Spencer v. State of New Mexico et al
MEMORANDUM OPINION AND ORDER denying 49 First MOTION for Extension of Time to File Response/Reply and granting 31 Amended MOTION to Dismiss . Dustin O'Brien (individually and in his official capacity) and Robert Tedrow ("Rick", individually and in his official capacity) terminated., by Chief Judge M. Christina Armijo. (vv)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
DAVID A. SPENCER,
No. 16cv841 MCA/KK
STATE OF NEW MEXICO, et al.,
MEMORANDUM OPINION AND ORDER OF DISMISSAL
THIS MATTER comes before the Court on Defendants Robert “Rick” Tedrow and
Dustin O’Brien’s Amended Motion to Dismiss, Doc. 31, filed May 10, 2017, and on Plaintiff
David A. Spencer’s Motion to Place the Instant Cause in Abeyance for Ninety Days, Doc. 49, filed
September 1, 2017. For the reasons stated below, the Court will GRANT Tedrow and O’Brien’s
Amended Motion to Dismiss and DENY Plaintiff’s Motion to Place the Instant Cause in Abeyance
for Ninety Days.
Plaintiff’s Amended Complaint names Robert “Rick” Tedrow, District Attorney for the
Eleventh Judicial District, and Dustin O’Brien, Deputy District Attorney for the Eleventh Judicial
District, individually and in their official capacity, and others as defendants. See Doc. 8. The
Amended Complaint asserts claims under federal law for violation of an automatic bankruptcy
stay, violations of constitutional rights and conspiracy, and under state law for malicious
prosecution, tortious interference with business practices, and intentional infliction of emotional
The factual allegations which mention Defendants Tedrow and O’Brien by name state:
Defendant Murphy has stated to Plaintiff prior to the dispute that he had things on
the Elected District Attorney Rick Tedrow that cause him to control the District
Attorney’s Office . . .
Amended Complaint ¶ 15.
Plaintiff’s best information and belief is Defendant Murphy has placed his former
employee and current Chief Deputy District Attorney Dustin O’Brien of the New
Mexico Eleventh Judicial District Court in and paid for Rehab on several occasions
and controls him in his official decisions as a District Attorney in the State of New
Mexico thus causing additional Judicial misconduct.
Amended Complaint ¶ 16.
Plaintiff’s best information and belief Defendant Murphy conspired with . . . and
Defendant’s [sic] Eleventh Judicial District Attorney’s Office, Rick Tedrow, and
Dustin O’Brien . . . .
Amended Complaint ¶ 31
Defendant [sic] best information and belief is that Mr. Murphy, San Juan Sheriff,
and Sheriff’s Office Defendants caused directly or indirectly a false investigation
conspiring with Defendants 11th Judicial District Attorney’s Office, Tedrow, and
O’Brien to for unknown personal reasons or obligations and represented to Aaron
Aragon to under Color of Law cause what they knew or should have known to be a
false indictment causing the Plaintiff’s Arrest, false imprisonment, loss of both his
United States a[nd] New Mexico’s Constitutional rights.
Amended Complaint ¶ 32.
After the initial prosecution and issuance of the Warrant by the conspiracy of the
Defendants, Defendants 11th Judicial District Attorney’s Office, DA Tedrow, and
O’Brien declared a Conflict of interest upon Motion of Plaintiff’s Criminal
Attorney Arlon Stoker the former DA of San Juan County, NM.
Amended Complaint ¶ 35.
Defendant Attorney Thomas Hynes acting as an Attorney and Personal
Representative of the Clark Spencer Estate conspired with Defendants Murphy,
Tedrow, O’Brien, Sheriff’s Office employees, as well as other Defendant to
deprive the Plaintiff of his freedom by falsely accusing him of crimes that they
knew or should have known was false with the intent to obtain his property for their
Amended Complaint ¶ 123. There are other allegations that appear to refer to Defendants Tedrow
and O’Brien without naming them, for example:
Judge Sandra Price, and all other named Defendants conspired with Huey Steven
Murphy against David A. Spencer, whom the civil suit proceedings had been
stayed in the Federal Bankruptcy Court in a criminal proceeding under color of
Amended Complaint ¶ 15 (emphasis added), and:
David A. Spencer was incarcerated held without bond, without a hearing, without
due process of the laws of the United States of America, by and thru the actions of
Defendant Judge Sandra Price and Defendant Huey Steven Murphy, and all other
Amended Complaint ¶ 165 (emphasis added).
Defendants Tedrow and O’Brien seek dismissal of the Amended Complaint as against
them on jurisdictional, prosecutorial immunity and qualified immunity grounds, and for failure to
state a claim upon which relief can be granted. Plaintiff has not filed a response opposing the
The Court does not have jurisdiction over this matter with respect to Defendants Tedrow
and O’Brien in their official capacities. Defendant Tedrow is the District Attorney for the
Eleventh Judicial District and Defendant O’Brien is the Deputy District Attorney for the Eleventh
Judicial District. “It is well established that arms of the state, or state officials acting in their
official capacities, are not ‘persons’ within the meaning of § 1983 and therefore are immune from
§ 1983 damages suits.” See Hull v. State of New Mexico Taxation and Revenue Department’s
Motor Vehicle Division, 179 Fed.Appx. 445, 446 (10th Cir. 2006).
The Court will dismiss the Amended Complaint against Defendants Tedrow and O’Brien
in their official capacity without prejudice for lack of jurisdiction. See Fed. R. Civ. P. 12(h)(3)
(“If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss
the action”); Brereton v. Bountiful City Corp., 434 F.3d 1213, 1218 (10th Cir.2006) (“[D]ismissals
for lack of jurisdiction should be without prejudice because the court, having determined that it
lacks jurisdiction over the action, is incapable of reaching a disposition on the merits of the
The Court will dismiss the Amended Complaint against Defendants Tedrow and O’Brien
in their individual capacity without prejudice. “[A] prosecutor is entitled to absolute immunity
for those actions that cast him in the role of an advocate initiating and presenting the government's
case.” Mink v. Suthers, 482 F.3d 1244, 1261 (10th Cir. 2007). Plaintiff’s allegations against
District Attorney Tedrow and Deputy District Attorney O’Brien show that their actions were taken
in their roles as advocates initiating and presenting the government’s case.
Plaintiff’s conspiracy allegations regarding Defendants Tedrow and O’Brien are vague and
conclusory, and, therefore, fail to state a claim. See Brooks v. Gaenzle, 614 F.3d 1213, 1228 (10th
Cir. 2010) (“a plaintiff must allege specific facts showing an agreement and concerted action
amongst the defendants because conclusory allegations of conspiracy are insufficient to state a
valid § 1983 claim”).
State Law Claims
The Court, having dismissed all of Plaintiff’s federal law claims against Defendants
Tedrow and O’Brien, declines to exercise supplemental jurisdiction over Plaintiff’s state law
claims against these defendants. See 28 U.S.C. § 1367(c) (“district courts may decline to exercise
supplemental jurisdiction . . . if . . . the district court has dismissed all claims over which it has
Plaintiff’s Motion to Place the Instant Cause in Abeyance for Ninety Days
Plaintiff filed his Plaintiff’s Motion to Place the Instant Cause in Abeyance for Ninety
Days on September 1, 2017. Plaintiff seeks the abeyance because he “had back surgery on
August, 7th, 2017 . . . is under Doctor ordered medications . . . is unable to properly respond to
motions and or orders.” Doc. 49. Twelve days later, Plaintiff filed a 10-page response, with 28
exhibits, to another pending motion. See Doc. 50, filed September 13, 2017. The Court will
deny Plaintiff’s Motion to Place the Instant Cause in Abeyance for Ninety Days because Plaintiff,
by filing Doc. 50, has demonstrated that he is able to respond to motions and orders.
The Court reminds Plaintiff that he must comply with the District of New Mexico’s Local
Rules of Civil Procedure. Plaintiff did not comply with two of the District’s Local Rules when he
filed his response on September 13, 2017. See Doc. 50. That response contained 76 pages of
exhibits and was filed over four months after the motion was filed. See D.N.M.LR-Civ. 7.4(a) (“a
response must be served and filed within fourteen (14) calendar days after service of the motion”),
D.N.M.LR-Civ. 10.5 (“all exhibits to a motion, response or reply . . . must not exceed a total of
fifty (50) pages, unless all parties agree otherwise”). Failure to comply with the District’s Local
Rules may result in the Court striking the non-compliant documents or other sanctions.
IT IS ORDERED that Robert “Rick” Tedrow and Dustin O’Brien’s Amended Motion to
Dismiss, Doc. 31, filed May 10, 2017, is GRANTED; the claims against Defendants Tedrow and
O’Brien are DISMISSED without prejudice.
IT IS ALSO ORDERED that Plaintiff’s Motion to Place the Instant Cause in Abeyance
for Ninety Days, Doc. 49, filed September 1, 2017, is DENIED.
M. CHRISTINA ARMIJO
CHIEF UNITED STATES DISTRICT JUDGE
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