United States District Court, D. New Mexico
ORDER ON MOTION TO DISMISS AND TO SHOW CAUSE
D. FREUDENTHAL UNITED STATES DISTRICT JUDGE
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.
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.
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
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.
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.
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
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.
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.
“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.
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).
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.
Fourth Amendment Claim
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. 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.
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.
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 ...