United States District Court, D. New Mexico
“Asher” Kashanian, Albuquerque, New Mexico, for
Michael Dickman, Santa Fe, New Mexico, for Defendant Antonio
Gutierrez and Defendant Anna Montoya.
ORDER GRANTING DEFENDANT GUTIERREZ AND DEFENDANT
MONTOYA'S MOTION FOR SUMMARY JUDGMENT BASED IN PART ON
MATTER comes on for consideration of Defendant Antonio
Gutierrez and Defendant Anna Montoya's Motion for Summary
Judgment Based in Part on Qualified Immunity filed February
7, 2017. Doc. 142. Upon consideration thereof, Defendant
Gutierrez and Defendant Montoya's motion is well taken
and should be granted.
judgment is appropriate if the movant demonstrates 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). Local Rule 56.1(b) requires the movant to file a
memorandum containing a concise statement of all of the
material facts as to which the movant contends no genuine
issue exists. The rule also provides that the response of the
non-movant “must contain a concise statement of the
material facts cited by the movant as to which the non-movant
contends a genuine issue does exist.” D.N.M. LR-Civ.
56.1(b). “Each fact in dispute must be numbered, must
refer with particularity to those portions of the record upon
which the non-movant relies, and must state the number of the
movant's fact that is disputed.” Id.
“All material facts set forth in the Memorandum will be
deemed undisputed unless specifically controverted.”
Defendant Gutierrez and Defendant Montoya complied and
included a concise statement of all of the material facts as
to which they contend no genuine dispute exists. Plaintiffs
Andrew Ross and Susan Gerard, however, did not adequately
respond. While Plaintiffs assert that there are genuine
issues of material fact that preclude summary judgment, they
failed to comply with the requirements of Local Rule 56.1(b)
as set forth above. Missing is a numbered list of the facts
in dispute that reference the corresponding number of the
movant's fact that they assert is undisputed.
See Doc. 152. Accordingly, because the material
facts set forth by Defendants Montoya and Gutierrez are not
specifically controverted, they will be deemed undisputed.
Fed.R.Civ.P. 56(e)(2); D.N.M. LR-Civ. 56.1(b).
undisputed facts indicate that Defendant Gutierrez and
Defendant Montoya are Deputy Sheriffs employed by the Santa
Fe County Sheriff's Department. On June 6, 2016,
Defendant Montoya was on duty and was instructed to take a
report from Brenda Wall. Wall reported that she was involved
in an eviction proceeding with her tenants, Plaintiffs Ross
and Gerard, and that Plaintiffs had sent her threatening
emails and voicemails. She stated that she wanted criminal
charges filed against Plaintiff Ross based on voicemail
messages she received from him on April 17 and April 19,
2016. Wall provided copies of the emails and voicemails.
Defendant Montoya reported the contents of the voicemails as
Ross stated, among other things, “you will never see
the inside of this house again, ” “[y]ou're
going to jail, ” “[y]ou are insane and I'm
also having Susan[, a mental health counselor, ] file a
motion to have you committed, ” and that Wall and her
lawyer, Defendant Robert Richards, are “both going to
lose every penny you have.” Doc. 142 Ex. A1, at 2.
Plaintiff Ross referred to Defendant Richards as
“Robert Richards that Kike, ” stating “I am
going to call the two of you the Kike and Dyke” show.
Id. Based on this evidence, Defendant Montoya
concluded that probable cause existed to charge Plaintiff
Ross with the misdemeanor of “Use of Telephone to
Terrify, Intimidate, Threaten, Harass, Annoy or Offend”
in violation of N.M. Stat. Ann. § 30-20-12. Plaintiff
Ross was summoned into court. Defendant Montoya also called
Plaintiff Ross and then Plaintiff Gerard to tell them to
cease contacting Wall and to instead contact the
Sheriff's Office or Wall's attorney to contact Wall
in the future.
21, 2016, Defendant Gutierrez was on duty and was instructed
to take another report from Wall. Wall stated that Plaintiffs
Ross and Gerard continued to email her after the criminal
charge had been filed against Plaintiff Ross. The emails from
Plaintiff Gerard stated, in part, “I will spend
whatever is necessary to bankrupt you, ” and
“[y]ou and [your attorney] are going in the dock no
matter what it takes.” Doc. 142 Ex. b1, at 1, 4. The
emails from Plaintiff Ross stated, in part, “[y]ou are
clearly the most depraved, evil and mentally ill person that
I have EVER encountered in my entire life, ” and
“I promise to stay in contact with you on a regular
basis since I don't do things to people behind their
backs. I guess that's a LBGT thing.” Id.
at 2, 3. Based on this evidence, Defendant Gutierrez
concluded that probable cause existed to charge both
Plaintiffs with the misdemeanor of “Harassment”
in violation of N.M. Stat. Ann. § 30-3A-2. Plaintiffs
were summoned into court.
their response, Plaintiffs concede the First and Third Counts
of the First Amended Complaint (Doc. 9), seeking civil RICO
and injunctive relief. Doc. 152, at 2. Therefore, the court
only need address whether Defendants Gutierrez and Montoya
are entitled to summary judgment on the Second Count.
Second Count is brought under 42 U.S.C. § 1983. It is
unclear whether Plaintiffs are pursuing Defendants Gutierrez
and Montoya in their official capacities, individual
capacities, or both. A suit against a municipal or state
official in his or her official capacity is a suit against
that person's office, and is no different than a suit
against the governmental entity itself. Will v. Mich.
Dep't of State Police, 491 U.S. 58, 71 (1989). As
such, Plaintiffs must allege a municipal custom or policy.
Monell v. Dep't of Soc. Servs., 436 U.S. 658,
690-91 (1978). This they have not done.
extent Plaintiffs are suing Defendants Gutierrez and Montoya
in their individual capacities, these defendants have raised
qualified immunity. Thus, Plaintiffs must allege facts to
show a violation of a constitutional right and demonstrate
that it was clearly established at the time of the actions at
issue. Pearson v. Callahan, 555 U.S. 223, 232
(2009). Typically, to be clearly established, a preexisting
Supreme Court or Tenth Circuit decision, or the weight of
authority from other circuits, must make it apparent to a
reasonable officer that the nature of his or her conduct is
unlawful. Thomas v. Durastanti, 607 F.3d 655, 669
(10th Cir. 2010). Such precedent must have put the question
of the reasonableness of the officer's conduct
“beyond debate.” Mullenix v. Luna, 136
S.Ct. 305, 308 (2015) (quoting Ashcroft v. al-Kidd,
563 U.S. 731, 741 (2011)). If Plaintiffs fail to meet their
burden as to either element, qualified immunity must be
granted. See id.
Plaintiffs' first amended complaint failed to identify
the specific rights involved, they now assert that Defendants
Gutierrez and Montoya violated their First Amendment right to
be free from retaliatory action for their speech “by
attempting to silence Plaintiffs under threat of a criminal
complaint, without any legal authority to do so
whatsoever.” Doc. 152, at 3. Plaintiffs assert that
Defendants Gutierrez and Montoya repeatedly called them to
tell them to cease communicating with Wall. Id. at
4-6. Although Plaintiffs contend that these are disputes of
material fact, even accepting Plaintiffs' assertions as
true, summary judgment is proper.
as the Supreme Court noted in Reichle v. Howards,
566 U.S. 658, 665 (2012), Plaintiffs' general right to be
free from retaliation for one's speech is too broad of a
proposition. “[T]he right allegedly violated must be
established . . . in a particularlized sense so that the
contours of the right are clear to a reasonable
official.” Id. (internal quotations and
citations omitted). In Reichle, “the right in
question [was] . . . the more specific right to be free from
retaliatory [action] that is otherwise supported by probable
Defendants Montoya and Gutierrez assert that the voicemails
and emails Wall presented demonstrated that probable cause
existed to charge Plaintiffs with the aforementioned
misdemeanors. Doc. 142 ¶¶ 5, 23. In their response,
Plaintiffs do not challenge the existence of probable cause.
Although a dispute over probable cause might be a jury
question in some cases, a court should decide whether there
was probable cause if there is no genuine issue of material
fact. Keylon v. City of Albuquerque, 535 F.3d 1210,
1215 (10th Cir. 2008). Here, Plaintiffs do not dispute
sending Wall the emails and voicemails at issue, nor the
contents therein, ...