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Ross v. Balderas

United States District Court, D. New Mexico

March 16, 2017

ANDREW ROSS and SUSAN GERARD, Plaintiffs,
v.
HECTOR BALDERAS, JR., ROBERT GARCIA, SARAH MICHAEL SINGLETON, FRANCIS J. MATHEW, RAYMOND Z. ORTIZ, DAVID K. THOMPSON, JENNIFER ATTREP, T. GLENN ELLINGTON, SYLVIA LAMAR, DONITA OLYMPIA SENA, DONNA BEVACQUA-YOUNG, PAT CASADOS, FRANK SEDILLO, WILLIAM PACHECO, ANTONIO GUTIERREZ, ANNA MONTOYA, JUDAH BEN MONTANO, A. ARROYO, E. MONTIJO, MICHELLE PORTILLO, STEPHEN T. PACHECO, JANE GAGNE, JOYCE BUSTOS, LYNN PICKARD, PAMELA REYNOLDS, ROBIN MARTINEZ, ROBERT RICHARDS, BRENDA WALL, AUDREY MONTOYA, and ALLSTATE INSURANCE, INC., Defendants.

          Arash “Asher” Kashanian, Albuquerque, New Mexico, for Plaintiffs.

          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 QUALIFIED IMMUNITY

         THIS 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.

         Summary 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.” Id.

         Here, 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).

         The 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 follows.

         Plaintiff 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.

         On July 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.

         In 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.

         The 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.

         To the 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.

         Although 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.

         First, 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 cause.” Id.

         Here, 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, ...


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