Brown v. Las Cruces Police Department, City of et al

Filing 18

MEMORANDUM OPINION AND ORDER by District Judge James O. Browning denying as moot Defendant Chase Thouvenells Motion To Dismiss Plaintiff's Complaint (Doc. 1-1) 3 ; granting in part and denying in part the Amended Defendant Chase Thouvenell' ;s Motion To Dismiss Plaintiff's Complaint (Doc. 1-1) 5 ; granting in part and denying in part Defendant Sheriff Enrique Kiki Vigil and the Dona Ana County Sheriffs Department's Motion To Dismiss Plaintiff's Complaint (Doc. 1-1) 6 ; granting in part and denying in part Plaintiff Davalous Jamon Brown's Plaintiff's Response and Motion to Oppose Defendant's Motion to Dismiss and for Enlargement and Extension of Time to File All Response and Other Pleadings and for Pe rmission to Give Leave to Amend and Supplement Pleadings and Motion to Stay the Proceedings and Hold in Abeyance for Plaintiff to Acquire Appointment of Counsel 13 ; and denying the Defendants' Joint Motion to Strike Plaintiff's Response and Motion to Oppose the Defendant's Motion to Dismiss Et Seq (Doc. 13) 15 . (hj)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
DAVALOUS JAMON BROWN,
Plaintiff,
vs.

No. CIV 17-0944 JB/JHR

CITY OF LAS CRUCES POLICE
DEPARTMENT, CITY OF, DOÑA ANA
COUNTY SHERIFF DEPARTMENT;
DOÑA ANA COUNTY DETENTION
CENTER; CHASE DUVANELL; BRAD
LUNSFORD; ENRIQUE KIKI VIGIL;
JAIME MONTOYA; KENNETH DANIEL
GALLEGOS MIYAGISHIMA and CHRIS
BARELA,
Defendants.
MEMORANDUM OPINION AND ORDER
THIS MATTER comes before the Court on: (i) the Defendant Chase Thouvenell’s
Motion to Dismiss Plaintiff’s Complaint (Doc. 1-1), filed September 21, 2017 (Doc. 3)
(“Thouvenell’s First Motion to Dismiss”)1; (ii) the Amended Defendant Chase Thouvenell’s
Motion to Dismiss Plaintiff’s Complaint (Doc. 1-1), filed October 3, 2017 (Doc. 5)
(“Thouvenell’s Amended Motion To Dismiss”); (iii) the Defendant Sheriff Enrique “Kiki” Vigil
and the Dona Ana County Sheriff’s Department’s Motion To Dismiss Plaintiff’s Complaint
(Doc. 1-1), filed October 3, 2017 (Doc. 6)(“County’s Motion to Dismiss”); (iv) the Plaintiff’s
1

In the Complaint (Tort), filed August 9, 2017 in First Judicial District Court, County of
Santa Fe, State of New Mexico, filed in federal court September 14, 2017 (Doc. 1-1)
(“Complaint”), Plaintiff Davalous Jamon Brown names “Chase Duvanell” as a Defendant.
Complaint ¶ 4, at 2. As will be discussed, the correct spelling for this Defendant’s name is
“Thouvenell.” See infra at 5-6. The Court will direct the Clerk of the Court to correct the
caption to reflect the proper spelling of Thouvenell’s last name, and the Court hereinafter will
refer to Duvanell as Thouvenell.

Response and Motion to Oppose Defendant’s Motion to Dismiss and for Enlargement and
Extension of Time to File All Response and Other Pleadings and for Permission to Give Leave to
Amend and Supplement Pleadings And Motion to Stay the Proceedings and Hold in Abeyance
for Plaintiff to Acquire Appointment of Counsel, filed January 2, 2018 (Doc. 13)(“Brown’s
Surreply and Motion to Amend and Stay”); and (v) the Defendants’ Joint Motion to Strike
Plaintiff’s Response and Motion to Oppose the Defendant’s Motion to Dismiss Et Seq (Doc. 13),
filed January 24, 2018 (Doc. 15)(“Defendants’ Joint Motion to Strike”). Plaintiff Davalous
Jamon Brown is incarcerated, appears pro se, and is proceeding in forma pauperis. For the
reasons explained below, the Court will deny Thouvenell’s First Motion to Dismiss as moot,
grant in part and deny in part Thouvenell’s Amended Motion to Dismiss, the requests in the
Plaintiff’s Surreply and Motion to Amend and Stay, and deny the Defendants’ Joint Motion to
Strike.
FACTUAL BACKGROUND
According to the Complaint, Defendant Chase Thouvenell “entrapped” Brown on July
12, 2014 by “using [his girlfriend] as bait in order to effectuate” an unlawful seizure and arrest.
Complaint (Tort) ¶ 5, at 3, filed August 9, 2017 in First Judicial District Court, County of Santa
Fe, State of New Mexico, filed in federal court September 14, 2017 (Doc. 1-1)(“Complaint”).
Brown’s girlfriend “duped [Brown] into believing that she wanted him to take a shower to clean
up [his] leg injuries from a physical altercation” the prior night. See Complaint ¶ 5, at 3. While
Brown was in the shower, Thouvenell entered the bathroom and pointed a Taser directly at him.
Brown was “in shock and in fear for his life and his welfare,” so he “reacted through the use of
self defense and disarmed the deputy officer, secured the taser, [and] ran out of the house
completely naked,” discarding the taser in the neighboring yard. See Complaint ¶ 5, at 4. As

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Brown fled, Thouvenell pursued him, firing gunshots. See Complaint ¶ 5, at 4.
Brown “ran and hid under a nearby Mobile home,” while police “backup . . . arrived onto
the scene.” Complaint ¶ 5, at 4. One of the backup officers was Defendant Brad Lunsford. See
Complaint ¶ 5, at 4. Thouvenell “screamed and yelled out to Police Officer Brad Lunsford . . .
‘shoot him, shoot him, shoot that black mother f*****.’” Complaint ¶ 5, at 4. Lunsford shot at
Brown three times, and “the third projectile . . . struck [Brown] in the rear lower calf of his right
leg, causing emotional and serious permanent bodily injury.” Complaint ¶ 5, at 5. “Upon
suffering the gunshot wound,” Brown “was forced to run and hide for safety,” so he “retreated
back inside” his girlfriend’s house. Complaint ¶ 5, at 5. Brown remained in the house for the
next three hours, tending to his gunshot wound, and “advising the assaulting law enforcement
officers that he had ‘been shot unjustly’ and ‘was afraid to come out of the house . . . and in fear
for his life and welfare.’” Complaint ¶ 5, at 5.
“[S]hortly thereafter, the SWAT team was called and arrived onto the scene under the
authoritative direction and commands of” Defendant Jaime Montoya. Complaint ¶ 5, at 5. “The
SWAT team then shot out the windows” of the house “in which [Brown] was seeking refuge . . .
and then threw a steam ball grenade into the window subjecting [Brown] to undue poisonous and
harmful gas chemical agents.” Complaint ¶ 5, at 5. Shortly after “deploying the chemical agents
. . . the SWAT team breached the house and made entry with the K-9 law enforcement officer
dog in which dog was released by the SWAT team K-9 handler.” Complaint ¶ 5, at 6. The “law
enforcement officer dog proceeded to bite, rip, tear, and gnaw upon the plaintiff’s flesh,” injuring
his chest and right hand. Brown “reacted by utilizing self defense so as to subdue the dog.”
Complaint ¶ 5, at 6. At that point, “several SWAT team law enforcement officers” arrived, and
they proceeded “to punch, kick, and stomp all upon [Brown’s] face, cranium, back, chest, and

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legs.” Complaint ¶ 5, at 5. “After a severe beating and brutal assault,” the “SWAT team then
picked up [Brown] by his arms and drug him outside where he was then placed into an
ambulance and transfer[red] to the El Paso Medical Center trauma unit.” Complaint ¶ 5, at 6.
After a few hours of medical treatment, Brown was transferred from El Paso back to Las Cruces,
where he was booked into the Defendant Doña Ana County Detention Center. See Complaint
¶ 5, at 6.
Brown was in pretrial detention at the Doña Ana County Detention Center for
approximately one and a half years. See Complaint ¶ 5, at 7. During his pretrial detention,
Brown alleges that he was deprived of adequate medical care for his “serious bodily gunshot and
canine dog bite injuries and open wounds.” Complaint ¶ 5, at 11. Specifically, Brown alleges
that Defendants Doña Ana County Detention Center and Chris Barela ignored his “continuous
medical request and doctor[’]s orders for urgent and immediate medical care and doctor’s order
for occupational physical therapy.” Complaint ¶ 5, at 11.
On October 15, 2015, Brown was acquitted of the following charges: “disarming a police
officer, aggravated assault on a peace officer with intent to commit another felony, [and] assault
on a K-9 Officer.”

Complaint ¶ 5, at 7. Brown was convicted, however, of “two counts of a

fourth degree non aggravated battery on a police officer.” Complaint ¶ 5, at 7.
PROCEDURAL BACKGROUND
Brown brought the Complaint in state court against the following Defendants: (i) the City
of Las Cruces Police Department; (ii) Doña Ana County Sheriff Department; (iii) Doña Ana
County Detention Center; (iv) Chase Duvanell, a deputy sheriff for the Doña Ana County Sheriff
Department; (v) Brad Lunsford, a police officer for the Las Cruces Police Department;
(vi) Enrique “Kiki” Vigil, a sheriff for the Doña Ana County Sheriff Department; (vii) Jaime

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Montoya, chief of police of the Las Cruces Police Department; (viii) Kenneth Daniel Gallegos
Miyagishima, mayor of the City of Las Cruces; and (ix) Barela, jail administrator for the Doña
Ana County Detention Center. See Complaint ¶ 4, at 1-2.
Based on the foregoing facts, the Complaint appears to raise the following claims against
the Defendants under the Constitution of the United States of America, the Constitution of New
Mexico, and the New Mexico Tort Claims Act (“NMTCA”), N.M. Stat. Ann. § 41-4-1 to -30:
(i) false arrest and false imprisonment; (ii) malicious prosecution (iii) excessive force; and
(iv) failure to provide adequate and necessary medical care. See Complaint ¶ 1, at 1. The
Complaint seeks compensatory damages in the amount of $400,000.00, and “exemplary and
punitive damages.” Complaint at 13.
On September 21, 2017, Thouvenell filed Thouvenell’s First Motion to Dismiss, which
Thouvenell’s Amended Motion to Dismiss superseded on October 3, 2017. Therefore, the Court
will deny Thouvenell’s First Motion to Dismiss as moot.
In Thouvenell’s Amended Motion to Dismiss, Thouvenell explains that the Complaint
“erroneously spells Defendant Thouvenell’s last name as Duvanell,” because “the 2014 incident
which is the subject of Plaintiff’s complaint involved Thouvenell and since no individual named
Duvanell has ever worked for the Dona Ana County Sheriff’s Department.” Thouvenell’s
Amended Motion To Dismiss at 1 n.2. Brown does not dispute that Thouvenell’s name is
misspelled as Duvanell in the Complaint. See generally Plaintiff Response to Motion to Dismiss,
filed December 4, 2017 (Doc. 10)(“Brown’s Response”); Plaintiff’s Response and Motion to
Oppose Defendant’s Motion to dismiss and for Enlargement and Extension of Time to File all
Response and Other Pleadings and for Permission to give Leave to Amend and Supplement
Pleadings and Motion to Stay the Proceedings and Hold in Abeyance for Plaintiff to Acquire

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Appointment of Counsel, filed January 2, 2018 (Doc. 13). The Court therefore will direct the
Clerk of the Court to correct the caption to reflect the proper spelling of Thouvenell’s last name.
Thouvenell seeks to dismiss the Complaint pursuant to rules 10 and 12(b)(6) of the
Federal Rules of Civil Procedure.

See Thouvenell’s Amended Motion to Dismiss at 1.

Specifically, Thouvenell contends that the Complaint violates rule 10, because “it is not readily
apparent . . . whether Plaintiff intends to bring claims against the” individual Defendants “in their
official or individual capacity.” Thouvenell’s Amended Motion to Dismiss at 2. Thouvenell
also moves to dismiss the Complaint under rule 12(b)(6) because: (i) the Doña Ana County
Sheriff Department and Doña Ana County Detention Center “are not individuals under Section
1983 and therefore, may not be sued”; and (ii) the applicable statutes of limitations bars Brown’s
claims under 42 U.S.C. § 1983 and the NMTCA. Thouvenell’s Amended Motion to Dismiss at
6, 8-9. On October 3, 2017, Vigil and Doña Ana County Sheriff’s Department adopted, pursuant
to local rule 7.1 of the Local Civil Rules of the United States District Court for the District of
New Mexico, the “defenses and arguments found in Defendant Thouvenell’s Amended Motion
To Dismiss.” County’s Motion to Dismiss at 1.
Brown did not file a timely response to Thouvenell’s Amended Motion to Dismiss or
County’s Motion to Dismiss, and, therefore, on October 24, 2017 Thouvenell, Vigil, and Doña
Ana County Sheriff’s Department filed a notice of completion of briefing. See Notice of
Completion of Briefing at 1, filed October 24, 2017 (Doc. 8); Notice of Completion of Briefing
at 1, filed October 24, 2017 (Doc. 7); D.N.M.LR-Civ.7.4(e). Approximately one month later,
Brown filed his response to Defendants’ motions to dismiss. See Brown’s Response at 1.
Brown contends that he timely filed his Complaint on July 12, 2017 by placing it in Southern
New Mexico Correctional Facility’s mail system. See Brown’s Response at 1. In support of this

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contention, Brown attached a receipt from the mailroom for postage to the First Judicial District
of New Mexico in the amount of $1.60. See Brown’s Response at 3. The receipt is dated July
12, 2017, but stamped “RECEIVED” on July 13, 2017, and July 19, 2017. See Brown’s
Response at 3. Alternatively, Brown contends that the statutes of limitations should be tolled
from November 29, 2015, the day in which he was placed in the custody of the New Mexico
Corrections Department (“NMCD”), because, he asserts, the NMCD deprives inmates of
meaningful access to a law library and legal assistance.

See Brown’s Response at 2.

Thouvenell, Vigil, and Doña Ana County Sheriff’s Department respond that Brown has not
identified sufficient facts to justify tolling the statutes of limitations, has failed to provide the
declarations necessary to establish timely filing under the prisoner mailbox rule, and has
“ignore[d] that there is no mailbox rule for state law claims.” Reply in Support of Defendants
Chase Thouvenell, Sheriff Enrique “Kiki” Vigil, and the Doña Ana County Sheriff’s
Department’s Motion to Dismiss (Docs. 5 and 6) Plaintiff’s Complaint (Doc. 1-1) at 2, filed
December 13, 2017 (Doc. 11)(“Reply”).
On January 2, 2018, Brown filed his Surreply and Motion to Amend and Stay, in which
Brown reiterates his contentions that his Complaint was timely filed pursuant to the prisoner
mailbox rule, and, alternatively, that the statutes of limitations should be tolled because of his
inability to gain meaningful access to a law library or legal assistance. See Brown’s Surreply
and Motion to Amend Stay at 1-3. Furthermore, in lieu of dismissal under Rules 10 and 12(b)(6)
of the Federal Rules of Civil Procedure, Brown asks the Court to permit him to file an amended
complaint pursuant to Rule 15. Last, Brown appears to ask the Court to excuse the late filing of
his response pursuant to Rule 6 of the Federal Rules of Civil Procedure, and to grant him an
“enlargement and extension of time to file all response and other pleadings” because he is

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proceeding pro se, he is in the process of acquiring and obtaining counsel, and he is being
deprived of meaningful access to a law library and legal assistance. Brown’s Surreply and
Motion to Amend Stay at 4.
On January 24, 2018, the Las Cruces Police Department, Lunsford, Montoya,
Miyagishima, Thouvenell, Vigil and Dona Ana County Sheriff’s Department moved to strike
Brown’s Surreply and Motion to Amend and Stay, because “it is an untimely surplus pleading
‘which requires leave of the Court’ before filing pursuant to D.N.M.LR-Civ. 7.4(b).”
Defendants’ Joint Motion to Strike at 2. Additionally, the Defendants ask the Court to deny
Brown’s request to stay or to hold the case in abeyance, because rules 6 and 12(b)(6) of the
Federal Rules of Civil Procedure do not provide authority to impose an unlimited stay of the
proceedings, which would be prejudicial to Defendants. See Defendants’ Joint Motion to Strike
at 6-7. Last, the Defendants contend the Court should deny Brown’s Surreply and Motion to
Amend and Stay as futile, because the applicable statutes of limitations would bar any proposed
amendments. See Defendants’ Joint Motion to Strike at 7-8.
ANALYSIS
The Court first will address the Defendants’ Joint Motion to Strike and Brown’s Surreply
and Motion to Amend and Stay. The Court will then proceed to consider the merits of the
Defendants’ motions to dismiss.
I.

THE COURT WILL DENY THE DEFENDANTS’ JOINT MOTION TO STRIKE,
DISREGARD BROWN’S SURREPLY AND MOTION TO AMEND AND STAY
TO THE EXTENT THAT IT REPEATS ARGUMENTS FROM EARLIER
PLEADINGS, DENY BROWN’S REQUEST FOR A STAY, DENY BROWN’S
MOTION TO AMEND, AND GRANT BROWN’S REQUEST TO EXCUSE LATE
FILING OF THE RESPONSE.
The Defendants move to strike Brown’s Surreply and Motion to Amend and Stay,

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because it is a surreply filed without the Court’s leave, as Local Rule 7.4(b) requires. See
D.N.M.LR-Civ. 7.4(b). Rule 12(f) of the Federal Rules of Civil Procedure provides the Court
with the authority to “strike from a pleading an insufficient defense or any redundant,
immaterial, impertinent or scandalous matter.” Fed. R. Civ. P. 12(f). Under this rule, “a court
may choose to strike a filing that is not allowed by local rule, such as a surreply filed without
leave of court.” Ysais v. New Mexico Judicial Standard Comm’n, 616 F. Supp. 2d 1176, 1184
(D.N.M. 2009)(Browning, J.)(internal quotation marks and citation omitted). Pursuant to the
D.N.M.LR-Civ, “[t]he filing of a surreply requires leave of the Court.” D.N.M.LR-Civ. 7.4(b).
To the extent that Brown’s Surreply and Motion to Amend and Stay reiterates the arguments
which he raises in Brown’s Response, it constitutes a surreply that he filed without leave of
court, and the Court therefore will disregard it.
Brown’s Surreply and Motion to Amend and Stay does not merely discuss arguments that
he previously raised in Brown’s Response; it also requests affirmative relief from the Court.
Specifically, Brown moves the Court for a stay of the current proceedings so he can retain
counsel, an extension of time in which “to file all response and other pleadings,” and permission
to amend and/or supplement his complaint. Brown’s Surreply and Motion to Amend and Stay at
4. Because Brown’s Surreply and Motion to Amend and Stay seeks affirmative relief from the
Court, the Court will deny Defendants’ Joint Motion to Strike.
Turning to the merits of Brown’s Surreply and Motion to Amend and Stay, Brown asks
the Court for a stay of proceedings in the present case while he is “in the process of acquiring
and obtaining appointment of counsel.” Brown’s Surreply and Motion to Amend and Stay at 4.
The Court has inherent authority to stay proceedings. See Landis v. North American Co., 299
U.S. 248, 254-55 (1936).

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[T]he power to stay proceedings is incidental to the power inherent in every court
to control the disposition of the causes on its docket with economy of time and
effort for itself, for counsel, and for litigants. How this can be done calls for the
exercise of judgment which must weigh competing interest and maintain an even
balance.
299 U.S. at 254-55.

The Court concludes that it is not in the interest of justice to stay

proceedings in this case. The record reflects that Brown capably has been representing himself
pro se thus far in these proceedings. Brown’s Surreply and Motion to Amend and Stay contains
numerous citations to the Federal Rules of Civil Procedure and applicable case law, reflecting
that he has sufficient access to legal materials to represent himself pro se and to prosecute this
action. Additionally, the Court concludes an unlimited stay of proceedings would prejudice the
Defendants and not serve judicial economy.

The Defendants would be prejudiced by an

unlimited stay of proceedings and that judicial economy would not be served. The parties have
fully briefed Thouvenell’s Amended Motion to Dismiss and the County’s Motion to Dismiss and
Defendants are entitled to a timely ruling on their dispositive motions. The Court will, therefore,
deny Brown’s Surreply and Motion to Amend and Stay on those issues.
Brown also asks the Court for “an enlargement and extension of time to file all response
and other pleadings,” citing rule 6(b)(1)(B) of the Federal Rules of Civil Procedure, which
provides that the Court “may, for good cause, extend the time . . . on motion after the time has
expired if the party failed to act because of excusable neglect.” Brown’s Surreply and Motion to
Amend and Stay at 4. Construed liberally, it appears that Brown is asking the Court to excuse
the late filing of Brown’s Response, because he is an incarcerated pro se litigant who lacks
meaningful access to a law library and legal assistance. See Hall v. Bellmon, 935 F.2d 1106,
1110 (10th Cir. 1991)(“A pro se litigant’s pleadings are to be construed liberally and held to a
less stringent standard than formal pleadings drafted by lawyers.”).

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The determination whether to excuse a late filing under the “excusable neglect” standard
“is at bottom an equitable one, taking account of all relevant circumstances surrounding the
party’s omission.” Pioneer Inv. Serv. Co. v. Brunswick Assoc. Ltd. P’ship, 507 U.S. 380, 395
(1993). These circumstances include “the danger of prejudice to the [opposing party], the length
of the delay and its potential impact on judicial proceedings, the reason for the delay, including
whether it was within the reasonable control of the movant, and whether the movant acted in
good faith.”

Pioneer Inv. Serv. Co. v. Brunswick Assoc. Ltd. P’ship, 507 U.S. at 395.

“Although inadvertence, ignorance of the rules, or mistakes construing the rules do not usually
constitute ‘excusable’ neglect, it is clear that ‘excusable neglect’ under Rule 6(b) is a somewhat
‘elastic concept’ and is not limited strictly to omissions caused by circumstances beyond the
control of the movant.” Pioneer Inv. Serv. Co. v. Brunswick Assoc. Ltd. P’ship, 507 U.S. at 392
(footnotes omitted).
Brown’s Response was due on October 17, 2017, but he did not file it until December 4,
2017 -- approximately one and a half months after the expiration of the October 17, 2017
deadline. See D.N.M.LR-Civ. 7.4(a) (“A response must be served and filed within fourteen (14)
calendar days after service of the motion.”). Despite the length of the delay, the Court concludes
that consideration of Brown’s untimely response will not adversely impact the judicial
proceedings in this case, because there are no pretrial deadlines in place and discovery has not
yet commenced. Additionally, Brown has proffered a good faith reason for the delay, namely,
the conditions of his confinement and the difficulty he has experienced in gaining meaningful
access to the law library, legal materials, and legal assistance. See Brown’s Surreply and Motion
to Amend and Stay at 2-3. Given that the reason for the delay was out of Brown’s control and
that the Court’s consideration of Brown’s untimely response would not prejudice the Defendants,

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the Court concludes that Brown has demonstrated “excusable neglect” for his late filing under
rule 6(b)(1)(B). The Court, therefore, will grant Brown’s request, in Brown’s Surreply and
Motion to Amend and Stay, to excuse the untimely filing of Brown’s Response.
Last, Brown moves to amend and/or supplement his Complaint. See Brown’s Surreply
and Motion to Amend and Stay at 3. Brown filed Brown’s Surreply and Motion to Amend and
Stay more than twenty-one days after service of the Defendants’ responsive pleadings and,
therefore, Brown may amend his Complaint only “with the opposing party’s written consent or
the Court’s leave.” Fed. R. Civ. P. 15(a)(2). The Defendants oppose Brown’s Surreply and
Motion to Amend and Stay, and the Court cannot review the merits of the proposed amended
Complaint, because Brown has failed to attach a proposed amended complaint to his motion as
D.N.M.LR-Civ. 15.1 requires. See D.N.M.LR-Civ. 15.1 (“A proposed amendment to a pleading
must accompany the motion to amend.”). In light of Brown’s failure to comply with D.N.M.
LR-Civ. 15.1, the Court will deny his motion to amend the Complaint.
II.

THE COURT WILL GRANT IN PART AND DENY IN PART THOUVENELL’S
AMENDED MOTION TO DISMISS AND THE COUNTY’S MOTION TO
DISMISS.
The Defendants move to dismiss the Complaint pursuant to rule 12(b)(6) of the Federal

Rules of Civil Procedure, in relevant part, because: (i) it is unclear whether Brown is suing the
individual Defendants in their individual or official capacity, in violation of rule 10(a) of the
Federal Rules of Civil Procedure; (ii) Doña Ana County Sheriff’s Department and Doña Ana
County Detention Center are not “persons” subject to suit under § 1983; and (iii) the applicable
statutes of limitations bar Brown’s claims. See Thouvenell’s Amended Motion to Dismiss at 5;
County’s Motion to Dismiss at 3. Brown’s Response does not address the Defendants’ first two
claims, but contends that his action was timely filed, because it was placed in the correctional

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facility’s “mail system on July 12, 2017.” Brown’s Response at 2. Alternatively, Brown asks
the Court to toll the statutes of limitations, because of “the denial of meaningful legal access to
the courts” while in custody. Brown’s Response at 2.
Rule 12(b)(6) provides the Court with the authority to dismiss a complaint if it fails “to
state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). When ruling on a
motion to dismiss, the court must “accept as true all well-pleaded factual allegations in a
complaint and view these allegations in the light most favorable to the plaintiff.” Smith v.
United States, 561 F.3d 1090, 1098 (10th Cir. 2009). “The Court’s function on a Rule 12(b)(6)
motion is not to weigh the potential evidence that the parties might present at trial, but to assess
whether the plaintiff’s complaint alone is legally sufficient to state a claim for which relief may
be granted.” Smith v. United States, 561 F.3d at 1098 (quoting Sutton v. Utah State Sch. for
Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999)).
“To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim for relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009)(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A
claim has facial plausibility when the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft
v. Iqbal, 556 U.S. at 678. “Threadbare recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. at 678.
Brown is proceeding pro se, and “[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).

This rule means that “if the Court can

reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, it should

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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.” Hall v. Bellmon, 935 F.2d at 1110. The liberal rule of construction, however,
“does not relieve plaintiff of the burden of alleging sufficient facts on which a recognized legal
claim could be based.” Hall v. Bellmon, 935 F.2d at 1110. “[C]onclusory allegations without
supporting factual averments are insufficient to state a claim on which relief can be based.” Hall
v. Bellmon, 935 F.2d at 1110.
A.

THE COMPLAINT IDENTIFIES THE DEFENDANTS UNDER RULE
10(a).

Defendants first move to dismiss the Complaint, because it fails to identify the individual
Defendants contrary to rule 10(a) of the Federal Rules of Civil Procedure. See Thouvenell’s
Amended Motion To Dismiss at 4-5; County’s Motion to Dismiss at 3. Rule 10(a) provides, in
relevant part, that the “[t]he title of the complaint must name all the parties.” Fed. R. Civ. P.
10(a). “But in a pro se case when the plaintiff names the wrong defendant in the caption or when
the identity of the defendants is unclear from the caption, courts may look to the body of the
complaint to determine who the intended and proper defendants are.” Trackwell v. United States
Gov’t, 472 F.3d 1242, 1243-44 (10th Cir. 2007).
Brown’s Complaint names only the Las Cruces Police Department, the Doña Ana County
Sheriff’s Department, and the Doña Ana County Detention Center as Defendants in the caption,
but under the heading “PARTIES,” it also lists the following individual Defendants:
(i) Thouvenell; (ii) Lunsford; (iii) Vigil; (iv) Montoya; (v) Miyagishima; and (vi) Barela. See
Brown’s Complaint at 2. It is clear from the body of Brown’s Complaint who the intended and

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proper individual Defendants are, and, therefore, Brown’s Complaint is not subject to dismissal
under rule 10(a).
Nonetheless, the Defendants contend that dismissal is appropriate, because it “is not
readily apparent . . . whether Plaintiff intends to bring claims against the aforementioned
individuals in their official or individual capacity.” Thouvenell’s Amended Motion to Dismiss at
5. “Personal-capacity suits seek to impose personal liability upon a government official for
actions he takes under color of state law,’ whereas “[o]fficial capacity suits . . . generally
represent only another way of pleading an action against an entity of which an officer is an
agent.” Kentucky v. Graham, 473 U.S. 159, 165 (1985). “When, as here, ‘the complaint fails to
specify the capacity in which the government official is sued, [the Court must] look to the
substance of the pleadings and the course of the proceedings in order to determine whether the
suit is for individual or official liability.’” Trackwell v. United States Gov’t, 472 F.3d at 1244
(quoting Pride v. Does, 997 F.2d 712, 715 (10th Cir. 1993)).
Brown’s Complaint only seeks monetary damages and, therefore, a judgment against
Thouvenell, Vigil, and Barela, acting in their official capacities, would impose liability on the
County of Doña Ana and a judgment against Defendants Lunsford, Montoya, and Miyagishima,
acting in their official capacities, would impose liability on the City of Las Cruces. See Hinton
v. City of Elwood, Kansas, 997 F.2d 774, 783 (10th Cir. 1993)(“Since a judgment against a
public servant in his or her official capacity imposes liability on the entity he or she
represents . . . an official capacity suit is simply another way of pleading an action against that
entity.” (citation omitted)). Brown has not named the County of Doña Ana or the City of Las
Cruces as Defendants, nor has he pleaded any facts indicating that the County of Doña Ana or
the City of Las Cruces had an official custom, policy, or practice that caused the alleged

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violation of his constitutional rights. See Monell v. Dep’t of Soc. Serv. of City of New York,
436 U.S. 658, 692 (1978)(holding that § 1983 “plainly imposes liability on a government that,
under color of some official policy, ‘causes’ an employee to violate another’s constitutional
rights”). In light of the Complaint’s substance and the relief sought, the Court concludes that
Brown has instituted a personal-capacity suit, rather than an official-capacity suit, against the
individual defendants. Because it is apparent that Brown has sued the individual Defendants in
their personal capacities for actions taken under color of state law, the Court will deny
Thouvenell’s Amended Motion to Dismiss and the County’s Motion to Dismiss under rule 10(a).
B.

BROWN’S COMPLAINT FAILS TO STATE A CLAIM UNDER § 1983
AGAINST DOÑA ANA COUNTY SHERIFF’S DEPARTMENT AND
DOÑA ANA COUNTY DETENTION CENTER.

The Defendants next move to dismiss Brown’s § 1983 claims against Doña Ana County
Sheriff’s Department and Doña Ana County Detention Center, because these Defendants “are
not individuals under Section 1983 and therefore, may not be sued.” Thouvenell’s Amended
Motion to Dismiss at 6; County’s Motion to Dismiss at 3. “To state a claim under § 1983, a
plaintiff must allege the violation of a right secured by the Constitution and laws of the United
States, and must show that the alleged deprivation was committed by a person acting under color
of state law.” West v. Atkins, 487 U.S. 42, 48 (1988)(emphasis added). Although municipalities
and local governments are “persons” subject to suit under § 1983, Monell v. Dep’t of Soc. Serv.
of City of New York, 436 U.S. at 690, “generally, governmental sub-units are not separate suable
entities that may be sued under § 1983,” Hinton v. Dennis, 362 F. App’x 904, 907 (10th Cir.
2010)(unpublished). Doña Ana County Sheriff’s Department and Doña Ana County Detention
Center are governmental sub-units and, therefore, they are not persons or legally created entities
capable of being sued under § 1983. See Martinez v. Winner, 771 F.2d 424, 444 (10th Cir.

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1985)(holding that “‘[t]he City of Denver Police Department’ is not a separate suable entity, and
the complaint will be dismissed as to it”). Accordingly, the Court will grant Thouvenell’s
Amended Motion to Dismiss and the County’s Motion to Dismiss against Doña Ana County
Sheriff’s Department and Doña Ana County Detention Center.
C.

IT IS NOT CLEAR FROM THE FACE OF BROWN’S COMPLAINT
THAT THE STATUTE OF LIMITATIONS BARS HIS § 1983 CLAIMS.

Defendants contend that the three-year statute of limitations bars Brown’s § 1983 claims,
because Brown’s “injuries were a result of events that occurred on [July] 12, 2014” and,
therefore, Brown “was required to file his complaint no later than [July] 12, 2017.”2
Thouvenell’s Amended Motion to Dismiss at 8. Brown responds that his complaint was timely
filed within the three-year time period, because it was put “in the Southern NM Corr. Facility
mail system on July 12, 2017.” Brown’s Response at 2. Alternatively, Brown contends that he
is entitled to equitable tolling of the statute of limitations, because he has been deprived of
meaningful access to a law library and legal assistance while in the custody. See Brown’s
Response at 1. The Defendants reply that Brown has failed to provide the declarations necessary
to establish timely filing under the prisoner mailbox rule and has failed to allege sufficient facts
to justify equitable tolling. See Reply at 3-5.
2

In Thouvenell’s Amended Motion to Dismiss, Thouvenell contends that the events
detailed in Brown’s Complaint “occurred on June 12, 2014,” and, therefore, the three-year
limitations period expired on “June 12, 2017.” Thouvenell’s Amended Motion to Dismiss at 8.
Brown’s Complaint, however, alleges that the events leading up to his gunshot wound and dogbite injuries occurred on “the 12th of July 2014.” Brown’s Complaint ¶ 5, at 3. Defendants
acknowledge that the June 12 date is a typographical error and that the Court must accept
Brown’s well-pleaded factual allegation that the events occurred on July 12, 2014. See Reply at
4 (noting that “Defendants’ Motions inadvertently refers to the date of Plaintiff’s incident as June
12, 2014”). See also Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009)(noting that, at
the motion to dismiss stage, the Court must “accept as true all well-pleaded factual allegations in
a complaint and view these allegations in the light most favorable to the plaintiff”)].

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Although the statute of limitations is an affirmative defense, failure to file suit within the
applicable limitations period may be raised in a motion to dismiss under rule 12(b)(6) of the
Federal Rules of Civil Procedure “when the dates given in the complaint make clear that the right
sued upon has been extinguished.” Aldrich v. McCulloch Properties, Inc., 627 F.2d 1036, 1041
n.4 (10th Cir. 1980). “For section 1983 actions, state law determines the appropriate statute of
limitations and accompanying tolling provisions.” Fratus v. DeLand, 49 F.3d 673, 675 (10th Cir.
1995). “[T]he pertinent limitations period for section 1983 claims in New Mexico is that found
in N.M. Stat. Ann. § 37-1-8 (1978), which provides that actions for an injury to the person must
be brought within three years.” Jackson v. City of Bloomfield, 731 F.2d 652, 653 (10th Cir.
1984).

“Federal law, however, determines the date on which the claim accrues and the

limitations period starts to run.” Mondragon v. Thompson, 519 F.3d 1078, 1082 (10th Cir.
2008). “Section 1983 claims accrue, for the purpose of the statute of limitations, when the
plaintiff knows or has reason to know of the injury which is the basis of his action.” Johnson v.
Johnson Cty. Comm’n Bd., 925 F.2d 1299, 1301 (10th Cir. 1991). Thus, to determine the
accrual date of Brown’s § 1983 claims, the Court must “identify the constitutional violation and
locate it in time.” Smith v. City of Enid By And Through Enid City Comm’n, 149 F.3d 1151,
1154 (10th Cir. 1998)(internal quotation marks and citation omitted).
Thouvenell’s Amended Motion to Dismiss does not address the accrual date of Brown’s
§ 1983 claims, contending without citation to legal authority or analysis that the statute of
limitations began to run on July 12, 2014. See Thouvenell’s Amended Motion to Dismiss at 8.
The accrual date for the statute of limitations, however, depends on the nature of the
constitutional violation alleged. For example, “[b]oth fourth amendment claims and due process
claims for unconstitutional imprisonment are subject to special federal rules of accrual.”

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Mondragon v. Thompson, 519 F.3d at 1082.

“[T]he statute of limitations for a Fourth

Amendment claim for false arrest or imprisonment begins to run when the false imprisonment
ends,” which is “either when the victim is released or when the victim’s imprisonment becomes
pursuant to legal process -- when, for example, he is bound over by a magistrate or arraigned on
charges.” Mondragon v. Thompson, 519 F.3d at 1082 (internal quotation marks and citations
omitted). In contrast, a due process malicious prosecution claim “arises only once the original
action, whatever form it has taken, has been terminated in favor of the plaintiff.” Mondragon v.
Thompson, 519 F.3d at 1082 (internal quotation marks and citations omitted). Thus, Brown’s
false arrest and false imprisonment claim accrued on the date that he was held pursuant to legal
process -- a date which is unclear from the facts alleged in the complaint -- and his malicious
prosecution claim accrued on the date that he was acquitted of certain criminal charges, i.e.,
October 15, 2015. See Brown’s Complaint ¶ 5, at 7.
The Complaint also alleges that Brown was deprived of medical care while he was a
pretrial detainee at the Doña Ana County Detention Center, in violation of his rights under the
Constitution of the United States of America. Brown was a pretrial detainee at the Doña Ana
County Detention Center for approximately one and a half years, from July 12, 2014, until the
date of judgment in his state criminal case, October 15, 2015. From the facts alleged in the
Complaint, it is unclear at what point during this one-and-a-half year time-period Brown knew,
or had reason to know, that he was being deprived of adequate and necessary medical care. See
Brown’s Complaint ¶ 5, at 11. Thus, the Court cannot ascertain from the face of Brown’s
Complaint the date on which his deprivation-of-medical-care claim accrued.
It is not clear from the dates in the Complaint when Brown’s § 1983 claims for false
arrest, false imprisonment, and deprivation-of-medical-care accrued, and, therefore, the Court

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cannot ascertain whether these claims were extinguished before the Complaint’s filing.
Additionally, Brown’s § 1983 malicious prosecution claim did not accrue until October 15, 2015,
within the three-year limitations period, and therefore, the statute of limitations does not bar the
claims. Accordingly, the Court therefore will deny Thouvenell’s Amended Motion to Dismiss
and the County’s Motion to Dismiss vis-à-vis Brown’s claims for false arrest, false
imprisonment, deprivation-of-medical-care, and malicious prosecution.
Turning to Brown’s § 1983 excessive force claim, the Court recognizes that this claim
accrued on July 12, 2014, the date on which Brown knew or had reason to know about the
excessive force used during the course of his arrest. See Johnson v. Johnson Cty. Comm’n Bd.,
925 F.2d at 1301 (“Claims arising out of police actions toward a criminal suspect, such as arrest,
interrogation, or search and seizure, are presumed to have accrued when the actions actually
occur.”). Although Brown’s Complaint was signed and dated on July 11, 2017, one day before
the expiration of the three-year limitations period, it was not filed on the docket in state court
until August 9, 2017, twenty-eight days after the expiration of the three-year limitations period.
See Brown’s Complaint at 1, 13. Brown was a prisoner at the time his complaint was filed and,
therefore, the prisoner mailbox rule governs the § 1983 claim’s timeliness. See Price v. Philpot,
420 F.3d 1158, 1164 (10th Cir. 2005)(holding that the mailbox rule applies to inmate 42 U.S.C. §
1983 filings).
Pursuant to the prisoner mailbox rule, “an inmate who places a federal civil rights
complaint in the prison’s internal mail system will be treated as having ‘filed’ that complaint on
the date it is given to prison authorities for mailing to the court.” Price v. Philpot, 420 F.3d at
1165. “However, the inmate must attest that such a timely filing was made and has the burden of
proof on this issue.” Price v. Philpot, 420 F.3d at 1165. An inmate can establish timely filing

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under the prisoner mailbox rule in one of two ways:
(1) alleging and proving that he or she made timely use of the prison’s legal mail
system if a satisfactory system is available; or (2) if a legal system is not
available, then by timely use of the prison’s regular mail system in combination
with a notarized statement or a declaration under penalty of perjury of the date on
which the documents were given to prison authorities and attesting that postage
was prepaid.
Price v. Philpot, 420 F.3d at 1165.
Brown’s Complaint is dated July 11, 2017 and, in response to Thouvenell’s Amended
Motion to Dismiss and the County’s Motion to Dismiss, Brown submitted an Inmate Purchase
Order, indicating that his Complaint was given to prison authorities on July 12, 2017, and
received on July 13, 2017. See Brown’s Response at 3. Although Brown has not provided a
notarized statement or declaration signed under penalty of perjury reflecting the date on which
his Complaint was given to prison authorities and attesting that first-class postage was prepaid,
Brown may remedy this defect if given an opportunity to provide such a declaration. See United
States v. Ceballos-Martinez, 371 F.3d 713, 716 n.4 (10th Cir. 2004)(noting that “the text of the
rule does not require the prisoner to file this attestation at any particular time,” but “at the very
least, the prisoner must file it before we resolve his case”). Indeed, Brown has asked the Court
to provide him with an opportunity to remedy the defects in his “response and other pleadings.”
Brown’s Surreply and Motion to Amend and Stay at 4.

The Court will therefore deny

Thouvenell’s Amended Motion to Dismiss and the County’s Motion to Dismiss and will direct
Brown to submit, within thirty days of the date of entry of this Memorandum Opinion and Order,
a notarized statement or declaration, signed under penalty of perjury, indicating the date on

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which his Complaint was delivered to prison authorities and attesting that first-class postage was
prepaid.3
D.

IT IS NOT CLEAR FROM THE COMPLAINT’S FACE WHETHER THE
STATUTE OF LIMITATIONS BARS BROWN’S NMTCA CLAIMS.

Last, the Defendants move to dismiss Brown’s NMTCA claims, contending that the twoyear statute of limitations bars those claims. See Thouvenell’s Amended Motion To Dismiss at
8-9. Brown responds that his claims were timely filed and that the limitations period is subject to
equitable tolling, because he has been deprived of meaningful access to a law library and legal
assistance while in custody. See Brown’s Response at 1.
The NMTCA provides, in relevant part, that “[a]ctions against a governmental entity or a
public employee for torts shall be forever barred, unless such action is commenced within two
years after the date of occurrence resulting in loss, injury or death.”
3

N.M. Stat. Ann.

While questions of fact exist regarding the timely filing of Brown’s § 1983 claims under
the prisoner mailbox rule, the Court also determines that, based on Brown’s assertions, equitable
tolling is not appropriate.
Equitable tolling is appropriate “only in ‘extraordinary
circumstances.’” Clark v. Oklahoma, 468 F.3d 711, 714 (10th Cir. 2006)(quoting Marsh v.
Soares, 223 F.3d 1217, 1220). A plaintiff seeking equitable tolling for time incarcerated “‘bears
a strong burden to show specific facts to support his claim of extraordinary circumstances and
due diligence.’” Yang v. Archuleta, 525 F.3d 925, 928 (10th Cir. 2008)(quoting Brown v.
Barrow, 512 F.3d 1304, 1307 (11th Cir.2008)).
Here, Brown has not shown specific facts of extraordinary circumstances or due
diligence. In Brown’s Response, he states that the NMCD “denies meaningful access to the
courts,” and, according to Brown, meaningful access “would include access to authorities
concerning the statutes of limitations.” Brown Response at 1. He also states that the NMCD
“has a teacher at Southern handing out legal forms only” and that the NMCD’s “policy forbids
any assistance.” Response at 1. Although the Court recognizes the challenge inherent in
conducting legal research while incarcerated, the equitable tolling standard is that Brown allege
specific facts of his active steps in diligently pursuing his claims and how he faced extraordinary
circumstances. Mere allegations of a lack of access to a law library are not sufficient. See
Milton v. Allbaugh, 716 F. App’x 811, 815 (10th Cir. 2017)(unpublished)(“Notably, Mr. Milton
does not point to anything beyond lack of access to a law library that would warrant equitable
tolling.”).

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§ 41-4-15(a). Brown’s complaint raises various torts under the NMTCA -- viz. false arrest, false
imprisonment, malicious prosecution, excessive force, and deprivation-of-medical-care -- and
each of these torts has a different accrual date under New Mexico law. See Tiberi v. Cigna
Corp., 89 F.3d 1423, 1429 (10th Cir. 1996)(“Where a suit invokes several causes of action, each
is subject to a distinct statute of limitations; thus, distinct accrual periods should apply to each
cause of action.”); Anderson Living Trust v. WPX Energy Prod., LLC, 27 F. Supp. 3d 1188,
1234 (D.N.M. 2014)(Browning, J)(“New Mexico uses the discovery rule, meaning the statutes of
limitation accrue -- i.e., begin to run -- only when the plaintiff discovers, or should have
discovered in the exercise of reasonable diligence, the facts that underlie his or her claim.”)
(internal quotation marks and citation omitted). For example, Brown’s malicious abuse of
process claim accrued “immediately upon the improper use of process,” Mata v. Anderson, 685
F. Supp. 2d 1223, 1254-55 (D.N.M. 2010)(Browning, J.), whereas his deprivation-of-medicalcare claim accrued when Brown “knew or with reasonable diligence should have known of the
injury and its cause,” Maestas v. Zager, 2007-NMSC-003, ¶ 1, 152 P.3d 141, 147.
Thouvenell’s Amended Motion to Dismiss and the County’s Motion to Dismiss do not
address the accrual date for each of Brown’s NMTCA claims, simply contending in a conclusory
fashion that Brown “had until June 12, 2016 to file his suit for claims under the NMTCA.”
Thouvenell’s Amended Motion to Dismiss at 9. It is not the Court’s proper role to “construct
arguments or theories for the [Defendants] in the absence of any discussion of those issues.”
Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir. 1991). The Defendants have not
briefed the accrual date for each of Brown’s NMTCA claims, and, therefore, it is not possible for
the Court to discern soundly at this proceeding’s preliminary stage whether those claims were
extinguished before Brown filed suit. See Fratus v. DeLand, 49 F.3d at 676 (noting that the date

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of accrual can be “a fact laden issue,” making it “impossible at [the motion to dismiss] stage of
the proceedings to place the claim definitively inside or outside the statute of limitations”).
Accordingly, the Court will deny Thouvenell’s Amended Motion to Dismiss and the County’s
Motion to Dismiss vis-à-vis Brown’s NMTCA claims.
III.

THE COURT WILL DISMISS BROWN’S § 1983 CLAIMS AGAINST LAS
CRUCES POLICE DEPARTMENT, AND DIRECT THE DEFENDANTS TO
FILE THE OFFICIAL STATE COURT RECORD AND A STATUS UPDATE ON
SERVICE OF PROCESS ON BARELA.
The Court has an independent obligation under 28 U.S.C. § 1915A to screen the

Complaint, because it was filed by “a prisoner who seeks redress from a governmental entity or
officer or employee of a governmental entity.” 28 U.S.C. § 1915A(a). A complaint is subject to
dismissal under § 1915A, in relevant part, if it “is frivolous, malicious, or fails to state a claim
upon which relief may be granted.” 28 U.S.C. § 1915A(b)(1). As previously explained, relief is
not available under § 1983 against governmental sub-units, because they “are not separate suable
entities.”

Hinton v. Dennis, 362 F. App’x at 907.

Las Cruces Police Department is a

governmental sub-unit and, therefore, it is not a person or legally created entity capable of being
sued under § 1983. See Martinez v. Winner, 771 F.2d at 444 (holding that “‘[t]he City of Denver
Police Department’ is not a separate suable entity, and the complaint will be dismissed as to it”).
Accordingly, the Court will dismiss, under § 1915A, Brown’s § 1983 claims against Las Cruces
Police Department for failure to state a claim on which relief may be granted.
Last, the Court notes that Defendant Barela has not entered an appearance even though
the state court issued a summons. See Summons at 14, filed September 14, 2017 (Doc. 1-1). It
is unclear from the record whether the summons was returned executed, because the Defendants
have not filed a complete copy of the state court record, as D.N.M.LR.-Civ. 81.1(a) requires.

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See D.N.M.LR-Civ. 81.1(a) (“A party removing an action under 28 U.S.C. § 1446 must file with
the Clerk legible copies of records and proceedings from state court action within twenty-eight
(28) days after filing notice of removal.”). The Court therefore will order the Defendants, within
thirty days of the date of this order’s entry, to file a complete copy of the state court record in
accordance with D.N.M.LR-Civ. 81.1(a) and a status update informing the Court of the status of
service of process on Barela.
IT IS ORDERED that: (i) Defendant Chase Thouvenell’s Motion To Dismiss Plaintiff’s
Complaint (Doc. 1-1), filed September 21, 2017 (Doc. 3), is denied as moot; (ii) the Clerk of the
Court is directed to amend the caption to reflect the proper spelling of Defendant Duvanell’s last
name as Thouvenell; (iii) the Defendants’ Joint Motion to Strike Plaintiff’s Response and Motion
to Oppose the Defendant’s Motion to Dismiss Et Seq (Doc. 13), filed January 24, 2018
(Doc. 15), is denied; (iv) Plaintiff Davalous Jamon Brown’s Plaintiff’s Response and Motion to
Oppose Defendant’s Motion to Dismiss and for Enlargement and Extension of Time to File All
Response and Other Pleadings and for Permission to Give Leave to Amend and Supplement
Pleadings and Motion to Stay the Proceedings and Hold in Abeyance for Plaintiff to Acquire
Appointment of Counsel, filed January 2, 2018 (Doc. 13), is granted in part and denied in part;
(v) the Amended Defendant Chase Thouvenell’s Motion To Dismiss Plaintiff’s Complaint
(Doc. 1-1), filed October 3, 2017 (Doc. 5), is granted in part and denied in part; (vi) the
Defendant Sheriff Enrique “Kiki” Vigil and the Dona Ana County Sheriff’s Department’s
Motion To Dismiss Plaintiff’s Complaint (Doc. 1-1), filed October 3, 2017 (Doc. 6), is granted in
part and denied in part; (vii) Brown’s § 1983 claims against Defendants Doña Ana County
Sheriff’s Department, Doña Ana County Detention Center, and Las Cruces Police Department
are dismissed; (viii) Brown is directed to submit, within thirty days of this order’s entry date, a

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notarized statement or declaration, signed under penalty of perjury, indicating the date on which
his Complaint (Tort) ¶ 5, at 3, filed August 9, 2017 in First Judicial District Court, County of
Santa Fe, State of New Mexico, filed in federal court September 14, 2017 (Doc. 1-1), was
delivered to prison authorities and attesting that first-class postage was prepaid; and (ix) the
Defendants are directed to submit, within thirty days of this order’s entry date, a copy of the
official state court record and a status update informing the Court of the status of service of
process on Defendant Chris Barela.

________________________________
UNITED STATES DISTRICT JUDGE

Parties and counsel:
Davalous Jamon Brown
Southern New Mexico Correctional Facility
Las Cruces, New Mexico
Plaintiff pro se

Roberto A. Cabello
City Attorney’s Office
Las Cruces, New Mexico
Attorney for Defendants Las Cruces Police Department, Brad Lunsford, Jaime Montoya,
Kenneth Daniel Gallegos Miyagishima
Damian L. Martinez
Holt Mynatt Martinez P.C.
Las Cruces, New Mexico
Attorneys for Defendants Doña Ana County Sheriff’s Department, Chase Thouvenell

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