Campbell v. City of Albuquerque et al
Filing
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MEMORANDUM OPINION AND ORDER by District Judge Martha Vazquez GRANTING 5 MOTION for Leave to Proceed in forma pauperis; DENYING AS MOOT 2 MOTION to Proceed under 28 U.S.C. 1915; DISMISSING 1 Complaint. Plaintiff's Complaint under 18 U.S.C. Section 242 for Recovery of Personal Injury Damages and Deprivation of Rights, Doc. 1 , filed August 30, 2017, is DISMISSED without prejudice. Plaintiff may file an amended complaint within 21 days of entry of this Order. (gr)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
ALEXANDER S. CAMPBELL,
Plaintiff,
No. 17cv892 MV- LF
v.
CITY OF ALBUQUERQUE, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
GRANTING MOTION TO PROCEED IN FORMA PAUPERIS AND
DISMISSING THE COMPLAINT WITHOUT PREJUDICE
THIS MATTER comes before the Court on pro se Plaintiff’s Application to Proceed in
District Court Without Prepaying Fees of Costs (Short Form), Doc. 2, filed August 30, 2017
(“Short Form Application”), on Plaintiff’s Application to Proceed in District Court Without
Prepaying Fees or Costs (Long Form), Doc. 5, filed September 5, 2017 (“Long Form
Application”), and on Plaintiff’s Complaint under 18 U.S.C. Section 242 for Recovery of Personal
Injury Damages and Deprivation of Rights, Doc. 1, filed August 30, 2017 (“Complaint”). For the
reasons stated below, the Court will GRANT Plaintiff’s Long Form Application to proceed in
forma pauperis, DENY Plaintiff’s Short Form Application as moot, and DISMISS Plaintiff’s
Complaint without prejudice. Plaintiff shall have 21 days from entry of this Order to file an
amended complaint. Failure to timely file an amended complaint may result in dismissal of this
case without prejudice.
Application to Proceed in forma pauperis
The statute for proceedings in forma pauperis, 28 U.S.C. § 1915(a), provides that the
Court may authorize the commencement of any suit without prepayment of fees by a person who
submits an affidavit that includes a statement of all assets the person possesses and that the person
is unable to pay such fees.
When a district court receives an application for leave to proceed in forma pauperis,
it should examine the papers and determine if the requirements of
[28 U.S.C.] § 1915(a) are satisfied. If they are, leave should be granted. Thereafter,
if the court finds that the allegations of poverty are untrue or that the action is
frivolous or malicious, it may dismiss the case[.]
Menefee v. Werholtz, 368 Fed.Appx. 879, 884 (10th Cir. 2010) (citing Ragan v. Cox, 305 F.2d 58,
60 (10th Cir. 1962). “The statute [allowing a litigant to proceed in forma pauperis ] was intended
for the benefit of those too poor to pay or give security for costs....” Adkins v. E.I. DuPont de
Nemours & Co., 335 U.S. 331, 344 (1948). While a litigant need not be “absolutely destitute,”
“an affidavit is sufficient which states that one cannot because of his poverty pay or give security
for the costs and still be able to provide himself and dependents with the necessities of life.” Id. at
339.
The Court will grant Plaintiff’s Application to Proceed in District Court Without Prepaying
Fees or Costs (Long Form). Plaintiff signed an affidavit stating he is unable to pay the costs of
these proceedings and provided the following information: (i) the combined monthly income of
Plaintiff and his spouse is $1,764.00; (ii) the combined monthly expenses of Plaintiff and his
spouse total $2,380.84. The Court finds that Plaintiff is unable to pay the costs of this proceeding
because his and his spouse’s combined monthly expenses exceed their combined monthly income.
Because it is granting Plaintiff’s Long Form Application, the Court will deny Plaintiff’s Short
Form Application as moot.
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Dismissal of Proceedings In Forma Pauperis
The statute governing proceedings in forma pauperis requires federal courts to dismiss an
in forma pauperis proceeding that “is frivolous or malicious; ... fails to state a claim on which
relief may be granted; ... or seeks monetary relief against a defendant who is immune from such
relief.” See 28 U.S.C. § 1915(e)(2). “[P]ro se litigants are to be given reasonable opportunity to
remedy the defects in their pleadings.” Hall v. Bellmon, 935 F.2d 1106, 1110 n.3 (10th Cir.
1991).
Plaintiff alleges the following facts in his Complaint. Defendants Macias and McKay,
employees of the City of Albuquerque Animal Welfare Department, issued three misdemeanor
citations against Plaintiff: (i) NMSA § 9-2-3-1A, Companion Animal with no Current Annual
Animal License; (ii) NMSA § 9-2-3-11, No Animal Service Provider Permit; and (iii)
Misdemeanor Offense Not Identified. Defendants Macias and McKay also filed a criminal
complaint against Plaintiff for the citations in Bernalillo County Metropolitan Court. Plaintiff
“was not properly serviced, was not summoned, nor given a citation,” and was not aware of the
citations or the criminal complaint.
The Metropolitan Court issued an arrest warrant for
Plaintiff’s failure to appear in court. Plaintiff’s case has been pending in Metropolitan Court
since November 3, 2016. The Metropolitan Court judge presiding over the case has rescheduled
the trial date over six times due to “the failure of the City of Albuquerque to appear in court when
the Plaintiff has been ready for trail [sic].”
The Court will dismiss Count I of the Complaint – “Violation of 18 U.S.C. § 242
(Deprivation of Rights Under Color of Law).” Complaint at 4-6. Count I also alleges a violation
of 18 U.S.C. § 241, Conspiracy against rights. Sections 241 and 242 set forth the fines and terms
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of imprisonment for persons who deprive, or conspire to deprive, other persons of any rights,
privileges or immunities secured by the Constitution or laws of the United States. “[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 will dismiss Count II of the Complaint – “Violation of 42 U.S. Code § 1983
Resulting in the Deprecation [sic] of Alexander Campbell’s Civil Rights Against the City of
Albuquerque.” Complaint at 6. “A municipality is not liable solely because its employees
caused injury. Rather, a plaintiff asserting a § 1983 claim must show 1) the existence of a
municipal policy or custom and 2) a direct causal link between the policy or custom and the injury
alleged.” Mocek v. City of Albuquerque, 813 F.3d 912, 933 (10th Cir. 2015) (concluding plaintiff
did not plausibly allege that his injuries were caused by a deliberate municipal policy or custom
because the complaint cited no particular facts to give rise to an inference that the municipality
itself established a deliberate policy or custom that caused plaintiff’s injuries). Plaintiff makes
the conclusory allegation that the City of Albuquerque “has adopted a de facto policy of allowing
the City of Albuquerque Animal Welfare Department to issue citations to individuals without their
knowledge as in the Plaintiff’s Albuquerque Metropolitan Court case.”
Complaint at 6.
However, Plaintiff does not cite any particular facts which would give rise to an inference that the
City of Albuquerque itself established a deliberate policy or custom that caused Plaintiff’s injuries.
The Court will dismiss Count III of the Complaint – “Fourth Amendment Claimants
(Prosecution Without Probable Cause).” Complaint at 7. Plaintiff alleges that the charges
against him “lacked probable cause,” that the “warrant for Plaintiff’s arrest [was issued] without
probable cause,” and that the prosecution of his case in Metropolitan Court “was irregular due to
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the lack of probable cause in the form of an unidentified misdemeanor and the failure of the City of
Albuquerque to appear in court when the Plaintiff has been ready for trail [sic].” Complaint at 7.
The Fourth Amendment prohibits unreasonable searches and seizures, and the issuance of
warrants without probable cause. The Fourth Amendment does not prohibit “unreasonable,
unjustified or outrageous conduct in general.” Carter v. Buscher, 973 F.2d 1328, 1332 (7th Cir.
1992). The charges against Plaintiff and the irregular prosecution of his case do not fall within the
Fourth Amendment’s prohibition of unreasonable searches and seizures, and the issuance of
warrants without probable cause. Other than his conclusory allegation that the Metropolitan
Court issued “a warrant for Plaintiff’s arrest without probable cause,” Plaintiff alleges no
particular facts to support the alleged lack of probable cause for the warrant. It appears that the
Metropolitan Court had probable cause to issue the warrant because it issued the warrant for
Plaintiff’s “Failure to Appear in Court.” Complaint at 12; see also Wilkins v. Reyes, 528 F.3d
790, 801 (10th Cir. 2008) (“Probable cause for an arrest warrant is established by demonstrating a
substantial probability that a crime has been committed and that a specific individual committed
the crime”).
Count IV of the Complaint is styled “City of Albuquerque Violated Sixth Amendment to
the U.S. Constitution and Rule 7-506(b) NMRA (Right to a Speedy Trial).” Complaint at 7-8.
The Court will dismiss the federal Sixth Amendment claim because the primary responsibility for
assuring Plaintiff a speedy trial lies with the Metropolitan Court and the prosecutors, not the City
of Albuquerque. See United States v. Latimer, 511 F.2d 498, 501 (10th Cir. 1975) (“the primary
burden is placed on the courts and prosecutors to assure that cases are brought to trial”). The
Court declines to exercise jurisdiction over the state law claim under Rule 7-506(b) NMRA. See
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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”).
The Court, having dismissed all of Plaintiff’s claims, will dismiss the Complaint without
prejudice. Plaintiff shall have 21 days from entry of this Order to file an amended complaint.
Failure to timely file an amended complaint may result in dismissal of this case without prejudice.
Service on Defendants
Section 1915 provides that the “officers of the court shall issue and serve all process, and
perform all duties in [proceedings in forma pauperis]”). 28 U.S.C. § 1915(d). Rule 4 provides
that:
At the plaintiff’s request, the court may order that service be made by a United
States marshal or deputy marshal or by a person specially appointed by the court.
The court must so order if the plaintiff is authorized to proceed in forma pauperis
under 28 U.S.C. § 1915 or as a seaman under 28 U.S.C. § 1916.
Fed. R. Civ. P. 4(c)(3).
The Court will not order service of Summons and Complaint on Defendants at this time.
The Court will order service if Plaintiff timely files an amended complaint which states a claim
over which the Court has jurisdiction, and which includes the address of every defendant named in
the amended complaint.
IT IS ORDERED that:
(i) Plaintiff’s Application to Proceed in District Court Without Prepaying Fees or Costs
(Long Form), Doc. 5, filed September 5, 2017, is GRANTED;
(ii) Plaintiff’s Application to Proceed in District Court Without Prepaying Fees of Costs
(Short Form), Doc. 2, filed August 30, 2017, is DENIED as moot; and
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(iii) Plaintiff’s Complaint under 18 U.S.C. Section 242 for Recovery of Personal Injury
Damages and Deprivation of Rights, Doc. 1, filed August 30, 2017, is DISMISSED without
prejudice. Plaintiff may file an amended complaint within 21 days of entry of this Order.
_________________________________
MARTHA VÁZQUEZ
UNITED STATES DISTRICT JUDGE
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