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Carrillo-Ortiz v. New Mexico Department of Public Safety

United States District Court, D. New Mexico

September 13, 2019

NEW MEXICO STATE POLICE, et al., Defendants.



         This matter is before the Court on the Motion to Dismiss Plaintiff Francisco Agustin Carrillo-Ortiz's Second Amended Complaint. (Doc. 58). All named Defendants except Defendants Luis Hernandez and Shane Todd join in the motion; Defendants Hernandez and Todd are not yet served and have not appeared. In resolving the Motion, the Court does not consider the claims against Defendants Hernandez and Todd. For the following reasons, the Court concludes the only claims that survive the motion are Plaintiff's Fourteenth Amendment and battery claims against Defendants Munoz and Waller. The Court also requires Plaintiff to show cause within 14 days why the unserved Defendants Hernandez and Todd should not be dismissed for lack of timely service.


         This suit stems from Plaintiff Francisco Agustin Carrillo-Ortiz's interactions with New Mexico State Police (“NMSP”) in 2015 and 2016. On July 29, 2015, NMSP Officer Toby LaFave conducted surveillance “on the property where Mr. Carrillo-Ortiz resided with his mother.” As Carrillo-Ortiz exited his mother's back door, LaFave entered the property without consent or a warrant and attempted to arrest him without justification. LaFave attempted to taser Carrillo-Ortiz for threatening to record the unlawful arrest, but an assisting officer accidently tased LaFave. Because of this encounter, Carrillo-Ortiz was charged with receiving and or transferring a stolen vehicle and two counts of resisting arrest. Carrillo-Ortiz did not receive notice of the arraignment, and a court issued a bench warrant shortly thereafter.

         Following the 2015 encounter, LaFave “conspired with Defendant Rafael Gomez and possibly other Defendants to retaliate against [Carrillo-Ortiz.]” While the complaint is somewhat unclear, communications between these defendants apparently led to an “operation” to apprehend Carrillo-Ortiz on the pending arrest warrant. Carrillo-Ortiz was also a suspected drug dealer. On January 28, 2016, a “tactical team” composed of NMSP Officer Defendants Lorenzo Aguirre, Hugo Munoz, Bryan Waller, Jonathan Tenorio, Shane Todd, and Josh Willis met “to plan and execute a control narcotic buy between [Carrillo-Ortiz and] a confidential informant.” The tactical team believed this operation would “result in the arrest of [Carrillo-Ortiz]” or give them an opportunity to “execute a non-violent felony arrest warrant.” Defendant Luis Hernandez “approved [a] tactical team and aircraft involvement” to carry out this operation. Hernandez “was the supervisor of the Special Operations Bureau that [oversaw] the NMSP Tactical Team and Aircraft Section” during the relevant time period.

         On January 28, 2016, defendants worked to bring the operation to fruition. Defendants initially tried to entrap Carrillo-Ortiz at a gas station “for the control buy.” The Defendants even “requested that the Aircraft Section of the Special Operations Bureau assist . . . by providing a helicopter for surveillance.” However, Defendants were unable to carry out their plan at the gas station, and they moved their activities to another spot: the Manna Mini Mart. When Defendants arrived at the Mini Mart, Carrillo-Ortiz was “alone in his vehicle and unarmed, ” parallel parking the vehicle to pick up a friend. While he was watching his friend approach, Carrillo-Ortiz felt a sharp pain and realized he had been shot several times. He “did not see law enforcement or the vehicles that law enforcement [officers were] driving.” Carrillo-Ortiz left by reversing his vehicle and driving away. He drove “a short distance away” before calling his mother, Griselda Ortiz-Marquez. Ms. Ortiz-Marquez “began looking for her son and found him laying down on a road with multiple gunshot wounds and visible bleeding.” She “called the police and reported that he was shot and requested assistance.” When law enforcement arrived, they “arrested” and “detained” Carrillo-Ortiz, eventually transferring him to “UNM hospital because of the severity of his injuries.” SAC ¶ 20.

         Plaintiff further alleges

On a voice recording obtained from Defendant Tenorio, a Defendant's voice states “State Police … let me see your hands” and within two seconds of the announcement to the Plaintiff approximately seventeen shots are fired in close proximity at Plaintiff's vehicle in a matter of thirteen seconds. Upon information and belief, seconds prior to the gunshots, one of the four officers in the Dodge van deployed a flash-noise diversionary devise [sic] on top of the Plaintiff's vehicle before the unmarked gray passenger van was in place.

SAC ¶ 22.

         Based on these allegations, Carrillo-Ortiz brought suit through his counsel, initially alleging violations of his civil rights and negligent battery against Defendant New Mexico Department of Public Safety and several individual defendants in their individual and official capacities. Doc. 1-1 (state court complaint removed to this Court). On Defendants' motion, the Court dismissed the initial complaint for Plaintiff's failure to identify among other things what constitutional rights he claimed Defendants violated and to plausibly allege facts to support a “negligent battery” claim exempt from New Mexico's immunity. Doc. 35 (order of October 9, 2018). The Court gave leave to amend. In the first amended complaint (“FAC”), Carrillo-Ortiz maintained his civil rights claim and clarified his state law claim was for battery, rather than negligent battery. But the FAC still did not identify what constitutional rights were at issue or what facts supported each claim as to each Defendant. The Court dismissed the FAC for failure to state a claim and gave leave to amend again. Doc. 55 (Order of April 4, 2019).

         In the SAC, Carrillo-Ortiz states one cause of action for a § 1983 conspiracy and failure to train and supervise. SAC, pp. 8-12. He states another single cause of action for excessive force and unreasonable seizure under the Fourth and Fourteenth Amendments, and battery. Id., pp. 12-14. On May 31, 2019, Defendants moved to dismiss the SAC. Doc. 58. The motion is fully briefed and ready for disposition.


         In reviewing a Fed.R.Civ.P. 12(b)(6) dismissal, a court “must accept as true all well-pleaded facts, as distinguished from conclusory allegations, and those facts must be viewed in the light most favorable to the non-moving party.” Moss v. Kopp, 559 F.3d 1155, 1161 (10th Cir. 2009). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. 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.” Iqbal, 556 U.S. at 678.

         But “dismissal is appropriate where ‘the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct.'” Al-Owhali v. Holder, 687 F.3d 1236, 1240 (10th Cir. 2012) (quoting Iqbal, 556 U.S. at 679). “Thus, mere ‘labels and conclusions' and ‘a formulaic recitation of the elements of a cause of action' will not suffice.” Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012) (quoting Twombly, 550 U.S. at 555). “Accordingly, in examining a complaint under Rule 12(b)(6), we will disregard conclusory statements and look only to whether the remaining, factual allegations plausibly suggest the defendant is liable.” Khalik, 671 F.3d at 1191. “Factual allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555.

         Where litigants sue government officials in their individual capacities under § 1983, those officials may assert qualified immunity. Brown v. Montoya, 662 F.3d 1152, 1164 (10th Cir. 2011). “The doctrine of qualified immunity shields public officials . . . from damages actions unless their conduct was unreasonable in light of clearly established law.” Gann v. Cline, 519 F.3d 1090, 1092 (10th Cir. 2008) (quoting Elder v. Holloway, 510 U.S. 510, 512 (1994)). Thus, to survive a motion to dismiss based on qualified immunity, plaintiffs must allege facts showing: 1) that “defendants plausibly violated their constitutional rights, ” and 2) “that those rights were clearly established at the time.” Robbins v. Oklahoma, 519 F.3d 1242, 1249 (10th Cir. 2008).

         “For the law to be ‘clearly established,' there ordinarily must be a Supreme Court or Tenth Circuit opinion on point, or the clearly established weight of authority from other circuits must point in one direction.” Pompeo v. Bd. of Regents, 852 F.3d 973, 981 (10th Cir. 2017). Further, since “complaints in § 1983 cases against individual government actors pose a greater likelihood of failures in notice and plausibility because they typically include complex claims against multiple defendants … [t]he Twombly standard may have greater bite in such contexts.” Robbins, 519 F.3d at 1249.


         I. Fourth Amendment Claim

         Carrillo-Ortiz claims excessive force and unreasonable seizure under the Fourth Amendment. It appears he states this claim against only the three individual Defendants mentioned in this claim: Munoz, Waller, and Todd.[2] T h e SAC does n ot make p lain whether Plaintiff brings this claim against these officers in their official or personal capacities. To the extent Plaintiff seeks damages on this claim against the three officers in their official capacity, the claim fails because they are not “persons” suable under § 1983 for such relief. “[N]either a State nor its officials acting in their official capacities are ‘persons' under § 1983.” Will v. Michigan Dept. of State Police, 491 U.S. 58, 71 (1989). Thus, “§ 1983 creates no remedy against a State.” Arizonans for Official English v. Arizona, 520 U.S. 43, 69 (1997). Therefore, as to damages, the claim can only regard the three officers in their personal capacity.

         As to Plaintiff's request for injunctive relief, Plaintiff's allegations do not establish standing for injunctive relief on this claim. Plaintiff's allegations must demonstrate a realistic probability that he will again be subjected to the same injurious conduct. City of Los Angeles v. Lyons, 461 U.S. 95, 105 (1983) (cited with approval in e.g., Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009)). In this case, Plaintiff's allegations do not suggest any likelihood, let alone realistic probability, that he will be subjected to the same conduct from NMSP again.

         To the extent Plaintiff intends this claim against more of the individual Defendants, the claim fails because individual liability under § 1983 “requires personal involvement” in the alleged constitutional violation. Therefore the Court would have no means to hold any of the other individual defendants liable for this claim. Pahls v. Thomas, 718 F.3d 1210, 1231 (10th Cir. 2013). Accordingly, the Court will proceed ...

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