Mohammad v. Albuquerque Police Department

Filing 20

REPORT AND RECOMMENDATIONS by Magistrate Judge Laura Fashing re 8 DEFENDANT ALBUQUERQUE POLICE DEPARTMENT'S (NON-SUABLE ENTITY) MOTION TO DISMISS PLAINTIFFS COMPLAINT WITH PREJUDICE, AND MEMORANDUM TO SUPPORT filed by Albuquerque Pol ice Department. Objections to R&R due by 2/14/2017. Add 3 days to the deadline if service is by mailing it to the person's last known address (or means described in Fed. R. Civ. P. 5(b)(2)(D) and (F)); if service is by electronic means, no additional days are added. (Fed. R. Civ. P. 6(d); Fed. R. Crim. P. 45(c).) (cda)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
KHALID MOHAMMAD,
Plaintiff,
vs.

1:16-cv-00776-JCH-LF

ALBUQUERQUE POLICE DEPARTMENT,
Defendant.
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
THIS MATTER comes before the Court on defendant Albuquerque Police Department’s
Motion to Dismiss Plaintiff’s Complaint with Prejudice, filed on July 12, 2016, and fully briefed
on August 5, 2016. Docs. 8, 12, 15, 16. Having reviewed the submissions of the parties and the
relevant law, I find that the motion is well taken in part and recommend that the Court grant the
motion in part and deny it in part. I also recommend that Albuquerque Police Department
Officers Gil Vovigio and Daniel Yurcisin be added to the caption as defendants.
I.

Background Facts1 and Procedural Posture

Khalid Mohammad initiated this lawsuit in the Second Judicial District Court for the
State of New Mexico, naming the Albuquerque Police Department (“APD”) as the sole
defendant. Doc. 1-1 at 1. In the body of his complaint, Mr. Mohammad alleges that on August
6, 2013, he was detained by a Walmart loss prevention employee, Renee Gonzales, who reported
to APD Officer Gil Vovigio that she had observed Mr. Mohammad shoplifting on the store’s
closed-circuit video surveillance system. Id. at 3; Doc. 8 at 3 (identifying Officer Gil Vovigio).
Officer Vovigio issued a no trespass notice to Mr. Mohammad along with a citation for him to
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The background facts are derived from Mr. Mohammad’s complaint and are taken as true for
the purposes of APD’s motion to dismiss. See Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).

appear in the Metropolitan Court. Doc. 1-1 at 3. Officer Vovigio further notified Mr.
Mohammad that “a warrant for [his] arrest will issue as a direct result of [his] departure from the
city of Albuquerque prior to a disposition of the shoplifting charge . . . .” Id. APD never
prosecuted Mr. Mohammad for shoplifting. Id. at 4.
On November 14, 2014, Mr. Mohammad filed a civil lawsuit in the Metropolitan Court
against APD, Officer Vovigio, Walmart, and Gonzales (“Metro Court lawsuit”). Id. As part of
his lawsuit, Mr. Mohammad filed a motion asking the court to issue a subpoena duces tecum for
a copy of the Walmart video surveillance recordings. Id. On January 10, 2015, the day after
filing his motion, APD Officer Daniel Yurcisin arrested Mr. Mohammad and threatened to
imprison him until he pled guilty to the Walmart shoplifting charge. Id. When Mr. Mohammad
denied that he was shoplifting at Walmart, Officer Yurcisin imprisoned Mr. Mohammad in the
Metropolitan Detention Center (“MDC”). Id. On March 6, 2015, while Mr. Mohammad was
incarcerated at MDC, Metropolitan Court Judge Fitzwater dismissed his Metro Court lawsuit for
his failure to appear. Id. On February 24, 2016, almost a year after his lawsuit was dismissed,
Mr. Mohammad was released from MDC without having been prosecuted. Id.
In the section of his complaint entitled “Cause of Action,” Mr. Mohammad states that he
is bringing a cause of action against APD for the actions of Vovigio. Specifically, he alleges,
“APD is sued for [Vovigio’s] act to detain and imprison the plaintiff on August 6, 2013 and
continue the plaintiff’s imprisonment, indefinitely, without prosecuting the plaintiff.” Id. at 5.
He does not specifically state a claim against Officer Yurcisin in this section.
APD moves to dismiss Mr. Mohammad’s complaint under Federal Rule of Civil
Procedure 12(b)(6) for failure to state a claim. Doc. 8. Specifically, APD contends that Mr.
Mohammad’s complaint must be dismissed because it is not a suable entity under § 1983. APD

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further contends that Mr. Mohammad’s claims pursuant to the New Mexico Tort Claims Act
(“NMTCA”) should be dismissed for his failure to comply with the notice provisions, and
because his claims are time-barred.
II.

Motions to Dismiss under Rule 12(b)(6)

Federal Rule of Civil Procedure 12(b)(6) provides for dismissal for “failure to state a
claim upon which relief can be granted.” FED. R. CIV. P. 12(b)(6). The Supreme Court has
articulated a two-step approach for district courts to use when considering a motion to dismiss.
See Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). First, a court must identify the adequately
pleaded factual allegations contained in the complaint, disregarding any legal conclusions in the
process. Id. at 678. While a complaint need not include detailed factual allegations, it must
contain “more than an unadorned, the-defendant-unlawfully harmed-me accusation.” Id.
Next, having identified the adequately pleaded facts, the Court “should assume their
veracity and then determine whether they plausibly give rise to an entitlement to relief.” Id. at
679. Stated concisely, “[t]o survive a 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.” Id. at 678.
“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556
U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556). In making this
determination, the court views the complaint in the light most favorable to the plaintiff. Schrock
v. Wyeth, Inc., 727 F.3d 1273, 1280 (10th Cir. 2013); see also Park Univ. Enters., Inc. v. Am.
Cas. Co. of Reading, PA, 442 F.3d 1239, 1244 (10th Cir. 2006) (Court should “accept all facts
pleaded by the non-moving party as true and grant all reasonable inferences from the pleadings
in favor of the same.”).

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In this case, Mr. Mohammad fails to state a claim against APD because APD is not a
suable entity under § 1983. Further, Mr. Mohammad’s claims against APD under the NMTCA
fail because he did not comply with the notice provisions and his claims are time-barred.
III.

Discussion
A. APD is not a suable entity.

In the instant motion, APD seeks dismissal of Mr. Mohammad’s complaint because it is
not a suable entity. Mr. Mohammad alleges that APD is a law enforcement agency for the City
of Albuquerque. Doc. 1-1 at 2. Administrative departments of municipalities—such as law
enforcement agencies—lack legal identities apart from the municipality itself. As such, they are
not suable entities, and claims against them are subject to dismissal under FED. R. CIV. P.
12(b)(2). See Henry v. Albuquerque Police Dep’t, 49 F. App’x 272, 274 n.1 (10th Cir. 2002)
(unpublished) (“The district court properly relied on an unpublished decision from this court
holding that the Albuquerque Police Department lacks a legal identity apart from the City of
Albuquerque.”); Biehl v. Salina Police Dep’t, 256 F. App’x 212, 215 (10th Cir. 2007)
(unpublished) (citing Martinez v. Winner, 771 F.2d 424, 444 (10th Cir. 1985)); Ketchum v.
Albuquerque Police Dep’t, 958 F.2d 381, *2 (10th Cir. 1992) (unpublished); Dean v. Barber,
951 F.2d 1210, 1214 (11th Cir. 1992) (“Sheriff’s departments and police departments are not
usually considered legal entities subject to suit.”); see also Stump v. Gates, 777 F. Supp. 808, 816
(D. Colo. 1991) (“[L]ocal government departments have no greater separate identity from cities
than do their officials when they are acting in their official capacities.”) (citing Brandon v. Holt,
469 U.S. 464, 472 and n. 21 (1985)), aff’d, No. 92-1134, 1993 WL 33875, at *3 (10th Cir. 1993).
Accordingly, courts in this district have consistently held that APD is not a suable entity. See
Howard v. City of Albuquerque, No. 91cv1019 JC/WWD (D.N.M. July 12, 1991); Atencio v.

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City of Albuquerque, No. 91cv57 SC (D.N.M. Aug. 27, 1991); Flores v. City of Albuquerque,
No. 92cv46 LH/LFG (D.N.M. May 28, 1993); Romeo v. City of Albuquerque, No. 94cv832
JP/LFG (D.N.M. Oct. 4, 1994); Gonzales v. Morrow, No. 93cv1216 LG/WWD (D.N.M. Oct.
25,1994); Diaz v. Second Judicial Dist. Court, No. 00cv0700 JC/DJS, (D.N.M. Aug. 1, 2001);
Maxwell v. City of Albuquerque Police Dep’t, et al., No. 02cv568 LH/LFG (D.N.M. Dec. 30,
2002); Costales v. Schultz, No. 07cv827 MV/ACT (D.N.M. Nov. 13, 2009); Shams-Avari v.
Albuquerque Police Department, No. 14cv832 GBW/KK (D.N.M. Nov. 14, 2014); Castillo v.
Las Cruces Police Department, No. 14cv407 MV/LF (D.N.M. June 25, 2015). Thus, Mr.
Mohammad’s claims under § 1983 against APD must be dismissed because APD is not a suable
entity.
B. Plaintiff’s claims under the New Mexico Tort Claims Act
“The Tort Claims Act shall be the exclusive remedy against a governmental entity or
public employee for any tort for which immunity has been waived under the Tort Claims
Act . . . .” N.M. STAT. ANN. § 41-4-17(A). APD argues that Mr. Mohammad’s claims under the
NMTCA fail because he did not comply with the NMTCA’s notice requirement, and because his
claims are time-barred under the NMTCA’s two-year statute of limitations. Doc. 8 at 5–6.
1. Notice requirement under the NMTCA
The NMTCA provides:
A. Every person who claims damages from the state or any local public body
under the Tort Claims Act shall cause to be presented to the risk
management division for claims against the state, the mayor of the
municipality for claims against the municipality, the superintendent of the
school district for claims against the school district, the county clerk of a
county for claims against the county, or to the administrative head of any
other local public body for claims against such local public body, within
ninety days after an occurrence giving rise to a claim for which immunity
has been waived under the Tort Claims Act, a written notice stating the
time, place and circumstances of the loss or injury.
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N.M. STAT. ANN. § 41-4-16(A). The purpose of a notice requirement is to enable the public
entity being sued to investigate the matter, and to consider whether to pay the claim or refuse it.
See Mata v. Anderson, 685 F. Supp. 2d 1223, 1253 (D.N.M. 2010) (citing Martinez v. City of
Clovis, 1980-NMCA-078, ¶ 14, 95 N.M. 654, 657), aff’d, 635 F.3d 1250 (10th Cir. 2011). When
a plaintiff has failed to notify the public entity within 90 days of an occurrence giving rise to a
claim, the Court does not have jurisdiction to consider the suit.
No suit or action for which immunity has been waived under the Tort Claims Act
shall be maintained and no court shall have jurisdiction to consider any suit or
action against the state or any local public body unless notice has been given as
required by this section, or unless the governmental entity had actual notice of the
occurrence. The time for giving notice does not include the time, not exceeding
ninety days, during which the injured person is incapacitated from giving the
notice by reason of injury.
N.M. STAT. ANN. § 41-4-16(B). In his response, Mr. Mohammad does not assert, or provide any
evidence, that he complied with the notice provisions of the NMTCA, or that APD had actual
notice that litigation was likely to ensue. See Powell v. New Mexico State Highway & Transp.
Dep't, 1994-NMCA-035, ¶ 8, 117 N.M. 415, 418 (“Actual notice to the governmental entity
involves actual notice that litigation is likely to ensue, not simply actual notice of the occurrence
or accident.”). Accordingly, the Court does not have jurisdiction to consider Mr. Mohammad’s
claims under the NMTCA against APD.
On the other hand, the plain language of N.M. STAT. ANN. §§ 41-4-16(A) and 16(B) does
not require a notice when the suit is against an individual public employee. “The written notice
requirements of Section 41-4-16(A) do not apply to claims against public employees.” Dutton v.
McKinley County Bd. of Comm’rs, 1991-NMCA-130,¶ 12, 113 N.M. 51, 54 (citing Martinez,
1980-NMCA-078, ¶ 9).
[M]erely because [the employee defense and indemnification provision]
imposes upon the governmental entity for which the employee works the
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obligation to provide a defense to its employee and pay any settlement or
judgment reached, it does not convert a public employee . . . into a local public
body, a governmental entity, or the state or state agency [for purposes of the
notice provision].
Niederstadt v. Town of Carrizozo, 2008-NMCA-053, ¶ 20, 143 N.M. 786, 790 (quoting Martinez
1980-NMCA-078, ¶ 9) (brackets in original). The notice provisions, therefore, do not apply to
Officers Vovigio and Yurcisin, individually.
2. Statute of Limitations under the NMTCA
Section 41-4-15 requires that a suit seeking relief under the NMTCA be filed within two
years of the occurrence of the event causing the injury. N.M. STAT. ANN. § 41-4-15(A)
(“Actions against a governmental entity or a public employee for torts shall be forever barred,
unless such action is commenced within two years after the date of occurrence resulting in loss,
injury or death . . . .”) (emphasis added), held unconstitutional on other grounds as recognized
by Jaramillo v. Heaton, 2004-NMCA-123, 136 N.M. 498, 100 P.3d 204. Although the notice
provisions of the NMTCA do not apply to the officers individually, the limitations period does
apply. See id.
Mr. Mohammad alleges that Officer Vovigio issued a no trespass notice and a citation to
appear in Metropolitan Court. Doc. 1-1 at 3. He also alleges that Officer Vovigio told him that
“a warrant for the plaintiff’s arrest will issue as a direct result of plaintiff’s departure from the
city of Albuquerque prior to a disposition of the shoplifting charge against the plaintiff.” Id.
These actions all occurred on August 6, 2013. Id. at 2.
APD argues that the basis of Mr. Mohammad’s claim is that a citation was issued on
August 6, 2013. In his response, however, Mr. Mohammad emphasizes that his concern is that
he cannot leave the city of Albuquerque for fear a warrant will be issued for his arrest because
there has not been a disposition of his shoplifting charge. Doc. 12 at 1. In either case, the “loss”
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suffered by Mr. Mohammad occurred on August 6, 2013, because, according to him, that was the
date Officer Vovigio detained and imprisoned him “indefinitely.” Doc. 1-1 at 5. Mr.
Mohammad filed his complaint on June 1, 2016, more than two years after the date of the
occurrence. Consequently, his claims pursuant to the NMTCA against Officer Vovigio are time
barred.
Mr. Mohammad’s tort claims against Officer Yurcisin do not suffer the same defect. Mr.
Mohammad alleges that Yurcisin arrested and detained him on January 10, 2015. Doc. 1-1 at 4.
Because Mr. Mohammad filed his complaint on June 1, 2016, his claims come within two years
of the date of his arrest and are not barred by the NMTCA’s two-year statute of limitations.
C. Plaintiff’s claims against Officers Vovigio and Yurcisin under § 1983
In addition to his claims under the NMTCA, Mr. Mohammad states that he is raising
claims pursuant to 42 U.S.C. § 1983 for violations of his Fourth Amendment rights for unlawful
imprisonment and unlawful seizure. Doc. 1-1 at 5. “A pro se litigant’s pleadings are to be
construed liberally and held to a less stringent standard than formal pleadings drafted by
lawyers.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). “[I]f the court can reasonably
read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so
despite the plaintiff’s failure to cite proper legal authority, his confusion of various legal theories,
his poor syntax and sentence construction, or his unfamiliarity with pleading requirements.” Id.
APD’s motion to dismiss only addresses Mr. Mohammad’s § 1983 claims against it as a
non-suable entity. Doc. 8 at 3–7. Mr. Mohammad alleges, however, that Officers Vovigio and
Yurcisin unlawfully detained him—at different times—based on the shoplifting charge, in
violation of his Fourth Amendment rights. Doc. 1-1 at 4. Liberally construing Mr.

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Mohammad’s complaint, his § 1983 claims against Officers Vovigio and Yurcisin remain intact,
even though they are not specifically named as defendants in this case.
Under Rule 10, the caption of every pleading must name all of the parties. FED. R. CIV.
P. 10(a). Courts may dismiss a complaint for the failure to adhere to the requirements of Rule
10(a). OTR Drivers v. Frito-Lay, 988 F.2d 1059, 1060 (10th Cir. 1993). Mr. Mohammad’s
complaint only names APD as a defendant in the caption. Doc. 1-1. However, in the body of the
complaint, Mr. Mohammad raises claims against Officers Vovigio and Yurcisin. Id. at 3, 4.
“[I]n a pro se case when the plaintiff names the wrong defendant in the caption or when the
identity of the defendants is unclear from the caption, courts may look to the body of the
complaint to determine who the intended and proper defendants are.” Trackwell v. United
States, 472 F.3d 1242, 1243–44 (10th Cir. 2007). Although Officers Vovigio and Yurcisin were
not named as defendants in the caption of Mr. Mohammad’s complaint, he raises claims against
them in the body of his complaint and, therefore, they should be added as defendants.
D. Mr. Mohammad’s complaint does not violate the Court’s order imposing
filing restrictions.
APD argues that Mr. Mohammad’s complaint should be dismissed for circumventing this
Court’s prior order imposing filing restrictions. Doc. 8 at 6–7. On May 30, 2014, the Honorable
Judith Herrera ordered that Mr. Mohammad was “enjoined from initiating further litigation in
this Court . . . unless either a licensed attorney who is admitted to practice before this Court signs
the pleading or Plaintiff first obtains permission to proceed pro se in this Court.” Mohammad v.
United States of America, No. 1:14-cv-00307-JCH-KBM (D.N.M. May 30, 2014) (Doc. 5). Mr.
Mohammad did not initiate this litigation in this Court. Instead, he filed his complaint in state
court. The defendant brought the case to this Court though the removal process. See Doc. 1.
The Court’s order restricts Mr. Mohammad from initiating litigation, not participating in
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litigation. Mr. Mohammad did not violate the Court’s prior order by filing his complaint in state
court. I do not recommend that Mr. Mohammad’s complaint be dismissed on this basis.
IV.

Recommendation

I recommend that the Court grant APD’s motion in part and deny it in part as follows:
1. That the Court dismiss Mr. Mohammad’s § 1983 claims against APD with prejudice
because APD is not a separate, suable entity under 42 U.S.C. § 1983;
2. That Mr. Mohammad’s claims under the NMTCA against APD be dismissed because
he failed to comply with the NMTCA’s notice provisions;
3. That Mr. Mohammad’s claims pursuant to the NMTCA against Officer Vovigio be
dismissed with prejudice because they are barred by the statute of limitations; and
4. That the Court direct the Clerk to add Officers Gil Vovigio and Daniel Yurcisin as
defendants and amend the caption to reflect this addition.

THE PARTIES ARE FURTHER NOTIFIED THAT WITHIN 14 DAYS OF SERVICE of
a copy of these Proposed Findings and Recommended Disposition, they may file written
objections with the Clerk of the District Court pursuant to 28 U.S.C. § 636(b)(1)(C). A
party must file any objections with the Clerk of the District Court within the fourteen-day
period if that party wants to have appellate review of the proposed findings and
recommended disposition. If no objections are filed, no appellate review will be allowed.

______________________________________
Laura Fashing
United States Magistrate Judge

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