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Brizzee v. The City of Albuquerque Code Enforcement

United States District Court, D. New Mexico

April 22, 2019

MARY KAY BRIZZEE, Plaintiff,
v.
THE CITY OF ALBUQUERQUE CODE ENFORCEMENT, Defendant.

          MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT'S MOTION TO DISMISS

         THIS MATTER comes before the Court upon Defendant's Motion to Dismiss Plaintiff's Complaint With Prejudice, filed March 20, 2019 (Doc. 4). Having reviewed the parties' pleadings and the applicable law, the Court finds that Defendant's motion is meritorious and, therefore, is granted.

         BACKGROUND

         Plaintiff, who is proceeding pro se, filed this lawsuit in the Second Judicial District, County of Bernalillo, on February 25, 2019. The handwritten complaint is almost a page long, alleging that Defendant City of Albuquerque Code Enforcement (“City” for purposes of this Order) violated the “state of stay” and her “civil rights” by “trying . . . to evict me from my home of 23 years due to the fact that I have no utilities” and “put[ting] a $500.00 lien on my home.” Doc 1-1 at 1. Defendant removed the case under federal-question jurisdiction arising from the civil rights claim. Doc. 1 at 2.

         DISCUSSION

         I. Legal Standard

         In reviewing a motion to dismiss under Fed.R.Civ.P. 12(b)(6), the Court “accept[s] as true all well-pleaded factual allegations in a complaint and view[s] these allegations in the light most favorable to the plaintiff.” Schrock v. Wyeth, Inc., 727 F.3d 1273, 1280 (10th Cir. 2013) (citation and internal quotation omitted). “To survive [dismissal, ] a complaint must contain enough facts to state a claim to relief that is plausible on its face.” Id. (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007) (internal quotation omitted)). “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). A complaint must address “all the material elements” of a claim to survive dismissal). Bryson v. Gonzales, 534 F.3d 1282, 1286 (10th Cir. 2008)

         Pleadings drafted by pro se litigants are held “to less stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520 (1972). However, “this leniency applies to the examination of technical language in pleadings rather than to their substantive content.” United States v. Santos-Savera, 47 Fed.Appx. 915, 916 (10th Cir. 2002) (unpublished) (emphasis omitted) (citing Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (“This court . . . will not supply additional factual allegations to round out a pro se plaintiff's complaint or construct a legal theory on a plaintiff's behalf.”).

         Plaintiff has filed no response to Defendant's motion. Under this Court's local rules, the failure of a party to file and serve a response in opposition to a motion within the time prescribed for doing so constitutes consent to grant the motion D.N.M.LR-Civ. 7.1(b). However, a district court may not grant a motion to dismiss for failure to state a claim “merely because [a party] failed to file a response.” Issa v. Comp USA, 354 F.3d 1174, 1177-78 (10th Cir. 2003). Even if a plaintiff does not file a response to a motion to dismiss for failure to state a claim, the district court must still examine the allegations in the plaintiff's complaint and determine whether the plaintiff has stated a claim upon which relief can be granted. See McCall v. Pataki, 232 F.3d 321, 322-23 (2nd Cir.2000) (holding that district court erred in dismissing plaintiff's complaint pursuant to court's local rules based solely on plaintiff's failure to file response to motion to dismiss under Rule 12(b)(6). Therefore, in addressing this motion, the Court is required not only to consider Defendant's arguments but also to consider the allegations in the complaint and decide whether if taken as true, they state a claim on which relief can be granted. Giummo v. Olsen, 701 Fed.Appx. 922, 925 (11th Cir. 2017).

         II. Analysis

         Plaintiff alleges that she was evicted from her home after living there for 23 years because she has no utilities in her home. The City has placed a $500.00 lien on her home. She complained twice to the housing committee which advised her to board up her house and leave until the utilities went back on. She states that her house caught fire, and that it was a total loss. The house was rebuilt, but not to New Mexico standards. It was built instead according to California standards, which she asserts is a higher standard because of the earthquakes that occur in California. Plaintiff feels that the City has violated her civil rights because they found her home to be substandard.

         Plaintiff's claims appear to arise from the Albuquerque Code of Ordinances, specifically from action taken by the Code Enforcement division of the City of Albuquerque's Planning Department. The relevant ordinance would be section 14-3-4-1 of the Uniform Housing Code addressing “Substandard Buildings, ” which among other things, prohibits occupancy of substandard buildings and provides for the recording of title liens against non-compliant homeowners.[1] See Section 14-3-4-1(B)(3) (“A lien shall be recorded with the Bernalillo County Clerk's Office for all the costs incurred by the city as a result of abating the property)” and Section 14-3-4-1(B)(4) (“Whenever the inspector finds that any structure contains an imminent hazard or health hazard, the inspector may declare such structure unfit for human occupancy and order it to be vacated . . . .”).

         A. Writ of Mandamus and Injunctive Relief

         Plaintiff seeks an order directing the City to allow her to stay in her house. Specifically, she seeks an order directing Defendant to (1) “back off trying to put me out of my home, ” and (2) “take the lien off my home.” (Doc. 1-1 at 2.)

         In this motion to dismiss, Defendant contends that the possible remedies from this Court, a writ of mandamus or injunctive relief, are either not available to Plaintiff or are insufficiently requested. Relief is not available to Plaintiff under the mandamus statute, 28 U.S.C. § 1361. A a writ of mandamus cannot issue because Defendant is not “an officer or employee of the United States or any agency thereof.” See also Sockey v. Gray, 159 Fed.Appx. 821, 822 (10th Cir. ...


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