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Rubi v. Town of Mountainair

United States District Court, D. New Mexico

December 11, 2019

CHRIS RUBI, Plaintiff,


         THIS MATTER is before the Court on Plaintiff's Opposed Motion to File Amended Complaint, filed on September 13, 2019. Doc. 33. Having carefully reviewed the parties' positions and the material portions of the record, the Court recommends that Plaintiff's motion be DENIED.[1]

         I. Factual and Procedural Background[2]

         On June 8, 2017, Mr. Chris Rubi was involved in an altercation with Mr. Edward Padilla, Jr., who is a municipal employee with the Town of Mountainair, New Mexico. Docs. 19-1 ¶ 4; 19-2 ¶ 4; 27-1 ¶¶ 13-27; 33-1 ¶¶ 14-28. Mr. Rubi filed a police report with Officer Shayna Nazario of the Mountainair Police Department (MPD). Doc. 33-1 ¶ 29. Officer Nazario took statements about the altercation from Mr. Rubi, Mr. Padilla, and an alleged witness, Ms. Andrea Reynaga. Doc. 19-1 ¶¶ 4-15. According to Officer Nazario, each man involved blamed the other for starting the altercation, each man accused the other of threatening to physically injure him, and Mr. Rubi asserted that Mr. Padilla pushed him to the ground. Doc. 19-1 ¶¶ 5-10, 12-14. Ms. Reynaga, who spoke to Officer Nazario and provided a written statement, stated that she saw both men yelling and cursing at each other. Docs. 19-1 ¶¶ 15-19; 19-1-A. She heard Mr. Rubi say, “I'm gonna kick your ass[, ]” and Mr. Padilla reply, “Well let's go, bitch.” Doc. 19-1-A at 2. “Mr. Rubi disagrees with both Mr. Padilla's and Ms. Reynaga's versions of the altercation, but he does not dispute that each gave their statements to Officer Nazario.” Doc. 32 at 2 (citing Doc. 27 at 2).

         Officer Nazario consulted with Deputy District Attorney Ray Sharbutt and informed him that “she had an eye witness to the dispute” but was unsure whether she could file charges against Mr. Padilla, since he and Officer Nazario shared an employer-the Town of Mountainair. Doc. 19-2 ¶ 4; see also Doc. 19-1 ¶ 22. “Mr. Sharbutt ‘advised Officer Nazario to issue non-traffic citations for disorderly conduct' pursuant to Mountainair Ordinance § 7-1-5 to both Mr. Rubi and Mr. Padilla.” Doc. 32 at 2 (quoting Doc. 19-2 ¶ 4; citing Doc. 19-1 ¶ 22; Town of Mountainair, Code of Ordinances § 7-1-5[3]).

         “Mr. Rubi retained an attorney for his July 5, 2017 arraignment in Mountainair Municipal Court.” Id. at 3 (citing Docs. 19-3 ¶ 6; 19-3-A; 27-1 ¶¶ 30, 32). His attorney's paralegal spoke with Judge Riley of the municipal court. See Docs. 1-6 ¶¶ 3-4. “Judge Riley expressed surprise that Mr. Rubi would need an attorney for an arraignment.” Doc. 32 at 3 (citing Doc. 1-6 ¶ 9). “The paralegal explained that Mr. Rubi ‘had been attacked by [Mr. Padilla] and . . . felt he needed legal representation.'” Id. (quoting Doc. 1-6 ¶ 10). “Judge Riley responded, ‘I know that's not true' and stated that she had already heard about the situation and understood that Mr. Rubi had caused trouble at City Hall.” Id. (quoting Doc. 1-6 ¶¶ 11-12). Judge Riley later recused herself from the case and instructed former Mountainair Police Chief Alfredo C. Turrieta to refile the citation in another jurisdiction. See Docs. 19-2 ¶ 7; 19-3 ¶ 10; 19-3-B; 27-2 ¶ 10. “Neither Officer Nazario nor Chief Turrieta has ever reissued the citation.” Doc. 32 at 3 (citing Docs. 19-1 ¶ 25; 19-4 ¶ 7; 19-5 ¶¶ 3-4).

         Mr. Rubi filed his original “Complaint Due to Deprivation of Civil Rights and Malicious Abuse of Process” in this Court on October 22, 2018. Doc. 1. He asserted claims for malicious prosecution pursuant to 42 U.S.C. § 1983; claims for municipal and supervisory liability pursuant to § 1983; violations of the New Mexico Tort Claims Act, N.M. Stat. Ann. §§ 41-4-6 and 41-4-12 (1978) (NMTCA); and a violation of the New Mexico Inspection of Public Records Act, N.M. Stat. Ann. § 14-2-1-12 (1978). See id. Defendants moved for summary judgment on the malicious prosecution and NMTCA claims (Doc. 19) and moved to dismiss the municipal and supervisory liability claim (Doc. 9). Judge Vazquez granted summary judgment with respect to the malicious prosecution claim, dismissed the municipal and supervisory liability claim, and granted summary judgment in part with respect to the NMTCA claims. See Doc. 32. Only two state law claims remained: malicious abuse of process under § 41-4-12 and the IPRA claim. Id. at 13.The Court allowed Mr. Rubi 30 days to file a motion to amend his complaint. Id.

         Mr. Rubi now moves to amend his complaint to add a federal claim for retaliatory prosecution pursuant to the First Amendment. Doc. 33 at 1. As that is the only claim in the Amended Complaint, he has abandoned his two remaining state law claims. See Doc. 33-1. Defendants oppose the motion on the basis of futility. Doc. 34.

         II. Legal Standards

         Federal Rule of Civil Procedure 15 allows a party to amend its pleading once as a matter of course in limited circumstances. Fed.R.Civ.P. 15(a)(1). Otherwise, a party may only amend its pleading with the “opposing party's written consent or the court's leave.” Fed.R.Civ.P. 15(a)(2). Rule 15 directs that leave shall be freely given “when justice so requires.” Id. “The purpose of the Rule is to provide litigants ‘the maximum opportunity for each claim to be decided on its merits rather than on procedural niceties.'” Minter v. Prime Equip. Co., 451 F.3d 1196, 1204 (10th Cir. 2006) (quoting Hardin v. Manitowoc-Forsythe Corp., 691 F.2d 449, 456 (10th Cir. 1982)). A court may deny a motion for leave to amend where there has been “undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc ..... ” Id. (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)).

         Usually, “[t]he futility question is functionally equivalent to the question whether a complaint may be dismissed for failure to state a claim . . . .” Gohier v. Enright, 186 F.3d 1216, 1218 (10th Cir. 1999) (citations omitted). In reviewing a motion to dismiss under Fed.R.Civ.P. 12(b)(6), the Court “must accept all the well-pleaded allegations of the complaint as true and must construe them in the light most favorable to the plaintiff.” In re Gold Res. Corp. Sec. Litig., 776 F.3d 1103, 1108 (10th Cir. 2015) (quotation omitted). To survive a motion to dismiss, the complaint does not need to contain “detailed factual allegations, ” but it “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 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007)).

         There are situations, however, when the Court may take judicial notice of undisputed facts that are established in the case record, and this is such a case. As the Tenth Circuit has noted, “[a] proposed amendment is futile if the complaint, as amended, would be subject to dismissal for any reason, including that the amendment would not survive a motion for summary judgment.” Watson ex rel. Watson v. Beckel, 242 F.3d 1237, 1239-40 (10th Cir. 2001) (citing Jefferson Cty. Sch. Dist. No. R-1 v. Moody's Inv'r's Servs., Inc., 175 F.3d 848, 859 (10th Cir. 1999); Bauchman v. W. High Sch., 132 F.3d 542, 561 (10th Cir.1997)). As discussed below, some material allegations in the proposed amended complaint here directly contradict facts established on the earlier motion for summary judgment, and the discrepancies cannot be ignored.

         III. Discussion

         To state a claim for retaliatory prosecution, Mr. Rubi must demonstrate that: (1) “he was engaged in a constitutionally protected activity;” (2) that the defendant official's “action caused him to suffer an injury that would chill a person of ordinary firmness from continuing to engage in that activity;” (3) the official's “action was substantially motivated as a response to his exercise of his First Amendment speech rights[;]” Cowley v. W.Valley City, 782 Fed.Appx. 712, 720 (10th Cir. 2019) (quoting Becker v. Kroll, 494 F.3d 904, 925 (10th Cir. 2007) (brackets omitted)), and (4) that the official urging prosecution had “a retaliatory motive . . . combined with an absence of probable cause[, ]” Id. (quoting Hartman v. Moore, 547 U.S. 250, 265 (2006); citing Becker, 494 F.3d at 925). Here, Mr. Rubi submits that he complained about a municipal employee-a constitutionally protected activity (Doc. 33-1 ¶ 29); Officer Nazario and Chief Turrieta cited him in retaliation for his complaint (id. ¶ 52); their “express purpose” in citing him was to harm and harass him in retaliation for his complaint (id.); and they did not have probable cause to cite him (id. ¶ 58).

         Defendants argue that the motion to amend is futile and should be denied on qualified immunity grounds because arguable probable cause existed to cite Mr. Rubi for disorderly conduct. See Doc. 34 at 4-8. Mr. Rubi agrees that “the core issue before the Court” is whether there is “arguable probable cause[, ]” ...

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