THIS MATTER comes before the Court on the Motion to Dismiss, filed November 22, 2013 (Doc. 9)(“MTD”). The Court held a hearing on July 24, 2014. The primary issues are: (i) whether a claim exists under 42 U.S.C. § 1983 for failure to properly investigate; (ii) whether Plaintiff Paul Griego has sufficiently alleged a claim for failure to supervise or train, where he makes a conclusory allegation that, on domestic-violence calls, Defendant Albuquerque (New Mexico) Police Department (“APD”) has a policy of making arrests— usually of men rather than woman — éven in the absence of probable cause; and (iii) whether Griego has properly alleged an equal-protection claim, where he makes a conclusory allegation that, on domestic-violence calls, APD systemically arrest men in circumstances in which they would not arrest women. As to the first issue, the Court will dismiss Griego’s failure-to-investigate claim with prejudice, because he has no independent constitutional or federal-statutory right to police investigation; he has only a right to be free from an arrest without probable cause — a right which can be vindicated through a false-arrest claim such as the one Griego alleges as his first claim. As to the second issue, Griego has not sufficiently pleaded the existence of a city-wide policy, practice, or custom. Griego must plead facts that give rise to a plausible inference that the policy exists, rather than baldly asserting its existence. The Court will thus dismiss Grie-go’s claim for failure to train or supervise, but it will do so without prejudice to him seeking leave to amend his Verified Complaint, filed September 24, 2013 (Doc. l)(“Complaint”), to rectify the pleading deficiencies and reassert the claim.
FACTUAL BACKGROUND
The Court accepts as true all facts alleged in the Complaint, as it must in ruling-on a motion to dismiss under rule 12(b)(6). See Smith v. United States,
Griego left the house with Sophia and went to a gas station to call the police; this call occurred at 1:31 p.m. the same day. See Complaint ¶ 13, at 5. He then returned to his own home with Sophia and called police again, informing them in more detail about the altercation. See Complaint ¶ 14, at 5. Roughly twenty-five minutes later, paramedics and APD officer George Garcia arrived at Griego’s residence. See Complaint ¶ 15, at 5. After the paramedics tended to Sophia — who had small red marks on her arm — and left, Garcia informed Griego that Petersen had also called police over the incident at her house. See Complaint ¶ 18, at 5. Garcia stated that, in a “two-call situation,” he could not take action until he first spoke to the other police officer at the other scene. Complaint ¶ 18, at 5. Garcia left soon afterward, around 3:05 p.m. See Complaint ¶ 18, at 5.
At 6:03 p.m., APD officers Stockton and Garza arrived at Griego’s home to ask him
At the substation, Stockton kept Griego handcuffed in the backseat of the cruiser for over an hour as he wrote his criminal complaint against Griego. See Complaint ¶ 24, at 7. Griego was ultimately charged with abandonment of abuse of a child, a third-degree felony under N.M. Stat. Ann. § 30 — 6—1D(1), and battery against a household member, a misdemeanor under N.M. Stat. Ann. § 30-8-15. See Complaint ¶ 26, at 7-8. Around 10:45 p.m., Griego was then taken to the Metropolitan Detention Center, where he was held for three days on a $10,000.00 bond. See Complaint ¶¶ 27-28, at 8. Griego was arraigned, and, at that time, his bond was reduced to $2,000.00. See Complaint ¶ 29, at 8. He posted bond on September 28, 2010, and was released under various conditions that included not being allowed to see Sophia unless the New Mexico Children, Youth and Families Department authorized the contact beforehand. See Complaint ¶ 30, at 8. He did not see his daughter until October 15, 2010, twenty days after the arrest. See Complaint ¶ 30, at 8.
The deputy district attorney handling Griego’s case dismissed the felony abandonment charges against him on October 25, 2010, noting that it was a mistake that it had been filed as a felony. See Complaint ¶ 31, at 9. In December, 2010, Stockton revised his police report to include language indicating that Griego was the “ ‘overwhelming aggressor’ ” in the altercation with Petersen. Complaint ¶ 33, at 9. On February 10 and 11, 2011, Griego took his case to a jury trial and was acquitted. See Complaint ¶ 34, at 9.
On March 14, 2011, Griego became aware of domestic-violence self-defense classes that the APD offered as a part of a program called “ ‘Women Against Crime.’ ” Complaint ¶ 37, at 910. Griego was denied enrollment to the class, because the classes were offered only to females. See Complaint ¶ 37, at 10.
On July 1, 2011, Griego went to pick up Sophia at her daycare center, consistent with the custody agreement he had with Petersen. See Complaint ¶ 38, at 10. Sophia was not at the daycare center and Griego ascertained that she was at the home of Ivy Shofelt, Petersen’s sister. See Complaint ¶ 38, at 10. Griego went to Shofelt’s house to pick up Sophia, but Petersen was there and assaulted Griego, in front of Sophia. See Complaint ¶ 38, at 10. Griego returned to his residence with Sophia and called the APD the following morning to report the assault. See Complaint ¶ 38, at 10. Griego provided the APD with Shofelt’s name and contact information, who was present and observed the assault. See Complaint ¶ 38, at 10. After speaking with Griego, the APD apparently never spoke with Shofelt or investigated the incident. See Complaint ¶ 38, at 10. APD officer Tammy Chavez gave Griego a domestic-violence packet and ad
The domestic-violence packet that the APD provided indicated that victims of domestic violence can receive assistance through various resource centers, including the Family Advocacy Center. See Complaint ¶ 39, at 10. The Family Advocacy Center Informed Griego to contact the Women’s Law Initiative to obtain assistance in obtaining a domestic restraining order. See Complaint ¶ 39, at 10. Accordingly, Griego sought the Women’s Law Initiative’s assistance via telephone and explained the circumstances of his July 1, 2011 interaction with Petersen. See Complaint ¶ 39, at 10. When Griego called the Women’s Law Initiative, the representative listened to Griego and then told him to “ ‘[h]ave a nice day’ ” before terminating the call. Complaint ¶ 39, at 11. Griego also contacted the other relevant organizations and resources provided in the domestic-violence packet, but received no assistance from any of them. See Complaint ¶ 40, at 11.
On July 28, 2011, Griego applied for a domestic restraining order, which was summarily denied that day; the judge denying the application noted that parents should comply with all court orders involving custody provisions. See Complaint ¶ 41, at 11. Of the five applicants for domestic restraining orders on the court’s docket that day, only Griego’s application was denied. See Complaint ¶ 41, at 11. The other four applicants that day — all women — received domestic restraining orders. See Complaint ¶ 41, at 11.
On November 24, 2011, Griego was scheduled to pick up Sophia. See Complaint ¶ 42, at 11. As it was Thanksgiving, the only location open for a possible exchange was McDonald’s. See Complaint ¶ 42, at 11. An exchange was scheduled for noon, but by 12:30 p.m., Petersen had not arrived, and the McDonald’s had closed. See Complaint ¶ 42, at 11. Griego called the APD, which informed him that, when an exchange has not occurred within thirty minutes of the scheduled time, and there is a history of violence or disputes between the parents, police would arrive to provide a domestic-violence escort for the exchange. See Complaint ¶ 42, at 11. The police arrived at 12:45 p.m., and Griego informed them of the circumstances between himself and Petersen. See Complaint ¶ 42, at 11. Soon thereafter, Petersen arrived with Sophia. See Complaint ¶ 42, at 11. The police spoke with Petersen, and she handed over Sophia in front of the officers. See Complaint ¶ 42, at 11. APD officer Shane Treadway, one of the officers present, called Griego’s brother, Eric. See Complaint ¶ 42, at 11. Treadway informed Eric that Griego should not call the police for trivial matters and that they “gave Griego a break this time because it was Thanksgiving.” Complaint ¶ 42, at 11.
PROCEDURAL BACKGROUND
Griego commenced this action in federal court on September 24, 2013. He alleges twelve claims: (i) a claim for false arrest in violation of the Fourth Amendment to the Constitution of the United States of America under 42 U.S.C. § 1983, see Complaint ¶¶ 44-52, 12-13; (ii) a § 1983 claim for false imprisonment under the Fourth Amendment, see Complaint ¶¶ 53-64, at 14-16; (iii) a § 1983 claim for malicious prosecution, see Complaint ¶¶ 65-75, at 16-18; (iv) state-law claims for false arrest, false imprisonment, and malicious prosecution, see Complaint ¶¶ 76-92, at 18-20; (v) a claim under § 1983 and Monell v. Department of Social Services,
The City of Albuquerque filed the MTD on November 22, 2013, less than two months after Griego filed the Complaint. It first argues for dismissal of the claims against the APD, the official-capacity claims against Stockton, and the state-law claims. See MTD at 5-12. Griego immediately capitulated to these arguments in his Response, so the Court will not summarize them here. It next argues for dismissal of claim five, for failure to supervise and train, and claim six, for failure to properly investigate. See MTD at 12-14. The City of Albuquerque argues that Grie-go has not pled a policy, practice, or custom — and a causal link between that policy and the plaintiffs constitutional injury — as Monell requires, but, rather, has pled only negligence, which it says does not support liability under Monell. See MTD at 13. As for the failure-to-investigate claim, the City of Albuquerque appears to argue that such a claim does not exist at all, in any circumstances. See MTD at 14. It argues that a failure to investigate does not amount to a violation of a federal right, which it says is what is required to maintain a § 1983 action. See MTD at 14.
The City of Albuquerque also moves to dismiss Griego’s equal-protection claim in claim eight. See MTD at 15-17. It asserts that the Equal Protection Clause is triggered only “ ‘when the government treats someone differently than another who is similarly situated.’ ” MTD at 16 (quoting Buckley Const., Inc. v. Shawnee Civic & Cultural Dev. Auth.,
Griego filed his Response less than a month later, on December 16, 2013. Grie-go argues that his Monell claims for failure to supervise and train and failure to properly investigate are properly pled. See Response at 3-8. He contends that, when a “ ‘municipality has actual or constructive notice that its action or failure to act is substantially certain to result in a constitutional violation, and it consciously or deliberately chooses to disregard the risk of harm,’ it is liable,” Response at 3 (quoting Barney v. Pulsipher,
in a “narrow range of circumstances,” ... deliberate indifference may be found absent a pattern of unconstitutional behavior if a violation of federal rights is a “highly predictable” or “plainly obvious” consequence of a municipality’s action or inaction, such as when a municipality fails to train an employee in specific skills needed to handle recurring situations.
Response at 4 (quoting Barney v. Pulsipher,
Upon information and belief, it was the policy, practice, pattern, procedure and/or custom of ALBQUERQUE and/or APD to make an arrest whenever the police respond to calls of domestic disturbances and/or abuse, regardless of the source of information.
Upon information and belief, it was also the policy, practice, pattern, procedure and/or custom of ALBQUERQUE and/or APD to arrest a male participant instead of a female participant at the scene of a domestic disturbance.
Response at 6 (citations omitted)(quoting Complaint ¶¶ 124-125, at 28). Griego notes that, every place in which the Complaint mentions negligence, it is in the context of Stockton’s actions being “ ‘intentional, reckless, malicious and/or negli-. gent.’ ” Response at 6. Griego also argues that he has adequately alleged a causal link between those policies and Stockton’s deprivation of Griego’s constitutional rights, quoting from ¶¶ 98-101 of the Complaint. See Response at 7-8.
Griego also defends his eighth claim, the equal-protection claim. See Response at 8-12. Griego contends that gender is a quasi-suspect characteristic and, thus, governmental gender-based classification are subject to intermediate scrutiny. See Response at 9. He asserts that the appropriate test for the Court to apply is “whether the government can demonstrate that its classification serves ‘important governmental objectives’ and is ‘substantially related to achievement of those objectives.’ ” Response at 9 (quoting Concrete Works of Colo., Inc. v. City & Cnty. of Denver,
The City of Albuquerque replied to the Response two weeks later, on December 30, 2013. See Defendants’ Reply in Support of Their Motion to Dismiss, filed December 30, 2013 (Doc. 14)(“Reply”). The City of Albuquerque first addresses the claim for failure to supervise or train, arguing that, unless the municipality’s failure was a deliberate, conscious choice, it cannot be held liable under Monell. See Reply at 3 (citing City of Canton v. Harris,
The City of Albuquerque next tackles Griego’s failure-to-properly-investigate claim, which it says lacks a basis in clearly established law. See Reply at 5 (“Plaintiff has not articulated how a ‘failure to investigate’ amounted to a violation of his Fourth Amendment [or Fifth or Sixth Amendment] rights.”). Last, the City of Albuquerque turns to Griego’s equal-protection claim. See Reply at 6-8.- It contends that Griego
has not made a factual allegation that he was arrested because he was a male participant in a domestic violence situation. Plaintiff has only alleged that Officer Stockton told Plaintiff that he was “required to make an arrest.” Plaintiff has made one averment that “[u]pon information and belief, it was also the policy, practice, pattern, procedure and/or custom of ALBUQUERQUE and/or APD to arrest a male participant instead of a female participant at the scene of a domestic disturbance.” This averment is contrary to Plaintiff’s factual allegations wherein he was involved in at least two subsequent domestic disturbance/violence situations with Amie Peterson in which he was not arrested.
In an effort to bolster his Equal Protection claim, Plaintiff attempts to rely on events that occurred involving entities outside of the City, including, but not necessarily limited to the Second Judicial Cburt (for denying him a restraining order), the Family Advocacy Center, as well as two other incidents he had with Amie Peterson involving domestic disturbances in which he was not arrested. However, Plaintiff has failed to make any allegation that there are others who were similarly situated, who were treated differently than him, other than generally referring to males as a class of persons and make a general allegation that “upon information and belief’ it was the City’s policy to arrest a male participant instead of a female participant in a domestic disturbance incident.
Reply at 7 (emphasis in original) (citations omitted).
The Court held a hearing on July 24, 2014. See Transcript of Hearing (taken July 24, 2014)(“Tr.”).
[W]hy is it that this is a Monell claim, and why is it that they failed to supervise and failed to train, I think it’s going to be clear after we have ample discovery on this that in fact the city takes a posture consistent with what it says in the complaint when it’s written and tacit or whether it’s an accepted procedure and a pattern and practice that in fact when police do go to the scene of a domestic violence dispute someone is going to be arrested and the overwhelming majority of those instances, that individual is going to be the male, whether there is any evidence supporting any assault or any action on the part of the male that will gets arrested. So just as no more August body than the U.S. Department of Justice and their investigation as determined that there were constitutional violations that APD caused that were base had on a pattern and practice of APD that included among many other things, the failure to take internal, inadequate internal accountability. They found there was systemic insufficiency including insufficient oversight, inadequate training, ineffective policies contributing total Fourth Amendment violation. A lack of proper supervisory review, a failure to identify and address officers requiring direction, improper supervisory documentation, failure to record incidents with their lapel cameras, internal review mechanisms.
Tr. at 8:3-9:5 (Baker). The Court asked Griego what he contended to be the underlying constitutional violation — ie., the one that Stockton committed — because the City of Albuquerque’s policy must have caused that violation for it to be held hable under Monell. See Tr. at 10:2-7 (Court). Griego responded that Stockton had arrested him without probable cause, thus constituting a false arrest under the Fourth Amendment — a claim that Griego alleged in his Complaint and that the City of Albuquerque had not challenged in its MTD. See Tr. at 10:8-11:1 (Baker, Court). The Court stated that it “doubt[ed] very seriously that the APD doesn’t train its officer[s] to arrest people ... on the basis of probable cause,” and asked Griego how the City of Albuquerque had fostered a policy, custom, or practice of lacking probable cause. Tr. at 12:12-14 (Court). Grie-go responded that,
clearly if they went to a scene and the man’s arm was cut off and the woman was holding a [machete] I they would arrest the female, because there it’s clear that there is probable cause and it’s clear that the male has suffered the injury at the hands of the female. So I’m not saying in every instance the male is arrested. What I’m saying is because they have a practice and a pattern of arresting men when they come to a scene, because there is an unwritten rule or an un written policy and a practice that someone is going to go, that therefore they make the decision to arrest the man in those circumstances. And there is no supervision of these officers when they do it. Because they’re not properly trained in how to address the circumstances and determine who in fact.
Tr. at 13:6-22 (Baker). The Court then asked the City of Albuquerque if it should dismiss Griego’s failure-to-train and failure-to-supervise claims, given that he was alleging (i) an APD-wide policy of usually arresting males on domestic-violence calls; and (ii) a personal constitutional injury, in the form of Stockton arresting him without probable cause. See Tr. at 18:18-22 (Court). The City of Albuquerque conceded that Griego’s claim was viable, if the Court read Griego’s policy allegations broadly. See Tr. at 18:23-24 (Dalton)(“If the Court were to read the complaint that broadly yes, I would agree.”).
The Court briefly addressed the failure-to-investigate claim, with the City of Albuquerque noting that it appeared to be without precedent, see Tr. at 21:18-23 (Dalton), the Court noting that a failure to investigate might form a viable claim if it led to an arrest without probable cause, but that such a claim would simply be for false arrest, see Tr. at 20:7-22 (Court), and Griego making a somewhat vague, legally unsourced argument for why the right to investigation is separate from the right to be free from unwarranted arrest, see Tr. at 22:2-23:9 (Baker). The Court and the
LAW REGARDING RULE 12(b)(6)
Rule 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). “The nature of a Rule 12(b)(6) motion tests the sufficiency of the allegations within the four corners of the complaint after taking those allegations as true.” Mobley v. McCormick,
A complaint need not set forth detailed factual allegations, yet a “pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action” is insufficient. Ashcroft v. Iqbal,
To survive a motion to dismiss, a plaintiff’s complaint must contain sufficient facts that, if assumed to be true, state a claim to relief that is plausible on its face. See Bell Atl. Corp. v. Twombly,
“[Plausibility” in this context must refer to the scope of the allegations in a complaint: if they are so general that theyencompass a wide swath of conduct, much of it innocent, then the plaintiffs “have not nudged their claims across the line from conceivable to plausible.” The allegations must be enough that, if assumed to be true, the plaintiff plausibly (not just speculatively) has a claim for relief.
Robbins v. Oklahoma,
Although affirmative defenses must generally be pled in the defendant’s answer, not argued on a motion to dismiss, see Fed.R.Civ.P. 8(c), there are exceptions where: (i) the defendant asserts an immunity defense — the courts handle these cases differently than other motions to dismiss, see Glover v. Gartman,
LAW REGARDING LIABILITY FOR CONSTITUTIONAL VIOLATIONS UNDER 42 U.S.C. § 1983
Section 1983 of Title 42 of the United States Code provides:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation ofany rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of-this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.
42 U.S.C. § 1983. “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,
1. Color of State Law.
“Under Section 1983, liability attaches- only to conduct occurring ‘under color of law.’ ” Gallagher v. Neil Young Freedom Concert,
In the context of a public employee, the Tenth Circuit has directed that, while “ ‘state employment is generally sufficient to render the defendant a state actor ... [,]’ at the same time, it is ‘well settled that an otherwise private tort is not committed under color of law simply because the tortfeasor is an employee of the state.’ ” Jojola v. Chavez,
The under color of law determination rarely depends on a single, easily identifiable fact, such as the officer’s attire, the location of the act, or whether or not the officer acts in accordance with his or her duty. Instead one must examine “the nature and circumstances of the officer’s conduct and the relationship of that conduct to the performance of his official duties.”
David v. City & Cnty. of Denver,
2. Individual Liability.
Government actors may be liable for the constitutional violations that another committed, if the actors “set in motion a series of events that the defendant knew or reasonably should have known would cause others to deprive the plaintiff of her constitutional rights,” thus establishing the “requisite causal connection” between the government actor’s conduct and a plaintiffs constitutional deprivations. Trask v. Franco,
Even if a factfinder concludes that the residential search was unlawful, the officers only “would be liable for the harm ‘proximately’ or ‘legally’ caused by their tortious conduct.” Bodine v. Warwick,72 F.3d 393 , 400 (3d Cir.1995). “They would not, however, necessarily be liable for all of the harm caused in the ‘philosophic’ or but-for sense by the illegal entry.”72 F.3d at 400 . In civil rights cases, a superseding cause, as we traditionally understand it in tort law, relieves a defendant of liability; See, e.g., Warner v. Orange Cnty. Dep’t of Prob.,115 F.3d 1068 , 1071 (2d Cir.1997); Springer v. Seaman,821 F.2d 871 , 877 (1st Cir.1987), abrogated, on other grounds by Jett v. Dallas Indep. Sch. Dist.,491 U.S. 701 ,109 S.Ct. 2702 ,105 L.Ed.2d 598 (1989).
Trask v. Franco,
Suppose that three police officers go to a suspect’s house to execute an arrest warrant and that they improperly enter without knocking and announcing their presence. Once inside, they encounter the suspect, identify themselves, show him the warrant, and tell him that they are placing him under arrest. The suspect, however, breaks away, shoots and kills two of the officers, and is preparing to shoot the third officer when that officer disarms the suspect and in the process injures him. Is the third officer necessarily liable for the harm caused to the suspect on the theory that the illegal entry without knocking and announcing rendered any subsequent use of force unlawful? The obvious answer is “no.” The suspect’s conduct would constitute a “superseding” cause, see Restatement (Second) of Torts § 442 (1965), that would limit the officer’s liability. See id. § 440.
Trask v. Franco,
the reasonable foreseeability of an intervening act’s occurrence is a factor in determining whether the intervening act relieves the actor from liability for his antecedent wrongful act, and under the undisputed facts there is room for reasonable difference of opinion as to whether such act was wrongful or foreseeable, the question should be left for the jury.
3. Supervisory Liability.
The Tenth Circuit has held that supervisors are not liable under. 42 U.S.C. § 1983 unless there is “ ‘an affirmative link ... between the constitutional deprivation and either the supervisor’s personal participation, ... exercise of control or direction, or ... failure to supervise.’ ” Gallagher v. Shelton,
The Tenth Circuit has recognized that Ashcroft v. Iqbal limited, but did not eliminate, supervisory liability for government officials based on an employee’s or subordinate’s constitutional violations. See Garcia v. Casuas,
Whatever else can be said about Iqbal, and certainly much can be said, we conclude the following basis of § 1983 liability survived it and ultimately resolves this case: § 1983 allows a plaintiff to impose liability upon a defendant-supervisor who creates, promulgates, implements, or in some other way possesses responsibility for the continued operation of a policy the enforcement (by the defendant-supervisor or her subordinates) of which “subjects, or causes to be subjected” that plaintiff “to the deprivation of any rights ... secured by the Constitution.... ”
A plaintiff may ... succeed in a § 1983 suit against a defendant-supervisor by demonstrating: (1) the defendant promulgated, created, implemented or possessed responsibility for the continued operation of a policy that (2) caused the complained' of constitutional harm, and (3) acted with the state of mind required to establish the alleged constitutional deprivation.
Dodds v. Richardson,
Where a plaintiff claims that a particular municipal action itself violates federal law, or directs an employee to do so, resolving these issues of fault and causation is straightforward. Section 1983 itself contains no state-of-mind requirement independent of that necessary to state a violation of the underlying federal right. In any § 1983 suit, however, the plaintiff must establish the state of mind required to prove the underlying violation. Accordingly, proof that a municipality’s legislative body or authorized decisionmaker has intentionally deprived a plaintiff of a federally protected right necessarily establishes that the municipality acted culpably. Similarly, the conclusion that the action taken or directed by the municipality or its authorized decisionmaker itself violates federal law will also determine that the municipal action was the moving force behind the injury of which the plaintiff complains.
Dodds v. Richardson,
4. Municipal Liability.
A municipality will not be held liable under § 1983 solely because its officers inflicted injury. See Graves v. Thomas,
Establishing an informal policy or custom requires the plaintiff to show that the misconduct was “widespread”— i.e., that it involved a “series of decisions.” City of St. Louis v. Praprotnik,
[TJhe complaint alleges that the City of Denver Police Department had an official policy and plan to repress, vilify, and deny rights to Mexicanos, American Indians, and other “oppressed” national minorities, and that, pursuant to that plan, the Department formulated and issued a “get Martinez” policy and instructions. In furtherance of that policy, we are told, the Department kept a dossier on plaintiff, including reports, recordings, and other materials concerning his views, associations, and meetings. The Department also entered into a campaign to charge plaintiff and harass him and others advocating unpopular causes with unfounded prosecutions and to discourage him and others from asserting their rights. In or about October 1973, we are told, the Department, because of racial hatred and in order to chill the assertion of rights, obtained a warrant for the false and unfounded arrest of plaintiff, and, in or about November 1973, the Department “determined, in furtherance of its policy ... as afore-stated, to issue an order to all Denver Police Officers to ‘shoot on sight’ plaintiff.”
We think these allegations are clearly sufficient, as a matter of pleading, to satisfy the “policy” or “custom” requirement of Monell.
Martinez v. Winner,
From the inception of this litigation, I have admonished counsel regarding the import of Monell and its progeny for Plaintiffs’ municipal liability claims and have explicitly ordered them to identify “specific factual allegations supporting the conclusory allegations in the First Amended Complaint that Denver Health and/or Defendant Gabow acting in her official capacity made a policy decision, or engaged in a custom or practice of discrimination, for purposes of municipal liability.”
Plaintiffs do not identify a custom, policy or practice applicable to all of them that would render Denver Health liable under Monell for the discrimination each claims to have suffered, and none pleads actual facts giving rise to a plausible inference that such a policy, custom or practice existed. Simply aggregating eight individual claims and calling them the result of a “custom or policy of discrimination” is insufficient, as are all of the other conclusory recitations of Canton or similar legal standards as “facts” supporting municipal liability. Plaintiffs’ 42 U.S.C. §§ 1981 and 1983 claims against Denver Health or Gabow, Rossman and Alexander in their “official capacities” are therefore DISMISSED.
At a minimum, a party asserting a Mo-nell claim must plead sufficient facts to identify the unconstitutional custom or policy that was promulgated and the means by which that custom or policy caused the constitutional violation.
Here, Ms. Granato’s allegations of an unconstitutional custom or policy maintained by Denver Health are entirely conclusory. She offers only the “formulaic recitation” of a Monell claim, alleging that Mr. Khazanov “act[ed] and/or fail[ed] to act pursuant to City or State policy, custom, decision, ordinance, regulation, habit, usage or practice in [his] conduct,” but never identifies precisely what particular custom or policy of Denver Health Mr. Khazanov was acting pursuant to.... As cases like Twombly and Iqbal make clear, such conclusory pleadings are insufficient to state a claim. Accordingly, Denver Health is entitled to dismissal of the Monell claim against it.
[F]ar from asserting that the misconduct in this case was widespread, Young has not alleged any facts — such as statistics, records of complaints filed with the city, or even anecdotal evidence — that would indicate that the misconduct alleged in this case was more than an isolated incident. In fact, Young cannot point to another instance in which a City of Albuquerque employee has deprived another individual of his or her property rights without due process. A single incident is insufficient to establish the existence of a custom or practice. See City of St. Louis v. Praprotnik,485 U.S. at 127 ,108 S.Ct. 915 (explaining that a custom requires that the alleged misconduct is “widespread” — ie., involving a “series of decisions”).
When there is no formal written policy and the § 1983 plaintiff is relying upon a practice or custom, some courts appear to look for a specific number of prior similar incidents — often saying that two or three instances will not suffice. See Wilson v. Cook Cnty.,
LAW REGARDING QUALIFIED IMMUNITY
Qualified immunity recognizes the “need to protect officials who are required to exercise their discretion and the related public interest in encouraging the vigorous exercise of official authority.” Harlow v. Fitzgerald,
Under § 1983 (invoked in this case) and Bivens v. Six Unknown Fed. Narcotics Agents,403 U.S. 388 ,91 S.Ct. 1999 ,29 L.Ed.2d 619 (1971), a plaintiff may seek money damages from government officials who have violated her constitutional or statutory rights. But to ensure that fear of liability will not “unduly inhibit officials in the discharge of their duties,” Anderson v. Creighton,483 U.S. 635 , 638,107 S.Ct. 3034 ,97 L.Ed.2d 523 (1987), the officials may claim qualified immunity; so long as they have not violated a “clearly established” right, they are shielded from personal liability, Harlow v. Fitzgerald,457 U.S. 800 , 818,102 S.Ct. 2727 ,73 L.Ed.2d 396 (1982). That means a court can often avoid ruling on the plaintiffs claim that a particular right exists. If prior case law has not clearly settled the right, and so given officials fair notice of it, the court can simply dismiss the claim for money damages. The court need never decide whether the plaintiffs claim, even though novel or otherwise unsettled, in fact has merit.
Camreta v. Greene,
Issues of qualified immunity are best resolved at the “earliest possible stage in litigation.” Pearson v. Callahan,
Qualified immunity shields government officials from liability where “their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Pearson v. Callahan,
1. Procedural Approach to Qualified Immunity.
The Supreme Court recently revisited the proper procedure for lower courts to evaluate a qualified immunity defense. In Pearson v. Callahan, the Supreme Court held that lower courts “should be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances of the particular case at hand.”
The Supreme Court recognizes seven circumstances where district courts should proceed directly to and “should address only” the clearly established prong of the qualified immunity analysis: when (i) the first, constitutional violation question “is so factbound that the decision provides little guidance for future cases;” (ii) “it appears that the question will soon be decided by a higher court;” (hi) deciding the constitutional question requires “an uncertain interpretation of state law;” (iv) “qualified immunity is asserted at the pleading stage” and “the precise factual basis for the ... claim ... may be hard to identify;” (v) tackling the first element “may create a risk of bad decisionmaking,” because of inadequate briefing; (vi) discussing both elements risks “bad decisionmaking,” because the court is firmly convinced the law is not clearly established and is thus inclined to give little thought to the existence of the constitutional right; or (vii) the doctrine of “constitutional avoidance” suggests the wisdom of passing on the first constitutional question, because “it is plain that a constitutional right is not clearly established but far from obvious whether in fact there is such a right.” Kerns v. Bader,
2. Clearly Established Rights in the Qualifíed Immunity Analysis.
In evaluating whether the right was clearly established, a district court considers whether the right was sufficiently clear that a reasonable government employee in the defendant’s shoes would understand that what he or she did violated that right. See Casey v. W. Las Vegas Indep. Sch. Dist.,
The Supreme Court has clarified that the clearly established prong of the qualified immunity test is a very high burden for the plaintiff: “A Government official’s conduct violates clearly established law when, at the time of the challenged conduct, the contours of a right are sufficiently clear that every reasonable official would have understood that what he is doing violates that right.” Ashcroft v. al-Kidd,
The Tenth Circuit held in Kerns v. Bad-er, that although “a case on point isn’t required if the impropriety of the defendant’s conduct is clear from existing case law,” the law is not clearly established where “a distinction might make a constitutional difference.” Kerns v. Bader,
3. Pleading Allegations in the Face of Qualiñed Immunity.
A plaintiff must plead “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). The “degree of specificity necessary to establish plausibility and fair notice, and therefore the need to include sufficient factual allegations, dépends on context: .... Fair notice under Rule 8(a)(2) depends on the type of case.” Robbins v. Oklahoma,
In § 1983 cases, defendants often include the government agency and a number of government actors sued in their individual capacities. Therefore, it 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.
Robbins v. Oklahoma,
LAW REGARDING MALICIOUS ABUSE OF PROCESS UNDER NEW MEXICO STATE LAW
New Mexico has combined the torts of abuse of process and malicious
an abuse of process arises when there has been a perversion of the court processes to accomplish some end which the process was not intended by law to accomplish, or which compels the party against whom it has been used to perform some collateral act which he legally and regularly would not be compelled to do.
Richardson v. Rutherford,
The Supreme Court of New Mexico recently revised the necessary elements of the tort of malicious abuse of process. In Durham v. Guest, the Supreme Court of New Mexico held that: (i) an arbitration proceeding is a judicial proceeding for the purposes of a claim for malicious abuse of process, see
In elaborating upon the first element, the Supreme Court of New Mexico commented:
An improper use of process may be shown by (1) filing a complaint without probable cause, or (2) an irregularity or impropriety suggesting extortion, delay, or harassment, or other conduct formerly actionable under the tort of abuse of process. A use of process is deemed to be irregular or improper if it (1) involves a procedural irregularity or a misuse of procedural devices such as discovery, subpoenas, and attachments, or (2) indicates the wrongful use of proceedings, such as an extortion attempt. Finally, we emphasize that the tort of malicious abuse of process should be construed narrowly in order to protect the right of access to the courts.
When the judicial process is used for an illegitimate purpose such as harassment, extortion, or delay, the party that is subject to the abuse suffers harm, as does the judicial system in general. Thus, the malicious abuse of process tort makes the process abuser liable to the other party for the harm caused by the abuse of process.
LAW REGARDING EQUAL-PROTECTION CLAIMS
The Equal Protection Clause of the Fourteenth Amendment guarantees that “no states shall ... deny to any person within the jurisdiction to the equal protection of the laws.” U.S. Const, amend. XIV, § 1. “The Equal Protection Clause ‘keeps governmental decision makers from treating differently persons who are in all relevant respects alike.’ ” Soskin v. Reinertson,
Generally, to state a claim under § 1983 for violation of the Equal Protection Clause, the plaintiff must show the defendant acted under color of law and discriminated against him or her:
To succeed [on an equal employment action, a plaintiff] must show that (1) she was deprived of a right arising under the United States Constitution or federal law, and (2) the offending party acted under the color of state law. Neither the City nor anyone else disputes that the Department was acting under color of state law at all relevant times. Instead, the City contends that Lewallen has failed to prove that the Department violated her Equal Protection rights. To succeed on this claim, Lewallen hadto. show that (1) she suffered an adverse employment action, (2) it was based on sex discrimination, and (3) a policy or custom of the City was the motivating force behind that sex-based adverse action.
Lewallen v. City of Beaumont,
A state actor can generally be subject to liability only for its own conduct under 42 U.S.C. § 1983. See Robbins v. Oklahoma,
must demonstrate that a state employee’s discriminatory actions are representative of an official policy or custom of the municipal institution, or are taken by an official with final policy making authority. To subject a governmental entity to liability, “a municipal policy must be a ‘policy statement, ordinance, regulation, or decision officially adopted and promulgated by [a municipality’s] officers.’ ” Absent such an official policy, a municipality may also be held liable if the discriminatory practice is “so permanent and well settled as to constitute a ‘custom or usage’ with the force of law.”
Murrell v. Sch. Dist. No. 1,
[t]he party alleging discrimination has the burden of proving that the state’s conduct was motivated by a discriminatory purpose. See Whitus v. Georgia,385 U.S. 545 [87 S.Ct. 643 ,17 L.Ed.2d 599 ] (1967)(explaining that “[t]he burden is, of course, on the petitioners to prove the existence of purposeful discrimination”); Sauers v. Salt Lake Cnty.,1 F.3d 1122 , 1130 (10th Cir.1993)(stating that “[a] plaintiff in an equal protection action has the burden of demonstrating discriminatory intent.”). It is “hornbook constitutional law that mere negligence or mistake resulting in uneven application of the law is not an equal protection violation.” Roe v. Keady,329 F.3d 1188 , 1191-92 (10th Cir.2003).
Bell v. Bd. of Educ. of the Albuquerque Pub. Sch., No. CIV 06-1137 JB/ACT,
On the other hand, to hold a supervisory employee liable in his or her individual capacity for sexual harassment conducted by a third party, the plaintiff must show “deliberate indifference to known ... harassment.” Murrell v. Sch. Dist. No. 1,
To prevail on an Equal Protection claim, a plaintiff must show that he or she was subjected to an adverse employment action. Courts use the same standard for adverse employment actions under Equal Protection claims and Title VII claims. In McCrary v. Aurora Public Schools,
As to Ms. McCrary’s claim that her right to equal protection was violated when she was not considered for a fourth-grade classroom position and instead was transferred to a CST position, we have already concluded that neither of those actions constituted an adverse employment action [under the ADA or the ADEA], and Ms. McCrary has not otherwise shown that they gave rise to an injury for purposes of § 1983.
The Court will dismiss Griego’s failure-to-investigate claim with prejudice, and his equal-protection and failure-to-train-or-supervise claims without prejudice. Griego cannot sustain a failure-to-investigate claim, because he has no constitutional or federal-statutory right — let alone a clearly established one — to police investigation. The other two claims fail because Griego has insufficiently plead the existence of a policy, practice, or custom, as Monell requires. He pleads the policy as a bald, Conclusory allegation, and fails to plead facts that give rise to a plausible inference that the policy exists. If Griego amends his Complaint to add allegations that plausibly suggest the policy he alleges — that the APD is encouraged to over-arrest on domestic-violence calls, and to usually arrest the man rather than the woman — -then both of these claims can likely survive the motion-to-dismiss stage. Griego has sufficiently alleged a constitutional injury — being arrested without probable cause — and a causal link between the injury and the policy — that Stockton arrested him pursuant to the policy of arresting men at domestic-violence calls — and, thus, if he fixes his Complaint to properly allege the policy itself, his claim should survive a subsequent motion to dismiss. The equal-protection claim is in the same boat; if Griego can properly allege the policy, the policy itself appears to plausibly have both a discriminatory purpose and a discriminatory impact.
I. THE COURT WILL DISMISS GRIE-GO’S SIXTH CLAIM — FOR FAILURE TO INVESTIGATE — WITH PREJUDICE, BECAUSE THERE IS NO INDEPENDENT RIGHT TO POLICE INVESTIGATION
Griego concedes in his Response that “ ‘there is no general constitutional right to police protection.’ ” Response at 9 (quoting Watson v. City of Kansas City, Kan.,
The case law that exists is unkind even to the failure-to-investigate theory for making out a false-arrest claim; there is no case law supporting an independent
There is no constitutional or federal-statutory right to have police conduct a full, proper, or even competent investigation. Even if such a right existed — and the Court concludes it does not — it would not be clearly established, and Stockton and the City of Albuquerque would be entitled to qualified immunity. The Court will, therefore, dismiss Griego’s sixth claim.
II. THE COURT WILL DISMISS GRIEGO’S FIFTH CLAIM-FOR FAILURE TO SUPERVISE OR , TRAIN-WITHOUT PREJUDICE, BECAUSE HE HAS NOT ALLEGED FACTS THAT GIVE RISE TO A PLAUSIBLE INFERENCE THAT THE APD HAS A POLICY, PRACTICE, OR CUSTOM IN PLACE.
Griego’s fifth claim is alleged only against the City of Albuquerque — and not against any specific individual in the APD hierarchy — and, thus, to establish liability, he must demonstrate: (i) that an officer committed an underlying constitutional violation; (ii) that a municipal policy or custom exists; and (iii) that there is a direct causal link between the policy or custom, and the injury alleged. See Graves v. Thomas,
Taking the prongs in turn, Griego argues that the constitutional violation that the APD’s policy caused was his false arrest. See Tr. at 10:2-20 (Court, Baker). The touchstone of a false-arrest allegation is the absence of probable cause. See Kaufman v. Higgs,
As to the second prong, that the City of Albuquerque has a policy, practice, or custom in place, Griego pleads the following allegations:
Upon information and belief, a system maintained by ALBUQUERQUE and/or APD has failed to properly investigate and review unjustified behavior and activities by police officers, and has failed to identify violative acts by police officers and to subject police officers to discipline, closer supervision, necessary training, and as a result it has become the policy, practice, pattern, procedure and/or custom of ALBUQUERQUE and/or APD to tolerate, condone and disregard the improper and unlawful acts, false arrests and detentions and other wrongful actions by police officers, including STOCKTON.
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Upon information and belief, it was the policy, practice, pattern, procedure and/or custom of ALBQUERQUE and/or APD to make an arrest whenever the police respond to calls of domestic disturbances and/or abuse, regardless of the source of information.
Upon information and belief, it was also the policy, practice, pattern, procedure and/or custom of ALBQUERQUE and/or APD to arrest a male participant instead of a female participant at the scene of a domestic disturbance.
Upon information and belief, these policies, practices, patterns, procedures and/or customs of ALBQUERQUE and/or APD resulted in improper and inadequate training of APD police officers, including STOCKTON.
Complaint ¶ 109, at 24; id. ¶¶ 124-126, at 28.
Turning to the third prong, Griego alleges the direct causal link between the APD’s policy and his own constitutional injury as follows:
Employees of ALBUQUERQUE and/or APD, and individual police officers, including STOCKTON, were aware at all times alleged in this Complaint that the unconstitutional conduct and actions they took would not be fully, aggressively, honestly or properly investigated, if at all, and that they would not be reprimanded or punished for their conduct. In addition they knew or were awa^e and believed that they would be indemnified from civil liability regardless of the illegality or unconstitutionality of their actions. This further prompt-
ed Albuquerque police officers, including STOCKTON, to conduct themselves in an unlawful and improper manner.
ALBUQUERQUE and/or APD’s failure to properly investigate the actions taken by its Police Officers, including STOCKTON, in this incident and in other similar incidents, directly caused GRIEGO to suffer injuries and damages.
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Upon information and belief, these policies, practices, patterns, procedures and/or customs of ALBQUERQUE and/or APD resulted in improper and inadequate training of APD police officers, including STOCKTON.
Upon information and belief, these policies, practices, patterns, procedures and/or customs of ALBQUERQUE and/or APD resulted in APD police officers, including STOCKTON, conducting inadequate investigations resulting in arrests unsupported by probable cause.
Upon information and belief, these policies, practices, patterns, procedures and/or customs of ALBQUERQUE and/or APD results in APD police officers, including STOCKTON, arresting males, including GRIEGO, without probable cause.
(“STOCKTON’S reply was T am required to make an arrest.’ ”); id. ¶ 130, at 29 (“Defendants’ violative actions occurred because GRIEGO is a male.”). The Court does not have much to add to the Complaint’s built-in analysis. Griego’s theory is that the APD maintains an overzealous — although some would say over-cautious — policy of arresting males at domestic-violence calls. As a direct result of this policy, Griego — a male involved in a domestic-violence call — was arrested, despite there being no probable cause to support his arrest. But for the policy, Stockton would presumably not have arrested Grie-go without probable cause, but, because of the policy, he did.
Griego has not plausibly pleaded a policy, but because he has properly plead the other two prongs of his claim, and because Griego may be able to amend his Complaint to rectify the deficiencies in pleading the policy, the Court will dismiss this claim without prejudice. Griego may seek leave to amend his Complaint, and reallege a claim for failure to train or supervise under § 1983 and Monell.
III. THE COURT WILL DISMISS GRIEGO’S EIGHTH CLAIM — HIS EQUAL-PROTECTION CLAIM— WITHOUT PREJUDICE, BECAUSE GRIEGO HAS FAILED TO ALLEGE FACTS THAT GIVE RISE TO A PLAUSIBLE INFERENCE THAT THE APD HAS A POLICY, PRACTICE, OR CUSTOM IN PLACE.
Griego’s equal-protection claim fails for the same reason that his claim for failure to supervise or train does. Essentially the same policy, practice, or custom — that the APD excessively arrests men, but not women, at domestic-violence calls — sits at the heart of both claims,
If the APD’s alleged arrest-all-males policy of handling domestic-violence calls were a formal written policy, then it
Discriminatory purpose is, substantively, a high bar:
“Discriminatory purpose,” however, implies more than intent as volition or intent as awareness of consequences. See United Jewish Organizations v. Carey,430 U.S. 144 , 179,97 S.Ct. 996 ,51 L.Ed.2d 229 [ (1977) ] (concurring opinion). It implies that the decisionmaker, in this case a state legislature, selected or reaffirmed a particular course of action at least in part “because of,” not merely “in spite of,” its adverse effects upon an identifiable group.
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This is not to say that the inevitability or foreseeability of consequences of a neutral rule has no bearing upon the existence of discriminatory intent. Certainly, when the adverse consequences of a law upon an identifiable group are as inevitable as the gender-based consequences of ch. 31, § 23, a strong inference that the adverse effects were desired can reasonably be drawn. But in this inquiry — made as it is under the Constitution — an inference is a working tool, not a synonym for proof. When, as here, the impact is essentially an unavoidable consequence of a legislative policy that has in itself always been deemed to be legitimate, and when, as here, the statutory history and all of the available evidence affirmatively demonstrate the opposite, the inference simply fails to ripen into proof.
Personnel Adm’r of Mass. v. Feeney,
Griego’s equal-protection claim is plausible, or at least it might be, if he amends his Complaint to plausibly plead the policy. The policy — if it exists — certainly has a discriminatory effect. The City of Albuquerque argues that Griego does not properly allege the APD’s discriminatory intent, but the Court disagrees. Although the words “intent,” “purpose,” and “discriminatory” are nowhere to be found in the Complaint, the Complaint nonetheless plausibly alleges a discriminatory purpose. Compare Personnel Adm’r of Mass. v. Feeney,
If Griego can plausibly plead the policy, then the policy gives rise to as plausible an inference of anti-male sentiment by a police force as any. An APD-wide policy of arresting males at domestic-violence calls could plausibly be viewed as reflecting assumptions that: (i) men are always, or usually, at fault for man-woman squabbles; (ii) men have an obligation, which women do not share, to proactively avoid man-woman altercations; (iii) men are intrinsically more dangerous, violent, unpredictable, or prone to outburst than women; (iv) man-on-woman violence is more morally reprehensible or worthy of police intervention than an equally medically serious quantum of woman-on-man violence; or (v) men deserve to be punished merely for letting a verbal altercation with a woman devolve into incivility, regardless whether the man committed the elements of assault or battery. Griego should be aware, however, that the substantive content of the discriminatory-purpose requirement is rigorous. Going forward, he must prove that the APD “selected or reaffirmed” its policy “at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon” men. Personnel Adm’r of Mass. v. Feeney,
It could be that the APD’s actual policy is to assess each domestic-violence situation individually and favor the more physically vulnerable party, with the idea being that, while a weaker person’s physical aggression towards a stronger person may be illegal, the odds of serious harm resulting — and thus the justification for devoting limited police resources to the situation— are greater when it is the other way
The burden of showing discriminatory intent is high, but not impossibly so. Mere disparate impact will not suffice, but nor must Griego prove animus — ie., that the APD is a misandrist organization that promulgated and effectuated its policy out of hatred towards men. Griego must show that the APD’s policy exists “at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon” men. Personnel Adm’r of Mass. v. Feeney,
Griego must seek leave to amend his Complaint to add facts that plausibly suggest that the APD’s anti-male domestic-violence policy exists if he wants to maintain his equal-protection claim. Even after he amends his Complaint to properly allege his equal-protection claim, Griego faces a tough task going forward in proving the claim. For now, the Court dismisses the claim without prejudice.
IT IS ORDERED- that: (i) the Motion to Dismiss, filed November 22, 2013 (Doc. 9), is granted in part and denied in part; (ii) all claims against Defendants Albuquerque Police Department and Albuquerque Police Office Robert Stockton, Jr., in his official .capacity are dismissed with prejudice; (iii) the fourth, sixth, ninth, tenth, and twelfth claims in the.Verified Complaint, filed September 24, 2013 (Doc. 1), are dismissed with prejudice as to all Defendants; and (iv) the fifth, eighth, and eleventh claims are dismissed without prejudice as to all Defendants.
Notes
. The Court earlier entered an Order, filed September 11, 2014 (Doc. 27), granting in part and denying in part the Motion to Dismiss, filed November 22, 2013 (Doc. 9). In the Order, the Court stated that it would "at a later date issue a memorandum opinion more fully detailing its rationale for this decision.” Order at 1 n. 1. This Memorandum Opinion is the promised opinion.
. Because the Defendants filed a responsive pleading more than twenty-one days ago, see Defendant’s City of Albuquerque and Robert Stockton's Answer to Plaintiffs Complaint, filed November 22, 2013 (Doc. 8), Griego may only amend his Complaint with the Defendants' consent or upon obtaining leave from the Court, see Fed.R.Civ.P. 15(a)(l)-(2).
. The Response states:
Plaintiff agrees to dismiss the suit against PO Stockton in his official capacity and the Albuquerque Police Department. In addition, the supplemental state law claims appear to be time barred and therefore the Fourth and Twelfth Causes of Action are hereby withdrawn. In addition, the Plaintiff agrees to dismiss the substantive and procedural due process claims asserted in the Ninth and Tenth claims for relief in the Complaint. Finally, Plaintiff requests leave to amend the Complaint to assert cognizable claims pursuant to the OJP Program Statute, as inaptly alleged in the Eleventh claim for relief in the Complaint.
Plaintiff voluntarily withdraws the claim of violation of Title VI of the Civil Rights Act of 1964, however, Plaintiff has a valid claim pursuant to the OJP Program Statute based on other statutes and regulations, providing funding to Defendant City of Albuquerque through the Albuquerque Police Department.
Plaintiff therefore requests leave to amend the Complaint to state a valid claim for relief pursuant to the OJP Program Statute.
Response at 1-2. Griego will have to file a separate motion to amend his Complaint, but the Court will grant Griego’s request insofar as he asks the Court to dismiss the eleventh claim without prejudice to file a motion for leave to amend.
. Griego owns the residence, but Petersen— and not Griego — occupied the house at the time. See Complaint ¶ 11, at 4.
. The Court's citations to the transcript of the hearing refer to the court reporter's original, unedited version. Any final version may contain slightly different page and/or line numbers.
. In Bivens v. Six Unknown Fed. Narcotics Agents,
. The Court clarified in Herrera v. Santa Fe Public Schools that common-law causation standards do not necessarily hold in the mu
. These cases — in addition to being from the United States Court of Appeals for the Third Circuit — were decided well before Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal.
. Lobozzo v. Colorado Department of Corrections is an unpublished opinion, but the Court can rely on an unpublished opinion to the extent its reasoned analysis is persuasive in the case before it. See 10th Cir. R. 32.1(A), 28 U.S.C. (“Unpublished decisions are not precedential, but may be cited for their persuasive value.”). The Tenth Circuit has stated:
In this circuit, unpublished orders are not binding precedent, ... and we have generally determined that citation to unpublished opinions is not favored. However, if an unpublished opinion or order and judgment has persuasive value with respect to a material issue in a case and would assist the 'court in its disposition, we allow a citation to that decision.
United States v. Austin,
. These allegations were made in the section of the Complaint devoted to the failure-to-investigate and equal-protection claims and not in the section devoted to the failure-to-train claim. The City of Albuquerque argues that this placement is analytically important, and that Griego should not be able to retroactively cross-pollinate claim five’s legal theory with claim eight’s factual allegations. See Response at 3-4. The Court, however, can find no support for this conception of pleading. All Griego must do is set forth a jurisdictional statement, “a short and plain statement of the claim showing that the pleader is entitled to relief,” and a specification of the relief sought. Fed.R.Civ.P. 8(a). If there were more elaborate rules on the partitioning of pleadings into individual causes of action— including that the walls between claims would be impermeable to factual allegations from other claims — one would expect to see them in rule 10, which' contains some fairly specific, formal rules for organizing pleadings. See, e.g., Fed.R.Civ.P. 10(a) ("Every pleading must have a caption with the court’s name, a title, a file number, and a Rule 7(a) designation. The title of the complaint must name all the parties; the title of other pleadings, after naming the first party on each side,
A party must state its claims or defenses in numbered paragraphs, each limited as far as practicable to a single set of circumstances. A later pleading may refer by number to a paragraph in an earlier pleading. If doing so would promote clarity, each claim founded on a separate transaction or occurrence — and each defense other than a denial' — must be stated in a separate count or defense.
Fed.R.Civ.P. 10(b). All the claims in Griego’s Complaint relate to a single "transaction or occurrence." Fed.R.Civ.P. 10(b). While the term "set of circumstances” is more amorphous, if the claim-six and claim-eight factual allegations are vitally relevant to claim five's legal theory' — and they are — then it would seem to the Court that they constitute an overlapping set of circumstances. Although it may be good practice for plaintiffs to draft their complaints with a keen eye towards organization and claim structure — in a long complaint, the Court might miss an allegation in the claim-x section when analyzing claim y under rule 12(b)(6) — the Court sees no reason why it should not consider the allegations in ¶¶ 124 and 125, despite their placement further back in the Complaint.
. Different aspects of this policy are relevant to the two claims. For the failure-to-train-or-supervise claim, the relevant aspect of the policy is that the APD makes excessive arrests — i.e., that they are encouraged to make an arrest, even without probable cause, in alleged domestic-violence situations — and not that they tend to arrest the man rather than the woman. For the equal-protection claim, the relevant aspect of the policy is that they systemically arrest men in circumstances when they would not arrest women. Even if there is probable cause for every domestic-violence arrest that the APD makes, if the APD arrests men in circumstances where it would not arrest a similarly situated woman, then that aspect of the policy violates the Equal Protection Clause — although, as the Court will note, a man and a woman are not necessarily "similarly situated” if the man is larger or behaving more aggressively than the woman, and, thus, disparate results in such circumstances may be justified, provided that the disparate results are based on individualized assessments of each situation, rather than broad stereotypes about men and women.
Whether Griego alleges a two policies or a single policy with two aspects does not affect the Court's analysis; he has not alleged either one plausibly. Griego should bear in mind— if he plans to amend his Complaint — that the APD’s policy must contain both aspects if it is to support both claims.
. The law under which Griego was charged- — and the one he alleges is applied discriminatorily to men — provides: "Battery against a household member consists of the unlawful, intentional touching or application of force to the person of a household member, when done in a rude, insolent or angry manner.” N.M. Stat. Ann. § 30-3-15A.
. In Yick Wo v. Hopkins, a city ordinance required that laundries be located in brick or stone buildings unless a waiver was obtained. See
In Gomillion v. Lightfoot, the city of Tuskee-gee, Alabama redrew its boundaries from a square into a 28-sided figure to exclude blacks from participating in city elections and using city services. See
. Guinn v. United States involved an Oklahoma law that mandated literacy tests for all prospective voters, but exempted those whose grandfathers had been able to vote — effectively granting a blanket exemption to whites. See
In Griffin v. School Board of Prince Edward County, a county which had recently been the subject of a desegregation order decided to close all of its public schools and, instead, use education funds to pay vouchers to families to send their children to private schools — which were, for the most part, segregated. See
. The Court adopts the Seventh Circuit’s reasoning and concludes that Griego does not have to include the words "discriminatory intent” or "discriminatory purpose” in his Complaint. See Borsellino v. Goldman Sachs Grp., Inc.,
Still, as the Court is dismissing this claim without prejudice, Griego may wish to add these words if he elects to amend his Complaint. As a matter of good practice, there is no reason not to check this box.
. The Court does not mean to suggest that this possibility — that men commit more cross-gender domestic violence than women — is empirically true, but only that, if it is true, then it would be a contributing factor in explaining how a gender-neutral policy could produce more arrests of men than women. Empirical research on this question is divided, compare Daniel J. Whitaker et al., Differences in Frequency of Violence and Reported Injury Between Relationships with Reciprocal and Nonreciprocal Intimate Partner Violence, 97 Am. J. Pub. Health 941 (2006)(reporting that over seventy percent of domestic violence is committed by women), and Cathy Young, The Surprising Truth About Women and Violence, Time (June 25, 2014), available at http://time.com/2921491/hope-solo-women-violence, with American Bar Association Commission on Domestic & Sexual Violence, Domestic Violence Statistics, http://www. americanbar.org/groups/domestic_violence/ resources/statistics.html (asserting that "[a]p-proximately 1.3 million women and 835,000 men are physically assaulted by an intimate partner annually in the United States”), although it seems that man-on-woman domestic violence is overwhelmingly more reported than woman-on-man violence, see e.g., Domestic Violence Intervention Program, Myths & Facts About Domestic Violence, http:// www.dvipiowa.org/myths-facts-about-domestic-violence (noting that "95% of domestic violence is reported by women ... against ... their male partner”), and — in fairness to the APD — it can only be expected to respond to domestic-violence situations to which it is called, so the reported statistic is perhaps more important to the equal-protection issue than the actual statistic.
. A woman-on-man battery is equally "criminal” to a man-on-woman battery, but that fact does not mean that the APD has an obligation to devote equal resources to the two if (i) man-on-woman battery causes more harm than woman-on-man assault; and (ii) the APD’s increased attention to man-on-woman batteries versus woman-on-man batteries is purely incidental, i.e., if the APD only ends up pursuing man-on-woman batteries more vigorously when they cause more harm, because they cause more harm, and to the extent that they cause more harm.