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Pacheco v. City of Albuquerque

United States District Court, D. New Mexico

July 3, 2018

ORLANDO PACHECO, and TITO PACHECO, JR., Individually; as Co-Personal Representatives of the ESTATE OF TITO PACHECO, deceased; and as Co-Guardians of J.P. and N.P., Minors Plaintiffs,
CITY OF ALBUQUERQUE, JOHN DOES 1-10 and JANE DOES 1-10, Individually, Defendants.



         THIS MATTER comes before me on defendant City of Albuquerque's Motion, and Memorandum in Support, for Judgment on the Pleadings as to Plaintiffs' Civil Rights Claims Brought Pursuant to 42 U.S.C. §§ 1983 and 1988 and as to Plaintiffs' Negligence, Assault, Battery, and Federal Constitutional Claims Brought Pursuant to Section 41-4-12 of the New Mexico Tort Claims Act, filed January 18, 2018. Doc. 24. Plaintiffs filed their response on February 12, 1018. Doc. 35. The City filed its reply on February 26, 2018. Doc. 46.

         THIS MATTER also comes before me on plaintiffs Orlando Pacheco, Tito Pacheco Jr., and the Estate of Tito Pacheco's Motion to Amend Complaint, filed on April 11, 2018. Doc. 63. The City filed its response on April 26, 2018, Doc. 74, and plaintiffs filed their reply on May 10, 2018, Doc. 79.

         The Honorable District Judge Martha Vazquez referred both motions to me to conduct hearings, if warranted, including evidentiary hearings, and to perform any legal analysis required to recommend to the District Court an ultimate disposition pursuant to the provisions of 28 U.S.C. §§ 636(b)(1)(A), (B) and (b)(3), and Rule 72(a) and (b) of the Federal Rules of Civil Procedure. Docs. 64, 86. Having read the motions and being fully advised in their premises, I recommend that the Court GRANT the City's motion for judgment on the pleadings in part, DENY plaintiffs' motion to amend, decline to exercise supplemental jurisdiction over the state law claims, and REMAND this case to the Second Judicial District Court for a determination of plaintiffs' state tort claims.

         I. Background Facts and Procedural Posture

         This case arises from a high speed chase through the streets of Albuquerque on June 20, 2017. The facts are taken from the allegations in the plaintiffs' complaint and their proposed amended complaint, which the Court assumes are true for the purposes of these motions. The chase began when Albuquerque Police Department (“APD”) officers contacted David Barber and Stephanie Pacheco at the Balloon Fiesta Mobile Home Park in connection with the investigation of a stolen RV. Doc. 1-1 at 3. APD officers in tactical uniforms made contact with Barber and Pacheco. Id. Instead of exiting the RV, Barber started it, and accelerated through the closed gate and out onto the city streets. Id. APD officers chased Barber throughout the city, which resulted in several crashes as the RV collided with multiple vehicles during the chase. Id. at 4. In plaintiffs' proposed amended complaint, they allege that after three hours and seventeen minutes, proposed defendant APD Officer Albert Sandoval advised other individual proposed defendant officers to stop the RV by “any means necessary.” Doc. 63-1 at 4. Officer Sandoval knew that officers likely would cause a collision to stop the RV. Id. at 5. Officer Sandoval also understood the inherent risk to everyone involved, including the risk to the traveling public, like Tito Pacheco (Sr.), when he communicated the directive for officers to use police vehicles to stop the RV. Id. At approximately 8:20 p.m., proposed defendant APD Officer Phetamphone Pholphiboun performed a Pursuit Intervention Technique, or “PIT maneuver, ” on the RV, causing it to spin out of control and hit the vehicle driven by Tito Pacheco (Sr.). Doc. 1-1 at 4; Doc. 63-1 at 5. Mr. Pacheco sustained severe and debilitating injuries. Doc. 1-1 at 3. On July 11, 2017, after spending three weeks in the intensive care unit at University of New Mexico Hospital, Mr. Pacheco died from his injuries, at age 39. Id. at 4-5. Mr. Pacheco left behind three children, including two minor children for whom he had been the sole provider. Id. at 5.

         Plaintiffs initiated this lawsuit in the Second Judicial District Court for the State of New Mexico on August 24, 2017. Doc. 1-1 at 1. The City removed the case to this Court on October 4, 2017, based on “original jurisdiction because the Complaint is founded on [claims] or rights arising under the United States Constitution and the laws of the United States.” Doc. 1 at 2. On January 18, 2018, the City filed a motion for judgment on the pleadings, arguing that plaintiffs' complaint fails to set forth plausible claims in Counts I, II, III, IV at ¶ 69, V at ¶ 77, VI at ¶ 87, VII at ¶ 96, and VIII at ¶ 103[1] of their complaint.[2] See Doc. 24 at 9-13, 17. Specifically, the City argues that there are adequate remedies under New Mexico law, and that plaintiffs cannot state a plausible claim under 42 U.S.C. § 1983 because they fail to allege a violation of Mr. Pacheco's Fourth or Fourteenth Amendment rights.[3] Id. at 9-13.

         Plaintiffs filed their motion to amend the complaint to “add the names of the John Doe Defendants and to add and correct factual allegations in the Complaint based on the evidence.” Doc. 63 at 2. Because the claims in the proposed amended complaint remain the same as those in plaintiffs' initial complaint, the City and the individual officers named in the proposed amended complaint opposed the amendment for the same reasons set forth in the City's motion for judgment on the pleadings. The City incorporated its arguments from its motion for judgment on the pleadings into its response opposing plaintiffs' motion to amend and argues that plaintiffs' proposed amendment is futile. Doc. 74 at 2. The Court therefore will consider the motion for judgment on the pleadings in conjunction with the motion to amend.

         II. Discussion

         A. Legal Standard

         The City moved for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). Doc. 24. A motion for judgment on the pleadings under Rule 12(c) is governed by the same standards as a motion to dismiss under Rule 12(b)(6). See Atl. Richfield Co. v. Farm Credit Bank, 226 F.3d 1138, 1160 (10th Cir. 2000). In analyzing a motion to dismiss under Rule 12(b)(6), the court “accept[s] as true all well-pleaded factual allegations in the complaint and view[s] them in the light most favorable to the plaintiff.” Burnett v. Mortg. Elec. Registration Sys., Inc., 706 F.3d 1231, 1235 (10th Cir. 2013). A complaint fails to state a claim on which relief may be granted when it lacks factual allegations sufficient “to raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). In other words, a complaint must include enough facts to state a claim for relief that is plausible on its face. Id. at 555-56. 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. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The allegations must be sufficient to establish that, if true, “the plaintiff plausibly (not just speculatively) has a claim for relief.” Corder v. Lewis Palmer School Dist. No. 38, 566 F.3d 1219, 1224 (10th Cir. 2009) (internal quotation marks and citation omitted). Bare legal conclusions in a complaint are not entitled to the assumption of truth; “they must be supported by factual allegations” to state a claim for relief. Iqbal, 556 U.S. at 679. “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not ‘show[n]'-‘that the pleader is entitled to relief.'” Id. (quoting Fed.R.Civ.P. 8(a)(2)). Whether a complaint contains sufficient facts to avoid dismissal is context-specific and is determined through a court's application of “judicial experience and common sense.” Id.

         Furthermore, plaintiff must plead more than labels, conclusions or a “formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. at 555. Conclusory allegations of liability, without supporting factual content, are insufficient. The pleading standard “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 677. As such, a proposed amended complaint that “tenders ‘naked assertions' devoid of ‘further factual enhancement'” does not meet the Rule 8 standard and is futile. Id. (quoting Twombly, 550 U.S. at 557, and Fed.R.Civ.P. 8(a)(2)).

         Plaintiffs' motion to amend is governed by Federal Rule of Civil Procedure 15, which provides that when a party may no longer amend its pleading as a matter of course, “a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires.” Fed.R.Civ.P. 15(a)(2). Although leave to amend shall be given freely, “the trial court may deny leave to amend where amendment would be futile.” Grossman v. Novell, Inc., 120 F.3d 1112, 1126 (10th Cir. 1997). In this case, defendants oppose plaintiffs' motion to amend on the grounds that amendment would be futile. A proposed amendment is futile if the complaint, as amended, would be subject to dismissal for any reason, including that the amendment would not survive a dispositive motion such as a Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted. Gohier v. Enright, 186 F.3d 1216, 1218 (10th Cir. 1999). In arguing the futility of the amendment, the City incorporated the arguments made in its motion for judgment on the pleadings into its response to plaintiffs' motion to amend. Doc. 74 at 2.

         B. Plaintiffs' Claims

         In Counts I, II, and III of the complaint, plaintiffs bring claims against the City of Albuquerque and John Doe defendants (the individual officers named in the proposed amended complaint) under 42 U.S.C. § 1983 for a violation of Tito Pacheco's constitutional rights. In Count I of the complaint, plaintiffs allege that the individually named officers used excessive force and acted with deliberate indifference to Mr. Pacheco's rights when they conducted a PIT maneuver to stop David Barber. Doc. 1-1 at 5-7. In Count II, plaintiffs allege that the individual officers failed to intervene to prevent the deprivation of Mr. Pacheco's constitutional rights. Id. at 7-8. In Count III, plaintiffs allege municipal liability for the City's policies, practices, and customs that resulted in the violation of Mr. Pacheco's constitutional rights. Id. at 8-9. There is no dispute that Counts II and III are dependent on a finding that the individual officers committed a constitutional violation. Consequently, because Count I fails to state a constitutional violation, Counts II and III must also fail.[4]

         C. 42 U.S.C. § 1983

         Section 1983 of Title 42 of the United States Code provides:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . ., 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 ...

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