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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 DEFENDANT AKEEM POWDRELL'S MOTION FOR SUMMARY JUDGMENT

         This matter is before the Court on Defendant Powdrell's Motion for Summary Judgment and Memorandum in Support Thereof, filed June 19, 2015. (Doc. 49). Plaintiff Alfonso Hernandez filed his response on July 6, 2015, and Defendant Akeem Powdrell filed a reply on July 20, 2015. (Docs. 52 and 54). After considering the submissions and arguments of the parties, the record, and the applicable law, the Court grants Defendant Powdrell's Motion for Summary Judgment.

         I. Procedural History

         This litigation is the result of an altercation on August 30, 2012, involving Plaintiff and Albuquerque Transit Department transit security officers (TSOs) Andy Fitzgerald and Akeem Powdrell. (Doc. 1-2). Defendant Fitzgerald was detaining a homeless man (later identified as Manuel Bustamante) while Defendant Powdrell left to summon the police. (Doc. 49) at UMF J-K. Plaintiff, who was in the immediate area, began recording the detention with an audio-recording device in his pocket and the video-recording function of his cell phone as he approached Defendant Fitzgerald and Mr. Bustamante. (Doc. 1-2) at ¶¶ 26-27, 29. Plaintiff claims that Defendant Fitzgerald became enraged because Plaintiff was filming him and attacked Plaintiff. Id. at ¶¶ 40-41, 43-44, 63. Defendant Powdrell returned to the scene, finding Defendant Fitzgerald and Plaintiff “fighting.” (Doc. 49) at UMF M. Plaintiff claims that both Defendants Fitzgerald and Powdrell assaulted, battered, and falsely arrested him when they twisted Plaintiff's arm behind his back and handcuffed him. (Doc. 1-2) at ¶¶ 50, 57-58.

         On August 14, 2014, Plaintiff filed his Complaint for Violations of the Tort Claims Act and Deprivation of Civil Rights (Complaint) in the Second Judicial District Court, County of Bernalillo, New Mexico, alleging ten counts. (Doc. 1-2). In Count I, Plaintiff asserts claims against Defendant City of Albuquerque (City) and Defendants Fitzgerald and Powdrell 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). Id. at 13-14. Plaintiff raises the same claims against the City and Defendants Albuquerque Police Officers 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, respectively. 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 Count VII, Plaintiff alleges 42 U.S.C. § 1983 Fourth Amendment claims against Defendants Fitzgerald and Powdrell for excessive force. Id. at 20-21. In Count VIII, Plaintiff alleges 42 U.S.C. § 1983 Fourth and/or Fourteenth Amendment claims against Defendants Fitzgerald and Powdrell for false arrest/imprisonment. Id. at 22-23. Plaintiff raises the same Section 1983 claims against the City and Defendants Albuquerque Police Officers Galvan and Markwick in Count IX. Id. at 23-24. In Count X, Plaintiff asserts Section 1983 Monell claims of municipal liability against the City. Id. at 24-26. Defendants removed Plaintiff's case to this Court on October 24, 2014. (Doc. 1).

         The City filed a Motion for Summary Judgment on October 21, 2015, seeking to dismiss the NMTCA claims brought against the City in Counts I, II, III, IV, V, and VI, and the Monell claims in Count X. (Doc. 73). Plaintiff did not file any response to the City's Motion for Summary Judgment, but on November 17, 2015, he filed a notice voluntarily dismissing 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. The Court then granted the City's Motion for Summary Judgment in favor of the City, dismissing Counts I, III, IV, V and X against the City. As a result of Plaintiff's notice of dismissal and the City's Motion for Summary Judgment, Defendants Galvan and Markwick and the City are no longer parties to this litigation.

         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] view[s] the evidence and draw[s] reasonable inferences therefrom in the light most favorable to the nonmoving party.” Scull v. New Mexico, 236 F.3d 588, 595 (10th Cir. 2000) (internal quotation marks omitted). The movant bears the initial burden of showing the absence of a genuine issue of material fact, then the burden shifts to the non-movant to provide evidence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986); 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, and “genuine” if a reasonable jury could return a verdict for the non-movant. 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); Kaul v. Stephan, 83 F.3d 1208, 1212 (10th Cir. 1996) (citation omitted). A party cannot avoid summary judgment simply by resting upon the mere allegations or denials of his pleadings. Bacchus Indus., Inc., 939 F.2d at 891.

         III. Material Facts and Reasonable Inferences Viewed in the Light Most Favorable to Plaintiff[1]

         Defendant Powdrell is a public employee who, at all relevant times, was acting within the course and scope of his duties as a TSO. (Doc. 49) at UMF A; (Doc. 52) at ¶ 1. Defendant Powdrell did not carry a gun but the City issued him mace, a baton, and handcuffs. (Doc. 49) at UMF D; (Doc. 52) at ¶ 4. The parties disagree about whether Defendant Powdrell was “empowered to perform traditional law enforcement functions.” (Doc. 49) at UMF C; (Doc. 52) at ¶ 3. However, they agree that any authority TSOs had to make arrests was that of an ordinary citizen to make a “citizen's arrest.” (Doc. 54) at 10; (Doc. 52) at ¶¶ 3, 5-7.

         Defendant Powdrell was working on the evening of August 30, 2012, when he observed a man making obscene gestures and drinking. (Doc. 49) at UMF I; (Doc. 52) at ¶ 8. Defendant Powdrell approached the man to direct him to stop being disruptive then departed the scene to use Transit Dispatch to summon the police to issue a citation. (Doc. 49) at UMF I-K; (Doc. 52) at ¶¶ 8-10. When Defendant Powdrell returned to the scene, he discovered Defendant Fitzgerald “engaged in a confrontation with Plaintiff” and “fighting.” (Doc. 49) at UMF K; (Doc. 52) at ¶ 10. Defendant Powdrell assisted Defendant Fitzgerald in handcuffing Plaintiff, and during the process, one or both of the TSOs twisted Plaintiff's arm. (Doc. 49) at UMF M-N, Q; (Doc. 52) at ¶ 12 and 4-6. Defendant Powdrell claims Plaintiff was handcuffed for his safety and the safety of others, but Plaintiff disputes this claim. (Doc. 49) at UMF M; (Doc. 52) at ¶ 12. During the encounter, Defendant Powdrell also held a can of mace in front of Plaintiff's face but did not use it. (Doc. 49) at UMF N; (Doc. 52) at ¶ 13. Plaintiff does not contest that Defendant Powdrell was unaware of why Defendant Fitzgerald was attempting to handcuff Plaintiff. (Doc. 49) at UMF M; (Doc. 52) at ¶ 12.

         IV. Discussion

         1. Plaintiff's Exhibit A

         Plaintiff argues that Defendants Fitzgerald and Powdrell were “law enforcement officers…acting within the scope of their duties” under both the NMTCA and for the purposes of his Section 1983 claims. (Doc. 52) at 8-11. Plaintiff alleges that, despite Defendant Powdrell's declaration that TSOs do not have the power to arrest, the record shows that the TSOs received training materials about how and when they could arrest someone and that they were issued steel handcuffs and mace to assist with restraining people. (Doc. 52) at 21-22. In support of his allegation that TSOs were “trained” how and when they could make arrests, Plaintiff provided an Interoffice Memorandum, Exhibit A, to his response to Defendant Powdrell's Motion for Summary Judgment. (Doc. 52-1) at 1-7. Nonetheless, the record is clear, and the parties agree, that if Defendant Powdrell had any “authority” to make an arrest, it was only that of an ordinary citizen. (Doc. 49-2); (Doc. 52) at ¶¶ 3, 5-7; (Doc. 52-1); (Doc. 54) at 10. In light of the record and this concession, Exhibit A is not relevant to the issue of the TSOs' authority to act as law enforcement officers.[2] Even viewed in the light most favorable to Plaintiff, mere authority to make a “citizen's arrest” does not make one a law enforcement officer under the NMTCA and, thus, does not support Plaintiff's contention that Defendant Powdrell is liable under the NMTCA.

         2. NMTCA Claims Against Defendant Powdrell (Counts III, IV, and V)

         The Court previously analyzed Plaintiff's NMTCA claims in response to the City's Motion for Summary Judgment (Doc. 73). Because “[a]n entity or agency can only act through its employees, ” the City only faced liability under the NMTCA if Defendants Fitzgerald and Powdrell were found individually liable. See Abalos v. Bernalillo Cty. Dist. Attorney's Office et al., 1987-NMCA-026, ¶ 18, 734 P.2d 794. In other words, a governmental entity's immunity is waived only to the extent that it is liable under principles of respondeat superior. NMSA 1978, § 41-4-12 (Repl. Pamp. 1996); see Silva v. State of New Mexico, 1987-NMSC-107, ¶ 15, 745 P.2d 380. Therefore, to determine the City's liability under the NMTCA, the Court had to first determine if Defendants Fitzgerald and Powdrell were individually liable. The Court granted the City's Motion for Summary Judgment on Plaintiff's NMTCA claims, concluding that the City could not be held liable because Defendants Fitzgerald and Powdrell did not fit any statutory waiver of immunity, including the statutory waiver for law enforcement officers. See (Doc. 120) at 11. Thus, the Court held that Defendants Fitzgerald and Powdrell were immune from suit under the NMTCA, as was the City. Id. For the same reasons, the Court determines that Defendant Powdrell is now individually entitled to summary judgment as a matter of law with respect to the NMTCA claims and sua sponte makes the same determination as to Defendant Fitzgerald.[3] Id.

         3. Section 1983 Claims Against Defendant Powdrell (Counts VII and VIII)

         Defendant Powdrell argues that he is entitled to qualified immunity for the Section 1983 claims. (Doc. 49). Plaintiff, on the other hand, argues that Defendant Powdrell “cannot be both a law enforcement officer [under the doctrine of qualified immunity] and not a law enforcement officer [under the NMTCA] at the same time.” (Doc. 52) at 8. Plaintiff misapprehends the distinction between a law enforcement officer under the statutory definition of the NMTCA and a governmental employee acting under the color of state law entitled to the defense of qualified immunity for Section 1983 claims. While Defendant Powdrell does not fit the NMTCA's narrow definition of a law enforcement officer, he is still a governmental employee acting under the color of state law entitled to the defense of qualified immunity. The Court agrees with Plaintiff: Defendant Powdrell is “entitled to rely upon qualified immunity decisions [concerning] actions taken by law enforcement personnel.” (Doc. 52) at 12.

         a. Qualified ...


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