Smith v. Alamogordo Police Dep't
| Decision Date | 10 January 2023 |
| Docket Number | 21-cv-1084 MV/SMV |
| Parties | JESSICA SMITH, CORY SMITH, MONICA CONTRERAS, and RUDY A. CONTRERAS, Plaintiffs, v. ALAMOGORDO POLICE DEPARTMENT and CITY OF ALAMOGORDO, Defendants.[1] |
| Court | U.S. District Court — District of New Mexico |
THIS MATTER is before the Court on Plaintiffs' Objections [Docs. 28, 29] to the Magistrate Judge's Proposed Findings and Recommended Disposition (“PF&RD”) [Doc. 27]. The Magistrate Judge recommended granting the City of Alamogordo's[2] Motion to Dismiss Plaintiffs' Amended Complaint for failure to state a claim and recommended denying further amendment as futile. See [Doc. 27]. Having conducted a de novo review of the portions of the PF&RD to which Plaintiffs properly objected, this Court overrules Plaintiff's Objections and adopts the PF&RD.
The state law tort claims are barred by the statute of limitations, and the § 1983 claims do not survive Donovan Contreras's death. Further amendment cannot help Plaintiffs. Dismissal with prejudice is necessary.
Plaintiff Rudy Contreras filed the original Complaint against the Alamogordo Police Department in the Twelfth Judicial District Court for the State of New Mexico on October 6, 2021. [Doc 1-1]. He then filed an amended Complaint two days later joined by Plaintiffs Jessica Smith, Cory Smith, and Monica Contreras. [Doc. 1-2]. Alamogordo Police Department removed the matter to this Court on November 8, 2021 and filed the first Motion to Dismiss on November 15, 2021. [Docs. 1, 4]. On April 28, 2022, The Honorable Stephan M. Vidmar, United States Magistrate Judge, recommended that the Complaint be dismissed for failure to state a claim, but that Plaintiffs be allowed to amend. [Doc. 14]. Shortly thereafter Plaintiffs filed the instant amended Complaint (“Amended Complaint”), adding the City of Alamogordo (“Defendant”) as the proper defendant. [Doc. 15]. Defendant filed a second Motion to Dismiss on June 3, 2022. [Doc. 17]. The Court adopted Judge Vidmar's Proposed Findings and Recommended Disposition and found the first Motion to Dismiss moot due to Plaintiffs' Amended Complaint. [Doc 19].
Plaintiffs filed their Amended Complaint, the operative complaint in this matter, on May 11, 2022. See [Doc. 15]. In the Amended Complaint, Plaintiffs assert various claims under the New Mexico and Federal Constitutions against Detective Diana Chavez and Raymond Brown as employees of Defendant (though not as named defendants). See [Doc. 15] at 14-19 35-39. Plaintiffs seek damages against Defendant for alleged constitutional violations, which they claim caused the wrongful death of Donovan Contreras (“Mr. Contreras”), Plaintiff Rudy Contreras's grandson and Plaintiff Jessica Smith's son. Id. at 2.
On October 6, 2022, the Court referred the case to Judge Vidmar, pursuant to 28 U.S.C. § 636(b)(1)(B), (b)(3), and Rule 72(b) of the Federal Rules of Civil Procedure. [Doc. 26]. In the PF&RD, Judge Vidmar recommended granting Defendant's Motion to Dismiss and finding that any further amendment would be futile. [Doc. 27]. Plaintiffs filed Objections to the PF&RD on November 22, 2022 and Amended Objections the following day. [Docs. 28, 29]. Upon conducting a de novo review, the Court finds Plaintiffs' Objections to be without merit and adopts Judge Vidmar's recommendations.
The Court will summarize the PF&RD in relevant part. The allegations against Det. Chavez stem from her investigations of Mr. Contreras for possession of a controlled substance. [Doc. 27] at 3-4. In November 2018, Det. Chavez arrested and charged Mr. Contreras with possession of cocaine. Id. at 3. He was held in custody for almost two months. Id. A magistrate judge eventually found no probable cause, and the case was dismissed. Id. In February 2019, Mr. Contreras received a grand jury target letter again concerning the cocaine possession charge. Id. at 4. Mr. Contreras rejected a plea deal on June 17, 2019, and the district court continued his trial on July 8, 2019. Id.; [Doc. 15] at 10. Mr. Contreras died from a gunshot wound to the head on July 12, 2019, while awaiting trial. [Doc. 27] at 4. The Office of the Medical Investigator and Defendant's employee Raymond Brown ruled the death a suicide. Id. at 4-5. However, Plaintiffs contend that it was a homicide and allege some type of cover-up. Id. Based on these allegations, Plaintiffs asserted 16 claims against Chavez and 14 claims against Brown arising under both state and federal constitutions.[3] Id at 4-5.
From the facts alleged, Judge Vidmar construed Plaintiffs' enumerated New Mexico Tort Claims Act (“NMTCA”) claims as false imprisonment, malicious abuse of process, and failure to comply with statutory or legal duties.[4] Id. at 10. He found that each NMTCA claim was time-barred under the two-year statute of limitations. Id. at 10-14. He declined to extend fraudulent concealment to a novel context[5] here, while opining that any discrepancies in the police reports, which Plaintiffs believe show fraudulent concealment, would not meet the high threshold required to show fraudulent concealment. Id. at 14-15. He therefore recommended that Plaintiffs' NMTCA claims be dismissed as untimely.
Judge Vidmar also found that all of Plaintiffs' § 1983 claims should be dismissed because they cannot be brought after Mr. Contreras's death. Id. at 19. He based his finding on the Tenth Circuit's decision in Oliveros v. Mitchell, 449 F.3d 1091, 1092 (10th Cir. 2006). In that case, police officers shot a man during his arrest. [Doc. 27] at 16 (internal citation omitted). The man died a few months later in a swimming accident unrelated to the shooting. Id. The Tenth Circuit held that the man's personal representative could not sue the police officers for constitutional violations or state law assault and battery stemming from the shooting because the man's death was not related to the shooting. Id. The Tenth Circuit based its holding on New Mexico's survival statute, which does not preserve intentional tort claims when the plaintiff dies. Id.; see N.M. Stat. § 37-2-1 (1978). The court also analogized the alleged constitutional violations arising from the officers' purposeful conduct to intentional tort claims. [Doc. 27] at 17 (internal citation omitted). Therefore, the Tenth Circuit found that, like intentional tort claims, the § 1983 claims do not survive a person's death when the death is unrelated to the alleged violation. Thus, the personal representative cannot later bring those § 1983 claims on the person's behalf. Id.
Judge Vidmar also analyzed a more recent case applying the Oliveros rule, Cordero v. Froats. Id. at 17-18 2016 WL 7426575, at *1 ). In Cordero, police officers shot and killed a man after he fled from a stop. [Doc. 27] at 17 (internal citation omitted). The decedent's personal representative sued under § 1983 for excessive force causing death and under NMTCA for gross negligence in use of force. Id. at 17-18. The court found that the alleged excessive force was not the actual cause of the decedent's death because “causation, rather than mere temporal proximity, is required under the survivability analysis.” Id. at 18 (quoting Cordero, 2016 WL 7426575, at *30). The personal representative could therefore not bring the claims after the decedent's death, and thus the court dismissed those claims. Id.
Considering this precedent, Judge Vidmar concluded that Oliveros and Cordero barred Plaintiffs' § 1983 claims. Id. at 18-19. He reasoned that Plaintiffs' § 1983 claims arose from Defendant's alleged intentional conduct toward Mr. Contreras over several months; therefore, under New Mexico's survival statute the § 1983 claims did not survive Mr. Contreras's death. Id. Thus, the PF&RD recommended that Plaintiffs' § 1983 claims be dismissed. In sum, the PF&RD recommended that the Court dismiss all Plaintiffs' claims, and that further amendment would be futile to cure these defects and would not result in meritorious claims. Id. at 19-20.
The Court referred the case to the Judge Vidmar pursuant to 28 U.S.C. § 636(b)(1)(B). [Doc. 26]. When resolving objections to a magistrate judge's PF&RD Fed.R.Civ.P. 72(b)(3). “[A] party's objections to the magistrate judge's report and recommendation must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review.” United States v. 2121 E. 30th St., 73 F.3d 1057, 1060 (10th Cir. 1996). Moreover, “[i]ssues raised for the first time in objections to the magistrate judge's recommendation are deemed waived.” Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996); see also United States v. Garfinkle, 261 F.3d 1030, 1031 (10th Cir. 2001) ()
In adopting a PF&RD, the district court need not “make any specific findings; the district court must merely conduct a de novo review of the record.” Garcia v City of Albuquerque, 232 F.3d 760, 766 (10th Cir. 2000). ...
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