Mohammad v. Albuquerque Police Department

Filing 26

ORDER ADOPTING REPORT AND RECOMMENDATIONS 20 by District Judge Judith C. Herrera ; granting in part and denying in part 8 Motion to Dismiss; denying 21 Motion to Amend/Correct; and, denying as moot 24 Motion for Service by Plaintiff as further described herein.. (baw)

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.
ORDER ADOPTING MAGISTRATE JUDGE’S
REPORT AND RECOMMENDATIONS and DENYING MOTIONS
THIS MATTER comes before the Court on magistrate judge Laura Fashing’s Proposed
Findings and Recommended Disposition filed on January 31, 2017 (“PF&RD”) (Doc. 20), and
on pro se plaintiff Khalid Mohammad’s objections to the PF&RD filed February 6, 2017 (Doc.
22), his Motion for Leave to Amend the Complaint, filed January 30, 2017 (Doc. 21), and his
Motion for Service by Plaintiff, filed February 13, 2017 (Doc. 24). Defendant Albuquerque
Police Department (“APD”) responded to the motion to amend (Doc. 23) but has not filed a
response to the motion for service, and none is necessary. Having reviewed the PF&RD, the
submissions of the parties and the relevant law, I find that Mr. Mohammad’s objections to the
PF&RD are without merit and, therefore, overrule them. Accordingly, I adopt the
recommendations of the magistrate judge. I further find that Mr. Mohammad’s motion to amend
is futile and deny it. I also deny as moot his motion for service.
I. Mr. Mohammad’s Objections to the PF&RD
A. Standard of Review
District courts may refer dispositive motions to a magistrate judge for a recommended
disposition. See FED. R .CIV. P. 72(b)(1) (“A magistrate judge must promptly conduct the

required proceedings when assigned, without the parties’ consent, to hear a pretrial matter
dispositive of a claim or defense . . . . The magistrate judge must enter a recommended
disposition including, if appropriate, proposed findings of fact.”). “Within 14 days after being
served with a copy of the recommended disposition, a party may serve and file specific written
objections to the proposed findings and recommendations.” FED. R. CIV. P. 72(b)(2). When
resolving objections to a magistrate judge’s proposal, “[t]he district judge must determine de
novo any part of the magistrate judge’s disposition that has been properly objected to. The
district judge may accept, reject, or modify the recommended disposition; receive further
evidence; or return the matter to the magistrate judge with instructions.” FED. R. CIV. P.
72(b)(3), see also 28 U.S.C. § 636(b)(1).
Mr. Mohammad filed timely objections to each of the magistrate judge’s
recommendations and I will address each one in turn.
B. Recommendation No. 1
Mr. Mohammad objects to the magistrate judge’s recommendation that APD be
dismissed as a party because in Monell v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S. 658
(1978), the Supreme Court held that local governing bodies can be directly sued under 42 U.S.C.
§ 1983. Doc. 22 at 1. Mr. Mohammad argues that local governing bodies include
“municipalities, towns, counties, cities, and entities.” Id. “Congress did intend municipalities
and other local government units to be included among those persons to whom § 1983 applies.”
Monell, 436 U.S. at 690 (emphasis in original). The Supreme Court, however, did not
specifically include departments of local governments in its definition of persons to whom
§ 1983 applies. Rather, Monell speaks of “local governing bodies” and “local governments.”
Monell, 436 U.S. at 690–91. A department of a local government is the instrument through

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which a local governing body executes its governmental functions and is legally no different than
the local governing body itself. See Henry v. Albuquerque Police Dep’t, 49 F. App’x 272, 274
n.1 (10th Cir. 2002) (unpublished). The magistrate judge correctly determined that an
administrative department—such as APD—is not a separate, suable entity. See Doc. 20 at 4–5
and cases cited therein. Accordingly, Mr. Mohammad’s objection to the magistrate judge’s first
recommendation is overruled, and his § 1983 claims against APD will be dismissed.
C. Recommendation No. 2
Mr. Mohammad next objects to the magistrate judge’s recommendation that his claims
against APD under the New Mexico Tort Claims Act (“NMTCA”) be dismissed for failure to
comply with the notice requirements. Doc. 22 at 2. He contends he complied with these
provisions. Id. He does not allege, however, that he presented a written notice stating the time,
place, and circumstances of his loss or injury within 90 days of the occurrence giving rise to the
claim. See N.M. STAT. ANN. § 41-4-16(A). While a complaint need not include detailed factual
allegations, it must contain at least enough information to state a claim for relief that is plausible
on its face. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). As the magistrate judge explained,
the Court does not have jurisdiction to consider Mr. Mohammad’s claims under the NMTCA
because he has failed to allege that he complied with the notice provisions. See Doc. 20 at 6.1
Mr. Mohammad argues that he has submitted a motion for leave to amend his complaint.
Doc. 22 at 2. In his proposed amended complaint, Mr. Mohammad alleges that he submitted a
“Citizens Complaint” on August 6, 2013, pursuant to § 41-4-16. Doc. 21 at 5. Mr.
Mohammad’s proposed amended complaint does not assist him here. APD’s motion to dismiss
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Although the magistrate judge noted that Mr. Mohammad did not assert, or provide any
evidence, that he complied with the notice provisions of the NMTCA, (Doc. 20 at 6) at this
stage, Mr. Mohammad need only allege that he complied with the notice provisions to defeat a
motion to dismiss under FED. R. CIV. P 12(b)(6).
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addresses the operative complaint, which does not contain an allegation that he complied with
the notice requirements. Further, the Court will deny the motion to amend, as discussed below.
See § II., infra. Mr. Mohammad’s objection to the magistrate judge’s second recommendation is
overruled, and his claims against APD pursuant to the NMTCA will be dismissed.
D. Recommendation No. 3
Mr. Mohammad objects to the magistrate judge’s recommendation to dismiss his claim
against Officer Vovigio under the NMTCA. Doc. 22 at 3. The magistrate judge recommended
dismissal because Mr. Mohammad’s NMTCA claims against Officer Vovigio are barred by the
statute of limitations. Doc. 20 at 7–8. Mr. Mohammad again argues that he is a pro se litigant
and that he has submitted a motion to amend. Doc. 22 at 3. While a pro se litigant’s pleadings
are to be construed liberally, Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991), he cannot
revive a claim that he brought beyond the limitations period simply because he is appearing pro
se. The limitations period still applies. Further, his motion to amend does not assist him because
he continues to allege that the officer’s actions that give rise to his claims took place in 2013,2
more than two years before he filed his original complaint in this case. Mr. Mohammad’s
objection to the magistrate judge’s third recommendation is overruled, and his claims against
Officer Vovigio pursuant to the NMTCA will be dismissed.
E. Recommendation No. 4
Finally, Mr. Mohammad objects to the magistrate judge’s recommendation that the clerk
of the court add Officers Gil Vovigio and Daniel Yurcisin to the caption of this case. He argues
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In the “Complaint” section of Mr. Mohammad’s proposed amended complaint, he alleges that
an APD officer detained him on August 6, 2013. Doc. 21 at 4, 5. In the “Cause of Action”
section, Mr. Mohammad alleges that he is suing APD for the officer’s actions on May 6, 2013.
Doc. 21 at 5, 6. The Court assumes that the May 6, 2013 date is a typographical error. Whether
the date was in May or August of 2013, Mr. Mohammad filed his complaint on June 1, 2016,
more than two years after the date of the occurrence resulting in his alleged injury.
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that the clerk is not a party. Doc. 22 at 3. Mr. Mohammad misunderstands the role of the clerk
in these proceedings.
[A] district court clerk is judicial personnel and is an arm of the court
whose duties are ministerial, except for those discretionary duties provided by
statute. In the performance of [a] clerk’s ministerial functions, the court clerk is
subject to the control of the Supreme Court and the supervisory control that it has
passed down to the Administrative District Judge in the clerk’s administrative
district.
Bishop v. Smith, 760 F.3d 1070, 1082 (10th Cir. 2014) (quoting Bishop v. Oklahoma, 333 F.
App’x 361, 365 (10th Cir. 2009)) (brackets in original). The clerk of the court administers case
management and the electronic CM/ECF system. The magistrate judge merely intended to
recommend that the clerk be directed to modify the caption to clearly reflect the proper
defendants. As the magistrate judge discussed, although Mr. Mohammad did not name the
officers in the caption, he stated claims against them in the body of his complaint. See Doc. 20 at
8–9. The Court may direct the clerk to amend the caption as necessary to reflect the termination
and addition of parties as a part of the clerk’s ministerial duties. Mr. Mohammad’s objection to
the magistrate judge’s fourth recommendation is overruled.
II. Mr. Mohammad’s Motion to Amend
Mr. Mohammad seeks leave to amend his complaint pursuant to Rule 15(a)(2) of the
Federal Rules of Civil Procedure. Doc. 21. Under Rule 15, “a party may amend its pleading
only with the opposing party’s written consent or the court’s leave. The court should grant leave
when justice so requires.” FED. R. CIV. P. 15(a)(2). The court may refuse to grant leave to
amend where the amendment is futile. Frank v. U.S. W., Inc., 3 F.3d 1357, 1365 (10th Cir.
1993). A court may deny a motion to amend as futile if the proposed amendment would not
withstand a motion to dismiss, or if it fails to state a claim upon which relief may be granted.
Ketchum v. Cruz, 961 F.2d 916, 920 (10th Cir. 1992).
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Mr. Mohammad attached his proposed amended complaint to his motion. Doc. 21 at 2–7.
The proposed amended complaint fails to state a claim upon which relief may be granted and is,
therefore, futile. In his proposed amended complaint, Mr. Mohammad continues to assert claims
only against APD. As the magistrate explained—and as I affirmed above—APD is not a suable
entity under 42 U.S.C. § 1983. See § I. B., supra.
Mr. Mohammad’s proposed amendments pursuant to the NMTCA also fail because they
are brought more than two years after the occurrence that gives rise to his claims. In Mr.
Mohammad’s proposed amended complaint, he alleges that an unknown APD officer arrested
and detained him on August or May of 2013—more than 2 years before he filed his complaint on
June 6, 2016. See § I. D. n.2, supra. Mr. Mohammad’s claims are barred by the two-year statute
of limitations set forth in N.M. STAT. ANN. § 41-4-15(A). Consequently, Mr. Mohammad’s
amended claims under the NMTCA would not survive a motion to dismiss and are, therefore,
futile.3
III. Mr. Mohammad’s Motion for Service
In his motion for service, Mr. Mohammad asks the Court to allow him to serve
defendants with “requests for pre-trial discovery and discovery, amended summons and amended
complaint.” Doc. 24 at 2. First, Mr. Mohammad’s request to serve discovery is premature. “A
party may not seek discovery from any source before the parties have conferred as required by
Rule 26(f), except in a proceeding exempted from initial disclosure under Rule 26(a)(1)(B), or

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Mr. Mohammad also appears to attempt to bring claims under N.M. STAT. ANN. § 41-13-1
through § 41-13-3, the “Governmental Immunity Act.” Doc. 1-1 at 5; Doc. 21 at 2. The
Governmental Immunity Act establishes immunity for a governmental entity, a public employee,
and immune contractors for damages arising out of a claim “caused directly or indirectly by the
failure or malfunction of computer hardware, computer software, microchip controlled firmware
or other equipment affected by the failure to accurately or properly process dates or times” and
does not apply to the circumstances of this case.
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when authorized by these rules, by stipulation, or by court order.” FED. R. CIV. P. 26(d)(1). To
the Court’s knowledge, the parties have not held a Rule 26(f) conference, and none of the
exceptions apply. Because the discovery phase of this case has not yet begun, no discovery may
be served by any party. Second, because the Court is denying leave to amend his complaint,
there is no need to serve the amended complaint on defendants. Mr. Mohammad’s motion is
moot.
Nonetheless, Mr. Mohammad will need to serve the individual officers with the original
complaint in this case. A summons must be served with a copy of the complaint by “[a]ny
person who is at least 18 years old and not a party” to the lawsuit. FED. R. CIV. P. 4(c)(2). Mr.
Mohammad correctly points out that as a party to this lawsuit, he cannot serve the summons and
complaint on the officers. Doc. 24 at 2. He asks that, due to his indigent status, the Court allow
him to serve the defendants. Id. The Court declines to allow Mr. Mohammad to violate Rule 4
by serving defendants himself; however, Mr. Mohammad may apply to proceed without
prepaying the filing fees and costs. If his application is approved, the Court will arrange for the
summons and complaint to be served on the individual defendants.
IT IS THEREFORE ORDERED that Mr. Mohammad’s objections to the magistrate
judge’s PF&RD (Doc. 22) are overruled, and Defendant Albuquerque Police Department’s
motion to dismiss (Doc. 8) is granted in part and denied in part as follows:
1. Mr. Mohammad’s § 1983 claims against APD are dismissed with prejudice;
2. Mr. Mohammad’s claims pursuant to the NMTCA against APD are dismissed with
prejudice;
3. Mr. Mohammad’s claims pursuant to the NMTCA against Officer Vovigio are
dismissed with prejudice;

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4. The Clerk of the Court is directed to add Officers Gil Vovigio and Daniel Yurcisin as
defendants and amend the caption to reflect the correct parties.
IT IS FURTHER ORDERED that Mr. Mohammad’s Motion for Leave to Amend the
Complaint (Doc. 21) is denied;
IT IS FURTHER ORDERED that Mr. Mohammad’s Motion for Service by Plaintiff,
(Doc. 24) is denied as moot. The Clerk of the Court is directed to mail Mr. Mohammad an
“Application to Proceed in District Court Without Prepaying Fees or Costs (Long Form).” Mr.
Mohammad must return the application no later than 21 days from the date of this order.

___________________________
Judith C. Herrera
United States District Court Judge

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