United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
HONORABLE MARTHA VÁZQUEZ UNITED STATES DISTRICT JUDGE.
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).
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
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.)
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. 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.)
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.)
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).
The Court will grant in part Defendants' motion for
Summary Judgment Standard of Review
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.
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.
The Court will grant summary judgment to Defendants on
Plaintiff's malicious prosecution claim.
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.)
set forth substantive arguments to establish that Plaintiff
cannot prove his malicious prosecution claim. (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).
Plaintiff did not adequately plead a claim for retaliatory
prosecution and the Court declines to construe ...