United States District Court, D. New Mexico
PROPOSED FINDINGS AND RECOMMENDED
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.
Factual and Procedural Background
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).
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).
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).
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
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.
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)).
“[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)).
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.
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).
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[, ]” ...