United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER DISMISSING ALL CLAIMS
AGAINST TOWN OF SILVER CITY
August 13, 2019, Defendant Town of Silver City (the City)
asked the Court to dismiss all claims brought by Plaintiff
Denise-Bradford: Holmes (Plaintiff). See DEFENDANT
TOWN OF SILVER CITY'S FIRST MOTION TO DISMISS AND
MEMORANDUM IN SUPPORT THEREOF (Doc. No. 12) (Motion).
Plaintiff filed a Response (Doc. No. 14), and the Motion is
fully briefed. See TOWN OF SILVER CITY'S REPLY
TO PLAINTIFF'S RESPONSE [DOC. NO. 14] TO FIRST MOTION TO
DISMISS AND MEMORANDUM IN SUPPORT THEREOF (Doc. No. 17).
Because Plaintiff failed to establish that the City's
employee, Silver City Police Officer Javier Hernandez
(Officer Hernandez), violated her constitutional rights, the
Court will grant the Motion and will dismiss all claims
against the City.
15, 2019, Plaintiff pro se filed this case against Defendants
the City and Officer Hernandez. See CIVIL COMPLAINT
Title 42 Section 1983 (Doc. No. 2) (Complaint). Plaintiff
states that her claims under §1983 are for violations of
the “9th Amendment/ejusden
generis/14th Amendment by a non U.S. citizen, as
plaintiff has the original Bill of Rights.” (Compl. at
p. 3.) Specifically, Plaintiff alleges that Defendants
violated her constitutional rights by falsely arresting and
maliciously prosecuting her. (Id. at p. 5.)
Plaintiff claims her rights under the Fifth Amendment were
violated because at the time of her arrest she was not
informed of her Miranda rights. (Id.)
Plaintiff accuses Defendants of tampering with public records
and civil larceny. (Id. at p. 6.) Plaintiff asks for
damages totaling $250.000. (Id.)
12(b)(6) requires dismissal for “failure to state a
claim upon which relief can be granted.” Fed.R.Civ.P.
12(b)(6). If a party fails to state a claim as a matter of
law, the court must dismiss the claim. When considering a
motion to dismiss, the court must “accept all of the
well-pleaded allegations in the complaint as true.”
Davenport v. Williams, 2:17-CV-15-CW, 2017 WL
5633109, at *3 (D. Utah Nov. 21, 2017) (unpublished) (citing
Tonkovich v. Kan. Bd. of Regents, 159 F.3d 504, 510
(10th Cir. 1998)). When analyzing pleadings filed by pro se
parties, the court “must liberally construe the
pleadings and draw all reasonable inferences in favor of the
plaintiff, ” but it is not obligated to “accept
conclusory allegations.” Holmes v. Grant County
Sheriff Dep't, 347 F.Supp.3d 815, 823 (D. N.M.
2018). “But the court [is] not [to] ‘assume the
role of advocate for the pro se litigant.'”
Id. (citation omitted).
Court's MEMORANDUM OPINION AND ORDER (Doc. No. 19)
granting Officer Hernandez's Motion for Summary Judgment,
the Court outlined background facts in detail, and those
facts also pertain to this ruling.
Supreme Court has held that “a local government may not
be sued under § 1983 for an injury inflicted solely by
its employees or agents.” Monell v. Dep't of
Social Svcs., 436 U.S. 658, 694 (1978). Thus, “a
municipality cannot be held liable under § 1983 on a
respondeat superior theory.” Id. at
691. Instead, “a government as an entity” may
only be liable “when execution of a government's
policy or custom, whether made by its lawmakers or by those
whose edicts or acts may fairly be said to represent official
policy, inflicts injury.” Id. at 694. To
impose liability on Defendant City, Plaintiff must identify a
policy or custom that caused Plaintiff's alleged
constitutional injury. Id.
importantly, however, absent a showing of constitutional
injury, a municipality cannot be liable for damages,
regardless of the existence of a policy or custom. City
of Los Angeles v. Heller, 475 U.S. 796, 799 (1986). In
other words, if there is no underlying constitutional
violation, the City may not be held liable. Hinton v.
City of Elwood, Kan., 997 F.2d 774, 782 (10th Cir. 1993)
(“A municipality may not be held liable where there was
no underlying constitutional violation by any of its
officers.”) (quoting Heller supra) . Where
individual officers are granted qualified immunity on the
ground that there was no constitutional violation, the court
“may properly rely on this finding to dismiss”
claims against the municipality. Hinton, 997
F.Supp.2d at 783.
case, the Court has ruled that Silver City Police Officer
Javier Hernandez was entitled to qualified immunity on all
the claims asserted by Plaintiff under §1983 because
Officer Hernandez, as a matter of law, did not violate
Plaintiff's constitutional or statutory rights.
Therefore, all claims under §1983 against the City will
be dismissed with prejudice. For the same reasons stated in
the MEMORANDUM OPINION AND ORDER granting Officer
Hernandez's Motion for Summary Judgment, the Court will
also dismiss the claim for civil larceny against the City.
Response, Plaintiff attempts to add a claim against the City
under § 1983 for failure to train Officer Hernandez.
(See Doc. No. 14 at pp. 3-6.) However,
Plaintiff's Complaint contains no factual allegations
regarding the City's lack of training. “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). Without
such allegations, Plaintiff may not assert such a claim, and
the claim will be dismissed.
Complaint, Plaintiff specifically alleges that the City is
liable “for Tampering with Public Records” in
violation of NMSA 1978 § 30-26-1, which provides,
Tampering with public records consists of:
A. knowingly altering any public record without lawful