Ross et al v. Balderas et alMOTION TO DISMISS FOR FAILURE TO STATE A CLAIMD.N.M.December 15, 2016IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO ANDREW ROSS, and SUSAN GERARD, Plaintiffs, v. No. CIV 16-01121 JB/KK HECTOR BALDERAS, JR., et al. Defendants. CITY DEFENDANTS’ 12(b)(6) MOTION TO DISMISS PLAINTIFFS’ AMENDED COMPLAINT Defendants, City of Santa Fe Police Department Officers Judah Ben Montano, A. Arroyo, and E. Montijo (hereinafter referred to as “City Defendants”), through their attorneys Robles, Rael & Anaya, P.C. (Luis Robles and Jordon George), move to dismiss Plaintiff’s Amended Complaint (Doc. 8) for failure to state a claim on which relief can be granted, and in support thereof, state the following:1 INTRODUCTION The Amended Complaint asserts claims against City Defendants under 18 U.S.C. Section 1964(c) (“RICO”), and 42 U.S.C. Section 1983, in connection with a vast criminal conspiracy involving “almost the entirety of the Santa Fe Judicial District Court, the Santa Fe Magistrate 1 As allowed by D.N.M.LR-Civ. 7.5(a), City Defendants combined this Motion with the memorandum in support thereof. Moreover, as required by D.N.M.LR-Civ. 7.1(a), City Defendants attempted to settle this Motion before it was filed. Error! Main Document Only.Plaintiffs’ counsel did not concur with this Motion. Case 1:16-cv-01121-PJK-SMV Document 90 Filed 12/15/16 Page 1 of 17 2 Court, the Santa Fe Sheriff’s Department, and at the helm of the Criminal Enterprise, the Attorney General for the State of New Mexico.” See Amended Complaint (Doc. 8), Introduction at p. 2. The Criminal Enterprise, partially directed by local attorney Robert Richards, is allegedly “being run as a crime syndicate resembling the ‘Cosa Nostra’ as portrayed in the Godfather films, the Goodfellas movie, and more recently, the Sopranos HBO Series.” (Id. at ¶¶ 150, 153) (italics in original). Plaintiffs have allegedly found themselves in the crosshairs of the Criminal Enterprise as a result of a bitter landlord-tenant dispute with Mr. Richards’s client, Brenda Wall. (See, e.g., Doc. 8 at ¶¶ 42-46). However, Plaintiffs’ allegations against City Defendants are limited to only a few paragraphs in entire 452-paragraph Amended Complaint. Especially when considered in the context of the Amended Complaint as a whole, Plaintiffs’ outlandish and groundless claims against City Defendants are subject to complete dismissal on several fronts. First, Plaintiffs cannot pursue its RICO or Section 1983 claims against City Defendants in their official capacities because such claims are effectively against the City itself. To that end, the City cannot form the requisite mens rea to perform one of the predicate offenses required to support a RICO claim, and Plaintiffs fail to allege facts to support a Section 1983 municipal liability claim. Second, Plaintiffs’ vague, conclusory allegations against City Defendants in their individual capacities fail to state claims upon which relief may be granted, either under RICO or Section 1983. In particular, Plaintiffs fail to even allege a constitutional violation underlying their Section 1983 claims. Even assuming, arguendo, that the Amended Complaint properly states an underlying constitutional violation, Plaintiffs fail to support their Section 1983 claims against City Defendants with plausible, non-conclusory factual allegations. Plaintiffs’ RICO claims similarly fail, as the Amended Complaint omits any allegation implicating interstate or foreign commerce, Case 1:16-cv-01121-PJK-SMV Document 90 Filed 12/15/16 Page 2 of 17 3 and the allegations that do exist are insufficient to demonstrate a pattern of racketeering activity. Finally, City Defendants are entitled to qualified immunity on all of Plaintiffs’ claims. BACKGROUND Plaintiffs allege that Wall used the Santa Fe Police Department (“SFPD”) as an escort to demand entry into Plaintiffs’ home on at least ten occasions over the past year, and that Wall was able to do so by “making false allegations and/or bribing officers to assist her.” (Id. at ¶ 47). Plaintiffs allege that Richards directed Wall to use the SFPD-through Richards’ point man, Lieutenant Montano-“as a tool for harassment, to obstruct justice, and to extort or conspire to extort against Plaintiffs.” (Id. at ¶ 54). Plaintiffs further allege that Richards and Wall called on Attorney General Hector Balderas to have Lieutenant Montano “rattle the cages of [Plaintiffs] within their residence at 2990 in a way they will never forget.” (Id. at ¶ 72). Richards and Wall allegedly bribed Lieutenant Montano with “money, gifts, and/or sexual favors to incentivize illegal entries into Plaintiffs’ home by SFPD.” (Id.). On June 10, 2016, Plaintiffs allege that Wall showed up to their residence, unannounced, with four SFPD officers escorting her. (Doc. 8 at ¶ 73.) Plaintiffs go on to allege that: The officers demanded to enter Gerard’s property, and when Ross refused, they threatened the couple with arrest. Two of the officers, Defendants Arroyo and Montijo, then entered Gerard’s residence at 2990 UNAUTHORIZED, without a warrant, without exigent circumstances, and without any justification whatsoever. Gerard and Ross were half dressed when the officers entered, and the officers ordered the two to get dressed but otherwise wouldn't let Gerard and Ross move around inside their own home. Thus the officers held Gerard and Ross captive in their home for a period in excess of half an hour while threatening them with arrest and/or great bodily harm while searching the residence. The officers ordered them not to move, and not to get near Brenda Wall, when in fact, it was Wall who had assaulted Gerard. Case 1:16-cv-01121-PJK-SMV Document 90 Filed 12/15/16 Page 3 of 17 4 (Id.). As a result, Plaintiffs assert claims against City Defendants under 18 U.S.C. Section 1964(c) (“RICO”) and 42 U.S.C. Section 1983. (Id. at ¶¶ 314-320, ¶¶ 412-415), and seek compensatory damages in the amount of $1.776 million, in addition to punitive damages, costs and attorney’s fees (Id. at pp. 87-89). Beyond the purely legal conclusions contained in Counts I and II, the Amended Complaint is devoid of any further allegations made against City Defendants. LEGAL STANDARD FOR 12(b)(6) MOTIONS TO DISMISS Motions to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure test the “legal sufficiency of the allegations contained within the four corners of the complaint.” Jojola v. Chavez, 55 F.3d 488, 494 (10th Cir. 1995) (citing Doyle v. Oklahoma Bar Ass’n, 998 F.2d 159, 1566 (10th Cir. 1993)). The court’s objective in reviewing a motion to dismiss “is not to weigh 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.” Miller v. Glanz, 948 F.2d 1562, 1565 (10th Cir. 1991) (emphasis added). As a rule, when a court reviews a motion to dismiss, it must accept all well-pleaded factual allegations as true, view those allegations in the light most favorable to the non-moving party, and draw all reasonable inferences in the plaintiff’s favor. Moore v. Guthrie, 438 F.3d 1036, 1039 (10th Cir. 2006). However, this mandate applies only to a plaintiff’s well-pleaded factual contentions. A court is under no mandate to accept a plaintiff’s conclusory allegations. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). Nor is it required to “accept as true a legal conclusion couched as a factual allegation.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007) (internal quotations omitted). Although “legal conclusions can provide the framework of a Case 1:16-cv-01121-PJK-SMV Document 90 Filed 12/15/16 Page 4 of 17 5 complaint, they must be supported by factual allegations.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). Moreover, to survive a motion for dismissal under Rule 12(b)(6), a complaint must contain sufficient factual allegations to show that the plaintiff has a plausible, not just possible, claim for relief. Id. Determining whether a complaint states a plausible, as opposed to merely possible, claim for relief, is “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. “But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged--but it has not ‘show[n]’-‘that the pleader is entitled to relief.’” Id. (quoting Fed. R. Civ. P. 8(a)(2)). LEGAL ARGUMENT I. PLAINTIFFS’ CLAIMS AGAINST CITY DEFENDANTS IN THEIR OFFICIAL CAPACITIES FAIL TO STATE A CLAIM UPON WHICH RELEIF CAN BE GRANTED. A. Plaintiffs’ RICO Claims against City Defendants in Their Official Capacities Must be Dismissed. As a preliminary matter, Plaintiffs’ claims against City Defendants in their official capacities fail as a matter of law. When a governmental official is sued in his official and individual capacity for acts performed in each capacity, those acts are “treated as the transactions of two different legal personages.” Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 543 n. 6 (1986) (internal quotation marks omitted). Thus, a person sued in his official capacity has no stake, as an individual, in the outcome of the litigation. Id. at 543-44. Personal or individual capacity suits “seek to impose personal liability upon a government official for actions he takes under color of state law,” while an official capacity suit is “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) Case 1:16-cv-01121-PJK-SMV Document 90 Filed 12/15/16 Page 5 of 17 6 (internal quotation marks omitted); Monell v. Dept. of Social Services, 436 U.S. 658, 690 n. 55 (1978) (same). “As long as the government entity receives notice and an opportunity to respond, an official-capacity suit is, in all respects other than name, to be treated as a suit against the entity,” and not as a suit against the official personally, “for the real party in interest is the entity.” Kentucky, 473 U.S. at 166. Based on the foregoing, it is clear that Plaintiffs’ RICO claims against Lieutenant Montano, Officer Arroyo and Officer Montijo in their official capacities are in fact RICO claims against the City of Santa Fe. As a matter of law, however, Plaintiffs cannot pursue RICO claims against the City because the City cannot form the requisite mens rea to perform one of the predicate offenses set forth in 18 U.S.C. § 1962. See, e.g., Massey v. City of Oklahoma City, 643 F.Supp. 81, 84-85 (W.D. Okla 1986). Moreover, the City is also immune from suit for alleged RICO violations because municipalities are “immune from actions for treble damages under 18 U.S.C. § 1964(c) as a matter of public policy.” Id. at 85 (citation omitted).2 For the foregoing reasons, Plaintiffs’ RICO claims against Lieutenant Montano, Officer Arroyo and Officer Montijo in their official capacities must be dismissed. 2 See also All. v. Alt. Holistic Healing, LLC, 115CV00349REBCBS, 2016 WL 223815, at *5 (D. Colo. Jan. 19, 2016) (collecting cases and finding that “[e]very federal appellate court to consider the issue has held that government entities are not subject to RICO, either because they are incapable of forming a specific criminal intent and/or because exemplary damages are not available against municipal corporations . . . [and] [l]ikewise, federal district courts which have confronted this issue unanimously have refused to impose RICO liability on government entities.”) (internal citations omitted). Case 1:16-cv-01121-PJK-SMV Document 90 Filed 12/15/16 Page 6 of 17 7 B. Plaintiffs’ Section 1983 Claims against City Defendants in Their Official Capacities Must also be Dismissed. Plaintiffs also bring their Section 1983 claims against Lieutenant Montano, Officer Arroyo and Officer Montijo in both their individual and official capacities. However, because local government entities can be sued directly for injunctive or declaratory relief and damages under Monell, there is no longer a need to bring official-capacity actions against local government officials. Kentucky v. Graham, 473 U.S. 159, 167 n. 14 (1985) (citations omitted). In other words, an official-capacity claim against a public official under Section 1983 merely represents “another way of pleading an action against an entity of which an official is an agent.” Cox v. Glanz, 800 F.3d 1231, 1254 (10th Cir. 2015) (citation omitted). Because vicarious liability is inapplicable to Section 1983 suits, “a plaintiff must plead that each Government-official defendant, through the official’s own individual actions, has violated the Constitution.” Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). Accordingly, Plaintiffs’ Section 1983 claims against Lieutenant Montano, Officer Arroyo and Officer Montijo in their official capacities must be dismissed. C. Plaintiffs Fail to State a Section 1983 Supervisory Liability Claim Upon Which Relief Can Be Granted. Even assuming the Amended Complaint makes out a colorable Section 1983 supervisor/municipal liability claim, which it does not, any such claim easily fails as a matter of law. In a Section 1983 action, “supervisory liability allows a plaintiff to impose liability upon a defendant-supervisor who creates, promulgates, or implements a policy which subjects, or causes to be subjected that plaintiff to the deprivation of any rights secured by the Constitution.” Cox v. Glanz, 800 F.3d 1231, 1248 (10th Cir. 2015) (internal citations, quotation marks and alterations omitted). “[T]hus, in an official-capacity suit the entity’s ‘policy or custom’ must have played a Case 1:16-cv-01121-PJK-SMV Document 90 Filed 12/15/16 Page 7 of 17 8 part in the violation of federal law.” Kentucky v. Graham, 473 U.S. 159, 166 (1985) (citation omitted). The only supervisory liability claim that can be conceivably gleaned from the Amended Complaint is directed towards Lieutenant Montano. In paragraph 413 of the Amended Complaint, Plaintiffs allege that “Montano ordered Arroyo and Montijo to deprive Plaintiffs Ross and Gerard’s civil rights pursuant to [Section] 1983 under color of law.” (Doc. 8, ¶ 413.) However, Plaintiffs fail to identify a single policy or custom that was the moving force behind an alleged constitutional injury. In fact, the words “policy,” “custom,” or any analogous words do not appear once in the body of Plaintiffs’ 89-page Amended Complaint, even in conclusory fashion. Further, Plaintiffs fail to specifically allege a constitutional injury in the first place, and instead attempt to improperly proceed under Section 1983 as a stand-alone cause of action. See Trigalet v. City of Tulsa, 239 F.3d 1150 (10th Cir. 2007) (holding that a municipality cannot be held liable for the actions of its employees if those actions do not constitute a violation of a plaintiff’s constitutional rights). Thus, even to the extent Plaintiffs’ Section 1983 claim against Lieutenant Montano could be construed as a supervisory liability claim, which it should not be, any such claim fails as a matter of law and must be dismissed. II. PLAINTIFFS’ CLAIMS AGAINST CITY DEFENDANTS IN THEIR INDIVIDUAL CAPACITIES FAIL TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED. A. Plaintiffs Fail to Specifically State a Constitutional Violation Underlying their Section 1983 Causes of Action. Section 1983 “serve[s] only to ensure that an individual ha[s] a cause of action for violations of the Constitution.” Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 617 (1979). Thus, “Section 1983 is not itself a source of substantive rights, but merely provides a Case 1:16-cv-01121-PJK-SMV Document 90 Filed 12/15/16 Page 8 of 17 9 method for vindicating federal rights elsewhere conferred.” Albright v. Oliver, 510 U.S. 266, 271 (1994) (citing Baker v. McCollan, 443 U.S. 137, 144, n. 3 (1979) (quotation marks omitted). “The first step in any such claim is to identify the specific constitutional right allegedly infringed.” Id. (citing Graham v. Connor, 490 U.S. 386, 394 (1989)). “Constitutional rights allegedly invaded, warranting an award of damages, must be specifically identified. Conclusory allegations will not suffice.” Wise v. Bravo, 666 F.2d 1328, 1333 (10th Cir. 1981). Here, Plaintiffs are unable to satisfy the even first step of their Section 1983 claims against City Defendants because they have entirely failed to identify any specific constitutional right allegedly infringed. In Count II of the Amended Complaint, Plaintiffs allege that Lieutenant Montano “conspired with Balderas to deprive Plaintiffs Ross and Gerard’s civil rights [sic] pursuant to [Section 1983] under color of law,” and that Lieutenant Montano “ordered” Officers Arroyo and Montijo to deprive Plaintiffs of their civil rights during the June 10, 2016 encounter. (Doc. 8, ¶¶ 412-13.) Plaintiffs allege that Officers Arroyo and Montijo then “deprived [Plaintiffs’] civil rights pursuant to [Section 1983] under color of law.” (Doc. 8, ¶¶ 414-15.) Plaintiffs do not specifically allege the violation of a constitutional or statutory federal right anywhere in their Amended Complaint. As alleged, Plaintiffs seek to use Section 1983 as a stand-alone cause of action and source of substantive rights, rather than as the procedural device for which it is intended. Plaintiffs Section 1983 claims against City Defendants thus fail as a matter of law and should be dismissed with prejudice. Case 1:16-cv-01121-PJK-SMV Document 90 Filed 12/15/16 Page 9 of 17 10 B. Plaintiffs’ Vague, Conclusory Allegations Against City Defendants in Their Individual Capacities Fail to State a Plausible Claim for Relief Under Section 1983. Even to the extent the Amended Complaint is construed to have properly stated an underlying constitutional violation, Plaintiffs fail to support their Section 1983 claims against Lieutenant Montano, Officer Arroyo and Officer Montijo with specific, non-conclusory factual allegations. The nature and specificity of the allegations required to state a plausible claim will vary based on context. Kansas Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1215 (10th Cir. 2011). “The Twombly standard may have greater bite” in the context of a Section 1983 claim against individual public officials, because such suits “typically include complex claims against multiple defendants.” Robbins, 519 F.3d at 1249. “[I]t is particularly important in such circumstances that the complaint 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, as distinguished from collective allegations against the state.” Id. at 1250. 1. Allegations against Lieutenant Montano. Besides the purely legal conclusions put forth in Count I (Doc. 8, ¶¶ 314-16), and Count II (Doc. 8, ¶¶ 412-13), paragraphs 54 and 72 contain the only arguably factual allegations against Lieutenant Montano in Plaintiffs’ entire 89-page, 452-paragraph Amended Complaint. Plaintiffs allege that Lieutenant Montano was the “point man” in the Santa Fe Police Department used by Defendants Richards and Wall “as a tool for harassment, to obstruct justice, and to extort or conspire to extort Plaintiffs.” (Doc. 8, ¶54.) Plaintiffs further allege that Lieutenant Montano acted as Attorney General Balderas’s “’Jeffe de Calle’-to rattle the cages of [Plaintiffs],” and that he was bribed by Wall and Richards “with money, gifts, and/or sexual favors as further motivation Case 1:16-cv-01121-PJK-SMV Document 90 Filed 12/15/16 Page 10 of 17 11 to facilitate Wall’s illegal, multiple entries with Santa Fe police’s multiple escorts onto Gerard’s 2990 residence.” (Doc. 8, ¶ 72.) Plaintiffs’ Section 1983 claim against Lieutenant Montano could only be based on a theory of municipal liability, as Plaintiffs claim that Lieutenant Montano merely “ordered” the deprivation of their rights, rather than alleging his personal participation in the alleged deprivation. However, as noted above, Plaintiffs fail to sufficiently plea a muncipal liability claim against Lieutenant Montano, and the Amended Complaint’s allegations against Lieutenant Montano fail to establish the violation of any constitutional right. Further, allegations that Lieutenant Montano is used “as a tool for harassment, to obstruct justice, and to extort or conspire to extort Plaintiffs” simply consist of formulaic recitations of the elements of a cause of action, which this Court need not consider in resolving this Motion. See, e.g., Hitch Enterprises, Inc. v. Cimarex Energy Co., 859 F. Supp. 2d 1249, 1261 (W.D. Okla. 2012) (“Allegations are not entitled to be assumed to be true when they merely restate the essential elements of a claim rather than provide specific facts to support those elements.”). Accordingly, Plaintiffs’ Section 1983 claim against Lieutenant Montano in his individual capacity should be dismissed with prejudice for failure to state a claim upon which relief can be granted. 2. Allegations against Officers Arroyo and Montijo. With regard to Officers Arroyo and Montijo, the Amended Complaint alleges that they entered Plaintiffs residence after threatening to arrest them, “without a warrant, without exigent circumstances, and without any justification whatsoever.” (Doc. 8, ¶ 73.) Plaintiffs further allege that the officers ordered them not to move, “while threatening them with arrest and/or great bodily harm while searching the residence.” Id. Case 1:16-cv-01121-PJK-SMV Document 90 Filed 12/15/16 Page 11 of 17 12 The only arguably factual allegations against Officers Arroyo and Montijo appear in paragraph 73 of the Amended Complaint. There, Plaintiffs attach an SFPD “Dispatch Report” regarding the June 10, 2016 incident as Exhibit 11 to the Amended Complaint. Yet, Plaintiffs do not even attempt to address the purported reason for the response as indicated in the Dispatch Report (i.e., as a “civil standby” response), or why the Dispatch Report blatantly contradicts their allegations of an unauthorized entry by Officer Arroyo and Montijo. Further, although Plaintiffs allege that four City police officers responded to their residence on June 10, 2016, demanding entry under the threat of arrest, Plaintiffs fail to identify which officer(s) actually demanded entry and/or threatened arrest. Along the same lines, Plaintiffs allege that Officers Arroyo and Montijo entered their house “UNAUTHORIZED,” yet fail to note whether they consented to the entry after being faced with the threat of arrest, or whether the officers entered forcefully. Similarly, Plaintiffs allege that Officers Arroyo and Montijo held Plaintiffs “captive in their home for a period in excess of half an hour while threatening them with arrest and/or great bodily harm. . . ,” and that the officers “ordered them not to move, and not get near Brenda Wall.” (Doc. 8, ¶ 73). Yet, Plaintiffs fail to identify which officer specifically threatened and/or ordered Plaintiffs not to move, or whether the purported “threat” was based on “arrest” or “great bodily harm.” And while Plaintiffs, almost in passing, make the claim that Officers Arroyo and Montijo were “searching the residence,” Plaintiffs do not even attempt to address the basis or scope of the alleged search, how the search was conducted, or what Plaintiffs believe City Defendants were searching for. Plaintiffs’ isolated, vague and conclusory allegations against City Defendants do nothing more than restate the elements of a claim (e.g., that Officers Arroyo and Montijo illegally entered Case 1:16-cv-01121-PJK-SMV Document 90 Filed 12/15/16 Page 12 of 17 13 Plaintiffs’ home). At best, the few allegations lodged against City Defendants in the Amended Complaint consist of “naked assertions devoid of further factual enhancement.” Ashcroft v. Iqbal, 129 S.Ct. at 1949 (internal alterations, citations, and quotations omitted). Such sparse, vague allegations fall woefully short of demonstrating that Plaintiffs have plausible, not just possible, claims for relief. B. Plaintiffs’ Vague, Conclusory Allegations Against City Defendants in Their Individual Capacities Fail to State a Plausible Claim for Relief Under RICO. Plaintiffs’ RICO claims against City Defendants in their individual capacities fail as a matter of law. Count I of the Amended Complaint seeks “Treble Damages for Conspiracy to Commit a Pattern of Racketeering Activity,” pursuant to RICO, 18 U.S.C. Section 1964(c). RICO creates a private right of action to “[a]ny person injured in his business or property” as a result of a defendant’s violation of 18 U.S.C. 1962. In turn, Section 1962 makes it unlawful to “(1) participate[] in conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity.” Bancoklahoma Mortgage Corp. v. Capital Title Co., Inc., 194 F.3d 1089, 1100 (10th Cir. 1999) (citations omitted). A “pattern” of racketeering requires at least two acts of “racketeering activity” within a ten-year period. 18 U.S.C. § 1961(5); Bacchus Industries, Inc. v. Arvin Industries, Inc., 939 F.2d 887, 891 (10th Cir. 1991). “Racketeering activity” is defined as any act “indictable” under certain enumerated federal criminal statutes, as well as certain acts “chargeable” under state law. 18 U.S.C. § 1961. Finally, all three subsections of Section 1962 require that the alleged racketeering activity implicate “interstate or foreign commerce.” 18 U.S.C. § 1962. Here, Plaintiffs omit any allegations against City Defendants that their acts implicated interstate or foreign commerce. Indeed, the entire 89-page, 452-paragraph Amended Complaint is bereft of any mention of the words “interstate,” “foreign” or “commerce” against any defendant. Case 1:16-cv-01121-PJK-SMV Document 90 Filed 12/15/16 Page 13 of 17 14 Thus, the allegations against City Defendants are insufficient to meet even the most basic statutory requirements to support RICO claims against City Defendants. Further, Plaintiffs’ allegations against City Defendants entirely fail to demonstrate a “pattern of racketeering activity.” Plaintiffs’ only allegations against Lieutenant Montano are that he was used “as a tool for harassment, to obstruct justice, and to extort or conspire to extort against Plaintiffs,” (Doc. 8 at ¶ 54); that the Attorney General arranged with Lieutenant Montano “to rattle the cages of” Plaintiffs, (Doc. 8 at ¶ 72); and that Richards and Wall allegedly bribed Lieutenant Montano with “money, gifts, and/or sexual favors to incentivize illegal entries into Plaintiffs’ home by SFPD” (Id.). These conclusory and otherwise vague assertions fail to properly allege any sort of discernable pattern of criminal activity against Lieutenant Montano. Further, the only allegations specifically lodged against Officers Arroyo and Montijo are contained in paragraph 73, which recounts a single incident that allegedly took place on June 10, 2016. Schemes that are isolated or carried out to accomplish one discrete goal or directed at specific individuals with no potential to extend to other persons or entities are not sufficient to establish a “pattern of racketeering activity.” See SIL-FLO, Inc. v. SFHC, Inc., 917 F.2d 1507, 1516 (10th Cir. 1990); Torwest DBC, Inc. v. Dick, et al., 810 F.2d 925, 929 (10th Cir. 1987). Accordingly, Plaintiffs’ RICO claims against City Defendants in their individual capacities fail to state a claim upon which relief can be granted and must be dismissed with prejudice. III. CITY DEFENDANTS ARE ENTITLED TO QUALIFIED IMMUNITY. City Defendants are also entitled to qualified immunity in this matter. “[Q]ualified immunity is an immunity from suit rather than a mere defense to liability.” Brown v. Montoya, 662 F.3d 1152, 1162 (10th Cir. 2011) (citing Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)). This Case 1:16-cv-01121-PJK-SMV Document 90 Filed 12/15/16 Page 14 of 17 15 doctrine recognizes that officials can act without fear of harassing litigation only if they can reasonably anticipate when their conduct may give rise to liability and only if unsupported lawsuits are quickly terminated. See Butz v. Economou, 438 U.S. 478, 507-508 (1978). In other words, qualified immunity ensures that officials do not have to endure the burdens of litigation unless they are aware that their conduct is unlawful. See Saucier v. Katz, 533 U.S. 194, 206 (2001). Therefore, “[a]fter a defendant asserts a qualified immunity defense, the burden shifts to the plaintiff.” Holland ex rel. Overdorff v. Harrington, 268 F.3d 1179, 1185 (10th Cir. 2001). In the face of a qualified immunity defense, the plaintiff must meet the following two-part burden: “the first inquiry must be whether a constitutional right would have been violated on the facts alleged; second, assuming the violation is established, the question whether the right was clearly established must be considered ….” Saucier, 533 U.S. at 200 (2001). Thus, the plaintiff must “demonstrate a substantial correspondence between the conduct in question and prior law allegedly establishing that the defendant’s actions were clearly prohibited.” Brammer-Hoelter v. Twin Peaks Charter Academy, 602 F.2d 1175, 1184 (10th Cir. 2010). Further, “[t]he plaintiff must make this demonstration on the facts alleged.” Id. at 1004 (internal citation and quotation marks omitted). The Saucier procedure is no longer mandatory, and courts may address either prong of the Saucier test first. Pearson v. Callahan, 555 U.S. 223, 236 (2009). If the plaintiff fails to satisfy either part of the heavy two-part burden, “the court must grant the defendant qualified immunity.” Gross v. Pirtle, 245 F.3d 1151, 1156 (10th Cir. 2001). “Although summary judgment provides the typical vehicle for asserting a qualified immunity defense,” it may also be reviewed in a motion to dismiss. Peterson v. Jensen, 371 F.3d 1199, 1201 (10th Cir. 2004) (citing Mitchell, 472 U.S. at 526). “[C]ourts should resolve the purely Case 1:16-cv-01121-PJK-SMV Document 90 Filed 12/15/16 Page 15 of 17 16 legal question,[] raised by a qualified immunity defense at the earliest possible stage in litigation.” Gross, 245 F.3d at 1155 (citing Siegert v. Gilley, 500 U.S. 226, 232 (1991)). “Unless the plaintiff’s allegations state a claim of violation of clearly established law, a defendant pleading qualified immunity is entitled to dismissal before the commencement of discovery.” Mitchell, 472 U.S. at 526. A court should apply the same standards when evaluating a Rule 12(b)(6) motion coupled with a claim of qualified immunity as it applies in evaluating any other Rule 12(b)(6) motion. See Shero v. City of Grove, Okla., 510 F.3d 1196, 1200 (10th Cir. 2007). As previously noted, Plaintiffs fail to allege a single constitutional or federal statutory right violated by City Defendants. Without actually alleging that a constitutional violation occurred, Plaintiffs logically cannot demonstrate that any individual City Defendant violated any constitutional right, much less a clearly established one. Even to the extent a constitutional violation is construed to have been pled, Plaintiffs’ allegations against City Defendants are sparse, conclusory and indiscernibly vague. As such, Plaintiffs’ allegations are hopelessly insufficient to demonstrate that City Defendants violated their clearly established constitutional rights. Accordingly, because Plaintiffs cannot even begin to meet their heavy two-part burden, City Defendants are entitled to qualified immunity and the claims against them must be dismissed with prejudice. CONCLUSION WHEREFORE, City Defendants respectfully request that this Court grant its Motion to Dismiss Plaintiffs’ Amended Complaint with prejudice, award City Defendants their attorney’s fees in bringing this Motion, and for any other relief this Court deems proper. Case 1:16-cv-01121-PJK-SMV Document 90 Filed 12/15/16 Page 16 of 17 17 Respectfully submitted, ROBLES, RAEL & ANAYA, P.C. By: /s/ Luis Robles Luis Robles Jordon George Attorneys for City Defendants 500 Marquette Ave., NW, Suite 700 Albuquerque, New Mexico 87102 (505) 242-2228 (505) 242-1106 (facsimile) I hereby certify that on this 16th day of December 2016, the foregoing was electronically served through the CM/ECF system to all counsel of record, including: Arash “Asher” Kashanian, Esq. Attorney for Plaintiffs 13501 Sunset Canyon Drive, NE Albuquerque, NM 87111 (631) 805-0027 (505) 212-0279 (facsimile) asherkashanian@gmail.com /s/ Luis Robles Luis Robles Case 1:16-cv-01121-PJK-SMV Document 90 Filed 12/15/16 Page 17 of 17
