Stephenson v. Esquivel

• Decision Date: 30 July 1985
• Docket Number: No. CIV 85-0421 BB.,CIV 85-0421 BB.
• Parties: James STEPHENSON, a/k/a James Stevenson, and Samuel Preece, Plaintiffs, v. Pete ESQUIVEL, individually, and in his official capacity, Helen Rios, Alex Mendoza, Henry Diaz, individually, and in his official capacity; the Board of County Commissioners of Dona Ana County, in its official capacity, and Dona Ana County, Defendants.
• Court: U.S. District Court — District of New Mexico

614 F. Supp. 986

James STEPHENSON, a/k/a James Stevenson, and Samuel Preece, Plaintiffs, v. Pete ESQUIVEL, individually, and in his official capacity, Helen Rios, Alex Mendoza, Henry Diaz, individually, and in his official capacity; the Board of County Commissioners of Dona Ana County, in its official capacity, and Dona Ana County, Defendants.

No. CIV 85-0421 BB.

United States District Court, D. New Mexico.

July 30, 1985.

COPYRIGHT MATERIAL OMITTED

Miller, Stratvert, Torgerson & Brandt, P.A., Walter R. Parr, Las Cruces, N.M., for plaintiffs.

Campbell, Reeves & Chavez, P.A., B. James Reeves, Las Cruces, N.M., for defendants Pete Esquivel, Henry Diaz, Dona Ana County Board of County Comm. and Dona Ana County.

Weinbrenner, Richards, Paulowsky & Sandenaw, P.A., Thomas A. Sandenaw, Jr., Las Cruces, N.M., for defendants Helen Rios and Alex Mendoza.

MEMORANDUM OPINION

BALDOCK, District Judge.

THIS MATTER comes on for consideration of the Motion to Dismiss, filed May 21, 1985, by defendants Rios and Mendoza. The court, having considered the memoranda submitted by the parties, the relevant law, and otherwise being advised fully in the premises, finds that the motion is well taken in part and should be granted in part.

A complaint is dismissed for failure to state a claim upon which relief can be granted only if it appears beyond doubt that the plaintiff can prove no set of facts that would entitle him to relief. Hospital Building Co. v. Trustees of Rex Hospital, 425 U.S. 738, 96 S.Ct. 1848, 48 L.Ed.2d 338 (1976); Chavez v. City of Santa Fe Housing Authority, 606 F.2d 282 (10th Cir. 1979). All well-pleaded facts, as distinguished from conclusory allegations, must be taken as true. Mitchell v. King, 537 F.2d 385 (10th Cir.1976). All reasonable inferences must be considered in favor of the plaintiff, Id., and the pleadings must be construed liberally. Gas-a-car, Inc. v. American Petrofina, Inc., 484 F.2d 1102 (10th Cir.1973).

Defendants' motion is directed specifically to each of the four counts in the complaint. Each count will be analyzed separately.

I. Count I

Defendants Rios and Mendoza contend that the allegations in Count I fail to state a claim against them under 42 U.S.C. § 1983 because the allegations of conspiracy are conclusory, lack a factual basis, and do not satisfy the § 1983 requirement of action under color of state law. The "facts" recited in Count I may be summarized as follows. Plaintiffs were tenants in a rental dwelling in Las Cruces, New Mexico, which was owned by the defendant Mendoza and managed by defendant Rios. A controversy developed between the tenants and the landlords as to rights of possession of the residence. On or about January 15, 1985, defendant Esquivel, a deputy sheriff with the Dona Ana County Sheriffs Department, and defendant Rios appeared at the rental dwelling. Defendant Esquivel advised plaintiffs that they were criminally trespassing and that they were to vacate the premises immediately and without their belongings. The plaintiffs were not given notice of eviction or an opportunity to be heard prior to the deprivation of their property. Defendant Esquivel arrested plaintiffs, without a warrant, and transported them to the Dona Ana County Jail, where they were charged with criminal offenses and incarcerated. All charges were dismissed subsequently.

In order to state a claim under 42 U.S.C. § 1983, the plaintiffs must show two essential elements: (1) that the defendants acted under color of state law, and (2) that the defendants caused them to be deprived of a right secured by the constitution and laws of the United States. Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982). Action taken by private individuals may be "under color of state law" where there is "significant" state involvement in the action. Id. at 931, 102 S.Ct. at 2750. One of the tests or factors to determine when state action is "significant" is the joint action test. Flagg Brothers, Inc. v. Brooks, 436 U.S. 149, 164, 98 S.Ct. 1729, 1737, 56 L.Ed.2d 185 (1978); United States v. Price, 383 U.S. 787, 794, 86 S.Ct. 1152, 1157, 16 L.Ed.2d 267 (1966). One way the "joint action" test is satisfied is if a "conspiracy" is shown. Adickes v. S.H. Kress & Co., 398 U.S. 144, 152, 90 S.Ct. 1598, 1605, 26 L.Ed.2d 142 (1970) (quoting Price, 383 U.S. at 794, 86 S.Ct. at 1157). See also Dennis v. Sparks, 449 U.S. 24, 27-28, 101 S.Ct. 183, 186-87, 66 L.Ed.2d 185 (1980). In Adickes and Price, the Court explained that this last test is met where "private persons, jointly engaged with the state officials in the prohibited action, are acting `under color' of law for purposes of 42 U.S.C. § 1983.... It is enough that the private party is a willful participant in joint activity with the State or its agents." Adickes, 398 U.S. at 152, 90 S.Ct. at 1606; Price, 383 U.S. at 794, 86 S.Ct. at 1157.

Because of the active involvement of deputy sheriff Esquivel, state action is shown. The inquiry, therefore, focuses on whether the private individuals, defendants Rios and Mendoza, willfully participated in a joint activity with deputy sheriff Esquivel, thereby assuming the character of state action. The only fact alleged in Count I concerning defendant Mendoza is that he owned the rental dwelling. The facts in Count I pertaining to defendant Rios is that she managed the rental dwelling and appeared at the dwelling with deputy sheriff Esquivel.

It is well established that bare conclusory allegations of "conspiracy" or "concerted action" will not suffice to withstand a motion to dismiss. Sooner Products Co. v. McBride, 708 F.2d 510, 512 (10th Cir.1983) (per curiam); Benavidez v. Gunnell, 722 F.2d 615, 618 (10th Cir.1983); Slotnick v. Staviskey, 560 F.2d 31, 33 (1st Cir.1977); Harley v. Oliver, 539 F.2d 1143, 1146 (8th Cir.1976); Tarkowski v. Bartlett Realty Co., 644 F.2d 1204, 1206 (7th Cir. 1980); Weiss v. Willow Tree Civic Ass'n, 467 F.Supp. 803, 811 (S.D.N.Y.1979). The factual basis supporting the existence of a conspiracy must be pled in some detail in civil rights actions. Harley, 539 F.2d at 1145. No facts have been alleged to show that defendants Mendoza and Rios agreed with deputy sheriff Esquivel or "acted in concert" with him. Cruz v. Donnelly, 727 F.2d 79 (3d Cir.1984). The allegation of a conspiracy is wholly conclusionary and does not state a claim upon which relief can be granted.

The Supreme Court in Harlow v. Fitzgerald, 457 U.S. 800, 808, 102 S.Ct. 2727, 2733, 73 L.Ed.2d 396 (1982) emphasized its "expectation that insubstantial lawsuits need not proceed to trial. Unless the complaint states a compensable claim for relief ..., it should not survive a motion to dismiss." (quoting Butz v. Economou, 438 U.S. 478, 507-08, 98 S.Ct. 2894, 2911-12, 57 L.Ed.2d 895 (1978)). Defendants Rios and Mendoza will be dismissed from Count I. If the plaintiffs have facts which specifically show a course of conduct or circumstantial evidence which would indicate willful participation in a joint activity by these defendants, they may amend Count I of their complaint within ten days of the date of this order to reflect those facts.

II. Count II

I am unable to find any allegations that defendants Rios and Mendoza participated with the Dona Ana County Sheriffs Department in creating any department policies. Count II pertains solely to Henry Diaz, Sheriff of Dona Ana County, for his alleged failure to develop investigative policies and his alleged failure to adequately train and supervise his staff. Because Count II related only to Sheriff Diaz and not to defendants Rios and Mendoza, defendants' motion to dismiss Count II is denied.

III. Count III

Although Count III is not a model of clarity, it may be surmised that plaintiffs are suing Dona Ana County and Dona Ana County Commissioners for maintaining a custom or policy of not investigating criminal complaints before initiating arrests. Defendants Rios and Mendoza are not named in Count III and the allegations in this count are not applicable to them. Because Count III relates solely to Dona Ana County and Dona Ana County Commissioners and not to defendants Rios and Mendoza, defendants' motion to dismiss Count III is denied.

IV. Count IV

In Count IV plaintiffs allege that Rios and Mendoza executed criminal complaints against the plaintiffs with the intention of intimidating them, thereby "abusing process." Defendants argue that these allegations fail to state a claim under either New Mexico law or 42 U.S.C. § 1983. The court notes that the defendants failed to address these contentions in their Brief in Opposition to Motion to Dismiss. Nevertheless, it is clear that private citizens do not become state actors just because they were complainants and witnesses and the police made an arrest. Benavidez v. Gunnell, 722 F.2d at 618; Taylor v. Nichols, 558 F.2d 561, 564 (10th Cir.1977); Sami v. United States, 617 F.2d 755, 774 (D.C.Cir. 1979); McKinney v. George, 726 F.2d 1183, 1190 (7th Cir.1984).

Having dismissed all of the federal claims against Rios and Mendoza, the next question is whether the court has jurisdiction to hear the state law claim of abuse of process. I must determine whether the doctrine of pendent jurisdiction extends to these defendants when there is no independent federal jurisdiction over them.

Federal courts are courts of limited jurisdiction. It is well established that federal courts have jurisdiction only when a case is within the judicial power of the United States, as defined by the Constitution, and Congress has exercised its authority in a jurisdictional grant. Victory Carriers, Inc. v. Law, 404 U.S. 202, 92 S.Ct. 418, 30 L.Ed.2d 383 (1971). This limitation stems from a federalism concern with maintaining the proper balance between federal and state powers, and a separation of powers concern with preventing usurpation by the federal courts of powers granted to Congress.

Justification for the doctrine of pendent...