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Hernandez v. City of Albuquerque

United States District Court, D. New Mexico

June 27, 2017

ALFONSO HERNANDEZ, Plaintiff,
v.
CITY OF ALBUQUERQUE, et al., Defendants.

          MEMORANDUM OPINION AND ORDER GRANTING, IN PART, DEFENDANT [SIC] CITY OF ALBUQUERQUE, GALVAN AND MARKWICK'S MOTION FOR SUMMARY JUDGMENT.

         This matter is before the Court on Defendant [sic] City of Albuquerque (City), Galvan and Markwick's Motion for Summary Judgment, filed October 21, 2015. (Doc. 73). Defendants filed a Notice of Completion of Briefing on November 10, 2015, noting that Plaintiff did not file a response or request an extension of time to respond. (Doc. 83).[1] Having considered the Motion for Summary Judgment, the Dismissal and the record, [2] the Court denies, in part, and grants, in part, the Motion for Summary Judgment. Defendants Daniel Galvan and Amy Markwick and all claims against them have been dismissed. Therefore, this motion is denied as moot as it pertains to those claims. The motion is granted in favor of Defendants as to the remaining claims.

         I. Background

         This litigation arises out of an altercation between Plaintiff and Albuquerque Transit Department transit security officers (TSOs) Defendants Andy Fitzgerald and Akeem Powdrell on August 30, 2012. (Doc. 1-2). Plaintiff claims he approached the TSOs as they were detaining a homeless man (later identified as Manuel Bustamante). Id. at ¶ 26. Plaintiff was recording his contact with the TSOs both with an audio-recording device in his pocket and the video-recording function of his cell phone. Id. at ¶¶ 27, 29. Plaintiff alleges that Defendant Fitzgerald attempted to grab Plaintiff's cell phone while “attacking” him and ultimately tackled Plaintiff. Id. at ¶¶ 43-44, 46. Plaintiff states that both TSOs then handcuffed him, ordered him to the ground, and yelled at him to roll over while they twisted his left arm behind his back. Id. at ¶¶ 50, 56-57, 63.

         Plaintiff originally filed this case on August 14, 2014, in the Second Judicial District Court, County of Bernalillo, New Mexico. (Doc. 1-2). Defendants removed the case to this Court on October 24, 2014. (Doc. 1). Plaintiff's Complaint for Violations of the Tort Claims Act and Deprivation of Civil Rights (Complaint) alleges ten counts. (Doc. 1-2). In Count I, Plaintiff asserts claims against the City for negligent hiring, training, and supervision resulting in violations of the New Mexico Tort Claims Act (NMTCA), NMSA 1978, § 41-4-1 et seq. (Repl. Pamp. 1996) for the acts involving Defendants Fitzgerald and Powdrell. Id. at 13-14. Plaintiff raises the same claims against the City for the acts involving Defendants Galvan and Markwick in Count II. Id. at 14-16. In Counts III, IV and V, Plaintiff makes additional claims against the City and Defendants Fitzgerald and Powdrell under the NMTCA for assault, battery, and false arrest/false imprisonment. Id. at 16-18. In Count VI, Plaintiff raises additional claims against the City and Defendants Galvan and Markwick for false arrest/false imprisonment under the NMTCA. Id. at 18-19. In Counts VII and VIII, Plaintiff alleges 42 U.S.C. § 1983 Fourth Amendment claims against Defendants Fitzgerald and Powdrell for excessive force and false arrest/imprisonment. Id. at 20-23. In Count X, Plaintiff asserts Monell claims of municipal liability against the City. Id. at 24-26.

         On November 17, 2015, Plaintiff voluntarily dismissed Defendants Galvan and Markwick and the claims against them in their entirety (Counts II, VI, and IX). (Doc. 92) at 1-2. Plaintiff also dismissed the Monell claim against the City involving Defendants Galvan and Markwick (Count X). Id. at 2. Plaintiff did not dismiss the Monell claim against the City based on the alleged actions of remaining Defendants Fitzgerald and Powdrell. Id. The City moves in this Motion for Summary Judgment to dismiss that Monell claim as well as the NMTCA claims brought against it based on the alleged actions of Defendants Fitzgerald and Powdrell.

         II. Standard of Review

         Summary judgment is appropriate if there is no genuine dispute as to a material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). When applying this standard, the Court examines the factual record and reasonable inferences therefrom in the light most favorable to the non-movant. Deepwater Invs. Ltd. v. Jackson Hole Ski Corp., 938 F.2d 1105, 1110 (10th Cir. 1991). The movant bears the initial burden of showing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Only then does the burden shift to the non-movant to come forward with evidence showing that there is a genuine issue of material fact. Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir. 1991). A fact is “material” if, under the governing law, it could have an effect on the outcome of the lawsuit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Hardy v. S.F. Phosphates Ltd. Co., 185 F.3d 1076, 1079 (10th Cir. 1999). An issue of material fact is genuine if a reasonable jury could return a verdict for the non-movant. Kaul v. Stephan, 83 F.3d 1208, 1212 (10th Cir. 1996) (citation omitted). The non-movant may not avoid summary judgment by resting upon the mere allegations or denials of its pleadings. Bacchus Indus., Inc., 939 F.2d at 891.

         III. Discussion

         1. Plaintiff's Monell Claim (Count X) Based On Defendants Fitzgerald and Powdrell's Actions

         In Monell, the United States Supreme Court held that the government as an entity can be held responsible under Section 1983 “when execution of a government's policy or custom … inflicts the injury….” Monell v. Dept. of Soc. Serv. of City of N.Y., 436 U.S. 658, 694 (1978). “A plaintiff suing a [municipality] under section 1983 for the acts of one of its [employees] must demonstrate two elements: (1) a municipal employee committed a constitutional violation, and (2) a municipal policy or custom was the moving force behind the constitutional deprivation.” Myers v. Okla. Cty. Bd. of Cty. Comm'rs, 151 F.3d 1313, 1318 (10th Cir. 1998) (citation omitted).

         First, the City argues that Plaintiff cannot prevail on a Section 1983 Monell claim because he has not proven, as a matter of law, that a municipal employee committed a constitutional violation. (Doc. 73) at 17. “It is well established … that a municipality cannot be held liable under section 1983 for the acts of an employee if … the municipal employee committed no constitutional violation.” Myers, 151 F.3d at 1316; see, e.g., City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986) (per curiam); Webber v. Mefford, 43 F.3d 1340, 1344-45 (10th Cir. 1994); Watson v. City of Kansas City, 857 F.2d 690, 697 (10th Cir. 1988). The City then states that even if Plaintiff could establish that Defendants Fitzgerald and Powdrell committed a constitutional infraction, the Monell claim would still fail where Plaintiff cannot show that a municipal policy or custom was “the moving force” behind the alleged constitutional violation. Id. at 18. To succeed under Monell, Plaintiff must demonstrate both the existence of an improper policy and a causal link to the constitutional deprivation. Id. The City claims Plaintiff has proven neither.

         In his Complaint, Plaintiff asserts that the City “is liable…for its own bad acts as well as for the acts of its employees and agents under the doctrine of respondeat superior and/or agency.” (Doc. 1-2) at ¶ 6. Plaintiff claims the City failed to “adequately train and/or supervise its employees” or to maintain proper “policies, and/or practices.” Id. at ¶ 12. Plaintiff alleges that the City's “policy and practice of inadequate training” and “culture of ignoring wrongful, unreasonable and/or excessive use of force by its [TSOs]…was a moving force in causing” Plaintiff's asserted claims and damages. Id. at ¶ 187.

         According to Plaintiff, the City maintains

an official policy of a) permitting its [TSOs] to use excessive and unlawful force against citizens and b) permitting its [TSOs] to illegally arrest and detain people unlawfully or, in the alternative, maintains a de facto policy of ignoring such actions by Defendants Andy Fitzgerald and Akeem Powdrell and other City of Albuquerque [TSOs].

Id. at ¶ 183. Plaintiff further claims that the City's knowledge of the TSOs' actions can be “inferred by the obviousness of the facts” and that the TSOs' actions were not secret. Id. at ¶¶ 184-85. Plaintiff states that it would be impossible for Defendants Fitzgerald and Powdrell to have acted without the City's knowledge and permission. Id. at ¶ 186. Plaintiff argues that the City “was aware of a widespread practice” of unconstitutional acts by TSOs and that the City had a “policy and practice of failing to adequately monitor, supervise, discipline and otherwise control” the TSOs. Id. at ¶¶ 188-89. Because the City was “aware of the substantial risk” of allowing the TSOs' unconstitutional actions and “chose not to take the appropriate steps to protect citizens, ” Plaintiff claims that the City was “deliberately indifferent as to the obvious consequences” of the TSOs' actions. Id. at ¶¶ 190-94.

         It is well-settled that a municipality has no liability under Section 1983 on a respondeat superior theory. Monell v. Dep't of Soc. Serv. Of City of N.Y., 436 U.S. 658, 691 (1978). Even if Defendants Fitzgerald and Powdrell did, in fact, commit a constitutional violation, the City cannot be held liable under Section1983 solely because it employs tortfeasors. Id.; see also Bd. of Cty. Comm'rs of Bryan Cty., Okla. v. Brown, 520 U.S. 397, 403 (1997) (plaintiff seeking to impose liability on a municipality under Section 1983 must identify municipal “policy” or “custom” that caused injury); Myers v. Okla. Cty. Bd. of Cty. Comm'rs, 151 F.3d 1313, 1316 (10th Cir. 1998) (municipal policy or custom must be moving force behind employee's constitutional violation). To sue the City for the acts of the TSOs under Section 1983, Plaintiff must prove both that Defendants Fitzgerald and Powdrell committed a constitutional violation and that the City had a specific policy or custom that precipitated their specific behavior. Myers, 151 F.3d 1313 at 1316 (emphasis added). “[I]t is not enough for a § 1983 plaintiff merely to identify conduct properly attributable to the municipality. The plaintiff must also demonstrate that, through its deliberate conduct, the municipality was the moving force behind the injury alleged.” Comm'rs of Bryan Cty., 520 U.S. 397 at 404 (internal citation and quotation omitted) (emphasis in original).

         A municipality may face constitutional liability for inadequate police training only in cases where the failure to train is the result of the municipality's “deliberate” or “conscious” choice. Myers, 151 F.3d 1313 at 1318 (citing City of Canton v. Harris, 489 U.S. 378, 389 (1989) (explaining for liability to attach to municipality, failure to train must amount to “deliberate indifference” to rights of persons with whom police come into contact)); see also Houston v. Reich, 932 F.2d 883, 888 (10th Cir. 1991) (finding municipality liable for “essentially a complete failure to train, or training is so reckless or grossly negligent that future misconduct is almost inevitable”).

         The Tenth Circuit utilizes a four-part test to determine whether a municipality is liable for inadequate training on use of force. Myers, 151 F.3d 1313 at 1318.

[A] plaintiff must show (1) the officers exceeded constitutional limitations on the use of force; (2) the use of force arose under circumstances that constitute a usual and recurring situation with which police officers must deal; (3) the inadequate training demonstrates a deliberate indifference on the part of the city towards persons with whom the police officers come into contact, and (4) ...

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