United States District Court, D. New Mexico
PROPOSED FINDINGS AND RECOMMENDED
E. GARZA, CHIEF UNITED STATES MAGISTRATE JUDGE
MATTER is before the Court on Defendant City of
Hobbs' Motion to Dismiss Plaintiff's Claims That it
Violated NMSA 1978, Section 60-3A-6.1 (the “Motion
to Dismiss”), (Doc. 32), filed July 31, 2017;
Plaintiff's Response to Defendant City of Hobbs'
Motion to Dismiss Plaintiff's Claims That it Violated
NMSA 1978, Section 60-3A-6.1, (Doc. 34), filed August
14, 2017; and Defendant City of Hobbs' Reply in
Support of Defendant's Motion to Dismiss Plaintiff's
Claims That it Violated NMSA 1978, Section 60-3A-6.1,
(Doc. 45), filed September 5, 2017.
August 5, 2019, United States District Judge J. Thomas Marten
referred this matter to the undersigned to make findings of
fact, conduct legal analysis, and recommend an ultimate
disposition. (Doc. 79). After considering the parties'
filings, the record, and the relevant law, the Court
RECOMMENDS that Defendant City of
Hobbs' Motion to Dismiss Plaintiff's Claims That it
Violated NMSA 1978, Section 60-3A-6.1, (Doc. 32), be
evening of January 16, 2015, into the early hours of January
17, 2015, Plaintiff Nathaniel Trujillo was at Diamond
Lil's, a bar in Hobbs, New Mexico. (Doc. 1 at 3). When
the bar closed, Mr. Trujillo sat in the rear parking lot,
waiting in the passenger seat of his friend's car.
Id. Kyle Laughrin, another patron exiting Diamond
Lil's, walked into the rear parking lot and began waving
a handgun and pointing the weapon at the vehicle where Mr.
Trujillo was seated. Id. Concerned for the safety of
himself and the other patrons in the parking lot, Mr.
Trujillo exited the vehicle and asked Mr. Laughrin to put the
handgun away. Id. at 4. In response, Mr. Laughrin
fired two shots from the handgun into the air and proceeded
to pull a rifle from a nearby vehicle belonging to a friend.
Id. Mr. Trujillo continued to reason with Mr.
Laughrin to put the weapons away as law enforcement arrived
on the scene. Id.
Royal Hopper arrived at Diamond Lil's and fired his
service weapon at Mr. Laughrin and Mr. Trujillo “six to
eight times.” (Doc. 1 at 5). After being shot by
Officer Hopper, Mr. Laughrin fled to a nearby vehicle.
Id. Mr. Trujillo remained in the rear parking lot,
bleeding as a result of two gunshot wounds to his upper
thigh, and waited roughly fifteen minutes for emergency
personnel to arrive and administer aid. Id. at 5-6.
As a result of his injuries, Mr. Trujillo was airlifted to
University Medical Center in Lubbock, Texas. Id. at
6. Mr. Trujillo has undergone multiple surgeries since the
shooting and was unable to return to work for nearly four
months as he recovered from his injuries. Id.
Trujillo contends Diamond Lil's is known in the community
for its “illustrious criminal history, ”
including sixty-six “serious incidents” between
January 1, 2008 and November 1, 2008. (Doc. 1 at 8). Mr.
Trujillo alleges the Hobbs Police Department served “as
Diamond Lil's publicly-paid security guards, ”
protecting the establishment even in light of the
“repeated creation of danger for its patrons, the
community, and [the] officers.” Id. at 25-26.
In addition, Mr. Trujillo argues that despite the Hobbs
Police Department's knowledge that Diamond Lil's
routinely violated both the Liquor Control Act and state and
local laws, the City of Hobbs (the “City”)
allowed crime to remain unabated and failed to appropriately
respond to what had become a “nuisance
establishment.” Id. at 8.
Complaint, Mr. Trujillo alleges five causes of action against
the City and Officer Hopper. (Doc. 1 at 27-31). First, Mr.
Trujillo states two claims against the City: one count of
“negligence resulting in battery” under the New
Mexico Tort Claims Act (“NMTCA”) and one count of
42 U.S.C. § 1983 Monell liability under a
theory of failure to train and the excessive use of force
under the Fourth and Fourteenth Amendments. (Doc. 34 at 1).
Next, Mr. Trujillo states three claims against Officer Hopper
in his individual capacity: one count of battery under the
NMTCA and two counts of deprivation of civil rights under 42
U.S.C. § 1983, alleging violations of the Fourth and
Fourteenth Amendments for his use of deadly force and his
failure to administer aid. (Doc. 1 at 27-31).
have now moved to dismiss one of Mr. Trujillo's legal
theories supporting his claim for “negligence resulting
in battery” under the NMTCA based on the City's
alleged violations of the Liquor Control Act, N.M.S.A.
Section 60-3A-6.1 (the “Liquor Control Act” or
“§ 60-3A-6.1”). (Doc. 32 at 1). The scope of
Defendants' Motion to Dismiss is narrow - their
three-page motion and four-page reply only seek to establish
that Mr. Trujillo “fails to allege sufficient facts to
support a violation of [the Liquor control Act].” (Doc.
32 at 2). Indeed, Defendants have not contested that the City
has a general duty to enforce the criminal provisions of the
Liquor Control Act, nor do they debate any other element of
Mr. Trujillo's negligence claim. (Doc. 46 at 2-3)
(“Criminal offenses that are violations of the Act are
specifically delineated. Importantly, none of the incidents
listed in paragraph 71 of Plaintiff's Complaint are
violations of the Liquor Control Act, nor on any of the
occasions listed in paragraph 71 did the City or its officers
violate [the Liquor Control Act] by failing to notify the
[alcohol and gaming commission] within 30 days of issuing a
citation for a violation of the Act.”) (citations
omitted). The Court will therefore only address whether Mr.
Trujillo has presented enough factual support to demonstrate
the City's plausible failure to enforce the criminal
provisions of the Liquor Control Act. The question of whether
such failure satisfies the elements of negligence under the
NMTCA is not before the Court.
Federal Rules of Civil Procedure provide that a complaint
must contain a “short and plain” statement of:
(1) the grounds supporting the court's jurisdiction; (2)
the claim showing that the plaintiff is entitled to relief;
and (3) a demand for the relief sought. Fed.R.Civ.P. 8(a). A
defendant may move the court to dismiss a complaint for,
inter alia, “failure to state a claim upon
which relief can be granted.” Fed.R.Civ.P. 12(b)(6). To
comply with the pleading requirements of Rule 12(b)(6), a
“plaintiff must allege enough factual matter, taken as
true, to make his claim to relief … plausible on its
face.” Bryson v. Gonzales, 534 f.3d 1282, 1286
(10th Cir. 2008) (citing Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). “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, 129 S.Ct. 1937, 1949 (2009)
(citing Twombly, 550 U.S. at 556).
complaint does not need detailed factual allegations, but the
factual allegations must be enough to raise a right to relief
above the speculative level.” Hall v.
Witteman, 584 F.3d 859, 863 (10th Cir. 2009) (citation
and internal quotation marks omitted). In addition, the court
cannot consider matters outside of the pleading, nor is it
required to accept conclusory or unsupported allegations.
Dunn v. White, 880 F.2d 1188, 1190 (10th Cir. 1989).
Moreover, “a formulaic recitation of the elements of a
cause of action” will not suffice to state a claim.
Twombly, 550 U.S. at 555. Finally, “[t]he
nature and specificity of the allegations required to state a
plausible claim will vary based on context.” Khalik
v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir.
2012) (citations omitted).
Trujillo's first cause of action against the City,
alleging “negligence resulting in battery” under
the NMTCA, includes serval theories to support his accusation
of negligence. (Doc. 34 at 5). For example, Mr. Trujillo
contends the City failed to exercise reasonable care, failed
to adequately train and supervise officers, failed to forward
liquor control violations, failed to enforce nuisance
abatement ordinances and state law, provided an inadequate
response to increasing rates of deadly force, and negligently
adopted and ratified a culture of violence. (Doc. 1 at ...