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Lee v. City of Gallup

United States District Court, D. New Mexico

June 19, 2017

DARRELL H. LEE, as Personal Representative of HAROLD LEE, Deceased Plaintiff,
v.
CITY OF GALLUP, a Municipal Corporation of the State of New Mexico, et al. Defendants. And DARRELL H. LEE, as Personal Representative of HAROLD LEE, Deceased Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant

          MEMORANDUM OPINION AND ORDER

         This matter comes before the Court upon Defendant Board of County Commissioners for the County of McKinley, Genevieve Jackson, Bill Lee, and Sara A. Keelers' (“County Defendants”) Motion for Summary Judgment and Their Memorandum in Support Thereof (“County Motion for Summary Judgment”), filed August 16, 2016. (Doc. 87). Plaintiff Darrell Lee (“Plaintiff”), as personal representative to the estate of Harold Lee, filed a response on September 27, 2016, and the County Defendants filed a reply on October 12, 2016. (Docs. 105, 110).

         Also before the Court is Defendant City of Gallup, Jackie McKinney, George Kozeliski, and Patty Holland's (“City Defendants”) Motion for Summary Judgment (“City Motion for Summary Judgment”), filed on August 22, 2016. (Doc. 90). Plaintiff filed a response on September 27, 2016, and the City Defendants filed a reply on October 10, 2017. (Docs. 104, 108). Having reviewed the motions, the accompanying briefs, and relevant law, the Court GRANTS both the County Motion for Summary Judgment and the City Motion for Summary Judgment. I. Background This case concerns the death of Harold Lee (“Mr. Lee”) at the Gallup Detox Facility (“GDF”). Plaintiff originally filed his Complaint to Recover Damages for Personal Injuries and Wrongful Death (“Complaint”) on March 8, 2015, in the Eleventh Judicial District Court of the State of New Mexico. (Docs. 1-2, 1-3). The County Defendants removed the case to this Court on May 12, 2015. (Doc. 1).

         The Complaint alleges six counts. In Counts I through V, Plaintiff brings state court claims, including New Mexico Tort Claims Act (“NMTCA”) claims against the City and County Defendants (together, “Defendants”) for partnership, unincorporated association, negligence, ultra vires, and civil conspiracy. (Doc. 1-2, 1-3). Finally, in Count VI, Plaintiff brings a 42 U.S.C. § 1983 claim for violations of Mr. Lee's civil rights, alleging both municipal liability against the City Defendants and individual liability for City Defendant Jackie McKinney[1](“Defendant McKinney”). (Doc. 1-3). Defendants now move for summary judgment on all claims stating that there are no genuine issues of material fact. Plaintiff opposes the motions in their entirety.

         II. Standard of Review

         Summary judgment is appropriate if the moving party shows “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). Once the moving party meets its initial burden of demonstrating the absence of a genuine issue of material fact, the burden shifts to the nonmoving party to set forth specific facts showing that there is a genuine issue for trial. See Schneider v. City of Grand Junction Police Dep't, 717 F.3d 760, 767 (10th Cir. 2013). A dispute over a material fact is “genuine” only if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The Court views the facts in the light most favorable to the nonmoving party and draws all reasonable inferences in the nonmoving party's favor. Tabor v. Hilti, Inc., 703 F.3d 1206, 1215 (10th Cir. 2013).

         III. Facts and Reasonable Inferences Viewed in the Light Most Favorable to Plaintiff[2]

         The City of Gallup and McKinley County signed a Memorandum of Agreement (“MOA”) with the Navajo Nation's Department of Behavioral Services to operate the GDF. (Doc. 1-3) at 14-18. According to the MOA, the purpose of the agreement was “to provide financial resources to ensure comprehensive case management for individuals who are impacted by alcohol substance abuse as well as provide prevention, treatment and after care services to individuals.” Id. at 15. The City of Gallup and McKinley County agreed to lease property to the Navajo Nation to provide “detox and rehabilitative services.” Id. The City of Gallup intended to enter into a Lease Agreement with the Navajo Nation; instead, the Navajo Nation proposed an MOA between the City of Gallup, McKinley County, and the Navajo Nation, which the parties ultimately agreed to sign. (Doc. 90-2) at ¶ 5.

         The stated purposes of the agreement between Defendants and the Navajo Nation were to (1) “provide financial resources to ensure comprehensive case management for individuals who are impacted by alcohol and substance abuse[;]” (2) maintain “continuity of comprehensive service[;]” and (3) for Defendants to lease property to the Navajo Nation. (Doc. 1-3) at 15. Under the MOA, the City of Gallup agreed to provide $320, 000 to bring the GDF building up to the appropriate standards and to maintain the exterior of the building. (Doc. 1-3) at 15. For GDF's annual funding, the City of Gallup and the County of McKinley agreed to contribute 10% each from the liquor excise taxes collected annually on liquor sales in McKinley County. Id. The Navajo Nation was required to pay $1.00 per year for use of the building and was responsible for “the provision of detox and after-care treatment to individuals at the [GDF].” Id.

         The Navajo Nation hired employees to run the facility pursuant to the Navajo Preference in Employment Act. (Doc. 90-3) at 16:10-18; (Doc. 90-5) at 96:3-7. Except to address maintenance issues, City of Gallup employees were not involved in the day-to-day operations of GDF. (Doc. 90-1) at 18:1-23. Vera John, the Clinical Director of GDF, drafted the Detox Admission Criteria which the staff at GDF used to admit individuals. (Doc. 90-6) at 48:11-14. Medical services were not provided at GDF, and if individuals required medical services, they were sent to other facilities. (Doc. 90-3) at 18:18-19:4, 19:14-18, 23:13-14. The Navajo Nation operated GDF from January 1, 2014, to October 2, 2015, which includes the time period relevant to this lawsuit. (Doc. 19-6) at 7:12-14.

         On June 14, 2014, New Mexico State Police Patrolman Mark Fambrough picked up Mr. Lee from the median on Interstate 40 and transported him to GDF.[3] (Doc. 1-2) at ¶ 22; (Doc. 90-8). When Mr. Lee was brought to GDF, his blood alcohol level was measured in excess of .48. (Doc. 104-9) at 21:7-11. According to GDF policy, an individual with a blood alcohol level greater than .45 is taken to a hospital or the emergency room to be evaluated by a physician. (Doc. 105-5) at 25:3-25. Instead, GDF employees placed Mr. Lee in the general population holding area upon admittance to GDF. Id. at 21:12-25. Mr. Lee died at GDF on June 15, 2014, of acute ethanol toxicity. (Doc. 104-6).

         IV. Discussion

         Defendants move for summary judgment on all of Plaintiffs' claims. The Court will address each claim in turn.

         A. State Law Claims

         1. Count I: Partnership

         Plaintiff alleges that Defendants formed a partnership with the Navajo Nation and are; therefore, liable for the tortious acts of the Navajo Nation that were committed in furtherance of the partnership. (Doc. 1-2) at 5 ¶¶ 37, 39. As evidence of a partnership, Plaintiff points to the MOA, which states that “[t]his Agreement establishes a partnership between the Navajo Nation, the City of Gallup and McKinley County.” (Doc. 1-3) at 15. Defendants argue that the use of the term “partnership” in the MOA did not create a legal partnership between the parties. (Doc. 87) at 6; (Doc. 90) at 7-9.

         In New Mexico, a partnership is defined as “an association of two or more persons to carry on as co-owners of a business for profit.” NMSA 1978, § 54-1A-101(6) (Repl. Pamp. 2007). The Supreme Court of New Mexico has stated that “a pattern of conduct, such as the sharing of profits and expenses of the business, filing of partnership tax forms, previous execution of contracts on behalf of the partnership, and control of a partnership bank account will suffice to show the creation of a partnership relationship.” Dotson v. Grice, 1982-NMSC-072, ¶ 6, 647 P.2d 409.

         Here, although the parties to the MOA labeled the relationship a “partnership, ” the terms of the relationship do not establish a partnership as defined by New Mexico law. The purpose of the relationship between Defendants and the Navajo Nation was to (1) “provide financial resources to ensure comprehensive case management for individuals who are impacted by alcohol and substance abuse[;]” (2) maintain “continuity of comprehensive service[;]” and (3) for Defendants to lease property to the Navajo Nation. (Doc. 1-3) at 15. The relationship was not formed to carry on a business for profit nor did employees for Defendants participate in the operation of GDF. The MOA further does not establish that the parties shared profits or expenses, file partnership tax forms, execute contracts on behalf of each other, or control a bank account. Because the parties do not meet the New Mexico definition of a partnership or the characteristics of a “partnership” as described by the Tenth Circuit, a partnership was not formed between the Defendants and the Navajo Nation based on the use of the term partnership in the MOA. Therefore, Plaintiff's partnership argument is without merit.

         Alternatively, Plaintiff argues that because the Defendants and the Navajo Nation “intended to create a partnership” and “called themselves a partnership, . . . they should be estopped from denying liability as partners, whatever their actual or legal status.” (Docs. 104, 105) at 6 (citing Cheesecake Factory, Inc. v. Baines, 1998-NMCA-120, 964 P.2d 183). In Cheesecake Factory, the New Mexico Court of Appeals addressed the term “partner by estoppel, ” which is a term that was defined in a section of the New Mexico statutes that was repealed in 1997. Cheesecake Factory, 1998-NMCA-120, ¶ 10; NMSA 1978, § 54-16 (Repealed 1997). A partnership by estoppel is formed

[w]hen a person, by words spoken or written or by conduct, represents himself . . . as a partner in an existing partnership or with one or more persons not actual partners, he is liable to any such person to whom such representation has been made, who has, on the faith of such representation, given credit to the actual or apparent partnership.

Id. Based on the statute, an individual would be liable to individuals that relied on the apparent partnership. Id. Here, putting aside the fact that this section of the statute has been repealed, Plaintiff does not explain how he relied on the partnership. Thus, partnership by estoppel does not apply in this case.

         Plaintiff also asks the Court to treat the relationship between Defendants and the Navajo Nation as a de facto partnership. Id. (citing Bencoe v. Bencoe, 1956-NMSC-126, 305 P.2d 370). Plaintiff, however, does not argue why the relationship should be treated as a de facto partnership. Further, the case he cites, Bencoe, concerned a contingent partnership “where the agreement [between the parties] contemplated the formation of a partnership at some future time or upon the happening of some future contingency.” That is not the case here. In sum, the undisputed material facts do not show that, as a legal matter, a partnership between Defendants and the Navajo Nation existed. Therefore, Defendants are entitled to summary judgment on Count I.

         2. Count II: Unincorporated Association

         Plaintiff argues that the MOA meets the requirements for the formation of an unincorporated association. NMSA 1978, § 53-10-1 (Repl. Pamp. 2001). According to the statute:

[w]henever two or more persons shall desire to form an association for the promotion of their mutual pleasure or recreation of any hunting, fishing, camping, golf, country club, or association for similar purpose, or an association not for the individual profit of the members thereof, and without incorporating the same as a corporation . . . the said persons or members desiring to form such an association or club may file in the office of the county clerk of the county in which it may maintain its headquarters and pursue its objects and purposes, a statement containing the name of such association, its objects and purposes, the names and residences of the persons forming such association, together with a copy of its articles of ...

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