Martinez v. Albuquerque Police Department

Filing 16

PROPOSED FINDINGS AND RECOMMENDED DISPOSITION by Magistrate Judge Jennifer M. Rozzoni re 6 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Albuquerque Police Department. Objections to PFRD due by 3/24/2025. Add 3 days to the deadline if service is by mailing it to the person's last known address (or means described in Fed. R. Civ. P. 5(b)(2)(D) and (F)); if service is by electronic means, no additional days are added. (Fed. R. Civ. P. 6(d); Fed . R. Crim. P. 45(c).) The Clerk's Office is ordered to send this filing to both plaintiff's physical address and his email address. The Clerk's Office should also send plaintiff a copy of the Court's pro se packet and local rules if it has not done so already. (kms)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
DAVID ROBERT MARTINEZ,
Plaintiff,
v.

1:24-cv-01150-SMD-JMR

ALBUQUERQUE POLICE DEPARTMENT,
Defendant.
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
THIS MATTER comes before the Court on defendant’s Motion to Dismiss Plaintiff’s
Complaint, with Prejudice, filed November 12, 2024. Doc. 6. Plaintiff, proceeding pro se, did not
file a response. See D.N.M.LR-Civ. 7.1(b) (“The failure of a party to file and serve a response in
opposition to a motion within the time prescribed for doing so constitutes consent to grant the
motion.”). The Honorable District Judge Sarah M. Davenport referred the case to me pursuant to
28 U.S.C. §§ 636(b)(1)(B) and (b)(3) to conduct hearings, if warranted, and to perform any legal
analysis required to recommend to the Court an ultimate disposition of this case. Doc. 15.
Having reviewed the motion, plaintiff’s complaint, and the relevant law, I recommend the
Court GRANT IN PART and DENY IN PART defendant’s motion to dismiss (Doc. 6). I
recommend the Court dismiss plaintiff’s complaint. However, I recommend that the Court grant
plaintiff leave to amend the complaint.
I.

Background
Plaintiff, David Robert Martinez, filed a complaint in the Second Judicial District of the

State of New Mexico on October 2, 2024. Doc. 1-2; see also Martinez v. Albuquerque Police
Dep’t, D-202-CV-202407752 (N.M. 2d Jud. Dist. Ct. filed Oct. 2, 2024). Plaintiff’s complaint is
one page plus an additional signature page. When prompted for the “event or transaction” from

which his claims arise, plaintiff wrote: “Torture, Abuse, the continuous attempts to unalive. They
entered my apartment illegally. They have also gotten in the way of my disability.” Id. Plaintiff
did not provide any further details regarding his claim.
On November 12, 2024, defendant, the Albuquerque Police Department, removed this
case from state court to federal court. Doc. 1. That same day, defendant filed this Motion to
Dismiss Plaintiff’s Complaint, with Prejudice. Doc. 6.
II.

Legal Standard
The Court may dismiss a complaint for “failure to state a claim upon which relief can be

granted.” FED. R. CIV. P. 12(b)(6). Federal Rule of Civil Procedure 8(a)(2) requires a complaint
to contain “a short and plain statement of the claim showing that the pleader is entitled to relief.”
FED. R. CIV. P. 8(a)(2). “[T]he pleading standard Rule 8 announces does not require ‘detailed
factual allegations,’ but it demands more than an unadorned, the-defendant-unlawfully-harmedme accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007)).
“To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. (citing Twombly, 550
U.S. at 570). The Court assumes “the truth of the plaintiff’s well-pleaded factual allegations and
view[s] them in the light most favorable to the plaintiff.” Ridge at Red Hawk, L.L.C. v.
Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007). “Threadbare recitals of the elements of a cause
of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678.
“[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of

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misconduct, the complaint has alleged—but it has not ‘show[n]’—‘that the pleader is entitled to
relief.’” Id. at 679 (quoting FED. R. CIV. P. 8(a)(2)).
“The Twombly Court was particularly critical of complaints that ‘mentioned no specific
time, place, or person involved in the alleged conspiracies.’” Robbins v. Oklahoma, 519 F.3d
1242, 1248 (10th Cir. 2008) (quoting Twombly, 550 U.S. at 565 n.10). A complaint must provide
“fair notice” of the “nature of the claim” and the underlying “grounds on which the claim rests.”
Id. (quotation omitted).
Finally, “[a] pro se litigant’s pleadings are to be construed liberally and held to a less
stringent standard than formal pleadings drafted by lawyers.” Hall v. Bellmon, 935 F.2d 1106,
1110 (10th Cir. 1991). If a court “can reasonably read the pleadings to state a valid claim on
which the plaintiff could prevail, it should do so despite the plaintiff’s failure to cite proper legal
authority, his confusion of various legal theories, his poor syntax and sentence construction, or
his unfamiliarity with pleading requirements.” Id. Still, the Court may not “assume the role of
advocate for the pro se litigant.” Id.
III.

Discussion
Defendant moves to dismiss plaintiff’s complaint with prejudice. Doc. 6. In a courteous

attempt to guess plaintiff’s intentions, defendant argues six reasons 1 as to why plaintiff fails to

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Defendant argues that plaintiff fails to state a claim because—
1. The Albuquerque Police Department is not a suable entity.
2. Plaintiff does not state the elements of a 42 U.S.C. § 1983 claim.
3. Plaintiff does not explain how governmental immunity is waived under the New Mexico
Tort Claims Act.
4. Plaintiff did not comply with the notice requirements of the New Mexico Tort Claims
Act.
5. Plaintiff’s claim is potentially barred by the statute of limitations.
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state a claim as a matter of law. Id. However, the most straightforward reason plaintiff fails to
state a claim is that his complaint does not provide the defendant, or the Court, “fair notice” of
the “nature of the claim” and the “grounds on which the claim rests.” Robbins, 519 F.3d at 1248.
Plaintiff’s complaint does not provide enough information about his claims. Plaintiff
simply writes: “Torture, Abuse, the continuous attempts to unalive. They entered my apartment
illegally. They have also gotten in the way of my disability.” Doc. 1-2. Plaintiff does not provide
any “specific time, place, or person involved.” Robbins, 519 F.3d at 1248. Plaintiff does not state
the actor or victim of this alleged “[t]orture,” “[a]buse,” or “continuous attempts to unalive.”
Plaintiff says that “they” entered his apartment and got “in the way of” his disability but the
Court cannot ascertain who “they” is. When did these events happen? Where? How did they
happen? Under what circumstances? How do these events entitle plaintiff to legal relief?
Plaintiff’s complaint raises more questions than it answers. Even read liberally, plaintiff’s
complaint “do[es] not permit the court to infer more than the mere possibility of misconduct.”
See Iqbal, 556 U.S. at 679. That is insufficient to “show[]” that plaintiff “is entitled to relief.”
See FED. R. CIV. P. 8(a)(2).
Nevertheless, plaintiff should be allowed to amend his complaint to cure its deficiencies.
Although defendant requests a dismissal with prejudice, Tenth Circuit case law cautions
otherwise. “[If] it is at all possible that the party against whom the dismissal is directed can
correct the defect in the pleading or state a claim for relief, the court should dismiss with leave to
amend.” Reynoldson v. Shillinger, 907 F.2d 124, 126 (10th Cir. 1990) (citing 6 Wright, Miller, &

6. Plaintiff fails to state the elements an Americans with Disabilities Act claim.
Doc. 6 at 4–9.

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Kane, FEDERAL PRACTICE & PROCEDURE, Civil 2d § 1483 (West 1990)). When the plaintiff is a
pro se litigant who is potentially unaware of “special pleading requirements, dismissal of the
complaint without prejudice is preferable.” Id. (citation omitted). Accordingly, the Court should
allow plaintiff to amend his complaint.
In sum, I recommend that the Court (1) dismiss plaintiff’s complaint for failure to state a
claim upon which relief can be granted and (2) grant plaintiff leave to amend. See FED. R. CIV. P.
12(b)(6); Reynoldson, 907 F.2d at 126.
IV.

Non-Prosecution Notice
Finally, plaintiff is hereby reminded of his duty to prosecute his case. Local Rule 41.1

provides that “[a] civil action may be dismissed if, for a period of ninety (90) days, no steps are
taken to move the case forward.” D.N.M.LR-Civ. 41.1. If plaintiff does not take steps to
prosecute his case, the Court may dismiss his complaint without further notice. See FED. R. CIV.
P. 41(b)(“If the plaintiff fails to prosecute . . . a defendant may move to dismiss the action or any
claim against it.”); Olsen v. Mapes, 333 F.3d 1199, 1204 n.3 (10th Cir. 2003) (“Although the
language of Rule 41(b) requires that the defendant file a motion to dismiss, the Rule has long
been interpreted to permit courts to dismiss actions sua sponte for a plaintiff’s failure to
prosecute. . . .”) (citation omitted).
The Court is concerned that plaintiff has chosen not to prosecute his case. Plaintiff has
not filed anything in either federal or state court since his complaint was filed. See Docs. 1–15;
Martinez v. Albuquerque Police Dep’t, D-202-CV-202407752 (N.M. 2d Jud. Dist. Ct. filed Oct.
2, 2024). Defendant’s motion to dismiss states that plaintiff was contacted and “opposes” the
motion. Id. at. 1. However, plaintiff did not submit a response to the motion. The Court has no
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reason to believe that plaintiff did not receive the motion. Doc. 12 (noting that the motion to
dismiss was sent to plaintiff “via Certified Return-Receipt and Regular U.S. Mail,” and via
email). The Court similarly has no reason to doubt that plaintiff has received the various filings
in this case. See Docs. 1–15. Still, plaintiff has not acknowledged the case—at least to the
Court—since its inception. Plaintiff’s silence signals that plaintiff may not be interested in
pursuing this case.
If that is the case, plaintiff may conserve Court resources by filing a stipulation of
dismissal pursuant to Federal Rule of Civil Procedure 41(a)(A)(ii) (“Voluntary Dismissal”).
Otherwise, if plaintiff continues not to participate in the case, the Court may dismiss plaintiff’s
case on its own accord. See FED. R. CIV. P. 41(b); Olsen, 333 F.3d at 1204 n.3; D.N.M.LR-Civ.
41.1.
V.

Conclusion
I recommend that the Court GRANT IN PART and DENY IN PART defendant’s Motion

to Dismiss Plaintiff’s Complaint, with Prejudice. Doc. 6. I recommend the Court grant
defendant’s request to dismiss plaintiff’s complaint but decline to do so with prejudice. I further
recommend the Court allow plaintiff to amend his complaint.
To ensure that plaintiff receives this Proposed Findings and Recommended Disposition,
the Clerk’s Office is ordered to send this filing to both plaintiff’s physical address and his email
address. The Clerk’s Office should also send plaintiff a copy of the Court’s pro se packet and
local rules if it has not done so already.

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THE PARTIES ARE FURTHER NOTIFIED THAT WITHIN 14 DAYS OF SERVICE of
a copy of these Proposed Findings and Recommended Disposition they may file written
objections with the Clerk of the District Court pursuant to 28 U.S.C. § 636(b)(1). Written
objections must be both timely and specific. United States v. One Parcel of Real Prop., With
Buildings, Appurtenances, Improvements, & Contents, Known as: 2121 E. 30th St., Tulsa,
Oklahoma, 73 F.3d 1057, 1060 (10th Cir. 1996). A party must file any objections with the
Clerk of the District Court within the fourteen-day period if that party wants to have
appellate review of the proposed findings and recommended disposition. Failure to file
timely and specific objections will result in waiver of de novo review by a district or
appellate court. Id. In other words, if no objections are filed, no appellate review will be
allowed.

____________________________________
JENNIFER M. ROZZONI
United States Magistrate Judge

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