United States District Court, D. New Mexico
PROPOSED FINDINGS AND RECOMMENDED
GREGORY B. WORMUTH UNITED STATES MAGISTRATE JUDGE.
matter comes before the Court on the parties' competing
Motions for Summary Judgment (docs. 23,
29). Having reviewed the Martinez Report (doc.
22) and all other pertinent briefing (docs. 14, 15,
27, 28), I recommend the Court GRANT Defendants'
Motion for Summary Judgment (doc. 23). I further
recommend the Court DENY Plaintiff's Motion to Reinstate
Default Judgment (doc. 14), Motion to Remand
(doc. 15), and Motion for Summary Judgment (doc.
initiated this action due to the circumstances surrounding
his arrest, which took place on January 6, 2015. Doc.
1-1 at 2; doc. 22 at 1. Plaintiff was arrested
following a search of his home that was conducted pursuant to
a search warrant by the Bernalillo County Sheriff's
Office. Doc. 22 at 2.
a pro se inmate, filed suit in the Second Judicial
District Court of New Mexico on October 28, 2015. Doc.
1-1. Plaintiff's Complaint states that it is a tort
suit brought pursuant to the New Mexico Tort Claims Act
(NMTCA). Id. at 1. Plaintiff also alleges
constitutional violations arising under the Fourth, Fifth,
and Fourteenth Amendments as a result of the search of his
home. Id. at 2.
a complicated procedural history in state court, discussed
in-depth below, Defendants removed this action on September
21, 2016. See doc. 1. Because Plaintiff is a pro
se inmate, Defendants filed a Martinez Report in lieu of
formal discovery on December 9, 2016. Doc. 22.
Concurrently therewith, Defendants filed a motion seeking
summary judgment, arguing that: (1) Plaintiff's federal
claims against Defendant Detective J. Garcia in his
individual capacity should be dismissed on the basis of
qualified immunity; (2) Plaintiff's federal claims
against Defendant Bernalillo County Sheriff's Department
should be dismissed because Plaintiff failed to plead facts
showing Defendants violated his constitutional rights; and
(3) Plaintiff's state claim against Defendant Garcia
should be dismissed because Plaintiff failed to comply with
the NMTCA's notice requirements. See generally doc.
Plaintiff's Reconsideration and Remand Motions
initially filed his Complaint in the Second Judicial District
Court of New Mexico. See docs. 1-1, 7-1. On
June 30, 2016, that state court granted Plaintiff's
Motion for Default Judgment following Defendants' failure
to file any responsive pleading to Plaintiff's Complaint
or to appear at a hearing in the matter. See doc.
7-1 at 31-33. The court then set aside the default
judgment upon motion by Defendants on September 2, 2016.
Id. at 58-60. Because Plaintiff's Complaint
asserted numerous constitutional claims, Defendants removed
the action to this Court on September 21, 2016. See doc.
1. Since removal, Plaintiff has made numerous filings
averring that the default judgment should not have been set
aside by the state court below. See docs. 14, 15, 27, 28,
29. Specifically, on October 27, 2016, Plaintiff filed
both a Motion to Remand (doc. 15) and a motion
asking the Court to deny Defendants' motion to set aside
the default judgment, which was already granted by the state
court (doc. 14). Plaintiff reiterates the arguments
underlying these motions in later filings (docs. 27, 28,
the Rooker-Feldman doctrine, a federal court-other
than the Supreme Court-has no jurisdiction to review any
final judgment of a state court. See District of Columbia
Court of Appeals v. Feldman, 460 U.S. 462, 476, 486
(1983); Rooker v. Fidelity Trust Co., 263 U.S. 413,
415-16 (1923). Essentially, the doctrine bars “cases
brought by state- court losers complaining of injuries caused
by state-court judgments rendered before the district court
proceedings commenced and inviting district court review and
rejection of those judgments.” Exxon Mobil Corp. v.
Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005).
However, “the Rooker-Feldman doctrine is
confined to cases brought after the state proceedings have
ended.” Mann v. Boatright, 477 F.3d 1140, 1146
(10th Cir. 2007) (internal quotations omitted). Thus, the
doctrine does not apply in the present matter, as the state
court proceedings had only just begun when this matter was
removed. Doc. 1-1. See Jenkins v. MTGLQ
Investors, 218 F. App'x 719, 724 (10th Cir. 2007)
(unpublished) (“[T]he Rooker-Feldman doctrine
has no application to a properly removed case where . . .
there is no attack on a separate and final state court
judgment.”); see also Persley v. Lee, 794
F.Supp.2d 728, 732 (E.D. Ky. 2011) (finding the
Rooker-Feldman doctrine inapplicable under identical
procedural circumstances because there was no final state
court judgment). Federalism concerns are thus not implicated
by Plaintiff's request that this Court reinstate the
entry of default that was made and subsequently set aside by
the state court.
a case is removed from state court, the federal court takes
the case in its current posture and treats previously entered
orders as its own.” Sawyer v. USAA Ins. Co.,
839 F.Supp.2d 1189, 1215 (D.N.M. Mar. 8, 2012). Therefore,
the state court's order setting aside default judgment
(doc. 7-1 at 58-59) should be treated as the
Court's own. That order does not adjudicate all of the
claims in the case and is thus an interlocutory order, which
“is subject to revision at any time before the entry of
[final] judgment.” Raytheon Constructors, Inc. v.
Asarco, Inc., 368 F.3d 1214, 1217 (10th Cir. 2003)
(quoting Fed.R.Civ.P. 54(b)). As Defendants correctly note in
their briefing, the Federal Rules of Civil Procedure do not
recognize a motion for reconsideration of interlocutory
orders. Doc. 19 at 2; see Hawkins v. Evans,
64 F.3d 543, 546 (10th Cir. 1995) (explaining that courts
should construe a motion for reconsideration as either a
motion to alter or amend the judgment under Rule 59(e) or a
motion seeking relief from the judgment under Rule 60(b),
which apply only to orders of final judgment). However, the
Court has discretion to revise its interlocutory orders,
untethered by the constraints governing Rules 59(e) and
60(b). Trujillo v. Bd. of Educ. of Albuquerque Pub.
Schs., 212 F. App'x 760, 765 (10th Cir. 2007)
(unpublished) (citing Price v. Philpot, 420 F.3d
1158, 1167 n.9 (10th Cir. 2005)); see also Wagoner v.
Wagoner, 938 F.2d 1120, 1122 n.1 (10th Cir. 1991)
(noting that a motion for reconsideration filed prior to
final judgment “was nothing more than an interlocutory
motion invoking the district court's general
discretionary authority to review and revise interlocutory
rulings prior to entry of final judgment”). I will
therefore address whether the Court should revise the
interlocutory order setting aside default judgment.
Mexico, two different standards govern the setting aside of
an entry of default, depending on whether a final default
judgment has been entered. See DeFillippo v. Neil,
51 P.3d 1183, 1185-86 (N.M. Ct. App. 2002); N.M.R.A., Rule
1-055(C); N.M.R.A., Rule 1-060(B). In the order at issue, the
state court judge correctly applied Rule 1-055(C) of the New
Mexico Rules of Civil Procedure, which sets forth a
“good cause” standard for setting aside an entry
of default prior to entry of judgment by default. Doc.
7-1 at 39- 44, 58-59; see also N.M.R.A., Rule
1-055(C). The court's order set aside the entry of
default because “New Mexico public policy clearly
favors determination on the merits” and
“Defendants demonstrate the existence of a valid
defense, or defenses, to the Complaint.” Doc.
7-1 at 58. Even under the more stringent Rule 1-060
standard, these reasons suffice to justify setting aside the
entry of default. See Sunwest Bank of Albuquerque v.
Rodriguez, 770 P.2d 533, 535 (N.M. 1989)
(“[B]ecause default judgments are disfavored and causes
generally should be tried on their merits, we have counseled
trial courts to be liberal in determining the existence of
grounds that satisfy Rule 60(B)”). Moreover, the order
noted that Defendants had established the existence of a
valid defense, a necessary showing before relief from default
judgment will be granted. Rodriguez v. Conant, 737
P.2d 527, 530 (N.M. 1987). Courts “should be liberal in
determining what is a meritorious defense and whether there
are grounds for setting aside a default judgment.”
Id. Therefore, I recommend the Court decline to
revise the previous order setting aside entry of default and
deny Plaintiff's Motion for Reconsideration (doc.
III. As for Plaintiff's Motion to Remand
(doc. 15), Plaintiff missed the thirty-day deadline
to file such a motion following Defendants' notice of
removal. See 28 U.S.C. § 1447(c). I recommend
that the Court deny his motion on that basis. Alternatively,
I recommend the Court deny the motion its merits. Plaintiff
offers no basis for remand other than Defendants' failure
to appear at the June 29, 2016 state court hearing or to file
any responsive pleadings to Plaintiff's Complaint in
state court. See generally doc. 15. These are the
same reasons the state court initially granted default
judgment, which it later set aside for good cause shown.
See doc. 7-1 at 31-32, 58-59. As set forth above,
good cause supported the state court's decision to set
aside the default judgment. In any event, the Defendants'
alleged failings in state court provide no basis on which to
grant Plaintiff's Motion to Remand.
Defendants' Motion for Summary
A. Standard of Review
Federal Rule of Civil Procedure 56(a), this Court must
“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.'”
Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d
887, 891 (10th Cir. 1991) (quoting Celotex Corp. v.
Catrett, 477 U.S. 317, 325 (1986)). Once the movant
meets this burden, the non-moving party is required to
designate specific facts showing that “there are . . .
genuine factual issues that properly 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. 242, 250 (1986); Celotex, 477
U.S. at 324.
summary judgment motions based upon the defense of qualified
immunity are reviewed differently from other summary judgment
motions, because qualified immunity is “designed to
protect public officials from spending inordinate time and
money defending erroneous suits at trial.” Clark v.
Edmunds, 513 F.3d 1219, 1222 (10th Cir. 2008).
Therefore, when a public official is entitled to qualified
immunity, the entitlement relieves the official from bearing
any of the burdens of litigation, including discovery.
Ashcroft v. Iqbal, 556 U.S. 662, 672 (2009). The
Supreme Court “has directed the lower federal courts to
apply qualified immunity broadly, to protect from civil
liability for damages all officers except ‘the plainly
incompetent or those who knowingly violate the law,
'” in order to avoid unduly inhibiting officers in
performing their official duties. Wilson v. City of
Lafayette, 510 F. App'x 775, 780 (10th Cir. 2013)
(unpublished) (quoting Malley v. Briggs, 475 U.S.
335, 341 (1986), and Medina v. Cram, 252 F.3d 1124,
1127 (10th Cir. 2001)). The qualified immunity standard
allows government officials “ample room for mistaken
judgments, ” shielding them from liability for
reasonable error. Applewhite v. U.S. Air Force, 995
F.2d 997, 1000 (10th Cir. 1993) (quoting Hunter v.
Bryant, 502 U.S. 224, 229 (1991)). Thus, qualified
immunity is “applicable unless the official's
conduct violated a clearly established constitutional
right.” Pearson v. Callahan, 555 U.S. 223, 232
defendant moves for qualified immunity on an excessive force
claim, the burden shifts to the plaintiff to show (1)
“that the force used was impermissible (a
constitutional violation)[, ]” and (2) “that
objectively reasonable officers could not have thought the
force constitutionally permissible (violates clearly
established law).” Cortez v. McCauley, 478
F.3d 1108, 1128 (10th Cir. 2007); see also Medina,
252 F.3d at 1128. This is a “strict two-part
test” that must be met before the defendant asserting
qualified immunity again “bear[s] the traditional
burden of the movant for summary judgment- showing that there
are no genuine issues of material fact and that he or she is
entitled to judgment as a matter of law.”
Clark, 513 F.3d at 1222. The Court may address the
two prongs of the test in any order. Pearson, 555
U.S. at 236.
whether the allegedly violated right was “clearly
established” depends on whether “the contours of
the right [were] sufficiently clear that a reasonable
official would understand that what he is doing violates that
right.” Anderson v. Creighton, 483 U.S. 635,
640 (1987). “Ordinarily, in order for the law to be
clearly established, there must be a Supreme Court or Tenth
Circuit decision on point, or the clearly established weight
of authority from other courts must have found the law to be
as the plaintiff maintains.” Clark v. Wilson,
625 F.3d 686, 690 (10th Cir. 2010) (quotation omitted). While
the plaintiff need not locate “a case directly on
point, ” nevertheless “existing precedent must
have placed the statutory or constitutional question beyond
debate.” Ashcroft v. al-Kidd, 563 U.S. 731,
the motion for summary judgment is based on qualified
immunity or not, the Court decides the motion on the basis of
the facts as construed in the light most favorable to the
non-moving party. Consequently, it must keep in mind three
principles. First, the Court's role is not to weigh the
evidence, but to assess the threshold issue of whether a
genuine issue exists as to material facts requiring a
trial.See Liberty Lobby, 477 U.S. at 249. “An
issue is ‘genuine' if there is sufficient evidence
on each side so that a rational trier of fact could resolve
the issue either way. An issue of fact is
‘material' if under the substantive law it is
essential to the proper disposition of the claim.”
Thom v. Bristol Myers Squibb Co., 353 F.3d 848, 851
(10th Cir. 2003) (internal citation omitted). Second, the
Court must resolve all reasonable inferences and doubts in
favor of the non-moving party, and construe all evidence in
the light most favorable to the non-moving party. See
Tolan v. Cotton, 134 S.Ct. 1861, 1866 (2014); see
also Riggins v. Goodman, 572 F.3d 1101, 1107 (10th Cir.
2009) (noting that courts generally “accept the facts
as the plaintiff alleges them” when considering whether
a plaintiff has overcome defendant's assertion of
qualified immunity at the summary judgment stage). However,
“a plaintiff's version of the facts must find
support in the record” at the summary judgment stage.
Thomson v. Salt Lake Cty., 584 F.3d 1304, 1312 (10th
Cir. 2009). Third, the court cannot decide any issues of
credibility. See Liberty Lobby, 477 U.S. at 255.
“[T]o survive the . . . motion, [the non-movant] need
only present evidence from which a jury might return a
verdict in his favor.” Id. at 257.
Court is required to liberally construe the filings of a
pro se plaintiff and to hold them to a less
stringent standard than formal pleadings drafted by lawyers.
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.
1991). Such a requirement entails the responsibility of a
court to read the pleadings to state a valid claim on which a
pro se plaintiff could prevail if such a reading is
reasonable, “despite the plaintiff's failure to
cite proper legal authority, his confusion of various legal
theories, his poor syntax and sentence construction, or his
unfamiliarity with pleading requirements.” Id.
However, the Court does not assume the role of advocate for a
pro se plaintiff. Id. Accordingly, the
Court “will not supply additional factual allegations
to round out a plaintiff's complaint or construct a legal
theory on a plaintiff's behalf.” Whitney v.
State of N.M., 113 F.3d 1170, 1173-74 (10th Cir. 1997)
(quotations and citations omitted).
Local Rules regarding Summary Judgment procedures require
that a non- moving party's response to a Motion for
Summary Judgment 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. 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. All material facts set
forth in the Memorandum will be deemed undisputed unless
specifically controverted. The Response may set forth
additional facts other than those which respond to the
Memorandum which the non-movant contends are material to the
resolution of the motion. Each additional fact must be
lettered and must refer with particularity to those portions
of the record upon which the non-movant relies.
56.1(b). Plaintiff did not file a response to Defendants'
summary judgment motion, but Plaintiff's own Motion for
Summary Judgment contains a list of undisputed material facts
and directly disputes some of the facts included in
Defendants' motion. See generally doc. 29.
Construing Plaintiff's pro se filings liberally,
the Court has ruled that it will treat his summary judgment
motion as a response to Defendants' summary judgment
motion. See doc. 32. The recitation below therefore
omits facts specifically controverted by Plaintiff in his
motion insofar as he has pointed to particular portions of
the record to support his opposition. The undersigned
considers all other material facts enumerated in
Defendants' Motion for Summary Judgment to be undisputed.
See doc. 23 at 1-3.
1. Plaintiff was arrested for the offenses of trafficking of
a controlled substance and felon in possession of a firearm
on January 6, 2015, at Plaintiff's residence in
Albuquerque, New Mexico. Doc. 22-1 at 1, 6-9.
2. Plaintiff's arrest resulted from a narcotics
investigation conducted by Defendant Detective Garcia, which
was initiated approximately four weeks prior to the arrest
when a confidential source informed Defendant Garcia that
Plaintiff sold narcotics. Doc. 22-1 at 6; doc.
23 at 2.
3. During his investigation, Defendant Garcia personally
observed Plaintiff engaging in activity consistent with
trafficking in controlled substances on several occasions,
including activity occurring at his residence. See doc.
22- 1 at 6-9.
4. Defendant Garcia facilitated a purchase of methamphetamine
by the confidential source from Plaintiff, and personally
witnessed what appeared to be a hand-to-hand ...