2011 order dismissing timothy w. young's pro se complaint for false arrest.pdf

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

TIMOTHY W. YOUNG,

Plaintiff,

v. Civ. No. 11-503 MCA/LAM

HIDALGO COUNTY SHERIFF’S DEP’T;HIDALGO COUNTY,

Defendants.

ORDER DISMISSING THE AMENDED COMPLAINT

THIS MATTER comes before the Court sua sponte on the Court’s obligation to dismiss

complaints that fail to state a cognizable federal claim “at any time” when the plaintiff is proceeding

in forma pauperis (“IFP”). See 28 U.S.C. § 1915(e);Trujillo v. Williams, 465 F.3d 1210, 1217 n.

5 (10th Cir. 2006) (noting that dismissal of deficient complaints that have been filed without

prepayment of filing fees is now mandatory).

Pro-se Plaintiff Timothy W. Young, who appears to be indigent, filed his initial, deficient

Complaint and an application to proceed IFP on June 10, 2011. See Docs. 1, 2. Because the

Complaint failed to state a cognizable federal claim, the Magistrate Judge assigned to this case

conditionally granted IFP on the filing of an amended complaint, explaining the deficiencies and

requiring Young to correct them before free service of process was ordered. See June 22, 2011

Order (Doc. 4). Specifically, Judge Martinez noted that “Young has stated no facts that would give

rise to the County’s or the Sheriff’s Department’s liability for the allegedly unconstitutional acts of

its officers;” id. at 2; that “any amended complaint against the individual officers would have to state

that the criminal-trespass charge against Young was dismissed before trial, or that he was found not

guilty, or that his conviction was overturned,” id. at 3; that Young had failed in his attempt “to bring

Case 2:11-cv-00503-MCA-CG Document 19 Filed 09/29/11 of 7

a state-law claim against Hidalgo County for ‘mental distress’ regarding the detention center’s

employees’ allegedly negligent failure to take him to the hospital for 3 hours” because he had failed

to state any “facts to show that a Hidalgo County supervisory official was involved in the incident,”

because, if he was trying to bring state-law tort claims, it appeared that he had not complied with

“the exhaustion requirements of the New Mexico Tort Claims Act” or shown that “there is a waiver

of immunity for the entity or its employees based on his allegations;” and because “New Mexico

does not recognize a cause of action for negligent infliction of emotional distress unless the plaintiff

can allege facts to show that the distress caused by the Defendant’s negligence is ‘so severe and

serious as to have physical consequences,’” id. at 4.

Young filed an Amended Complaint on June 29, 2011. See Doc. 6. But the Clerk’s office

inadvertently issued summonses for free service of process before the Court had an opportunity to

review the Amended Complaint.

In reviewing the Amended Complaint under § 1915(e), the Court resolves the issue whether

it states a claim on which relief may be granted by applying the same standards used in resolving

motions to dismiss for failure to state a claim brought under FED. R. CIV. P. 12(b)(6). See Kay v.

Bemis, 500 F.3d 1214, 1217 (10th Cir. 2007). This means that the Court must

look to the specific allegations in the complaint to determine whether they plausiblysupport a legal claim for relief. Rather than adjudging whether a claim is‘improbable,’ factual allegations in a complaint must be enough to raise a right torelief above the speculative level. In addition, [the Court] must construe a pro se []complaint liberally.

Id. at 1218 (internal quotation marks, original brackets, and citations omitted). But “[t]he broad

reading of the [pro se] plaintiff’s complaint does not relieve the plaintiff of alleging sufficient facts

on which a recognized legal claim could be based.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.

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1991).

[T]he [pro se] plaintiff whose factual allegations are close to stating a claim but aremissing some important element that may not have occurred to him, should beallowed to amend his complaint. Nevertheless, conclusory allegations withoutsupporting factual averments are insufficient to state a claim on which relief can bebased. This is so because a pro se plaintiff requires no special legal training torecount the facts surrounding his alleged injury, and he must provide such facts if thecourt is to determine whether he makes out a claim on which relief can be granted. Moreover, in analyzing the sufficiency of the plaintiff’s complaint, the court needaccept as true only the plaintiff’s well-pleaded factual contentions, not his conclusoryallegations.

Id. (citations omitted). As the Supreme Court noted in Bell Atlantic Corp. v. Twombly, 550 U.S.

544 (2007), and the more recent case of Ashcroft v. Iqbal, __ U.S. __, 129 S. Ct. 1937 (2009), courts

must carefully scrutinize a plaintiff’s complaint to determine if an actionable claim is asserted. In

Twombly, the Court noted that the pleading standard of FED. R. CIV. P. 8 does not require “detailed

factual allegations,” 550 U.S. at 555, but the Rule demands more than an unadorned “defendant-

unlawfully-harmed-me” account, Iqbal, 129 S. Ct. at 1949. The Supreme Court warned against

pleadings that offer “labels and conclusions” or “a formulaic recitation of the elements of the cause

of action . . . .” These, the Court stated, “will not do.” Twombly, 550 U.S. at 555. Nor does a

complaint suffice if it tenders “naked assertion[s]” devoid of “further factual enhancement.” Id. at

557. Thus, “to state a claim in federal court, a complaint must explain what each defendant did to

him or her; when the defendant did it; how the defendant’s action harmed him or her; and, what

specific legal right the plaintiff believes the defendant violated.” Nasious v. Two Unknown B.I.C.E.

Agents, 492 F.3d 1158, 1163 (10th Cir. 2007).

In screening the Complaint, the Court will accept as true Young’s allegations and construe

them, and any reasonable inferences to be drawn from them, in the light most favorable to Young.

See Kay, 500 F.3d. at 1217. But the Court “will not supply additional facts, [or] construct a legal

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theory for [a] plaintiff that assumes facts that have not been pleaded.” Dunn v. White, 880 F.2d 1188,

1197 (10th Cir. 1989).

Young’s Amended Complaint alleges the following relevant facts:

As in his original Complaint, Young states that states that, following “a verbal altercation”

with an unidentified individual at the BelShore apartments on January 15, 2011, Young left the

premises but was later pulled over by D.O.T. Officer Charles Madrid. See Am. Compl. at 2 (Doc.

6). Officer Madrid told Young that Officer Smith had contacted Tommy DePaoli1, the property’s

owner, and DePaoli told Officer Smith that Young “was not allowed there.” Id. Young states that

when he later called DePaoli, DePaoli told him that “no officer contacted him and he didn’t say

[Young] couldn’t be there.” Id. On January 30, Young went back to the BelShore apartments. See

id. at 3. Police were again called, and Deputy Flores and Deputy Tavizon, the arresting officer,

asked Young what he was doing there. See id. When Deputy Flores asked Young if Officer Madrid

had previous warned him not to trespass there, Young admitted that Officer Madrid “had stopped

[him] and told him that owner Tommy Depolie [sic] said [he] couldn’t be there,” but that Young had

contacted DePaoli, who said Young “could be there and [Young] wasn’t doing anything wrong.”

Id. at 3-4. Deputy Flores called Dispatch and Officer Madrid in Young’s presence. See id. at 4.

Officer Flores then stated, “Dispatch confirms trespass” and asked the other deputy and the other

D.O.T. Officers who had also responded to the call what they wanted to do. See id. Deputy Flores

then instructed Deputy Tavizon to arrest Young, at which time he was arrested, taken to jail, and

charged with criminal trespass. See id. at 4-5.

1 The Court uses the spelling that Mr. DePaoli used in attachment 1 to the AmendedComplaint. See Doc. 6, Att 1.

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Young states that, on January 30, 2011, he told unknown employees at the Hidalgo County

Detention Center that he had anxiety, high blood pressure, and chronic back pain, and that he needed

to take medications “at that time.” Am. Compl. at 6. They placed him in a holding cell, and when

the shifts changed, no one notified the new officers of Young’s medical problems or request for

medication. See id. When Young banged on his door and told Officer Verdugo that he was having

an anxiety attack, had high blood pressure, and needed his medications, Officer Verdugo

“apologized and made arrangements to transport [Young] to Gila Regional Medical Center,” where

Young was given his medications and was released back to custody when his blood pressure

decreased. Id. at 7. Young was held until February 1, 2011, when he posted bond. See id. at 5. The

criminal charges were dropped on May 10, 2011. See id. at 4.

Young’s first claim is against the Sheriff’s Department for false imprisonment in violation

of the Fourth and Fourteenth Amendments. See id. at 5. His second claim is against the County for

causing “illness incurred/mental distress” in violation of Young’s “right to medical treatment while

confined.” Id. at 7.

A review of Young’s Amended Complaint shows that he has again failed to allege sufficient

facts to go forward against Hidalgo County and its Sheriff’s Office, which are the only named

Defendants. While the Amended Complaint more fully sets out the events that precipitated this suit,

and also alleges that the criminal-trespass charge against Young was dropped, thereby allowing his

case to go forward under Heck v. Humphrey,512 U.S. 477, 486-87 (1994), it still improperly names

only the county and its sheriff’s department as defendants.

In addition, the Amended Complaint alleges, and the attached police report confirms, that

Deputy Flores checked with dispatch and Officer Madrid to make sure a trespass warning had been

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issued before instructing Deputy Tavizon to arrest Young for trespass, and confirmed with Young

that Officer Madrid had, indeed, warned Young not to go on the BelShore property again. Although

Young attaches a statement purportedly signed by Tommy DePaoli stating “I never told anyone that

Tim Young was not allowed at the BelShore Apartments at any time,” Am. Compl. Att. 1, the

subsequent statement does not negate the Deputies’ probable cause to reasonably believe that Young

was committing criminal trespass in their presence based on information from Dispatch, Officer

Madrid, and Young himself.

A police officer may arrest a person without a warrant if he has probable cause tobelieve that person committed a crime. Probable cause exists if facts andcircumstances within the arresting officer’s knowledge and of which he or she hasreasonably trustworthy information are sufficient to lead a prudent person to believethat the arrestee has committed or is committing an offense. When a warrantlessarrest is the subject of a § 1983 action, the defendant arresting officer is entitled toimmunity if a reasonable officer could have believed that probable cause existed toarrest the plaintiff. Even law enforcement officials who ‘reasonably but mistakenlyconclude that probable cause is present’ are entitled to immunity.

Romero v. Fay, 45 F.3d 1472, 1476 (10th Cir. 1995).

[C]laims of false arrest, [and] false imprisonment must be premised on a lack ofprobable cause. See State v. Johnson, 122 N.M. 696, 930 P.2d 1148, 1153 (N.M.1996) (stating that a warrantless arrest by a police officer with probable cause tobelieve that an offense has been committed does not become unlawful if the arresteeis later found to be innocent); Weststar Mortgage Corp. v. Jackson, 133 N.M. 114,61 P.3d 823, 832 (N.M. 2002) (stating that a judicial determination to bind a plaintiffover for a criminal trial constitutes prima facie evidence of the existence of probablecause for detention)

Hoffman v. Martinez, No. 03-2000, 92 Fed. App’x 628, 631, 2004 WL 226287, **3 (10th Cir. Feb.

6, 2004) (unpublished) (affirming sua sponte dismissal under § 1915(e) where defendant arrested

and charged with breaking and entering told officers before arrest that he shared the house with his

girlfriend but where defendant was bound over for trial on a finding of probable cause). Here,

Young makes no allegations that any of the arresting officers lied about whether probable cause

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existed, and it appears that they reasonably relied on Dispatch, and, through Officer Madrid, on the

statements of another Officer that the property owner did not want Young on his property.

Therefore, even if the Court allowed Young yet another opportunity to amend his complaint, he

could not state a cognizable federal claim against the Hidalgo County Sheriff’s Department or its

deputies.

Judge Martinez’s opinion properly notes that there is no state-law cause of action for

negligent infliction of emotional distress arising from a short delay in providing medicine and

medical treatment. See Doc. 6 at 4. Further, a § 1983 claim cannot be brought against the County

because there are no allegations that a county supervisor or policy was involved; Young alleges no

permanent or substantial harm from the delay; and Young’s allegations establish that Officer

Verdugo was not deliberately indifferent to Young’s medical needs. See Mata v. Saiz, 427 F.3d

745, 751 (10th Cir. 2005) (noting that “[a] prison official’s deliberate indifference to an inmate’s

serious medical needs is a violation of the Eighth Amendment’s prohibition against cruel and

unusual punishment,” and stating that “a delay in medical care only constitutes an Eighth

Amendment violation where the plaintiff can show the delay resulted in substantial harm”).

Young’s Amended Complaint against these Defendants fails to state a cognizable federal

claim even though he was given an opportunity to amend in accordance with the Court’s

instructions. It therefore appears that allowing further amendment would be futile, and his Amended

Complaint will be dismissed with prejudice. See Trujillo, 465 F.3d at 1217 n. 5, 1224.

IT IS ORDERED that Young’s Amended Complaint [Doc. 6] is DISMISSED with

prejudice.

DATED this 28th day of September, 2011 in Albuquerque, New Mexico.

_____________________________________M. CHRISTINA ARMIJOUnited States District Judge

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2011 order dismissing timothy w. young's pro se complaint for false arrest.pdf

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