United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER GRANTING, IN PART,
DEFENDANT [SIC] CITY OF ALBUQUERQUE, GALVAN AND
MARKWICK'S MOTION FOR SUMMARY JUDGMENT.
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.
Having considered the Motion for Summary Judgment, the
Dismissal and the record,  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.
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.
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.
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.
Standard of Review
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.
Plaintiff's Monell Claim (Count X) Based On Defendants
Fitzgerald and Powdrell's Actions
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).
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.
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.
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
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.
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
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”).
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) ...