United States District Court, D. New Mexico
TANYA SANCHEZ, individually and on behalf of M.S., her minor daughter, VINCENT SANCHEZ, and DANIELLE BRIZENO, Plaintiffs,
DANNY SURRATT, SHIRLEY SEAGO, and JASON DAUGHERTY, in their individual capacities, Defendants.
ORDER GRANTING DEFENDANT DANNY SURRATT'S MOTION
FOR SUMMARY JUDGMENT
HONORABLE GREGORY J. FOURATT UNITED STATES MAGISTRATE JUDGE
matter comes before the Court on Defendant Danny
Surratt's (“Defendant's”) “Motion
for Summary Judgment” (“Motion”). ECF No.
69. After careful consideration of the pertinent law and the
parties' briefing, the Court will GRANT
the Motion and DISMISS the 42 U.S.C. §
1983 claim set forth in Count I of Plaintiffs' Complaint
against Defendant WITH
PREJUDICE. Furthermore, because this
dismissal extinguishes the only federal claim against
Defendant over which this Court had original jurisdiction,
the Court will decline to exercise supplemental jurisdiction
over the remainder of Count I or the entirety of Count V. The
Court's reasoning follows below.
BACKGROUND AND PROCEDURAL HISTORY
case arises from the alleged sexual assaults of M.S. and
Danielle Brizeno, who at the time of the attacks, were both
minor children of Plaintiff Tanya Sanchez. Pls.' Compl.
¶ 1, ECF No. 1. M.S., the younger of the two, was only
nine years old when she was attacked. Id. ¶ 9.
At that time, Defendant worked as a deputy sheriff in the Lea
County Sheriff's Office in Lea County, New Mexico.
Id. ¶ 10. On May 5, 2010, Defendant picked up
M.S. from her school and drove her home while on duty, in
uniform, and by way of his government-issued vehicle.
Id. ¶¶ 17-18. Plaintiffs allege that,
later that day, Defendant molested M.S. Id. ¶
19. Plaintiffs also allege that, on May 15, 2010, Defendant
molested M.S. again. Id. ¶ 20. That same day,
M.S. reported her molestation to her older sister, Danielle
Brizeno. Id. ¶ 21.
Brizeno is also the daughter of Tanya Sanchez. Id.
¶¶ 1, 3. She alleges that in the summer of 2009,
when she was fifteen years old, Defendant entered the home
where she resided and also sexually molested her.
Id. ¶¶ 12-14. Ms. Brizeno did not report
the assault at that time, but after hearing her younger
sister's account of being assaulted by Defendant on May
15, 2010, she chose to report her own assault to her parents
and to her grandmother. Id. ¶¶ 15, 21, 28.
5, 2013, Plaintiffs filed their Complaint, alleging inter
alia that Defendant, while acting under the color of
law: (1) in Count I, deprived M.S. of substantive due process
in violation of 42 U.S.C. § 1983 [Id.
¶¶ 51-57]; (2) in Count I(a), committed the state
tort of battery against M.S. [Id. ¶¶
58-62]; and (3) in Count 5, committed the state tort of
battery against Ms. Brizeno. Id. ¶¶ 87-90.
Defendant filed his Motion on August 17, 2017. ECF No. 69.
Plaintiffs filed their “Response to Defendant
Surratt's Motion for Summary Judgment”
(“Response”) on September 11, 2017. ECF No. 75.
Briefing concluded with the filing of Defendant's Reply
on September 22, 2017. ECF No. 78.
SUMMARY OF ARGUMENTS
argues that Plaintiffs' § 1983 claim must be
dismissed because it “depends on a showing that
[Defendant] was acting under color of state law, ” and
by his estimation, no such showing can be made “under
either the undisputed facts or applicable law.”
Def.'s Mot. 8, ECF No. 69. He contends that “M.S.
has no evidence to show that [Defendant] used his authority
as a deputy sheriff either to lure M.S. away from her school
or to compel her involuntarily to leave school with
him.” Id. at 11. Furthermore, he asserts that
“M.S. has no evidence to present at trial that
[Defendant] in any way acted as a deputy sheriff at the time
the alleged assault took place.” Id.
explains that “this is not a case in which [Defendant]
could not have abused M.S. but for his status as a deputy
sheriff.” Id. at 12. Rather, he emphasizes
that he “had a preexisting familial relationship with
M.S.” and that M.S. “considered him to be her
grandfather, and she called him ‘Papa.'”
Id. (citation omitted). As a consequence, he notes
that he was a frequent visitor in the home of M.S., as she
was in his. Id. Defendant contends that these
frequent contacts led M.S. to get “used to”
seeing him in his government-issued vehicle, just as she was
accustomed to seeing him in his uniform, with his badge, gun,
and handcuffs affixed to his belt as part of the same.
Id. at 13. Thus, while these indicia of his office
were present on the first day he allegedly assaulted M.S., he
argues that “[f]rom the time that the school contacted
[Defendant] to pick up his sick granddaughter, his dealings
with M.S. mirrored the earlier interactions he had with her
for much of her life.” Id. at 14. Therefore,
he concludes that his “private conduct on May 5 was not
action taken ‘under color of state law.'”
respond that Defendant did, in fact, operate under color of
state law when he assaulted M.S. They argue that Defendant
“showed his authority by presenting himself in his
state[-]issued uniform and badge” when he arrived at
the school to pick up M.S. Pls.' Resp. 10, ECF No. 75.
Furthermore, Plaintiffs highlight that Defendant “did
not change clothes or cover his badge, ” nor did he
“clock out or take leave.” Id. To the
contrary, they observe that Defendant “was on duty at
the time” he picked up M.S. Id. Lastly,
Plaintiffs emphasize that Defendant used a
“state[-]issued vehicle as the means to transport the
minor victim so that he could commit the sexual
assault.” Id. Although Plaintiffs concede
their showing is “close, ” they nonetheless
conclude “there is sufficient factual basis in the
record showing state action involved in the commission of the
tort.” Id. at 11.
SUMMARY JUDGMENT STANDARD
judgment shall be granted “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 entry of summary judgment is mandated
“after adequate time for discovery and upon motion,
against a party who fails to make a showing sufficient to
establish the existence of an element essential to that
party's case, and on which that party will bear the
burden of proof at trial.” Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986).
party who will bear the burden of proof at trial on a
dispositive issue must designate specific facts showing that
there is a genuine issue for trial. Id. at 324. In
order for an issue to be genuine, the evidence of it must be
such that a reasonable jury could return a verdict for the
nonmoving party. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). If there is not sufficient evidence
favoring the nonmoving party, there is no issue for trial.
Id. at 249. Furthermore, “[w]here the record
taken as a whole could not lead a rational trier of fact to
find for the non-moving party, there is no genuine issue for
trial.” Matsushita Elec. Indus. Co., Ltd. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986) (citing First
Nat. Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253,
289 (1986)) (internal quotation marks omitted).
summary judgment stage, “a plaintiff's version of
the facts must find support in the record.” Thomson
v. Salt Lake Cnty., 584 F.3d 1304, 1312 (10th Cir.
2009). As with any fact asserted by a party in a summary
judgment motion, the non-movant must point the Court to such
support by “citing to particular parts of materials in
the record[.]” Fed.R.Civ.P. 56(c)(1)(A). All material
facts set forth in the motion and response that are not
specifically controverted are deemed undisputed.
it decides motions for summary judgment by viewing the facts
in the light most favorable to the non-moving party, the
Court obeys three general principles. First, the Court's
role is not to weigh the evidence, but only to assess the
threshold issue of whether a genuine issue exists as to
material facts such that a trial is required. 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 resolves all reasonable
inferences and doubts in favor of the non-moving party, and
construes all evidence in the light most favorable to the
non-moving party. See Hunt v. Cromartie, 526 U.S.
541, 550-55 (1999). 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.
Nonetheless, “[w]hen opposing parties tell two
different stories, one of which is blatantly contradicted by
the record, so that no reasonable jury could believe it, a
court should not adopt that version of the facts[.]”
York v. City of Las Cruces, 523 F.3d 1205, 1210
(10th Cir. 2008) (quoting Scott v. Harris, 550 U.S.
372, 380 (2007)).
Court divides this section into two parts: (1) undisputed
material facts submitted by the parties, and (2) disputed
material facts submitted by Plaintiffs in their response.
Undisputed Material Facts
Motion, Defendant advances sixty (60) undisputed material
facts [Def.'s Mot. 2-8] that Plaintiffs admit to be
undisputed. Pls.' Resp. 2. In addition, Plaintiffs
advance seventeen (17) undisputed material facts that
Defendant admits in form only. See Id. at 2-6;
Def.'s Reply 3, ECF No. 78.
Defendant's undisputed material facts
Plaintiff M.S. was born in March 2001. In May 2010, M.S. was
nine years old.
Plaintiff Tanya Sanchez is the biological mother of M.S.
Surratt is the biological mother of Tanya Sanchez and is
Surratt and Defendant are husband and wife.
2010, M.S. resided in Lovington, New Mexico, and lived with
her biological parents and her two siblings.
2010, Defendant and Rose Surratt also resided in Lovington.
Defendant and Rose Surratt's home was approximately two
miles from the house in which M.S. lived with her family.
Defendant and Rose Surratt's home was “right down
the street” from where M.S. went to elementary school.
of May 2010 - the month in which the two incidents involving
Defendant alleged in Plaintiffs' Complaint took place -
M.S. had known Defendant for almost half of her life.
Before May 2010, M.S. considered Defendant to be her
grandfather and called him “Papa.” 11. Before May
2010, M.S. described her relationship with Defendant as
“good.” 12. During the first part of 2010,
Defendant and Rose Surratt were at the house in which M.S.
lived with her family “maybe three times a week”
and for holidays.
During the first part of 2010, M.S. went to Defendant and
Rose Surratt's house often, “[p]robably three times
a week” and also went there for Thanksgiving.
M.S. would go to Defendant and Rose Surratt's house after
school, and also would go there when her parents were not
Before May 2010, M.S. had spent the night at Defendant and
Rose Surratt's house.
Before May 2010, Defendant had picked M.S. up from school
when she was sick and her parents were unable to come to get
her because they were working out of town.
May 2010, Defendant was employed as a Lea County deputy
a Lea County deputy sheriff, Defendant wore a uniform, wore a
badge on his uniform, and carried a gun.
a Lea County deputy sheriff, Defendant drove a vehicle that
was marked as a Lea County Sheriff's Department vehicle.
May 2010, Defendant normally worked as a deputy sheriff on
weekdays from roughly 7:00 a.m. until 3:00 p.m.
While employed as a deputy sheriff, Defendant received a
Before the alleged incidents in May 2010, Defendant
frequently drove M.S. to school while on duty as a deputy
Before the alleged incidents in May 2010, Defendant
frequently picked M.S. up at school and took her home while
on duty as a deputy sheriff.
Lea County Sheriff's Department was aware of, and did not
object to, Defendant taking M.S. to school while on duty as a
of May 2010, M.S. knew that Defendant was a deputy sheriff.
M.S. understood that Defendant wore a police uniform, and she
saw him in his uniform “[m]ostly every time [she] saw
him during the weekday . . . .” 27. M.S. saw Defendant
both when she went to his house and when he came to the house
in which M.S. lived with her family.
of May 2010, M.S. was used to seeing Defendant in his
M.S. knew that Defendant wore a badge on his uniform, and had
seen the badge when Defendant wore his uniform.
M.S. knew that Defendant carried a gun inside a holster when
he was in uniform, and had seen him wear a gun when he was in
M.S. knew that Defendant carried handcuffs on his belt when
he was in uniform.
occasion, while wearing his police uniform, Defendant would
drive M.S. to school or pick her up at her school and take
M.S. knew that Defendant drove a police car that had
“Lovington or sheriff's office or something on
it” and that “looked like a police car with the
police car designs.” 34. Defendant occasionally would
drive M.S. to school and pick her up from school while
driving his police car.
Before May 2010, M.S. had been a passenger in the police car
driven by Defendant “multiple times, ” and as she
described it, “I thought I was cool because I got to
ride in the cop car.” 36. When M.S. was alone with