United States District Court, D. New Mexico
ROBERT L. GALLEGOS, Plaintiff,
CITY OF ALBUQUERQUE, et al., Defendants.
MEMORANDUM OPINION AND ORDER
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'
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.
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.
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).
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).
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).
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. With that in mind, for purposes of the
motion currently before it, the Court finds the facts as
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.
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.
did not read Gallegos his Miranda
rights. 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. 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.
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
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.
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
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 ...