Scott v. City of Albuquerque et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
THEODORE SCOTT,
Plaintiff,
v. 	No. 1:24-cv-00710-JCH-JFR
ALBUQUERQUE POLICE OFFICER
GEORGE MARTINEZ (#7869), ALBUQUERQUE
POLICE SUPERVISORY TRAINING OFFICER
SERGEANT S. WEINSTEIN (#5660),
and THE CITY OF ALBUQUERQUE,
Defendants.
MEMORANDUM OPINION AND ORDER
This matter comes before the Court on the Motion to Dismiss Plaintiff’s First Amended
Complaint on Qualified Immunity and Other Grounds (Dkt. No. 27), filed by Defendant George
Martinez and Defendant The City of Albuquerque (the “City”) on April 25, 2025. Plaintiff
Theodore Scott filed a response on May 9, 2025 (Dkt. No. 29), and Defendants Martinez and the
City filed a reply on May 30, 2025 (Dkt. No. 32). On July 14, 2025, Defendant Sergeant S.
Weinstein filed a Notice of Joinder (Dkt. No. 38) in the motion to dismiss, requesting the Court
dismiss Plaintiff’s First Amended Complaint with prejudice as to him too. Plaintiff filed a response
to Defendant Weinstein’s motion to dismiss (Dkt. No. 39), to which Defendant Weinstein filed a
reply (Dkt. No. 40). The Court, having considered the motion, briefs in support and opposition,
first amended complaint, arguments, and relevant law, concludes that the motion to dismiss should
be granted.
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I. 	FACTUAL BACKGROUND
The facts below come from Plaintiff’s First Amended Complaint. Am. Compl., Dkt.
No. 25. On the evening of September 29, 2023, Plaintiff Theodore Scott (“Plaintiff” or “Scott”)
visited a Walgreens in Albuquerque, New Mexico, near the intersection of Central Avenue and
Girard. See id. ¶¶ 10-11. As Scott was exiting the Walgreens, he witnessed a homeless man, later
identified as Sean Baify (“Baify”), carrying several bags and yelling at another man to fight him.
Id. ¶¶ 11, 13. Scott witnessed the man Baify was yelling at run into the Walgreens to hide. Id. ¶ 12.
Scott wanted to avoid interacting with Baify but was unable to run back into the Walgreens because
he had previously sustained a knee injury that prevented him from running. Id. ¶ 13. Instead, he
tried to avoid Baify by standing next to some bushes at the corner of Central Avenue and
Dartmouth in the hopes that Baify would continue walking eastbound on Central Avenue and not
notice him. See id. ¶ 14.
However, instead of continuing on Central Avenue, Baify turned onto Dartmouth and began
verbally assaulting Scott, shouting racial slurs and taunting Scott to fight.1 Id. ¶ 15. Scott,
attempting to deescalate the situation, replied “I don’t want to fight . . . get away from me please.”
Id. ¶ 17. Baify continued following Scott and shouting racial slurs at him. Id. ¶¶ 17-18.
Scott attempted to walk away from Baify by crossing Central Avenue. Id. ¶ 20. But before
Scott was able to safely cross Central Avenue, Baify reemerged from behind some parked vehicles.
Id. ¶¶ 21-22. Scott noticed Baify drop several bags that he was carrying on the ground. Id. ¶ 22.
Baify again challenged Scott to fight, and he refused. Id. ¶ 23. Baify, who was about seven feet
away from Scott at the time, picked up one of the bags he had dropped on the ground, informed
1 The verbal assault included statements like, “[y]ou want some too,” “[y]ou fucking [n-word],”
“[f]ight me [n-word], fight me,” and “[y]ou pussy-ass [n-word].” Id. ¶ 15. Plaintiff is a Black man.
Id. ¶ 7.
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Scott that it was filled with rocks, and threatened to “smash [Scott’s] head in” with the bag of
rocks. Id. ¶¶ 23-24. Scott was unable to run away from Baify due to his knee injury. Id. ¶ 24. Baify
continued to threaten Scott, saying “[y]ou are going to find out what it’s like to die.” Id.
Scott was carrying a concealed firearm at the time and continued to warn Baify not to
approach him, loudly stating “[d]rop the bag,” and “[d]on’t come any closer with the bag or you
will get shot,” in front of approximately 50 witnesses. Id. ¶ 25. Baify ignored the warnings, raised
the bag over his head, and ran towards Scott. Id. ¶¶ 26-27. Scott hastily discharged two rounds
from his firearm at Baify, striking him twice. Id. ¶¶ 28-29. Despite being shot twice, Baify
continued approaching Scott. Id. ¶ 29. Scott fired a third shot, hitting Baify and causing him to fall
back onto the pavement. Id. ¶¶ 29-32. Baify attempted to stand up twice, but Scott yelled at him
to stay down, or Scott would shoot him again. Id. ¶¶ 32-33. Scott called 911 to seek medical
attention for Baify. Id. ¶ 34.
Albuquerque Police Department (“APD”) officers, including Officer George Martinez and
his supervisor and training officer, Sergeant Weinstein2, arrived at the scene and interviewed four
witnesses who described Baify’s aggressive behavior and what they heard or saw at various points
of the conflict between Scott and Baify. See id. ¶¶ 36-45, 47. Notably, witness Steven Estrada
2 In the First Amended Complaint, Plaintiff acknowledges that he only saw the “W” on the name tag of the officer he
is identifying in the amended complaint as “Sergeant S. Weinstein.” See Am. Compl. ¶ 44, Dkt. No. 25. He says, if his
identification is incorrect, he will amend his complaint after discovery is produced that identifies the correct “W”
officer. See id. In his Notice of Joinder, Defendant Weinstein includes a footnote asserting that he does not waive any
argument that he was not the training officer or supervisor of Officer Martinez. Notice 1-2 n.1, Dkt. No. 38. Defense
counsel attached emails in which she informed Plaintiff’s counsel multiple times, beginning on April 28, 2025, that
Sergeant Weinstein is not the person referenced in the complaint and notified counsel who Officer Martinez’s training
officer was at the time. Id. & Ex. A, Dkt. No. 38-1. Defense counsel requests that Plaintiff withdraw or correct the
allegations against Sergeant Weinstein, citing Federal Rule of Civil Procedure 11(b). Notice 1-2 n.1, Dkt. No. 38.
These issues come before the Court on a motion to dismiss, not on a motion for summary judgment or on a motion
for sanctions, so the Court will assume the allegations of the amended complaint are true for purposes of resolving
this motion.
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informed officers that he saw the conflict between Scott and Baify and that he saw Baify trying to
attack Scott with a heavy blue bag before Scott shot him. Id. ¶ 39.
Baify and Scott were each transported to separate hospitals. See id. ¶¶ 41-42. While at the
medical center and after receiving Miranda warnings, Scott was interviewed by APD Officer B.
Thomas, Officer Martinez, and Sergeant Weinstein. Id. ¶¶ 43-45. After the interview, they led Scott
out to their vehicle where they informed him that he was under arrest for a serious felony and
would be charged with aggravated battery with a deadly weapon. Id. ¶ 48. While Officer Martinez
was removing Scott’s handcuffs to put on a different set, he kicked Scott’s legs apart, called him
the n-word, and told him to not tense up and to stop resisting. Id. ¶ 50. Scott tried to inform Officer
Martinez of his prior knee injury and request that Officer Martinez not kick his legs because it was
painful, but Officer Martinez told him to “stop tensing up [n-word].” Id. ¶ 51. Officer Martinez
and Sergeant Weinstein subsequently transported Scott to the detention center. Id. ¶ 54.
At the detention center, Officer Martinez and Sergeant Weinstein handcuffed Scott to a
bench for several hours while they prepared the criminal complaint for the District Attorney’s
Office and the Metropolitan Court. Id. Officer Martinez asked Sergeant Weinstein what events
needed to be included in the report in light of Steven Estrada’s witness statement. Id. ¶ 55. Sergeant
Weinstein responded that they needed to include an admission by Scott that he shot Baify for the
third time while Baify was on the ground for the District Attorney’s Office to accept and proceed
with the complaint. Id. ¶ 56. Scott objected, telling Sergeant Weinstein that what he and Officer
Martinez were writing in the complaint was not what Scott or the witnesses had indicated in their
statements, but Sergeant Weinstein just told him to “shut up.” Id. ¶ 58.
Scott was eventually charged with Aggravated Battery (deadly weapon) in violation of
N.M. Stat. Ann. § 30-03-05(C) and held in custody for six days. Id. ¶¶ 59, 63, 66. In the criminal
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complaint prepared by Officer Martinez, he did not include the statements of witness Steven
Estrada, even though Officer Martinez’s police report listed Mr. Estrada as a witness. See id. ¶¶
61-62. Sergeant Weinstein, as Officer Martinez’s supervisor and trainer, directed Officer Martinez
regarding what to include in the criminal complaint so that the District Attorney’s Office would
prosecute Plaintiff. See id. ¶¶ 119, 121.
The criminal complaint, however, did contain other information indicating a self-defense
theory. See Criminal Compl., Dkt. No. 25 at 30 of 40.3 Officer Martinez noted that Aarron Oneil
said Baify was visibly upset and trying to fight four subjects; another witness heard Scott yelling
“drop it, don’t point it at me;” and a third witness said Scott yelled, “Get down, stay down, Cops
on the way.” Id. Officer Martinez further stated in the criminal complaint that Scott told him Baify
was visibly aggressive towards him and threatened to kill him, and that Baify walked towards him
swinging a blue bag over his head, saying the bag contained rocks to kill him. Id. The criminal
complaint then said, “Theodore fired off two shots. Sean fell to the ground and where Theodore
warned him to stay on the ground. Theodore stated again to stay on the ground where he fired off
another round.” Id. Officer Martinez noted that “all witnesses stated that they did not see Sean with
anything in his hands” and the bags at the scene did not contain any rocks. Id. at 31 of 40.
Later, Officer Martinez was the only witness to testify before the grand jury and he falsely
claimed that Scott admitted to shooting Baify a third time while Baify lay on the ground. Am.
Comp. ¶ 67, Dkt. No. 25. He additionally mispresented to the grand jury that he was an experienced
officer trained to investigate violent crimes. Id. Scott was indicted by the grand jury based solely
on Officer Martinez’s perjured testimony. Id. ¶ 68. He was held without bond. Id. At the time
3 Plaintiff attached the criminal complaint to his amended complaint and relies upon it. The Court includes the contents
of the criminal complaint not for the truth of the matters asserted therein, but to show the context of what Officer
Martinez included in the criminal complaint.
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Officer Martinez testified, Sergeant Weinstein was his supervisor. Id. ¶ 119. After further
investigation of the case, the District Attorney’s Office filed a nolle prosequi on the indictment
issued against Scott. Id. ¶ 70.
II. 	PROCEDURAL HISTORY
Plaintiff filed his civil complaint against Officer Martinez, APD Officer Max Denerstein,
and the City of Albuquerque in the New Mexico Second Judicial District Court, and Defendants
removed it to this Court. Notice of Removal 1, Dkt. No. 1. The City filed an Answer (Dkt. No. 8).
Officer Martinez filed a motion for a more definite statement (Dkt. No. 10), which this Court
granted. Mem. Opinion and Order, Dkt. No. 20. Thereafter, Plaintiff filed an amended complaint
on April 8, 2025, naming Officer Martinez, Albuquerque Police Supervisory Training Officer
Sergeant S. Weinstein (#5660), and the City as defendants. See Am. Compl. 1, 21-27, Dkt. No. 25.
Plaintiff’s amended complaint states two causes of actions against Officer Martinez and
Sergeant Weinstein and one against the City. As for the claims against the officers, Plaintiff first
asserts that Officer Martinez and Sergeant Weinstein violated his Fourth Amendment rights when
they arrested him, confined him, and prosecuted him without probable cause and when they
conspired to file a false criminal complaint and to offer perjured testimony. Am. Compl. ¶¶ 111-23,
Dkt. No. 25. Plaintiff claims that the officers did not have probable cause to arrest him because he
was acting in self-defense when he shot Baify. Id. ¶ 118. He further contends that Officer Martinez
and Sergeant Weinstein knowingly and with reckless disregard for the truth made materially false
statements in the criminal complaint and to the grand jury. Id. In Count II, Plaintiff asserts that
Officer Martinez and Sergeant Weinstein conspired to deprive him of his liberty interest without
due process of law in violation of the Fourteenth Amendment, his right under the Fourth
Amendment to be free from unreasonable seizure (arrest), excessive force, and illegal search, and
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his right under the Sixth Amendment to a fair legal proceeding. Id. ¶¶ 124-34. The conspiracy
claim for false arrest, false imprisonment, and malicious prosecution is based on Sergeant
Weinstein deciding with Officer Martinez that Officer Martinez would include an allegedly false
admission from Plaintiff that he shot Baify for a third time while Baify was on the ground in the
criminal complaint, and that Officer Martinez would testify to that effect to the grand jury. Id.
¶¶ 128-31.
Finally, Plaintiff asserts that the City failed to monitor, supervise, and train its officers in
violation of his Fourth, Sixth, and Fourteenth Amendment rights. Id. ¶¶ 135-40. Plaintiff alleges
that the City’s failure to monitor, supervise, and train its supervisory training officers “amounted
to deliberate indifference to the rights of persons with whom the police” encounter during their
investigations. Id. ¶ 139. He also contends that the City ratified Officer Martinez’s conduct because
Sergeant Weinstein was APD’s final decisionmaker on the issues and he directed and allowed the
submission of false statements. Id. ¶ 138.
Officer Martinez and the City filed a motion to dismiss (Dkt. No. 27), asserting qualified
immunity. They also filed a motion to stay discovery (Dkt. No. 28) until the questions of qualified
immunity are decided. The Court granted the request to stay discovery. Order, Dkt. No. 30. Plaintiff
filed a response (Dkt. No. 29), opposing the motion to dismiss. Of note, in his response, Plaintiff
stated that Officer Martinez referred to him as an n-word and that at the detention center Sergeant
Weinstein told him to “shut up.” Pl.’s Resp. 5, Dkt. No. 29.
Defendants Martinez and the City filed a reply (Dkt. No. 32). At the end of their reply,
Defendants asserted that Plaintiff’s allegations regarding Officer Martinez using the n-word and
Sergeant Weinstein telling Plaintiff to shut up were without a good faith basis. Def.’s Reply 10-11,
Dkt. No. 32. According to defense counsel, she and her staff watched the lapel camera video from
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the incident and at no time were those statements or interactions located. Defs.’ Reply 10-11, Dkt.
No. 32. Defendants, relying on Rule 11, request that Plaintiff withdraw or correct the allegations.
Id. Defendants filed a notice of completion of briefing (Dkt. No. 33).
Plaintiff, after several attempts, served Defendant Weinstein. See Summons, Dkt. Nos. 34-
37. Defendant Weinstein thereafter filed a notice of joinder in the motion to dismiss (Dkt. No. 38).
Defense counsel also attached to the notice the emails in which defense counsel notified Plaintiff’s
counsel that Plaintiff named the wrong defendant. See Notice, Dkt. No. 38, & Ex. A, Dkt. No. 38-
1. In the Notice, Defendant asks that Plaintiff withdraw or correct the allegations against him.
Notice 1-2 n.1, Dkt. No. 38.
Plaintiff filed a response to the notice (Dkt. No. 39). In addition to addressing the merits of
his claims, Plaintiff objects to the Notice going beyond the pleadings and citing exhibits,
particularly when discovery has been stayed. Pl.’s Resp. 3-4, Dkt. No. 39. Plaintiff also addressed
the Rule 11 argument, standing by his allegations. See id. Plaintiff asserted:
Notwithstanding the fact the defendants have not tendered any discovery to the
plaintiff it is assumed that from the very start defendants Martinez and Weinstein
have been involved in a spoliation of evidence regarding the “recordings” and the
“video” that defendant Weinstein indicates he has but which have not been
produced. It is assume[d] that video and audio evidence has either been destroyed
or edited by Weinstein.
Id. at 4-5. Although Plaintiff cited the law for spoliation sanctions, he did not expressly request
sanctions. See id. at 5. Plaintiff argued that Defendant Weinstein could have lodged the video to
support the contention that Plaintiff is lying, but instead, they “call[ed] plaintiff and plaintiff’s
counsel names” without evidentiary support. Id. at 6. Plaintiff requests that the Court strike the
arguments about evidence outside the four corners of the complaint and notes that counsel is
inappropriately vouching for her client. See id. at 22.
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In reply, Defendant Weinstein argues, among other things, that Plaintiff had no good faith
basis for an accusation of spoliation of evidence. Reply 7, Dkt. No. 40. Defendant Weinstein also
contends that the motion to dismiss is based on the insufficiency of the allegations of the amended
complaint, and it is unnecessary for the Court to consider any evidence in ruling on the motion. Id.
at 7-8.
The Court will confine its analysis of the motion to dismiss to the facts alleged in the
amended complaint. Because the Court will not consider any outside evidence, it need not strike
the arguments regarding the evidence. Any issues concerning Rule 11 or spoliation are best
addressed and considered in a separate motion. The Court will not address them here, and instead,
now turns to the merits of the motion to dismiss.
III. 	STANDARD OF REVIEW
For a party to survive a motion to dismiss, “a complaint must contain sufficient factual
matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (internal quotations omitted). A complaint that offers “labels and
conclusions” or “a formulaic recitation of the elements of a cause of action” is insufficient to state
a claim for relief. Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A plaintiff
must allege either direct or inferential allegations on all the material elements of a claim and
provide enough factual allegations for a court to infer the claim is plausible. See Bryson v.
Gonzales, 534 F.3d 1282, 1286 (10th Cir. 2008). Conclusory allegations without supporting factual
allegations are insufficient to state a claim. Riddle v. Mondragon, 83 F.3d 1197, 1202 (10th Cir.
1996) (quoting Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)). A plaintiff need only allege
enough facts to make his claim plausible on its face and provide fair notice to the defendant. Keith
v. Koerner, 707 F.3d 1185, 1188 (10th Cir. 2013).
IV. 	DISCUSSION
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Plaintiff’s constitutional claims are asserted pursuant to 42 U.S.C. § 1983, the “remedial
vehicle for raising claims based on the violation of [federal] constitutional rights.” Brown v.
Buhman, 822 F.3d 1151, 1161 n.9 (10th Cir. 2016). Section 1983 provides that any person who,
under color of law, subjects another person to a deprivation of federal or constitutional rights “shall
be liable to the party injured in an action at law....” 42 U.S.C. § 1983. Because the common law at
the time of the statute’s enactment recognized certain immunities for government officials, the
Supreme Court recognizes similar immunities under § 1983, one of which is qualified immunity.
See Filarsky v. Delia, 566 U.S. 377, 383-90 (2012). Qualified immunity shields government
officials performing discretionary functions from liability for civil damages so long as their
conduct does not violate clearly established federal statutory or constitutional rights of which a
reasonable person would have known. Riggins v. Goodman, 572 F.3d 1101, 1107 (10th Cir. 2009)
(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
To defeat a qualified immunity defense at the motion to dismiss stage, a plaintiff must
“allege facts sufficient to show (assuming they are true) that the (1) defendant[ ] plausibly violated
their constitutional rights, and that (2) those rights were clearly established at the time.” Brown v.
City of Tulsa, 124 F. 4th 1251, 1265 (10th Cir. 2025) (quoting Robbins v. Oklahoma, 519 F.3d
1242, 1249 (10th Cir. 2008)). A court may exercise its discretion in deciding which of the two
prongs of the qualified immunity analysis should be addressed first based on the circumstances of
the case before it. Pearson v. Callahan, 555 U.S. 223, 236 (2009). “[I]f the plaintiff fails to
establish either prong of the two-pronged qualified immunity standard, the defendant prevails on
the defense.” A.M. v. Holmes, 830 F.3d 1123, 1134-35 (10th Cir. 2016). For a right to be clearly
established under the second prong, “[t]he contours of the right must be sufficiently clear that a
reasonable official would understand that what he is doing violates that right.” Albright v.
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Rodriguez, 51 F.3d 1531, 1535 (10th Cir. 1995) (quoting Anderson v. Creighton, 483 U.S. 635,
640 (1987)). A plaintiff can demonstrate that a constitutional right is clearly established by
references to on-point cases from the Supreme Court, the Tenth Circuit, or the clearly established
weight of authority from other circuits. Archuleta v. Wagner, 523 F.3d 1278, 1283 (10th Cir. 2008).
A. Claims against Max Denerstein
Although Max Denerstein was named in the original complaint, Plaintiff removed him
entirely from the amended complaint. Compare Compl., Dkt. No. 1-1; with Am. Compl, Dkt. No.
25. The Court construes the amended complaint as a voluntary dismissal of Plaintiff’s claims
against Max Denerstein. Where, as here, an opposing party has filed an answer, “an action may be
dismissed at the plaintiff’s request only by court order, on terms that the court considers proper.”
Fed. R. Civ. P. 41(a)(2). A dismissal under Rule 41(a)(2) “is without prejudice.” Id. Accordingly,
the Court will dismiss without prejudice the claims against Defendant Max Denerstein.
B. Count I: Claim for Violations of the Fourth Amendment Under 42 U.S.C.
§ 1983 Against Officer Martinez and Sergeant Weinstein
1. 	False arrest claim
The warrantless arrest of a person in a public place based on probable cause does not violate
the Fourth Amendment. United States v. Santana, 427 U.S. 38, 42 (1976) (citing United States v.
Watson, 423 U.S. 411, 414-15 (1976)); United States v. Davis, 94 F.3d 1465, 1468 (10th Cir. 1996).
Probable cause to support a warrantless arrest exists when the facts and circumstances within an
officer’s knowledge are sufficient to warrant a reasonable person to believe that the suspect had
committed or was committing an offense. See Beck v. Ohio, 379 U.S. 89, 91 (1964). “[T]he
probable cause inquiry is not restricted to a particular offense, but rather requires merely that
officers had reason to believe that a crime—any crime—occurred.” United States v. Turner, 553
F.3d 1337, 1345 (10th Cir. 2009). “[I]n determining whether probable cause exists, the courts must
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apply the totality of circumstances test.” Brierley v. Schoenfeld, 781 F.2d 838, 841 n.1 (10th Cir.
1986). A court examines the “events leading up to the arrest, and then decide[s] whether these
historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to
probable cause.” Hinkle v. Beckham Cnty. Bd. of Cnty. Comm’rs, 962 F.3d 1204, 1220 (10th Cir.
2020). Probable cause is not a high bar. Id. (quoting Kaley v. United States, 571 U.S. 320, 338
(2014)). Probable cause is a substantial probability the suspect committed a crime, “requiring
something more than a bare suspicion.” Bledsoe v. Carreno, 53 F.4th 589, 614 (10th Cir. 2022)
(internal quotations omitted). Nevertheless, the standard “requires officers to reasonably interview
witnesses readily available at the scene, investigate basic evidence, or otherwise inquire if a crime
has been committed at all before invoking the power of warrantless arrest.” Maresca v. Bernalillo
County, 804 F.3d 1301, 1310 (10th Cir. 2015) (quoting Cortez v. McCauley, 478 F.3d 1108, 1117
(10th Cir. 2007)).
Observation of the facts in this case from the viewpoint of an objectively reasonable officer
leads this Court to find that Officer Martinez and Sergeant Weinstein had probable cause to arrest
Plaintiff. Plaintiff admitted to shooting Baify three times. Am. Compl. ¶¶ 28-30, Dkt. No. 25.
When Officer Martinez and Sergeant Weinstein arrived at the scene and interviewed witnesses,
they were informed of the following. Id. ¶¶ 36-40. One witness recounted seeing Baify “visibly
agitated” and trying to fight other people. Id. ¶ 37. Another witness heard Plaintiff yelling “drop
it, don’t point it at me,” id. ¶ 38, while yet another witness heard the gunfire and saw Scott pointing
a gun at Baify on the ground and yelling, “Get down, stay down, cops on the way,” id. ¶ 40. Witness
Steven Estrada reported watching Baify aggressively approach Plaintiff with a heavy blue bag, and
then seeing Plaintiff shoot Baify. Id. ¶ 39.
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New Mexico law states: “Whoever commits aggravated battery inflicting great bodily harm
or does so with a deadly weapon or does so in any manner whereby great bodily harm or death can
be inflicted is guilty of a third degree felony.” N.M. Stat. Ann. 1978, § 30-3-5(C). The statute
defines aggravated battery as “the unlawful touching or application of force to the person of
another with intent to injure that person or another.” Id. § 30-3-5(A). Here, Officer Martinez and
Sergeant Weinstein arrived at the scene and learned that Plaintiff had shot Baify three times,
inflicting great bodily harm on him with a deadly weapon. Probable cause is not a high bar, Hinkle,
962 F.3d at 1220, and from the viewpoint of an objectively reasonable officer at the scene, the
evidence was sufficient to believe that Plaintiff had violated New Mexico law by shooting Baify
three times during an altercation. Based on Plaintiff’s admission to shooting Baify and the
witnesses’ recounting of events, Officer Martinez and Sergeant Weinstein had probable cause to
arrest Plaintiff.
Plaintiff argues that Officer Martinez and Sergeant Weinstein did not have probable cause
to arrest him because (1) Plaintiff acted in self-defense when he shot Baify, (2) Officer Martinez
knew this fact and ignored it, and (3) Officer Martinez lied about Plaintiff shooting Baify for a
third time while Baify was on the ground so that the criminal complaint would be accepted and
prosecuted by the District Attorney’s Office. Am. Compl. ¶¶ 118-19, Dkt. No. 25. Plaintiff
encourages the Court to consider these facts as decisively showing Officer Martinez and Sergeant
Weinstein did not have probable cause. See Resp. 8, 15, Dkt. No. 29. In support, Plaintiff cites the
New Mexico statute stating that homicide is justifiable “when committed in the lawful defense of
himself or of another and when there is a reasonable ground to believe a design exists to commit
a felony or to do some great personal injury against such person or another, and there is imminent
danger that the design will be accomplished.” N.M. Stat. Ann. § 30-2-7(B).
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Courts must view the circumstances in their totality rather than individually when assessing
probable cause. United States v. Valenzuela, 365 F.3d 892, 897 (10th Cir. 2004). While the officers
had some evidence based on their interview of Plaintiff that he was motivated by self-defense when
he shot Baify, officers need not “rule out a suspect’s innocent explanation for suspicious facts.”
District of Columbia v. Wesby, 583 U.S. 48, 61 (2018). Even if an objectively reasonable officer
could have suspected that Plaintiff was acting in self-defense, the officer does not have to consider
this claim when deciding whether he has probable cause to make an arrest. Craft v. White, 840 F.
App’x 372, 378 (10th Cir. Jan. 14, 2021) (unpublished) (finding that probable cause existed even
if some evidence suggested self-defense); Sanchez v. Labate, 564 F. App’x 371, 374 (10th Cir.
2014) (unpublished) (noting that New Mexico law does not require officers to consider a claim of
self-defense in determining whether they have probable cause to arrest); Kapinski v. City of
Albuquerque, No. 18-cv-716 SCY/GJF, 2019 WL 2602551, at *10-11 (D.N.M. June 24, 2019)
(noting that officers had no duty to consider a claim of self-defense in deciding whether they had
probable cause to arrest plaintiff). Further, while witnesses saw and heard Baify acting
aggressively towards Plaintiff, no witness other than Plaintiff informed officers that Baify claimed
his bag was filled with rocks. Am. Compl. ¶¶ 36-40, Dkt. No. 25. An objectively reasonable officer
with this information could conclude that responding to the threat of a heavy bag with gunfire was
an unreasonable and disproportionate response. Accordingly, that Plaintiff claimed he was acting
in self-defense is not determinative in the probable cause analysis.
The timing of Plaintiff’s third shot at Baify is also irrelevant to the probable cause analysis
as to the false arrest claim. Plaintiff focuses much argument on his allegation that Officer Martinez
lied in the criminal complaint and to the grand jury by misrepresenting the situation around the
third shot by claiming that Plaintiff shot Baify while Baify was on the ground, instead of the third
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shot occurring while Baify was still standing and approaching Plaintiff. See Resp. 8-9, 12, Dkt.
No. 29. Plaintiff cites to Montoya v. City & Cnty. of Denver for the proposition that a Fourth
Amendment violation occurs if an officer’s affidavit supporting an arrest warrant contains a
reckless false statement or omission that was material to the issuance of the arrest warrant. No. 21-
1107, 2022 WL 1837828, at *4 (10th Cir. June 3, 2022). However, here, the filing of the criminal
complaint and testimony before the grand jury occurred after Defendants’ arrest – his arrest was a
warrantless arrest based on probable cause. Probable cause supported his arrest based on the
information the officers had regarding the first two shots, regardless of the circumstances of the
third shot.
Similarly, the omission of witness Estrada’s account from the criminal complaint is
irrelevant to the probable cause analysis because probable cause was established with or without
his account. Even considering that Estrada recalled that there had been an altercation and Baify
seemed to be the aggressor, the level of force Plaintiff used and the lack of an obvious weapon on
Baify are sufficient to lead a reasonable person to believe that Plaintiff had committed a crime.
Accordingly, these facts do not detract from a finding that the totality of the circumstances
supported probable cause to arrest Plaintiff and that his Fourth Amendment right to be free from
unlawful arrest was not violated. The Court finds that Officer Martinez and Sergeant Weinstein are
entitled to qualified immunity on Plaintiff’s § 1983 Fourth Amendment false arrest claim and will
dismiss the claim against them.
2. 	Malicious prosecution claim
Next, the Court turns to Plaintiff’s Fourth Amendment claim for malicious prosecution. A
successful Section 1983 claim for malicious prosecution requires five elements, with this analysis
hinging on the third: “(1) the defendant caused the plaintiff’s continued confinement or
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prosecution; (2) the original action terminated in favor of the plaintiff; (3) no probable cause
supported the arrest, confinement, or prosecution; (4) the defendant acted maliciously; and (5) the
plaintiff sustained damages.” Shrum v. Cooke, 60 F.4th 1304, 1310 (10th Cir. 2023) (emphasis
added) (citing Wilkins v. DeReyes, 528 F.3d 790, 799 (10th Cir. 2008)). Plaintiff contends that
Officer Martinez, aided and encouraged by Sergeant Weinstein, falsely stated in the criminal
complaint and falsely testified before the grand jury that Plaintiff shot Baify while Baify was on
the ground. Plaintiff additionally asserts that Officer Martinez falsely testified he was an
experienced officer trained to investigate violent crimes and omitted the eyewitness account of
witness Estrada who saw Baify threatening Plaintiff. For their part, Defendants argue that the
presence of probable cause defeats the malicious prosecution claim.
According to Plaintiff, Defendant Martinez falsely stated in the criminal complaint that all
witnesses said Baify had nothing in his hands, when Detective Martinez knew that witness Estrada
said that Baify tried to attack Scott with a heavy blue bag before Scott shot him. Plaintiff also
asserts Defendants falsely put in the complaint and falsely stated before the grand jury that Scott
fired a third round at Baify while he lay on the ground. According to Plaintiff, the law is clearly
established that an officer who manufactures evidence that is false to prosecute a plaintiff violates
the plaintiff’s rights and states a malicious prosecution claim.
Officers are liable under § 1983 and § 1985(2) “when they conspire to procure groundless
state indictments and charges based upon fabricated evidence or false, distorted, perjurious
testimony presented to official bodies in order to maliciously bring about a citizen's trial or
conviction.” Anthony v. Baker, 767 F.2d 657, 662 (10th Cir. 1985). An officer who purposefully
conceals and misrepresents material facts to a prosecutor to influence his decision to prosecute
may be liable for malicious prosecution. Robinson v. Maruffi, 895 F.2d 649, 655 (10th Cir. 1990).
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As the Tenth Circuit has explained, an official “who prevaricates and distorts evidence to convince
prosecuting authorities to press charges is no less reprehensible than an officer who, through false
statements, prevails upon a magistrate to issue a warrant.” Pierce v. Gilchrist, 359 F.3d 1279, 1293
(10th Cir. 2004).
Nevertheless, to succeed on a malicious prosecution claim, the plaintiff must show an
absence of probable cause to support the arrest, confinement, or continued prosecution. See id. at
1294-95. In Franks v. Delaware, “the Supreme Court held that affiants seeking arrest warrants
violate the constitution when they knowingly, or with reckless disregard for the truth, include false
statements in a supporting affidavit or omit information which, if included, would prevent the
warrant from lawfully issuing.” Kapinski v. City of Albuquerque, 964 F.3d 900, 905 (10th Cir.
2020) (citing Franks v. Delaware, 438 U.S. 154, 171 (1978)). For omissions, the plaintiff must
show the omitted information was “material” in that its inclusion would have negated probable
cause. See id. Consequently, in a Fourth Amendment claim based on falsified evidence, “probable
cause is determined by setting aside the false information and reviewing the remaining contents”
of the affidavit. See id. For a case based on withholding exculpatory evidence, probable cause is
determined by looking at the totality of the evidence, including the omitted information. Id. “The
probable cause requirement is central to the common law tort, because not every arrest,
prosecution, confinement, or conviction that turns out to have involved an innocent person should
be actionable.” Pierce, 359 F.3d at 1294. In the context of a qualified immunity defense, the court
examines the evidence without the falsified inculpatory evidence and with the withheld
exculpatory evidence and then asks whether there was arguable probable cause – whether there is
an objectively reasonable, even if mistaken, belief that probable cause exists. Bledsoe, 53 F.4th at
614-15.
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The Kapinski case is informative. There, the plaintiff, after shooting and killing two men,
was arrested for the murder based on an affidavit that failed to mention the detective had video
surveillance footage of the shooting that showed the plaintiff being punched and hit repeatedly,
without provocation, before he shot both men. See Kapinski, 964 F.3d at 901-03. The affidavit also
included certain information consistent with the plaintiff acting in self-defense, such as an
eyewitness seeing one of the decedents punch the plaintiff. Id. at 903-04. After the jury found him
not guilty based on self-defense, the plaintiff sued the detective for false arrest and malicious
prosecution. Id. at 904. The Tenth Circuit concluded that, although a jury could reasonably
conclude the plaintiff acted in self-defense, the evidence also established probable cause, because
there was a substantial probability that when the plaintiff shot one of the decedents, there was no
appearance of immediate danger or death or great bodily harm to the plaintiff. Id. at 907. Notably,
the Tenth Circuit cited N.M.U.J.I. 14-131, which defined “great bodily harm” as an injury to a
person creating a high probability of death or resulting in serious disfigurement or resulting in loss
of any member or organ of the body or results in permanent or prolonged impairment of the use of
any member or organ of the bodily. Id. & n.4. Consequently, the Tenth Circuit determined that the
amended warrant supported probable cause, rendering the omitted video footage immaterial. Id. at
908.
Here, the critical question is whether there was probable cause to support the indictment
and continued prosecution of Plaintiff had the grand jury or prosecutors had before them the fact
that Estrada saw Baify trying to attack Plaintiff with a heavy blue bag before Plaintiff shot him,
and setting aside the allegedly false facts that Plaintiff shot Baify the third time while Baify was
on the ground and, in the case of the grand jury, that Officer Martinez was an experienced officer
trained to investigate violent crimes. As explained supra, there was probable cause that Plaintiff
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committed the crime based on the first two shots he fired, so testimony concerning the third shot
was extraneous. As for Estrada’s observation, it did not negate that Plaintiff shot Baify three times.
Nor is it definitive evidence that Plaintiff responded reasonably to an immediate danger where he
shot Baify three times when he approached with a heavy bag. There is a substantial probability
that, at the time Scott shot Baify, the heavy bag did not create the appearance of immediate danger
of death or great bodily harm, as defined in N.M.U.J.I. 14-131. Thus, probable cause existed even
if some evidence suggested self-defense. Cf. Craft, 840 F. App’x at 378 (“New Mexico law
recognizes self-defense only when the conduct involves a reasonable, necessary response to an
‘immediate danger,’ NMRA, Crim. UJI 14-5182, and the video does not definitively show whether
Mr. Craft responded reasonably to an immediate danger. We thus conclude that Mr. Craft's claim
of malicious prosecution fails based on the existence of probable cause.”).4 Accordingly, even
when considering the facts of the criminal complaint by removing the alleged falsity and including
the omitted information, the facts do not vitiate probable cause. Cf. Kapinski, 964 F.3d at 907
(“Although a jury could, reasonably, conclude that Kapinski was acting in self-defense, we find
the evidence also establishes probable cause. That is, there is a substantial probability that, at the
4 That probable cause exists despite a colorable self-defense claim distinguishes this case from the cases upon which
Plaintiff relies. See, e.g., Montoya v. City and County of Denver, No. 21-1107, 2022 WL 1837828, at *3-7 (10th Cir.
June 3, 2022) (discussing how, without false statements, there were no facts in affidavit that placed plaintiff at crime
scene or implicated him in the crime); Maresca, 804 F.3d at 1311 (determining officer lacked probable cause to arrest
driver with his wife and three kids where sole basis was officer’s mistaken and unreasonable belief that truck was
stolen because she mistyped license plate number into her computer and then failed to use readily available information
from computer screen in front of her and from dispatch to verify report); Wilkins, 528 F.3d at 801-02 (concluding there
was absence of probable cause when excluding allegedly false coerced statements from warrant because that was only
evidence implicating plaintiffs in murders); Robinson v. Maruffi, 895 F.2d 649, 651-53, 655, 657 (10th Cir. 1990)
(Tenth Circuit rejected officers’ argument that causal connection between their purposeful concealment and
misrepresentation of material facts to district attorney and plaintiff's injuries were broken by subsequent, independent
and intervening acts of the prosecutor, grand jury, state trial court and the New Mexico Supreme Court; case did not
involve self-defense claim); Jones v. City of Chicago, 856 F.2d 985, 994 (7th Cir. 1988) (explaining that officers lacked
probable cause to believe plaintiff committed crime based only on facts showing victim with severe head injury
momentarily identified plaintiff equivocally and immediately withdrew identification, rendering it worthless); Clipper
v. Takoma Park, Md., 876 F.2d 17, 19-20 (4th Cir. 1989) (concluding officers did not have probable cause to arrest
plaintiff based on lack of evidence identifying him as bank robber).
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time Kapinski shot Francia, there was no ‘appearance of immediate danger of death or great bodily
harm’ to Kapinski.”).
Plaintiff nevertheless alleges that the officers knew they needed additional facts to negate
a self-defense theory for the prosecutors to move forward with the case. The Court will assume for
purposes of this discussion that the factual allegations in the complaint are sufficient to support an
inference that the district attorney’s office had such a policy. The question is then whether, despite
the presence of probable cause to support the arrest and continued prosecution of Scott, the officers
can be liable for the false statements designed to meet a heightened policy standard. None of the
cases Plaintiff cited are on point and in support of his position. While such a scenario would be
troubling, the Court remains unconvinced that a malicious prosecution claim based on the Fourth
Amendment can move forward where the undisputed facts show probable cause to support a
prosecution. Officer Martinez and Sergeant Weinstein are entitled to qualified immunity on this
claim because no constitutional violation has been shown. Cf. Grubbs v. Bailes, 445 F.3d 1275,
1278 (10th Cir. 2006) (“If hypothetically correcting the misrepresentation or omission would not
alter the determination of probable cause, the misconduct was not of constitutional significance
and is not actionable under § 1983….”). Plaintiff’s claims against Officer Martinez and Sergeant
Weinstein will be dismissed.5
5 Plaintiff brings a claim for malicious prosecution under the Fourteenth Amendment in Count II,
premised on a violation of his due process rights but based on the same factual allegations as his
claim under the Fourth Amendment. Am. Compl. ¶¶ 124-134, Dkt. No. 25. He maintains in his
response that this claim survives even if the claim under the Fourth Amendment fails. Resp. 11,
Dkt. No. 29. It appears Plaintiff bases this on since-overruled reasoning that if an individual has
been imprisoned pursuant to legal but wrongful process, they have a claim under the procedural
component of the Fourteenth Amendment’s Due Process Clause analogous to a tort claim for
malicious prosecution. Pierce v. Gilchrist, 359 F.3d 1279, 1285-86 (10th Cir. 2004); Mondragon
v. Thompson, 519 F.3d 1078, 1083 (10th Cir. 2008). However, the Supreme Court clarified that
“the Fourth Amendment governs a claim for unlawful pretrial detention even beyond the start of
legal process,” meaning that the initiation of the legal process does not extinguish a plaintiff’s
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C. Count 	II: 	Claim 	for Violations 	of 	the 	Fourth, 	Sixth, 	and 	Fourteenth
Amendments under 42 U.S.C. § 1985 Against Officer Martinez and Sergeant
Weinstein
Section 1985(3) provides a right of action where a conspiracy to interfere with a
constitutionally or federally protected right is motivated by racial or otherwise class-based
invidiously discriminatory animus. See Griffin v. Breckenridge, 403 U.S. 88, 102-03 (1971); 42
U.S.C. § 1985(3). A claim arises under this section of the statute where two or more persons
conspire for the purpose of depriving, either directly or indirectly, any person or class of persons
of the equal protection of the laws, or of equal privileges and immunities under the laws. See 42
U.S.C. § 1985(3). “Section 1985(3) provides no substantive rights itself; it merely provides a
remedy for violation of the rights it designates.” Great Am. Fed. Sav. & Loan Ass’n v. Novotny,
442 U.S. 366, 372 (1979); Gallegos v. City & Cnty. of Denver, 984 F.2d 358, 362 (10th Cir. 1993)
(citing Dixon v. City of Lawton, 898 F.2d 1443, 1448 (10th Cir. 1990)).
To state a claim under § 1985(3), a plaintiff must show the following: (1) a conspiracy;
(2) for the purpose of depriving, either directly or indirectly, any person or class of persons of the
equal protection of laws, or of equal privileges and immunities under the law; (3) an act in
furtherance of the conspiracy; (4) whereby a person is either injured in his person or property or
deprived of any right or privilege of a citizen of the United States. Griffin, 403 U.S. at 102-03;
Tilton v. Richardson, 6 F.3d 683, 686 (10th Cir. 1993). In addition, the statute has been interpreted
to require “some racial, or perhaps otherwise class-based, invidiously discriminatory animus
behind the conspirators’ actions.” Griffin, 403 U.S. at 102. “The conspiracy, in other words, must
aim at a deprivation of the equal enjoyment of rights secured by the law to all.” Id.
Fourth Amendment unreasonable detention claim. Manuel v. City of Joliet, III, 580 U.S. 357, 369
(2017). So even though Plaintiff challenges his confinement after the institution of legal process,
it is still a Fourth Amendment claim. Accordingly, Plaintiff’s Fourteenth Amendment claim for
malicious prosecution against Officer Martinez will be dismissed.
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Plaintiff claims that Officer Martinez and Sergeant Weinstein conspired to deprive him of
his civil rights by plotting to falsely arrest, imprison, and maliciously prosecute Plaintiff, in
violation of his Fourth Amendment rights, and to deprive him of the right to a fair legal proceeding
in violation of his Sixth Amendment rights. However, because this Court found that Officer
Martinez and Sergeant Weinstein had probable cause to arrest Plaintiff, the false arrest,
imprisonment, and malicious prosecution claims brought pursuant to § 1985 cannot be sustained
as Plaintiff cannot show he was deprived of his Fourth Amendment rights. Officer Martinez and
Sergeant Weinstein are entitled to qualified immunity on this claim and the claims will be
dismissed against them.6
Further, Plaintiff does not expand upon his Sixth Amendment claim beyond stating that
“[t]he conspiracy entered by the defendant officers was for the deprivation of Scott’s . . . right to a
fair legal proceeding under the Sixth Amendment.” Am. Compl. ¶ 126. Nor does he flesh out this
claim in his response. “[C]onclusory allegations without supporting factual averments are
insufficient to state a claim on which relief can be based.” Hall v. Bellmon, 935 F.2d 1106, 1110
(10th Cir. 1991). Accordingly, because Plaintiff has not provided a factual basis for any Sixth
Amendment claim, Plaintiff’s claims against Officer Martinez and Sergeant Weinstein for
conspiracy to violate his Sixth Amendment rights will also be dismissed.
D. Count III: Claim for Violations of the Fourth, Sixth, and Fourteenth
Amendments under § 1983 and § 1985 Against the City of Albuquerque
There is no respondeat superior liability under § 1983. Est. of Beauford v. Mesa Cnty.,
Colo., 35 F.4th 1248, 1274-75 (10th Cir. 2022); Schneider v. City of Grand Junction Police Dep’t,
6 In his conspiracy count, Plaintiff in paragraph 126 of his amended complaint references “excessive force” among
other deprivations. See Am. Compl. ¶ 126, Dkt. No. 25. Plaintiff, however, has not provided any argument or authority
in support of an excessive force claim. To the extent he attempted to bring claim for conspiracy to use excessive force,
the Court dismisses the claim based on Plaintiff’s failure to meet his burden on qualified immunity.
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717 F.3d 760, 767 (10th Cir. 2013). A local government body may be held liable “only for its own
unconstitutional or illegal policies and not for the tortious acts of its employees.” Barney v.
Pulsipher, 143 F.3d 1299, 1307 (10th Cir. 1998). To establish a claim under § 1983 against a local
government body for the acts of employees, a plaintiff must prove: (1) that an employee committed
a constitutional violation, and (2) that a policy or custom of the government body was the “moving
force” behind the constitutional violation. Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978);
Hinkle v. Beckham Cnty. Bd. of Cnty. Comm’rs, 962 F.3d 1204, 1239 (10th Cir. 2020). The “policy
or custom” requirement may be shown by: (1) a formal regulation or policy statement; (2) an
informal custom amounting to a widespread practice that, although not authorized by written law
or express municipal policy, is so permanent and well settled as to constitute a custom or usage
with the force of law; (3) the decisions of employees with final policymaking authority; (4) the
ratification by such final policymakers of the decisions—and the basis for them—of subordinates
to whom authority was delegated subject to these policymakers’ review and approval; or (5) the
failure to adequately train or supervise employees, so long as that failure results from deliberate
indifference to the injuries that may be caused. Bryson v. City of Oklahoma City, 627 F.3d 784,
788 (10th Cir. 2010); see Monell, 436 U.S. at 694; Pembaur v. Cincinnati, 475 U.S. 469, 480
(1986).
To establish that a challenged policy or custom was the “moving force” behind the
constitutional violation, the plaintiff must show that it was “closely related to the violation of the
plaintiff’s federally protected right.” Schneider, 717 F.3d at 770. It is not sufficient for a plaintiff
to allege that she was harmed and that the harm could have been prevented if the governmental
entity did something different in the way of training or supervision. Connick v. Thompson, 563
U.S. 51, 68 (2011). Nor is it sufficient to allege “general deficiencies” in training or supervision;
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instead, the plaintiff must “‘identify a specific deficiency’ that was obvious and ‘closely related’
to” the injury. Porro v. Barnes, 624 F.3d 1322, 1328 (10th Cir. 2010) (quoting Lopez v. LeMaster,
172 F.3d 756, 760 (10th Cir. 1999)); see Schneider, 717 F.3d at 769. In addition, the plaintiff must
show that an alleged failure to train or supervise amounted to “deliberate indifference to the rights
of persons with whom the [untrained employees] come into contact.” Thompson, 563 U.S. at 61
(quoting City of Canton v. Harris, 489 U.S. 378, 388 (1989)).
Here, Plaintiff argues that the City of Albuquerque has a “municipal policy or custom of
unconstitutional training and supervision” of APD supervisor training officers who fail to train
new APD officers to investigate crimes or felonies. Am. Compl. ¶ 136. Plaintiff claims this policy
allows supervisor training officers to forego proper training and enter conspiracies with other APD
officers under their supervision to violate citizens’ rights. Id. According to Plaintiff, this resulted
in Sergeant Weinstein directing Officer Martinez to submit a criminal complaint that contained
false statements to the Metropolitan Court and to testify falsely before the grand jury. Id. ¶ 138.
However, it is well established that a government body cannot be held liable under § 1983
for the acts of an employee if the employee did not commit a constitutional violation. City of Los
Angeles v. Heller, 475 U.S. 796, 799 (1986) (per curiam); Myers v. Okla. Cnty. Bd. of Cnty.
Comm’rs, 151 F.3d 1313, 1316 (10th Cir. 1998); see Hinton v. City of Elwood, 997 F.2d 774, 782
(10th Cir. 1993) (“A municipality may not be held liable where there was no underlying
constitutional violation by any of its officers.”). A determination that an employee is entitled to
qualified immunity, however, does not necessarily preclude municipal liability; an individual
officer—but not a municipality—is entitled to qualified immunity even if the officer committed a
constitutional violation but the law was not clearly established. Myers, 151 F.3d at 1317. However,
Officer Martinez was entitled to qualified immunity because he did not commit constitutional
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violations in this case. See supra Sections III.A, III.B; Hinkle v. Beckham Cnty. Bd. of Cnty.
Comm’rs, 962 F.3d 1204, 1226 (10th Cir. 2020) (“[Plaintiff’s] Monell claim [fails] because he was
arrested with probable cause.”). This finding did not rest on a determination that the law was not
clearly established. See supra Sections III.A, III.B. Accordingly, this finding forecloses Plaintiff’s
Fourth, Sixth, and Fourteenth Amendment claims against the City of Albuquerque, and these
claims will be dismissed.
V. 	CONCLUSION
IT IS THEREFORE ORDERED that Defendants Officer Martinez, Sergeant Weinstein,
and the City of Albuquerque’s Motion to Dismiss Plaintiff’s First Amended Complaint on Qualified
Immunity and Other Grounds (ECF No. 27) is GRANTED. Plaintiff’s claims against Officer
Martinez, 	Sergeant 	Weinstein, 	and 	the 	City 	of 	Albuquerque 	are 	DISMISSED 	WITH
PREJUDICE. 	Further, 	all 	claims 	against 	Defendant 	Max 	Denerstein 	are 	DISMISSED
WITHOUT PREJUDICE.
_______________________________________
SENIOR UNITED STATES DISTRICT JUDGE
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