Ross et al v. Balderas et al

Filing 178

ORDER by Circuit Judge Paul Kelly, Jr. denying 149 Motion for Leave to File Second Amended Complaint. (rt)

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO ANDREW ROSS and SUSAN GERARD, Plaintiffs, No. vs. 1:16-cv-01121 PJK/SMV HECTOR BALDERAS, JR., ROBERT GARCIA, SARAH MICHAEL SINGLETON, FRANCIS J. MATHEW, RAYMOND Z. ORTIZ, DAVID K. THOMPSON, JENNIFER ATTREP, T. GLENN ELLINGTON, SYLVIA LAMAR, DONITA OLYMPIA SENA, DONNA BEVACQUA-YOUNG, PAT CASADOS, FRANK SEDILLO, WILLIAM PACHECO, ANTONIO GUTIERREZ, ANNA MONTOYA, JUDAH BEN MONTANO, A. ARROYO, E. MONTIJO, MICHELLE PORTILLO, STEPHEN T. PACHECO, JANE GAGNE, JOYCE BUSTOS, LYNN PICKARD, PAMELA REYNOLDS, ROBIN MARTINEZ, ROBERT RICHARDS, BRENDA WALL, AUDREY MONTOYA, and ALLSTATE INSURANCE, INC., Defendants. ORDER DENYING PLAINTIFFS’ MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT THIS MATTER comes on for consideration of Plaintiffs’ Motion for Leave to File Second Amended Complaint filed February 19, 2017. Doc. 149. Upon consideration thereof, the motion is not well taken and should be denied. Although Federal Rule of Civil Procedure 15(a) provides that leave to amend should be liberally granted, a court may deny a motion for leave to file an amended complaint as futile if, for example, the proposed amended complaint would not survive dismissal for failure to state a claim. See Bauchman for Bachman v. W. High Sch., 132 F.3d 542, 562 (10th Cir. 1997). The proposed second amended complaint alleges claims under § 1983 against Defendants Antonio Gutierrez, Anna Montoya, A. Arroyo, and E. Montijo in their official capacities. Doc. 149-1. A suit against a municipal or state official in his or her official capacity is a suit against that person’s office, and is no different than a suit against the governmental entity itself. Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989). As such, to state a § 1983 official-capacity claim, a plaintiff must allege and prove a municipal custom or policy. Bd. of Cty. Comm’rs v. Brown, 520 U.S. 397, 403 (1997); Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690–91 (1978). This Plaintiffs have not done. Absent from the proposed amended complaint is any allegation that any municipal custom or policy resulted in a violation of constitutional rights. Accordingly, the proposed amended complaint would not survive a motion to dismiss, and the proposed amendment is futile. -2- NOW, THEREFORE, IT IS ORDERED that the Plaintiffs’ Motion for Leave to File Second Amended Complaint filed February 19, 2017, (Doc. 149) is denied. DATED this 28th day of March 2017, at Santa Fe, New Mexico. _______________________ United States Circuit Judge Sitting by Designation Counsel: Arash “Asher” Kashanian, Albuquerque, New Mexico, for Plaintiffs. Michael Dickman, Santa Fe, New Mexico, for Defendants Antonio Gutierrez and Anna Montoya. Robert Richards, Santa Fe, New Mexico, pro se. Luis Robles and Jordon George, Robles, Rael & Anaya, P.C., Albuquerque, New Mexico, for City Defendants Judah Ben Montano, A. Arroyo, and E. Montijo. -3-

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