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.
ORDER ADOPTING PROPOSED FINDINGS AND RECOMMENDED
VÁZQUEZ UNITED STATES DISTRICT JUDGE.
MATTER comes before the Court on Magistrate Judge Laura
Fashing's Proposed Findings and Recommended Disposition
(“PF&RD”) filed on July 3, 2018 (Doc. 88),
regarding 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), and 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).
filed their objections to the PF&RD on July 17, 2018.
Doc. 93. The City of Albuquerque (“City”) filed
its response in opposition to plaintiff's objections on
August 2, 2018. Doc. 95. Having performed a de novo review on
the specific issue to which Plaintiffs object, I find that
Plaintiffs' argument is without merit. I will, therefore,
adopt the magistrate judge's PF&RD, 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 Plaintiffs' complaint and their proposed
amended complaint, which the Court assumes are true for the
purposes of these motions. In their objections, Plaintiffs
submitted deposition testimony that was not submitted to the
magistrate judge. Doc. 93-1. Although the Court may receive
further evidence when conducting a de novo review,
Fed.R.Civ.P. 72(b)(3); 28 U.S.C. § 636(b)(1), the Court
will not consider the deposition testimony submitted by
Plaintiffs because the analysis under Rule 12(c) is based
solely on the sufficiency of the pleadings. The Court accepts
all the facts pled in the complaint and proposed amended
complaint as true when determining the City's motion for
judgment on the pleadings and Plaintiffs' motion to
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.
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.
Defendant APD Officer Phetamphone Pholphiboun observed
proposed Defendant APD Officer Ray Marquez attempt to perform
a Pursuit Intervention Technique, or “PIT maneuver,
” against the RV, but the maneuver did not stop the RV.
Id. Despite his awareness of traffic nearby,
proposed Defendant Officer Pholphiboun rammed the RV with his
police vehicle, 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. See
Doc. 24 at 9-13, 17. On April 11, 2018, 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 argued that
Plaintiffs' proposed amendment is futile. Doc. 74 at 2. I
referred the motion for judgment on the pleadings and the
motion to amend to the magistrate judge, and she considered
the motions together. Docs. 64, 86, 88.
Fashing found that Plaintiffs did not allege sufficient facts
in their complaint or in the proposed amended complaint to
state a plausible claim for a violation of Mr. Pacheco's
Fourth or Fourteenth Amendment rights. Doc. 88 at 8-15.
Accordingly, the magistrate judge recommended that the Court
grant the City of Albuquerque's motion for judgment on
the pleadings (Doc. 24) in part, and enter judgment in
Defendants' favor for the claims made under 42 U.S.C.
§ 1983, deny Plaintiffs' motion to amend, and
decline to exercise supplemental jurisdiction over
Plaintiffs' remaining state-law claims. Id. at
their objections, Plaintiffs do not object to the magistrate
judge's analysis and recommendation regarding the Fourth
Amendment. Doc. 93 at 2. Plaintiffs do, however, object to
the magistrate judge's analysis of their Fourteenth
Amendment claim. Id. Having performed a de novo
review, I find that the magistrate judge did not err in her
analysis of the Fourteenth Amendment claim, and I will adopt
her findings and recommendations.
Objections to the PF&RD
courts may refer dispositive motions to a magistrate judge
for a recommended disposition. See Fed. R. Civ.P.
72(b)(1) (“A magistrate judge must promptly conduct the
required proceedings when assigned, without the parties'
consent, to hear a pretrial matter dispositive of a claim or
defense . . . .”). Rule 72(b)(2) governs objections:
“Within 14 days after being served with a copy of the
recommended disposition, a party may serve and file specific
written objections to the proposed findings and
recommendations.” When resolving objections to a
magistrate judge's proposal, “the district judge
must determine de novo any part of the magistrate judge's
disposition that has been properly objected to. The district
judge may accept, reject, or modify the recommended
disposition; receive further evidence; or return the matter
to the magistrate judge with instructions.”
Fed.R.Civ.P. 72(b)(3); see also 28 U.S.C. §
Judgment on the Pleadings under Rule 12(c)
City moved for judgment on the pleadings pursuant to Rule
12(c) of the Federal Rules of Civil Procedure. 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 Sch. 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 ...