and did so briefly once he parked his vehicle outside the house party. [Doc. 11, ¶¶ 357, 358] Thereafter, the driver left his vehicle, and Spencer and the male passenger “engaged in additional voluntary sexual acts, first engaging in [fellatio], which gravitated to unprotected sexual intercourse, in the back seat.” [Doc. 11, ¶¶ 359, 360] Thereafter, Spencer and the male passenger exited the vehicle, and “[a]ccording to numerous fact witness accounts, in the early morning hours of approximately 12:30 a.m. on April 13, 2014, Courtney Spencer for the first time[] encountered Plaintiffs Ruff, Gongbay, and Edwards, who were accompanied by [a male] fact witness.” [Doc. 11, ¶ 363]

         Spencer “intercepted” the four men, who were walking to Plaintiff Ruff's vehicle, engaged in conversation and “lewd and suggestive behavior towards the Plaintiffs[, ] including specific sexually charged comments directed at the Plaintiffs” and suggested that she wanted to go with them to Plaintiff Gongbay's residence because “she was ‘bored.'” [Doc. 11, ¶¶ 366, 367] During this interaction, she also purportedly “groped the genitalia of Plaintiff Gongbay.” [Doc. 11, ¶ 369] Plaintiffs allege that “proper investigation[] would have revealed that at approximately 12:45 to 1:15 a.m. on the morning of April 13, 2014, Courtney Spencer voluntarily entered the front passenger side of Plaintiff Ruff's BMW, voluntarily sitting on the lap of Plaintiff Edwards in the front passenger seat.” [Doc. 11, ¶ 371] “While in the front seat of Plaintiff Ruff's BMW, Ms. Spencer disrobed to her underwear and gave Plaintiff Edwards a provocative and sexually charged ‘lap dance[, ]'” “‘twerking' on Plaintiff Edwards, taking off her clothes and groping the Plaintiffs.” [Doc. 11, ¶¶ 373, 374] One of the Plaintiffs recorded “Spencer's lewd and lascivious behavior [including the lap dance] on a cellular telephone in a [S]napchat video, showing the Plaintiffs and Ms. Spencer laughing and singing to the song ‘Slutty-boy Gangbang.'” [Doc. 11, ¶ 375]

         “After arriving at Plaintiff Gongbay's apartment, Ms. Spencer continued her provocative behavior by removing the remainder of her clothing, voluntarily engaging in erotic dancing, grinding on the Plaintiffs and offering sexual acts to Plaintiff Edwards.” [Doc. 11, ¶ 378] “Plaintiff Edwards accepted Ms. Spencer's offer and the two engaged in voluntary consensual sex within the Gongbay residence.” [Doc. 11, ¶ 379] “Albeit distasteful, one of the Plaintiffs recorded Ms. Spencer's sexual act in the Gongbay apartment in a [S]napchat video, including but not limited to her voluntarily engaging in oral and vaginal sex with Plaintiff Edwards.” [Doc. 11, ¶ 380]

This [Snapchat] video documented that Ms. Spencer was the aggressor during the sexual interlude with Plaintiff Edwards, showing Ms. Spencer on top of Plaintiff Edwards while [per]forming fellatio as Plaintiff Edwards smiled to the camera. Further, while in the missionary position, Ms. Spencer was recorded pulling Plaintiff Edwards onto her on several occasions.

         [Doc. 11, ¶ 381]

         Thereafter, at some time before 3:00 a.m. on April 13, 2014, Plaintiff Ruff offered to take Spencer back to her dorm, and she agreed. [Doc. 11, ¶ 384] “Ms. Spencer complained to Plaintiff Ruff that ‘she had not been sexually satisfied' that evening and asked Plaintiff Ruff to pull the car over in a [parking] lot at her dormitory. Plaintiff acquiesced and the two engaged in sexual intercourse in Plaintiff Ruff's car.” [Doc. 11, ¶ 385] “During their sexual interlude, Plaintiff Ruff's vehicle was parked at the Casa Del Rio Dorms in full view of numerous video cameras on that campus. While parked, Ms. Spencer proceeded to take Plaintiff Ruff's pants off and performed oral sex on him, which was followed by voluntary consensual sexual intercourse.” [Doc. 11, ¶ 386] Thereafter, Spencer, forgetting that she left her cell phone and purse at the dorm room gathering earlier, began searching around in Plaintiff Ruff's vehicle for her items. [Doc. 11, ¶¶ 389, 395] In searching the vehicle, she grabbed Plaintiff Ruff's “legally registered handgun, ” thus observing and potentially leaving her fingerprints on the gun. [Doc. 11, ¶¶ 391, 392] Spencer left the vehicle, and at that time was “noticeably upset at Plaintiff Ruff, since she could not locate her purse or phone and complained that the items were still in” his vehicle. [Doc. 11, ¶ 395]

         Plaintiffs allege that it was “apparent that there were numerous inconsistencies in [Spencer's] reported story, which should have been obvious to a well-trained, experienced, proficient and unbiased investigator.” [Doc. 11, ¶ 114] However, Plaintiffs allege that the UNMPD officers working on the case “were either[] untrained; grossly undertrained; and/or failed to follow standard operating procedures (S.O.P[.]'s) for the proper investigation of sexual assaults.” [Doc. 11, ¶ 318] Defendants UNMPD officers “were directed to conduct their criminal investigation, intentionally targeting the three African American Plaintiffs alleged to be involved in the crime.” [Doc. 11, ¶ 115] Accordingly, during the week following the alleged assault, “[d]espite having early knowledge of crucial and important details, . . . [including] the location of the alleged crime, details of the facts and the location of important evidence[], Defendants knowingly and intentionally failed to identify important witnesses and/or secure valuable evidence.” [Doc. 11, ¶ 116] Plaintiffs assert that Defendants failed to obtain, preserve, and review surveillance video footage, failed to secure statements, and allowed witnesses to disappear. [Doc. 11, ¶¶ 632, 635] Moreover, according to Plaintiffs, Defendants built a criminal case against Plaintiffs, “knowing that [Plaintiffs] were innocent and that probable cause did not support arrest or prosecution.” [Doc. 11, ¶ 118]

         Eight days after the alleged sexual assault, on April 21, 2014, UNMPD filed criminal complaints and obtained arrest warrants for Plaintiffs Ruff and Gongbay. [Doc. 11, ¶¶ 121, 123, 127, 128] On April 29');">29, 2014, Plaintiff Edwards was detained and arrested by UNMPD. [Doc. 11, ¶ 133');">33] Plaintiffs were charged with kidnapping and criminal sexual penetration. [Doc. 11, ¶¶ 121, 127, 133');">33] All three Plaintiffs adamantly denied the charges and proclaimed their innocence. [Doc. 11, ¶¶ 126');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26, 132, 137]

         On April 25, 2014, Plaintiff Edwards submitted DNA to UNMPD pursuant to a warrant. [Doc. 11, ¶ 158] There is an audio recording of an exchange between various UNMPD officers after the DNA collection was completed and Edwards left the room. [Doc. 11, ¶ 158] During the exchange, Defendant Guevara, the lead investigator of the case, stated:[2]

But it's all Crusoe. It's all Crusoe, it's none of these other guys, you know. . .” “But, [i]f we can put them all together, especially Crusoe. . . . If Crusoe's got several charges over his head, that guy's going to sing like a bird. They all know him by name.

         ” [Doc. 11, ¶¶ 142, 273] In another exchange between the officers, an unidentified officer stated, “You guys are just trying to railroad these guys, man. . .” to which another unidentified officer stated “‘Yeah, well, we made him get [an attorney, ] Paul Kennedy, right?' [Officer SINGING] ‘That's how we do it [‘]round[] here. . .'” [Doc. 11 ¶¶ 202-206] Defendant Guevara also stated that this case was going to be the biggest case he had ever done, his “Everest, ” and that he always wanted a “big fucking case with high big dollar attorney stuff, and let's get in the fucking ring and get it on.” [Doc. 11, ¶¶ 231, 255] Plaintiffs allege that these statements show that “Defendant UNMPD Officers knew and/or had reason to believe that at least two of the Plaintiffs[] (Ryan Ruff and SaQwan Edwards) were innocent, but Defendants moved forward pursuing criminal charges” against them anyway. [Doc. 11, ¶ 288] Plaintiffs also allege that these statements demonstrate that Defendants UNMPD Officers acted out of “racial animus.” [Doc. 11, ¶ 158]

         Plaintiffs allege that their counsel provided exculpatory video evidence (although the Complaint does not state the date this evidence was disclosed). [Doc. 11, ¶¶ 29');">293, 29');">296] However, even after Officer Guevara had the video evidence, he continued to pursue the allegations against Plaintiffs by interviewing Spencer on June 16, 2014 and suggesting to her that she was mistaken about details in the video, thus attempting to influence her to “alter her previous testimony.” [Doc. 11, ¶¶ 29');">296-310]

         The charges against Plaintiffs were eventually dismissed by nolle prosequi. [Doc. 11, ¶ 644] Nonetheless, prior to the conclusion of the criminal investigation, UNM indefinitely suspended Plaintiffs Gongbay and Edwards from playing football [Doc. 11, ¶¶ 667] and indefinitely banned Ruff from its campus. [Doc. 11, ¶ 668] UNM's Office of Equal Opportunity conducted a separate disciplinary investigation contemporaneous with the criminal investigation. [Doc. 11, ¶¶ 407, 408] Ultimately, that investigation found that there was “no credible or actionable evidence” against Plaintiffs Gongbay and Edwards (the UNM students), and Plaintiffs do not sue based on that outcome. [Doc. 11, ¶ 410]

         Additional allegations, as necessary, are set forth below in discussing Plaintiffs' claims.


         Federal Rule of Civil Procedure 8(a)(2) requires a complaint to set out “a short and plain statement of the claim showing that the pleader is entitled to relief.” Federal Rule of Civil Procedure 12(b)(6) allows a defendant to file a motion to dismiss for “failure to state a claim upon which relief can be granted.” In Bell Atlantic Corporation v. Twombly, 550 U.S. 544 (2007), the Supreme Court adopted the following test governing Rule 12(b)(6) motions to dismiss: “to withstand a motion to dismiss, a complaint must have enough allegations of fact, taken as true, ‘to state a claim to relief that is plausible on its face.'” Kansas Penn Gaming, LLC v. Collins, 3d 1210');">656 F.3d 1210, 1214 (10th Cir. 2011) (quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (emphasis added). The Court accepts as true all “plausible, non-conclusory, and non-speculative” facts alleged in the plaintiff's complaint, Shrader v. A1 Biddinger, 33');">33 F.3d 1235');">633');">33 F.3d 1235, 1239 (10th Cir. 2011) (internal quotation marks and citation omitted); provided that “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678. In short, in ruling on a Rule 12(b)(6) motion, “a court should disregard all conclusory statements of law and consider whether the remaining specific factual allegations, if assumed to be true, plausibly suggest the defendant is liable.” Collins, 656 F.3d at 1214.

         “[I]f a plaintiff does not incorporate by reference or attach a document to its complaint, but the document is referred to in the complaint and is central to the plaintiff's claim, a defendant may submit an indisputably authentic copy to the court to be considered on a motion to dismiss” without converting the motion to dismiss into a motion for summary judgment. GFF Corp. v. Associated Wholesale Grocers, Inc., 130 F.3d 1381');">130 F.3d 1381, 1384 (10th Cir. 1997). When public records are referenced in the complaint, a court reviewing a motion to dismiss may consider such documents. See Eckert v. Dougherty, 658 F. App'x 401, 404 n.1 (10th Cir. 2016) (unpublished decision) (stating, in considering whether a warrant application demonstrated probable cause, that the Court “ha[s] authority to review [the search warrant and warrant application] because we may take judicial notice of public records” (internal quotation marks and citation omitted)); Aragón v. De Baca Cnty. Sheriff's Dep't, 3 F.Supp.3d 1283');">93 F.Supp.3d 1283, 1287 (D.N.M. 2015) (considering a search warrant application relied on by the plaintiff in her complaint, provided by the defendants, and the authenticity of which was not disputed by the plaintiff, in deciding whether the officers were entitled to qualified immunity based on warrant application).


         Standard Governing Qualified Immunity

The doctrine of qualified immunity shields officials from civil liability so long as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. . . . A clearly established right is one that is sufficiently clear that every reasonable official would have understood that what he is doing violates that right. . . . Put simply, qualified immunity protects all but the plainly incompetent or those who knowingly violate the law.

         Mullenix v. Luna, 136 S.Ct. 305');">136 S.Ct. 305, 308 (2015) (internal quotation marks and citations omitted). The Court must not “define clearly established law at a high level of generality.” Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011). “T]he driving force behind creation of the qualified immunity doctrine was a desire to ensure that insubstantial claims against government officials will be resolved prior to discovery.” Pearson v.

         Callahan, 3');">555 U.S. 223, 231 (2009) (internal brackets, quotation marks, and citation omitted). “The judges of the district courts . . . [have] discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.” Id. at 236.

         All Section 1983 Claims Against Defendant UNM and the Individual Defendants in their Official Capacity

         Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress[.]

         42 U.S.C. § 1983. Defendants argue that Defendant UNM and the individual Defendants in their official capacity are not persons pursuant to Section 1983. Will v. Mich. Dep't of State Police, 1 U.S. 58');">491 U.S. 58, 70-71 (1989) (“We hold that neither a State nor its officials acting in their official capacities are “persons” under § 1983.”).[3" name="FN3" id= "FN3">3] [Doc. 17');">17');">17');">17, p. 4]

         Plaintiffs respond with two arguments.

         Plaintiffs respond by first arguing that UNM waived immunity under the Eleventh Amendment with regard to Plaintiffs' Section 1983 claims. [Doc. 26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26, pp. 9-10] Defendants, however, make no argument based on the Eleventh Amendment, and in fact “UNM concedes it waived its Eleventh Amendment immunity by removing this case to federal court.” [Doc. 17');">17');">17');">17; Doc. 33');">33, p. 2] Accordingly, this Court does not find that UNM has immunity under the Eleventh Amendment with regard to Plaintiffs' Section 1983 claims. Further, Plaintiffs misunderstand the difference between Eleventh Amendment immunity, which a state can waive if it removes state-law claims to federal court, and claims brought pursuant to Section 1983. However, our Supreme Court addressed this issue in Lapides v. Bd. of Regents of Univ. Sys. of Georgia, 35 U.S. 613');">535 U.S. 613, 617');">17');">17');">17 (2002). Therein, the Court held that a state waives Eleventh Amendment immunity when it removes a case to federal court, but expressly limited its holding to state-law claims. Id. With regard to claims brought under Section 1983, the Court recognized that a state (including a state university) is not a person as defined by the statute. Id. The same holding is required in this case, and thus the Court concludes that Plaintiffs' Eleventh Amendment argument is unpersuasive.

         Second, Plaintiffs argue that UNM should not be dismissed because UNM, under the name of the Regents of the University of New Mexico, is an entity which can sue and be sued pursuant to the New Mexico Tort Claims Act (NMTCA). NMSA 1978, § 21-7-4 (1889) (“The regents of the university and their successors in office shall constitute a body corporate under the name and style of, the regents of the university of New Mexico, with the right, as such, of suing and being sued.”). [Doc. 26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26, 1');">p. 11');">1');">p. 11] The Court takes no issue with this statement of law - however, its application here is of no help to Plaintiffs. Just like the Eleventh Amendment, the NMTCA does not change the definition of the term “person” under Section 1983. Pursuant to Section 1983, neither a state, an arm of the state, nor an individual defendant in his or her official capacity, can be sued for monetary damages because they are not “persons” as defined by the statute.[4] Hafer v.Melo, 1');">502 U.S. 21, 26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26-27 (1991).

         “[N]either a State nor its officials acting in their official capacities are ‘persons' under § 1983.” Will, 491 U.S. at 70-71. Accordingly, Plaintiffs' Section 1983 claims against UNM (and against the individual defendants in their official capacities) must be dismissed.

All Section 1983 Claims Against Defendants Romero, Duren, Santiago, Catanach, and Fox

         Next, Defendants argue that Plaintiffs' Section 1983 claims against Defendants Romero, Duren, Santiago, Catanach, and Fox should be dismissed because Plaintiffs failed to plead factual allegations against each of them which provide them with fair notice of Plaintiffs' allegations against them. [Doc. 17');">17');">17');">17, pp. 5-7] Defendants correctly argue that Plaintiffs failed to meet the Iqbal/Twombly requirements to state a claim with regard to these five Defendants. Plaintiffs plead only conclusory allegations against these individual Defendants. In their entirety, Plaintiffs' allegations against these Defendants are: each of these five persons reside in New Mexico and are employed as police officers by the UNMPD [Doc. 11, ¶¶ 93-97, 100], that the five officers acted in the course and scope of their employment and under color of state law [Doc. 11, ¶ 101], that the five officers are law enforcement officers as defined by the NMTCA, [Doc. 11, ¶ 103], that they acted individually and in concert and they knowingly and intentionally ignored Plaintiffs' actual innocence in order to gain personal accolades for themselves and notoriety for UNMPD [Doc. 11, ¶ 156]. These conclusory allegations are not sufficient to provide notice to the Defendants of the wrongful acts they allegedly committed. See Robbins v. Okla., 19 F.3d 1242');">519 F.3d 1242, 1247 (10th Cir. 2008) (“The burden is on the plaintiff to frame a complaint with enough factual matter (taken as true) to suggest that he or she is entitled to relief.” (Internal quotation marks and citation omitted)).

         Plaintiffs respond by arguing that their allegations meet the plausibility standard of pleading and the fact that some of their allegations were made “upon information and belief” is insufficient to dismiss. [Doc. 26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26, 1');">p. 12');">1');">p. 12 n.9] However, Defendants' issue is not with Plaintiffs' reliance upon an allegation made “upon information and belief, ” but rather with the failure to state a factual basis “from which it could be plausibly inferred that Defendants Romero, Duren, Santiago, Catanach, and Fox personally participated in Plaintiffs' claimed deprivation of constitutional rights.” [Doc. 17');">17');">17');">17, p. 7');">p. 7] Defendants are correct: the Complaint fails to identify any action taken by these Defendants, let alone any deprivation of Plaintiffs' constitutional rights. Accordingly, the Complaint fails to state a claim against these Defendants. Robbins, 519 F.3d at 1250 (stating that, in cases against a government agency and several government actors sued in their individual capacities, a complaint must “make clear exactly who is alleged to have done what to whom, to provide each individual with fair notice as to the basis of the claims against him or her, as distinguished from collective allegations against the state”).

         Finally, Plaintiffs argue that “Defendant UNM and the keeper of records have willfully withheld information pertinent to this lawsuit, ” and that they “will seek leave to amend their complaint to add factual contentions as against Defendants Romero, Duren, Santiago, Catanach, and Fox once it becomes feasible to do so.” [Doc. 26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26, 1');">p. 12');">1');">p. 12] As set forth later in this Opinion, as to Plaintiffs' Section 1983 claims, even assuming Plaintiffs obtained more information, these Defendants would be granted qualified immunity (like the remaining individual Defendants), and, therefore, the Court will not grant leave for Plaintiffs to amend their complaint to add allegations against these Defendants related to their Section 1983 claims.

         The Court having dismissed Plaintiffs' Section 1983 claims against Defendants UNM, Romero, Duren, Santiago, Catanach, and Fox, the remainder of the Court's discussion of this Motion [Doc. 16] pertains to only the Section 1983 claims against the five remaining individual Defendants in their individual capacities.

Count I, Violation of the Equal Protection Clause

         The individual Defendants argue that they are entitled to qualified immunity from Plaintiffs' “Equal Protection Claim” (Count I). Accordingly, to survive the claim of qualified immunity, Plaintiffs must both allege a constitutional violation and establish that the Defendants violated clearly established law. See Price-Cornelison v. Brooks, 3d 1103');">524 F.3d 1103, 1109 (10th Cir. 2008) (applying the qualified immunity analysis to a claim of selective enforcement in violation of the Equal Protection Clause). However, as discussed below, the Court determines that Plaintiffs have failed to allege a constitutional violation, and, therefore, the Court need not address whether Plaintiffs have established that Defendants violated a clearly established law. See Kerns v. Bader, 3 F.3d 117');">17');">17');">173');">663 F.3d 117');">17');">17');">173, 1190 (10th Cir. 2011) (stating that qualified immunity must be granted based on the lack of a constitutional violation “without pausing to address the clearly established law question”).

         The Equal Protection Clause of the United States “Constitution prohibits selective enforcement of the law based on considerations such as race.” Whren v. U.S., 17');">17');">17');">17 U.S. 806');">517');">17');">17');">17 U.S. 806, 813 (1996). To succeed on either a claim of racially selective prosecution or racially selective law enforcement, a plaintiff must “demonstrate that the defendant's actions had a discriminatory effect and were motivated by a discriminatory purpose.” Marshall v. Columbia Lea Reg'l Hosp., 345 F.3d 1157');">345 F.3d 1157, 1168 (10th Cir. 2003); United States v. Alcaraz-Arellano, 441 F.3d 1252, 126');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">264 (10th Cir. 2006) (stating that the elements of selective prosecution and selective enforcement “are essentially the same”).

To satisfy the discriminatory-effect element, one who claims selective enforcement “must make a credible showing that a similarly-situated individual of another race could have been, but was not, [stopped or] arrested for the offense for which the defendant was [stopped or] arrested.” . . . And the discriminatory-purpose element requires a showing that discriminatory intent was a “motivating factor in the decision” to enforce the criminal law against the defendant. . . . Discriminatory intent can be shown by either direct or circumstantial evidence.

Alcaraz-Arellano, 441 F.3d at 126');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">264 (internal citations and original ellipses omitted).

         To demonstrate a discriminatory purpose, Plaintiffs argue that “the conduct, behavior, and statements of the Defendant Officers - coupled with their subsequent actions in wrongfully pursuing the prosecution of the Plaintiffs, regardless of their known innocence, [at the very least] supports an ‘inference' of discriminatory purpose.” [Doc. 26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26, p1');">p. 14-15] Plaintiffs argue that the colloquy between various officers, including the admission of attempting to railroad them, is evidence that they knew that Plaintiffs were innocent but they nonetheless falsely charged them and sought their prosecution “with an eye towards individual gain and career advancement.” [Doc. 26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26, 1');">p. 15');">1');">p. 15] Plaintiffs also submit that, in the officers' haste to pursue the criminal investigation, they knowingly made the innocent Plaintiffs get a reputable criminal defense attorney; that the officers “doctor[ed] investigative reports, ” “leaked the case to the media, ”[5] and made “[lewd] and disrespectful comments in which they sexualize and dehumanize these black Plaintiffs.” [Doc. 11, ¶ 417');">17');">17');">17; Doc. 26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26, p1');">p. 15');">1');">p. 15-16] Further, in their Complaint, Plaintiffs allege that the officers' “animus and racial bias” is demonstrated by Officer Guevara's interview with Spencer in which Officer Guevara allegedly “attempts to alter the accuser's testimony” and a Department of Justice report which concluded that the Commanders, Supervisors and Officers of UNMPD “admit to being undertrained and in most cases, untrained” on how to properly handle sexual assault cases. [Doc. 11, ¶ 33');">335]

         Plaintiffs' argument is flawed. First, Plaintiffs fail to plead the first element of their selective enforcement claim, i.e., they fail to plead or argue that “a similarly-situated individual of another race could have been, but was not, arrested or referred for . . . prosecution for the offense for which [they were] arrested and referred, ” i.e., criminal sexual penetration and kidnapping. Id. at 126');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">26');">263 (internal quotation marks and citation omitted). This failure alone is fatal to Plaintiffs' equal protection claim. Second and alternatively, Plaintiffs' “evidence” of racial discrimination is based on non sequitur inferences. Even if, as Plaintiffs plead, the individual Defendants knew that Plaintiffs were innocent and falsely charged them anyway, this evidence alone is not sufficient to demonstrate that they did so because Plaintiffs are African American. See Tong v. New Mexico, 651 F. App'x 798, 800 (10th Cir. 2016) (unpublished) (holding that the plaintiff's allegation that she is Vietnamese and the federal officials who prosecuted her, the government's witnesses, and her alleged victims were all Hispanic was a “coincidence [which was] far from sufficient to permit a reasonable inference that she was prosecuted on account of her race”); Blackwell v. Strain, 496 F. App'x 836, 845-46 (10th Cir. 2012) (unpublished) (holding that an officer's “disturbingly hostile, aggressive, unprofessional, and confrontational demeanor for no apparent reason” was insufficient to demonstrate racial animus; reasoning that “[t]here is no indication [the officer] behaved the way he did, even in part, because [the plaintiff] is black. For all we know, [the officer] behaves in this same manner toward all of the truckers ...

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