United States District Court, D. New Mexico
Jack
Bennett Jacks Law Office of J.B. Jacks Albuquerque, New
Mexico Matthew Coyte Coyte Law, P.C. Albuquerque, New Mexico
Attorneys for the Plaintiff
Luis
E. Robles Lindsay Drennan Robles, Rael & Anaya, P.C.
Albuquerque, New Mexico Attorneys for the Defendants
MEMORANDUM OPINION AND ORDER
THIS
MATTER comes before the Court on the County
Defendants'[1] Motion for Partial Summary Judgment No.
III -- Dismissal of Plaintiff's Municipal Liability
Claims, filed September 6, 2016 (Doc.
154)(“MSJ”). The Court held a hearing on October
25, 2016. The primary issue is whether municipal liability is
available to the Plaintiff George Abila, as a matter of law,
where the Defendants argue that the undisputed facts
demonstrate that there is no evidence that Eddy County
Detention Center -- by way of Defendant Shawn Funk, the
warden at Eddy County Detention Center -- established an
official policy, followed an unwritten custom, or knew of a
pattern or practice which violated Plaintiff George
Abila's rights when he was housed in a padded, suicide
prevention cell. Because the Court determines that evidence
exists suggesting that the padded cells at Eddy County
Detention were in constant use and were being used for
disciplinary purposes, in violation of written policy -- with
that constant use of the padded cells embodying evidence of
an unconstitutional practice -- the Court concludes that
County Defendants are not entitled to judgment as a matter of
law. Accordingly, the Court will deny the MSJ.
FACTUAL
BACKGROUND
Abila
was booked at Eddy County Detention in Carlsbad, New Mexico,
on August 8, 2011, and housed in general population.
See MSJ ¶ 1, at 1 (setting forth this fact);
Plaintiff's Response to County Defendants' Motion for
Partial Summary Judgment No. III -- Dismissal of
Plaintiff's Municipal Liability Claims ¶¶ 1, at
2, filed October 11, 2016 (Doc.
181)(“Response”)(not disputing this fact). On
October 24, 2011, Abila cut his arms with a razor blade in a
suicide attempt and needed emergency medical treatment.
See MSJ ¶ 2, at 2 (setting forth this fact);
Response ¶ 2, at 2 (not disputing this fact). Abila was
“eventually moved to a segregation cell and on December
24, 2011, he tried to take his own life again, this time by
swallowing plastic and screws that he had removed from the
door in his segregation cell.” MSJ ¶ 3, at 2
(setting forth this fact). See Response ¶ 3, at
2 (not disputing this fact). Abila was then placed “on
suicide precautions in a padded cell.” MSJ ¶ 4, at
2 (setting forth this fact). See Response ¶ 4,
at 2 (not disputing this fact).[2]
Eddy
County Detention “has written policies on the use of
restraints, including therapeutic seclusion that specifically
reference nationally accepted corrections standards.”
MSJ ¶ 8, at 2-3 (setting forth this fact). See
Response ¶ 8, at 3 (not disputing this fact). “The
policy provides in part: [s]pecial treatment procedures of
medical restraints and therapeutic seclusion shall be used
with appropriate written clinical justification and in
accordance with relevant laws and professional
standards.” MSJ ¶ 9, at 3 (setting forth this
fact). See Response ¶ 9, at 3 (not disputing
this fact). Eddy County Detention “has written policies
on the treatment of suicidal inmates that specifically
reference nationally accepted corrections standards.”
MSJ ¶ 10, at 3 (setting forth this fact). See
Response ¶ 10, at 3 (not disputing this fact). That
“policy provides in part [a] suicide prevention plan
has been developed to protect the well being (sic) of the
inmate's (sic) by utilizing proactive measures to
decrease and/or prevent the opportunity for intentional
self-injurious behavior which may result in bodily injury or
death, ” and that “[t]he guidelines herein are
not exhaustive and should serve only as a foundation on which
the sound clinical judgment of the responsible mental health
or medical professional is based.” MSJ ¶ 11, at 3
(setting forth this fact)(alterations in original).
See Response ¶ 11, at 3 (not disputing this
fact).
Eddy
County Detention also “has written policies on
classification and separation of inmates that specifically
reference nationally accepted corrections standards.”
MSJ ¶ 12, at 3 (setting forth this fact). See
Response ¶ 12, at 3 (not disputing this fact).
“The policy provides in part [i]t shall be the policy
of the Eddy County Detention Center to classify inmates in a
way that not only ensures the public safety, but also
provides for safe, human inmate treatment by housing like
inmates together to the extent possible.” MSJ ¶
13, at 3 (setting forth this fact). See Response
¶ 13, at 3 (not disputing this fact). In the nine years
that correctional officer Narda Gallegos has been employed at
Eddy County Detention, Abila “was the inmate with the
longest stay in the padded cell.” Response ¶ 14,
at 4 (setting forth this fact).[3] See Reply ¶ 14, at
2 (not disputing this fact).[4]
PROCEDURAL
BACKGROUND
Abila
brings this suit against Funk and Bannister for their alleged
failure to provide him adequate confinement and medical care
during his detention at Eddy County Detention. See
Third Amended Complaint for the Recovery of Damages Caused by
the Deprivation of Civil Rights and Tortious Conduct, filed
March 17, 2016 (Doc. 102)(“Third Amended
Complaint”). The Complaint first alleges, as Counts I
and II, a violation of substantive due process, under the
Constitution of the United States of America and the
Constitution of the State of New Mexico, because of the
inhumane conditions of Abila's confinement and because of
inadequate medical care. See Third Amended Complaint
¶¶ 114-38, at 11-14. Count III then alleges a
violation of procedural due process by Funk, and Count IV
alleges that Funk, in his official capacity, [5]maintained a
custom and policy of violating constitutional rights.
See Third Amended Complaint ¶¶ 139-60, at
14-16. The “County Defendants” now move for
summary judgment, by the MSJ, requesting that the Court grant
judgment in their favor with respect to Count IV, alleging
that Funk, in his official policy, maintained a custom and
policy of violating constitutional rights. MSJ at 1-2. As
grounds, the MSJ recaps Abila's allegations, which the
Defendants included in their proffer of undisputed material
facts, and which the Court details below.
In
Abila's Third Amended Complaint, “Abila alleges
that Defendant Funk has, ” through his actions and
orders to staff, “created a custom and policy of
housing the mentally ill in segregation or solitary
confinement.” MSJ ¶ 5, at 2 (setting forth this
fact)(footnote omitted). See Response ¶ 5, at 3
(not disputing this fact)(setting forth the additional fact
that Funk created the policy through “his actions and
verbal orders to staff”); Reply ¶ 5, at 2 (not
disputing the additional fact). Abila also alleges that Funk
“uses solitary confinement, specifically the padded
cell at his facility to punish inmates and that such a policy
is facially unconstitutional.” MSJ ¶ 6, at 2
(setting forth this fact). See Response ¶ 6, at
3 (not disputing this fact). Abila has also alleged, however,
that the Defendants violated their own existing written
policies “in placing him in the padded cell, which he
alleges was a violation of his rights.” MSJ ¶ 7,
at 2 (setting forth this fact). See Response ¶
7, at 2 (not disputing this fact)(clarifying that Abila
alleges the policies were written); Reply ¶ 7, at 2 (not
disputing the Response's clarification).
1.
The MSJ.
The MSJ
begins by arguing that “there is no evidence which
shows that Eddy County Detention Center established an
official policy, followed an unwritten custom, or knew of a
pattern or practice which caused Defendants to violate George
Abila's rights by placing him in a suicide prevention
cell.” MSJ at 5. There is no evidence, the MSJ argues,
because Abila “may not hold the County vicariously
liable under Section 1983 for the alleged torts of Defendants
Funk and Bannister solely on the basis of its
employer-employee relationship[.] . . . Plaintiff must
identify a municipal ‘policy' or a
‘custom' that caused the Plaintiff's alleged
constitutional injury.” MSJ at 5 (citing Bd. of
Cnty. Comm'rs of Bryan Cnty. v. Brown, 520 U.S. 397,
403 (1997); Pembaur v. Cincinatti, 465 U.S. 469,
479-81 (1986); Monell v. N.Y. City Dept. of Soc.
Servs., 463 U.S. 658, 691
(1978)(“Monell”)). Further, according to
the MSJ, “the disputed ‘policy' or
‘custom' must also be the cause and moving force
behind the alleged deprivation of the Plaintiff's
constitutional rights.” MSJ at 6 (citing Bd. of
Cnty. Comm'rs of Bryan Cnty. v. Brown, 520 U.S. at
403). Accordingly, the MSJ argues:
In this case, ECDC's policy regarding the use of padded
cells meets the applicable Fourteenth Amendment standards for
the confinement of at-risk inmates. See Lopez v.
LeMaster, 172 F.3d 756, 759 n.2 (10th Cir.
1999)(equating Eighth Amendment and Fourteenth Amendment
standards for determination of conditions of confinement
claims); Littlefield v. Deland, 641 F.2d 729, 731
(10th Cir. 1981)(Fourteenth Amendment analysis examines
whether pretrial detainees are punished by restrictions or
there is some alternative administrative purpose to
restrictions). Moreover, there is no evidence which shows
that ECDC has a “custom” of using padded cells to
confine inmates in a manner that is unconstitutional,
widespread, permanent, and well settled. Finally, there is no
evidence which shows that ECDC's policies or customs were
deliberately indifferent to George Abila's Fourteenth
Amendment rights.
MSJ at 6.
The MSJ
then explains that the “policies” under which a
municipality “may incur liability” fall into two
categories: “one type of ‘policy' is
characterized by formal rules and understandings which
constitute fixed plans of action to be followed under similar
circumstances consistently and over time, ” and
“another type of ‘policy' exists when a
municipality takes a course of action tailored to a specific
situation and not intended to control decisions in later
situations.” MSJ at 7. According to the County
Defendants, only an “authorized decision maker”
or official “whose edicts may fairly be said to
represent official policy” can act to “give rise
to municipal liability under § 1983.” MSJ at 7.
Ultimately, as the MSJ provides, “the Supreme Court
held that municipal liability under § 1983 attaches
where -- and only where -- a deliberate choice to follow a
course of action is made from among various alternatives by
the official or officials responsible for establishing final
policy with respect to the subject matter in question.”
MSJ at 7 (citing Pembaur v. Cincinatti, 465 U.S. at
483)(internal quotations omitted).
The MSJ
also explains that Abila “may . . . sue Defendants for
constitutional deprivations visited pursuant to governmental
‘custom' even though such a custom has not received
formal approval through the body's official decision
making channels.” MSJ at 8 (citing Monell, 463
U.S. at 690-91)(internal quotations omitted). Such custom,
the MSJ argues, entails “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.” MSJ at 8
(citing City of St. Louis v. Praprotnik, 485 U.S.
112, 127 (1988)). Accordingly, the MSJ provides that Abila
must, to demonstrate a municipal custom, show “a
pattern of similar incidents in which citizens were injured
or endangered by intentional or negligent . . . misconduct
and/or that serious incompetence or misbehavior was general
or widespread throughout the . . . force.” MSJ at 8
(citing Fraire v. City of Arlington, 957 F.2d 1268,
1278 (5th Cir. 1992)).
With
respect to these standards, the MSJ then argues that Eddy
County Detention's “policy regarding the use of
padded cells meets the applicable fourteenth amendment
conditions of confinement standards, ” because,
“to determine whether a particular restriction imposed
on a pretrial detainee comports with due process, a court
must determine whether the restriction is punitive or
reasonably related to a legitimate and nonpunitive
governmental purpose.” MSJ at 8-9 (citing Bell v.
Wolfish, 441 U.S. 520, 538-39 (1979)). Here, the MSJ
argues, “ensuring security and order at the institution
is a permissible nonpunitive objective, whether the facility
houses pretrial detainees, convicted inmates, or both.”
MSJ at 9 (citing Littlefield v. Deland, 641 F.2d
729, 731 (10th Cir. 1981)). The MSJ also indicates that Eddy
County Detention's “written policies governing
suicide prevention and restraint are based not only on
prevailing American Correctional Association and National
Commission on Correctional Health Care standards, which may
impose an even higher threshold than a constitutional rubric,
but they articulate a non-punitive objective for restraints
on inmates.” MSJ at 9 (citing Bell v. Wolfish,
441 U.S. at 535). The MSJ ultimately maintains that Abila
“agrees that the policies as written and adopted by
ECDC are acceptable and consistent with the constitutional
standards found in Bell . . . [and] thus Abila bears
the heavier burden of showing an informal policy or custom of
violating inmates' rights.” MSJ at 10.
Turning,
then, to its argument regarding informal policy or custom,
the MSJ argues that “there is no evidence that shows
that ECDC has a ‘custom' of using its restraints
and maintaining conditions of confinement in a manner which
is unconstitutional, ” nor that there is any
“evidence that shows that City [sic] Defendants'
policies or customs were deliberately indifferent to
Plaintiff's Fourteenth Amendment right.” MSJ at 12.
Essentially, the MSJ argues that “proof of a single
incident is not sufficient to impose liability under
Monell, ” and that the “Plaintiff has
not established that any other inmate was subjected to the
same conditions he complains of under similar circumstances
or over a similar period of time. In fact, the testimony in
this case is that Plaintiff's situation was
unique.” MSJ at 11-12. According to County Defendants,
here
there is no evidence to support the claim that County's
action or inaction reflects a conscious choice that was
deliberately indifferent to George Abila. In fact, the
evidence of this case establishes that there were extensive
policies addressing the use of restraints, the padded cell,
and treatment of suicidal inmates. . . . [H]is own case is
the only example he provides of allegedly indifferent
behavior.
MSJ at 12-13. The MSJ thus requests summary judgment
dismissing Abila's “municipal liability claim
against County Defendants.” MSJ at 13.
2.
The Response.
The
Response begins by stating that “the law regarding
supervisory liability in the context of a jail was recently
summarized by this Court in August.” Response at 6
(citing Romero v. Bd. of Cnty. Comm'rs for Cnty. of
Curry, 2016 WL 4483867 (D.N.M. 2016)(Browning, J.)). A
salient point from that case, the Response contends, is that
“supervisors are not liable unless there is an
affirmative link . . . between the constitutional deprivation
and either the supervisor's personal participation, . . .
exercise of control or direction, or . . . failure to
supervise.” Response at 7. The Response argues that,
despite those limitations, “municipal culpability can
be demonstrated with proof that a municipality's
legislative body or authorized decision maker has
intentionally deprived a plaintiff of a federally protected
right, ” and “that the action taken or directed
by the municipality or its authorized decision maker itself
violates federal law will also determine that the municipal
action was the moving force behind the injury of which
plaintiff complains.” Response at 7.
Accordingly,
the Response argues that,
in the context of this case, the municipal liability claim
can be perfected in two ways. Firstly, and most directly,
Plaintiff can succeed by proving the final policy maker of
ECDC, Warden Funk, deprived Plaintiff of a constitutional
right. Plaintiff does not have to prove a pattern and
practice of such violations, just a single decision by the
warden himself.
Response at 7 (citing Simmons v. UINTAH Health Care
Special Serv. Dist., 506 F.3d 1281, 1285 (10th Cir.
2007)). The Response argues that there is evidence of
municipal liability because Abila has shown that,
Funk personally participated in the decision to place Mr.
Abila in the padded cell and keep him there without the most
basic things required for a human existence. . . . His
personal decision to keep him in these appalling conditions
is demonstrated by the response he wrote to Plaintiff's
request to be let out of the padded cell.
Response
at 8. The Response then indicates Abila's incredulity at
the MSJ's failure to extensively cover this theory of
municipal liability, considering the County Defendants are
more than aware of the “personal connection of the
final policymaker to the constitutional violation.”
Response at 8.
The
Response last addresses the “second way Plaintiff can
reach governmental liability, ” which is “by
demonstrating a custom or practice [that] was the moving
force behind the constitutional violation in question.”
Response at 9. The Response indicates that Abila does not
dispute that Eddy County Detention has “drafted a set
of policies designed to prevent the abuses seen in this
case.” Response at 9. The Response argues, however,
that when “Funk took over as head of the jail he
allowed those policies to be disregarded, until eventually
the jail lost its accreditation.” Response at 9. Thus,
according to the Response,
it is the very fact that Funk knew of the correct standards
and policies to employ, but willfully chose to disregard
them, that make[s] up the backbone of Plaintiff's
deliberate indifference claim. Rather than follow policies
designed to prevent the abusive use of restraint and
seclusion, Defendant Funk created a custom of disregarding
written policy.
Response
at 9-10 (citing Simmons v. UINTAH Health Care Special
Serv. Dist., 506 F.3d at 1283). The Response argues
that, by disregarding that written policy, Funk has
“demonstrated a sufficiently culpable state of mind;
[sic] deliberate indifference.” Response at 10.
To
further demonstrate the custom, the Response maintains that
written discovery has revealed that the padded cells in the
jail were constantly in use. Inmates have testified that they
too were abused in the padded cells and that they saw other
people suffering in them as well. Although Plaintiff agrees
he was most likely subjected to the longest time period in
the cell, that does not mean others were not treated
inhumanely too.
Response
at 10. Indeed, the Response argues that “the custom of
using these cells was so ingrained; one guard testified he
wished there were more padded cells to use, as they were
often full when he needed to put another inmate in
one.” Response at 11. Further, the Response contends,
“when looking at the relatively small size of the jail
it becomes apparent the padded cells were being used
excessively. It defies common sense to believe two or three
people a day are suicidal, or are in such emotional crisis as
to need this kind of intervention.” Response at 11.
The
Response concludes that “these facts, when viewed in
the light most favorable to Plaintiff present enough evidence
to support a practice of overuse and inhumane use of the
padded cells.” Response at 11-12. The Response
maintains that Abila “has demonstrated Warden Funk, the
administrator and final policymaker, for the jail was
personally involved in violating Plaintiff's
constitutional rights. Funk's personal participation in
the constitutional violation exposes the governmental entity
to liability.” Response at 11. Further, the Response
maintains that Abila “has demonstrated Warden Funk
chose to ignore the written policies of the jail on a daily
basis.” Response at 11-12. Abila states that
“[e]vidence exists that the padded cells were in
constant use and were being used for disciplinary purposes,
in violation of policy, ” and “this constant
abuse of the padded cell is evidence of an unconstitutional
practice, again, exposing the government to liability.”
Response at 11-12.
3.
The Reply.
The
Reply first takes issue with Abila's “argument that
Defendant Funk is a final policymaker for the Eddy County
Detention Center.” Reply at 4. The Reply asserts, in
contrast, that it is the “clear intention of Eddy
County not to vest final policy authority in the Eddy County
Detention Center . . . jail administrator.” Reply at 5.
The Reply references the “Resolution of the Board of
County Commissioners, ” contained in the Eddy County
Detention Policy Manual, which states that “the Board
of County Commissioners requires the jail administrator to
submit proposed rules and regulations that describe[] all
facets of facility operations, maintenance, and
administration which shall be effective upon being adopted by
the board.” Reply at 5. Further, the Reply provides
that, under New Mexico law, “[t]he common jails shall
be under the control of the respective sheriffs, independent
contractors or jail administrators hired by the board of
county commissioners or other local public body or
combination thereof, and the same shall be used as prisons in
the respective counties.” Reply at 6 (citing NMSA 1978
§ 33-3-1). Accordingly, the Reply argues that the Board
of County Commissioners, and not the jail administrator, is
the final policymaker for the jail, and thus Abila “is
left with the option to show that some unwritten policy or
custom was the driving force behind the alleged violation of
his civil rights, something he has not done.” Reply at
7.
In
support of that contention, the Reply next argues that Abila
“has presented no real evidence which shows that Eddy
County Detention Center established an official policy,
followed an unwritten custom, or knew of a pattern or
practice which caused Defendants to violate George
Abila's rights by placing him in a suicide prevention
cell.” Reply at 7. The Reply then reiterates the
arguments that the Defendants made in the MSJ, which,
according to the Reply, establish that Abila has failed to
provide evidence “of an intent to use the padded cell
in a manner that is unconstitutional, widespread, permanent,
and well settled, ” particularly because, according to
the Reply, Abila “has not established that any other
inmate was subjected to the same range of conditions he
complains of under similar circumstances or over a similar
period of time.” Reply at 9.
4.
The October 25, 2016, Hearing.
The
Court held a hearing on October 25, 2016. See
Transcript of Hearing, taken October 25, 2016
(“Tr.”).[6] Oral argument did not stray from the
briefing's content, with the County Defendants beginning
their argument by explaining that “this motion is
primarily based on the fact that plaintiff hasn't --
after all of the discovery that's been conducted and the
depositions taken -- shown any evidence of an official policy
or a custom of misusing the padded cells within the
facility.” Tr. at 69:9-14 (Drennan). The County
Defendants then turned to the first avenue of municipal
liability that the Response raised -- “that a single
decision by a final policymaker could be sufficient” --
and argued that Funk, as the Warden, “was never
intended to be” the final policymaker, “nor was
he the final policymaker in this case.” Tr. at 70:3-8
(Drennan). The Court pressed the County Defendants why Funk
was not high enough in the chain of command to be a final
policymaker, citing to the Court's previous caselaw
holding that the Mayor of Albuquerque could constitute a
final official. See Tr. at 70:9-14 (Court)(referring
to Kelley v. City of Albuquerque, 375 F.Supp.2d 1183
(D.N.M. 2004)(Browning, J.), aff'd by, 542 F.3d
802 (2008)). The Defendants responded by reference to the
argument they made in the Reply -- New Mexico state statute
requires that “wardens . . . submit proposed rules and
regulations to a board of county commissioners, ” and
that, particularly in this case -- where the Eddy County
Detention Policy Manual explicitly includes “language
essentially stating that [the Board of County Commissioners]
are the final policymakers” -- it is “abundantly
clear” that Funk is not a final policymaker. Tr. at
70:15-71:2 (Drennan). The County Defendants then clarified
why they were pressing this argument, and stated that it was
pressing the argument because
the complaint made it seem abundantly clear . . . we were
looking at . . . some kind of custom claim. . . . When we got
the response to our briefing, it seemed that there might be
an alternative argument, that Warden Funk should be viewed as
a final policy maker, and that his sole decision in this case
was enough. Tr. at 71:18:72:5 (Drennan). With respect to
either of Abila's arguments, the County Defendants
maintained that he has demonstrated neither avenue of
municipal liability. See Tr. at 72:9-11
(Drennan).
After
the lunch break, the County Defendants reemphasized their
argument that Funk was not the final policy maker and that,
thus, the law foreclosed Abila from seeking municipal
liability on the basis of his singular conduct. See
Tr. at 73:22-75:1 (Drennan). Abila then took up argument,
with the Court pressing him to explain how he had chosen Funk
as the final policymaker in this case. See Tr. at
75:6-19 (Coyte, Court). Abila stated that the warden's
status as the final policymaker has been
“uncontroversial with any other case I've done,
” and that for him to have also joined the county
commissioners would have been “duplicative, ”
because, “when you get the final policymaker by law, by
statute, the guy who runs the jail, the one who does the
day-to-day operations, the ones who create the policies,
” that is sufficient. Tr. at 76:4-77:6 (Coyte). In sum,
then, Abila argued that Funk was the final policymaker, and
that
it makes sense, especially in our facts . . . where we have
got a set of policies written by the former warden. The
former warden's testimony says: I Dated this jail, and
the policies were grossly inadequate . . . so [he] set about
changing them to bring them into compliance . . . [t]hen the
new warden took over and disregarded the policies.
Tr. at 77:7-25 (Coyte). Further, “the county
commissioners have no ability to dictate the day-today
operations, ” and “the actual individual act
against Mr. Abila by the warden [is] all beyond the scope of
the county commission, ” and thus Funk's
“acts or edicts may fairly be said to be --represent
official policy.” Tr. at 78:8-23 (Coyte). Abila then
provided:
In your opinion in the Romero matter that you recently wrote
. . . it says an affirmative link between the constitutional
deprivation and either the supervisor's personal
participation -- or his exercise of control or direction, or
his failure to supervise. So there are three ways of doing
it. The supervisor actually creates the violation, which we
have that as well, given the fact that the padded cell was
constantly used and for punitive purposes.
Tr. at 79:18-80:8 (Coyte). Abila argued that “two or
three people were in the padded cell everyday . . . [t]here
are not two or three suicidal people in that jail everyday.
That makes no sense. One of the inmates described that he was
put in there for punishment for fighting” Tr. at
80:9-14 (Coyte). Accordingly, Abila maintained:
[W]e have enough people in padded cells. We have people
saying that they've been punished as a result of it, we
have guards saying that they were trying to stop the use of
the cell but were dissuaded or they couldn't make headway
from the warden's custom. So we have enough facts to say
at least at summary judgment that we get to both theories
that Mr. Funk did it on his own, with his own behavior, and
that his policy or custom of violating his own policy has got
us to the same result.
Tr. at 81:1-11 (Coyte).
The
County Defendants then took back argument, and indicated that
it was their impression that there was not any case law which
explicitly held that suing the warden was sufficient for
municipal liability. See Tr. at 83:1-5 (Drennan).
The County Defendants then explained that Funk, as warden,
could be named as a figurehead for a claim “based on
[the] custom and policy requirement . . . but as far as this
argument that a single act by a final policymaker is enough,
” he was not high enough in the food chain. Tr. at
83:10-22 (Drennan). Again, the Court pressed the County
Defendants to distinguish Funk's capacity as the warden
from the Mayor of Albuquerque, with respect to their relevant
food chains. See Tr. at 83:23-84:11 (Court). The
County Defendants could not point to any authority, but
indicated that it was their impression that “there is a
difference when you're trying to base it on a single act,
as opposed to this practice, pervasive custom, in which case
I do think Defendant Funk could be a sufficient
stand-in.” Tr. at 86:2-9 (Drennan). The Court declined
to give its inclination and took the matter under advisement.
See Tr. at 87:25-88:4 (Court).
5.
The Court's Memorandum Opinion and Order Granting
Summary Judgment in Favor of Abila on his Substantive
Due-Process Claims.
The
Court has already issued a Memorandum Opinion and Order in
this case. See Memorandum Opinion and Order, filed
November 23, 2016 (Doc. 198)(“Substantive-Due Process
MOO”). The Court concluded that, in light of the
undisputed facts, Abila is entitled to judgment as a matter
of law, because he successfully states a claim that the
detention conditions to which he was subjected at Eddy County
Detention, during a near six-month period where he was not
actively suicidal from January 3, 2012, until June 21, 2012,
violated his clearly established substantive due-process
right to humane conditions of confinement as a pretrial
detainee. See MOO at 97. It is against the backdrop
of the Court's Substantive-Due Process MOO, then, which
the Court will judge Abila's argument in favor of
municipality liability. The Court has already concluded that
Funk, in his capacity as Eddy County Detention's Warden,
violated Abila's constitutional rights during his
pre-trial detention. See Substantive-Due Process MOO
at 78-97.
LAW
REGARDING MOTIONS FOR SUMMARY JUDGMENT
Rule
56(a) of the Federal Rules of Civil Procedure states:
“The court shall grant summary judgment if the movant
shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of
law.” Fed.R.Civ.P. 56(a). “The movant bears the
initial burden of ‘show[ing] that there is an absence
of evidence to support the nonmoving party's
case.'” Herrera v. Santa Fe Pub. Sch., 956
F.Supp.2d 1191, 1221 (D.N.M. 2013)(Browning, J.)(quoting
Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d
887, 891 (10th Cir. 1991)). See Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986).
Before the court can rule on a party's motion for summary
judgment, the moving party must satisfy its burden of
production in one of two ways: by putting evidence into the
record that affirmatively disproves an element of the
nonmoving party's case, or by directing the
court's attention to the fact that the non-moving party
lacks evidence on an element of its claim, “since a
complete failure of proof concerning an essential element of
the nonmoving party's case necessarily renders all other
facts immaterial.” Celotex, 477 U.S. at 323-25. On
those issues for which it bears the burden of proof at trial,
the nonmovant “must go beyond the pleadings and
designate specific facts to make a showing sufficient to
establish the existence of an element essential to his case
in order to survive summary judgment.” Cardoso v.
Calbone, 490 F.3d 1194, 1197 (10th Cir. 2007).
Plustwik v. Voss of Norway ASA, 2013 WL 1945082, at
*1 (D. Utah 2013)(Sam, J.)(emphasis added). “If the
moving party will bear the burden of persuasion at
trial, that party must support its motion with credible
evidence -- using any of the materials specified in Rule
56(c) -- that would entitle it to a directed verdict if not
controverted at trial.” Celotex Corp. v.
Catrett, 477 U.S. at 331 (Brennan, J.,
dissenting)(emphasis in original).[7] Once the movant meets this
burden, rule 56 requires the nonmoving party to designate
specific facts showing that there is a genuine issue for
trial. See Celotex Corp. v. Catrett, 477 U.S. at
324; Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
256 (1986).
The
party opposing a motion for summary judgment must “set
forth specific facts showing that there is a genuine issue
for trial as to those dispositive matters for which it
carries the burden of proof.” Applied Genetics
Int'l, Inc. v. First Affiliated Sec., Inc., 912 F.2d
1238, 1241 (10th Cir. 1990). See Vitkus v. Beatrice
Co., 11 F.3d 1535, 1539 (10th Cir. 1993)
(“However, the nonmoving party may not rest on its
pleadings but must set forth specific facts showing that
there is a genuine issue for trial as to those dispositive
matters for which it carries the burden of
proof.”)(internal quotation marks omitted). Rule
56(c)(1) provides: “A party asserting that a fact . . .
is genuinely disputed must support the assertion by . . .
citing to particular parts of materials in the record,
including depositions, documents, electronically stored
information, affidavits or declarations, stipulations
(including those made for purposes of the motion only),
admissions, interrogatory answers, or other materials.”
Fed.R.Civ.P. 56(c)(1). It is not enough for the party
opposing a properly supported motion for summary judgment to
“rest on mere allegations or denials of his
pleadings.” Anderson v. Liberty Lobby, Inc.,
477 U.S. at 256. See Abercrombie v. City of Catoosa,
896 F.2d 1228, 1231 (10th Cir. 1990); Otteson v. United
States, 622 F.2d 516, 519 (10th Cir. 1980)(“[O]nce
a properly supported summary judgment motion is made, the
opposing party may not rest on the allegations contained in
his complaint, but must respond with specific facts showing
the existence of a genuine factual issue to be tried.”
(citation and internal quotations omitted)).
Nor can
a party “avoid summary judgment by repeating conclusory
opinions, allegations unsupported by specific facts, or
speculation.” Colony Nat'l Ins. Co. v.
Omer, 2008 WL 2309005, at *1 (D. Kan. 2008)(Robinson,
J.)(citing Argo v. Blue Cross & Blue Shield of Kan.,
Inc., 452 F.3d 1193, 1199 (10th Cir. 2006); Fed.R.Civ.P.
56(e)). “In responding to a motion for summary
judgment, ‘a party cannot rest on ignorance of facts,
on speculation, or on suspicion and may not escape summary
judgment in the mere hope that something will turn up at
trial.'” Colony Nat'l Ins. Co. v.
Omer, 2008 WL 2309005, at *1 (quoting Conaway v.
Smith, 853 F.2d 789, 794 (10th Cir. 1988)).
To deny
a motion for summary judgment, genuine factual issues must
exist that “can be resolved only by a finder of fact
because they may reasonably be resolved in favor of either
party.” Anderson v. Liberty Lobby, Inc., 477
U.S. at 250. A mere “scintilla” of evidence will
not avoid summary judgment. Vitkus v. Beatrice Co.,
11 F.3d at 1539 (citing Anderson v. Liberty Lobby,
Inc., 477 U.S. at 248). Rather, there must be sufficient
evidence on which the fact finder could reasonably find for
the nonmoving party. See Anderson v. Liberty Lobby,
Inc., 477 U.S. at 251 (quoting Schuylkill &
Dauphin Improvement Co. v. Munson, 81 U.S. 442, 448
(1871)); Vitkus v. Beatrice Co., 11 F.3d at 1539.
“[T]here is no evidence for trial unless there is
sufficient evidence favoring the nonmoving party for a jury
to return a verdict for that party. If the evidence is merely
colorable . . . or is not significantly probative, . . .
summary judgment may be granted.” Anderson v.
Liberty Lobby, Inc., 477 U.S. at 249 (citations
omitted). Where a rational trier of fact, considering the
record as a whole, could not find for the nonmoving party,
there is no genuine issue for trial. See Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986).
When
reviewing a motion for summary judgment, the court should
keep in mind certain principles. First, the court's role
is not to weigh the evidence, but to assess the threshold
issue whether a genuine issue exists as to material facts
requiring a trial. See Anderson v. Liberty Lobby,
Inc., 477 U.S. at 249. Second, the ultimate standard of
proof is relevant for purposes of ruling on a summary
judgment, such that, when ruling on a summary judgment
motion, the court must “bear in mind the actual quantum
and quality of proof necessary to support liability.”
Anderson v. Liberty Lobby, Inc., 477 U.S. at 254.
Third, the court must resolve all reasonable inferences and
doubts in the nonmoving party's favor, and construe all
evidence in the light most favorable to the nonmoving party.
See Hunt v. Cromartie, 526 U.S. 541, 550-55 (1999);
Anderson v. Liberty Lobby, Inc., 477 U.S. at 255
(“The evidence of the non-movant is to be believed, and
all justifiable inferences are to be drawn in his
favor.”). Fourth, the court cannot decide any issues of
credibility. See Anderson v. Liberty Lobby, Inc.,
477 U.S. at 255.
There
are, however, limited circumstances in which the court may
disregard a party's version of the facts. This doctrine
developed most robustly in the qualified immunity arena. In
Scott v. Harris, 550 U.S. 372 (2007), the Supreme
Court of the United States of America concluded that summary
judgment was appropriate where video evidence “quite
clearly contradicted” the plaintiff's version of
the facts. 550 U.S. at 378-81. The Supreme Court explained:
At the summary judgment stage, facts must be viewed in the
light most favorable to the nonmoving party only if there is
a “genuine” dispute as to those facts. Fed. Rule
Civ. Proc. 56(c). As we have emphasized, “[w]hen the
moving party has carried its burden under Rule 56(c), its
opponent must do more than simply show that there is some
metaphysical doubt as to the material facts . . . .
Where the record taken as a whole could not lead a rational
trier of fact to find for the nonmoving party, there is no
‘genuine issue for trial.'” Matsushita
Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S.
[at] 586-587 . . . (footnote omitted). “[T]he mere
existence of some alleged factual dispute between
the parties will not defeat an otherwise properly supported
motion for summary judgment; the requirement is that there be
no genuine issue of material fact.”
Anderson v. Liberty Lobby, Inc., 477 U.S. [at]
247-248 . . . . When opposing parties tell two different
stories, one of which is blatantly contradicted by the
record, so that no reasonable jury could believe it, a court
should not adopt that version of the facts for purposes of
ruling on a motion for summary judgment.
That was the case here with regard to the factual issue
whether respondent was driving in such fashion as to endanger
human life. Respondent's version of events is so utterly
discredited by the record that no reasonable jury could have
believed him. The Court of Appeals should not have relied on
such visible ...