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Gutierrez v. Albuquerque Public Schools

United States District Court, D. New Mexico

July 31, 2018

LAURA LUCERO Y RUIZ DE GUTIERREZ, as mother and parent of Minor child M.B., Plaintiff,
ALBUQUERQUE PUBLIC SCHOOLS, MICKEY LOZANO, Albuquerque Public Schools employee/officer, individually acting under color of law, ROY G. DENNIS, Albuquerque Public Schools employee/officer, individually acting under color of law, THE BOARD OF COUNTY COMMISSIONERS FOR THE COUNTY OF BERNALILLO, and MANUEL GONZALES, Bernalillo County Sheriff, individually and in his official capacity, Defendants.


         Defendants, Albuquerque Public Schools (APS), Mickey Lozano (Lozano), and Roy G. Dennis (Dennis) (together, APS Defendants) move to dismiss the claims in PLAINTIFF'S FIRST AMENDED COMPLAINT (Doc. No. 19) (FAC). See APS DEFENDANTS' MOTION TO DISMISS NO. I: DISMISSAL FOR LACK OF PROPER SERVICE, OR ALTERNATIVELY, DISMISSAL OF PLAINTIFF'S NMTCA CLAIMS BASED UPON STATUTE OF LIMITATIONS, DISMISSAL OF PLAINTIFF'S FOURTEENTH AMENDMENT CLAIMS, AND DISMISSAL OF CLAIMS AGAINST MICKEY LOZANO FOR LACK OF PERSONAL PARTICIPATION (Doc. No. 26) (Motion). The Motion has been fully briefed. See PLAINTIFF'S RESPONSE TO APS DEFENDANTS' MOTION TO DISMISS (Doc. No. 33) (Response); and APS DEFENDANTS' REPLY TO PLAINTIFF'S RESPONSE TO APS DEFENDANTS' MOTION TO DISMISS NO. I (Doc. No. 35) (Reply). The Court will grant the Motion in part and will dismiss Count One against APS Defendants. The Court will dismiss Counts Two and Three[1] against Defendant Lozano only.


         A. Factual Background

         Plaintiff alleges that on September 30, 2014, her minor son, M.B., who suffers from Autism, [2] was instructed by the Adaptive Physical Education Teacher at his school to “go inside after he ran his last lap.” (FAC ¶ 41.) Mrs. Orona stopped M.B. and told him “that he had to wait for a staff member before going to class.” (Id. ¶ 42.) This incident led to “MB exhibiting his documented ‘shutting down' behavior in his classroom, leading to frustration in trying to resolve the incident.” (Id.) M.B. then “told his teacher that he was walking home from school and proceeded to leave Jimmy Carter Middle School.” (Id. ¶ 43.) The teacher was unable to reach Plaintiff on her cell phone and left a message that M.B. “had left campus.” (Id. ¶ 44.) Plaintiff sent a text message to an aid, Crystal Holtz, “asking that the aid contact the teacher.” (Id. ¶ 45.) Plaintiff and her husband “were informed that Defendant Dennis was looking for” M.B. (Id. ¶ 46.) The aid contacted the teacher and “was told that the teacher was in radio communication with Defendant Dennis. The teacher also informed Ms. Holtz that [M.B.] was running from security.” (Id. ¶ 47.) Ms. Holtz received a call from another teacher stating that M.B. “had just crossed Coors on Central and was headed east.” (Id. ¶ 48.) Ms. Holtz turned onto Central from Unser in her car, and when Ms. Holtz saw an APS police car turning into a parking lot, she followed. (Id. ¶ 49.) “The officer drove through the parking lot on the east side of the lot, using his police lights and running through the light.” (Id.) After proceeding through the light, Ms. Holtz noticed that M.B. was “running at approximately 61st street.” (Id. ¶ 50.) It was at this time that Defendant Dennis allegedly “utilized a tazer (sic) on MB.” (Id. ¶ 51.) Ms. Holtz yelled to M.B., “who eventually ran to her car.” (Id. ¶ 53.) M.B. was “shaken and terrified. He was afraid to return to school.” (Id. ¶ 54.) M.B. informed Plaintiff that Defendant Dennis “shot ‘something at me and I saw wires.' The wire hit and shocked MB on his leg.” (Id. ¶ 55.)

         On October 1, 2014, Plaintiff took M.B. to his primary care provider, who documented M.B.'s injuries. (Id. ¶ 59.) On October 2, 2014, a meeting was held at the school, and Plaintiff reported the incident to Mary Trace, an administrator at the school. (Id. ¶ 60.) On October 7, 2014, Officer Jeff Jones of the Albuquerque Police Department (APD) called Plaintiff at home “to let her know that he wanted to look at M.B.'s injury while M.B. was at school.” (Id. ¶ 61.) When Plaintiff objected, Jones stated his call was “just a courtesy, that he goes to schools to do this all of the time when parents are not there.” (Id. ¶ 62.) Plaintiff then contacted Kendra Morrison, the family advocate, and they both went to the school to be with M.B., and “[t]his visit resulted in a photo being taken by detective Lozano of APD via his cell phone, 8 days after the alleged taser incident.” (Id. ¶ 63.) This photo was taken in the nurse's office “without any medical professional there to assist in the exam.” (Id. ¶ 64.)

         On October 9, 2014, “a safe house interview was scheduled at All Faith (sic) Receiving home.” (Id. ¶ 65.) On October 9, 2014, “Defendant Jones, [3] an employee of APD and Mickey Lozano of APS interviewed M.B. without reasonable accommodations for his disabilities, and refused the presence of a parent, therapist, advocate or attorney.” (Id. ¶ 66.) From approximately 6:20 pm to 7:00 pm, M.B. “was then taken off site from All Faiths Receiving Home to the site of the incident.” (Id. ¶¶ 68-69.) “M.B. was fearful because of his recent officer tazing (sic). He was given no rights by Jones.” (Id. ¶ 70.)

         “On November 14, 2014, another meeting was held at Jimmy Carter Middle School. Defendant Dennis returned to work but was issued a no contact order for MB.” (Id. ¶ 71.) On November 25, 2014, a personal attorney for Defendant Dennis “sent letters to Plaintiff Gutierrez, the family advocate Kendra Morrison, Katie Stone and Javier Benavidez, indicating that the investigation was complete and that [M.B.] had ‘falsely alleged' the tazing (sic).” (Id. ¶ 72.) The letter referred to “an APS report by Defendant Jones.” (Id. ¶ 73.) “Plaintiff Gutierrez has requested those documents from APD, but APD has refused to produce such documents.” (Id.)

         On December 16, 2015, Sheriff Gonzales “was notified that Plaintiff Gutierrez was concerned with the oversight of the MOU between BCSO and APS.” (Id. ¶ 74.) “This notification included concerns that the commissioning MOU was not being followed, training was insufficient, and supervision was lacking.” (Id.)

         On December 28, 2015, Plaintiff received a phone call from a representative of the Bernalillo County Sheriff's Office, who requested a meeting. (Id. ¶ 75.) At the meeting, Plaintiff received a memo and a police report, neither of which had any information regarding Defendant Dennis. (Id.) Plaintiff “asked about training and consequences and what could be done about monitoring individuals such as APS employee Dennis.” (Id.) Since the incident, M.B., “has been emotionally and psychologically unable to return to school. He has been diagnosed with PTSD and has a recommendation against any return to public school.” (Id. ¶ 76.) M.B. will turn 18 years old at the end of 2018.

         B. Procedural Background

         On September 29, 2017, Plaintiff pro se filed CIVIL COMPLAINT NM TORT CLAIMS ACT CIVIL RIGHTS 1983 (Doc. No. 1-1) (Original Complaint) in the Second Judicial District Court, Bernalillo County, New Mexico. At that time, none of the Defendants were served with the Original Complaint. On January 25, 2018, after learning about this lawsuit in late December 2017, the Board of County Commissioners for the County of Bernalillo (County) removed the case to this Court. See NOTICE OF REMOVAL (Doc. No. 1).[4] On January 30, 2018, the County moved to dismiss on a variety of technical bases. DEFENDANTS' RULE 12(b)(6) MOTION TO DISMISS IN LIEU OF AN ANSWER (Doc. No. 3) (County's Motion to Dismiss).

         After the removal and the filing of the County's Motion to Dismiss, Plaintiff sought the assistance of counsel. Plaintiff's counsel filed a motion for extension of time to respond to the County's Motion to Dismiss. The parties conferred regarding the procedural issues related to this case in which a defendant removed the case before service of process.[5] After conferring, the parties agreed “that a brief period of time should be afforded” to assess the case and either respond to the County's Motion to Dismiss or file an Amended Complaint. (Resp. at 4.)

         On March 6, 2018, Plaintiff filed PLAINTIFF'S MOTION TO AMEND COMPLAINT (Doc. No. 15). Chief Magistrate Judge Karen B. Molzen granted Plaintiff's request. See Text Docket Entry No. 18 (Mar. 23, 2018). On March 23, 2018, Plaintiff filed the FAC. On March 26, 2018, the Court entered the ORDER DENYING DEFENDANTS' MOTION TO DISMISS AS MOOT (Doc. No. 20). After conferring about service of the FAC, the County agreed to waive service. Sheriff Gonzales filed a waiver of service (Doc. No. 22).

         Plaintiff served the FAC on APS Defendants on March 27, 2018. (Doc. Nos. 23, 24, & 25.)


         A. Insufficient Service of Process

         APS Defendants first contend that they were not properly served with the Original Complaint. Rule 12(b) provides that “a party may assert the following defenses by motion: … (4) insufficient process; [and] (5) insufficient service of process.”[6] “In determining the validity of service before removal, a federal court must apply the law of the state under which the service was made.” Johnson v. N.T.I., a Div. of Colorado Springs Circuits, 898 F.Supp. 762, 765 (D.Colo. 1995) (citing 5 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure, § 1082 (1987)). Consequently, this Court must apply New Mexico law to evaluate the validity of service of the Original Complaint prior to removal. Executive Consulting, Inc. v. Kilmer, 931 F.Supp.2d 1139, 1140 (D.N.M. 2013). Under NMRA 1-004(C)(2), “[s]ervice of process shall be made with reasonable diligence.” The New Mexico rule does not provide a specific number of days in which service must be completed. Id.

         After the case was removed, the Federal Rules of Civil Procedure governed service of process. See Fed.R.Civ.P. 81(c) (“[t]hese rules apply to a civil action after it is removed from a state court.”). Rule 4(m) allows a plaintiff 90 days after a complaint is filed in federal court to complete service, and the rule has also been interpreted to give plaintiffs in removed cases 90 days after the date of removal to complete service. Baumeister v. New Mexico Comm'n for the Blind, 409 F.Supp.2d 1351, 1352 (D.N.M. 2006) (citing Ritts v. Dealers Alliance Credit Corp., 989 F.Supp. 1475, 1478 (N.D.Ga. 1997) (and cases cited therein)). Similarly, a federal statute allows additional time for a plaintiff to cure defective service after removal. See 28 U.S.C. § 1448.

         B. Statute of Limitations

         APS Defendants also argue that all claims should be dismissed because they were filed after the statute of limitations deadline had passed. “The defense of the statute of limitations may be raised by motion to dismiss where it is clearly apparent on the face of the pleading that the action is barred.” See Apodaca v. Unknown Heirs of Following Persons Who Are Adjudged to be Owners and Proprietors of Tome Land Grant, 1982-NMSC-100, ¶ 14, 98 N.M. 620, 651 P.2d 1264.

         C. Failure to State a Claim

         APS Defendants seek dismissal for failure to state a claim under Rule 12(b)(6). The nature of a rule 12(b)(6) motion tests the sufficiency of the allegations within the four corners of the complaint. Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir. 1994). “At the motion-to-dismiss stage, [a court] must accept all the well-pleaded allegations of the complaint as true and must construe them in the light most favorable to the plaintiff.” Cressman v. Thompson, 719 F.3d 1139, 1152 (10th Cir. 2014). To survive dismissal, “a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Thomas v. Kaven, 765 F.3d 1183, 1190-91 (10th Cir. 2014) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).


         A. Service of Process

         APS Defendants argue that under Fed.R.Civ.P. 4(m), Plaintiff was required to serve them with the Original Complaint within 90 days after September 29, 2017, the date the Original Complaint was filed. APS Defendants ask the Court to dismiss all claims against them because Plaintiff failed to serve them with the Original Complaint by December 28, 2017, which is 90 days after September 29, 2017. In response, Plaintiff correctly argues that because the Original Complaint was filed in state court, New Mexico rules apply to service of the Original Complaint. Johnson, 898 F.Supp. at 765. Under NMRA 1-004(C)(2), service must be accomplished “with reasonable diligence.” The rule contains no “drop dead” date. Baumeister, 409 F.Supp.2d at 1354. In other words, the rule does not establish a specific deadline by which service must be accomplished. Green v. Bank of America, N.A., No. 13 CV 00937 JAP/KBM, 2013 WL 11336861, *2 (D.N.M. Nov. 8, 2013) (unpublished) (citing Baumeister).

         APS Defendants further argue that after removal Plaintiff did not serve them with the FAC until March 29, 2017, which was six months after the Original Complaint was filed. Moreover, APS Defendants assert that Plaintiff's filing of the FAC in federal court cannot restart the 90-day service clock applicable in this Court. Defendants cite Bolden v. City of Topeka, Kan., 441 F.3d 1129 (10th Cir. 2006), which held that under the previous version of Rule 4(m) allowing 120 days for service of the complaint, when a plaintiff amends a complaint, the time for service under Rule 4(m) is restarted only as to newly added defendants. Id. at 1148-49 (stating, “the 120-day period provided by Rule 4(m) is not restarted by the filing of an amended complaint except as to those defendants newly added in the amended complaint. … This construction of the rule prevents the plaintiff from repeatedly filing amended complaints to extend the time for service indefinitely[.]”). Notably, however, the complaint in Bolden was originally filed in federal court. In contrast, this case was removed from state court; hence, federal statutory law changed the dynamic of service after removal:

In all cases removed from any State court to any district court of the United States in which any one or more of the defendants has not been served with process or in which the service has not been perfected prior to removal, or in which process served proves to be defective, such process or service may be completed or new ...

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