Schmal v. Luna County

UNITED STATES DISTRICT COURT DISTRICT OF NEW MEXICO RAYMOND WILLIAM SCHMAL, Plaintiff, v. Civ. No. 20-1324 JB/GJF LUNA COUNTY, et al., Defendants. PROPOSED FINDINGS AND RECOMMENDED DISPOSITION FOR COUNTY DEFENDANTS’ MOTION TO DISMISS [ECF 19] THIS MATTER is before the Court on Defendants Luna County and Luna County Sheriff’s Department’s (“County Defendants’”) Motion to Dismiss Under Rule 12 [ECF 19] (“Motion”). Plaintiff has “fail[ed] … to file and serve a response in opposition to [this Motion] within the time prescribed for doing so.” D.N.M.LR-Civ. 7.1(b); see ECF 29 at 1-2 (County Defendants’ notification that Plaintiff’s response was due April 23, 2021; that no extension of this deadline was sought; and that briefing on this Motion was thus complete). Furthermore, Plaintiff’s failure to respond “constitutes consent to grant the motion.” D.N.M.LR-Civ. 7.1(b). County Defendants assert that “‘Luna County’ and the ‘Luna County Sheriff’s Department’ may not be sued under NMSA [New Mexico Statutes Annotated §] 4-46-1 and Federal Rule [of Civil Procedure] 17.” Mot. 2-3. Consequently, County Defendants assert that “they must be dismissed from this suit with prejudice.” Id. at 3. The Court will recommend dismissing County Defendants with prejudice for the following reasons: (1) Plaintiff has consented to such a course of action. D.N.M.LR-Civ. 7.1(b). (2) “[P]ursuant to [Fed. R. Civ. P.] rule 17 and N.M. Stat. Ann. § 4-46-1 , § 1983 claims against [Luna] County must be brought against the Board of County Commissioners of the County of [Luna].” Mayer v. Bernalillo Cty., No. CV 18-0666 JB\SCY, 2018 U.S. Dist. LEXIS 210839 , 2018 WL 6594231 , at *2630 (D.N.M. Dec. 13, 2018). (3) “[T]he [Luna] County Sheriff's Department [is] not [a] suable entit[y] under § 1983.” Stone v. Jefferson Cty. Det. Facility, 838 Fed. App’x. 348, 350-51 (10th Cir. 2020) (unpublished) (citing Martinez v. Winner, 771 F.2d 424, 444 (10th Cir. 1985); Tyus v. Martinez, 475 U.S. 1138 (1986)). IT IS THEREFORE RECOMMENDED that County Defendants’ Motion be GRANTED in that Luna County and Luna County Sheriff's Department be DISMISSED from this suit WITH PREJUDICE. IT IS FURTHER RECOMMENDED that this Court “permit[] [Plaintiff] leave to amend [his] Complaint to substitute the Board of County Commissioners of the County of [Luna] for [Luna] County.” Mayer, 2018 WL 6594231 , at *30. SO RECOMMENDED. why # ea = fi ttAgAA HE HONORABLE GREGORY J. FOURATT UNITEDSTATES MAGISTRATE JUDGE THE PARTIES ARE FURTHER NOTIFIED THAT WITHIN 14 DAYS OF SERVICE of a copy of these Proposed Findings and Recommended Disposition they may file written objections with the Clerk of the District Court pursuant to 28 U.S.C. § 636 (b)(1)(c). Any request for an extension must be filed in writing no later than seven days from the date of this filing. A party must file any objections with the Clerk of the District Court within the fourteen-day period if that party wants to have appellate review of the proposed findings and recommended disposition. If no objections are filed, no appellate review will be allowed.