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Pacheco v. City of Albuquerque

United States District Court, D. New Mexico

August 21, 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,
v.
CITY OF ALBUQUERQUE, JOHN DOES 1-10 and JANE DOES 1-10, Individually, Defendants.

          ORDER ADOPTING PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

          MARTHA VÁZQUEZ UNITED STATES DISTRICT JUDGE.

         THIS 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).

         Plaintiffs 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.[1] 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.

         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 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 amend.

         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.

         Proposed 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[2] 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.

         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. 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.

         Judge 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 18.

         In 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.

         II. Legal Standards

         A. Objections to the PF&RD

         District 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. § 636(b)(1).

         B. Judgment on the Pleadings under Rule 12(c)

         The 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 ...


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