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Nunez v. New Mexico Corrections Department

United States District Court, D. New Mexico

June 5, 2019

ANDREW NUNEZ, Plaintiff,
v.
NEW MEXICO CORRECTIONS DEPARTMENT, an agency of the State of New Mexico, CORRECTIONAL PROPERTIES TRUST, a Florida based real estate investment trust, GEO CORRECTIONS AND DETENTION, LLC a foreign limited liability company, GREGG MARCANTEL, a former Secretary of New Mexico Corrections Department, DAVID JABLONSKI, Secretary of New Mexico Corrections Department, RAYMOND SMITH, Warden of Lea County Correctional Facility, ROSE BOBCHACK, Director of Probation and Parole Division of New Mexico Corrections Department, JANE DOE, classification officer for New Mexico Corrections Department, and JOHN DOE, classification officer for the Lea County Correctional Facility in their individual and official capacities, Defendants.

          MEMORANDUM OPINION AND ORDER

         This matter comes before the Court upon “Defendants' Motion to Dismiss and/or for Qualified Immunity on All of Plaintiff's Claims and Memorandum of Law in Support, Therefore” (Motion to Dismiss), filed on January 29, 2019, by Defendants the New Mexico Corrections Department (NMCD) and former Secretary of the New Mexico Corrections Department, David Jablonski (Jablonski), collectively NMCD Defendants. (Doc. 4). NMCD Defendants bring the Motion to Dismiss under both Fed.R.Civ.P. 12(b)(6) (“failure to state a claim upon which relief can be granted”) and Fed.R.Civ.P. 12(b)(5) (“insufficient service of process”). Pro se Plaintiff did not file a response.[1] On April 12, 2019, the Magistrate Judge entered an order staying discovery pending resolution of the Motion to Dismiss. (Doc. 21). Having considered the Motion to Dismiss and the Amended Verified Complaint (Doc. 1-2), the Court grants the Motion to Dismiss as described below and lifts the stay of discovery.

         A. The Amended Verified Complaint

         Plaintiff alleges that errors by all Defendants resulted in his unlawful detention and incarceration at the Lea County Correctional Facility for at least 60 days. (Doc. 1-2) at ¶¶ 16 and 19. Plaintiff contends that on July 17, 2014, he filed a petition for writ of habeas corpus. Id. at ¶ 20. Plaintiff further contends that “[a]fter multiple days of wrongful incarceration and detention, a stipulated order was entered on October 9, 2014, dismissing Plaintiff's writ of habeas corpus and ordering his immediate release.” Id. at ¶ 21.

         Plaintiff sues the individual Defendants in their individual and official capacities. Id. at 1 (case caption). Plaintiff alleges that Defendants violated the Fourth, Eighth, and Fourteenth Amendments of the United States Constitution in contravention of 42 U.S.C. § 1983. Id. In Count One, Plaintiff alleges Section 1983 violations against “[a]ll named Defendants” for having “deprived Plaintiff of liberty and infringed upon his right to be free from unreasonable seizure, without due process, and in violation of equal protection of the laws.” Id. at ¶ 25. In Count Two, Plaintiff alleges Section 1983 violations by “Defendants” for depriving “Plaintiff of his right to procedural due process.” Id. at ¶ 28. Finally, in Count Three, Plaintiff alleges Section 1983 violations by “all Defendants” for depriving “Plaintiff of his right to be free from cruel and unusual punishment.” Id. at ¶ 31.

         Plaintiff mentions the New Mexico Constitution at the outset of the Amended Verified Complaint, but he does not specifically allege a violation of the New Mexico Constitution in any of the Counts nor does Plaintiff mention the New Mexico Constitution elsewhere in the Amended Verified Complaint.

         Plaintiff seeks compensatory damages, punitive damages, and attorney's fees and costs as allowed under Section 1983. Id. at 10.

         B. Service of Process

         Plaintiff filed the original complaint in state court on October 9, 2017. (Doc. 14-1). On December 20, 2017, the state court issued summonses for Defendants. Plaintiff apparently did not serve this complaint on Defendants. On December 12, 2018, the state court allowed Plaintiff to file an amended complaint and to complete service of the amended complaint by December 27, 2018. (Doc. 14-18). Plaintiff filed the Amended Verified Complaint on December 20, 2018. (Doc. 1-2). On the next day, “the New Mexico Corrections Department's Office of General Counsel accepted service on behalf of the Defendants the New Mexico Corrections Department and then-Secretary David Jablonski only.” (Doc. 4) at 3, ¶ 10. According to NMCD Defendants, Plaintiff did not serve “a copy of the process on the New Mexico Attorney General.” Id. at 3, ¶ 11. NMCD Defendants subsequently removed the case to federal court on January 22, 2019. (Doc. 1).

         C. Discussion

         1. Rule 12(b)(6)

         NMCD Defendants make several arguments for dismissal under Rule 12(b)(6): (1) NMCD and Jablonski, in his official capacity, are immune from suit for monetary damages under Section 1983 because they are not “persons;” (2) Plaintiff has failed to state a Section 1983 constitutional claim against Defendant Jablonski, in his individual capacity, and Defendant Jablonski is entitled to qualified immunity from a Section 1983 suit in his individual capacity; (3) the New Mexico Tort Claims Act (NMTCA) statute of limitations bars any state tort claim; (4) Plaintiff failed to provide NMTCA notice to NMCD Defendants regarding any state tort claim; and (5) NMCD Defendants enjoy sovereign immunity from suit for any state tort claim because the NMTCA does not waive sovereign immunity in this case.

         In ruling on a Rule 12(b)(6) motion to dismiss, the Court must accept all well-pleaded allegations as true and must view them in the light most favorable to the plaintiff. See Zinermon v. Burch, 494 U.S. 113, 118 (1990); Swanson v. Bixler, 750 F.2d 810, 813 (10th Cir.1984). Rule 12(b)(6) requires that a complaint set forth the grounds of a plaintiff's entitlement to relief through more than labels, conclusions and a formulaic recitation of the elements of a cause of action. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).

         To survive a Rule 12(b)(6) motion to dismiss, a plaintiff must allege facts sufficient to state a plausible claim of relief. Id. at 570. A claim is facially plausible if the plaintiff pleads facts sufficient for the court to reasonably infer that the defendant is liable for the alleged misconduct. Ashcroft v. Iqbal,556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). “The plausibility standard is not akin to a ...


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