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Fitzgerald v. State

United States District Court, D. New Mexico

January 31, 2018

LYNN R. FITZGERALD, Plaintiff,
v.
STATE OF NEW MEXICO, NEW MEXICO STATE POLICE, D. CAPEHART, individually and as an agent of the State of New Mexico, and as an officer of the New Mexico State Police, DEPARTMENT OF TAXATION AND REVENUE, as the agent of the State of New Mexico, Registration and Licensing Bureau, CHRIS BLAKE, State Police Captain, individually and in his official capacity, JOHN AND JANE DOES, 1-20, as training officers and supervisors of Officer D. Capehart, SUSANA MARTINEZ, Governor, and as the Chief Law Enforcement Officer of the State of New Mexico, Defendants.

          MEMORANDUM OPINION AND ORDER

         This matter is before the Court on pro se Plaintiff Lynn R. Fitzgerald's “First Motion To Remand Removed State Case And Brief In Support of Motion” [Doc. 9] and Defendants' Susana Martinez, D. Capehart, Chris Blake, the State of New Mexico, the New Mexico State Police Department, and the New Mexico Taxation and Revenue Department (hereinafter collectively referred to as Defendants) “First Motion To Dismiss Plaintiff's Complaint and Memorandum In Support Thereof” [Doc. 7]. Having reviewed the pleadings of record, the relevant case law, and otherwise being fully advised in the premises, the Court will grant Plaintiff's motion and remand this case to the Eleventh Judicial District of the County of San Juan, State of New Mexico.

         I. BACKGROUND

         On February 16, 2017, Plaintiff filed a complaint in the Eleventh Judicial District of the County of San Juan, State of New Mexico, against the following Defendants: (1) the State of New Mexico; (2) the New Mexico State Police; (3) D. Capehart, individually and in his official capacity; (4) the Department of Taxation and Revenue; (5) Chris Blake, individually and in his official capacity; (6) John and Jane Does 1-20, as training officers and supervisors of Defendant Capehart; and (7) Susana Martinez, as Governor and Chief Law Enforcement Officer of the State of New Mexico. [Doc. 1-2] Plaintiff's complaint alleges that on September 14, 2015, Defendant Capehart, an officer employed by Defendant New Mexico State Police Department, seized Plaintiff “without any specific, articulable facts, to create an individualized reasonable suspicion of criminal activity” and arrested Plaintiff without probable cause. [Doc. 1-2 at 2] Specifically, Plaintiff's complaint alleges that Defendant Capehart unlawfully ran Plaintiff's license plate number through a Mobile Data Terminal and learned that Plaintiff was operating a motor vehicle with an expired registration. [Doc. 1-2 at 2-3] Defendant Capehart initiated a traffic stop, during which Plaintiff presented a New Mexico State Identification Card that had the same number as his driver's license. [Doc. 1-2 at 3] Defendant Capehart discovered that Plaintiff's driver's license was expired and had been suspended and, thereafter, arrested Plaintiff for “driving on a suspended license.” [Doc. 1-2 at 4]

         On the basis of the foregoing alleged facts, Plaintiff's pro se complaint raises the following three claims “under the New Mexico Torts Claim Act 41-1-through 41-4-30 NMSA” [Doc. 1-2 at 1]: (1) that Defendant Capehart “violated Plaintiff's Fourth and Fourteenth Amendment Constitutional rights, as well as Plaintiff's New Mexico Constitutional Rights Article II, Section 10, and 18, By Confinement by Asserted Legal Authority to do so, and by unreasonable search and seizure without probable cause to do so” [Doc. 1-2 at 2]; (2) that “Agents of the New Mexico Department of Taxation and Revenue Bureau through the Registration and Licensing Department violated the Plaintiff's Due process rights by suspending the Plaintiff's registration without notice or hearing as required by law”; [Doc. 1-2 at 2] and (3) that “Agents of the New Mexico Department of Taxation and Revenue Bureau through the Registration and Licensing Department violated the Plaintiff's Due Process Rights by issuing the Plaintiff an ID card, with the same number as his expired drivers license without notice that number was suspended and would subject him to arrest.” [Doc. 1-2 at 2] Plaintiff's complaint seeks punitive damages and an order that “the State of New Mexico . . . issue the Plaintiff a valid ID Card with the required unique number, as mandated by law.” [Doc. 1-2 at 5-6]

         On March 23, 2017, Defendants removed Plaintiff's complaint to this Court on the basis of federal-question jurisdiction. [Doc. 1] On March 30, 2017, Defendants moved to dismiss Plaintiff's complaint pursuant to Rules 12(b)(6) and 12(b)(1) of the Federal Rules of Civil Procedure. [Doc. 7] Specifically, Defendants contend that Plaintiff's complaint fails to state a claim on which relief may be granted under Rule 12(b)(6) because: (1) Defendants State of New Mexico, New Mexico State Police, and Department of Taxation and Revenue are not “persons” amenable to suit under 42 U.S.C. § 1983; (2) Defendants Capehart, Blake and Martinez cannot be held vicariously liable for the torts of others under § 1983 and cannot be sued in their “official capacity”; and (3) the individual defendants are entitled to qualified immunity under § 1983 because Plaintiff's constitutional rights were not violated and the law was not clearly established. Defendants further contend that Plaintiff's New Mexico Tort Claims Act claims are subject to dismissal under Rule 12(b)(1) because Plaintiff failed to provide timely written notice of his tort claims as required by N.M. Stat. Ann. § 41-4-16(A), (B). [Doc. 7] Discovery in the present case has been stayed, pending the disposition of Defendants' motion to dismiss on the basis of qualified immunity. [Doc. 14]

         In lieu of filing a response to Defendants' motion to dismiss, Plaintiff filed a motion to remand this case to state court. [Doc. 9] Plaintiff contends that this case improperly was removed on the basis of federal-question jurisdiction because he did not plead a federal cause of action in his complaint. [Doc. 9] Plaintiff explains that the “Due Process Rights” referenced in his complaint are the rights conferred by N.M. Stat. Ann. §§ 66-2-111 and 66-5-230 [Doc. 9 at 3] and that in “[n]o place in the Plaintiff's cause of action does he complain of a violation of his Federal rights but instead alleges a anticipated defense to his cause of action.” [Doc. 9 at 4] Plaintiff further contends that diversity jurisdiction does not exist because “[a]ll the Defendants are residents of the State of New Mexico.” [Doc. 9 at 5] Defendants respond that a federal question plainly appears on the face of Plaintiff's complaint, because it alleges the violation of Plaintiff's constitutional rights under the United States Constitution and seeks punitive damages, which are not available under the New Mexico Tort Claims Act. [Doc. 12]

         II. DISCUSSION

         Plaintiff is proceeding pro se and “[a] pro se litigant's pleadings are to be construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). At the same time, it is not “the proper function of the district court to assume the role of advocate for the pro se litigant.” Id. Although a pro se plaintiff is not held “to the standard of a trained lawyer, ” the Court nonetheless must “rely on the plaintiff's statement of his own cause of action.” Firstenberg v. City of Santa Fe, 696 F.3d 1018, 1024 (10th Cir. 2012) (internal quotation marks and citation omitted). Thus, the Court “may not rewrite a [complaint] to include claims that were never presented.” Id. (alteration in original; internal quotation marks and citation omitted).

         The Court first will address whether Plaintiff's complaint properly was removed on the basis of federal-question jurisdiction. “Removal statutes are to be strictly construed . . . and all doubts are to be resolved against removal.” Fajen v. Found. Reserve Ins. Co., Inc., 683 F.2d 331, 333 (10th Cir. 1982) (citation omitted). “The party invoking federal jurisdiction has the burden to establish that it is proper and there is a presumption against its existence.” Salzer v. SSM Health Care of Oklahoma, Inc., 762 F.3d 1130, 1134 (10th Cir. 2014) (internal quotation marks and citation omitted). Pursuant to 28 U.S.C. § 1447(c), a district court must remand a case “[i]f at any time before final judgment it appears that [it] lacks subject matter jurisdiction.” 28 U.S.C. § 1447(c).

         An action initially filed in state court may be removed to federal district court if the district court has original jurisdiction. See 28 U.S.C. § 1441(a). Pursuant to 28 U.S.C. § 1331, the district court has “original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. “A case arises under federal law if its well-pleaded complaint establishes either that federal law creates the cause of action or that the plaintiff's right to relief necessarily depends on resolution of a substantial question of federal law.” Nicodemus v. Union Pacific Corp., 318 F.3d 1231, 1235 (10th Cir. 2003) (internal quotation marks and citation omitted).

Thus, to find jurisdiction under 28 U.S.C. § 1331, two conditions must be satisfied. First, a question of federal law must appear on the face of plaintiff's well-pleaded complaint. . . . Second, plaintiff's cause of action must either be (1) created by federal law, or (2) if it is a state-created cause of action, its resolution must necessarily turn on a substantial question of federal law.

Id. (internal quotation marks and citations omitted).

         Although Plaintiff's complaint alleges that Defendants' conduct rose to the level of a constitutional violation under the Fourth and Fourteenth Amendments of the United States Constitution, it does not seek recovery under 42 U.S.C. § 1983 or any other federal statute. [See Doc. 1-2] Rather, Plaintiff's complaint explicitly states that “[t]his action is being brought under the New Mexico Torts Claim Act 41-1-through 41-4-30 NMSA, ” [Doc. 1-2 at 1], and identifies various torts (i.e., “illegal arrest and detention of the Plaintiff” and “the Tort of Confinement by Assert Legal Authority”) and violations of New Mexico law (i.e., N.M. Stat. Ann. ...


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