United States District Court, D. New Mexico
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.
PROPOSED FINDINGS AND RECOMMENDED
FASHING UNITED STATES MAGISTRATE JUDGE
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.
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.
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.
Background Facts and Procedural Posture
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.
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 ¶
of their complaint. 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. Id. at 9-13.
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.
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.”
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)).
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.
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.
42 U.S.C. § 1983
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