United States District Court, D. New Mexico
ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY
GREGORY B. WORMUTH, UNITED STATES MAGISTRATE JUDGE
matter comes before the Court on Defendants' Motion and
Supporting Memorandum for Qualified Immunity and Summary
Judgment. Doc. 24. Having reviewed the motion, the
attendant briefing (docs. 33, 35), and the relevant
law, the Court will GRANT Defendants' motion.
case stems from events surrounding a warrantless search of
Plaintiffs' residence on February 2, 2016. See doc.
3 at 6-8. During the search, Plaintiff Chad Coleman
received a citation for possession of narcotics paraphernalia
in violation of N.M. Stat. Ann. § 30-31-25.1.
Id. at 8. He was subsequently criminally prosecuted
by the State of New Mexico in the Lincoln County Magistrate
Court. See doc. 33, Ex. C.However, the state magistrate
granted Mr. Coleman's Motion to Suppress Evidence on
August 29, 2016, finding that the search and seizure of Mr.
Coleman's property was “constitutionally
unreasonable and a violation of [Mr. Coleman's] rights
under the Fourth and Fourteenth Amendments to the U.S.
Constitution and Art. II., Sec. 10 of the N.M.
Constitution.” Id. at 2.
filed suit in this Court on June 21, 2017. Doc. 1.
Plaintiffs then filed an Amended Complaint on July 13, 2017
and a Second Amended Complaint on July 27, 2017, alleging
federal constitutional and state law claims pursuant to 42
U.S.C. § 1983 and the New Mexico Tort Claims Act
(“NMTCA”). Docs. 3, 6. Specifically, in
their Second Amended Complaint, Plaintiffs bring (1) claims
against the individual Defendants Randall Wikoff and John
Does I-III for false arrest and detention in violation of
state law under the New Mexico Tort Claims Act
(“NMTCA”), (2) claims against Defendants Sheriff
Robert Shepperd and the County of Lincoln for respondeat
superior liability arising from the NMTCA claims; (3)
claims against Defendants Wikoff and John Does I-III for
unconstitutional search and seizure in violation of the
Fourth Amendment under § 1983, (4) claims against
Defendants Shepperd and the County of Lincoln for malicious
prosecution and abuse of process in violation of the Fourth
and Fourteenth Amendments under § 1983,  and (5) a
supervisory liability claim against Defendants Shepperd and
the County of Lincoln, and an official-capacity municipal
liability claim against Defendant County of Lincoln, both
arising from the § 1983 claims. Doc. 6 at
October 5, 2017, Defendants filed a Motion for Summary
Judgment, which was fully briefed on November 14, 2017.
Docs. 24, 33, 35, 36. In
the motion, Defendants Wikoff and Shepperd seek summary
judgment on the basis of qualified immunity. See doc.
24 at 10-20. Defendant the County of Lincoln further
asserts it is entitled to summary judgment on Plaintiffs'
malicious prosecution and abuse of process claims on the
basis that Defendant Wikoff had probable cause to cite
Plaintiff Chad Coleman for possession of drug paraphernalia,
and there is no other overt misuse of process alleged.
Id. at 16-20. Additionally, Defendants Shepperd and
the County of Lincoln seek summary judgment on
Plaintiffs' supervisory and official-capacity municipal
liability claims on the basis that neither type of claim will
lie under § 1983 without a showing of a constitutional
violation in the first instance, and that Plaintiffs have
failed to show that any constitutional violation occurred.
Id. at 21-22. Alternatively, Defendants Shepperd and
the County of Lincoln argue that even if a constitutional
violation has been shown, Plaintiffs failed to establish that
any “policy or custom” promulgated by the County
or by Sheriff Shepherd was the moving force behind such
violation, as would be necessary to prevail on these claims.
Id. at 22-23.
Standard of Review
Federal Rule of Civil Procedure 56(a), this Court must
”grant summary judgment 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 movant bears the initial burden of
“show[ing] ‘that there is an absence of evidence
to support the nonmoving party's case.'”
Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d
887, 891 (10th Cir. 1991) (quoting Celotex Corp. v.
Catrett, 477 U.S. 317, 325 (1986)). Once the movant
meets this burden, the non-moving party is required to
designate specific facts showing that “there are . . .
genuine factual issues that properly can be resolved only by
a finder of fact because they may reasonably be resolved in
favor of either party.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 250 (1986); Celotex, 477
U.S. at 324.
however, summary judgment motions based upon the defense of
qualified immunity are reviewed differently from other
summary judgment motions. Martinez v. Beggs, 563
F.3d 1082, 1088 (10th Cir. 2009). “When a defendant
asserts qualified immunity at summary judgment, the burden
shifts to the plaintiff to show that: (1) the defendant
violated a constitutional right and (2) the constitutional
right was clearly established.” Id.
(citing Pearson v. Callahan, 555 U.S. 223, 231-32
(2009)). This is a “strict two-part test” that
must be met before the defendant asserting qualified immunity
again “bear[s] the traditional burden of the movant for
summary judgment- showing that there are no genuine issues of
material fact and that he or she is entitled to judgment as a
matter of law.” Clark v. Edmunds, 513 F.3d
1219, 1222 (10th Cir. 2008). The Court may address the two
prongs of the test in any order. Pearson, 555 U.S.
immunity is applicable unless the official's conduct
violated a clearly established constitutional right.”
Pearson, 555 U.S. at 232 (citing Anderson v.
Creighton, 483 U.S. 635, 640 (1987)). “A
Government official's conduct violates clearly
established law when, at the time of the challenged conduct,
‘[t]he contours of [a] right [are] sufficiently
clear' that every ‘reasonable official would have
understood that what he is doing violates that right.' We
do not require a case directly on point, but existing
precedent must have placed the statutory or constitutional
question beyond debate.” Ashcroft v. al-Kidd,
563 U.S. 731, 741 (2011) (quoting Anderson, 483 U.S.
at 640 and citing Malley v. Briggs, 475 U.S. 335,
341 (1986)). “Ordinarily, in order for the law to be
clearly established, there must be a Supreme Court or Tenth
Circuit decision on point, or the clearly established weight
of authority from other courts must have found the law to be
as the plaintiff maintains.” Clark v. Wilson,
625 F.3d 686, 690 (10th Cir. 2010) (quotation omitted).
determining whether the plaintiff has met its burden, the
Court still construes the facts in the light most favorable
to the plaintiff as the non-moving party. Scott v.
Harris, 550 U.S. 372 (2007); see Riggins v.
Goodman, 572 F.3d 1101, 1107 (10th Cir. 2009)
(“The plaintiff must demonstrate on the facts alleged
both that the defendant violated his constitutional or
statutory rights, and that the right was clearly established
at the time of the alleged unlawful activity.”);
Riggins, 572 F.3d at 1107 (noting that generally the
Court “accept[s] the facts as the plaintiff alleges
them”). However, at the summary judgment stage,
“a plaintiff's version of the facts must find
support in the record.” Thomson v. Salt Lake
County, 584 F.3d 1304, 1312 (10th Cir. 2009).
resolving an “ordinary” summary judgment motion
or one asserting qualified immunity, the Court decides the
motion on the basis of the facts in the light most favorable
to the non-moving party and must keep in mind three
principles. First, the court's role is not to weigh the
evidence, but to assess the threshold issue of whether a
genuine issue exists as to material facts requiring a trial.
See Anderson v. Liberty Lobby, 477 U.S. 242, 249
(1986). “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 must resolve all reasonable inferences and doubts in
favor of the non-moving party, and construe 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 nonmovant] need only present evidence from
which a jury might return a verdict in his favor.”
Id. at 257.
Local Rules regarding summary judgment motions require the
non-movant's Response to “contain a concise
statement of the material facts cited by the movant as to
which the non-movant contends a genuine issue does
Each fact in dispute must be numbered, must refer with
particularity to those portions of the record upon which the
non-movant relies, and must state the number of the
movant's fact that is disputed. All material facts set
forth in the Memorandum will be deemed undisputed unless
specifically controverted. The Response may set forth
additional facts other than those which respond to the
Memorandum which the non- movant contends are material to the
resolution of the motion. Each additional fact must be
lettered and must refer with particularity to those portions
of the record upon which the non-movant relies.
on the facts presented by the movants and other facts gleaned
from the record, the Court finds the following facts to be
undisputed for the purposes of Defendants' motion:
February 1, 2016, a service technician employed by Walker A/C
& Refrigeration responded to a service call at
Plaintiffs' residence (“the Coleman
residence”) at 100 Alto Alps in Alto, New Mexico, to
work on Plaintiffs' malfunctioning central heating
system. The technician worked on the system until
approximately 10:00 p.m. that day. Doc. 33 at 11;
doc. 35 at 4.
heating system at the Coleman residence is located in the
basement, which can be reached via a stairwell from the
living room. Doc. 33 at 11; doc. 35 at 4;
doc. 24, Ex. C, at 5:00-5:30.
Plaintiffs assert that to their knowledge, the service
technician remained only in the basement during the service
call and did not enter any other part of the Coleman
residence. Doc. 33, Ex. A, ¶ 6; id.,
Ex. B, ¶¶ 5-6.
the same day as the service call at the Coleman residence,
February 1, 2016, Lincoln County Sheriff Robert Shepperd
received a phone call from Shane Walker, the owner of Walker
A/C & Refrigeration regarding the technician's
reported observations during the service call. Doc.
35 at 1-2, 4; Doc. 24, Ex. 1, ¶¶
Defendants assert that Mr. Walker told Sheriff Shepperd that
there were several firearms at the Coleman residence, and he
was concerned that a young child had access to them.
Id. at ¶ 6.
February 2, 2016, Sheriff Shepperd directed Deputy Randall
Wikoff to perform a welfare check at the Coleman residence.
Id. at ¶ 7; doc. 24, Ex. 2, ¶ 4.
White Mountain Narcotics Enforcement Unit
(“NEU”), including Ruidoso Police Department
Officer Wallace Downs and United States Customs and Border
Protection Officer Chris Baca, assisted Deputy Wikoff and
Deputy Robert Odom during the welfare check. Id. at
¶ 11; doc. 24, Ex. 2, ¶ 6.
team arrived at approximately 9:30 a.m., and knocked numerous
times over the span of several minutes. Doc. 24, Ex.
3 (Deputy Odom's lapel video footage) at 0:00-5:00.
team wore bulletproof vests and side arms. Id. at
Plaintiff Chad Coleman (“Mr. Coleman”) answered
the side door. Deputy Odom introduced himself, and said he
needed to speak with Mr. Coleman and check on the children in
the house. Id. at 4:20-5:00.
Deputy Odom asked whether anyone else was home, and Mr.
Coleman responded that his wife and daughter were upstairs.
Id. at 5:05-5:30.
Coleman invited the officers to come upstairs and explained
that he had been sleeping downstairs. Deputy Odom followed
Mr. Coleman up the staircase, while the other officers met
them around out front. Mr. Coleman stated that he would let
Deputy Odom's “buddies” into the house, and
then did so. Id. at 5:00-9:00.
the second entry-level floor of Plaintiffs' split-level
home, Plaintiff Stacia Coleman (“Mrs. Coleman”)
and her daughter appeared. Neither individual was injured or
in apparent distress. Id. at 5:50.
officer told Mrs. Coleman that they were conducting a welfare
check to ensure the safety of Plaintiffs' child.
Id. at 4:30-6:06.
Deputy Odom asked Mr. and Mrs. Coleman for their
identification and then followed Mrs. Coleman into a bedroom
where she collected her identification and presented it to
Deputy Odom. Simultaneously, Deputy Wikoff spoke to Mr.
Coleman in the living room. Id. at 6:25-7:30.
Mrs. Coleman asked Deputy Odom whether everything was okay,
and he explained that there was a report regarding a
child's access to firearms in the home. Id. at
Mrs. Coleman replied that there were firearms in the home in
a gun safe, but that Deputy Odom would have to ask Mr.
Coleman about them. Id. at 9:20- 9:30.
Several officers restated to Mr. Coleman that they have
visited to make sure that everything within the Coleman home
is safe for Plaintiffs' child. Id. at 7:40-7:55.
One NEU officer saied, “We appreciate you cooperating,
man.” Id. at 7:50-7:56.
Another officer asked, “It ok if we look back here
[referring to the back rooms of the house, including the
bedroom and bathroom]?” Id. at 8:08-8:13. Mr.
Coleman responded, “yeah, ” but warned the
officers to “watch [their] step” due to the mess.
Id. at 8:10-8:25. Mr. Coleman gestured to where the
bathroom and bedroom were located, and the officers began to
enter the rooms. Id.
NEU officer spoke to Mr. Coleman about firearms on the
bathroom floor and counter, and expressed concern for the
safety of Plaintiffs' child. Mr. Coleman said the family
never goes in there and that his daughter stays in her room
or the living room. Id. at 11:35-12:20.
officer explained that firearms should not be anywhere
accessible to his child, and that the current situation posed
a serious child safety issue. Id. at 11:55-12:15.
officer asked Mr. Coleman whether he had drugs, other than
the marijuana the officers had already discovered, in the
ashtray. Mr. Coleman said the only marijuana he had was what
was remaining in the ashtray, and denied the presence of
other drugs. Id. at 12:30-13:05; doc. 24,
Ex. 2, Attachment 1.
Deputy Wikoff announced that both guns in the bathroom were
chambered with the safeties disengaged, and asked Mr. Coleman
to put them in the gun safe. Doc. 24, Ex. 3,
NEU officer noted that that he would like to take a look
around, because there were bullets and firearms everywhere.
Id. at 13:45. Mr. Coleman responded, “Sure,
sure.” Id. at 13:48-13:52.
NEU officer asked about a gun lying on the kitchen counter,
inquired whether there were any other guns in another bag,
and requested permission to search the bag. Mr. Coleman
agreed, and the officer inspected the bag. Id. at
From inside the bag, the officer pulled out a small neoprene
container, and asked what was inside. Mr. Coleman told the
officer that he was ...