Spencer v. State of New Mexico et al
MEMORANDUM OPINION AND ORDER granting 20 First MOTION to Dismiss Civil Complaint by Chief Judge M. Christina Armijo; Claims against defendant Murphy are dismissed. (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 Defendant H. Steven Murphy’s Motion to
Dismiss Civil Complaint, Doc. 20, filed April 24, 2017. For the reasons stated below, the Court
will GRANT the Motion.
Plaintiff was a party in a civil case in state court. Defendant Murphy was counsel for a
party opposing Plaintiff in the state court civil case. Several of the approximately 69 allegations
which expressly refer to Defendant Murphy indicate that Defendant Murphy was performing
normal attorney duties such as making a jury demand, serving complaints, interrogatories and
requests for production, faxing documents to opposing counsel, submitting proposed orders, and
filing motions and responses. See Amended Complaint ¶¶ 26, 32, 48, 51, 59, 99, 101, 107.
Many of the other allegations are conclusory and either state that Defendant Murphy “conspired”
with other Defendants or refer to Defendant Murphy’s “conspiracy” with other Defendants. See
Amended Complaint ¶¶ 27, 31-32, 65, 84, 90, 109, 113, 119, 123, 131, 144, 148, 152, 157, 163,
166, 173. The general contention of the Amended Complaint is that Defendant Murphy and some
of the other Defendants in this case conspired to obtain state court rulings unfavorable to Plaintiff
and to bring false criminal charges against Plaintiff resulting in Plaintiff’s arrest and incarceration.
See Doc. 8, filed September 14, 2016.
Federal Law Claims
Plaintiff’s federal law claims include violation of the automatic bankruptcy stay pursuant
to 11 U.S.C. § 362,1 false imprisonment, conspiracy against rights,2 deprivation of prisoner rights
and medical attention, and violation of the 5th (right to grand jury), 6th (right to speedy trial), 7th
(right to trial by jury), 8th (prohibiting cruel and unusual punishment), and 14th (right to due
process) Amendments. Plaintiff seeks relief pursuant to 42 U.S.C. § 1983.
Section 1983 only authorizes suits against persons acting under color of state law. See
McCarty v. Gilchrist, 646 F.3d 1281, 1285 (10th Cir. 2011) (“Section 1983 provides a federal civil
remedy for the deprivation of any rights, privileges, or immunities secured by the Constitution by
any person acting under color of state law”). The “state action doctrine requires that the
deprivation must be caused by the exercise of some right or privilege created by the State or by a
rule of conduct imposed by the state or by a person for whom the State is responsible and the party
charged with the deprivation must be a person who may fairly be said to be a state actor.” Stone v.
Elohim, Inc., 336 Fed.Appx. 841, 842 (10th Cir. 2009) (quoting Lugar v. Edmondson Oil Co., Inc.
The Court has dismissed Plaintiff’s violation of bankruptcy stay claim and granted Plaintiff leave
to seek relief in the Bankruptcy Court, because the District of New Mexico has referred all cases
and proceedings under Title 11 to the Bankruptcy Judges for the District. See Mem. Op. and
Order at 2, Doc. 47, filed August 31, 2017.
The Amended Complaint cites 18 U.S.C. § 241 in conjunction with the Conspiracy Against
Rights Claim. See Amended Complaint at 1. Section 241 sets for the fines and terms of
imprisonment for persons who conspire to injure others in the free exercise of any right or
privilege secured by the Constitution or laws of the United States. Because a “private citizen
lacks a judicially cognizable interest in the prosecution or nonprosecution of another,” Diamond v.
Charles, 476 U.S. 54, 64 (1986), the Court construes Plaintiff’s Conspiracy Against Rights claim
as a claim pursuant to 42 U.S.C. § 1985, Conspiracy to Interfere with Civil Rights, which provides
a civil cause of action when persons conspire to deprive others of rights designated in the statute.
, 457 U.S. 922, 937 (1982)). “Private persons may be said to act under color of state law if they
are jointly engaged with state officials in the challenged action . . . But private conduct that is not
fairly attributable to the State is simply not actionable under § 1983, however discriminatory or
wrongful the conduct is.” Hall v. Witteman, 584 F.3d 859, 864 (10th Cir. 2009). A plaintiff can
state a cognizable § 1983 claim against private citizens if he adequately alleges that the private
citizen defendants conspired with the state actors to violate his federal rights. See Beedle v.
Wilson, 422 F.3d 1059, 1073 (10th Cir. 2005). “[W]hen a plaintiff attempts to assert the state
action required for a § 1983 claim against private actors based on a conspiracy with government
actors, ‘mere conclusory allegations with no supporting factual averments are insufficient,’
[instead] the plaintiff must specifically plead “facts tending to show agreement and concerted
action.” Id.; see also Brooks v. Gaenzle, 614 F.3d 1213, 1227-28 (10th Cir. 2010) (“under § 1983
and § 1985, we have generally held a federal conspiracy action brought under either of these
statutes requires at least a combination of two or more persons acting in concert and an allegation
of a meeting of the minds, an agreement among the defendants, or a general conspiratorial
The Court will dismiss the federal law claims against Defendant Murphy for failure to state
a claim. Plaintiff alleges that Defendant Murphy is “an officer of the State of New Mexico Courts
by virtue of his position as a licensed practicing Attorney admitted by the N. M. Supreme Court.”
Amended Complaint ¶ 5 at 2. However, Defendant Murphy is not a state actor because “a lawyer
representing a client is not, by virtue of being an officer of the court, a state actor ‘under color of
state law’ within the meaning of § 1983.” DiCesare v. McAnally, 657 Fed.Appx. 800, 802 (10th
Cir. 2016) (quoting Polk Cnty. v. Dodson, 454 U.S. 312, 318 (1981)). Furthermore, Plaintiff
makes only conclusory allegations that Defendant Murphy conspired with others. Plaintiff does
not allege specific facts tending to show agreement and concerted action between Defendant
Murphy and the other Defendants.
State Law Claims
Plaintiff also asserts state law claims for malicious prosecution, malicious abuse of
process, false imprisonment, tortious interference with business practices and intentional infliction
of emotional distress. See Amended Complaint at 1, 17,19, 26, 27.
The Court, having dismissed all of Plaintiff’s federal law claims against Defendant
Murphy, declines to exercise supplemental jurisdiction over Plaintiff’s state law claims against
Defendant Murphy. See 28 U.S.C. § 1367(c)(2) (“The district courts may decline to exercise
supplemental jurisdiction over a claim . . . if . . . the district court has dismissed all claims over
which it has original jurisdiction”).
Plaintiff’s Request to Amend
Plaintiff filed a Response to Defendant Murphy’s Motion to Dismiss. See Doc. 50, filed
September 13, 2017. Plaintiff’s Response is untimely because it was filed over four months after
Defendant Murphy’s Motion to Dismiss was filed. See D.N.M.LR-Civ. 7.4(a) (a response must
be filed within 14 days after service of the motion; if all parties do not agree to an extension of time
to file a response, the party seeking the extension of time must file a separate motion within the
At the end of his Response, Plaintiff requests that the Court either deny
Defendant Murphy’s Motion to Dismiss or grant Plaintiff 30 days to amend his Amended
Complaint. See Doc. 50 at 9.
The Court recognizes that it “should freely give leave [to amend] when justice so requires,
but will deny Plaintiff’s request to amend his Amended Complaint. See Fed. R. Civ. P. 15(a)(2).
When it granted Plaintiff leave to file an amended complaint, the Court notified Plaintiff that it was
impossible for opposing parties to reasonably prepare a response to his original Complaint because
it was vague and ambiguous, and because some of the allegations were conclusory and did not
identify the specific Defendants Plaintiff was referring to. See Mem. Op. and Order at 3, Doc. 7.
The Court also notified Plaintiff that he must comply with Federal Rule of Civil Procedure 8 which
requires that a complaint set out a short, plain statement of the claim showing that the pleader is
entitled to relief, and that each allegation must be simple, concise, and direct. See Doc. 7 at 2.
Plaintiff had an opportunity to amend his original Complaint to state a claim against Defendant
Murphy, but despite the Court’s notification of the original Complaint’s deficiencies, Plaintiff
failed to state a claim against Defendant Murphy in his Amended Complaint. Furthermore,
Plaintiff did not comply with the District of New Mexico’s Local Rule of Civil Procedure 15.1
which states: “A proposed amendment to a pleading must accompany the motion to amend.”
IT IS ORDERED that Defendant H. Steven Murphy’s Motion to Dismiss Civil
Complaint, Doc. 20, filed April 24, 2017, is GRANTED; the claims against Defendant Murphy
are DISMISSED without prejudice.
M. CHRISTINA ARMIJO
CHIEF UNITED STATES DISTRICT JUDGE
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