IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
ELIAS GONZALES,
Plaintiff,
vs. CIV 03-1150 BB/WDS
THE CITY OF ALBUQUERQUE,
ROBIN BURGE and KEVIN FULLER,
City of Albuquerque Police Officers,
Defendants.
PLAINTIFF’S RESPONSE TO DEFENDANT
CITY OF ALBUQUERQUE’S 12(B)(6) MOTION TO DISMISS
PLAINTIFF’S SECOND MUNICIPAL LIABILITY CLAIM
In ruling on a Rule 12(b)(6) motion to dismiss a complaint, the court must
accept well pleaded allegations as true. Stidham v. Peace Officers Standards and Training, 265 F.3d 1144, 1149 (10th Cir. 2001). A court should only dismiss a complaint if it is convinced that no set of facts will support a claim. Id. Plaintiff’s duty is to give a “short and plain” statement of his claim. Fed. R. Civ. Pro. 8(b). The “notice” pleading standard requires only that a defendant be able to frame a response. See, e.g., Hamilton v. Allen-Bradley Co., 217 F.3d 1321 (11th Cir. 2000) (short and plain statement of claim showing entitlement to relief is all that is required; “detail is not the bedrock on which a proper complaint stands”); Yamaguchi v. Untied States Dep’t of Air Force, 109 F.3d 1475, 1481 (9th Cir. 1997) (federal courts’ liberal pleading rules require only that complaint sufficiently establish a basis for judgment against defendant); Atchinson v. District of Columbia, 73 F.3d 418, 421-22 (D.C. Cir. 1996) (complaint need not allege all that plaintiff must eventually prove).
Plaintiff’s complaint alleges the City of Albuquerque has an unconstitutional custom and that this custom was a moving force behind the deprivation of plaintiff’s civil rights. Plaintiff also alleged a failure to train. Such allegations are sufficient to survive a motion to dismiss. Plaintiff alleges that the Defendants seized plaintiff’s cash without probable cause and failed to afford him due process. Paragraph ten of plaintiff’s complaint states that defendants retained plaintiff’s cash by placing the cash in evidence. In Count IV of plaintiff’s complaint he alleges that “Defendant’s [sic] failed to afford plaintiff any due process”. Paragraph 27. Plaintiff alleged that City of Albuquerque Police Officers engage in a pattern of failing to follow state pre-deprivation procedures when cash is seized. Paragraph 34. Plaintiff alleges, in Paragraph 35, that “The City of Albuquerque practice of unreasonably seizing cash and ignoring due process guarantees is so prevalent that the City has a custom and practice of violating the law or a policy of ignoring training needs of officers”. Plaintiff alleged that the City’s custom and practice and failure to train officers displays deliberate indifference to the rights of citizens of Albuquerque. Paragraph 36. Plaintiff alleges the custom and practice was the moving force behind the deprivation of plaintiff’s rights. Paragraph 37.
Thus, plaintiff alleges the following:
1) a deprivation of property (money);
2) failure to provide due process;
3) a conscious decision to ignore state procedural law;
4) a custom and practice of “ignoring due process guarantees”;
5) deliberate indifference; and
6) causation.
A plaintiff must establish a protected property interest. Hyde Park Co. v. Santa Fe City Council, 226 F.3d 1207, 1210 (10th Cir. 2000). Property interests derive from state laws that secure benefits to individuals. Hennigh v. City of Shawnee, 155 F.3d 1249, 1253 (10th Cir. 1998).
Plaintiff has an obvious property interest in his money. Defendants have countered that they, in fact, returned plaintiff’s money. Thus, defendants argue that they deprived plaintiff of nothing. However, defendants deprived plaintiff of the use of his money. The loss of use of money is commonly measured as interest. State law affirms plaintiff’s property interest by requiring a deposit in an “interest bearing account”. In the context of the due process violation, the importance of the state statute requiring for the security of the money in an interest bearing account is that the state affirms plaintiff’s property interest in the use of his money.
In Fuentes v. Shevin, 407 U.S. 67, 84-85 (1972), the Untied States Supreme Court stated that it is “well settled that a temporary, nonfinal deprivation of property is nonetheless a ‘deprivation’ in the terms of the Fourteenth Amendment.” (citations omitted). In Fuentes, the Court struck down Florida and Pennsylvania statutes that allowed for pre-notification replevin of property. Eventhough one statutory scheme allowed for an aggrieved person to recover disputed property within three days, the Court ruled the replevin procedures violated principles of due process. As the Court stated there is a “high value, embedded in our constitution and political history, that we place on a person’s right to enjoy what is his, free of government interference.” Id. at 81.
When the state deprives a person of a property interest it must engage in fair procedures (referred to as procedural due process) and it may not deprive property for an arbitrary reason (referred to as substantive due process). Hyde Park, supra.
Notice and an opportunity for a hearing in a “meaningful time and manner” are the touchstones of procedural due process. Fuentes, supra at 80; U.S. v. 51 Pieces of Real Property Roswell, NM, 17 F. 3d 1306, 1314 (10th Cir. 1994). Only under very limited circumstances may the state postpone notice and the opportunity for a hearing. Id. The postponement of a hearing must be “necessary” and “just” pursuant to “a narrowly drawn statute”. Id.
Plaintiff alleged a lack of fair procedures. While the state need not follow its own procedures before depriving a person of a right, it must provide some notice and an opportunity for a hearing. While the defendants’ failure to follow state procedural laws does not ipso facto create a due process violation, the city must provide some notice and hearing. The notice and hearing that the state mandates appear adequate for due process purposes. However, the City ignored state procedural law and ignored the due process requirements of notice and hearing.
Under appropriate circumstances a law enforcement officers’ failure to comply with the requirements of [state law,] may support section 1983 claim on the violation of state law. Draper v. Coombs, 792 F.2d 915, 921 (9th Cir. 1986)(arrest of driver in Oregon in violation of Oregon statute creates a Section 1983 lawsuit); citing, Sanders v. Conine, 506 F. 2d 530 (10th Cir. 1974) (violation of Wyoming extradition statute creates Section 1983 cause of action).
Where the violation of state law causes the deprivation of rights protected by the Constitution and statutes of the United States, a cause of action is stated under 42 U.S.C. Sec. 1983. Wirth v. Surles, 562 F.2d 319, 322 (7th Cir. 1977). “Law enforcement officials [may not] simply ignore the clear mandates of state and federal . . . laws.” Id. at 323. When they do a Section 1983 claim lies.
A state tort procedure does not provide an adequate remedy when a municipality deprives property in a manner that is not “random and unauthorized”. The defendants’ violation of state law does not make their deprivation of plaintiff’s cash “random and unauthorized”, but it does show a conscious disregard of state law and supports plaintiff’s claim for punitive damages. An adequate post-deprivation remedy is only a defense if the defendants’ actions are “random and unauthorized”. Winters v. Board of County Commissioners, 4 F.3d 848, 857 (10th Cir. 1993); Alexandre v. Cortes, 140 F.3d 406, 411 (2nd Cir. 1998); citing , Butler v. Castro, 896 F.2d 689, 700-02 n.1 (2nd Cir. 1990). In Alexandre, the Second Circuit stated that a state tort remedy does not defeat a Section 1983 claim when the deprivation is the result of a town’s policy. Id; citing Sullivan v. Town of Salem, 805 F.2d 81, 86 (2nd Cir. 1986).
Plaintiff has alleged that defendants’ deprivation of plaintiff’s cash was authorized. Also, plaintiff alleged that the individual defendants acted pursuant to a custom and practice of the City of Albuquerque. Thus, plaintiff has stated a claim for deprivation of procedural due process despite the availability of a common law claim.
A municipality may be liable for a policy or custom that causes deprivation of constitutional rights. Bryan County of Brown, 520 U.S. 397, 403 (1997). An unconstitutional custom is one that may have no formal approval, but is so widespread that is has “the force of law”. Id. at 404; Canon v. City and County of Denver, 998 F. 2d 867, 877 (10th Cir. 1993). A municipality may be held liable for a “continued adherence to an approach” that fails to prevent tortuous conduct. Id. at 407.
In addition, a failure to train claim may support municipal liability based upon one violation of federal rights if plaintiff shows that the municipality “has failed to train it employees to handle recurring situations presenting an obvious potential for such a violation”. Id. at 409; citing, City of Canton v. Harris, 489 U.S. 378 (1989).
Plaintiff has alleged both a custom claim and a failure to train claim. Under the notice pleading requirements, there is no basis to dismiss plaintiff’s claims of municipal liability.
Respectfully submitted,
_____________________________
KENNEDY & OLIVER, P.C.
Joseph P. Kennedy
Shannon L. Oliver
1000 Second Street NW
Albuquerque, New Mexico 87102
I HEREBY CERTIFY that a true and correct
copy of the foregoing was mailed to opposing
counsel this 16th day of July, 2004.
___________________________________
Joseph P. Kennedy/Shannon L. Oliver
Ann Maggiore
Butt, Thornton & Baehr, P.C.
P.O. Box 3170
Albuquerque, New Mexico 87190-3170
Stephanie Griffin
Assistant City Attorney
P.O. Box 2248
Albuquerque, New Mexico 87103-2248