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Johnson v. City of Roswell

United States District Court, D. New Mexico

September 13, 2017

RICHARD WAYNE JOHNSON, Plaintiff,
v.
CITY OF ROSWELL, et al., Defendants.

          ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

          GREGORY B. WORMUTH, UNITED STATES MAGISTRATE JUDGE

         This matter comes before the Court on Defendants' Motion for Summary Judgment and Memorandum in Support. Doc. 108. The Court has reviewed the Motion and related briefing (docs. 114, 117, 119, 121, 122), and, being fully advised, will GRANT the Motion for the reasons set forth below.

         I. Background

         Plaintiff Richard Wayne Johnson's claims stem from the events surrounding his shooting by Roswell Police Officer Lannoye on October 28, 2013. See generally doc. 73. In his Second Amended Complaint, Plaintiff named as Defendants the City of Roswell, Police Chief Phil Smith in his individual and official capacity, and several subordinate officers in their individual capacities. See Id. Plaintiff brings this action under 42 U.S.C. § 1983, alleging the use of unconstitutionally excessive force in violation of the Fourth Amendment. Id. at 11-13, 16-18. Plaintiff also asserts state law claims under the New Mexico Tort Claims Act and the New Mexico Constitution based upon the same underlying factual assertions. Id. at 13-15, 18-26. In their Motion, all Defendants seek summary judgment on all claims.

         II. Standard of Review

         Under Federal Rule of Civil Procedure 56(a), this Court must “grant summary judgment 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). The movant bears the initial burden of “show[ing] ‘that there is an absence of evidence to support the nonmoving party's case.'” Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir. 1991) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)). Once the movant meets this burden, the non-moving party is required to designate specific facts showing that “there are . . . genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); Celotex, 477 U.S. at 324.

         However, summary judgment motions based upon the defense of qualified immunity are reviewed differently from other summary judgment motions. This is so because qualified immunity is “designed to protect public officials from spending inordinate time and money defending erroneous suits at trial.” Clark v. Edmunds, 513 F.3d 1219, 1222 (10th Cir. 2008). Therefore, when a public official is entitled to qualified immunity, the entitlement relieves the official from bearing any of the burdens of litigation, including discovery. Ashcroft v. Iqbal, 556 U.S. 662, 672 (2009). The Supreme Court “has directed the lower federal courts to apply qualified immunity broadly, to protect from civil liability for damages all officers except ‘the plainly incompetent or those who knowingly violate the law, '” in order to avoid unduly inhibiting officers in performing their official duties. Wilson v. City of Lafayette, 510 F. App'x 775, 780 (10th Cir. 2013) (unpublished) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986), and Medina v. Cram, 252 F.3d 1124, 1127 (10th Cir. 2001)). The qualified immunity standard allows government officials “ample room for mistaken judgments, ” shielding them from liability for reasonable error. Applewhite v. U.S. Air Force, 995 F.2d 997, 1000 (10th Cir. 1993) (quoting Hunter v. Bryant, 502 U.S. 224, 229 (1991)). Thus, qualified immunity is “applicable unless the official's conduct violated a clearly established constitutional right.” Pearson v. Callahan, 555 U.S. 223, 232 (2009).

         When a defendant moves for qualified immunity on an excessive force claim, the burden shifts to the plaintiff to show (1) “that the force used was impermissible (a constitutional violation)[, ]” and (2) “that objectively reasonable officers could not have thought the force constitutionally permissible (violates clearly established law).” Cortez v. McCauley, 478 F.3d 1108, 1128 (10th Cir. 2007); see also Medina, 252 F.3d at 1128. This is a “strict two-part test” that must be met before the defendant asserting qualified immunity again “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.” Clark, 513 F.3d at 1222. The Court may address the two prongs of the test in any order. Pearson, 555 U.S. at 236.

         Determining whether the allegedly violated right was “clearly established” depends on whether “the contours of the right [were] sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640 (1987). “Ordinarily, in order for the law to be clearly established, there must be 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.” Clark v. Wilson, 625 F.3d 686, 690 (10th Cir. 2010) (quotations omitted). While the plaintiff need not locate “a case directly on point, ” nevertheless “existing precedent must have placed the statutory or constitutional question beyond debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011).

         Whether the motion for summary judgment is based on qualified immunity or not, the Court decides the motion on the basis of the facts as construed in the light most favorable to the non-moving party. Consequently, it must keep in mind three principles. First, the Court's role is not to weigh the evidence, but to assess the threshold issue of whether a genuine issue exists as to material facts requiring a trial. See Liberty Lobby, 477 U.S. at 249. “An issue is ‘genuine' if there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way. An issue of fact is ‘material' if under the substantive law it is essential to the proper disposition of the claim.” Thom v. Bristol-Myers Squibb Co., 353 F.3d 848, 851 (10th Cir. 2003) (internal citation omitted). Second, the Court must resolve all reasonable inferences and doubts in favor of the non-moving party, and construe all evidence in the light most favorable to the non-moving party. See Tolan v. Cotton, 134 S.Ct. 1861, 1866 (2014); see also Riggins v. Goodman, 572 F.3d 1101, 1107 (10th Cir. 2009) (noting that courts generally “accept the facts as the plaintiff alleges them” when considering whether a plaintiff has overcome a defendant's assertion of qualified immunity at the summary judgment stage). However, “a plaintiff's version of the facts must find support in the record” at the summary judgment stage. Thomson v. Salt Lake Cty., 584 F.3d 1304, 1312 (10th Cir. 2009). Third, the court cannot decide any issues of credibility. See Liberty Lobby, 477 U.S. at 255. “[T]o survive the . . . motion, [the non-movant] need only present evidence from which a jury might return a verdict in his favor.” Id. at 257.

         III. Undisputed Facts

         A. On the afternoon of October 28, 2013, Plaintiff was at home and drinking alcohol. UMF 1 and 2.[1]

         B. At about 7:00 p.m. that evening, Plaintiff's brother-in-law, Mr. Capps, arrived at Plaintiff's home. Earlier, in the afternoon, Plaintiff and Mr. Capps had argued over the telephone. Because of that argument and because Mr. Capps had pulled a firearm on him in the past, Plaintiff put on his belt holster with his .22 firearm. UMF 3, 4, 5, 6.

         C. While Mr. Capps and Plaintiff were both in the apartment, Plaintiff fired the pistol in the apartment. UMF 7.

         D. After Plaintiff fired his weapon, Mr. Capps suggested they needed to go for a ride, and so they both left the apartment in a car. UMF. 8.

         E. At some point, Mr. Capps parked the car in a parking lot and then hit Plaintiff with Plaintiff's revolver. Mr. Capps then took the two weapons in Plaintiff's possession at the time - the .22 revolver and a .22 rifle. UMF 9.

         F. Mr. Capps left Plaintiff in the parking lot and told him that he was going to the police station. UMF 10.

         G. While in the parking lot, Plaintiff told Mr. Capps, “I need you to shoot me or I'm going to shoot myself” or words to that effect. UMF 11.

         H. Thereafter, Plaintiff walked to his place of employment where he was told by a co-worker to go to the hospital. Instead, Plaintiff walked to his home. UMF 12.

         I. When Plaintiff arrived home, his wife told him, “You're not right. Your speech is slurred, other stuff from drinking.” UMF 13.

         J. After leaving Plaintiff in the parking lot, Mr. Capps went to the Roswell Police Department. He was covered in blood and indicated that he wanted to report a battery, but he was unwilling to wait to do so. Mr. Capps then left the Police Department on foot. UMF 37, 39.

         K. Defendant Zavala requested that an officer be sent to find Mr. Capps. Officer Basinas was able to locate Mr. Capps, who related his version of events including that he had an argument with Plaintiff and Plaintiff wanted Mr. Capps to kill him. UMF 38, 39.

         L. Roswell Police Department officers were dispatched to Plaintiff's residence to check on the welfare of Plaintiff. The officers who responded included Defendants Lannoye, Zavala and Swantek. UMF 27, 42, 47.

         M. When Defendant Lannoye was dispatched, he was informed that Plaintiff was possibly intoxicated, that there had been a previous assault and/or battery between Plaintiff and another individual, that Plaintiff was possibly suicidal, that a round had been fired in Plaintiff's apartment earlier in the evening, and that there was a possibility of another firearm still in play at Plaintiff's address. UMF 27.

         N. When Defendant Zavala arrived at Plaintiff's home, in addition to the general dispatch information, he was aware that Plaintiff had struggled with Mr. Capps at the Waymaker church at an earlier point in the day during which a round had been fired into the church. UMF 40, 41.

         O. Prior to approaching Plaintiff's home, Defendant Lannoye met with Defendant Swantek and another officer to discuss the situation and how it should be handled. UMF 28.

         P. After locating Plaintiff's home, Defendant Lannoye looked at all the entries and exits to the apartment and confirmed that no one was present on the patio. UMF 29.

         Q. After checking the back patio, Defendant Lannoye approached Plaintiff's front door, knocked on the front door and announced, “Roswell Police.” UMF 30. The volume of the announcement was much louder than the volume of ordinary conversation. See doc. 108, Ex. 2 (belt tape).

         R. In response, Defendant Lannoye could hear two voices, one male and one female, yelling and approaching the door. UMF 31.

         S. Inside the home, Plaintiff heard the first knocks at the door. UMF 15.

         T. According to Plaintiff, he did not hear the “Roswell Police” announcement because he has bad ...


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