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Chipps v. City of Roswell

United States District Court, D. New Mexico

October 9, 2018

ROCKY CHIPPS, Plaintiff,
v.
CITY OF ROSWELL, a municipal corporation, OFFICER ALBERTO ALBO, in his Individual Capacity And as an employee of the Roswell Police Department, JOHN DOES I-IV, in their individual capacity and As employees of the Roswell Police Department, Defendants.

          MEMORANDUM OPINION AND ORDER DENYING DEFENDANT CITY OF ROSWELL'S MOTION TO DISMISS PLAINTIFF'S COMPLAINT

         THIS MATTER comes before the Court upon a Motion to Dismiss Plaintiff's Complaint, filed May 24, 2018 by Defendant City of Roswell (“Defendant” or “City”). (Doc. 6). Having reviewed the parties' briefs and the applicable law, the Court finds that Defendant's motion is not well-taken and, therefore, is denied.

         BACKGROUND

         Plaintiff is suing the City of Roswell and Defendant officers, employed by the City of Roswell as law enforcement officers, for violation of his federal civil rights based on an incident that occurred on or about April 6, 2015. According to the complaint, early in the morning on that day, Defendant Alba attempted to initiate a traffic stop of a vehicle which he observed traveling southbound on South Kansas Street in Roswell, New Mexico. Defendant Alba lost sight of the vehicle and drove around the area for several blocks in an attempt to locate it. He observed two men walking in an area more than two blocks away from where he had last seen the vehicle, and approached one of the men, who is the Plaintiff in this case. The complaint alleges that:

• Defendant Alba did not have reasonable suspicion or probable cause to believe that Plaintiff had committed, or was about to commit, a crime;
• Defendant Alba unnecessarily deployed a taser against Plaintiff, and while Plaintiff was on the ground, jumped on top of Plaintiff and struck Plaintiff in the face several times;
• Defendant Alba made false statements in his report; and that
• Defendant Alba did not have lawful authority to seize, search, arrest, use force against or falsely imprison Plaintiff.

         Plaintiff filed the complaint on April 4, 2018 in the County of Chaves, Fifth Judicial District Court. Defendants removed the case to federal court on May 16, 2018 under this Court's original jurisdiction over Plaintiffs' federal claims. The complaint alleges three counts:

Count 1: Fourth Amendment claim for excessive force and illegal seizure against all Defendant officers;
Count 2: Negligent Hiring, Training, Supervision and Retention as to Defendant City of Roswell; and
Count 3: Fourth Amendment Violation for Malicious Prosecution.

         DISCUSSION

         Rule 12(b)(6) permits the Court to dismiss a complaint for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). To survive a motion to dismiss, the complaint must have sufficient factual matter that if true, states a claim to relief that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009) (“Iqbal”). As such, a plaintiff's “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) (“Twombly”). All well-pleaded factual allegations are “viewed in the light most favorable to the nonmoving party.” Brokers' Choice of Am., Inc. v. NBC Universal, Inc., 757 F.3d 1125, 1136 (10th Cir. 2014). In ruling on a motion to dismiss, “a court should disregard all conclusory statements of law and consider whether the remaining specific factual allegations, if assumed to be true, plausibly suggest the defendant is liable.” Kan. Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1214 (10th Cir. 2011). Mere “labels and conclusions” or “formulaic recitation[s] of the elements of a cause of action” will not suffice. Twombly, 550 U.S. at 555.

         The Tenth Circuit holds that “[c]ontext matters in notice pleading. Robbins v. Oklahoma, 519 F.3d 1242, 1248 (10th Cir. 2008) (internal quotation marks omitted) (“the degree of specificity necessary to establish plausibility and fair notice, and therefore the ...


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