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Rubi v. Town of Mountainair

United States District Court, D. New Mexico

August 15, 2019

CHRIS RUBI, Plaintiff,
v.
TOWN OF MOUNTAINAIR, POLICE CHIEF ALFREDO C. TURRIETA, and SHAYNA NAZARIO, Mountainair Police Officer, Defendants.

          MEMORANDUM OPINION AND ORDER

          HONORABLE MARTHA VÁZQUEZ UNITED STATES DISTRICT JUDGE.

         This lawsuit arises from a citation for disorderly conduct that Mountainair Police Department (MPD) Officer Shayna Nazario issued to Plaintiff Chris Rubi. The citation was ultimately dismissed by the Mountainair Municipal Court, and the charges have not been refiled. Mr. Rubi contends that Defendants only filed the citation in order to harm and harass him. He now brings suit against the Town of Mountainair (Mountainair), former MPD Chief Alfredo Turrieta, and Officer Nazario. Relevant to this opinion, Plaintiff brings claims for malicious prosecution and municipal and supervisory liability pursuant to 42 U.S.C. § 1983, and under the New Mexico Tort Claims Act (NMTCA) and the New Mexico Inspection of Public Records Act (IPRA).

         After considering the briefs and the relevant law, the Court will grant in part Defendants' motion for partial summary judgment filed on January 17, 2019 (Doc. 19), grant Defendants' motion to dismiss filed on November 12, 2018 (Doc. 9), and dismiss Plaintiff's federal claims. The Court declines to exercise supplemental jurisdiction over the remaining state law claims. If Plaintiff declines to file a motion to amend as ordered herein, the Court will dismiss the lawsuit without prejudice so that Plaintiff may refile in state court.

         I. Background [1]

         Mr. Rubi was involved in an altercation with Mr. Edward Padilla, Jr. on June 8, 2017. (See Docs. 27-1 ¶¶ 13-27; 19-1 ¶ 4.) Mr. Padilla is a municipal employee with Mountainair. (See Docs. 19-2 ¶ 4; 27-1 ¶ 16.) After the incident, Mr. Rubi went to the MPD and spoke with Officer Nazario to file a police report. (See Docs. 27-1 ¶ 28; 19-1 ¶ 4.) Officer Nazario took Mr. Rubi's statement and later contacted Mr. Padilla and an alleged witness, Ms. Andrea Reynaga, to obtain their versions of the incident. (Doc. 19-1 ¶¶ 4-15.) Mr. Rubi asserted that Mr. Padilla instigated the altercation, yelled at him, pushed him, and threatened violence against Mr. Rubi and his son. (See Id. ¶¶ 5-10; see also Doc. 27-1 ¶¶ 17-27.) According to Officer Nazario's Declaration, Mr. Padilla's version differs-he identified Mr. Rubi as the person who began the argument, and he stated that both men yelled and cursed at each other. (See Doc. 19-1 ¶¶ 12-14.) Ms. Reynaga, who allegedly witnessed the altercation, submitted a written statement to Officer Nazario and stated that she witnessed both men yelling and cursing at each other. (See Id. ¶¶ 15-19; Doc. 19-1-A.) Mr. Rubi disagrees with both Mr. Padilla's and Ms. Reynaga's versions of the altercation, but he does not dispute that each gave their statements to Officer Nazario. (See Doc. 27 at 2.)

         Officer Nazario consulted with Deputy District Attorney Ray Sharbutt to apprise him of the matter. (See Doc. 19-1 ¶ 22.) Officer Nazario informed Mr. Sharbutt that “she had an eye witness to the dispute but was questioning whether she could file charges given [that Mr. Padilla] was employed by the City of Mountainair, which was her employer, as well.” (See Doc. 19-2 ¶ 4.) Mr. Sharbutt “advised Officer Nazario to issue non-traffic citations for disorderly conduct” pursuant to Mountainair Ordinance § 7-1-5 to both Mr. Rubi and Mr. Padilla. (See id.; see also Doc. 19-1 ¶ 22.) See also Town of Mountainair, Code of Ordinances § 7-1-5.[2] On June 14, 2017, Mr. Rubi came to police headquarters to submit a written statement about the incident, and Officer Nazario issued a non-traffic citation for disorderly conduct to him at that time. (See Docs. 19-1 ¶ 23; 19-2 ¶ 5; 27-1 ¶ 30.)

         Mr. Rubi retained an attorney for his July 5, 2017 arraignment in Mountainair Municipal Court. (See Docs. 19-3 ¶ 6; 19-3-A; 27-1 ¶¶ 30, 32.) On June 21, 2017, his attorney's paralegal left a voicemail message with the Mountainair Municipal Court requesting certain information. (Doc. 1-6 ¶ 3.) The person who returned the call identified herself as Judge Riley. (Id. ¶ 4.) Judge Riley expressed surprise that Mr. Rubi would need an attorney for an arraignment. (Id. ¶ 9.) The paralegal explained that Mr. Rubi “had been attacked by the other individual and . . . felt he needed legal representation.” (Id. ¶ 10.) Judge Riley responded, “I know that's not true” and stated that she had already heard about the situation and understood that Mr. Rubi had caused trouble at City Hall. (Id. ¶¶ 11-12.) Mr. Rubi's attorney discussed this exchange with Judge Riley at the arraignment, and Judge Riley agreed to recuse herself. (See Docs. 27-2 ¶ 10; 19-3 ¶ 7; 19-3-B.) Judge Riley “instructed Chief Turrieta to reissue and/or file the citation in” another jurisdiction. (See Doc. 19-3 ¶ 10.) Neither Officer Nazario nor Chief Turrieta has ever reissued the citation. (See Docs. 19-1 ¶ 25; 19-4 ¶ 7; 19-5 ¶¶ 3-4.)

         Mr. Rubi brings four claims: (1) Count 1: malicious prosecution pursuant to 42 U.S.C. § 1983 (see Doc. 1 (Compl.) ¶¶ 50-59); (2) Count 2: municipal and supervisory liability pursuant to 42 U.S.C. § 1983 (see Id. ¶¶ 60-67); (3) Count 3: tort claims pursuant to the NMTCA, N.M. Stat. Ann. §§ 41-4-6 and 41-4-12 (1978) (see Id. ¶¶ 68-78); and (4) Count 4: a violation of IPRA, N.M. Stat. Ann. §14-2-1-12 (1978) (see Id. ¶¶ 79-87). Defendants move for summary judgment on Plaintiff's malicious prosecution and NMTCA claims (see Doc. 19) and contend that he has failed to state a claim for municipal and supervisory liability (see Doc. 9).

         II. The Court will grant in part Defendants' motion for summary judgment.

         A. Summary Judgment Standard of Review

         Summary judgment is appropriate when the Court, viewing the record in the light most favorable to the nonmoving party, determines “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see also Garrison v. Gambro, Inc., 428 F.3d 933, 935 (10th Cir. 2005). A fact is “material” if it could influence the determination of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute over a material fact is “genuine” if a reasonable trier of fact could return a verdict for either party. Id.

         The Court views all “facts in the light most favorable to . . . the non-moving party and ‘draws all reasonable inferences' in [his] favor.” Dewitt v. Sw. Bell Tel. Co., 845 F.3d 1299, 1306 (10th Cir. 2017) (quoting Smothers v. Solvay Chems., Inc., 740 F.3d 530, 538 (10th Cir. 2014)). “Even so, the non-movant . . . must ‘marshal[ ] sufficient evidence' requiring submission to the jury ‘to avoid summary judgment.'” Id. (quoting Osborne v. Baxter Healthcare Corp., 798 F.3d 1260, 1281 (10th Cir. 2015)).

         B. The Court will grant summary judgment to Defendants on Plaintiff's malicious prosecution claim.

         Mr. Rubi asserts a claim for malicious prosecution on the basis that Chief Turrieta and Officer Nazario falsely charged him with disorderly conduct without probable cause, without erforming an investigation, and with malice and the intent to harm or harass him. (See Compl. ¶¶ 51, 56-57.) He contends that “Defendants deprived [him] of his Fourteenth Amendment right to be free of any deprivation of liberty without due process of law” by failing to investigate and to disclose the police report and other “information accessed during the investigation . . . .” (Id. ¶ 54.)

         Defendants set forth substantive arguments to establish that Plaintiff cannot prove his malicious prosecution claim.[3] (See Doc. 19 at 8-15.) Plaintiff does not attempt to dispute Defendants' arguments, but instead asserts that his claim is more accurately characterized as one for vindictive or retaliatory prosecution under the First Amendment. (See Doc. 27 at 7.) Because Plaintiff does not attempt to salvage his malicious prosecution claim, the Court will grant Defendants' motion on Plaintiff's malicious prosecution claim and dismiss it with prejudice. See Hinsdale v. City of Liberal, Kan., 19 Fed.Appx. 749, 768-69 (10th Cir. 2001) (affirming summary judgment on a claim abandoned in summary judgment briefing); Coffey v. Healthtrust, Inc., 955 F.2d 1388, 1393 (10th Cir. 1992) (same).

         C. Plaintiff did not adequately plead a claim for retaliatory prosecution and the Court declines to construe ...


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