United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
matter comes before the Court on the following motions: (i)
the Motion to Dismiss No. I: Dismissal of Plaintiff's
Fourth and Fourteenth Amendment Claims (ECF No. 14) filed by
Defendants The Board of County Commissioners for the County
of Bernalillo, Brandon Blackmon, Jarod Beasley, Todd James,
Mark Kmatz, Andrew Harrell (the “County
Defendants”); (ii) Plaintiff's Motion and
Counsel's Affidavit to Allow Limited Discovery pursuant
to Rule 56(d) (ECF No. 22); and (iii) Motion by Plaintiff for
Leave to File First Amended Complaint and Memorandum in
Support (ECF No. 28). The Court, having considered the
motions, pleadings, briefs, and applicable law, concludes
that the motion for leave to file a first amended complaint
is granted in part and denied in part; the motion to dismiss
is denied as moot; and the motion to allow limited Rule 56(d)
discovery is denied.
April 24, 2014, a state judge authorized a Search Warrant for
the persons, vehicles, curtilage, and place of 3100 Jane
Place, 1717 Gerald SE, and 1713 Gerald SE, as well as a
maroon 2013 Chrysler. Defs.' Ex. A at 1, ECF No. 14-1. In
the Affidavit for Search Warrant Detective Tyler Jenkins
sought permission to search for, among other things, crack
cocaine and other controlled substances, as well as firearms
and weapons. See Id. at 2-4. Detective Jenkins
stated that, through his training and experience, persons
involved in narcotics frequently arm themselves to protect
their contraband and proceeds. Id. at 4.
support his request, Detective Jenkins explained that within
the last four weeks, a confidential informant
(“CI”), who had worked with another detective in
the past and had given the detective reliable information
that was never false, contacted Detective Jenkins wishing to
exchange information on local narcotics traffickers for
money. Id. at 5. Detective Jenkins met with the CI
in person who stated that he had information on a narcotics
trafficker named “Haskel” who drove a Chrysler
300 and lived on Jane Place, which he showed Detective
Jenkins on a map. Id. The CI said
“Haskel” formerly drove a Chevy Impala bearing NM
plate 08474UNM. Id. Detective Jenkins identified
“Haskel” as Haskell Lewis. Id. The CI
agreed to conduct a controlled buy, called Haskell, ordered a
quantity of crack cocaine, and agreed on a meeting place and
amount. Id. at 5-6. Detective Jenkins searched the
CI, gave him money to purchase the crack cocaine, and
followed him to 3100 Jane Place. Id. at 6. Detective
Jenkins watched Mr. Lewis exit apartment #R105, conduct a
hand to hand transaction with the CI, and return to his
apartment. Id. Detective Jenkins met the CI
afterwards and took the substance from him, which tested
positive for cocaine. Id.
Jenkins additionally stated in his Affidavit that he
conducted a background check on Mr. Lewis and learned both
the Chrysler and Impala were registered to Janie Jackson, Mr.
Lewis's mother, who lived at 1717 Gerald SE. Id.
He further attested:
A criminal history for Janie reveals at least 2 trafficking
arrests. Janie is also associated with 1713 Gerald. The
Albuquerque Police Department executed District Court Search
warrants at both 1717 and 1713 Gerald simultaneously in 2011.
Haskell was present during these search warrants and was
arrested. Affiant has learned Haskell has an extensive
criminal history. This includes at least 3 narcotics charges
and at least 3 firearm charges. Haskell was arrested in
January, 2014 for possession of a firearm by a felon.
During the past week and a half Affiant has conducted several
hours of surveillance on Haskell. Affiant has checked on
Haskell early morning, afternoon and at night and has never
seen him go to a legitimate place of employment. Affiant has
followed Haskell to 1717 and 1713 Gerald on almost a daily
basis. While conducting surveillance at these two residences
affiant has seen an unusual amount of foot and vehicle
traffic stop in front of these residences. The vast majority
of this traffic stays less than 2-3 minutes and drives away.
Affiant has noticed when he enters this neighborhood, people
on bicycles begin circling the neighborhood within 5-10
minutes. 1717 and 1713 Gerald specifically, appear to have
solid counter surveillance measures in place. For instance,
Affiant casually drove into the neighborhood and made a loop.
By the time affiant drove by 1713 Gerald, several
unidentified persons were standing in the driveway. One
person walked towards Affiant[']s vehicle, as he was
driving, and attempted to see into the windows. Affiant has
also noticed a large amount of vehicles stopping at this
residence are not from the neighborhood. In Affiant[']s
experience, these could be narcotics customers.
Within the past 72 hours Affiant has again met with the CI.
The CI told Affiant it learned Haskell sells crack off a
street called Gerald throughout the day. This information was
given without Affiant asking and after Affiant learning of
Haskell's connection to the Gerald SE addresses.
Facts in Original Complaint
Donald Rhodes is a 57-year old African-American man who,
despite becoming disabled in 2010 after a back injury, does
small handyman jobs for his neighbors, as his health permits.
Compl. ¶¶ 9, 11-12, ECF No. 1-1. Plaintiff has
right radial nerve palsy, a nerve condition in which he
cannot keep his wrist and hand parallel to the floor when his
arm is extended, so his hand droops. Id. ¶ 13.
At the time of the incident, Plaintiff wore a splint on his
wrist. Id. at ¶ 13, 28.
afternoon of April 29, 2014, Plaintiff, out of kindness and
generosity, went to 1717 Gerald SE to fix a faulty electrical
outlet for his bedridden elderly neighbor. Id.
¶ 15. His neighbor, a woman in her mid-eighties, was the
owner and occupant of 1717 Gerald and, along with Plaintiff
and an approximately seven-year-old boy, was present in the
house. Id. ¶¶ 23-24.
to Plaintiff, Haskell Lewis was sometimes associated with
1717 and 1713 Gerald, and he had a history of involvement
with drugs and firearms. Id. ¶ 16. As a result
of Mr. Lewis's drug distribution involvement, Bernalillo
County Sheriff's Office (“BCSO”) obtained a
search warrant for both 1717 and 1713 Gerald. Id. A
few hours prior to the raid, however, deputies had taken Mr.
Lewis into custody. Id. ¶ 17. Nevertheless, to
execute the search warrant, BCSO mobilized two SWAT teams and
parked one military-type vehicle in front of the house.
Id. ¶¶ 17, 25. The Sergeant in charge,
Defendant Blackmon, justified the use of the SWAT teams
because of the high volume of neighborhood sympathy in the
area and the large presence of Bloods street gang members in
the neighborhood. Id. ¶ 18. The neighborhood
has a high concentration of African Americans. Id.
¶ 19. Other deputies explained the need for SWAT due to
the fortification of the residences and that they were
searching for weapons and narcotics. See Id.
¶¶ 18-21. The only fortification mentioned,
however, was a steel screen door and none of the reports
mention gang members in the area at the time. See
Id. ¶¶ 21-22.
threw at least one flash-bang grenade into the backyard of
1717 Gerald and into the yard of the house next door, while
demanding over the PA system that the occupants of the house
come out with their hands up. Id. ¶ 25.
Numerous officers in SWAT gear proceeded to surround the
house. Id. Plaintiff, confused and frightened, was
cooperative and obeyed commands, although his wrist problems
kept him from raising his hands very high over his head, so
he was afraid he might be shot. Id. ¶¶
26-27. As he emerged from the house, Plaintiff overheard a
deputy say that Mr. Rhodes did not fit the description.
Id. ¶ 28.
Defendant Beasley yanked Plaintiff's arms behind his
back, cuffed him far too tightly with strip cuffs, forcing
them over his wrist brace. Id. ¶ 29. The cuffs
ripped Plaintiff's skin over his wrists and caused a lack
of blood flow to his injured wrist and hand, creating deep
indentations in his skin. Id. Another deputy took
him to a police vehicle some distance away and ordered him to
sit down next to the vehicle, despite that the vehicle was
running and spewing exhaust fumes directly onto
Plaintiff's face. Id. ¶ 30. Defendant James
then interviewed Plaintiff, but kept him in custody despite
gaining no useful information from him. Id. ¶
31. Defendant James, however, consented to call the reserve
doctor to consider having Plaintiff transported to a
hospital. Id. ¶ 32.
Kmatz was also at the command post, and after being informed
that Plaintiff had mini-strokes in the past, called for the
SWAT reserve doctor, Dr. Drew Harrell, and Albuquerque Fire
Department rescue to examine Plaintiff. Id.
¶¶ 33-34. Defendant Kmatz, however, did not remove
the cuffs and kept him next to the exhaust fumes.
Id. Defendants James and Kmatz told Dr. Harrell that
Plaintiff was “feeling anxious.” Id.
¶ 34. When Dr. Harrell arrived at the command post,
Plaintiff told him he was anxious and his hands and wrists
hurt. Id. Dr. Harrell, after consulting with a
person in charge, cut off Plaintiff's handcuffs.
about 30 minutes of confinement, two medics with Albuquerque
Ambulance treated Plaintiff at the scene for severe
hypertension. See Id. ¶¶ 36-37. His blood
pressure had skyrocketed, registering 197/115, 207/122, and
199/124 over the course of eight minutes. Id.
Although Plaintiff took blood pressure medication for
hypertension, his blood pressure had not been that high when
he left his doctor's office that morning. Id.
¶ 37. The medics started an IV and transported him to
the emergency room. Id. When he arrived, he had a
headache, his right eye felt as if it was drooping, and he
had left-sided chest pain. Id. ¶ 38. Plaintiff
was increasingly anxious and tearful, and at one point his
blood pressure was 220/110. Id. After about seven
hours in the emergency room, Plaintiff's symptoms had
mostly resolved and he was released with a note that
explained his high blood pressure was likely related to the
events he experienced that day and recommended he continue
with his high blood pressure medications. See Id.
experienced other physical distress from the incident: the
flash-bang grenade left a ringing sensation in his ears and
his left shoulder and chest wall hurt for a couple weeks
afterwards. Id. ¶ 41. Plaintiff's anxiety
also became extremely acute, and he began behavioral health
treatment to try to manage his broken sleep and nightmares,
disturbing memories, feelings of not being able to breathe or
swallow, and panic triggered by the sight of a policeman or
being near the house of the event. Id.
filed a Complaint on April 20, 2016, alleging the following
federal causes of action: (Count I) Fourth and Fourteenth
Amendment Claim for excessive force against Defendants
Beasley, James, Kmatz, and John Does; (Count II) Fourth and
Fourteenth Amendment claim for unreasonable seizure against
Defendants Blackmon, Beasley, James, Kmatz, and John Does for
his detention without reasonable suspicion and for keeping
him detained even after reasonable suspicion dissipated;
(Count III) Fourteenth Amendment Due Process Claim for false
imprisonment against Defendants Blackmon, Beasley, James,
Kmatz, and John Does; (Count IV) Fourth and Fourteenth
Amendment Claim for conspiracy to violate his civil rights
against Defendants Blackmon, Beasley, James, Kmatz, and John
Does; (Count V) Fourth and Fourteenth Amendment municipal
liability claim against Bernalillo County; and (Count XI) a
claim against all the defendants for violation of his rights
under the Americans with Disabilities Act, 42 U.S.C. §
12132, and Section 504 of the Rehabilitation Act.
See Compl. 10-15, 19-20, ECF No. 1-1. In addition,
Plaintiff asserted an array of state claims in Counts VI-X.
See Id. at 15-18.
removal, the County Defendants filed an Answer (ECF No. 5) on
June 9, 2016, and a Motion to Dismiss No. I: Dismissal of
Plaintiff's Fourth and Fourteenth Amendment Claims (ECF
No. 14) on July 26, 2016. The County Defendants sought
dismissal of Plaintiff's Fourteenth Amendment Claims,
asserting they are more appropriately analyzed under the
Fourth Amendment. See Defs.' Mot. to Dismiss
12-14, ECF No. 14. They additionally argued that they are
entitled to qualified immunity on Plaintiff's
unreasonable seizure claim, because the approximately 30
minute-detention of Plaintiff, an occupant of the premises
subject to a search warrant, was permitted under the Fourth
Amendment while the search was executed. See Id. at
14-17. In support of this argument, the County Defendants
attached a copy of the search warrant and affidavit in
support thereof. See Defs.' Ex. A, ECF No. 14-1.
With respect to Plaintiff's excessive force claim, the
County Defendants asserted they are entitled to qualified
immunity and dismissal because the use of handcuffs was
objectively reasonable in light of the inherent safety risk
in executing a search warrant for drugs and weapons,
Plaintiff sustained de minimis injuries, and the handcuffs
were removed as soon as he complained. See
Defs.' Mot. to Dismiss 18-24, ECF No. 14.
August 19, 2016, Plaintiff filed a Rule 41 voluntary
dismissal of his Fourteenth Amendment claims, specifically
“Counts III and IV and the Fourteenth Amendment claims
contained in Counts I, II and V of Plaintiff's
Complaint.” Notice, ECF No. 19. Four days later, he
filed a response to the motion to dismiss, arguing it should
be denied, or alternatively, converted into a motion for
summary judgment. Pl.'s Resp. 1, ECF No. 20. Plaintiff
argued his seizure was objectively unreasonable because the
manner in which he was handcuffed was an excessive use of
force, he was detained next to exhaust fumes for 30 minutes,
Defendants did not adhere to the knock-and-announce
requirement prior to firing flash-bang grenades, and the use
of flash-bang grenades was unreasonable under the
circumstances. Id. at 6-15. Plaintiff also asserted
that his reference to the search warrant in his complaint was
only to explain the reason why the officers came into contact
with him, and that the warrant was not sufficiently central
to his claim to permit the Court to consider it without
converting the motion to dismiss into one for summary
judgment. See Id. at 16-19. If the Court were to
consider the search warrant, Plaintiff argued that he should
be allowed discovery on issues pertaining to the warrant and
an opportunity to amend his response after discovery. See
Id. at 19-24.
subsequently filed a Motion and Counsel's Affidavit to
Allow Limited Discovery pursuant to Rule 56(d) (ECF No. 22).
Defendant responded by seeking an unopposed stay of briefing
on Plaintiff's Rule 56(d) motion pending the Court's
ruling on whether the County Defendants' motion should be
construed as a motion to dismiss or for summary judgment.
Unopposed Mot. to Stay, ECF No. 23. Accordingly, the Court
granted the motion to stay briefing on the Rule 56(d) motion.
Order, ECF No. 26.
Rosenstock entered his appearance on behalf of Donald Rhodes
on October 20, 2016. Notice, ECF No. 27. On November 2, 2016,
Mr. Rosenstock filed a Motion by Plaintiff for Leave to File
First Amended Complaint (ECF No. 28). Plaintiff seeks to add
Detective Jenkins as a defendant for violating
Plaintiff's Fourth and Fourteenth Amendment rights when
he allegedly made numerous false or misleading statements and
omitted material facts in preparing the affidavit to search
1717 Gerald. See Proposed Am. Compl. ¶¶
62-65, ECF No. 28-1. Plaintiff contends the affidavit lacked
probable cause, resulting in his unlawful seizure pursuant to
an invalid warrant. See Id. The proposed amended
complaint adds numerous factual allegations concerning
Detective Jenkins' procurement of the search warrant and
the contents of his affidavit in support of the warrant.
See Id. ¶¶ 15-30. In addition, the
proposed amended complaint does not contain previously
enumerated Count III - Fourteenth Amendment Due Process Claim
(False Imprisonment); Count IV, conspiracy to violate civil
rights; Count V, municipal liability against Bernalillo
County; and Count X - Negligence/Respondeat
Superior. Compare Compl. 12-21, ECF No. 1-1,
with Proposed Am. Compl. 17-24, ECF No. 28-1.
Plaintiff's proposed amended complaint also expands upon
the allegation that Defendants knew or should have known that
he was disabled because of his wrist brace and his statements
to the officers about his condition. See Proposed
Am. Compl. ¶¶ 42-44, 48, 50, ECF No. 28-1.
Plaintiff alleges that he told Defendant Beasley and the
others that he had a condition limiting the functioning of
his hand and that the manner of applying the handcuffs and
the restraints themselves were causing him pain, yet they did
not act immediately to alleviate his pain by adjusting or
removing the handcuffs. See id.
County Defendants do not oppose the dismissal of the medical
negligence claim against Dr. Harrell, but they otherwise
object to the motion to amend based on untimeliness and
futility. See Defs.' Resp. 2-3, ECF No. 29. They
contend that the reasserted Fourteenth Amendment claims are
subject to dismissal for failure to state a claim, and the
claims against Detective Jenkins fail because he did not
personally participate in Plaintiff's seizure, he
obtained a proper search warrant, and Plaintiff does not have
standing to challenge the search warrant. Id. at 2.
Additionally, the County Defendants assert they acted in good
faith reliance on the search warrant, regardless of its
validity, and his excessive force claim must be dismissed
because, even under the facts of the proposed amended
complaint, the officers acted reasonably and Plaintiff
suffered no more than a de minimis injury. Id.
Motion to ...