United States District Court, D. New Mexico
December 2, 2016
JACKIE MARTINEZ, as Personal Representative on behalf of the Estate of Russell Martinez, Plaintiff,
JOSEPH SALAZAR, in his individual capacity, GREG ESPARZA, in his individual capacity, THE ESPANOLA DEPARTMENT OF PUBLIC SAFETY, LEO MONTOYA, and THE CITY OF ESPANOLA, Defendants.
MEMORANDUM OPINION AND ORDER
matter comes before the Court upon Defendant Joseph Salazar,
Greg Esparza, the Espanola Department of Public Safety, Leo
Montoya, and the City of Espanola's
(“Defendants'”) Motion to Dismiss for Failure
to State a Claim and Memorandum of Law in Support
(“Motion to Dismiss”), filed on July 14, 2015.
(Doc. 93). Plaintiff filed a response on July 31, 2015, and
Defendants filed a reply on August 14, 2015. (Docs. 96 and
97). Having reviewed the Motion to Dismiss and the
accompanying briefs, the Court GRANTS IN PART and DENIES IN
PART the Motion to Dismiss.
a police excessive force case arising from interactions
between Russell Martinez (“Mr. Martinez”) and
Defendants Joseph Salazar and Greg Esparza on May 11, 2012.
Mr. Martinez originally filed this case on May 5, 2014, in
the First Judicial District Court, County of Rio Arriba, New
Mexico. (Doc. 1-1). Defendants later removed the case to this
Court on June 6, 2014. (Doc. 1). Subsequently, Mr. Martinez
filed his First Amended Complaint for Damages Resulting from
Civil Rights Violations, Intentional Torts, Negligence, and
Violations of Title II of the Americans with Disabilities Act
(“Amended Complaint”). (Doc. 88).
Amended Complaint, Plaintiff alleges that Mr. Martinez is
paraplegic, has had his lower left leg amputated, and has no
feeling in his lower body. Id. at 3:10. On May 11,
2012, Mr. Martinez and his wife, Mrs. Jackie Martinez, had an
argument in their car in a parking lot. Id. at
3:11-12. During the argument, bystanders called the police,
and Espanola Police Department Officer Joseph Salazar
(“Defendant Salazar”) arrived at the scene.
Id. at 3:12-13. Mrs. Martinez spoke to Defendant
Salazar and told him that Mr. Martinez was paraplegic,
immobile, and unable to drive. Id. at 3:14. Mr.
Martinez remained in the car. Id. at 3:13. While
investigating the incident, Defendant Salazar approached the
car and asked Mr. Martinez to exit the vehicle. Id.
at 3:16. Mr. Martinez responded that he is immobile.
Id. Defendant Salazar then pulled Mr. Martinez from
his car, beat him, and drive stunned him with a taser,
despite the fact that he could not move his lower body.
Id. at 4:17-18. During the encounter, Officer Greg
Esparza (“Defendant Esparza”) arrived on the
scene and shot Mr. Martinez in the chest with a taser.
Id. at 4:21. As a result, Mr. Martinez suffered
excruciating pain and injuries, and was transported to
Espanola Hospital. Id. at 4:22-23. Although
Defendant Salazar claimed in a police report that Mr.
Martinez had committed the offense of Battery Upon a Peace
Officer, neither Defendant Salazar nor Defendant Esparza ever
brought charges against Mr. Martinez. Id. at 4:24.
on these allegations, the Amended Complaint alleges four
counts. In Count I, Plaintiff brings 42 U.S.C. § 1983
excessive force claims against Defendants Salazar and
Esparza. (Doc. 88) at 5. In Count II, Plaintiff brings New
Mexico Tort Claims Act (“NMTCA”) claims against
Salazar and Esparza for the intentional torts of assault,
battery, false arrest, and violation of the United States and
New Mexico constitutions. Id. at 5-6. In addition,
the Amended Complaint alleges respondeat superior
claims against the Espanola Department of Public Safety
(“EDPS”) and the City of Espanola for the
intentional torts allegedly committed by Salazar and Esparza.
Id. In Count III, Plaintiff brings state negligence
claims against Joe Montoya, the Director of the EDPS, for
negligently hiring, training, and/or supervising Salazar and
Esparza, and thereby causing Salazar and Esparza to commit
the intentional torts listed in Count II. Id. at
6-7. The Amended Complaint also alleges that EDPS and the
City of Espanola are liable for Montoya's negligent
actions under respondeat superior. Id. at
7. Finally, in Count IV, Plaintiff asserts claims under Title
II of the Americans with Disabilities Act (“ADA”)
against the EDPS and the City of Espanola for failing to
reasonably accommodate Mr. Martinez's disability in the
course of questioning, interacting with, and detaining him.
now move to partially dismiss the Amended Complaint for
failure to state a claim pursuant to Federal Rule of Civil
Procedure 12(b)(6). (Doc. 93). As grounds for dismissal,
Defendants first argue that Plaintiff's claims pursuant
to the ADA under a “wrongful arrest” theory must
be dismissed, since Plaintiff does not adequately allege that
Defendants wrongfully arrested Mr. Martinez because they
misperceived the effects of his disability as criminal
activity. (Doc. 93) at 4-6. Second, Defendants contend that,
to the extent Plaintiff asserts Section 1983 claims for
Defendants' failure to accommodate Mr. Martinez's
disability, Defendants are entitled to qualified immunity on
that claim, because that right was not clearly established at
the time of the encounter. Id. at 6-9. Plaintiff
opposes the Motion to Dismiss in its entirety. (Doc. 96). In
the event the Court finds Plaintiff's allegations
insufficient to state a claim, Plaintiff asks that she be
granted leave to amend the Amended Complaint. Id. at
Standard of Review
reviewing a Rule 12(b)(6) motion asserting a failure to state
a claim upon which relief can be granted, the Court must
accept all well-pleaded allegations as true and must view
them in a light most favorable to the plaintiff. Zinermon
v. Burch, 494 U.S. 113, 118 (1990). Rule 12(b)(6)
requires that a complaint set forth the grounds of a
plaintiff's entitlement to relief through more than
labels, conclusions and formulaic recitation of the elements
of a cause of action. See Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). To survive a 12(b)(6)
motion to dismiss, a complaint does not need to include
detailed factual allegations, but “[f]actual
allegations must be enough to raise a right to relief above
the speculative level.” Id. In other words,
dismissal of a complaint under Rule 12(b)(6) is proper only
where it is obvious that the plaintiff failed to set forth
“enough facts to state a claim to relief that is
plausible on its face.” Id. at 570. Dismissal
with prejudice is appropriate where a complaint fails to
state a claim under Rule 12(b)(6) and granting leave to amend
would be futile. Brereton v. Bountiful City Corp.,
434 F.3d 1213, 1219 (10th Cir. 2006).
move to partially dismiss two of the four counts alleged in
the Amended Complaint for failure to state a claim. The Court
will address each in turn.
Plaintiff's Claims under the ADA
first argue that this Court should partially dismiss
Plaintiff's claims under the ADA in Count IV of the
Amended Complaint. Under the ADA, two cognizable theories of
liability exist: (1) “wrongful arrest;” and (2)
“failure to accommodate” a disability. Defendants
do not challenge Plaintiff's claims under the
“failure to accommodate” theory. Rather,
Defendants argue that the Amended Complaint fails to state a
claim under the “wrongful arrest” theory because
Plaintiff does not allege that Defendants wrongfully arrested
Mr. Martinez because they misperceived the effects of his
disability as criminal activity. In response, Plaintiff
argues that, under the facts alleged in the Amended
Complaint, it is plausible that Defendant Salazar
misperceived Mr. Martinez's inability to follow orders,
as a result of his paraplegia, as unlawful conduct, which led
to the assault and detention of Mr. Martinez. Thus, Plaintiff
contends that she has plausibly alleged a “wrongful
arrest” claim under the ADA.
ADA Claims Based on Police Conduct During an Arrest or
Title II of the ADA, “no qualified individual with a
disability shall, by reason of such disability, be excluded
from participation in or be denied the benefits of such
services, programs or activities of a public entity, or be
subjected to discrimination by any such entity.” 42
U.S.C. § 12132. In the Tenth Circuit, a plaintiff must
prove three factors to establish a claim under Title II: (1)
that he or she is a qualified individual with a disability;
(ii) that he or she was either excluded from participation in
or denied the benefits of some public entity's services,
programs, or activities, or the public entity otherwise
discriminated against the plaintiff; and (iii) that such
exclusion, denial of benefits, or discrimination was by
reason of the plaintiff's disability. Trujillo v. Rio
Arriba Cty., No. CIV 15-0901 JB/WPL, 2016 WL 4035340, at
*8 (D.N.M. June 15, 2016) (citing Gohier v. Enright,
186 F.3d 1216, 1219 (10th Cir. 1999)).
Tenth Circuit has held that a plaintiff may state a claim
under Title II of the ADA based on police conduct in an
arrest or investigation. Twitchell v. Hutton, No.
10-CV-01939-WYD-KMT, 2011 WL 318827, at *10 (D. Colo. Jan.
28, 2011) (citing Gohier, 186 F.3d at 1220-21). In
Gohier v. Enright, the Tenth Circuit discussed Title
II claims arising from arrests under two different theories.
186 F.3d at 1220. First the Court discussed claims in which
the police wrongly arrested an individual with a disability
because the police misperceived the effects of that
disability as criminal activity. Id. (citing
Lewis v. Truitt, 960 F.Supp. 175, 176-77 (S.D. Ind.
1997); Jackson v. Town of Sanford, No. 94-12-P-H,
1994 WL 589617, at *1 (D. Me. Sept. 23, 1994)). Second, the
Court stated that a plaintiff may also recover where police
properly investigated and arrested a person with a disability
for a crime unrelated to that disability, but failed to
accommodate the person's disability in the course of
investigation or arrest, causing the person to suffer greater
injury or indignity in that process than other arrestees.
Id. at 1220-21 (citing Gorman v. Bartch,
152 F.3d 907, 912-13 (8th Cir. 1998)). While the
Gohier Court did not formally adopt either or both
the “wrongful arrest” theory and the
“reasonable accommodation” theory, it held that
“a broad rule categorically excluding arrests from the
scope of Title II . . . is not the law.” Id.
parties do not dispute whether the “wrongful
arrest” and “reasonable accommodation”
theories are viable in this Circuit. Instead, Defendants
contend that Plaintiff has failed to plausibly state a claim
under the “wrongful arrest” theory of liability.
Whether Plaintiff Plausibly Asserts a Claim under the
ADA's “Wrongful Arrest” Theory
have held that “[t]he essence of [the wrongful arrest]
theory is that the police mistake legal conduct caused by the
disability as illegal conduct.” Trujillo, 2016
WL 4035340, at *9 (citing Glover v. City of
Wilmington, 966 F.Supp.2d 417, 428-29 (D. Del. 2013)).
This requires the plaintiff to show that: (1) the plaintiff
was disabled; (2) the arresting officer knew or should have
known that the plaintiff was disabled; and (3) the defendant
arrested the plaintiff because of legal conduct related to
the plaintiff's disability. Id. (internal
citations omitted); See e.g. Lewis, 960 F.Supp. at
178; Everson v. Leis, 412 F.App'x 771, 780 (6th
based on the facts alleged in the Amended Complaint, the
Court agrees with Plaintiff that it is plausible that
Defendant Salazar misperceived Mr. Martinez's inability
to exit the vehicle-resulting from his disability-as unlawful
conduct, which ultimately led to Mr. Martinez's assault
and detention. Indeed, the Amended Complaint asserts that
Defendant Salazar represented in a police report that Mr.
Martinez committed the offense of Battery Upon a Police
in order to state a claim under the ADA pursuant to the
“wrongful arrest” theory, courts have required
that a plaintiff actually be arrested. While the law
surrounding liability for police conduct under the ADA is not
thoroughly developed, particularly in the Tenth Circuit,
every court discussing the “wrongful arrest”
theory of liability has articulated the plaintiff's
arrest as an element. See e.g. Trujillo, 2016 WL
4035340, at *9; Lewis, 960 F.Supp. at 178;
Everson, 412 F.App'x at 780. Because the Amended
Complaint states that “neither Defendant Salazar nor
Defendant Esparza ever brought charges against [Mr.
Martinez], the Court finds that it has not stated a claim for
relief under the ADA pursuant to the “wrongful
arrest” theory. Accordingly, that claim should be
dismissed with prejudice.
asks this Court to refrain from dismissing any claims under
the “wrongful arrest” theory, and to allow
Plaintiff to engage in discovery in order to fully
investigate the facts. However, at this stage of the
proceedings, discovery has concluded and Plaintiff has
neither amended nor supplemented her response to the Motion
to Dismiss. Moreover, “[u]nlike a motion for summary
judgment, a motion to dismiss tests the legal sufficiency of
a complaint and requires no additional discovery.”
Morrow v. The State of New Mexico, et al., Civ. No.
15- 00026 WJ/WPL, Order Staying Discovery (Doc. 37) at 2
(D.N.M. June 15, 2015) (citing Ashcroft v. Iqbal,
556 U.S. 662, 774-75 (2009)).
of dismissal, Plaintiff also requests leave to amend the
Amended Complaint. Plaintiff's request for leave to amend
is not well-taken. Again, discovery has concluded and
Plaintiff has not supplemented her response or formally
requested leave to amend the Amended Complaint. Moreover,
granting leave to amend the ADA claim would be futile because
the facts as alleged in the Amended Complaint fail to state a
claim under the “wrongful arrest” theory as a
matter of law. See Brereton, 434 F.3d at1219. Thus,
to the extent Plaintiff is asserting a “wrongful
arrest” claim in Count IV of the Amended Complaint,
that claim is dismissed with prejudice. Plaintiff's claim
in Count IV under the “reasonable accommodation”
Plaintiff's Claims under Section 1983
Defendants argue that Plaintiff's excessive force claims
under Section 1983 should be partially dismissed.
Specifically, Defendants argue that, to the extent Plaintiff
alleges that Defendants Salazar and Esparza violated Mr.
Martinez's constitutional rights by failing to
accommodate his disability, that claim should be dismissed.
As grounds, Defendants contend that Defendants Salazar and
Esparza are entitled to qualified immunity because, at the
time of the incident, it was not clearly established that
they could violate Mr. Martinez's constitutional rights
by failing to accommodate his disability. Plaintiff responds
that the facts as alleged in the Amended Complaint plausibly
state a claim for excessive force, and that the claim does
not depend on Mr. Martinez's disability.
The Fourth Amendment's Protection Against Excessive
issue in Fourth Amendment excessive force cases is whether,
under the totality of the circumstances, an officer's use
of force was objectively reasonable. Graham v.
Connor, 490 U.S. 386, 397 (1989). This test involves
viewing the reasonableness of an officer's use of force
from an “on-scene” perspective. Saucier v.
Katz, 533 U.S. 194, 205 (2001), overruled in part on
other grounds by Pearson v. Callahan, 555 U.S. 223
(2009). Factors to consider in determining if use of force
was excessive include “the severity of the crime at
issue, whether the suspect poses an immediate threat to the
safety of the officers or others, and whether he is actively
resisting arrest or attempting to evade arrest by
flight.” Id. (quoting Graham, 490
U.S. at 396).
doctrine of qualified immunity protects government officials
‘from liability for civil damages insofar as their
conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known.'” Pearson v. Callahan, 555 U.S.
223, 231 (2009) (citing Harlow v. Fitzgerald, 457
U.S. 800, 818 (1982)). Where a defendant raises the defense
of qualified immunity in a motion to dismiss, the court must
determine whether the plaintiff has sufficiently alleged
that: (1) the defendant's actions violated her
constitutional or statutory rights; and (2) whether that
right was clearly established at the time of the alleged
misconduct. Riggins v. Goodman, 572 F.3d 1101, 1107
(10th Cir. 2009). “If the plaintiff fails to satisfy
either part of the two-part inquiry, the court must grant the
defendant qualified immunity.” Medina v. Cram,
252 F.3d 1124, 1128 (10th Cir. 2001) (citing Albright v.
Rodriguez, 51 F.3d 1531, 1535 (10th Cir. 1995)). Thus, a
court may consider either prong of the qualified immunity
analysis. See Pearson, 555 U.S. at 236.
Whether Defendants are Entitled to Qualified Immunity on
Plaintiff's Section 1983 Claim for Excessive Force
argue that, at the time of the encounter, it was not clearly
established that Defendants Salazar and Esparza violated
Plaintiff's rights under the Fourth Amendment for failing
to accommodate Mr. Martinez's disability. In support,
Defendants cite to City & Cty. of San Francisco v.
Sheehan, 135 S.Ct. 1765 (2015) and J.H. ex rel. J.P.
v. Bernalillo Cty., No. CIV. 12-0128 JB/LAM, 2014 WL
3421037 (D.N.M. July 8, 2014). Defendants argue it was not
clearly established that a police officer could violate a
plaintiff's Fourth Amendment right by failing to
accommodate his disability and, therefore, that they are
entitled to qualified immunity. Defendants' reliance on
Sheehan and J.H. is misplaced, however, and
their argument is unavailing.
initial matter, Plaintiff does not allege that Defendants
Salazar and Esparza violated Mr. Martinez's right to be
free from excessive force on the basis that they failed to
accommodate his disability. (Doc. 88) at 5:25-30. Indeed,
Plaintiff responds that her excessive force claim does not
depend on Mr. Martinez's disability, although it informs
the question of whether Defendants Salazar and Esparza acted
reasonably. (Doc. 96) at 7. As a result, the Court sees no
reason to dismiss any portion of Plaintiff's Section 1983
Sheehan and J.H. do not require a different
result. Each case is highly fact-specific, and focuses on
facts which are not present here. In Sheehan, for
example, police officers were faced with a situation in which
an armed, mentally ill suspect who had been acting
irrationally had locked herself in a room, and threatened
anyone who entered the room. 135 S.Ct. at 1776-77. There, the
Court focused on whether it was clearly established that,
given all these facts, there was no objective need for an
immediate entry into the plaintiff's room, and that the
officers should have accommodated the plaintiff's mental
disability instead. Id. at 1777. The Court held that
no precedent clearly established that there was no objective
need for immediate entry. Id. As a result, the Court
held that the officers were entitled to qualified immunity.
Id. at 1777-78.
J.H., the plaintiff alleged that a defendant police
officer had violated a disabled child's constitutional
right to be free from excessive force by handcuffing and
arresting the child in connection with a physical altercation
between her, a classmate, and her teacher during the school
day. 2014 WL 3421037, at *18. There, the child qualified as
emotionally disturbed, and often reacted to everyday
situations with anger and aggression. Id. at *2-3.
Plaintiff's argument largely rested on the assumption
that, given the child's emotional disturbance, she could
not form the criminal intent required of the crimes she was
charged with: battery on school personnel, battery,
interference with educational process, and disorderly
conduct. Id. at *14, *85-87. However, the Honorable
James O. Browning rejected this argument. Specifically, Judge
Browning held that it was not clearly established that a
police officer uses excessive force when he handcuffs and
arrests a child-even a mentally disabled child-where the
officer has probable cause to believe the child committed a
violent offense and has recently violently attacked a fellow
student and teacher. Id. at *92. As a result, the
police officer was entitled to qualified immunity.
these cases pose the general question as to whether the
defendants, who were otherwise justified in their use of
force, should not have taken certain actions before
accommodating the plaintiff's mental disability. Indeed,
but for both plaintiffs' mental disabilities in
Sheehan and J.H., there was no doubt that
the officers acted without violating the plaintiffs'
constitutional rights. 135 S.Ct. at 1775; 2014 WL 3421037, at
question posed here by the Amended Complaint is whether
Defendants used constitutionally justifiable force in
detaining Mr. Martinez, who was not able to fight back and
did not pose a significant threat. This was, in part, based
on the facts that his left lower leg was amputated and he
could not move his lower body. Whereas in Sheehan
and J.H. the plaintiffs argued that the defendants
were otherwise justified in using force, but were obligated
to accommodate the plaintiffs' mental disabilities, here
Plaintiff challenges Defendant Salazar and Esparza's use
of force in the first place. This is not situation where Mr.
Martinez is alleged to have been physically violent and
aggressive, and that, had Mr. Martinez not suffered from a
mental disability, Defendants Salazar and Esparza could have
justifiably used the force described in the Amended
Complaint. Rather, Plaintiff asserts that Mr. Martinez
presented no physical threat to the officers. Consequently,
Plaintiff maintains that Defendant Salazar and Esparza's
use of force in light of these specific circumstances,
regardless of whether they resulted from Mr. Martinez's
disability, was objectively unreasonable.
Plaintiffs Section 1983 claim does not hinge on whether
Defendants Salazar and Esparza failed to accommodate Mr.
Martinez's disability. Additionally, Defendants do not
assert the defense of qualified immunity as to Plaintiffs
general claim that Defendants Salazar and Esparza used
excessive force in detaining Mr. Martinez. Accordingly, the
Court finds no basis to partially dismiss Plaintiffs
excessive force claims.
light of the foregoing, IT IS THEREFORE ORDERED that:
Defendants' Motion to Dismiss for Failure to State a
Claim and Memorandum of Law in Support, (Doc. 93), is GRANTED
IN PART and DENIED IN PART;
Plaintiffs claim under Title II of the ADA brought under a
theory of “wrongful arrest” is DISMISSED WITH
remaining claims under both the ADA and Section 1983 remain.
 On December 7, 2015, Plaintiff's
Counsel filed a statement notifying the Court and the parties
that Mr. Martinez had passed away. (Doc. 139). The Court then
substituted Jackie Martinez, as personal representative of
Mr. Martinez's estate, as the plaintiff in this case.