United States District Court, D. New Mexico
TANYA SANCHEZ, individually and on behalf of M.S., her minor daughter, VINCENT SANCHEZ, and DANIELLE BRIZENO, Plaintiffs,
DANNY SURRATT, SHIRLEY SEAGO, and JASON DAUGHERTY, in their individual capacities, Defendants.
ORDER GRANTING DEFENDANT DANNY SURRATT'S MOTION
FOR SUMMARY JUDGMENT
HONORABLE GREGORY J. FOURATT UNITED STATES MAGISTRATE JUDGE.
matter comes before the Court on Defendant Danny
Surratt's (“Defendant's”) “Motion
for Summary Judgment” (“Motion”). ECF No.
69. This motion was filed on August 17, 2017. Pursuant to
Local Rule 7.4(a), Plaintiffs had fourteen (14) days by which
to file their response. D.N.M.LR-Civ. 7.4(a).
of the Federal Rules of Civil Procedure provides:
(a) Computing Time. The following rules
apply in computing any time period specified in these rules,
in any local rule or court order, or in any statute that does
not specify a method of computing time.
(1) Period Stated in Days or a Longer
Unit. When the period is stated in days or a
longer unit of time:
(A) exclude the day of the event that
triggers the period;
(B) count every day, including intermediate
Saturdays, Sundays, and legal holidays; and
(C) include the last day of the period, but
if the last day is a Saturday, Sunday, or legal holiday, the
period continues to run until the end of the next day that is
not a Saturday, Sunday, or legal holiday.
Fed. R. Civ. P. 6(a) (emphasis in original). Thus, in
computing the fourteen-day period allowed for Plaintiffs'
response, the Court omits the day on which Defendant's
Motion was filed. The first counted day is therefore August
18, 2017. See Id. From that day, Plaintiffs'
fourteen-day response time expired on August 31, 2017.
filed no response by their deadline (nor in the five days
since). And, under Local Rule of Civil Procedure 7.1(a),
“[t]he failure of a party to file and serve a response
in opposition to a motion within the time prescribed for
doing so constitutes consent to grant the motion.”
D.N.M.LR-Civ. 7.1(a). Thus, Plaintiffs are deemed to have
consented to the grant of Defendant's Motion.
the Court has conducted an independent review of both the
Motion and the record. Even viewing the record evidence in
the light most favorable to the Plaintiffs, the Court
concludes that there is no genuine issue of material fact as
to whether Defendant was acting under color of state law when
he allegedly victimized his granddaughter, M.S. He was not.
His status on May 5, 2010, as an on-duty sheriff's
deputy, and the badge and other accoutrements of that office,
were entirely irrelevant to his retrieval of M.S. from school
and the alleged sexual misconduct that then took place at her
residence. And there can be even less question that Defendant
was not acting under color of state law when - off-duty and
at his own residence - he allegedly again sexually abused
M.S. some ten days later. As the legal authorities cited in
the Motion for Summary Judgment make clear, whatever civil
liability may attach to Defendant will be the consequence of
state tort law, not 42 U.S.C. § 1983. Consequently, the
Court concludes that Defendant is entitled to judgment as a
matter of law with respect to the § 1983 claim set forth
in Count I of the Complaint.
has also requested that the Court in its discretion decline
to exercise supplemental jurisdiction over the state battery
claim pled in the alternative in Count I. See Def. s
Mot. 19, ECF No. 69. Given that the Court has herein dismissed
the only federal claim against Defendant over which it had
original jurisdiction, the Court will decline to exercise
supplemental jurisdiction over the remainder of Count I or
the entirety of Count V. See 28 U.S.C. §
1367(c)(3); see also Koch v. City of Del City, 660
F.3d 1228, 1248 (10th Cir. 2011) (“When all federal
claims have been dismissed, the court may, and usually
should, decline to exercise jurisdiction over any remaining
state claims.”) (quoting Smith v. City of Enid ex
rel. Enid City Comm'n, 149 F.3d 1151, 1156 (10th
these reasons, IT IS ORDERED that Defendant
Danny Surratt's Motion for Summary Judgment [ECF No. 69]
IS FURTHER ORDERED that the federal civil rights
version of Count I of Plaintiffs' ...