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Rhodes v. The Board of County Commissioners for County of Blackmon

United States District Court, D. New Mexico

September 14, 2017

DONALD RHODES, Plaintiff,
v.
THE BOARD OF COUNTY COMMISSIONERS FOR THE COUNTY OF BERNALILLO, BRANDON BLACKMON, JAROD BEASLEY, TODD JAMES, MARK KMATZ, DR. DREW HARREL, and JOHN DOES I-II, each in their individual and official capacities, Defendants.

          MEMORANDUM OPINION AND ORDER

         This 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.

         I. FACTUAL BACKGROUND

         A. Search Warrant

         On 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.

         To 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.

         Detective 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.

         Id. at 6-7.

         B. Facts in Original Complaint

         Plaintiff 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.

         On the 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.

         Unbeknownst 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.

         Officers 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.

         Nonetheless, 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.

         Defendant 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. Id.

         After 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. ¶¶ 39-40.

         Plaintiff 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.

         II. PROCEDURAL HISTORY

         Plaintiff 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.

         Following 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.

         On 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.

         Plaintiff 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.[1]

         Richard 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.

         The 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.

         III. Motion to ...


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