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Romero v. Stone

United States District Court, D. New Mexico

September 16, 2019

ROGER ROMERO and GEORGE ROMERO, Plaintiffs,
v.
PRESTON L. STONE, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

         On April 25, 2019, Plaintiffs Roger Romero and his son George Romero (Plaintiffs) filed a CORRECTED FIRST AMENDED COMPLAINT FOR VIOLATION OF CIVIL, CONSTITUTIONAL AND STATUTORY RIGHTS, NEGLIGENCE AND PRIMA FACIE TORT (Doc. 21) (Amended Complaint) alleging constitutional violations and state law claims against Defendants the Board of County Commissioners of the County of Lincoln (Board of County Commissioners); individual County Commissioners Preston Stone, Dallas Draper, Elaine Allen, Thomas Stewart, and Lynn Willard; the Lincoln County Sheriff's Department; Deputy Charlie Evans; and Alan Morel, the attorney for the Board of County Commissioners (Defendants).

         On May 9, 2019, the Board of County Commissioners moved to dismiss Plaintiffs' Amended Complaint under Rule 12(b)(6) for failure to state a claim.[1] The Board's Motion was fully briefed[2] but not yet decided on June 10, 2019, when Plaintiffs asked the Court to appoint a Guardian Ad Litem (GAL) for Plaintiffs due to their alleged incompetence.[3]

         On July 1, 2019, before responding to Plaintiffs' request for a GAL, Defendants Stone, Draper, Allen, Stewart, Willard, Evans, and Morel (collectively, the Individual Defendants) moved to dismiss all official and individual capacity claims brought against them in the Amended Complaint.[4] Plaintiffs responded to the Individual Defendants' Motion on July 25, 2019.[5] However, on August 1, 2019, before addressing the merits of either dispositive motion, the Court held a hearing on Plaintiffs' request for the appointment of a GAL. On August 7, 2019, after considering the evidence as to Plaintiffs' incompetence and with no objection from Defendants, the Court appointed Attorney Eric Burton to act as GAL on Plaintiffs' behalf.[6] The Court allowed Mr. Burton time to review the briefing on the motions for dismissal and gave him leave to file an additional response as necessary.

         On August 16, 2019, Mr. Burton filed a single consolidated response to both the Board's Motion and the Individual Defendants' Motion.[7] Finally, on September 3, 2019, Defendants filed their reply addressing both the GAL Response and the response to the Individual Defendants' Motion from Plaintiffs.[8] Both the Board's Motion and the Individual Defendants' Motion are now fully briefed. After consideration of the briefing, arguments, and relevant law, the Court will grant the Motions and will dismiss Plaintiffs' claims.

         I. BACKGROUND[9]

         Plaintiff Roger Romero is the owner of real property located in Lincoln County, New Mexico, on which he and his son Plaintiff George Romero reside. Amended Compl. ¶¶ 39-42, 87. Roger Romero had a home on this land, along with personal property. Id. ¶ 39. George Romero owned a trailer home and personal possessions, including his mother's ashes, that were located on Roger Romero's real property. Id. ¶ 47. Plaintiffs are hoarders and had also placed large numbers of wooden pallets and other materials on this property. Id. ¶ 12.

         Over many years, Defendants have repeatedly tried to convict Plaintiffs for the accumulation of waste on Roger Romero's property. Id. ¶ 13. However, in each of these proceedings except the last, Plaintiffs[10] have been found to be incompetent and the charges have been dismissed. Id. ¶¶ 11, 23, 25-27, 37. It is generally known in Plaintiffs' neighborhood that Plaintiffs are mentally incompetent, and this fact was known to all Defendants. Id. ¶¶ 10, 20-24. Nevertheless, the County Commissioner Defendants directed Defendant Deputy Evans to issue a citation to Plaintiff Roger Romero for violation of Lincoln County Ordinance 2016/02, Section 2A, which prohibits the accumulation of waste on property. Id. ¶ 33.

         The County Commissioner Defendants, acting through County Attorney Defendant Morel, filed a criminal charge against Plaintiff Roger Romero in Lincoln County Magistrate Court based on this citation. Id. ¶¶ 33-34. Neither Plaintiff Roger Romero nor his court- appointed criminal defense attorney raised Plaintiff Roger Romero's incompetency before the court. Id. ¶ 36. All Individual Defendants, including the County Commissioners, Defendant Morel, and Defendant Evans, along with the Lincoln County Sheriff's Department, knew of Plaintiff Roger Romero's incompetency, yet Defendants failed to inform the Lincoln County Magistrate Court that Plaintiff Roger Romero was incompetent. Id. ¶¶ 37, 45. On August 1, 2017, Plaintiff Roger Romero was found guilty of the violation. Id. ¶ 35. He was sentenced to 30 days of incarceration in the Lincoln County Detention Center and 60 days of probation. Id. Plaintiff Roger Romero was also ordered to pay fines and court costs of $373. Id.

         Plaintiff Roger Romero later filed a Writ of Habeas Corpus asserting his incompetence in the New Mexico State Twelfth Judicial District Court, County of Lincoln, which granted the writ, set aside Plaintiff Roger Romero's conviction, and vacated the Judgment and Sentence. Id. ¶ 38, Ex. K. However, by the time the conviction was vacated, Plaintiff Roger Romero had already served his 30 days' imprisonment and his 60 days' probation. Id. ¶ 38, Ex. K. Additionally, the County Commissioner Defendants sought and obtained bids to remove and destroy Plaintiffs' property. Id. ¶ 39. Defendants hired a contractor to clean up Plaintiff Roger Romero's property by removing everything but the soil, including the homes and other personal property of Roger and George Romero, at a cost of $17, 204.70. Id. ¶ 39, Ex. K-L.

         Acting through County Attorney Defendant Morel, Defendant Board of County Commissioners then filed a claim of lien on the real property for $17, 454.70, representing the clean-up costs plus interest. Id. ¶ 40, Ex. L. The Defendant Board of County Commissioners and Defendant Morel filed a Complaint for Foreclosure of Lien asserting that Plaintiff Roger Romero owed $17, 667.02 for the principal amount of the lien plus accrued unpaid interest, along with attorney fees and costs. Id. ¶¶ 39-40, Ex. L. This foreclosure claim is currently pending in state court. See Cause No. D-1226-CV-2018-00055, filed in the Twelfth Judicial District Court, County of Lincoln.

         Plaintiffs Roger Romero and George Romero brought federal and state claims in this Court based on Defendants' prosecution of Plaintiff Roger Romero despite his known incompetence, the destruction of personal property belonging to Plaintiffs George and Roger Romero, and the attempted taking of Plaintiff Roger Romero's real property. The Individual Defendants and the Defendant Board of County Commissioners ask the Court to dismiss Plaintiffs' Amended Complaint for failure to state a claim. Additionally, the Individual Defendants assert qualified immunity, and Defendant Morel claims absolute immunity as a prosecutor. Because the Individual Defendants' Motion argues that Plaintiffs have failed to state a claim and incorporates by reference all arguments made in the Board's Motion, the Court will address both Motions together below.

         II. LEGAL STANDARD

         The Court has jurisdiction under 28 U.S.C. §§ 1331 and 1367 because Plaintiffs bring related claims under federal and state law. In evaluating a motion to dismiss, the Court takes all allegations of material fact in the Amended Complaint as true and construes them in the light most favorable to the nonmoving parties. Warth v. Seldin, 422 U.S. 490, 501 (1975). To survive a dismissal motion, however, Plaintiffs must allege facts that are enough to raise their right to relief “above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). The Amended Complaint “does not need detailed factual allegations, ” but “requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action[.]” Id.

         Plaintiffs must allege “enough facts to state a claim to relief that is plausible on its face, ” not just conceivable. Id. at 570. Additionally, to defeat the assertion of qualified immunity, Plaintiffs' allegations must be adequate to show that (1) each Defendant's conduct violated a constitutional or statutory right, and (2) the right was clearly established when the violation occurred. Ashcroft v. Al-Kidd, 563 U.S. 731, 735 (2011). However, “the official seeking absolute immunity bears the burden of showing that such immunity is justified for the function in question.” Buckley v. Fitzsimmons, 509 U.S. 259, 269 (1993) (internal quotation marks omitted).

         The Court will not consider materials outside of the pleadings when resolving a motion to dismiss, other than those referenced in the Amended Complaint and central to Plaintiffs' claims, or court documents of which the Court may take judicial notice. See Pace, 519 F.3d at 1072-73 (In deciding a motion to dismiss, district courts may properly consider documents referred to in the complaint and central to the plaintiff's claim, and may take judicial notice of adjudicative facts.); St. Louis Baptist Temple, Inc. v. FDIC, 605 F.2d 1169, 1172 (10th Cir. 1979) (“[F]ederal courts, in appropriate circumstances, may take notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue.”).

         III. DISCUSSION

         The Court will first address Plaintiffs' federal claims, which Plaintiffs have brought under Section 1983 against all Defendants. In Count I, Plaintiffs allege violations of Roger Romero's fourteenth amendment rights to due process and equal protection, and of his eighth amendment right to be free from cruel and unusual punishment. Count IV asserts violation of George Romero's fourteenth amendment rights to due process and equal protection. Count V also asserts violations of due process as to George Romero, although it is not clear to the Court if Plaintiffs intend to allege additional violations of the fourteenth amendment in this Count, or a violation of state law. The Board of County Commissioners argues that Plaintiffs have failed to state a plausible constitutional claim because they have not pleaded facts to support the required elements of the alleged violations. The Individual Defendants also argue that Plaintiffs have failed to state any plausible claim against them in their individual capacity, and that Plaintiffs' official capacity claims must be dismissed because the claims are duplicative. The Individual Defendants assert qualified immunity, and in the case of Defendant Morel, absolute immunity.

         A. Official Capacity Claims against the Individual Defendants

         The Individual Defendants argue that any official capacity claims against the Individual Defendants must fail because they are duplicative of Plaintiffs' claims against the Board of County Commissioners. It is not clear to the Court whether Plaintiffs intend to bring claims against the Individual Defendants in their official capacity. The Amended Complaint does not state a particular capacity in which the Individual Defendants are sued, but it does name Defendants Stone, Draper, Allen, Stewart, and Willard “Individually and as Lincoln County Commissioner.” It also names Defendant Morel “serving as attorney for the Board of County Commissioners of the County of Lincoln County” and Defendant Evans “of the Lincoln County Sheriff's Department of the County of Lincoln, State of New Mexico.”

         “An action against a person in his official capacity is, in reality, an action against the government entity for whom the person works.” Pietrowski v. Town of Dibble, 134 F.3d 1006, 1009 (10th Cir.1998). When a governmental entity is a defendant in a lawsuit, any official capacity claims against its employees are duplicative and may be dismissed. Human Rights Defense Center v. Bd. of Cty. Comm'rs of the Cty. of San Miguel, Case No. 18 CV 00355 JAP/SCY, 2018 WL 3972922, *6 (D.N.M. Aug. 20, 2018). Both the Board of County Commissioners and the Lincoln County Sheriff's Department are named defendants in this suit. Accordingly, the Court agrees with the Individual Defendants that any claims against them in their official capacity are redundant. To the extent that Plaintiffs have brought official capacity claims against the Individual Defendants, the Court will dismiss those claims.

         B. Equal Protection Claims - Counts I (Roger Romero) & ...


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