United States District Court, D. New Mexico
DAVID R. HARTMAN, Plaintiff,
CITY OF ROSWELL, and MIGUEL ANGEL LOPEZ, Defendants.
ORDER DENYING WITHOUT PREJUDICE DEFENDANTS'
MOTION TO DISMISS AND DIRECTING PLAINTIFF TO FILE AMENDED
R. SWEAZEA, UNITED STATES MAGISTRATE JUDGE.
MATTER comes before the Court on Defendants City of
Roswell and Officer Miguel Angel Lopez's motion to
dismiss Plaintiff David Hartman's complaint. (Doc. 5);
see Fed. R. Civ. P. 12(b)(6). The City and Officer
Lopez assert that Hartman's pleading fails to plausibly
establish that their actions deprived Hartman of his First
Amendment rights under the United States Constitution.
Hartman filed a response in opposition to the motion (Doc.
13), and the City and Officer Lopez submitted a reply.
(Doc.14). With the consent of the parties to conduct
dispositive proceedings, see 28 U.S.C. §
636(c), the Court has considered the parties' submissions
and concludes that, as written, Hartman's complaint does
not state a plausible claim for relief under 42 U.S.C. §
1983. Nonetheless, at this early stage of the litigation, the
Court is not convinced amendment would be futile and will not
dismiss the case with prejudice.
is a resident of Roswell, New Mexico. (Doc. 1-1, Compl.
¶ 1). In July of 2016, Hartman “became
very concerned with certain issues regarding operations in
the City of Roswell.” (Id., ¶ 6).
Hartman's concerns prompted a call to then City manager,
Johnathan Phillips. (Id., ¶7). When Hartman saw
no improvement, he made multiple other calls to the manager.
(Id. . ¶ 8). According to Hartman, the calls
were not “threatening, harassing, or violent toward Mr.
Phillips.” (Id., ¶ 9).
of 2016, “certain issues regarding the operations of
the City” were not Hartman's only concern. To
Hartman's view, there were City code violations not being
enforced. (Id., ¶ 10). As above, Hartman
vocalized his concerns to the “City of Roswell Code[s]
Enforcement, ” but at some point was told by Officer
Lopez “not to contact Code[s] Enforcement if he
[Hartman] is just going to complain.” (Id.,
on July 20, 2016, the City manager reported Hartman to the
Roswell Police Department. (Id., ¶¶ 13).
Officer Lopez responded, spoke to the City manager and
someone named “Mr. Butts, ” listened to
Hartman's “recorded phone, ” and charged
Hartman with the misdemeanor offense of “use of
telephone to terrify, intimidate, threaten, harass, annoy or
offend in violation of NMSA 30-20-12. (Id.,
¶¶ 14-16). At all times, Hartman alleges, he was
engaged in constitutional speech protected by the First
Amendment. (Id., ¶ ¶ 17-18). Nonetheless,
Hartman was arrested by Officer Lopez, booked into jail, and
forced to hire an attorney to defend him. (Id.,
¶ ¶ 19-22) On December 14, 2016, the charges were
dismissed. (Id., ¶ 24).
commenced this action on June 13, 2017, in the Fifth Judicial
District Court for Chaves County, New Mexico. (Doc. 1-1) In
his single-count complaint, Hartman alleges that the City and
Officer Lopez deprived him of First Amendment rights.
(Id., ¶¶ 28-24). The City and Officer
Lopez removed the case to this Court on November 7, 2017
invoking the Court's federal-question jurisdiction.
(Doc.1). The instant motion to dismiss followed.
motion to dismiss under Federal Rule of Civil Procedure
12(b)(6) tests the sufficiency a pleading within its four
corners. Mobley v. McCormick, 40 F.3d 337, 340 (10th
Cir. 1994) “A complaint must allege facts that, if
true, state a claim to relief that is plausible on its
face.” Mayfield v. Bethards, 826 F.3d 1252,
1255 (10th Cir. 2014) (internal quotation marks and citation
omitted). Plausibility does not concern itself with the
likelihood or probability of success on the merits; instead,
the question is whether factual allegations “raise a
right to relief above the speculative level.”
Id. The Court assesses plausibility by looking to
the substantive law that governs the claims alleged. See
Khalik v. United Air Lines, 671 F.3d 1188, 1192 (10th
Cir. 2012); Robbins v. Oklahoma, 519 F.3d 1242, 1248
(10th Cir. 2008). In determining whether the complaint
survives a motion to dismiss, the Court must assume the truth
of the facts in the pleading, take those facts in the light
most favorable to the plaintiff, and assess whether they give
rise to a reasonable inference that the defendant is liable
in light of the applicable law. See Mayfield 826
F.3d at 1255.
context of 42 U.S.C. § 1983, which provides the
exclusive mechanism by which a plaintiff may obtain money
damages for constitutional deprivations caused by local law
enforcement, the plaintiff must allege facts sufficient to
demonstrate the officer violated a constitutional right that
was clearly established at the time in question. See
Robbins, 519 F.3d 1242, 1249 (10th Cir. 2008). A
plausible complaint under Section 1983 “requires enough
[factual] allegations to give the defendants notice of the
theory under which [the plaintiff's] claim is
made.” Id. Where more than one defendant is
involved, the notice requirement means the plaintiff must
plead “exactly who is alleged to have done what to
pleads a single count of retaliation under the First
Amendment against “Defendants” collectively.
Hartman's claim has four essential elements: (1) the
plaintiff engaged in a constitutionally protected activity;
(2) a defendant's action caused him to suffer an injury
that would chill a person of ordinary firmness from
continuing to engage in that activity; (3) a defendant's
action was substantially motivated as a response to his
exercise of his First Amendment speech rights; and (4) there
was a lack of probable cause for the arrest. See Becker
v. Kroll, 494 F.3d 904, 925 (10th Cir. 2007). The
compliant, however, offers only the following facts against
Officer Lopez and the City: (1) Officer Lopez told Hartman
not to call Codes just to complain; (2) on July 20, 2016,
Officer Lopez spoke with the City manager and a “Mr.
Butts”; (3) Officer Lopez listened to
“Plaintiff's recorded phone”; (4) after doing
so and speaking with the manager and Butts, Officer Lopez
arrested and charged Hartman with the misdemeanor offense of
using the “telephone to terrify, intimidate, threaten,
harass, annoy or offend[.]”; and (5) the City employed
Officer Lopez. (Doc. 1-1, ¶¶ 11-22). These facts do
not state a plausible claim for retaliation.
Officer Lopez, even if the Court takes as true Hartman's
allegation that his complaints to City manager and Codes as
activity protected by the First Amendment, the Court can only
guess as to the substance of Officer Lopez's conversation
with the manager and Mr. Butts on July 20, 2016 and the
contents of the “recorded phone [call]” that
preceded Hartman's arrest. Without details on these two
things, Hartman has not pleaded facts demonstrating that
Officer Lopez lacked probable cause to charge and arrest
Hartman for violating N.M. Stat. Ann. § 30-2-12. See
Baptiste v. J.C. Penney Co., 147 F.3d 1252, 1258 (10th
Cir. 1998) (officer may rely upon reasonably trustworthy
statement of witnesses and victims, as well recordings, in
determining whether a prudent person would believe the
accused committed the offense); Hartman v. Moore,
547 U.S. 250, 265-266 (2016) (holding that the absence of
probable cause must be pleaded and proven). This deficiency
is more pronounced because, as alleged, Hartman did not voice
concerns to Officer Lopez directly, but instead to other
public employees who are not named defendants. Thus, the
Court cannot discern form the four corners of the complaint
what supported and motivated the arrest and criminal charge.
terms of the City, it is unclear how a municipal corporation
itself may charge anyone with a criminal offense.
Certainly, its duly commissioned police officer may effect
arrests and initiate the filing of a criminal complaint, but
a municipality's employment of a constitutional
tortfeasor-the only fact alleged against the City in the
complaint-does not plausibly give rise to the City's
liability under Section 1983. See Monell v. Dep't of
Soc. Servs., 436 U.S. 658, 691 (1978) (holding that
“a municipality cannot be held liable solely
because it employs a tortfeasor”). While there may be
other theories-and Hartman's response to the motion to