United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
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
9, 2019, the Board of County Commissioners moved to dismiss
Plaintiffs' Amended Complaint under Rule 12(b)(6) for
failure to state a claim. The Board's Motion was fully
briefed 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
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. Plaintiffs
responded to the Individual Defendants' Motion on July
25, 2019. 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. 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.
August 16, 2019, Mr. Burton filed a single consolidated
response to both the Board's Motion and the Individual
Defendants' Motion. Finally, on September 3, 2019,
Defendants filed their reply addressing both the GAL Response
and the response to the Individual Defendants' Motion
from Plaintiffs. 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
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.
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 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.
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.
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.
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.
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.
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
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).
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.”).
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
Official Capacity Claims against the Individual
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
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.
Equal Protection Claims - Counts I (Roger Romero) & ...