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Gutierrez v. Albuquerque Public Schools

United States District Court, D. New Mexico

August 1, 2018

LAURA LUCERO Y RUIZ DE GUTIERREZ, as mother and parent of Minor child M.B., Plaintiff,
v.
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.

          MEMORANDUM OPINION AND ORDER ON BERNALILLO COUNTY'S MOTION TO DISMISS

         In BERNALILLO COUNTY DEFENDANTS' MOTION TO DISMISS BASED ON FAILURE TO STATE A CLAIM, STATUTE OF LIMITATIONS VIOLATIONS AND IMPROPER NAMING OF PARTIES IN LIEU OF AN ANSWER (Doc. No. 34) (Motion), Defendants The Board of County Commissioners for the County of Bernalillo (the County) and Bernalillo County Sheriff Manuel Gonzales, III (Sheriff Gonzales) (together County Defendants) ask the Court to dismiss all of the claims against them in PLAINTIFF'S FIRST AMENDED COMPLAINT (Doc. No. 19) (FAC). The Motion is fully briefed. See PLAINTIFF'S RESPONSE TO BERNALILLO COUNTY DEFENDANTS' MOTION TO DISMISS BASED ON FAILURE TO STATE A CLAIM, STATUTE OF LIMITATIONS VIOLATIONS AND IMPROPER NAMING OF PARTIES IN LIEU OF AN ANSWER (Doc. No. 38) (Response); and BERNALILLO COUNTY DEFENDANTS' REPLY TO PLAINTIFF'S RESPONSE TO MOTION TO DISMISS BASED ON FAILURE TO STATE A CLAIM, STATUTE OF LIMITATIONS VIOLATIONS AND IMPROPER NAMING OF PARTIES IN LIEU OF AN ANSWER (Doc. No. 39) (Reply). The Court will grant the Motion in part. The Court has previously ruled on a Motion to Dismiss filed by the Albuquerque Public Schools, Roy G. Dennis, and Mickey Lozano (APS Defendants). See MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN PART APS DEFENDANTS' MOTION TO DISMISS (Doc. No. 41) (APS MOO). In the Motion, County Defendants indicate that they adopt the arguments in APS Defendants' Motion to Dismiss.

         In the APS MOO, the Court dismissed Count One against APS Defendants for failure to state a claim, and the Court will also dismiss Count One against County Defendants also. In addition, since the statute of limitations issue raised in this Motion and in the APS Defendants' Motion to Dismiss is identical, the Court will deny the Motion as to the statute of limitations defense for the same reasons as stated in the APS MOO.

         I. STANDARD OF REVIEW

         County 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)).

         In Plaintiff's Response, she asks the Court to grant her leave to amend the FAC if “additional averments are necessary.” (Resp. at 2.) This Court has already allowed Plaintiff an opportunity to amend her Original Complaint. And, County Defendants argue that the Court should not grant Plaintiff a chance to amend the FAC because it would be futile. Anderson v. Suiters, 499 F.3d 1228, 1238 (10th Cir. 2007). The Court will deny Plaintiff's request to further amend her FAC.

         II. BACKGROUND

         At the relevant time, Plaintiff's son, M.B., who suffers from Autism, [1] attended the Jimmy Carter Middle School in Albuquerque, New Mexico. On September 30, 2014, M.B.'s Adaptive Physical Education Teacher instructed M.B. to “go inside after he ran his last lap.” (FAC ¶ 41.) M.B. proceeded to go inside, as instructed, (id.) but M.B. was stopped by Mrs. Orona and told 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 the school property. (Id. ¶ 43.) After searching for M.B. on several streets near the school, APS security officer Roy G. Dennis (Dennis) allegedly used a taser on M.B. which caused physical injury and mental trauma. (FAC ¶¶ 44-51.) 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. A more complete summary of the factual allegations in the FAC is set forth in the APS MOO.

         III. DISCUSSION

         A. Allegations against County Defendants

         County Defendants argue that only two paragraphs in the FAC contain factual allegations about them. Plaintiff alleges that over a year after the tasing incident, on December 16, 2015, Sheriff Gonzales, “was notified that Plaintiff Gutierrez was concerned with the oversight of the MOU[2] between BCSO and APS. This notification included concerns that the commissioning MOU was not being followed, training was insufficient, and supervision was lacking.” (FAC ¶ 74.) That letter is attached to the Response as Exhibit 2; however, the Court has not considered the content of the letter in ruling on the Motion.[3] In the FAC, Plaintiff further alleges that on December 28, 2015, “Plaintiff Gutierrez received a phone call from a Sheriff's representative requesting a meeting. At the meeting Plaintiff Gutierrez was handed a memo and a police report, neither of which had any information regarding Defendant Dennis. Plaintiff Gutierrez then asked about training and consequences and what could be done about monitoring individuals such as APS employee Dennis.” (Id. ¶ 75.) County Defendants maintain that, other than these two paragraphs, the FAC “does not assert any other factual allegations against” County Defendants.

         In addition to these two paragraphs, however, Plaintiff alleges that Defendant Dennis “acted under the authority of a commission issued to him by the Sheriff, Bernalillo County.” (Id. ¶ 8.) And in Count Three, [4] Plaintiff alleges that County Defendants “intentionally and/or negligently failed to supervise and train the APS officers who initiated physical contact[.]” (Id. ¶ 90.) Plaintiff alleges that the County Defendants, “engaged in acts and omissions which resulted in the unlawful use of excessive for[ce] causing physical or mental harm and/or deprivation of rights, privileges and immunities secured by the constitutions and laws of the United States and New Mexico[.]” (Id. ¶ 97.) Finally, Plaintiff alleges that the County Defendants “failed to implement appropriate policies and procedures regarding employee training, oversight of employees, discipline of employees, [and] use of force on students[.]” (Id. ¶ 101.)

         In her Response, Plaintiff argues that she clearly averred a supervisory link between Sheriff Gonzales and Defendant Dennis. Plaintiff asserts that “an MOU exists between APS and the Sheriff's office, whereby the Sheriff personally commissions officers who then perform law enforcement activities for/with Albuquerque Public Schools.” (Resp. at 8.) Plaintiff continues, “[t]he MOU established a custom or policy that individuals receive commissions from the Sheriff's office and are then placed with APS, who supervises their law enforcement employment.” (Id.) Plaintiff argues that Sheriff Gonzales and APS “failed to train such officers as to the protection or needs of students such as MB, failed to train such officers as to the IEPs and Behavior Modification Plans for disabled students, failed to supervise the interaction of officers with students such as MB… [T]he Sheriff has no policy to train these individuals to protect or control such students.” (Id.)

         When reviewing a motion to dismiss, the Court “generally must limit itself to the facts stated in the complaint, documents attached to the complaint as exhibits, and documents incorporated by reference.” Carter v. Spirit Aerosystems, Inc., 16-1350-EFM-GEB, 2017 WL 4865690, at *6 (D. Kan. Oct. 27, 2017) (unpublished). However, in the Tenth Circuit, “it might be appropriate for a court to consider additional facts or legal theories asserted in a response brief to a motion to dismiss if they were consistent with the facts and theories advanced in the complaint.” Id. (quoting, Hayes v. Whitman,264 F.3d 1017, 1025 (10th Cir. 2001)). Within the Court's discretion, a claim that would otherwise be dismissed based solely on the allegations in the complaint can be saved by additional, consistent facts provided in subsequent briefing. Hayes, 264 F.3d at 1025. Plaintiff's averments in the FAC and in the Response center on Sheriff Gonzales' lack of policy-making or ...


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