United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER DENYING PLAINTIFF'S
FIRST AMENDED MOTION FOR PARTIAL SUMMARY JUDGMENT and
DISMISSING PLAINTIFF'S REASONABLE SUSPICION CLAIM ON
GROUNDS OF QUALIFIED IMMUNITY
MATTER is before the Court on Plaintiff Max Montoya's
First Amended Motion for Summary Judgment on His 4th
Amendment Claims Under Section 1983 Claims [sic] for the
Unreasonable Siezure [sic] of Max Montoya, as Well as His 4th
Amendment Claims Under the New Mexico Tort Claims Act, filed
on June 2, 2017 (Doc. 71). Having reviewed
the relevant pleadings and the applicable law, and the
argument and evidence presented at the hearing on August 25,
2017, the Court finds Plaintiff's Motion is not
well-taken, and is therefore
DENIED. Furthermore, the Court
DISMISSES Plaintiff's claim regarding
reasonable suspicion on the grounds of qualified immunity.
litigation stems from an encounter between Plaintiff and
Albuquerque Police Department (APD) Officers Kacy Ramos and
Michael Rico. On August 27, 2011, shortly after 10:00
p.m., Officers Ramos and Rico were dispatched to 510
Dartmouth Dr. SE in reference to an anonymous 911 call
regarding a disturbance on Dartmouth Dr. SE. Officers Ramos
and Rico were advised that there were two males in an
argument and one of the males mentioned a gun. An
unidentified individual told Officers Ramos and Rico that the
argument had come from 511 Dartmouth, Plaintiff's
residence. Officer Rico pointed his flashlight at the front
of 511 Dartmouth. Plaintiff was in the front yard with a beer
in his hand. Officers Ramos and Rico approached Plaintiff at
the front door to the residence, announcing themselves as
police. Defendants state that the officers were concerned
Plaintiff might be armed with the gun that had been mentioned
during the argument. It was dark and late at night, so
Officer Ramos asked Plaintiff to step towards him. Defendants
assert Plaintiff was reluctant to go near the officers and
became aggressive. The officers also stated they could smell
alcohol and Plaintiff was behaving erratically. For example,
Plaintiff laughed when the officers told him they were there
to investigate a disturbance.
parties have drastically different versions of what happened
next. Defendants state that Plaintiff moved towards Officer
Ramos and stumbled, so Officer Ramos placed his right hand up
and braced it against Plaintiff's shoulder to keep
Plaintiff from bumping into him. Officer Rico testified that
he saw Plaintiff stumble into Officer Ramos, and he thought
Plaintiff had committed a battery on Officer Ramos. Officer
Ramos explained that Plaintiff said, “don't f-k
with me like that” and he became louder and more
aggressive. Officer Ramos told him that if he continued to be
aggressive then he was going to put him in handcuffs.
Plaintiff stated that he had just been injured and that he
had a lawyer. Officer Ramos asked Plaintiff who was in the
residence and Plaintiff stated “I don't give a
f-k.” Plaintiff then said, “You want to shoot me,
go ahead and shoot me.”
Ramos testified that Plaintiff stepped forward, closing the
distance between himself and Officer Rico, with his fists
balled up. Officer Ramos feared that Officer Rico was in
danger of an immediate battery. At that point, each officer
reached for one of Plaintiff's arms, fearing they were in
danger because of Plaintiff's aggression and erratic
behavior. Once Plaintiff was in custody, and after he calmed
down, Plaintiff admitted to Officer Ramos that he had been in
a verbal dispute with two males before the officers arrived.
On further investigation, a witness told Officer Ramos that
it was Plaintiff who had mentioned a gun during the initial
dispute with the two males.
stark contrast to the facts as relayed by Defendants,
Plaintiff claims that Officers Rico and Ramos were the
aggressors, and they attacked him without justification,
escalating the encounter into a violent exchange. Plaintiff
claims he repeatedly told officers he had just been injured,
which was why he was reluctant to go near them when they
approached his front door. Plaintiff states he was pulled
from the porch of his house for no reason, and hit and kicked
repeatedly as Officers Rico and Ramos attempted to handcuff
him. He states he repeatedly asked the officers to stop
hurting him, but they continued to use excessive force.
Plaintiff claims to have suffered severe injuries as a result
of the beating.
relies on the deposition testimony of Teri Milner and Tommy
Gallegos who were at his house on the night in question
watching television. Their version of the encounter between
APD and Plaintiff aligns with Plaintiff's own.
Specifically, Ms. Milner explained that after Plaintiff saw
the officers outside of his residence, he seemed scared and
reluctant to go outside because of his recent injuries. Mr.
Gallegos testified that he saw the officers grab Plaintiff
from inside the house and drag him outside as they were
attempting to place him in handcuffs.
support of their various positions, both parties rely on
Officer Ramos' police lapel video, which documented part
of the encounter between Plaintiff and the officers on August
27, 2011. The video is initially blurry and dimly lit, and
goes completely dark shortly after it begins. The video shows
the officers shine a flashlight onto Plaintiff, and they tell
him they are there to investigate a disturbance. He laughs.
Shortly thereafter, one of the officers tells Plaintiff that
if he continues to be aggressive, they will have to place him
in handcuffs. It is impossible to discern what is happening
on the video thereafter, because it is completely dark.
filed his initial Complaint on August 20, 2013, and an
Amended Complaint on February 26, 2016. In the operative
Amended Complaint, Plaintiff brings claims for civil rights
violations under 42 U.S.C. § 1983 and the New Mexico
Tort Claims Act. See Doc. 41. He alleges Defendants
subjected him to excessive force and unreasonable seizure in
violation of the Fourth Amendment. In the instant Motion,
Plaintiff claims he is entitled to judgment as a matter of
law that Officers Rico and Ramos lacked reasonable suspicion
to detain him and lacked probable cause to ultimately arrest
him. Doc. 71. Defendants filed a Response on June 30, 2017
asserting the defense of qualified immunity. Doc. 75.
Plaintiff filed a Reply on July 25, 2017. Doc. 81.
I. Summary Judgment
judgment is appropriate “if the pleadings, depositions,
answers to interrogatories, and admissions on file, together
with the affidavits . . . show that there is no genuine issue
as to any material fact and that the moving party is entitled
to a judgment as a matter of law.” Fed.R.Civ.P. 56(c).
Initially, the moving party bears the burden of demonstrating
the absence of a genuine issue of material fact. See
Shapolia v. Los Alamos Nat'l Lab., 922 F.3d 1033,
1036 (10th Cir. 1993) (citations omitted). Once the moving
party meets its initial burden, the nonmoving party must show
that genuine issues remain for trial “as to those
dispositive matters for which it carries the burden of
proof.” Applied Genetics Int'l Inc. v. First
Affiliated Secs., Inc., 912 F.2d 1238, 1241 (10th Cir.
1991) (citation omitted).
is material if it could have an effect on the outcome of the
suit. Smothers v. Solvay Chems., Inc., 740 F.3d 530,
538 (10th Cir. 2014). A dispute over a material fact is
genuine if the evidence presented could allow a rational jury
to find in favor of the nonmoving party. EEOC v.
Horizon/CMS Heathcare Corp., 220 F.3d 1184, 1190 (10th
Cir. 2000). A court is to view the facts in the light most
favorable to the non-moving party and draw all reasonable
inferences in favor of that party. Shero v. City of
Grove, 510 F.3d 1196, 1200 (10th Cir. 2007). A court
cannot weigh the evidence and determine the truth of the
matter, but instead determines whether there is a genuine
issue for trial. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 243 (1986).
normal circumstances, the party seeking summary judgment
bears the initial burden of showing that there is an absence
of evidence to support the nonmoving party's case.
See, e.g., Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986); Bacchus Indus., Inc. v. Arvin
Indus., Inc., 939 F.2d 887, 891 (10th Cir. 1991). Once
the movant meets this burden, the nonmoving party must
designate specific facts showing that there is a genuine
issue for trial. See, e.g., Celotex, 477
U.S. at 324; Anderson, 477 U.S. at 256. The
existence of some alleged, immaterial factual dispute between
the parties or a mere “scintilla of evidence”
supporting the nonmoving party's position will not defeat
an otherwise properly supported motion for summary judgment.
See Anderson, 477 U.S. at 252, 256.
complete failure of proof concerning an essential element of
the nonmoving party's case necessarily renders all other
facts immaterial, ” and thus, the moving party is
entitled to judgment as a matter of law. Celotex,
477 U.S. at 323.