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Rodriguez v. Smith

United States District Court, D. New Mexico

April 7, 2017

BEVERLY RODRIGUEZ, Plaintiff,
v.
JEFFREY SMITH, Defendant.

          ORDER GRANTING SMITH'S SECOND MOTION FOR SUMMARY JUDGMENT

          WILLIAM P. LYNCH UNITED STATES MAGISTRATE JUDGE.

         Defendant Jeffrey Smith filed a Motion for Summary Judgment on the Basis of Qualified Immunity on Plaintiff's Malicious Prosecution Claim (“Second MSJ”). (Doc. 77.) Plaintiff Beverly Rodriguez filed a response (Doc. 82), and Smith filed a reply (Doc. 85). Having read and considered the briefing, case record, and relevant law, I grant Smith's motion.

         BACKGROUND

         Smith's Second MSJ addresses the new and sole remaining claim in Rodriguez's First Amended Complaint-that Smith's actions in investigating and seeking to prosecute her for allegedly stealing metal handicap access ramps from the Cuba Independent School District (“CISD”) constituted malicious prosecution under the Fourth and Fourteenth Amendments and 42 U.S.C. § 1983. (See Doc. 69 at 12-20.)

         I dismissed all the claims in Rodriguez's original complaint when I entered my order granting Smith's motion for summary judgment on the basis of qualified immunity (“First Order” granting “First MSJ”). (Docs. 70 and 28, respectively.) Before my ruling, however, Rodriguez filed her First Amended Complaint (Doc. 69), and Smith did not withdraw and revise his already fully briefed First MSJ (Doc. 64). This meant my First Order could not address Rodriguez's new malicious prosecution claim. (See Doc. 70 at 33.)

         My First Order contains a ten page fact section (see Doc. 70 at 2-11), but neither party believes it is importable to this Order. Smith would like me to adopt the facts set forth in his First MSJ (see Doc. 77 at 2), while Rodriguez “intends to appeal . . . and therefore disputes the facts” in my First Order and devotes nearly half of her response to correcting “errors and omissions” and offering clarifications (Doc. 82 at 1).

         Given that I considered the facts from Smith's First MSJ when I determined the facts for my First Order, there is no need to address them again here. As for Rodriguez, her response begins with seven proposed factual corrections. (Doc. 82 at 2-6.) I address the additional facts individually and construe each in the light most favorable to Rodriguez, as the non-movant, but will not adopt a disputed fact if it is so contradicted by the record that “no reasonable jury could believe it.” Thomson v. Salt Lake Cty., 584 F.3d 1304, 1312 (10th Cir. 2009).

         First, Rodriguez cites a part of Smith's deposition that “[n]either party provided . . . in briefing associated with the first MSJ” to show that Smith submitted his investigative report to the district attorney for the prosecution of the bus contractors, including Rodriguez's uncle, in late spring 2012, which was “a number of months after his two interviews with Ms. Rodriguez and the other witnesses he relied on in drafting the warrants and criminal complaint.” (Doc. 82 at 2.) Rodriguez argues that this timeline demonstrates “Smith's intent in initiating the criminal proceeding” and shows that he was angry the district attorney did not pursue charges. (Id.)

         I adopt Rodriguez's fact about when Smith submitted his investigative report, but not the accompanying inference about his intent. The new fact should be added to my discussion of Smith's investigative report on the top of page three of my First Order as follows:

Smith was not certain when he submitted his investigative report to the district attorney but estimated it was “late spring, maybe, ” which Rodriguez's counsel confirmed was “late spring of 2012.” (Smith Dep. 53:12-21 (Doc. 82-1 at 1).)

         Second, Rodriguez argues that Smith gave two conflicting accounts of his interview with Carmen Gallegos-one in his warrant affidavits and the other in his affidavit attached to his First MSJ-and I relied on the latter, inaccurate account in my First Order. (See Doc. 82 at 2-3.) I wrote: “Gallegos stated that two metal ramps that were used during the high school construction project were in Rodriguez's front yard. [Smith Aff. at 2 (Doc. 29 at 2).)].” (Doc. 70 at 4.) The warrant affidavits note that Investigator McClure stated that Rodriguez had ramps in her front yard and then asked Gallegos where Rodriguez obtained them, while Smith's affidavit attached to his First MSJ suggests that Gallegos unilaterally identified the ramps. (Compare Doc. 28-1 at 3 and Doc. 28-2 at 3 with Doc. 29 at 2.) I agree that the two statements conflict.

         I therefore revise the fact in the second paragraph on page four of my First Order as follows:

Investigator McClure told Gallegos that he observed two metal ramps that were used during the school construction project to access the portable buildings in Rodriguez's front yard. (See Docs. 28-1 at 3, 28-2 at 3.) When asked where the ramps in Rodriguez's yard came from, Gallegos replied that they came from portable buildings at CISD. (Id.)

         Third, Rodriguez argues that Smith's warrant affidavits and my First Order omitted material facts about witness Garrison Martin's relationship with Rodriguez that go “to the probable cause analysis and Smith's intent.” (Doc. 82 at 3.) The statements come from Smith's first interview with Martin. (See First Smith-Martin Interview Tr. (Doc. 55-7).) First, she points to Martin's statements about his working relationship with her and the team she managed, including that Martin thought she was prejudiced against him because he was Indian, and that his four coworkers did not support him because they were Hispanic. (See Doc. 82 at 3.) Second, Rodriguez points to an exchange between Smith and Martin, where Smith confirmed that Martin was the only Indian working for Rodriguez, and commented that it “could be a clue” to explain why Martin and Rodriguez did not get along. (See id.)

         Though I do not find these additional facts particularly relevant, I add them to my discussion of Smith's first interview with Martin on the bottom of page three of my First Order as follows:

Martin stated that he and Rodriguez “butted heads” and “didn't like each other” because Martin is “an Indian” “[a]nd . . . very efficient” in his work. (First Smith-Martin Interview Tr. 25:14, 18-23 (Doc. 55-7 at 1).) Smith asked Martin if he was the “the only Navajo or Dine” that Rodriguez supervised. (Id. at 27:3-4 (id.).) Martin answered “[y]eah, ” to which Smith responded: “Oh. Okay. That could a clue. Yeah.” (Id. at 27:5-7 (id.).) Martin went on to state that his four co-workers “never backed [him] up” during his conflicts with Rodriguez “because they were all Hispanic.” (Id. at 27:22-23 (id.).)

         Fourth, Rodriguez argues that my First Order “[o]mitted . . . that Mr. Martin initially stated that he allegedly observed Mrs. Rodriguez take ‘maybe 3 or 4 ramps', but after viewing the two sections of ramps in Mrs. Rodriguez' yard while with Defendant, Martin stated that she had only taken two (2) ramps.” (Doc. 82 at 4.)

         Review of my First Order, however, reveals that I discussed Martin's first estimate-that Rodriguez took three or four ramps-three times: twice in the Background section and a third time in a stand-alone paragraph in the Analysis section discussing Martin's credibility. (See Doc. 70 at 3, 10, 29-30.) My First Order already notes that Martin changed his estimate, so there is no need to add it here.

         Fifth, Rodriguez argues that my First Order omitted two material facts contained in Gerald Pertner's affidavit: (1) that Pertner stated that his ramp price estimate was for a brand new, complete ramp system, not the more weathered pieces of ramps in Rodriguez's yard, and (2) that Pertner stated the photos Smith emailed him depicted pieces of ramps, and that Pertner was not asked to estimate the value of the pieces. (See Doc. 82 at 4-5.)

         My First Order discussed these facts twice in the Analysis section (see Doc. 70 at 24-25, 32-33), but did not include them in the Background section. I therefore add them to my discussion of Smith's interaction with Pertner in the middle of page five of my First Order as follows:

Rodriguez includes an affidavit from Pertner, wherein Pertner states that he told Smith “a new complete ramp system could cost as much as five-thousand-dollars” but that “Smith did not ask my opinion regarding the current value of the sections of metal ramps displayed in the photographs he provided and I did not volunteer an opinion as to their value.” (Pertner Aff. at 2-3 (Doc. 28-8 at 2-3).)

         Sixth, Rodriguez argues that two statements from Smith's deposition weaken a fact in my First Order discussing the information the State Auditor gave Smith about whether an auction occurred at CISD. (Doc. 82 at 5.) The fact in my First Order reads as follows: “Smith contacted the New Mexico Office of the State Auditor, who informed him that they had no proof that Rodriguez purchased the ramps in 2006 or 2007. (Smith Dep. 120:12-19 (Doc. 28-3 at 11).)” (Doc. 70 at 7.) The two statements from Smith's deposition that Rodriguez believes weaken this fact are paraphrased as follows: (1) Smith learned through his conversation with the State Auditor's Office that the Office only maintains records of school auctions for five years (see Doc. 82 at 5 (citing Smith Dep. 143:21-25, 144:1-11 (Doc. 82-1 at 3))), and (2) Smith also learned that the Office had no knowledge whether a CISD auction occurred in 2006 or 2007 (see Doc. 82 at 5 (citing Smith Dep. 145:20-25, 146:1-5 (Doc. 82-1 at 4))).

         The first omitted fact is material because it clarifies Smith's statement earlier in his deposition that the State Auditor's Office had no proof of an auction. The second fact, however, is not material because the section of the deposition Rodriguez cites is vague-it only seems to indicate that Smith included information about his communication with the State Auditor's Office in his 165 page report. (See Smith Dep. 145:20-25, 146:1-5 (Doc. 82-1 at 4).) I therefore add the following fact to my discussion of Smith's communication with the State Auditor's Office on the bottom of page seven of my First Order:

Smith also stated he believed the State Auditor's Office was bound by “the public records rule” and would maintain records of the auction for “five years.” (Smith Dep. 144:1-11 (Doc. 82-1 at 3).)

         And seventh, Rodriguez argues that Smith omitted two material facts when testifying before the grand jury, and I should have noted the two omissions in my First Order. (See Doc. 82 at 5-6.) The first omission was that Smith did not name the entire group that Martin alleged stole the ramps-Rodriguez, her brother, and other contractors-instead testifying that Martin told him he saw Rodriguez and one other person steal the ramps. (See id.) The second omission was that Smith testified that ...


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