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Douglass v. Target Corp.

United States District Court, D. New Mexico

March 30, 2017

John Douglass, Plaintiff,
v.
Target Corporation, a corporation registered to do and doing business in New Mexico, Christopher Davidson, personally and as an employee of Target Corp., the City of Albuquerque and Kamil Lewandowski, personally and as an employee of the City of Albuquerque, Defendants.

          HOUSTON ROSS Attorney for Plaintiff.

          JOSH A. HARRIS Attorney for Defendants Target Corporation and Christopher Davidson.

          JESSICA LYNN NIXON TRISHA A. WALKER Attorneys for Defendants City of Albuquerque and Kamil Lewandowski.

          MEMORANDUM OPINION AND ORDER

          MARTHA VÁZQUEZ United States District Court Judge.

         THIS MATTER is before the Court on Defendants Target and Christopher Davidson's Motion for Summary Judgment and Defendants City of Albuquerque and Kamil Lewandowski's Motion for Summary Judgment. (Docs. 34 and 32.) For the reasons below, the Court GRANTS Defendants Target and Mr. Davidson's Motion for Summary Judgment as to Counts III and Count IV with respect to assault only. (Doc. 34). The Court also GRANTS Defendants City of Albuquerque and Officer Lewandowski's Motion for Summary Judgment in its entirety. (Doc. 32.)

         Background

         “View[ed] . . . in the light most favorable to [Mr. Douglass]” as the record allows, the facts are as follows. See Cavanaugh v. Woods Cross City, 625 F.3d 661, 662 (10th Cir. 2010).

         On June 2, 2012, the Plaintiff, John Douglass, went to a Target store on Coors Boulevard in Albuquerque, New Mexico. That day, Defendant Christopher Davidson was working at the store as a loss prevention specialist. Mr. Douglass tried to shoplift a small amount of merchandise. He concealed two packages of smart phone screen protectors, valued at $34.98, and walked towards the store exit. (Doc. 34-1 at 2). Mr. Davidson saw what Mr. Douglass had done. After Mr. Douglass passed the first of two sets of exit doors, Mr. Davidson and several other unidentified men tackled him to the ground. (Doc. 34-1 at 3.) Mr. Davidson and the other men pressed Mr. Douglass up against a wall, twisted his arms behind him, and handcuffed him with one arm above his shoulder and the other arm behind his back. (Id.) Mr. Douglass later admitted that while the men caused him pain when they twisted his arms “in a way they were not supposed to go, ” he did not sustain any injuries. (Doc. 34-1 at 3.) Mr. Davidson then took Mr. Douglass to a back office and double-cuffed him to a desk. (Doc. 38-1 at 14.)

         Here, the parties' stories diverge. The Defendants claim that Mr. Douglass had thieved merchandise from at least two other Target stores in New Mexico (one on Lomas Boulevard in Albuquerque and another in Rio Rancho) and was the subject of a broad criminal trespass order that prohibited him from entering all Target stores. Mr. Douglass disputes this fact.

         After detaining Mr. Douglass, Mr. Davidson called Detective Albert Velarde of the Albuquerque Police Department. (Doc. 38-7 at 6.) Detective Velarde told Mr. Davidson that Mr. Douglass could be charged with felony commercial burglary if he had been previously issued a “Criminal Trespass Notice” from Target, so long as the notice indicated that he was prohibited from “all stores.” Id. at 7. Detective Velarde also told Mr. Davidson that he had previously arrested Mr. Douglass and issued him a “Criminal Trespass Notice” for shoplifting from another Target store on Lomas Boulevard in Albuquerque on March 24, 2012. (Doc. 34-2 at 3-4.)

         Shortly after Mr. Davidson spoke with Detective Velarde by phone, Defendant Officer Kamil Lewandowski of the Albuquerque Police Department arrived at Target and spoke with Mr. Davidson. (Doc. 34-2 at 2.) Mr. Davidson told Officer Lewandowski that Mr. Douglass had previously shoplifted at another Target location. (Doc. 34-2 at 3.) He then gave Officer Lewandowski a copy of a “Criminal Trespass Notice” issued to Mr. Douglass on April 2, 2012, for shoplifting from a Target store in the nearby town of Rio Rancho, New Mexico. (Id.) Mr. Davidson also told Officer Lewandowski that he had just spoken on the phone with Detective Velarde, who said to “book [Plaintiff] on commercial burglary.” (Doc. 34-2 at 3; Exhibit C.)

         Officer Lewandowski then stepped out of the back room and called Detective Velarde, who confirmed that he had arrested Plaintiff previously, although he did not have a copy of the “Criminal Trespass Notice” from the Lomas Boulevard location.[1] (Doc. 34-2 at 4.) However, Detective Velarde confirmed that Plaintiff could be arrested for commercial burglary based on either the Rio Rancho or the Lomas Boulevard Target “Criminal Trespass Notice.” Id.

         After speaking with Detective Velarde for approximately five minutes, Officer Lewandowski returned to the back office and requested the copy of the Rio Rancho notice, which he had left with Davidson. (Doc. 38-1 at 10.) The writing on the Rio Rancho notice was faded and hard to read except for the date and the words “(All Target Stores), ” which were boldly written on the business address section in a different handwriting. (Docs. 38-1 at 9; 41-1.) The parties dispute whether Davidson altered the notice to include “(All Target Stores).” Plaintiff claims that Davidson altered the notice after learning from Detective Velarde that the notice needed to designate all store locations in order to charge the Plaintiff with felony commercial burglary instead of petty theft, a simple misdemeanor. (Doc. 38 at 2.) In support of Plaintiff's allegation is the fact that the date and “(All Target Stores)” appears to be boldly written in a different handwriting. (Docs. 38-1 at 9; 41-1.) Furthermore, the original notice later subpoenaed from the Rio Rancho Police Department did not have “(All Target Stores)” written in the business address section, listing only the address of the Rio Rancho Target Store. (Doc. 38-5.) However, Davidson claims that he received the notice in that condition and did not alter it. (Doc. 34-4.) Officer Lewandowski also stated in his deposition that “[t]o the best of my knowledge, I remember [the notice] the way it is right now [with “(All Target Stores)” written on it].” (Doc. 34-2 at 7.)

         Officer Lewandowski subsequently escorted Plaintiff to his squad car and arrested him for commercial burglary. (Doc. 34-2 at 12.) He informed Plaintiff that the “main reason” he was being arrested was because he had been prohibited previously from entering the Target store on Lomas Boulevard. (Doc. 34-2 at 17.) Plaintiff denied having any knowledge of being prohibited from entering the Target on Lomas Boulevard, (id. at 13), but admitted he received a notice pertaining to the Rio Rancho Target.[2]

         Plaintiff was indicted for commercial burglary on September 25, 2012. (Doc. 32-7.) Officer Lewandowski testified to the grand jury that he placed Plaintiff under arrest for commercial burglary because “[he] had, actually, a statement from Rio Rancho that [the Plaintiff] was issued a criminal trespass, so [he] was able to prove that.” (Doc. 38-8 at 2.) However, it was later determined that the “Criminal Trespass Notice” from the Rio Rancho Target could not support a commercial burglary charge against the Plaintiff, as it was issued by a city in a different county. In addition, the Albuquerque Police Department was unable to locate a “Criminal Trespass Notice” for the Target on Lomas Boulevard. (Doc. 38-3.) Consequently, the commercial burglary charge was dismissed by Nolle Prosequi due to insufficient evidence on February 4, 2014. (Doc. 28-8.)

         After he was arrested, Mr. Douglass sued Target Corporation (Target), Target loss prevention specialist Christopher Davidson, the City of Albuquerque, and Officer Kamil Lewandowski of the Albuquerque Police Department in a ten-count First Amended Complaint (Complaint). The Complaint was removed from the Second Judicial District Court for the State of New Mexico, County of Bernalillo, to this Court. (Doc. 1.) Mr. Douglass alleges five state tort law claims against Target and Mr. Davidson. The Complaint alleges that Davidson committed abuse of process (Count I), malicious prosecution (Count II) and fraud (Count III) by, inter alia, writing “(All Target Stores)” on the Rio Rancho “Criminal Trespass Notice” in order to have Plaintiff arrested for felony commercial burglary. (Doc. 1-1 at 4-6.) Plaintiff also alleges that Davidson committed assault and battery when he tackled and handcuffed Plaintiff (Count IV) and that Target Corp. is liable for the negligent hiring, retention, training, and supervision of its employees (Count V). (Id. at 6-7.) Defendants Target Corp. and Davidson moved for summary judgment on December 29, 2015. (Doc. 34.) Plaintiff filed his response on January 12, 2016. (Doc. 38.) Defendants Target Corp. and Davidson filed their reply on January 26, 2016. (Doc. 41.)

         Plaintiff alleges five civil rights claims under 42 U.S.C. § 1983 against the City of Albuquerque and Officer Lewandowski: Malicious Prosecution (Count VI), Malicious Abuse of Process (Count VII), False Arrest (Count VIII), Detention and Confinement (Count IX), and False Arrest and Imprisonment (Count X). (Id. at 7-10.) Defendants City of Albuquerque and Officer Lewandowski moved for summary judgment on the basis of qualified immunity on December 29, 2015. (Doc. 32.) Mr. Douglass filed his response on January 12, 2016. (Doc. 39.) Defendants City of Albuquerque and Officer Lewandowski filed their reply on January 26, 2016. (Doc. 43.)

         LEGAL STANDARD

         I. Summary Judgment

         Summary judgment is appropriate “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); Jones v. Kodak Med. Assistance Plan, 169 F.3d 1287, 1290 (10th Cir. 1999). “[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). Rather, “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Id. at 248.

         Initially, the moving party bears the burden of demonstrating the absence of a genuine issue of material fact. See Shapolia v. Los Alamos Nat'l Lab., 992 F.2d 1033, 1036 (10th Cir. 1993) (citations omitted). The moving party need not negate the nonmoving party's claim, but rather must show “that there is an absence of evidence to support the nonmoving party's case.” Celotex v. Catrett, 477 U.S. 317, 325 (1986). Once the moving party meets its initial burden, the nonmoving party must show that genuine issues remain for trial “as to those dispositive matters for which it carries the burden of proof.” Applied Genetics Int'l Inc. v. First Affiliated Secs., Inc., 912 F.2d 1238, 1241 (10th Cir. 1991) (citation omitted). “In a response 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.” Conaway v. Smith, 853 F.2d 789, 794 (10th Cir. 1988). The nonmoving party cannot rely upon conclusory allegations or contentions of counsel to defeat summary judgment, see Pueblo v. Neighborhood Health Ctrs., Inc., 847 F.2d 642, 649 (10th Cir. 1988), but rather must “go beyond the pleadings and by [its] own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on file, ' designate ‘specific facts showing that there is a genuine issue for trial.'” Celotex, 477 U.S. at 324 (citation omitted).

         Upon a motion for summary judgment, the Court “must view the facts in the light most favorable to the nonmovant and allow the nonmovant the benefit of all reasonable inferences to be drawn from the evidence.” Kaus v. Standard Ins. Co., 985 F.Supp. 1277, 1281 (D. Kan. 1997), aff'd, 162 F.3d 1173 (10th Cir. 1998). “[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, 477 U.S. at 249 (citations omitted). If there is no genuine issue of material fact in dispute, then a court must next determine whether the movant is entitled to judgment in its favor as a matter of law. See, e.g., Jenkins v. Wood, 81 F.3d 988, 990 (10th Cir. 1996); Celotex, 477 U.S. at 322.

         II. Qualified Immunity and Summary Judgment

         As compared to his burden at the summary judgment stage against Defendants Target and Mr. Davidson, Mr. Douglass's burden at the summary judgment stage against Defendants City of Albuquerque and Officer Lewandowski is substantially greater because Defendants City of Albuquerque and Officer Lewandowski have raised the defense of qualified immunity-an expansive doctrine that shields government officials not only from liability, but also from the “burdens of [pretrial] litigation.” See, e.g., Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) (“The entitlement [to qualified immunity] is an immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial.”); Allstate Sweeping, LLC v. Black, 706 F.3d 1261, 1266 (10th Cir. 2013).

         Where, as here, a defendant raises the defense of qualified immunity at the summary judgment stage, the Court's summary judgment analysis is different from the analysis described above. “‘When a defendant asserts qualified immunity at the summary judgment stage, the burden shifts to the plaintiff, who must clear two hurdles to defeat the defendant's motion.'” Cordova v. City of Albuquerque, 816 F.3d 645, 655 (10th Cir. 2016) (quoting Lundstrom v. Romero, 616 F.3d 1108, 1118 (10th Cir. 2010)). “Qualified immunity shields federal and state officials from money damages unless a plaintiff pleads facts showing (1) that the official violated a statutory or constitutional right, and (2) that the right was ‘clearly established' at the time of the challenged conduct.” Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)) (emphasis added). In other words, if a plaintiff fails to meet his or her burden on either the first or second prong of qualified immunity, the Court must grant qualified immunity to the government official(s). Id.

         In the past, the Court was required to determine first whether the plaintiff had met the burden under the first prong of qualified immunity-that the official violated a statutory or constitutional right. Only after determining the first prong could the Court move to the second prong-whether that right was clearly established at the time of the challenged conduct. Now, however, “[t]he judges of the district courts . . . should be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.” Pearson v. Callahan, 555 U.S. 223, 236 (2009).

         The plaintiff's burden on the second prong-to show that the right was “clearly established” at the time of the challenged conduct-is especially onerous. To meet that burden, a plaintiff must show that “‘[t]he contours of [a] right [are] sufficiently clear'” such “that every ‘reasonable official would have understood that what he [or she] [was] doing violate[d] that right.'” Al-Kidd, 563 U.S. at 741 (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)) (emphasis added).

         DISCUSSION

         I. The Court Grants In Part and Denies In Part Defendants Davidson and Target's Motion for Summary Judgment.

         The Complaint in essence makes four claims against Defendants Davidson and Target. First, regarding malicious abuse of process (Counts I and II), summary judgment is denied because Plaintiff has raised a genuine dispute of material fact as to whether Davidson altered the Rio Rancho “Criminal Trespass Notice.” Second, in regard to the claim in Count III for fraud and deceit, summary judgment is granted, as New Mexico law requires that Plaintiff detrimentally rely on the alleged misrepresentation and there is no evidence that Plaintiff relied on the allegedly altered “Criminal Trespass Notice.” Third, in regard to the claim in Count IV of assault and battery, summary judgment is granted with respect to assault and denied with respect to battery, as the there is no evidence that Plaintiff suffered an apprehension of a harmful or offensive contact, but there is sufficient evidence to create a genuine dispute as to whether Plaintiff was detained in a reasonable manner. Lastly, in regard to the claim in Count V for negligent hiring and training, summary judgment is denied because there are genuine disputes ...


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