Benavidez v. State of New Mexico District Attorney's Office et al
MEMORANDUM OPINION AND ORDER by District Judge William P. Johnson dismissing Complaint. (mag)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
ERNESTO J. BENAVIDEZ,
No. 1:17-cv-00759 WJ-LF
STATE OF NEW MEXICO
DISTRICT ATTORNEY’S OFFICE, et al,
MEMORANDUM OPINION AND ORDER
DISMISSING CIVIL RIGHTS COMPLAINT
Before the Court is Plaintiff Ernesto Benavidez’s Civil Rights Complaint (Doc. 1,
supplemented by Docs. 3, 17). Plaintiff is incarcerated, appears pro se, and is proceeding in
forma pauperis. Having reviewed the complaint sua sponte under 28 U.S.C. § 1915(e)(2) and
Fed. R. Civ. P. 12(b)(6), the Court will dismiss Plaintiff’s claims with prejudice.
In this lawsuit, Plaintiff asserts constitutional claims against all police officers,
prosecutors, and state officials involved in his arrest and prosecution for aggravated stalking. The
Complaint alleges that on March 12, 2013, Officers Bassiri and Wharton arrested Plaintiff at the
Albuquerque Public Library. Plaintiff asserts the officers were proceeding without a warrant and
lacked probable cause for the arrest. He acknowledges that the “officer[s] w[ere] responding to
the a call made by the alleged victim,” but complains that they “found [him] prior to making the
response to her call on a violation of restraining order.” (Doc. 1, p. 7).
Plaintiff was indicted on the stalking charges on March 26, 2013 in New Mexico’s Second
Judicial District Court, case no. D-202-CR-2013-01452.1 About three weeks later, Plaintiff was
indicted in the same court for criminal sexual penetration, kidnapping, battery, and damage to
property in relation to a different woman, case no. D-202-CR-2013-01762.
Plaintiff was detained pending trial in both cases until about February 2016. His claims
focus on the prosecutors’ conduct in connection with the stalking case. He alleges they proceeded
in a slow and “cumbersome” manner, misrepresented facts to the state court, and improperly
refused to allow him to interrogate the alleged victim. He also argues that the prosecution was
improper because passing a woman’s house five or six times does not constitute stalking.
On February 4, 2016 - while the stalking case was pending - Plaintiff was convicted by jury
of the lesser charge of damage to property in case no. D-202-CR-2013-01762. He was sentenced
to two years minus two days, with 1,085 days of credit for time served.2 Shortly thereafter, the
State determined that pursuing the stalking charges was no longer in the interests of justice or
judicial economy and entered a nolle prosequi in case no. D-202-CR-2013-01452. Plaintiff was
released on March 2, 2016, although he is currently incarcerated pending trial on unrelated
stalking/domestic violence charges.
Plaintiff alleges constitutional claims for malicious prosecution and wrongful arrest
against: the State of New Mexico; the State Attorney General; the United States Attorney General;
the State District Attorney’s Office; the City of Albuquerque; the Albuquerque Police Department;
Mayor Richard Berry; Kari Brandenburg; all prosecutors involved in the case; and all arresting
The Court took judicial notice of Plaintiff’s state court criminal dockets. See United States v. Ahidley, 486 F.3d
1184, 1192 n.5 (10th Cir. 2007); Stack v. McCotter, 2003 WL 22422416 (10th Cir. 2003).
At one point Plaintiff appears to argue he was not actually sentenced to this amount of time, alleging the prosecutor
“manipulated the time” and misrepresented his sentence “to justify most of the unlawful confinement time.” (Doc. 1
at 13). However, the State Court record belies this assertion. The Judgment and Sentence was approved by counsel
for Plaintiff, the State, and State District Judge Christina Argyres, and states: “Defendant is incarcerated for 2 years,
___ months, minus 2 days.” See Judgment and Sentence in case no. D-202-CR-2013-01762.
officers. Plaintiff seeks $2.5 million in damages. He alleges that because of the wrongful arrest
and prosecution, his fiancé Jolene became pregnant by another man3 and he lost custody of his
children, his job, his assault rifle, and his car. Plaintiff also asks that the defendants receive
additional training and be subjected to hair follicle drug testing.
After filing the complaint, Plaintiff filed a motion seeking leave to again name Officers
Bassiri and Wharton as defendants. (Doc. 3). He also filed a Motion to Amend, which clarifies
that he does not seek monetary relief from any defendant with immunity but instead intends to
recover from the United States Treasury, the State of New Mexico, and the City of Albuquerque.
(Doc. 17). Consistent with the obligation to construe pro se pleadings liberally, the Court will
grant both motions and consider the complaint and motions collectively as the operative pleading.
STANDARDS GOVERNING SUA SPONTE REVIEW
The Court has discretion to dismiss an in forma pauperis complaint sua sponte under §
1915(e)(2) “at any time if … the action … is frivolous or malicious; [or] fails to state a claim on
which relief may be granted.” The Court may also dismiss a complaint sua sponte under Rule
12(b)(6) if “it is patently obvious that the plaintiff could not prevail on the facts alleged, and
allowing [plaintiff] an opportunity to amend [the] complaint would be futile.” Hall v. Bellmon,
935 F.2d 1106, 1110 (10th Cir. 1991) (quotations omitted). In evaluating whether an in forma
pauperis complaint states a plausible claim, the Court may “pierce the veil of the complaint’s
factual allegations” and consider other materials such as state court proceedings subject to judicial
notice. Neitzke v. Williams, 490 U.S. 319, 327 (1989); Denton v. Hernandez, 504 U.S. 25, 32
The Court is skeptical that Plaintiff’s incarceration ended the relationship, if one existed, as “Jolene” is the name of
the woman who accused Plaintiff of sexual assault and kidnapping in case no. D-202-CR-2013-01762. In any event,
this detail is not pertinent to the outcome of the case.
Because Plaintiff is pro se, the Court liberally construes the factual allegations. See
Northington v. Jackson, 973 F.2d 1518, 1520–21 (10th Cir. 1992). However, the pleadings are
still judged by the same legal standards that apply to all litigants. Ogden v. San Juan County, 32
F.3d 452, 455 (10th Cir. 1994). The Court is not obligated to craft legal theories for the plaintiff
or assume the role of advocate. Hall, 935 F.2d at 1110.
Despite various rules and statutes cited by Plaintiff, his claims must be construed under 42
U.S.C. § 1983, which is the only “remedial vehicle for raising claims based on the violation of
constitutional rights.” See Brown v. Buhman, 822 F.3d 1151, 1161 n. 9 (10th Cir. 2016). To
state a claim under § 1983, “a plaintiff must allege the violation of a right secured by the
Constitution …, and must show that the alleged deprivation was committed by a person acting
color of state law.”
West v. Atkins, 487 U.S. 42, 48 (1988).
The allegations must also
demonstrate a connection between the official conduct and the constitutional violation. Fogarty
v. Gallegos, 523 F.3d 1147, 1162 (10th Cir. 2008).
The crux of Plaintiff’s Complaint is that he was subjected to malicious prosecution and
false arrest in violation of the Fourth and Fourteenth Amendments. He appears to believe that his
release from incarceration after almost three years on a nolle prosequi demonstrates he should not
have been arrested or prosecuted for stalking. As discussed below, these claims fail.
I. Malicious Prosecution Claims
Plaintiff’s malicious prosecution claims are primarily directed at prosecutors Dana
Beisman, Brianne Bigej, Edna Sprasue, Karri Brandenburg, and Raul Torrez.
prosecutors are absolutely immune from suit for actions “taken in connection with the judicial
process.” Imbler v. Pachtman, 424 U.S. 409, 431 (1976). This includes initiating a prosecution,
presenting the State’s case, evaluating evidence, and determining whether probable cause exists.
See Pfeiffer v. Hartford Fire Ins. Co., 929 F.2d 1484, 1490 (10th Cir. 1991); Nielander v. Board of
County Com’rs., 582 F.3d 1155, 1164 (10th Cir. 2009). The alleged wrongdoing here clearly
involves those types of actions: Plaintiff complains the prosecutors filed charges without probable
cause; requested unreasonable bond amounts; and improperly refused to dismiss the stalking case.
Plaintiff therefore cannot maintain a claim against Defendants Beisman, Bigej, Sprasue,
Brandenburg, or Torrez.
Plaintiff has not alleged that any of the remaining Defendants were personally involved in
the prosecution. See Fogarty v. Gallegos, 523 F.3d 1147, 1162 (10th Cir. 2008) (Section 1983
requires each defendant to be personally involved in the violation). Even if they could face §
1983 liability, however, a malicious prosecution claim is only viable if the original action
terminated in the plaintiff’s favor. See M.G. v. Young, 826 F.3d 1259, 1262 (10th Cir. 2016). To
satisfy the favorable termination requirement, “the plaintiff must show more than just the
withdrawal or vacating of criminal charges--the plaintiff must demonstrate that the criminal
proceedings were dismissed for reasons indicative of innocence.” Id. “A bare nolle prosequi
without more is not indicative of innocence.” See Wilkins v. DeReyes, 528 F.3d 790, 803 (10th
Cir. 2008). The plaintiff has the burden of demonstrating that the circumstances surrounding the
nolle prosequi “impl[y] a lack of reasonable grounds for the prosecution.”
omitted). “Where the case is disposed of in a manner that leaves the question of the accused’s
innocence unresolved, there generally can be no malicious prosecution claim….” M.G. v. Young,
826 F.3d at 1262 (quotations omitted).
The only weakness Plaintiff identified in the State’s case was his own testimony that
driving by a woman’s house fix or six times does not constitute stalking. Further, the nolle
prosequi states it was based on “judicial economy,” and was entered after Plaintiff’s sentence was
fully suspended in a companion case because he had already served nearly three years awaiting
These circumstances are not indicative of innocence.
They demonstrate the State
abandoned the stalking charges after drawing the reasonable conclusion that any sentence in that
case would also be fully suspended. See Donahue v. Gavin, 280 F.3d 371, 384 (3d Cir. 2002) (a
nolle prosequi does not indicate innocence where “[t]he prosecutor simply reasoned that [the
plaintiff] was not likely to receive any additional jail time” following a conviction). Plaintiff has
therefore failed to state a claim for malicious prosecution.4
II. False Arrest Claims.
Plaintiff also asserts Officers Bassiri, Wharton, and others lacked probable cause for the
stalking arrest. A warrantless arrest is reasonable under the Fourth Amendment if an officer has
probable cause to believe that the arrestee committed a crime. Rife v. Okla. Dep’t of Pub. Safety,
854 F.3d 637, 645 (10th Cir. 2017). “Probable cause exists if facts and circumstances within the
arresting officer’s knowledge and of which he or she has reasonably trustworthy information are
sufficient to lead a prudent person to believe that the arrestee has committed or is committing an
offense.” Olsen v. Layton Hills Mall, 312 F.3d 1304, 1312 (10th Cir. 2002) (citation omitted).
“[W]hen an officer has probable cause to believe a person committed even a minor crime in his
presence[,] ... the ... arrest is constitutionally reasonable.” Virginia v. Moore, 553 U.S. 164, 171
(2008). Courts examine “whether, given all of the circumstances, there is a probability or
substantial chance of criminal activity based on commonsense consideration.” United States v.
Although the stalking prosecution is the focus on the Complaint, the Court also notes that the companion sexual
assault case, D-202-CR-2013-01762, clearly did not terminate in Plaintiff’s favor because he was convicted of the
lesser charge of damage to property. See M.G. v. Young, 826 F.3d 1259, 1262 (10th Cir. 2016) (noting that the entire
“action [must] terminate in favor of the plaintiff”).
Coronado, 2017 WL 3397371, *3, (D.N.M. Aug. 8, 2017) (unpublished) (citing United States v.
Pulliam, 748 F.3d 967, 971 (10th Cir. 2014)).
By Plaintiff’s own admission, the officers were responding to a call that he was stalking a
woman in violation of a restraining order.
(Doc. 1, p. 7).
The State Court records also
demonstrate that at the time of the call, Plaintiff had a lengthy history of domestic violence
arrests. 5 See United States v. Artez, 389 F.3d 1106, 1114-1115 (10th Cir. 2004) (“criminal
history, combined with other factors, can support a finding of … probable cause”). Nevertheless,
Plaintiff argues the officers lacked probable cause to arrest him because they had not yet
interviewed or “respon[ded]” to the caller. Id. The Fourth Amendment is not so exacting.
“Police are entitled to base an arrest on a citizen complaint of a victim without investigating the
truthfulness of the complaint, unless they have reason to believe it’s fishy.” U.S. v. Patane, 304
F.3d 1013, 1016 (10th Cir. 2002) (citations omitted), rev’d on other grounds, 542 U.S. 630. This
is particularly true in stalking cases, where requiring independent corroboration would inhibit the
officers’ ability to defuse a potentially dangerous domestic dispute.
Id. (“We reject any
suggestion that victims of domestic violence are unreliable witnesses whose testimony cannot
establish probable cause absent independent corroboration.”). The officers were therefore not
required to interview the victim before arresting Plaintiff, and any false arrest claims fail.
III. Amendment Would be Futile
In deciding whether to dismiss the complaint, the Court considers whether to allow
Plaintiff an opportunity to amend the pleading. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.
1991). Pro se plaintiffs should normally be given a reasonable opportunity to remedy defects in
The State Court record reflects that Plaintiff was arrested and prosecuted for domestic violence on at least three
prior occasions. See T-4-DV-1997-1290; T-4-DV-1997-2967; T-4-DV-2001-3019.
their pleadings. Id. However, the Court is not required to grant leave to amend where the factual
predicate for the lawsuit is clear and any amended claims would also be subject to immediate
dismissal under Fed. R. Civ. P. 12(b)(6) or 28 U.S.C. § 1915. Bradley v. Val-Mejias, 379 F.3d
892, 901 (10th Cir. 2004).
The Court concludes that, in this case, amending the Complaint would be futile. The
Complaint contains 27 pages of allegations describing every aspect of Plaintiff’s arrest,
prosecution, and incarceration. No additional information is necessary to evaluate Plaintiff’s
claims, which are all based on the non-viable theory that he should not have been arrested or
prosecuted for aggravated stalking. The Court will therefore dismiss the Complaint for failure to
state a cognizable claim without granting leave to amend.
IV. The Court Will Impose a § 1915(g) Strike
Plaintiff is proceeding in forma pauperis pursuant to 28 U.S.C. § 1915. The in forma
pauperis statutes provides that incarcerated plaintiffs accrue a “strike” each time they bring a
complaint that is frivolous, malicious, or fails to state a claim upon which relief may be granted.
28 U.S.C. § 1915(g); Hafed v. Bureau of Prisons, 635 F.3d 1172, 1176-77 (10th Cir. 2011)
(holding that dismissal of an action as frivolous, malicious, or for failure to state a claim under §
1915(e)(2)(B) counts as a strike under § 1915(g)). The Court notifies Plaintiff that this dismissal
qualifies as Plaintiff’s second strike. Plaintiff accrued the first strike after his pro se prisoner
complaint was dismissed for failure to state a claim in Benavidez v. Bigej, 17-cv-471 LH/KBM.
If he accrues three strikes, he may not proceed in forma pauperis in civil actions before the federal
courts unless he is under imminent danger of serious physical injury. 28 U.S.C. § 1915(g).
It is THEREFORE ORDERED that the Motion for Joinder (Doc. 3) and Motion to
Amend (Doc. 17) are GRANTED, and considered along with the Complaint as the operative
It is FURTHER ORDERED that that the Complaint (Doc. 1) is DISMISSED with
prejudice for failure to state a claim under 28 U.S.C. § 1915(e).
It is FURTHER ORDERED that a second strike is IMPOSED against Plaintiff Ernesto
Benavidez under 28 U.S.C. § 1915(g).
UNITED STATES DISTRICT JUDGE
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