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Gallegos v. City of Albuquerque

United States District Court, D. New Mexico

April 10, 2017

CITY OF ALBUQUERQUE, et al., Defendants.


         In this case Plaintiff Robert Gallegos (“Gallegos”) claims that his constitutional rights were violated by the City of Albuquerque (“the City”) and police officer Jared Frazier (“Frazier”) when Frazier used excessive force in arresting Gallegos and denied Gallegos proper medical care for his injuries at the time of arrest. The case is before the Court on Frazier's Motion for Summary Judgment On the Basis of Qualified Immunity [Doc. 54]. After reviewing the motion, response, and reply as well as the exhibits thereto, the Court concludes that Frazier's motion should be granted because Gallegos has failed to meet his burden to show that his constitutional rights were clearly established at the time such that a reasonable person in Frazier's position would have known that his conduct violated Gallegos' rights.


         Summary judgment generally is appropriate when a court determines that “‘there is no genuine dispute over a material fact and the moving party is entitled to judgment as a matter of law.'” Thrasher v. B & B Chem. Co., 2 F.3d 995, 996 (10th Cir. 1993) (citation omitted). Under Rule 56(c), “the 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.

         To carry its initial burden, the moving party need not negate the nonmoving party's claim. See Allen v. Muskogee, Okl., 119 F.3d 837, 840 (10th Cir. 1997), cert. denied sub nom. Smith v. Allen, 522 U.S. 1148 (1998). “‘Instead, the movant only bears the initial burden of ‘showing'-that is, pointing out to the district court-that there is an absence of evidence to support the nonmoving party's case.'” Id. (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)). Once the moving party meets its burden, the nonmoving party 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 (quoting Fed.R.Civ.P. 56(e)). A plaintiff cannot rely upon conclusory allegations or contentions of counsel to defeat summary judgment but rather must produce some specific factual support of its claim. See Pueblo Neighborhood Health Centers, Inc. v. Losavio, 847 F.2d 642, 649 (10th Cir. 1988); Fritzcshe v. Albuquerque Mun. Sch. Dist., 194 F.Supp.2d 1194, 1206 (D.N.M. 2002). “Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.'” Matsushita Elec. Indus. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citation omitted). Upon a motion for summary judgment, a 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). 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.

         The standard for analyzing a motion for summary judgment shifts slightly if, as here, a defendant raises qualified immunity as a defense in a lawsuit brought under 42 U.S.C. § 1983. Qualified immunity bars Section 1983 suits against defendants in their individual-but not official-capacities. See, e.g., Kentucky v. Graham, 473 U.S. 159, 167 (1985) (citations omitted). The qualified immunity defense was created to shield public officials “from undue interference with their duties and from potentially disabling threats of liability.” Harlow v. Fitzgerald, 457 U.S. 800, 806 (1982). It provides immunity from suit and not merely from liability. See Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). It therefore spares defendants the burden of going forward with trial. See Wilson v. Meeks, 52 F.3d 1547, 1552 (10th Cir. 1995), abrogated on other grounds, Saucier v. Katz, 533 U.S. 194 (2001).

         Once a moving party raises the defense of qualified immunity, the nonmoving party must (1) assert facts which, if true, would constitute a violation of a constitutional right, and (2) demonstrate that the “right was clearly established at the time such that a reasonable person in the [movant's] position would have known that [the] conduct violated the right.” Garramone v. Romo, 94 F.3d 1446, 1449 (10th Cir. 1996) (citations omitted); see also, e.g., Saucier v. Katz, 533 U.S. 194, 201-02 (2001). The first part of this inquiry requires a court to determine whether the parties' submissions, viewed in the light most favorable to the plaintiff, could show the officers' conduct violated a constitutional right. Cf. Id. at 201. The second part of the inquiry requires a court to “assess[] the objective legal reasonableness of the action at the time of the alleged violation and ask[] whether ‘the right was sufficiently clear that a reasonable officer would understand that what he [or she was] doing violates that right.'” See Medina v. Cram, 252 F.3d 1124, 1128 (10th Cir. 2001) (quotation omitted); Anderson v. Creighton, 483 U.S. 635, 639 (1987) (citations omitted). The Court may decide “which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case.” Pearson v. Callahan, 555 U.S. 223, 236 (2009); accord Green v. Post, 574 F.3d 1294, 1299 (10th Cir. 2009).

         If a nonmoving party fails to satisfy its two-part burden, a court must grant the moving party qualified immunity. See Medina, 252 F.3d at 1128. If, and only if, the plaintiff establishes both elements of the qualified immunity test does a defendant then bear the traditional burden of showing “‘that there are no genuine issues of material fact and that he or she is entitled to judgment as a matter of law.'” Nelson v. McMullen, 207 F.3d 1202, 1206 (10th Cir. 2000) (quoting Albright v. Rodriguez, 51 F.3d 1531, 1535 (10th Cir. 1995)). In other words, although the court “review[s] the evidence in the light most favorable to the nonmoving party, the record must clearly demonstrate the plaintiff has satisfied his heavy two part burden; otherwise, the defendants are entitled to qualified immunity.” Medina, 252 F.3d at 1128 (citation omitted). However, if the nonmoving party successfully demonstrates the violation of a clearly established right, the moving party assumes the normal summary judgment burden of demonstrating that no genuine issue of material fact exists that would defeat its claim for qualified immunity. See Woodward v. City of Worland, 977 F.2d 1392, 1396-97 (10th Cir. 1992) (citations omitted).


         On summary judgment, the Court does not make credibility determinations or weigh the evidence. Rather, the Court views the evidence in the light most favorable to the non-moving party-in this case, Gallegos-and resolves all factual disputes in his favor.[1] With that in mind, for purposes of the motion currently before it, the Court finds the facts as follows.

         On the evening of June 5, 2012, at approximately 9:49 p.m., Gallegos was driving a motorcycle southbound on Tramway Boulevard in Albuquerque. Second Am. Cmplt. [Doc. 25] at ¶¶ 21-22, 24. At the intersection of Tramway and Cloudview, Gallegos collided with another vehicle. Id. at ¶ 22. A witness called 911 to report the accident. Doc. 64-2 at 1. According to the dispatch log, the caller stated that the driver of the motorcycle (now known to be Gallegos) got up and ran southbound on Tramway. Id. At some point, Gallegos made his way to a nearby residential area. At 10:04 p.m. a resident called 911, stating that a “male subject” with “blood all over his arm” was banging on his door. Exh. E, Doc. 54-2 at 2. About a minute and a half later, two officers arrived on the scene. Defendant Frazier was dispatched to evaluate Gallegos for possible signs of intoxication. Exh. C, Doc. 54-1 at 4, ¶ 3. After going first to the scene of the accident, at approximately 10:13 p.m. Frazier arrived at the residential area where Gallegos had been found. Id. at ¶ 4-6; Exh. E, Doc. 54-2 at 2.

         When Frazier arrived, he saw Gallegos wearing handcuffs in the front yard of a residence. Exh. C, Doc. 54-1 at ¶ 7. After speaking with another officer, Tommy Benavides, Frazier spoke with at least one of the Albuquerque Ambulance paramedics on the scene. Exh. E, Doc. 54-2 at 2; Exh. 1, Doc. 64-3 at 7, 22, and 67 of 115. Of the two paramedics who were there, Rachael Wennekamp was the lead paramedic and was the only one who spoke to the police at the scene. Exh. 1, Doc. 64-3 at 67, 85 of 115. Wennekamp spoke to the officer that she believed to be the lead officer in charge. Id. at 67, 70, 85. That officer told Wennekamp that the patient did not need to be assessed and that the paramedics could cancel the call. Id. at 67, 74, 76, 86. As a result, the paramedics left without assessing Gallegos. Id. at 67, 71, 74, 85-86; Exh. 3, Doc. 64-4 at ¶ 18.

         Frazier did not read Gallegos his Miranda rights.[2] Exh. 3, Doc. 64-4 at ¶ 34. However, officers (including Frazier) did question Gallegos while Gallegos sat with his arms handcuffed behind his back. Id. at ¶ 12-13; Exh. C, Doc. 54-1 at ¶ 11. When officers initially arrived, Gallegos did not consent to take a breathalyzer test. Exh. 1, Doc. 64-3 at 101 of 115; Exh. 3, Doc. 64-4 at ¶¶ 15-17. However, after officers sent the paramedics away, Frazier told Gallegos that he would receive no medical treatment until he took the test; as a result, Gallegos consented.[3] Exh. 1, Doc. 64-3 at 97, 99-100, 105-06, and 108 of 115; Exh. 3, Doc. 64-4 at ¶ 15-17, 23-24. Gallegos asked Frazier and the other officers to please let the paramedics examine him. Exh. 1, Doc. 64-3 at 99 of 115; Exh. 3, Doc. 64-4 at ¶ 14; Exh. D, Doc. 54-2; Exh. 12, Doc. 64-13.[4]

         Frazier recorded at least a portion of his interaction with Gallegos with his lapel camera. See Exh. D, Doc. 54-2; and Exh. 12, Doc. 64-13. That video recording shows Gallegos denying having a motorcycle accident and running to the residential area from the scene of an accident. Gallegos begged Frazier to let the paramedics look at his ankle. Frazier says, “You got a little scuff on it.” Frazier accuses Gallegos of lying; Gallegos denies it. Gallegos says, “I'm hurting.” Frazier responds, “That's what happens when you fall off a motorcycle.” Frazier directs Gallegos, who is out of frame, to stand up. There is a sound of movement, and Gallegos can be heard crying out in pain. It is impossible to tell from the video alone if Frazier or anyone else is touching Gallegos at this point. In his affidavit, Gallegos states that he believes that Frazier grabbed his left shoulder and used the handcuffs as leverage to raise Gallegos to a standing position, tugging on Gallegos' shoulder harder when he saw that this caused Gallegos pain. Doc. 64-4 at ¶ 22. Then Frazier directs Gallegos to roll over, and there is a sound of heavy breathing and struggling. Frazier directs Gallegos to bring his knees up, and then to sit up. Then, he directs Gallegos to stand. Gallegos says, “Please, help me stand. I can't stand, ” to which Frazier says, “Stand up. We're helping you.” Frazier then says, “This is what happens when you fall off a motorcycle.” Gallegos again denies falling off a motorcycle. Then, the camera perspective shifts so that Gallegos becomes visible in the frame. His left arm and right shoulder are bloody and appear raw; it appears that large patches of skin have been scraped off. Frazier says, “That is called road rash.” Gallegos denies having road rash and again denies falling off a motorcycle. Gallegos asks to be taken to a hospital for treatment for his ankle “because, I promise you, it's broken.” Fraser responds, “That's why you ran a quarter of a mile?” After additional accusations by Frazier and denials of lying by Gallegos, Gallegos again says “I'm hurting, ” and asks for medical attention for his ankle. In an exchange with another officer, Frazier observes that Gallegos “has road rash all over him.” A short time later, Frazier and another officer take Gallegos by the arm and walk him toward a police cruiser. Fraser tells Gallegos that he is under arrest for DWI, fleeing the scene of an accident, and “being an absolute liar.” As the officers put him in the car, Gallegos says that he wants a breathalyzer “as soon as possible.”

         Gallegos was seated in the back of the patrol car with his hands cuffed behind him. Exh. 3, Doc. 64-4 at ¶ 25, Exh. C, Doc. 54-1 at ¶ 28. That position caused pain in his injured left shoulder and right ankle. Exh. 3, Doc. 64-4 at ¶ 25. On the drive to the police station, Gallegos continued to ask to be taken to the hospital, to which Frazier responded, “Be a man already, ” which Gallegos interpreted to mean that Frazier wanted him to confess before he would take Gallegos to the hospital. Id. at ¶ 26-27. Frazier drove Gallegos to the Prisoner Transport Center (“PTC”) in order to administer a breathalyzer test. Exh. C, Doc. 54-1 at ¶ 29. When they arrived at the PTC, Frazier put his right arm under Gallegos' left shoulder to help him balance as Gallegos hopped on his left foot, causing additional pain to Gallegos' shoulder. Exh. 3, Doc. 64-4 at ¶ 29. Frazier and Gallegos arrived at the PTC at 10:42 p.m. Exh. C, Doc. 54-1 at ¶ 30.

         At the PTC, Gallegos' injuries prevented him from being able to sit comfortably. Exh. 3, Doc. 64-4 at ¶ 30. He was hunched over in pain, bleeding, and asking for medical help. Id. Frazier administered a breathalyzer test, Exh. C, Doc. 54-1 at ¶ 31, and then Gallegos heard a man behind a counter tell Frazier that they were not going to accept Gallegos into the PTC because he did not believe that the paramedics had cleared Gallegos. Exh. 3, Doc. 64-4 at ¶ 31-32. Frazier called the paramedics, who arrived at the PTC to examine Gallegos at 11:33 p.m. Exh. C, Doc. 54-1 at ¶ 34-35; Exh. G, Doc. 54-2 at 5 of 6; Doc. 64-4 at ¶ 33.

         The physician who examined Gallegos a few hours later noted severe road rash to approximately 20% of Gallegos' body, a likely grade 3 left shoulder joint ...

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