United States District Court, D. New Mexico
ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY
GREGORY B. WORMUTH, UNITED STATES MAGISTRATE JUDGE
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
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.
Standard of Review
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.
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
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.
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,
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.
On the afternoon of October 28, 2013, Plaintiff was at home
and drinking alcohol. UMF 1 and 2.
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.
While Mr. Capps and Plaintiff were both in the apartment,
Plaintiff fired the pistol in the apartment. UMF 7.
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.
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.
Mr. Capps left Plaintiff in the parking lot and told him that
he was going to the police station. UMF 10.
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.
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.
When Plaintiff arrived home, his wife told him,
“You're not right. Your speech is slurred, other
stuff from drinking.” UMF 13.
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.
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.
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.
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.
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.
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.
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.
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
In response, Defendant Lannoye could hear two voices, one
male and one female, yelling and approaching the door. UMF
Inside the home, Plaintiff heard the first knocks at the
door. UMF 15.
According to Plaintiff, he did not hear the “Roswell
Police” announcement because he has bad ...