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Logsdon v. Duarte

United States District Court, D. New Mexico

September 19, 2017

KATHLEEN LOGSDON, PERSONAL REPRESENTATIVE OF THE ESTATE OF TROY A. KIRKPATRICK DECEASED, Plaintiff,
v.
SERGEANT EDWARD DUARTE, OFFICER DAVID DESANTIAGO, LIEUTENANT JESSIE RODRIGUEZ, AND THE CITY OF CARLSBAD POLICE DEPARTMENT, Defendants.

          MEMORANDUM OPINION AND ORDER

          M. CHRISTINA ARMIJO Chief United States District Judge.

         THIS MATTER is before the Court on Defendants' Motion to Dismiss and/or for Summary Judgment and for Qualified Immunity and Memorandum of Law in Support Therefor[], filed on September 6, 2016 [Doc. 41]; and on Defendants' Motion to Strike Exhibits Attached to Plaintiff's Response to Defendants' Motion for Summary Judgment and Memorandum of Law in Support Therefor[], filed on December 2, 2016 [Doc. 52].

         The Court has considered the parties' submissions, the record, the relevant law, and is otherwise fully advised. For the reasons discussed below, Defendants' Motion to Dismiss and/or for Summary Judgment and for Qualified Immunity and Memorandum of Law in Support Therefor[], is well taken and shall be granted. Defendants' Motion to Strike Exhibits Attached to Plaintiff's Response to Defendants' Motion for Summary Judgment and Memorandum of Law in Support Therefor[] shall be granted in part.

         BACKGROUND

         This is a wrongful death lawsuit filed by Kathleen Logsdon (Plaintiff), who is the personal representative of the Estate of Troy A. Kirkpatrick (Decedent). [Doc. 1 p. 1] At the time of his death, Decedent was a pretrial detainee at the Carlsbad Detention Center. [Doc. 1 ¶ 7] Defendants Sergeant Edwardo Duarte, Officer David DeSantiago, and Lieutenant Jessie Rodriguez are law enforcement officers employed by the City of Carlsbad. [Doc. 1 ¶ 5] The City of Carlsbad, New Mexico, also a Defendant, operates the Carlsbad Police Department. [Doc. 1 ¶ 4] Decedent died from gun shots fired by Sergeant Duarte and Officer DeSantiago in the course of his attempt to escape from custody, and Plaintiff's Complaint for Wrongful Death ensued. [Doc. 1]

         In the Complaint, Plaintiff advances four claims for relief. In Count I, “Use of Excessive Force Under § 1983, ” Plaintiff alleges that Sergeant Duarte and Officer DeSantiago used unreasonable and excessive force against Decedent in violation of his rights under the Fourth, Fifth, Eighth, and Fourteenth Amendments to the Constitution. [Doc. 1 ¶¶ 22-24] In Count II, “Excessive Use of Force Under State Law, ” Plaintiff alleges that Sergeant Duarte and Officer DeSantiago violated Decedents' rights under the New Mexico Constitution by using excessive force against him, and that they, along with Lieutenant Rodriguez were negligent in their actions prior to the shooting. [Doc. 1 ¶¶ 25-28] In Count III, a “Substantive Due Process” claim, Plaintiff alleges that “Defendants” violated Decedent's Fourteenth Amendment Right to substantive due process by engaging in conduct that is “shocking to the conscience.” [Doc. 1 ¶¶ 29-30] And in Count IV, “Deliberate Indifference in Hiring, Training and Supervision and Ratification of Unconstitutional Conduct, ” Plaintiff alleges that the City's policies underlay the allegedly wrongful conduct of its officers, giving rise to municipal liability. [Doc. 1 ¶¶ 31-34]

         In their Motion to Dismiss and/or for Summary Judgment and for Qualified Immunity, Defendants seek dismissal or summary judgment as to each of Plaintiff's claims. [Doc. 41] The grounds for this Motion are discussed in detail later in this Opinion. First, however, the Court will address Defendants' Motion to Strike Exhibits. [Doc. 52]

         Defendants' Motion to Strike Exhibits

         Rule 56(c)(4) governs the use of affidavits in support of, or in opposition to, motions for summary judgment. It provides that, “[a]n affidavit . . . used to support or oppose a motion [for summary judgment] must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant . . . is competent to testify on the matters stated.” Questions regarding the admissibility of affidavits are determined by reference to the Federal Rules of Evidence. 10B Charles Alan Wright et al., Federal Practice and Procedure § 2738 (4th ed. 2016). To the extent that an affidavit contains inadmissible “conclusory facts . . . [and] statements made on belief or on information and belief, ” the Court disregards such aspects of the affidavit in considering a motion for summary judgment. Id. Thus, the party seeking to strike an affidavit should specify the objectionable portions thereof and state the grounds for the objection. Id.

         Defendants move, pursuant to Federal Rule of Civil Procedure 56(c), to strike two exhibits “in their entirety”: Exhibit 1, the affidavit and report of Plaintiff's expert, Ron Martinelli, Ph.D; and Exhibit 2 the affidavit of Lyrissa Goeke. [Doc. 52 p. 2] Defendants argue that Dr. Martinelli's affidavit and report contains hearsay and inadmissible expert opinions.[1] [Id.] They argue that Ms. Goeke's affidavit contains hearsay and incompetent layperson opinion that is speculative and not based upon personal knowledge. [Id.]

         According to his affidavit, Dr. Martinelli is a “forensic consultant in Temecula, California.” [Doc. 43-2 p. 1] In substantive part, Dr. Martinelli's affidavit reads as follows:

I have read the motion for Summary Judgment filed by Defendants in this cause along with their affidavits, and I believe the best way to respond thereto, and to offer this Court my opinion is to attach a copy of my report sent to [Plaintiff's counsel] . . . as a part of this affidavit.
I understand that the matters and facts contained therein along with my opinions are under oath as though fully set forth in this Affidavit.

[Doc. 43-2 p. 1-2] The attached “report” includes a section titled “Details of Incident” and another section titled “Analysis of Incident” in which Dr. Martinelli provides, among other things, a narrative of the events underlying this lawsuit derived from his review of relevant documents, including, among other things, police and medical reports. [Doc. 43-2] The narrative portions of Dr. Martinelli's report, which are not based on personal knowledge, and which constitute inadmissible hearsay to the extent that they are offered to illustrate the truth of the underlying circumstances, shall be disregarded by the Court in its consideration of Defendants' Motion for Summary Judgment. See Fed. R. Evid. 801(c) (“Hearsay means a statement that . . . the declarant does not make while testify at the current trial or hearing”; and is offered “in evidence to prove the truth of the matter asserted in the statement.”); Fed.R.Evid. 802 (providing that, subject to specific exceptions, hearsay is not admissible).

         Ms. Goeke is a resident of Carlsbad, New Mexico who met Officer DeSantiago when he responded to her call for police to help her with her son who was “causing some problems for” her and “becoming unmanageable.” [Doc. 43-1 p. 1] Ms. Goeke's avers that she “distinctly remember[s]” Officer DeSantiago telling her son that “he should not be causing any trouble, or getting into trouble with the police, and he said[, ] ‘Because I had to kill a guy who was running from me about two months ago.'” [Id.] Ms. Goeke's affidavit continues, “I remember that phrase very distinctly because of him talking about killing a man, and I was aware of the fact that there had been a shooting of a person by the police in Carlsbad approximately two months before.” [Doc. 43-1 p. 1-2]

         Plaintiff argues Ms. Goeke's affidavit “creates a question of fact as to what [Officer DeSantiago's] state of mind and motive was at the time of the shooting.” [Doc. 53 p. 2] Generously assuming that Ms. Goeke's affidavit could reasonably be construed as relevant evidence of Officer DeSantiago's state of mind and motive at the time that Decedent was shot, the Federal Rules of Evidence bar its admission for that purpose. Officer DeSantiago's statement to Ms. Goeke's son plainly falls within the definition of hearsay provided in Rule 801(c) of the Federal Rules of Evidence. While Federal Rule of Evidence 803(3) excepts from the rule against hearsay “[a] statement of the declarant's then-existing state of mind (such as motive . . .), ” the exception does not include “a statement of memory . . . to prove the fact remembered[.]” Fed.R.Evid. 803(3). Officer DeSantiago's statement, recalling a past event, was a “statement of memory” that does not fall within the exception provided by Rule 803(3). See United States v. Rodriguez-Pando, 841 F.2d 1014, 1019 (10th Cir. 1988) (reasoning that the “state of mind exception” codified in Rule 803(3) rests upon the principle that “there are circumstantial guarantees of trustworthiness attendant to a statement that reflects a then existing mental . . . condition . . . . because the declarant has no chance to reflect upon . . . his situation”; and holding accordingly, that a defendant's post-arrest statement to an officer was not admissible to show his state ...


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