United States District Court, D. New Mexico
DAVID R. HARTMAN, Plaintiff,
CITY OF ROSWELL, and MIGUEL ANGEL LOPEZ, Defendants.
ORDER GRANTING IN PART DEFENDANTS' MOTION TO
DISMISS PLAINTIFF'S AMENDED COMPLAINT
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 amended complaint.
see Fed. R. Civ. P. 12(b)(6). The City and Officer
Lopez identify problems similar to those they had with
Hartman's original complaint-his second pleading fails to
plausibly establish that their actions deprived Hartman any
constitutional right. Hartman filed a response in opposition
to the motion (Doc. 20), and the City and Officer Lopez
submitted a reply. (Doc. 22). 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 Hartman's amended
complaint does not state a plausible claim for relief under
42 U.S.C. § 1983 against the City, but does state a
plausible claim for relief under 42 U.S.C. § 1983
against Officer Lopez.
is a resident of Roswell, New Mexico. (Doc. 17, Am. Compl.
¶ 1). In July of 2016, Hartman “became
very concerned with certain issues regarding operations in
the City of Roswell” and more particularly “work
being performed at various locations around the City without
proper licensing.” (Id., ¶ 6). Hartman
called interim City manager Jonathan Phillips “[t]o
voice his concerns.” (Id., ¶ 7). When
Hartman saw no improvement, he “was forced to make
numerous phone calls to Mr. Phillips.” (Id. .
¶ 8). According to Hartman, the calls were not
“threatening, harassing, or violent toward Mr.
Phillips.” (Id., ¶ 9).
grievance was “the lack of enforcement of various
provision[s] of the city code” as it concerned
unlicensed contracting. (Id., ¶ 10).
Hartman's “only recourse [to protect the integrity
of his industry as licensed contractor] was to report known
violations to the City and to question the City's
unwillingness to address these violations.”
(Id.¶ 11). Hartman vocalized the complaints not
only to Mr. Phillips, but also to the “City of Roswell
Code[s] Enforcement.” (Id., ¶11. At some
point, Officer Lopez contacted Hartman and told Hartman
“not to contact Code[s] Enforcement if he [Hartman] is
just going to complain.” (Id., ¶ 12).
on July 20, 2016, the City manager reported Hartman's
calls to the Roswell Police Department. (Id.,
¶14). Officer Lopez responded, spoke to the City manager
and City inspector Miller Butts, listened to Hartman's
“recorded phone call, ” 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., ¶15). The
recording consisted of Hartman expressing “his
frustration that the City had refused to take action
regarding repeated violations of the City code.”
(Id., ¶16). At all times, Hartman alleges, he
was engaged in constitutional speech protected by the First
Amendment-the numerous calls were not threatening or
harassing, reported known violations of city ordinances, and
served to express Hartman's frustration with his local
government. (Id. ¶¶ 17-19). Nonetheless,
Hartman was arrested and charged by Officer Lopez, booked
into jail, and forced to hire an attorney to defend him.
(Id., ¶ ¶ 22-27). On December 14, 2016,
the charges were dismissed. (Id., ¶ 29).
commenced this action on June 13, 2017, in the Fifth Judicial
District Court for Chaves County, New Mexico, alleging a
single count for unlawful retaliation under the First
Amendment. (Doc. 1-1). The City and Officer Lopez removed the
case to this Court on November 7, 2017 invoking the
Court's federal-question jurisdiction. (Doc.1). Following
motion practice, this Court concluded that Hartman's
original complaint did not allege a plausible cause of action
against the City, but permitted Hartman to amend his
pleading. (See Doc. 16). Hartman filed an amended
complaint on February 9, 2018. (Doc. 17). The City and
Officer Lopez's second motion to dismiss followed. (Doc.
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
Against Officer Lopez
states a plausible cause of action against Officer Lopez for
retaliation under the First Amendment. See Becker v.
Kroll, 494 F.3d 904, 925 (10th Cir. 2007) (listing four
essential elements for the cause of action: (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). Taking all reasonable
inferences in his favor, Hartman repeatedly complained to the
City about his perception of rampant codes' violations
and the City's failure to enforce its own law. When the
City manager reported one such call, which was recorded and