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Sanchez v. Surratt

United States District Court, D. New Mexico

October 24, 2017

TANYA SANCHEZ, individually and on behalf of M.S., her minor daughter, VINCENT SANCHEZ, and DANIELLE BRIZENO, Plaintiffs,
v.
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

         This 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.

         I. BACKGROUND AND PROCEDURAL HISTORY

         This 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.

         Danielle 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.

         On May 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.

         II. SUMMARY OF ARGUMENTS

         Defendant 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.

         Defendant 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.'” Id.

         Plaintiffs 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.

         III. SUMMARY JUDGMENT STANDARD

         Summary 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).

         The 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).

         At the 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. D.N.M.LR-Civ. 56.1(b).

         Because 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)).

         IV. UNDISPUTED FACTS

         The 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.

         A. Undisputed Material Facts

         In his 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.[1]

         1. Defendant's undisputed material facts

         1. Plaintiff M.S. was born in March 2001. In May 2010, M.S. was nine years old.

         2. Plaintiff Tanya Sanchez is the biological mother of M.S.

         3. Rose Surratt is the biological mother of Tanya Sanchez and is M.S.'s grandmother.

         4. Rose Surratt and Defendant are husband and wife.

         5. In 2010, M.S. resided in Lovington, New Mexico, and lived with her biological parents and her two siblings.

         6. In 2010, Defendant and Rose Surratt also resided in Lovington.

         7. Defendant and Rose Surratt's home was approximately two miles from the house in which M.S. lived with her family.

         8. Defendant and Rose Surratt's home was “right down the street” from where M.S. went to elementary school.

         9. As 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.

         10. 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.

         13. 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.

         14. M.S. would go to Defendant and Rose Surratt's house after school, and also would go there when her parents were not around.

         15. Before May 2010, M.S. had spent the night at Defendant and Rose Surratt's house.

         16. 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.

         17. In May 2010, Defendant was employed as a Lea County deputy sheriff.

         18. As a Lea County deputy sheriff, Defendant wore a uniform, wore a badge on his uniform, and carried a gun.

         19. As a Lea County deputy sheriff, Defendant drove a vehicle that was marked as a Lea County Sheriff's Department vehicle.

         20. In May 2010, Defendant normally worked as a deputy sheriff on weekdays from roughly 7:00 a.m. until 3:00 p.m.

         21. While employed as a deputy sheriff, Defendant received a salary.

         22. Before the alleged incidents in May 2010, Defendant frequently drove M.S. to school while on duty as a deputy sheriff.

         23. 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.

         24. The Lea County Sheriff's Department was aware of, and did not object to, Defendant taking M.S. to school while on duty as a deputy sheriff.

         25. As of May 2010, M.S. knew that Defendant was a deputy sheriff.

         26. 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.

         28. As of May 2010, M.S. was used to seeing Defendant in his uniform.

         29. M.S. knew that Defendant wore a badge on his uniform, and had seen the badge when Defendant wore his uniform.

         30. 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 uniform.

         31. M.S. knew that Defendant carried handcuffs on his belt when he was in uniform.

         32. On occasion, while wearing his police uniform, Defendant would drive M.S. to school or pick her up at her school and take her home.

         33. 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.

         35. 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 ...


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