Opinion
No. CIV 19-0299 JB/JFR
08-30-2019
Arnold Kent SIKKINK, Plaintiff, v. Brennon WILLIAMS; John E. Dubois; David Brown; Michelle L. Wall, and Ken Bramlett, Defendants.
MEMORANDUM OPINION AND ORDER OVERRULING THE PLAINTIFF'S OBJECTIONS AND ADOPTING THE MAGISTRATE JUDGE'S PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
THIS MATTER comes before the Court on: (i) the Defendants' Motion to Dismiss Plaintiff's "Civil Rights Complaint Pursuant to 42 U.S.C. 1983" and for Qualified Immunity and Memorandum in Support Thereof, filed April 25, 2019 (Doc. 5)("Motion to Dismiss"); and (ii) Plaintiff Arnold Kent Sikkink's Civil Rights Complaint Pursuant to 42 U.S.C. 1983, filed April 2, 2019 (Doc. 1)("Complaint"). In his Proposed Findings and Recommended Disposition, filed July 31, 2019 (Doc. 26)("PFRD"), the Honorable John F. Robbenhaar, United States Magistrate Judge, recommended that the Court grant the Motion to Dismiss and dismiss with prejudice the Complaint. On August 13, 2019, Sikkink timely filed Plaintiff's Opposition Motion and Asking Your Honor to Reconsider the Recommendation to Dismiss This Case, filed August 13, 2019 (Doc. 27)("Objections"), to which Defendants Brennon Williams, John E. Dubois, David Brown, Michelle L. Wall, and Ken Bramlett respond in Defendants' Response to Opposition Motion and Asking Your Honor to Reconsider the Recommendation to Dismiss This Case, filed August 15, 2010 (Doc. 28)("Response"). On August 20, 2019, Sikkink filed a reply to the Response. See Plaintiff's Response to Defendants' Response to Opposition Motion and Asking Your Honor to Reconsider the Recommendation to Dismiss This Case, filed August 20, 2019 (Doc. 29)("Reply").
District courts may refer dispositive motions to a Magistrate Judge for a recommended disposition pursuant to 28 U.S.C. § 636 and rule 72 of the Federal Rule of Civil Procedure. See 28 U.S.C. § 636(b)(1)(B) ; Fed. R. Civ. P. 72(b)(1). "Within 14 days after being served with a copy of the [Magistrate Judge's] recommended disposition, a party may serve and file specific written objections to the proposed findings and recommendations." Fed. R. Civ. P. 72(b)(2). See 28 U.S.C. § 636(b)(1). When resolving objections to a Magistrate Judge's proposal, "[t]he district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to. The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions." Fed. R. Civ. P. 72(b)(3). See 28 U.S.C. § 636(b)(1).
"[A] party's objections to the magistrate judge's report and recommendation must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review." United States v. 2121 E. 30th St., 73 F.3d 1057, 1060 (10th Cir. 1996). Further, "[i]ssues raised for the first time in objections to the magistrate judge's recommendation are deemed waived." Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996). See also United States v. Garfinkle, 261 F.3d 1030, 1031 (10th Cir. 2001) ("In this circuit, theories raised for the first time in objections to the magistrate judge's report are deemed waived.").
The Court has considered the Motion to Dismiss; Plaintiff's Oppositon [sic] to Defendant's [sic] Motion to Dismiss, filed May 1, 2019 (Doc. 7)("Response to Motion to Dismiss"); the PFRD; the Objections; the Response; and the Reply in light of the foregoing standards, and has conducted a de novo review. Based on this review, the Court concludes that the Objections to the PFRD lack a sound basis in the applicable law and the case's facts. The Objections consist of repeated factual allegations, and sixty-four pages of exhibits, many of which Sikkink attaches to his Complaint. Sikkink also, in large part, reasserts the same arguments in support of his causes of action that he presents in his Complaint and in response in opposition to the Motion to Dismiss. See Objections at 2-17. For example, Sikkink reasserts that, had he been afforded due process, his business sign would not have been removed. See Objections at 9-11. Sikkink reasserts, without more, that the Defendants falsified public records to cover up their "illegal infractions" related to the removal of his business sign. See Objections at 11. Finally, Sikkink reasserts, without more, that it "seems obvious" that certain of the Defendants were working in concert to facilitate the sale of private property and remove his business sign. See Objections at 12. As for Sikkink's failure to timely file his Complaint, Sikkink restates that it was not until by mid-2017 that he was aware of the extent of the Defendants' participation in depriving him of due process and that it was only after failed attempts to resolve his claims with the City of Albuquerque, for which the Defendants work, that he was forced to file the Complaint. See Objections at 15-16; Complaint ¶¶ 2-6, at 1-5. The Objections do not alter that (i) as to certain causes of action, Sikkink has failed to state a constitutional violation against the Defendants, and (ii) as to all causes of action, Sikkink knew or should have known of his alleged causes of action by no later than August 25, 2014, when his business sign was removed. Sikkink therefore filed his April 2, 2019, Complaint outside the three-year statute of limitations period for bringing his claims under 42 U.S.C. § 1983 and the Complaint is untimely.
The Court does not have to consider any new factual allegations or evidence that Sikkink presents for the first time in the Objections. "[T]he Tenth Circuit has stated that ‘[i]ssues raised for the first time in objections to the magistrate judge's recommendation are deemed waived.’ " Hinzo v. N.M. Dep't of Corr., No. CIV 10-506 JB/CG, 2013 2013 WL 1657915, at *2 (D.N.M. March 29, 2013) (Browning, J.)(quoting Marshall v. Chater, 75 F.3d at 1426 ; and citing United States v. Garfinkle, 261 F.3d at 1030-31 ("In this circuit, theories raised for the first time in objections to the magistrate judge's report are deemed waived.")). To be generous to Sikkink, the Court has considered this new evidence. The new evidence and allegations do not change the Court's conclusion regarding the Objections lacking a sound basis in law or fact.
The Defendants object to Sikkink's attachments to the extent that they are new and presented for the first time with the Objections. See Response at 3-4; note 1, supra.
Sikkink concedes in his Objections that the actions underlying his abuse-of-power claim did not affect his civil rights directly. See Objections at 17.
Magistrate Judge Robbenhaar also recommends the Court deny Plaintiff's [sic] Requests a Hearing When Your Honor Rules on Motion to Dismiss Complaint, filed May 15, 2019 (Doc. 17), in which Sikkink requests an opportunity to rebut in court the Motion to Dismiss. The Court has carefully reviewed the Motion to Dismiss, the Response to the Motion to Dismiss, the PFRD, and the Objections, and concludes that a hearing would not be helpful or change the result here, because the Complaint is untimely and Sikkink cannot change that fact.
In short, following its de novo review, the Court finds no fault with Magistrate Judge Robbenhaar's PFRD and discerns nothing that might usefully be added to it. Rather than repeat what Magistrate Judge Robbenhaar has already written, the Court hereby adopts Magistrate Judge Robbenhaar's PFRD and overrules the Objections. IT IS ORDERED that: (i) the Plaintiff's Opposition Motion and Asking Your Honor to Reconsider the Recommendation to Dismiss This Case, filed August 13, 2019 (Doc. 27), is overruled; (ii) the Proposed Findings and Recommended Disposition, filed July 31, 2019 (Doc. 26), is adopted; (iii) the Defendants' Motion to Dismiss Plaintiff's "Civil Rights Complaint Pursuant to 42 U.S.C. 1983" and for Qualified Immunity and Memorandum in Support Thereof, filed April 25, 2019 (Doc. 5), is granted; (iv) Plaintiff's [sic] Requests a Hearing When Your Honor Rules on Motion to Dismiss Complaint, filed May 15, 2019 (Doc. 17), is denied; and (v) the Civil Rights Complaint Pursuant to 42 U.S.C. 1983, filed April 2, 2019 (Doc. 1), is dismissed with prejudice.
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
On June 5, 2019, United States District Judge James O. Browning entered an Order of Reference referring this case to the undersigned to conduct hearings, if warranted, including evidentiary hearings and to perform any legal analysis required to recommend to the Court an ultimate disposition of the case. Doc. 20.
Filed 07/31/2019
JOHN F. ROBBENHAAR United States Magistrate Judge
ARNOLD KENT SIKKINK, Plaintiff,
Because Plaintiff is pro se , the court construes his pleadings liberally and holds them to a less stringent standard than formal pleadings drafted by lawyers. Hall v. Bellmon , 935 F.2d 1106, 1110 (10th Cir. 1991). However, the court does not assume the role of his advocate. Id. Also, Plaintiff's pro se status does not excuse him from complying with the rules of the court or facing the consequences of noncompliance. Ogden v. San Juan Cty. , 32 F.3d 452, 455 (10th Cir. 1994).
vs.
BRENNON WILLIAMS, JOHN E. DUBOIS, DAVID BROWN, MICHELLE L. WALL, and KEN BRAMLETT, Defendants.
THIS MATTER is before the Court on Defendants' Motion to Dismiss Plaintiff's "Civil Rights Complaint Pursuant to 42 U.S.C. 1983" and for Qualified Immunity and Memorandum in Support Thereof, filed April 25, 2019. Doc. 5. Plaintiff filed a response in opposition to Defendant's Motion to Dismiss on May 1, 2019. Doc. 7. Defendants filed a reply on May 7, 2019. Doc. 12. For the reasons discussed below, the undersigned recommends that Defendants' Motion to Dismiss be GRANTED and that Plaintiff's Complaint be DISMISSED WITH PREJUDICE .
On May 15, 2019, Plaintiff filed a Motion requesting a hearing if the Court found reason to dismiss his Complaint. Doc. 17. The Court found the issues thoroughly covered by the briefing on Defendants' Motion to Dismiss and does not believe a hearing could add to what already has been presented. The Court, therefore, will recommend that the Motion for Hearing be DENIED.
I. Background
For the purpose of ruling on Defendants' Motion to Dismiss, the Court assumes that the following well-pled facts taken from Plaintiff's Complaint are true. Mayfield v. Bethards , 826 F.3d 1252, 1255 (10th Cir. 2016) ("[I]n reviewing a motion to dismiss, [the Court] accept[s] the facts alleged in the complaint as true and views them in the light most favorable to the plaintiff."). In addition to the Complaint, the court may consider documents referred to in the Complaint if the documents are central to the Plaintiff's claims and the parties do not dispute the documents' authenticity. Jacobsen v. Deseret Book Co. , 287 F.3d 936, 941 (10th Cir. 2002).
Although a court must generally take the allegations in a complaint as true no matter how skeptical the court may be, "[t]he sole exception to this rule lies with the allegations that are sufficiently fantastic to defy reality as we know it[,]" for example, those related to "experiences in time travel." Ashcroft v. Iqbal , 556 U.S. 662, 696, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (Souter, J., dissenting); Valdez v. Nat'l Sec. Agency , 228 F.Supp.3d 1271, 1280 (D. Utah 2017) ("At the pre-discovery motion to dismiss stage, [the district court] must assume the truth of well-pleaded factual allegations that are not simply legal conclusions or bare assertions of the elements of a claim – so long as the allegations do not defy reality as we know it[.]")
Plaintiff states that
[i]n 1994, the City of Albuquerque granted the separation of lot B-2 located at 1600 Eubank NE. Lot B-2 became two separate lots B-2-A and B-2-B. Lot B-2-B was owned by the Plaintiff, and lot B-2-A was owned by Roberts Oil Company, and later acquired by Convenience Retailers. Although lot B-2 was separated into two lots[,] the address of 1600 Eubank NE [ ] remained for both lots. Lot B-2-B is located behind lot B-2-A, and the only access into lot B-2-B is through ingress/egress easements that pass through lot B-2-A. Lot B-2-B is not visible from Eubank Blvd.
Doc. 1 at 6. In 1994, Plaintiff obtained permission from Roberts Oil Company, the owner of lot B-2-A, to locate a business sign on lot B-2-A. Id. at 6-7. In 2005, a business sign was permitted and installed with the full knowledge of Bill Roberts d/b/a Roberts Oil Company. Id. at 7. Mr. Roberts designated the location for the sign. Id. The sign was replaced in 2013 using the same foundation and pole as the 2005 sign. Id.
On February 25, 2019, City Attorney Kevin Morrow sent a letter to Plaintiff, attached as Exhibit L to Plaintiff's Complaint, in which he explained that on August 9, 2013, a sign permit was applied for and "Salon @ 1600" was listed as permittee. Doc. 1-1 at 33-34. The permit was signed by C. Moran. Id. Mr. Morrow explained that the permit application required compliance with all city ordinances and required the full knowledge and agreement of the property owner. Id. Mr. Morrow also explained that the City was concerned that the sign not hang over the City's right of way. Id. Mr. Morrow informed Plaintiff that the permit issued in 2013 for the sign was "at best incomplete or intentionally false," because his name appeared nowhere on the permit, that neither Plaintiff nor Salon @ 1600 was the property owner where the sign was to be erected, and that no action had ever been taken to correct it. Id. at 34. Mr. Morrow also stated that photos of the sign after it was erected showed it was not erected where it was shown to be erected on the permit, but was erected on the City's right of way on Lot B-2-A with neither the City's nor the Lot B-2-A owner's permission, and that the sign advertised a business renting from Plaintiff, which made it an illegal off premise sign. Id.
On July 11, 2014, Plaintiff received a letter from Convenience Retailers, the current owner of lot B-2-A, demanding that he remove his sign within 15 days because the property was under contract to sell. Doc. 1 at 7, Doc. 1-1 at 5. In response, Plaintiff talked with the prospective buyer, Rudy Marquez, who told Plaintiff he would either take ownership of the sign and lease it back to Plaintiff or, if Plaintiff were not prepared to give up the sign, he would have Convenience Retailers remove the sign before closing on the property. Doc. 1 at 7. Plaintiff was not willing to give his sign away, so Plaintiff faxed documents from 1994 granting him permission to locate a sign on Eubank Blvd. to Linda Garcia at Convenience Retailers. Id. at 7, 14. Plaintiff did not hear from Ms. Garcia. Id. at 7.
Attached to Plaintiff's Complaint as Exhibit B is a July 11, 2014, letter from Linda Garcia, Property Manager of Convenience Retailers LLC, to Plaintiff regarding the "Street Front Sign." Doc. 1-1 at 5. The letter informs Plaintiff that the property is under contract to sell. Id. The letter also informs Plaintiff that "[a]fter review of title and physical property, it has come to my attention that your sign for the Salon @ 1600 was installed on our piece of property without CRLLC's knowledge or approval and is currently encroaching onto the property." Id. Ms. Garcia informed Plaintiff that the letter served as notice that he had 15 days to remove the sign and restore the premises to its original condition. Id.
In Linda Garcia's Affidavit, attached to Plaintiff's Complaint as Exhibit F, Ms. Garcia affirmed that Plaintiff sent her documents that he claimed allowed him to erect the pole sign, and that Plaintiff's documents were "carefully reviewed, but there was nothing that gave [Plaintiff] the right to erect a pole sign on the Convenience property." Doc. 1-1 at 18. Ms. Garcia further affirmed that she subsequently had a telephone discussion with Plaintiff and told him he needed to remove the sign, although she does not recall the date of that discussion. Id.
On July 16, 2014, Plaintiff received a phone call from Defendant David Brown, City of Albuquerque Code Violation Field Inspector, asking whether Plaintiff had permission to locate a business sign on lot B-2-A. Doc. 1 at 7. In response, Plaintiff faxed Defendant Brown the documents from 1994 granting him permission to locate a sign on Eubank Blvd. Id. On July 31, 2014, Defendant Brennon Williams, City of Albuquerque Director of Code Enforcement, deemed Plaintiff's business sign to be an illegal off-premise sign. Id. at 8. On July 31, 2014, Defendant Brown called Plaintiff to tell him about Defendant Williams' decision, and that a Notice of Violation had been sent to Convenience Retailers informing them that Plaintiff's sign was in violation of the General Sign Regulations and that the sign had to be permitted or removed. Id. at 8.
In an email from Defendant Brown to Linda Garcia, attached to Plaintiff's Complaint as Exhibit D, Defendant Brown informed Ms. Garcia that the Notice had been sent to "both propert[ies] at 1600 Eubank NE for Sign Violation." Doc. 1-1 at 8.
Plaintiff attached three copies of the Notice of Violation to his Complaint as Exhibits C, E and E-2. Doc. 1-1 at 6-7, 10-11, 12-13. The Notice of Violation states that a recent inspection of 1600 Eubank Blvd. revealed one or more violations of the Comprehensive City Zoning Code and/or the Albuquerque Weed and Anti-Litter Ordinance. Id. Under Violation of General Sign Regulations, the Notice indicates "Corrective Action: Except for signs specified under divisions (A)(6), (B)(3) and (B)(4) of this section, a sign permit is required for the following types of new signs: All freestanding and projecting on-premise signs. PERMIT OR REMOVE SIGNS." Id. at 6-7, 10-11. One of the three copies of the Notice of Violation, Exhibit E-2, does not contain the words "PERMIT OR REMOVE SIGNS," which forms the basis of Plaintiff's falsifying records claim. See Section II.C, infra.
On August 9, 2014, Plaintiff brought his sign into compliance by "removing the scissors from the sign" and, beginning on August 11, 2014, Plaintiff attempted to secure verification from Defendant Brown regarding "the compliance of [his] sign" so that Convenience Retailers would not attempt to remove the sign based on the Notice of Violation. Doc. 1 at 8, Doc. 1-1 at 26. At the time of Plaintiff's conversation with Defendant Brown, Defendant Brown agreed that the sign was in compliance, agreed to send a letter of compliance, and agreed to notify Linda Garcia at Convenience Retailers that the Notice of Violation was no longer valid. Doc. 1 at 8-9. On August 15, 2014, Convenience Retailers was granted an extension to comply with the Notice of Violation. Id. at 9. On August 20, 2014, having not heard from Defendant Brown regarding his agreements, Plaintiff sent an email to Defendant Brown, Defendant Williams, and Mayor Berry requesting a letter of compliance and asking whether they had informed the owners in California that his sign should not be removed. Id. Plaintiff did not receive a response. Id. On August 25, 2014, Plaintiff's sign was physically removed. Doc. 1 at 9.
In Hamed Adibnatanzi's Affidavit, attached to Plaintiff's Complaint as Exhibit G, Mr. Adibnatanzi affirmed that on August 20, 2014, Plaintiff also sent an email to Linda Garcia asking that Convenience Retailers grant him a sign easement, and that Convenience Retailers did not grant him one. Doc. 1-1 at 22.
In his Complaint, Plaintiff states that from August 1, 2014 until August 29, 2014, he never received a return phone call or a return email from any City employee. Doc. 1 at 9-10.
In Hamed Adibnatanzi's Affidavit, attached to Plaintiff's Complaint as Exhibit G, Mr. Adibnatanzi affirmed that Convenience Retailers made the decision to comply with the City's direction to remove the sign. Doc. 1-1 at 15. He also affirmed that Convenience Retailers d/b/a My Goods Market authorized Eaton Sales and Service, LLC, to remove the sign and place it on Plaintiff's property. Id.
After the sign was removed, Plaintiff retained counsel and initiated a lawsuit against Eaton Sales and Services, LLC, and Convenience Retailers in the State of New Mexico, County of Bernalillo, Second Judicial District Court. Doc. 1 at 10, 19-20. In February 2016, being low on funds, having lost confidence in his attorney, and losing a motion for summary judgment on important counts, Plaintiff voluntarily moved to dismiss his state court complaint without prejudice. Id. at 10. Plaintiff took all the evidence including affidavits, depositions, IPRA requests, and all other documents, and made a timeline of the evidence. Id. By mid-2017, Plaintiff concluded that he had a claim against Defendants. Id.
In his Complaint, Plaintiff states that he brought other lawsuits dealing with the same facts involved in this action. Doc. 1 at 19-23. In March 2016, Plaintiff brought suit against Eaton Sales & Service, LLC, a Colorado limited liability company, in State of New Mexico, County of Bernalillo, Metropolitan Court. Id. at 19-20. "Plaintiff sued Defendant for Negligen[ce]." Id. at 19. The case was settled in October 17, 2016. Id. On August 23, 2018, Plaintiff brought suit against Mayor Tim Keller, City of Albuquerque, in State of New Mexico, County of Bernalillo, Metropolitan Court. Id. at 20-21. In November 2018, the case was dismissed without prejudice. Id. at 21.
New Mexico Inspection of Public Records Act.
Based on the foregoing allegations, Plaintiff seeks to recover damages on four causes of action: (1) depriving right to due process; (2) falsifying public documents; (3) conspiracy to deceive, mislead and defraud; and (4) abuse of power by a public official. Doc. 1 at 11-17. Defendants move to dismiss Plaintiff's causes of action on the grounds that (1) they fall outside the applicable statute of limitations; (2) Plaintiff has engaged in inappropriate claim splitting; (3) Plaintiff fails to state a claim on the merits against Defendants; and (4) Defendants are entitled to qualified immunity. Doc. 5 at 8-14. Because the Court finds that Plaintiff's Complaint fails to state a claim upon which relief can be granted and/or that his claims are time barred, the Court does not address whether Plaintiff has engaged in claim splitting or whether Defendants are entitled to qualified immunity.
II. Analysis
A. Standards Governing a Motion to Dismiss
Federal Rule of Civil Procedure 12(b)(6) authorizes a court to dismiss a complaint for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). In deciding a motion to dismiss under Rule 12(b)(6), the Court must determine whether the plaintiff's complaint "contain[s] sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). In undertaking this analysis, the Court considers "the complaint as a whole, along with the documents incorporated by reference into the complaint," and construes all well-pled allegations in the light most favorable to the plaintiff. Nakkhumpun v. Taylor , 782 F.3d 1142, 1146 (10th Cir. 2015). "Well-pled" means that the allegations are "plausible, non-conclusory, and non-speculative." Dudnikov v. Chalk & Vermilion Fine Arts, Inc. , 514 F.3d 1063, 1070 (10th Cir. 2008) (quotation omitted). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal , 556 U.S. at 678, 129 S.Ct. 1937. Courts "disregard conclusory statements and look only to whether the remaining ... factual allegations plausibly suggest the defendant is liable." Mocek v. City of Albuquerque , 813 F.3d 912, 921 (10th Cir. 2015).
Where, as here, a party is proceeding pro se , the Court is to liberally construe his pleadings. Casanova v. Ulibarri , 595 F.3d 1120, 1125 (10th Cir. 2010). "But the court [is] not [to] ‘assume the role of advocate for the pro se litigant.’ " Baker v. Holt , 498 F. App'x 770, 772 (10th Cir. 2012) (unpublished) (quoting Hall v. Bellmon , 935 F.2d 1106, 1110 (10th Cir. 1991) ). Accordingly, the Court "will not supply additional factual allegations to round out a plaintiff's complaint or construct a legal theory on a plaintiff's behalf." Whitney v. New Mexico , 113 F.3d 1170, 1173-74 (10th Cir. 1997). In other words, "[t]he broad reading of the plaintiff's complaint does not relieve the plaintiff of the burden of alleging sufficient facts on which a recognized legal claim could be based." Hall , 935 F.2d at 1110. "[C]onclusory allegations without supporting factual averments are insufficient to state a claim on which relief can be based." Id.
B. Plaintiff's Due Process Claim Is Time Barred
In support of his due process claim, Plaintiff argues in his Complaint that on July 11, 2014, Linda Garcia, the property manager for Convenience Retailers, the owner of lot B-2-A, sent him a letter demanding that he remove his business sign, and that after he provided her with the documents from 1994 granting him permission to locate his sign on Eubank Boulevard, she "turned to the City of Albuquerque Zoning Department." Doc. 1 at 11. Plaintiff further argues that on July 16, 2014, he received a phone call from Defendant Brown, who identified himself as a Code Compliance Field Inspector, and asked whether Plaintiff had permission to locate his sign on property that did not belong to him. Id. On that same day, Plaintiff sent the same documents from 1994 to Defendant Brown. Id. On July 31, 2014, Plaintiff asserts that the City of Albuquerque Code Enforcement sent a Notice of Violation to Convenience Retailers, referencing General Sign Regulations, and indicating corrective action that the sign had to be permitted or removed within 14 days. Id. at 11-12.
Defendants argue in their Motion to Dismiss that Plaintiff's due process claim is without merit because it is clear from the Complaint that Plaintiff was provided notice and had an opportunity to be heard on the removal of his sign. Doc. 5 at 3. That aside, Defendants contend that it is readily apparent from Plaintiff's own allegations in the Complaint that the cause of action accrued when his sign was removed on August 25, 2014, and that his due process claim is, therefore, time barred. Doc. 5 at 9. Defendants further contend that even if the Court were to assume that the cause of action accrued when Plaintiff had access to the affidavits attached to his Complaint, that those were executed in November 2015, which was more than three years before the filing of his Complaint here. Id.
Attached to Plaintiff's Complaint are the Affidavits of Hamed Adibnatanzi, in-house counsel for Convenience Retailers, LLC, dated November 5, 2015, and Linda Garcia, former real estate property administrator for Convenience Retailers, LLC, dated November 4, 2015. Doc. 1-1 at 14-18. The affidavits affirm the sequence of events surrounding Convenience Retailers' notification to Plaintiff advising him that his sign was encroaching on its property and that he needed to remove his sign, and Convenience Retailers' decision to comply with the City of Albuquerque's Notice of Violation to remove the sign. Id.
Plaintiff filed his Complaint in this Court on April 2, 2019. (Doc. 1.)
In his Response, Plaintiff reiterated that through IPRA requests, and affidavits and depositions obtained during his litigation against Eaton Sales and Service, LLC, and Convenience Retailers, he was able to confirm by mid-2017 the "misdeeds" of the City of Albuquerque Code Enforcement Department. Doc. 7 at 2. Plaintiff ultimately argues that he was not provided notice or afforded an opportunity to be heard on the issue of his sign removal. Id. at 3-4.
"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, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988). Additionally, a § 1983 complaint that names multiple governmental actors as defendants must "make clear exactly who is alleged to have done what to whom , to provide each individual with fair notice as to the basis of the claims against him or her." Robbins v. Oklahoma , 519 F.3d 1242, 1250 (10th Cir. 2008) (emphasis in original). Specifically, a party seeking relief under § 1983 "must explain what each defendant did to him ...; when the defendant did it; how the defendant's action harmed him ...; and what specific legal right the plaintiff believes the defendant violated." Nasious v. Two Unknown B.I.C.E. Agents , 492 F.3d 1158, 1163 (10th Cir. 2007) ; see also Trask v. Franco , 446 F.3d 1036, 1045-1046 (10th Cir. 2006) (holding that a § 1983 plaintiff must allege that each government official, through the official's own individual actions, has personally violated the Constitution).
The Due Process Clause of the Fourteenth Amendment prohibits the state from depriving any person "of life, liberty, or property, without due process of law." U.S. Const. amend. XIV, § 1. "Procedural due process ensures the state will not deprive a party of property without engaging fair procedures to reach a decision, while substantive due process ensures the state will not deprive a party of property for an arbitrary reason regardless of the procedures used to reach that decision." Hyde Park Co. v. Santa Fe City Council , 226 F.3d 1207, 1210 (10th Cir. 2000). "The essence of procedural due process is the provision to the affected party of some kind of notice and ... some kind of hearing." Moore v. Bd. of Cty. Comm'rs , 507 F.3d 1257, 1259 (10th Cir. 2007) (internal quotation marks omitted). "[T]o prevail on either a procedural or substantive due process claim, a plaintiff must first establish that a defendant's actions deprived plaintiff of a protectible property interest." Hyde Park Co. v. Santa Fe City Council, 226 F.3d 1207, 1210 (10th Cir. 2000) ; see also Steffey v. Orman, 461 F.3d 1218, 1221 (10th Cir.2006) ("A due process claim under the Fourteenth Amendment can only be maintained where there exists a constitutionally cognizable liberty or property interest with which the state has interfered."). In the context of a procedural due process claim, it is only after the plaintiff first demonstrates the existence and deprivation of a protected property interest that the plaintiff is constitutionally entitled to an appropriate level of process. See Hennigh v. City of Shawnee, 155 F.3d 1249, 1253 (10th Cir.1998).
The Supreme Court has held that because " § 1983 claims are best characterized as personal injury actions ... the 3-year statute of limitations governing actions ‘for an injury to the person or reputation of any person’ " applies to such claims brought in New Mexico. Wilson v. Garcia , 471 U.S. 261, 280, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985) (quoting N.M.S.A. § 37-1-8 ); see also Mondragon v. Thompson , 519 F.3d 1078, 1081 (10th Cir. 2008) ("The statute of limitations for § 1983 claims in New Mexico is three years."). Federal law, not state law, controls the issue of when a federal cause of action accrues. Industrial Constructors v. Bureau of Reclamation , 15 F.3d 963, 968-69 (10th Cir. 1994) (citing Baker v. Board of Regents of the State of Kansas , 991 F.2d 628, 632 (10th Cir. 1993) ; Newcomb v. Ingle , 827 F.2d 675, 678 (10th Cir. 1987) ). Federal law governing accrual of causes of action, "conform[s] in general to common law tort principles." Wallace v. Kato , 549 U.S. 384, 388, 127 S.Ct. 1091, 166 L.Ed.2d 973 (2007). And "[u]nder those principles, it is the standard rule that accrual occurs when the plaintiff has a complete and present cause of action, that is when the plaintiff can file suit and obtain relief." Id. ; see also Smith v. City of Enid , 149 F.3d 1151, 1154 (10th Cir. 1998) (quoting Baker, 991 F.2d at 632 ) ("A civil rights action accrues when the plaintiff knows or has reason to know of the injury which is the basis of the action."); Fratus v. DeLand , 49 F.3d 673, 675 (10th Cir. 1995) (cause of action accrues when "facts that would support a cause of action are or should be apparent") (quoting Blumberg v. HCA Management Co. , 848 F.2d 642, 645 (5th Cir. 1988) ). A plaintiff need not know the full extent of his injuries before the statute of limitations begins to run. Industrial Constructors , 15 F.3d at 969 (citing Gustavson v. United States , 655 F.2d 1034, 1036 (10th Cir. 1981) ; Robbins v. United States , 624 F.2d 971, 973 (10th Cir. 1980) ).
The holding in Wilson was later superseded by statute when Congress enacted 28 U.S.C. § 1658, which stated that "a civil action arising under an Act of Congress enacted after the date of the enactment of this action may not be commenced later than 4 years after the cause of action accrues." See Jones v. R.R. Donnelley & Sons Co. , 541 U.S. 369, 377-82, 124 S.Ct. 1836, 158 L.Ed.2d 645 (2004). However, "§ 1658 only applies to claims arising under statutes enacted after December 1, 1990." Id. at 380, 124 S.Ct. 1836. Further, the supreme Court has explained that a cause of action "is governed by § 1658's 4-year statute of limitations[ ] if the plaintiff's claim against the defendant was made possible by a post-1990 enactment." Id. Plaintiff brought this lawsuit under 42 U.S.C. § 1983, and his due process claim arises under the Fourteenth Amendment to the United States Constitution, rather than from any federal statutes enacted or amended after 1990. Therefore, the three-year statute of limitations prescribed by N.M.S.A. § 37-1-8 applies to his claims.
"Although a statute of limitations bar is an affirmative defense, it may be resolved on a Rule 12(b)(6) motion to dismiss ‘when the dates given in the complaint make clear that the right sued upon has been extinguished.’ " Torrez v. Eley , 378 F. App'x 770, 772 (10th Cir. 2010) (quoting Aldrich v. McCulloch Props., Inc. , 627 F.2d 1036, 1041 n. 4 (10th Cir. 1980) ); Accord Lee v. Rocky Mountain UFCW Unions & Emp's Trust Pension Plan , 13 F.3d 405, at *1 (10th Cir. 1993) (unpublished disposition) ("Because the critical dates appeared plainly on the face of [plaintiff's] complaint, we conclude that the statute of limitations defense was properly raised and resolved in the Rule 12(b) context."). When a party has asserted a statute of limitations issue in a Rule 12(b)(6) motion, a court accepts all well-pled factual allegations in the complaint as true and views them in the light most favorable to the plaintiff to determine whether the statute of limitations has run. See Sunrise Valley, LLC v. Kempthorne , 528 F.3d 1251, 1254 (10th Cir. 2008).
As an initial matter, Plaintiff does not clearly articulate what notice or what hearing the City should have provided beyond that which he received. "As to procedural due process, as long as the City's requirements are reasonable and give the aggrieved party adequate notice and an opportunity to meaningfully participate, they are not unconstitutional." Santana v. City of Tulsa , 359 F.3d 1241, 1244 (10th Cir. 2004). Further, "[a] party cannot create a due process claim by ignoring established procedures." Id. The Court, however, need not address the existence and deprivation of a protected property interest or whether Plaintiff was constitutionally entitled and received an appropriate level of process because Plaintiff's due process claim is time barred.
Here, the dates Plaintiff provided in the Complaint make clear he was aware of the facts giving rise to his cause of action by August 25, 2014, when his sign was removed. Plaintiff's Complaint further evidences that Plaintiff was aware on July 11, 2014, that Convenience Retailers, the owners of Lot B-2-A, had determined that his sign was encroaching on their property and had been installed without their knowledge or approval, and that they wanted the sign removed within 15 days. Doc. 1 at 7, Doc. 1-1 at 5. On July 16, 2014, Plaintiff was aware that Defendant Brown, on behalf of the City of Albuquerque, was investigating whether Plaintiff had permission to locate his sign on Lot B-2-A. Doc. 1 at 7. On July 31, 2014, Plaintiff should have been aware that the documents from 1994 he provided to Defendant Brown, which Plaintiff claimed gave him permission to erect his sign on Lot B-2-A, were unavailing, because Defendant Williams had deemed his sign to be an illegal off-premise sign. Id. at 8. On July 31, 2014, Plaintiff was aware that Defendant Brown sent a Notice of Violation to "both propert[ies] at 1600 Eubank NE for Sign Violation" that indicated Plaintiff's sign had to be permitted or removed within fourteen days. Id. at 8, Doc. 1-1 at 8. Plaintiff was aware that Convenience Retailers had been granted an extension to comply with the July 31, 2014, Notice of Violation. Doc. 1 at 8. By August 20, 2014, despite his belief that he had brought his sign into compliance, Plaintiff was aware that the City was not responding to his requests for a letter of compliance and to notify the owners of Lot B-2-A that his sign should not be removed. Id. at 9. By August 20, 2014, Plaintiff should have been aware that he had elected not to obtain a permit from the City for his sign and had not received permission from Convenience Retailers to erect his business sign. On August 25, 2014, Plaintiff was aware that his sign had been physically removed. Id. Thus, the facts in Plaintiff's Complaint make clear that Plaintiff knew or should have known of his alleged due process cause of action by no later than August 25, 2014, rendering his April 2, 2019, Complaint well outside the three-year statute of limitations period and therefore untimely.
In an email to Defendant Brown, attached to Plaintiff's Complaint as Exhibit I, Plaintiff states that "after removing the scissors from the sign," his sign was in compliance. Doc. 1-1 at 26.
See fn. 10, supra.
Additionally, the Complaint makes clear that Plaintiff initiated multiple legal actions based on the removal of his sign, the first of which was filed in September 2014 just weeks after the sign was removed, thereby demonstrating he knew the existence and cause of his injury at that time. Doc. 1 at 10, 19-21. Although Plaintiff states that it was not until mid-2017 that he was able to "conclude events that [he brings] forward in this complaint" (Doc. 1 at 10), "[a] plaintiff need not know the full extent of his injuries before the statute of limitations begins to run." Industrial Constructors , 15 F.3d at 969. Finally, in 2017, Plaintiff was still within the three-year statute of limitations. He offers no explanation why he then waited another two years, until April 2019, to file his Complaint here. As such, Plaintiff has failed to present any equitable grounds for tolling the statute of limitations. See Barnes v. United States , 776 F.3d 1134, 1150 (10th Cir. 2015) (explaining that a litigant seeking equitable tolling generally bears the burden of establishing two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstances stood in his way of filing suit) (citations omitted)).
For all of the foregoing reasons, the Court finds that Plaintiff's due process claim is time barred. The Court, therefore, recommends that Plaintiff's due process claim be dismissed with prejudice.
C. Plaintiff's Complaint Fails to State a Constitutional Violation Against the Defendants Related to Falsifying Public Records
In support of his "falsifying public documents" claim, Plaintiff argues, without more, that the Notice of Violation relied upon by Convenience Retailers to successfully win a summary judgment in state court case contained bold instructions to "permit or remove," and that the same Notice of Violation he obtained through an IPRA request did not contain the instructions to "permit or remove." Doc. 1 at 13.
Defendants argue in their Motion to Dismiss that it cannot be ascertained what is being claimed either factually or legally, and that the import of the omission from the IPRA requested document is entirely unclear. Doc. 5 at 3. Defendants contend that there is no constitutional violation contained in Plaintiff's allegations. Id. at 7.
In his Response, Plaintiff states that the words "permit or remove" were removed from the IPRA requested document to hide the fact that Convenience Retailers was provided with the ability to remove his sign "under cover of law." Doc. 7 at 4.
The Court finds that Plaintiff's Complaint fails to articulate a constitutional violation or demonstrate how the alleged falsifying of public records deprived him of any rights, privileges, or immunities secured by the Constitution. And the Court need not speculate about how the removal of the "permit or remove" language could give rise to a constitutional violation because "the burden rests on the plaintiffs to provide fair notice of the grounds for the claims made against each of the defendants." Robbins , 519 F.3d at 1250. Here, Plaintiff states only that he "believe[s]" that public records were falsified by the "City Code Enforcement Department" to hide "misdeeds" (Doc. 1 at 13), but makes no mention of which, if any, of the Defendants might be individually liable for deprivations of his constitutional rights as it relates to the IPRA requested information. Doc. 1 at 13. This is insufficient. "[W]ith no distinction as to what acts are attributable to whom, it is impossible for ... [Defendants] to ascertain what particular unconstitutional acts they are alleged to have committed." Robbins , 519 F.3d at 1250. The Court therefore finds that Plaintiff has failed to state a claim upon which relief can be granted against Defendants related to the falsifying of public records.
Plaintiff correctly states in his Response that falsifying public documents is a criminal offense. Doc. 7 at 4. See NMSA 1978, § 30-26-1 (tampering with public records is a criminal offense and whoever commits tampering with public records is guilty of a fourth degree felony).
The Court further finds that, even if Plaintiff could construct a constitutional violation by Defendants related to the alleged state law criminal offense of tampering with public records, amending the Complaint would be futile because any cause of action related to the tampered Notice of Violation would be time barred. "A proposed amendment is futile if the complaint, as amended, would be subject to dismissal." Anderson v. Merrill Lynch Pierce Fenner & Smith, Inc., 521 F.3d 1278, 1288 (10th Cir. 2008) ; see also Gee v. Pacheco , 627 F.3d 1178, 1195 (10th Cir. 2010) (holding that the district court properly dismissed without an opportunity to amend the plaintiff's § 1983 claims that the statute of limitations barred, because "amending those claims would be futile"). Here, as previously stated, the dates Plaintiff provided in the Complaint make clear he was aware of the facts giving rise to his cause of action by August 25, 2014, and that by mid-2017 he was able to "conclude events that [he brings] forward in this complaint." Doc. 1 at 10. Thus, even though Plaintiff may not have known the full extent of his injuries in August 2014, the statute of limitations had nonetheless begun to run. Industrial Constructors , 15 F.3d at 969.
For the foregoing reasons, the Court finds that Plaintiff's Complaint has failed to state a claim upon which relief can be granted against the Defendants related to falsifying public documents. The Court further finds that granting Plaintiff leave to amend the Complaint would be futile because Plaintiff's claim would be time barred. The Court, therefore, recommends that Plaintiff's falsifying public documents claim be dismissed with prejudice.
D. Plaintiff's Complaint Fails to State a Constitutional Violation Against the Defendants Related to Conspiracy to Deceive, Mislead and Defraud
In support of his conspiracy to deceive, mislead and defraud claim, Plaintiff argues that "City of Albuquerque employees of the Code Enforcement Department and Linda Garcia and possibly others from My Good Market conspired to facilitate the sale of private commercial property." Doc. 1 at 14. Plaintiff asserts that because he was not willing to give his sign away, City Code Enforcement sent a Notice of Violation that provided justification for Convenience Retailers to remove his sign under color of law. Id.
Defendants argue in their Motion to Dismiss that it is not clear against whom Plaintiff intended to bring this claim, that the import of the allegation is not clear, that the allegation is wholly conclusory, and that the claim is time barred. Doc. 5 at 3, 7. Defendants contend that Plaintiff's Complaint fails to state a constitutional violation against them. Id. at 3, 7.
Plaintiff's Response is silent as to this claim.
In order to state a claim for conspiracy under § 1983, a plaintiff must allege specific facts showing agreement and concerted action among defendants. "Conclusory allegations of conspiracy are insufficient to state a valid claim." Durre v. Dempsey , 869 F.2d 543, 545 (10th Cir. 1989). There must be sufficient evidence of a conspiracy to prevent a factfinder from "engag[ing] in sheer speculation and conjecture." Six v. Henry , 42 F.3d 582, 585 (10th Cir. 1994). Thus, a plaintiff fails to state a claim for conspiracy absent specific facts showing a "meeting of the minds" among the alleged co-conspirators. See Hunt v. Bennett , 17 F.3d 1263, 1268 (10th Cir. 1994) ; see also Thompson v. City of Lawrence , 58 F.3d 1511, 1517 (10th Cir. 1995) (explaining that to sustain a conspiracy claim a plaintiff must adequately plead facts showing that: (1) a conspiracy existed, and (2) an actual deprivation of rights occurred). A plaintiff must sufficiently plead both elements, for "pleading and proof of one without the other will be insufficient." Snell v. Tunnell , 920 F.2d 673, 701 (10th Cir. 1990). Further, courts require greater detail in pleading conspiracy claims in order to give defendants proper notice of the claims they face. See, e.g., Twombly , 550 U.S. at 564, n. 10, 127 S.Ct. 1955.
Plaintiff's Complaint does not name Linda Garcia as a Defendant; however, he identifies her as a co-conspirator in his cause of action. When a plaintiff seeks to prove state action of a private actor, for purposes of liability under § 1983, based on a conspiracy theory, a requirement of the joint action charge is that both public and private actors share a common, unconstitutional goal, and the pleadings must specifically present facts tending to show agreement and concerted action. Fernandez v. Mora-San Miguel Elec. Co-op., Inc. , 462 F.3d 1244, 1252 (10th Cir. 2006) (citing Sigmon v. CommunityCare HMO, Inc. , 234 F.3d 1121, 1126 (10th Cir. 2000) ).
Construing Plaintiff's assertions liberally, the Court finds his allegations of conspiratorial conduct are conclusory. In his Complaint, Plaintiff concludes, without more, that the "Code Enforcement Department" and Linda Garcia, and possibly others from Convenience Retailers d/b/a My Good Market, conspired against him to facilitate the sale of Lot B-2-A because he was "not willing to give [his] sign away." Doc. 1 at 14. Durre , 869 F.2d at 545. Plaintiff claims that "City Code Enforcement sent out a Notice of Violation to provide justification for My Goods Market to remove my sign under the color of the law." Doc. 1 at 14. Plaintiff states that, even after the sign was brought into compliance, the City granted an extension of the Notice of Violation that gave Convenience Retailers "the right to remove my sign under the cover of law." Id. , citing exhibits. Plaintiff further refers to "emails" exchanged with City officials, including Defendants Brennan, Brown and then-Mayor Berry, a complaint filed with the New Mexico Attorney General's Office, and contact (i.e., emails, meeting) with the City of Albuquerque's Office of Inspector General, about "misdeeds by the employees of the City of Albuquerque Code Enforcement Division." Id. , at 14-16. Plaintiff finally refers to a letter received from the "Legal Department" and another "almost identical" letter received a few days later from the "New [sic] Inspector General," that apparently declined his request for compensation. Id. at 16. Having received an unsatisfactory response, Plaintiff concludes in his Complaint that the "only assumption I can make is that Mr. Bramlett and Mr. Dubois collaborated" in declining his request for relief. Id. , at 16.
The Court concludes that Plaintiff's claims are entirely conclusory with respect to a conspiracy to deceive, mislead and defraud. Even assuming the veracity of Plaintiff's allegations, the Court finds they cannot plausibly entitle Plaintiff to relief. Plaintiff "assumes" that Defendants Bramlett and Dubois (and possibly other Defendants) acted in concert, yet there is absolutely no support for such a claim. Plaintiff conjectures that non-specific "City of Albuquerque employees of the Code Enforcement Department" conspired with the owner of Lot B-2-A, "and possibly others... to facilitate the sale of private commercial property", id. at 14, but fails to set forth averments which might plausibly establish such concerted action. Therefore, the Court finds that Plaintiff's allegation in Court III is plainly insufficient to state a claim under § 1983 against the Defendants related to conspiracy to deceive, mislead and defraud.
The Court further finds that amending the Complaint would be futile because Plaintiff's Complaint makes clear that the alleged conspiracy accrued when the Notice of Violation was sent to Plaintiff on July 31, 2014, and the sign was removed on August 25, 2014. Thus, the conspiracy claim is time barred. Doc. 1 at 14. "A proposed amendment is futile if the complaint, as amended, would be subject to dismissal." Anderson, 521 F.3d at 1288 ; Gee , 627 F.3d at 1195 ; see also Robinson v. Maruffi , 895 F.2d 649, 654-55 (10th Cir. 1990) (holding that what matters for statute of limitations purposes is the date on which the conspiracy claim accrued, not the date the defendants allegedly commenced their conspiracy).
For the foregoing reasons, the Court finds that Plaintiff's Complaint has failed to state a claim upon which relief can be granted against the Defendants related to conspiracy to deceive, mislead and defraud. The Court further finds that granting Plaintiff leave to amend the Complaint would be futile because Plaintiff's claim would be time barred. The Court, therefore, recommends that Plaintiff's conspiracy to deceive, mislead and defraud claim be dismissed with prejudice.
E. Plaintiff's Complaint Fails to State a Constitutional Violation Related To Abuse of Power of a Public Official
Plaintiff did not discuss the facts related to his abuse of power claim in the "Nature of the Case" section of his Complaint. Instead, when arguing his claim for abuse of power, Plaintiff presents the following facts related to this claim. After Plaintiff's sign was removed and his tenants were left without advertising, Plaintiff's tenants asked to meet with a code enforcement official to work something out. Doc. 1 at 17. Code enforcement personnel refused to meet with Plaintiff's tenants and began a "reign of harassment and threats" against them. Id. Plaintiff's tenants were issued notices of violation from the City that their neighbors were not subject to, and after eight months of being constantly harassed by Defendant Williams and Rudy Marquez, the new owner of Lot B-2-A, Plaintiff's tenants gave Plaintiff notice on May 5, 2015, that due to issues with the lack of proper signage, they were moving to a new location across the street. Id. at 17-18, Doc. 1-1 at 39. Plaintiff's tenants subsequently filed a successful breach of contract claim against him. Doc. 1 at 18.
Defendants argue in their Motion to Dismiss that Plaintiff's alleged claim "does not concern any known [constitutional] cause of action, nor these Defendants, but again concerns events from 2014 as to which the statute of limitations bars any Section 1983 claim." Doc. 5 at 4, 8.
Plaintiff's Response is silent as to this issue.
Construing Plaintiff's assertions liberally, the Court finds that his allegations of abuse of power by Defendants against Plaintiff's tenants are conclusory, but more importantly fail to allege that any of the Defendants' actions or inactions violated Plaintiff's constitutional or civil rights. It is a well-settled principle that a § 1983 claim must be based upon the violation of plaintiff's personal rights, and not the rights of someone else. Dohaish v. Tooley, 670 F.2d 934, 936 (10th Cir. 1982) ("[T]he § 1983 civil rights action is a personal suit. It does not accrue to a relative, even the father of the deceased."); see also Coon v. Ledbetter, 780 F.2d 1158, 1160–61 (5th Cir.1986) (explaining that plaintiffs, like all persons who claim a deprivation of constitutional rights, were required to prove some violation of their personal rights); compare Trujillo v. Board of County Commissioners, 768 F.2d 1186, 1187 (10th Cir. 1985) (distinguishing that plaintiffs clearly alleged an injury to their own personal constitutional rights that did not derive from someone else's personal rights). Here, Plaintiff has failed to demonstrate how the financial damages he suffered as a result of the alleged abuse of power by Defendants against Plaintiff's tenants gives rise to any deprivation of a constitutional right possessed by Plaintiff individually. See generally Archuleta v. McShan , 897 F.2d 495, 497 (10th Cir. 1990) (holding that child did not have liberty interest under due process clause of Fourteenth Amendment to be free of emotional trauma suffered as result of observing allegedly excessive police force which was directed entirely at his father). Nor does Plaintiff identify any "specific actions taken by particular defendants" against him. As such, Plaintiff's Complaint does not make out a viable claim under § 1983. Pahls v. Thomas , 718 F.3d 1210, 1225-26 (10th Cir. 2013).
The standard for judging a substantive due process claim is whether the challenged government action would "shock the conscience of federal judges." Uhlrig v. Harder , 64 F.3d 567, 573 (10th Cir. 1995) (quoting Collins v. City of Harker Heights , 503 U.S. 115, 126, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992) ); see also County of Sacramento v. Lewis , 523 U.S. 833, 834, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998) ; Tonkovich v. Kansas Bd. of Regents , 159 F.3d 504, 528-29 (10th Cir. 1998). To satisfy this standard, a plaintiff must do more than show that the government actor intentionally or recklessly caused injury to the plaintiff by abusing or misusing government power. Livsey v. Salt Lake County , 275 F.3d 952, 957-58 (10th Cir. 2001). Instead, a plaintiff must demonstrate a degree and a magnitude of potential or actual harm that is truly conscience shocking. Id.
The Court also finds that even if Plaintiff could construct a constitutional violation of his personal rights based on Defendants' alleged abuse of power against Plaintiff's tenants, it would be futile to give Plaintiff an opportunity to amend his Complaint because the pertinent statute of limitations bars his § 1983 claims. Anderson, 521 F.3d at 1288 ; Gee, 627 F.3d at 1195. Here, Plaintiff's Complaint makes clear that Plaintiff knew or should have known the existence and cause of injury related to his abuse of power of a public official claim when Plaintiff's tenants put him on notice regarding their concerns over the lack of proper signage and the challenge of dealing with the city zoning staff over the legality of a sign, and when Plaintiff's tenants informed him they were moving to a new location "due to issues with the lack of proper signage." The Court, therefore, finds that the three-year statute of limitations bars Plaintiff's § 1983 claims.
Attached to Plaintiff's Complaint as Exhibit N is a February 1, 2015, letter from Plaintiff's tenants to Plaintiff regarding their concerns over the lack of proper signage, about being "harassed" by the new property owners about signage, and about dealing with Defendant Williams and the staff from the city zoning over the legality of a sign. Doc. 1-1 at 36. Attached to Plaintiff's Complaint as Exhibit N-1 and N-2 is a March 3, 2015, email from Plaintiff's tenants to Plaintiff regarding their concerns over the lack of proper signage. Id. at 37. Attached to Plaintiff's Complaint at Exhibit N-3 is a May 5, 2015, letter from Plaintiff's tenants to Plaintiff notifying Plaintiff that they had chosen to move to a new location due to issues with the lack of proper signage. Id. at 39.
For the foregoing reasons, the Court finds that Plaintiff's Complaint has failed to state a claim upon which relief can be granted against Defendants related to abuse of power by a public official. The Court further finds that granting Plaintiff leave to amend the Complaint would be futile because Plaintiff's claim would be time barred. The Court, therefore, recommends that Plaintiff's abuse of power by a public official claim be dismissed with prejudice.
III. Recommendation
For all of the foregoing reasons, the Court finds that Defendants' Motion to Dismiss (Doc. 5) is well taken and recommends that it be GRANTED. The Court further recommends that Plaintiff's Motion for Hearing (Doc. 17) be DENIED . Finally, the Court recommends that Plaintiff's Complaint (Doc. 1) be DISMISSED WITH PREJUDICE .
See fn. 3, supra.