Smith v. Alamogordo Police Dep't, 21-cv-1084 MV/SMV
| Docket Number | 21-cv-1084 MV/SMV |
| Decision Date | 09 November 2022 |
| 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 |
MAGISTRATE JUDGE'S PROPOSED FINDINGS AND RECOMMENDED DISPOSITION TO DISMISS FOR FAILURE TO STATE A CLAIM
THIS MATTER comes before me on Defendant's Motion to Dismiss the Complaint for Failure to State a Claim Pursuant to Federal Rule of Civil Procedure 12(b)(6), filed June 3, 2022. [Doc. 17]. On October 6, 2022, the Honorable Martha Vazquez Senior United States District Judge, referred this matter to me for analysis and a recommended disposition. [Doc. 26]. I find that the Amended Complaint does not state a claim for relief and that any amendment would be futile because the state law tort claims are barred by the statute of limitations and the § 1983 claims were extinguished by Donovan Contreras's death.
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 for Failure to State a Claim on November 15, 2021. [Docs. 1, 4]. On April 28, 2022, I 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 amended Complaint at issue (“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]. United States District Judge Martha Vazquez adopted my Proposed Findings and Recommended Disposition and found the first Motion to Dismiss moot due to Plaintiffs' Amended Complaint. [Doc 19]. I consider Plaintiffs' May 11, 2022, Amended Complaint here.
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 the City of Alamogordo for alleged constitutional violations which they claim caused the wrongful death of Donovan Contreras, Plaintiff Rudy Contreras's grandson and Plaintiff Jessica Smith's son. Id. at 2. Plaintiffs essentially allege that Detective Chavez unlawfully investigated Mr. Contreras for possession of a controlled substance, which led to confidential informants targeting Mr. Contreras and eventually killing him. Id. at 19. Plaintiffs further allege that Raymond Brown established “a false narrative of suicide” and failed to properly investigate Mr. Contreras's death as a possible homicide. Id. at 24, 25.
The First Prosecution[2]
The allegations against Det. Chavez stem from her investigations supporting the two prosecutions of Mr. Contreras for possession of a controlled substance. Id. at 3-7, 8-12. Plaintiffs assert that Det. Chavez charged Mr. Contreras “with ownership of a wallet that contained a folded dollar bill with cocaine inside, which [Det.] Chavez recovered on September 22, 2018, from 907 Arapaho Trail in Alamogordo, NM and falsely reported that the wallet had Donovan Contreras's identification inside.” Id. at 4. He reportedly told Det. Chavez that she “must be mistaken about his wallet because he had his wallet on him . . . and show[ed] her his identification.” Id.
On November 16, 2018, Det. Chavez executed an affidavit for an arrest warrant for Mr. Contreras, despite having “clear knowledge that the wallet and the dollar bills with cocaine did not belong to Donovan Contreras.” Id. 5-6. Consequently, on November 20, 2018, Det. Chavez “falsely charged[] and wrongfully arrested Donovan Contreras. . . [for] possession of a controlled substance, cocaine.” Id. at 6. Mr. Contreras was held in custody on a five thousand dollar cash bond. Id. at 6. Plaintiffs contend that “[Det.] Chavez generated [two] lab reports, on latent prints and DNA, to examine cocaine evidence recovered on 9/22/18, specifically targeting [Mr] Contreras” who “[was] not a suspect on either report, and . . . [was] exonerated by both reports.” Id. at 6. On January 9, 2019, a magistrate judge found no probable cause for the possession charge, id. at 7, and the case against Mr. Contreras was dismissed. Id.
After the first possession charge was dismissed, Det. Chavez allegedly “generate[d] a [third] lab report on controlled substances” dated February 9, 2019. Id. at 8. Plaintiffs allege “[t]his lab report on controlled substances was clearly targeting Donovan Contreras with fabricated cocaine evidence being reported against him.” Id. A grand jury target letter was issued to Mr. Contreras on February 20, 2019. Id. Plaintiffs claim that on March 19, 2019, Det. Chavez “falsely accuse[d] Donovan Contreras of possession of a controlled substance, cocaine, with false and fabricated evidence in order to file a grand jury indictment and to get a false charge or possession of a controlled substance against Donovan Contreras for the [second time].” Id. at 9. Mr. Contreras rejected a plea deal for the possession charge on June 17, 2019. Id. He died prior to trial on July 12, 2019, from a gunshot wound to the head. Id. A “Nolle Prosequi due to Death” was filed on July 17, 2019.[3] Based on these allegations with respect to Det. Chavez, Plaintiffs bring sixteen claims under both state and federal constitutions and criminal statutes.[4] Id. at 14-19.
Plaintiffs allege some type of cause-of-death cover-up between the Alamogordo Police Department and the medical investigator to push a “narrative of suicide” instead of investigating Mr. Contreras' death as a possible homicide. Id. at 24. They heavily emphasize that Mr. Contreras was left-handed yet died of a gunshot wound to the right side of his head. Id. at 20. Plaintiffs report that Mr. Contreras's death was immediately considered a suicide. Id. at 22. Plaintiffs claim that Raymond Brown told them that he was investigating the death as a homicide id at 23, while at the same time he was telling the pathologists who had performed the autopsy that he “saw nothing other than suicide” so that the OMI could rule out homicide as the cause of death. Id. Plaintiffs also describe further inconsistencies in various reports they requested on Mr. Contreras's death. Id. at 27-30. In sum, Plaintiffs contend that Raymond Brown “intentionally failed from the initiation of his investigation to follow ‘further leads' that hold factual matter pertaining to his investigation into Donovan Contreras' death.” Id. at 33. Based on these allegations with respect to Raymond Brown, Plaintiffs bring fourteen claims under both state and federal constitutions and criminal statutes. Id. at 35-38.
Defendant moves to dismiss the Amended Complaint for failure to state a claim under Rule 12(b)(6). [Doc. 17]. Defendant argues that Plaintiffs' claims are time-barred under the New Mexico Tort Claims Act's (“NMTCA”) two-year statute of limitations. Id. at 4. Defendant further contends that Plaintiffs cannot raise § 1983 constitutional claims against an individual officer on a deceased person's behalf unless that officer actually caused the decedent's death. Id. at 5-6. Defendant also argues that to the extent Plaintiffs allege municipal liability claims against the City of Alamogordo, the claim fails because it lacks § 1983 allegations against an individual officer or employee. Id. at 6. Finally, Defendant asserts that Plaintiffs cannot properly bring claims on Mr. Contreras's behalf since none of them has been appointed as personal representative of his estate. Id. at 7.
In response, Plaintiffs contend that fraudulent concealment should apply to toll the statute of limitations:
City of Alamogordo employee Diana Chavez, while under color of law, concealed and omitted her false charges and wrongful imprisonment information on Donovan Contreras on 11/20/18 and false information on a grand jury indictment she filed against Donovan Contreras on 3/19/19 from a City of Alamogordo police report dated 11/16/18 that Plaintiffs received on 3/5/19 from the City of Alamogordo police records department. Plaintiffs discovered this fraudulent concealment in another City of Alamogordo police report dated 2/26/19 received by Plaintiffs on 11/25/19 . . . [t]he time of discovery, 11/25/19, of this fraudulent concealment clearly tolls the statute of limitations under the New Mexico Tort Claims Act (NMTCA).”
[Doc. 20] at 2-3 (emphasis added).
Plaintiffs also urge that the Amended Complaint “must not be dismissed because the substance of the subject matter . . . is substantially sufficient.” Id. at 13.
In reply, Defendant argues that fraudulent concealment only applies to “a narrow subset of claims that does not include constitutional claims or any other torts” raised in the Amended Complaint. [Doc. 21] at 1. Defendant explains that fraudulent concealment has been found to toll the two-year NMTCA statute of limitations only in the medical malpractice context. Id. at 3, 4. Defendant also re-emphasizes its previous arguments. Id. at 5.
To survive a Rule 12(b)(6) 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...
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