United States District Court, D. New Mexico
MAGISTRATE JUDGE'S PROPOSED FINDINGS AND
STEPHAN M. VIDMAR UNITED STATES MAGISTRATE JUDGE.
MATTER is before me on Defendants' Motion and Memorandum
of Law to Dismiss and/or for Summary Judgment Against
Plaintiffs' Complaint and for Qualified Immunity [Doc.
20], filed March 10, 2017. Plaintiffs responded on March 28,
2017. [Doc. 23]. Defendants replied on April 11,
2017. [Doc. 25]. The Honorable James O. Browning, United
States District Judge, referred this matter to me for
analysis and a recommended disposition. [Doc. 19]. Having
considered the briefing, the record, and the relevant law, I
find that Defendants' motion should be GRANTED.
following is a statement of the facts, as supported by the
record, which I will construe in the light most favorable to
Plaintiffs. On February 20, 2015, Plaintiff Adrienne
Crow was involved in a minor traffic accident with another
vehicle at a gas station in Ruidoso, New Mexico. [Doc. 20] at
3. Ms. Crow was not the owner of the truck she drove; she
took the truck from someone not a party to this case, Robin
Shackelford, who had allowed the truck's actual owner to
park the truck at her house. Id. The parties dispute
who was driving the other vehicle and how the accident
occurred (i.e., who was responsible). Both Ms. Crow and the driver
of the other vehicle left the scene without reporting the
accident. Id. at 3. Subsequently, Ms. Crow
contacted the police and Officer Legg took a statement from
her. Id. at 3-4. He completed a “Record of
Minor or Private Property Accident” report based on Ms.
Crow's account, which indicated that a vehicle backed
into the right side of the truck she was driving.
Id. at 4.
weeks later, on March 5, 2015, Ms. Shackelford contacted the
police to inquire about the traffic accident. Id. She
told Sergeant Aaron Frost that Ms. Crow had taken the truck
without her permission. Id. The following day,
Officer Legg prepared a “Uniform Crash Report.”
Id. The report noted that “[n]o fault could be
determined due to the delayed report” and that the
report “was initially recorded as a private property
report.” Id. Officer Legg further noted that
Sgt. Frost would be submitting a supplemental report based on
the new information he had received. Id. That same
day, Sgt. Frost spoke with Ms. Crow at the Ruidoso Police
Station in the presence of her parents. Id. He also
spoke with Christopher Graff, who stated he was a passenger
in the other vehicle involved in the accident. Id.
March 13, 2015, Sgt. Frost completed a Supplemental
Narrative. Id. at 5. In it, he states he informed
Ms. Crow that her account of the accident did not align with
that of Christopher Graff or the photos of the accident.
Id. Sgt. Frost further states that Ms. Crow admitted
to him that the accident occurred when she was moving forward
to get around the other vehicle. Id.; [Doc. 20-1] at
2. The Supplemental Narrative also states that Ms. Crow
admitted she did not have permission to drive the truck.
[Doc. 20-1] at 2. Ms. Crow denies admitting that she was at
fault for the accident or that she did not have permission to
drive the truck. [Doc. 23] at 2-3, 18.
proceeding pro se, initiated this lawsuit in December 2016
against the Village of Ruidoso, Village of Ruidoso Police
Department, and Sgt. Frost, asserting claims under 42 U.S.C.
§ 1983. [Doc. 1] at 6-8. They allege that Sgt. Frost
discriminated against Plaintiffs by falsifying the police
report of the vehicle accident in order to place the fault on
Ms. Crow, who is African-American, instead of Mr. Graff, who
is white. Id. at 2. They allege that Sgt. Frost
coerced Ms. Crow into altering her story in the course of
preparing his supplemental report, including threatening
financial and legal harm if she refused to cooperate.
Id. at 4-5. Plaintiffs allege violations of their
procedural due process, substantive due process, and equal
protection rights stemming from the investigation of the
accident and the filing of the supplemental police report.
Id. at 6-8. They claim reputational and financial
injury. Id. at 5.
filed the instant Motion to Dismiss and/or for Summary
Judgment. They argue that Plaintiffs' claims do not rise
to the level of a constitutional violation. As to the due
process claims, they argue that Plaintiffs fail to allege and
cannot show they were deprived of a constitutionally
protected property interest or that, even if they could,
their substantive or procedural due process rights were
violated. [Doc. 20] at 2. They contend there is no
constitutionally protected interest in reputation, financial
status, expectancy of insurance proceeds, or an accurate
police report. Id. As to the equal protection claim,
Defendants argue that Plaintiffs cannot show they were
treated differently than a similarly situated person or that,
even if they could, that the different treatment was on the
basis of race. Id. Defendants assert that Sgt. Frost
is entitled to qualified immunity because Plaintiffs cannot
show that he violated their constitutional rights, much less
that such rights were clearly established at the time of his
alleged conduct. Id. at 3. They argue that
Plaintiffs have failed to state a claim against the Village
of Ruidoso because, even if Plaintiffs could show that Sgt.
Frost violated their constitutional rights, they have failed
to allege the existence of municipal policy or custom that
caused the constitutional injury. Id. at
15-16. Finally, Defendants argue that the Ruidoso Police
Department is not a proper party to this case and should be
dismissed on that basis. Id. Therefore, they request
that all claims be dismissed or, in the alternative, that
summary judgment be entered in their favor.
to Dismiss and Motions for Summary Judgment
may dismiss a complaint for “failure to state a claim
upon which relief can be granted.” Fed.R.Civ.P.
12(b)(6). To survive a motion to dismiss under Rule 12(b)(6),
a complaint “must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is
plausible on its face.'” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The factual
allegations in the complaint “‘must be enough to
raise a right to relief above the speculative
level.'” Christy Sports, L.L.C. v. Deer Valley
Resort Co., 555 F.3d 1188, 1191 (10th Cir. 2009)
(quoting Twombly, 550 U.S. at 555). “A claim
has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Iqbal, 556 U.S. at 678. Although a
court must accept as true all of the allegations in a
complaint, deference is “inapplicable to legal
conclusions, ” and “[t]hreadbare recitals of the
elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Id.
judgment will be granted “if the movant shows that
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). If the movant meets this burden, the
non-movant must come forward with specific facts, supported
by admissible evidence, which demonstrate the presence of a
genuine issue for trial. Celotex Corp. v. Catrett,
477 U.S. 317, 324 (1986). “A nonmovant must respond to
a motion for summary judgment with evidence, and the content
or substance of that evidence must be admissible.”
Wall v. Boone, 1996 WL 44245, at *1 (10th Cir. 1996)
(unpublished) (citing Hall v. Bellmon, 935 F.2d
1106, 1110 (10th Cir. 1991) (where motion for summary
judgment is supported by affidavits or other material
provided under oath, the nonmovant must respond with
affidavits or other evidence to show a genuine issue of
material fact)). Although the evidence can be presented in a
form not admissible, e.g., an affidavit or deposition,
“the content or substance of the evidence must be
admissible.” Johnson v. Weld Cty., 594 F.3d
1202, 1210 (10th Cir. 2010) (emphasis omitted) (quoting
Thomas v. IBM, 48 F.3d 478, 485 (10th Cir. 1995)).
genuine dispute exists if “the evidence is such that a
reasonable jury could return a verdict for the nonmoving
party” on the issue. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). Although all facts are
construed in favor of the non-movant, the non-movant still
has a responsibility to “go beyond the pleadings and
designate specific facts so as to make a showing sufficient
to establish the existence of an element essential to [his]
case in order to survive summary judgment.” Johnson
v. Mullin, 422 F.3d 1184, 1187 (10th Cir. 2005)
(alteration in original) (internal quotation marks omitted).
The non-movant “cannot avoid summary judgment merely by
presenting a scintilla of evidence to support his claim; he
must proffer facts such that a reasonable jury could find in
his favor. Turner v. Pub. Serv. Co. of Colo., 563
F.3d 1136, 1142 (10th Cir. 2009).
Plaintiffs proceed pro se,  I construe their filings
liberally. Still, a pro se non-movant must “identify
specific facts that show the existence of a genuine issue of
material fact.” Munoz v. St. Mary-Corwin
Hosp., 221 F.3d 1160, 1164 (10th Cir. 2000) (internal
quotation marks omitted). Conclusory allegations are
insufficient to establish an issue of fact that would defeat
the motion. Llewellyn v. Allstate Home Loans, Inc.,
711 F.3d 1173, 1180 (10th Cir. 2013). And, when a defendant
asserts qualified immunity, as discussed below, the
plaintiffs still must meet their burden to overcome the
defendants' assertion of qualified immunity. See
Parks v. Zasada, 2010 WL 582353, at *1 (D. Colo. Feb.
16, 2010) (unpublished).
doctrine of qualified immunity shields government officials
“from liability for civil damages insofar as their
conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known.” Riggins v. Goodman, 572 F.3d 1101,
1107 (10th Cir. 2009) (quoting Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982)). “When a defendant asserts a
qualified immunity defense, the burden shifts to the
plaintiff to satisfy a strict two-part test: first, the
plaintiff must show that the defendant's actions violated
a constitutional . . . right; second, the plaintiff must show
that this right was clearly established at the time of the
conduct at issue.” Clark v. Edmunds, 513 F.3d
1219, 1222 (10th Cir. 2008) (internal quotation marks
omitted). If the plaintiff satisfies this test, the defendant
“then bear[s] the traditional burden of the movant for
summary judgment-showing that there are no genuine issues of
material fact and that he or she is entitled to judgment as a
matter of law.” Id. (internal quotation marks
have discretion to decide which of the two parts of the
qualified immunity test to address first. Pearson v.
Callahan, 555 U.S. 223, 236 (2009). As to the
“clearly established” prong, a right is clearly
established when “every ‘reasonable official
would have understood that what he is doing violates that
right.'” Ashcroft v. al-Kidd, 563 U.S.
731, 741 (2011) (quoting Anderson v. Creighton, 483
U.S. 635, 640 (1987)). Ordinarily, “[i]n this circuit,
to show that a right is clearly established, the plaintiff
must point to ‘a Supreme Court or Tenth Circuit
decision on point, or the clearly established weight of
authority from other courts must have found the law to be as
the plaintiff maintains.'” Callahan v. Unified
Gov't of Wyandotte Cty., 806 F.3d 1022, 1027 (10th
Cir. 2015) (quoting Estate of Booker v. Gomez, 745
F.3d 405, 427 (10th Cir. 2014)). While there need not be a
case “directly on point, ” the “existing
precedent must have placed the . . . constitutional question
beyond debate.” al-Kidd, 563 U.S. at 741.
Supreme Court has cautioned the lower courts against defining
the constitutional question “at a high level of
generality.” Id. at 742. The salient inquiry,
rather, is “whether the violative nature of the
particular conduct is clearly established.”
Aldaba v. Pickens, 844 F.3d 870, 877 (10th Cir.
2016) (internal quotation marks omitted); see also
Mullenix v. Luna, 136 S.Ct. 305, 308 (2015) (per curiam)
(the inquiry into whether a right is clearly established