United States District Court, D. New Mexico
Doug Jones Witt The Jones Witt Law Firm Roswell, New Mexico
Attorney for the Plaintiff
L. Martinez Holt Mynatt Martinez P.C. Las Cruces, New Mexico
Attorneys for the Defendants
MEMORANDUM OPINION AND ORDER
MATTER comes before the Court on the Defendants'
Motion and Supporting Memorandum for Qualified Immunity and
Summary Judgment, filed March 15, 2017 (Doc.
45)(“Motion”). The Court held a hearing on
November 6, 2017. The primary issues are (i) whether
Defendants Mike Wood, Jason Green, and David Hightower
(collectively “Officers”) are entitled to
qualified immunity on Plaintiff Sean McGarry's claim that
Wood used excessive force when he shoved McGarry against his
kitchen counter to arrest him; (ii) whether the Officers
maliciously prosecuted McGarry for resisting, evading, or
obstructing a peace officer and for assaulting a peace
officer; (iii) whether the Court should dismiss the
respondeat superior count against Defendants Board of County
Commissioners for the County of Lincoln and the Lincoln
County Sheriff's Department; and (iv) whether the Court
should dismiss the remaining state law claims. The Court
concludes that: (i) Wood used excessive force, but he is
entitled to qualified immunity, because the right was not
clearly established; (ii) the Officers are entitled to
qualified immunity on the malicious prosecution count,
because the right was not clearly established; (iii) Lincoln
County and Lincoln County's Sheriff's Department
cannot be liable under respondeat superior for 42 U.S.C.
§ 1983 claims; and (iv) the Court declines to exercise
supplemental jurisdiction over McGarry's remaining state
law claim, so dismisses it. Accordingly, the Court grants the
Motion for all federal claims and dismisses the state law
claim without prejudice.
Court draws its facts from the Defendants' statement of
undisputed material facts. See Motion at 3-5.
See also Plaintiff's Response and Supporting
Memorandum to Defendant's Motion for Qualified Immunity
and Summary Judgment at 1-3, filed April 24, 2017 (Doc.
26, 2014, Officers Wood, Green, and Hightower responded to a
report that McGarry and his girlfriend -- Theresa Traci --
got into a fight at McGarry's rural New Mexico home.
See Motion ¶ 1, at 3 (asserting this
fact)(citing Affidavit of Deputy Mike Wood ¶ 3, at 1
(executed March 14, 2017), filed March 15, 2017, (Doc.
45-1)(“Wood Aff.”); Lapel Video of Deputy Mike
Wood at 0:00:00-0:20:47, (dated May 26, 2014), filed March
15, 2017 (Doc. 45- 1)(Attachment 1)(“Wood Video
1”). McGarry is a suspended police officer whom the
Capitan New Mexico Police Department employed. See
Motion ¶ 5, at 3 (asserting this fact)(citing Wood Aff.
¶ 7, at 1; Wood Video 1 at 0:05:03-11, 0:13:12-0:14:42).
the Officers arrived at McGarry's home, Wood approached
Traci, who was outside of the residence, while Green and
Hightower ventured into the home to speak with McGarry.
See Motion ¶¶ 2-3, at 3 (asserting this
fact)(citing Wood Aff. ¶¶ 3-5, at 1; Wood Video 1
at 0:00:00-0:20:47). Traci told Wood that McGarry had choked
her the previous night and that she had returned to
McGarry's home to retrieve her belongings and her pet
lizard. See Motion ¶¶ 4, 6, at 3
(asserting this fact)(citing Wood Aff. ¶¶ 6, 8, at
1-2; Wood Video 1 at 0:00:25-0:02:18, 0:03:20-45; Lapel Video
of Deputy Mike Wood at 0:01:40-0:10:40, (dated May 26, 2014),
filed March 15, 2017 (Doc. 45-1)(Attachment 2)(“Wood
Video 2”)). Traci also told Wood that she was afraid of
McGarry. See Motion ¶ 6, at 3 (citing Wood Aff.
¶ 8, at 2; Wood Video 1 at 0:00:25-0:02:18, 0:03:20-45;
Wood Video 2 at 0:01:40-0:10:40)).
thirty minutes after the Officers arrived at the home, and
while Wood was helping Traci work through some paperwork,
McGarry exited his house while talking on the phone and told
the person with whom he was speaking that Traci was lying and
“playing the female card.” Motion ¶ 8, at 4
(asserting this fact)(citing Wood Aff. ¶ 9, at 2; Wood
Video 2 at 0:10:37-43). Wood, seeing that McGarry's
conversation upset Traci, ordered McGarry to go back inside
or face arrest. See Motion ¶ 9, at 4 (asserting
this fact)(citing Wood Aff. ¶ 10, at 2; Wood Video 2 at
0:10:44-0:11:15). McGarry became agitated, but retreated into
his home. See Motion ¶ 10, at 4 (asserting this
fact)(citing Wood Aff. ¶ 11, at 2; Wood Video 2 at
followed McGarry into the house and pleaded with McGarry, who
was yelling,  to be calm. See Lapel Video of
Deputy Jason Green at 35:20-43, (dated May 26, 2014), filed
March 15, 2017 (Doc. 45-1)(Attachment 3)(“Green
Video”); Response at 1-3 (not disputing this
fact). McGarry continued to yell and moved to
enter another room, upon which Green said to him, “I
can't have you walk in there. You've already advised
me you have a gun in the house.”Green Video at
35:44-47 (Green). See Motion at 3-5 (not disputing
this fact). In response, McGarry yelled at Green: “You
want the fucking gun?” Green Video at 35:47-48
(McGarry). See Motion at 3-5 (not disputing this
fact); Response at 1-3 (not disputing this fact). McGarry
moved to the kitchen, picked up a box underneath the kitchen
counter and shouted: “It's right here. . . .
It's in the fucking box, and you're pointing a gun at
me. . . . Get the fuck out of my house!” Green Video at
35:49-36:04 (McGarry). See Motion at 3-5 (not
disputing this fact); Response at 1-3 (not disputing this
fact). During this exchange, Green had drawn his
duty firearm, but holstered it seconds after seeing the box.
See Green Video at 35:49-36:04; Lapel Video of
Deputy David Hightower at 0:048:08-15, (dated May 26, 2014),
filed March 15, 2017 (Doc. 45-1)(Attachment
4)(“Hightower Video”)). See Motion at
3-5 (not disputing this fact); Response 1-3 (not disputing
this fact). As McGarry yelled at Green to leave his house,
McGarry alternated between pointing his finger at Green and
at the door. See Green Video at 35:54-36:15.
who was still outside the home, heard screaming, so he ran
inside See Motion ¶ 12, at 4 (asserting this
fact)(citing Wood Aff. ¶ 13, at 2; Wood Video 2 at
0:11:40-53). Wood was afraid that Green and Hightower were in
danger, because he knew McGarry had a gun. See
Motion ¶ 12, at 4 (asserting this fact)(citing Wood Aff.
¶ 13, at 2; Wood Video 2 at 0:11:40-53). Wood had been
told, however, that the gun was old and that there was no
ammunition for it. See Wood Video at 13:10-21
(Traci). As Wood entered the kitchen, he saw McGarry standing
a few feet from Green yelling and shaking his finger.
See Motion ¶ 13, at 4 (citing Wood Aff. ¶
14, at 2; Wood Video 2 at 0:11:53-0:13:19; Green Video at
0:35:57-0:37:25; Hightower Video at 0:048:20-0:50:00).
Believing that McGarry was about to hit Green, Wood grabbed
McGarry from behind in a bear hug, pushed McGarry against the
kitchen counter, and, later, forced him to the ground.
See Motion ¶ 15, at 4-5 (asserting this
fact)(citing Wood Aff. ¶ 16, at 2; Wood Video 2 at
0:11:53-0:13:19; Green Video at 0:35:57-0:37:25; Hightower
Video at 0:48:20-0:50:00); Response at 3 (not disputing this
fact). When McGarry stopped struggling, Wood then handcuffed
him. See Motion ¶ 15, at 4-5 (asserting this
fact)(citing Wood Aff. ¶ 16, at 2; Wood Video 2 at
0:11:53-0:13:19; Green Video at 0:35:57-0:37:25; Hightower
Video at 0:48:20-0:50:00); Response at 3 (not disputing this
arresting McGarry, Wood filed a Criminal Complaint against
McGarry for assaulting a peace officer and resisting,
evading, or obstructing an officer. See Criminal
Complaint at 1, filed March 15, 2017 (Doc.
45-1)(“Criminal Complaint”). On November 16,
2015, a jury acquitted McGarry on both counts. See
Response at 3.
subsequently filed a Complaint for Civil Rights Violations,
filed May 26, 2016, (Doc. 1)(“Complaint”), which
alleges an excessive force claim against Wood, a malicious
prosecution claim against the Officers, a respondeat superior
claim against Lincoln County and the Lincoln County
Sheriff's Department for the Officers' acts, and a
New Mexico Tort Claims Act (“NMTCA”), N.M. Stat.
Ann. § 41-4-1 to 30, claim against the Officers.
See Complaint ¶¶ 43-72, at 5-8.
March 15, 2017, the Defendants filed the Motion. See
Motion at 1. The Defendants argue, as an initial matter, that
Green and Hightower are not liable under the NMTCA and for
malicious prosecution, because there is no evidence that
those officers caused the purported harm. See Motion
at 6 n.1 (citing Pahls v. Thomas, 718 F.3d 1210,
1231 (10th Cir. 2013)). The Defendants also argue that the
claim against the Lincoln County Sheriff's Department
fails, because it is a subdivision of Lincoln County.
See Motion at 6 n.1 (citing Hunter v. Luna Cty.
Detention Ctr., No. 11-0954 (D.N.M. September 6,
2012)(Doc. 84)(Vidmar, M.J.)). They also contend that Lincoln
County and the Lincoln County Sheriff's Department cannot
be liable on any of the individual claims, because they are
not individuals capable of causing the constitutional and
tort harms alleged. See Motion at 6, n.1.
Defendants also argue that Wood did not clearly commit a
violation under the Fourth Amendment of the Constitution of
the United States of America when Wood pushed McGarry into
the kitchen counter and handcuffed him on the ground.
See Motion at 7. They contend that, under the
totality of the circumstances, it was reasonable for Wood to
take those actions when he observed McGarry screaming
profanities and shaking his finger at Green. See
Motion at 7-8. According to the Defendants, Wood's
actions were all the more reasonable, because Wood knew that
McGarry had battered his girlfriend the prior night, McGarry
had a temper, and McGarry had a gun in the home. See
Motion at 8. The Defendants conclude that, in light of those
facts, and the minimal force that Wood used against McGarry,
Wood's actions did not violate the Fourth Amendment.
See Motion at 8.
Defendants aver that there is no United States Court of
Appeals for the Tenth Circuit case that has held that a
similar use of force -- “taking hold of a suspect,
forcing him against a counter, and placing him on the ground
to cuff him” -- violates the Fourth Amendment. Motion
at 11. They also aver that the Tenth Circuit has held that
more force than Wood used was not excessive. See
Motion at 11-14 (citing Aldaba v. Pickens, 844 F.3d
870, 879 (10th Cir. 2016)).
Defendants also contend that Wood did not maliciously
prosecute McGarry. See Motion at 14. The Defendants
assert that Wood had probable cause to arrest McGarry for
assaulting Green, or resisting, evading, or obstructing Wood,
so the malicious prosecution claim fails. See Motion
at 14-15. The Defendants contend that Wood had probable cause
to arrest for assault when he observed McGarry yelling
profanities at Green and waving his hand in Green's face.
See Motion at 15-16 (citing Benavidez v.
Shutiva, 2015-NMCA-065, ¶¶ 13-14, 350 P.3d
1234, 1241-42). The Defendants argue that Wood had probable
cause to arrest McGarry for resisting, evading, or
obstructing an officer, because: (i) McGarry's yelling
caused Wood to stop his “investigation” in order
to assist Hightower and Wood; (ii) McGarry refused repeated
orders from officers to calm down; and (iii) McGarry hurled
profanities at the Officers. See Motion at 18. The
Defendants also argue that no case exists which demonstrates
Wood's actions clearly amount to malicious prosecution.
See Motion 19-21.
Defendants argue that McGarry's respondeat superior claim
fails against Lincoln County, because “respondeat
superior is not available in Section 1983 cases.”
Motion at 21. They also contend that, to the extent the
respondeat superior claim relates to the NMTCA, it fails,
because McGarry cannot show that any of the Officers
committed any torts. See Motion at 21. Finally, they
contend that the NMTCA claim fails, because Wood's
actions, under the totality of the circumstances, were
reasonable. See Motion at 22.
responds that Wood did not have probable cause to arrest
McGarry. See Response at 5. He contends that
McGarry's yelling and gesturing would not lead a
reasonable officer to believe that McGarry was
“resisting, evading, or obstructing a police
officer.” Response at 6-7. He also contends that
Green's and Hightower's presence in the room with
McGarry makes Wood's action less reasonable. See
Response at 7. McGarry argues that the gun he owned was an
antique and never left the box, so Wood could not have been
responding to a danger that the gun presented. See
Response at 7.
also contends that Wood used excessive force. See
Response at 7-9. He argues that, under the Graham v.
Connor, 490 U.S. 386, 396
(1989)(“Graham”) factors, Wood used
excessive force, because: (i) McGarry was not committing a
crime; (ii) McGarry's only actions were yelling and
waving at Green; and (iii) McGarry was not resisting arrest.
See Response at 8. McGarry also argues that Wood
caused the situation, because he ordered McGarry back into
the home. See Response at 9. According to McGarry,
because Wood caused McGarry to re-enter the home, Wood is
more likely to have used excessive force. See
Response at 9 (citing Servier v. Lawrence, 60 F.3d
695, 699 (10th Cir. 1995)).
Defendants argue that, because McGarry does not mention Green
or Hightower in his Response, summary judgment is appropriate
for them. See Reply at 2 n.1. They also contend
that, because McGarry makes no argument on the respondeat
superior and the NMTCA claims, summary judgment is
appropriate on those claims. See Reply at 3 (citing
D.N.M.L.R.-Civ. 7.1). They add that McGarry has not followed
the summary judgment rules, because he relied on his pleading
in the Response. See Reply at 3.
Defendants then reiterate their arguments from the Motion.
See Reply at 4-11. They also argue that, because
McGarry “fail[s] to point to the record” to
establish excessive force or malicious prosecution,
“the Court must enter Summary Judgment.” Reply at
6 (citing Margheim v. Buljko, 855 F.3d 1077, 1087
(10th Cir. 2017)). They also argue that McGarry fails to
rebut the Defendants' arguments on malicious prosecution,
because, according to the Defendants, McGarry must not only
negate probable cause for the crime charged, but for
“any offense.” Reply at 7 (emphasis in
original). They continue that, because McGarry argued only
that he did not resist, obstruct, or evade Wood, his
malicious prosecution claim must fail. See Reply at
Defendants also argue, again, that McGarry has pointed to no
published Supreme Court of the United States of America or
Tenth Circuit case, which establishes that Wood violated
McGarry's clearly established rights. See Reply
at 9-10. They contend that the cases McGarry cite actually
support that there was no constitutional violation.
See Reply at 9-10 (Cortez v. McCauley, 478
F.3d 1108, 1128 (10th Cir. 2007); Servier v. City of
Lawrence, 60 F.3d at 700). Finally, they argue that
McGarry presented only a state case on the malicious
prosecution claim, so failed to meet his burden under
qualified immunity's second prong. See Reply at
10-11. The Defendants conclude that the Court should dismiss
all of McGarry's claims. See Reply at 11.
Court held a hearing. See Draft Transcript of Motion
Proceedings (taken November 6,
2017)(“Tr.”). The Court opened by noting that, on
qualified immunity's clearly established prong:
The Tenth Circuit is getting reversed [i]n per cur[iam]
opinions. . . . It doesn't seem . . . that you can really
satisfy the Supreme Court right now on this clearly
established pro[ng], you know it's just such a difficult
thing to satisfy the Supreme Court. They say they're not
requiring a case on point, but the reality is I think
they're getting very close to that and that's just
difficult to do in these cases. . . . [T]hat's not what I
think the law should be. And I think they're pretty much
making 1983 a pretty difficult area for us to develop
constitutional law in. So I'm sympathetic to what the
plaintiffs are saying about clearly established . . . [but] I
think this one may be one of those where it's very
difficult for the plaintiff to point to a clearly established
Tr. at 2:12-3:8 (Court). The Court also noted that the facts
are undisputed. See Tr. at 4:2-5 (Court).
Defendants agreed with the Court's characterization of
the clearly established prong. See Tr. at 4:19-23
(Martinez)(“[W]hen you look at the facts, there just
isn't an obvious case that would have put deputy Woods on
notice that [Wood's] action . . . would violate the
plaintiff, Mr. McGarry's Fourth Amendment right.”).
The Court, however, turned the Defendants to the facts and
noted that the situation gave it pause
in the sense that Wood comes in and sees . . . somebody
yelling . . . he doesn't see . . . any violence yet. . .
. [P]olice officers have to be prepared for people cursing at
them and yelling at them. And people have a First Amendment
right in this country to do those sort of things. Can they
then just turn around and start slamming people to the floor?
Tr. at 5:3-11 (Court). The Defendants rejoined that the
proper inquiry is to look at the facts with “the lens
of what Deputy Wood knew at the time and just prior to
entering the house.” Tr. at 5:14-16 (Martinez). The
Defendants argued that the facts demonstrate that Wood knew:
(i) McGarry had choked his girlfriend the prior night; (ii)
McGarry had a weapon in the house; and (iii) McGarry was
within a foot and a half of Green screaming profanities.
See Tr. at 5:17-25 (Martinez). The Court asked
whether there is any case “in which the police officer
has been allowed to use physical force when there has been no
contact or violence, [or] weapon shown.” Tr. at 7:8-11
(Court). The Defendants could point to no analogous cases
where qualified immunity was granted on whether the right was
violated, but argued that there are cases suggesting the
right is not clearly established. See Tr. at
7:14-8:11 (Martinez)(citing Aldaba v. Pickens, 844
F.3d at 879). The Defendants argued, however, that there was
no excessive force, because
[w]hat Wood did is he wrapped his arms around Mr. McGarry in
an effort to calm the situation down. And as he went to wrap
his arms, well Mr. McGarry then, the video will show appears
to push off the officer, appears to resist, and that's
really at that point where Mr. McGarry gets pushed into the
counter and then onto the floor.
Tr. at 9:11-18 (Martinez). It added that a similar situation
occurred in Gallegos v. City of Colorado
Springs, 114 F.3d 1024, 1026 (10th Cir. 1997), where an
officer “took down a suspect believing the suspect
would strike another officer.” Tr. at 10:4-7
(Martinez). The Defendants then retreated from its briefing
position that summary judgment was automatically required,
because McGarry had not cited to a record or introduced
facts: “[T]he Court would still have to establish that
there is no genuine issue of fact as to the underlying claim
being brought.” Tr. at 14:10-12 (Martinez).
rejoined that the facts demonstrate excessive force, because
McGarry had long ago been separated from Traci, and the two
other officers in the room -- Green and Hightower
--“were two armed Lincoln County deputies.” Tr.
at 17:12-13 (Witt). See id. at 16:13-18:8 (Witt).
McGarry conceded, however, that his respondeat superior claim
fails and that the Court should dismiss his state claims if
it grants summary judgment on his federal claims.
See Tr. at 18:11-13 (Witt); id. at 21:9-11
(Witt). McGarry also conceded that, “[w]ith regard to
the clearly established [inquiry], I agree with the Court
that I certainly could not find any cases that were directly
on point.” Tr. at 19:21-24 (Witt).
to the excessive force claim, McGarry argued that he was not
violent in the kitchen and that he did not draw a weapon.
See Tr. at 19:14-16 (Witt). He also argued that
yelling and shaking a finger at an officer's face is not
enough to establish probable cause for resisting, evading, or
obstructing an officer. See Tr. at 24:5-10 (Witt).
He added that those actions do not make it reasonable for
Wood to “tackle” McGarry. Tr. at 25:5-7 (Witt).
Defendants countered that officers “don't have to
wait [for the] glint of steel before taking action.”
Tr. at 25:22-23 (Martinez). It follows, according to the
Defendants, that Wood did not have to wait for McGarry to
punch Green for Wood to reasonably grab McGarry and force him
to the ground. See Tr. at 26:3-7 (Martinez). The
Court asked “isn't it a fairly strong inference
that no force was necessary if  the two police officers
inside the house that had been there for some time
weren't using it.” Tr. at 27:7-10 (Court). The
Defendants rejoined that the other officers' failure to
act “isn't a factor that we need to look at,
” because the relevant inquiry is what Wood knew at the
time. Tr. at 27:19-28:2 (Martinez)(citing White v.
Pauly, 137 S.Ct. 548, 551-52 (2017)). The Court
concluded by signaling its inclination that it would grant
the motion on qualified immunity's clearly established
prong, but that it would decide the constitutional prong, and
that it needed to give that prong some thought. See
Tr. at 30:7-31:14 (Court).
REGARDING SUMMARY JUDGMENT
56(a) of the Federal Rules of Civil Procedure states:
“The court shall 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.'” Herrera v. Santa Fe Pub. Sch., 956
F.Supp.2d 1191, 1221 (D.N.M. 2013) (Browning, J.)(quoting
Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d
at 891). See Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986). “If the moving party will bear the
burden of persuasion at trial, that party must support its
motion with credible evidence -- using any of the materials
specified in Rule 56(c) -- that would entitle it to a
directed verdict if not controverted at trial.”
Celotex Corp. v. Catrett, 477 U.S. at 331 (Brennan,
J., dissenting)(emphasis in original).
party opposing a motion for summary judgment must “set
forth specific facts showing that there is a genuine issue
for trial as to those dispositive matters for which it
carries the burden of proof.” Applied Genetics
Int'l, Inc. v. First Affiliated Sec., Inc., 912 F.2d
1238, 1241 (10th Cir. 1990). See Vitkus v. Beatrice
Co., 11 F.3d 1535, 1539 (10th Cir. 1993)
(“However, the nonmoving party may not rest on its
pleadings but must set forth specific facts showing that
there is a genuine issue for trial as to those dispositive
matters for which it carries the burden of proof.”).
Rule 56(c)(1) provides: “A party asserting that a fact
. . . is genuinely disputed must support the assertion by . .
. citing to particular parts of materials in the record,
including depositions, documents, electronically stored
information, affidavits or declarations, stipulations
(including those made for purposes of the motion only),
admissions, interrogatory answers, or other materials.”
Fed.R.Civ.P. 56(c)(1). It is not enough for the party
opposing a properly supported motion for summary judgment to
“rest on mere allegations or denials of his
pleadings.” Anderson v. Liberty Lobby, Inc.,
477 U.S. at 256. See Abercrombie v. City of Catoosa,
896 F.2d 1228, 1231 (10th Cir. 1990); Otteson v. United
States, 622 F.2d 516, 519 (10th Cir.
1980)(“However, once a properly supported summary
judgment motion is made, the opposing party may not rest on
the allegations contained in his complaint, but must respond
with specific facts showing the existence of a genuine
factual issue to be tried.”)(citation omitted). Nor can
a party “avoid summary judgment by repeating conclusory
opinions, allegations unsupported by specific facts, or
speculation.” Colony Nat'l Ins. Co. v.
Omer, 2008 U.S. Dist. LEXIS 45838, at *1 (D. Kan.
2008)(Robinson, J.)(citing Argo v. Blue Cross & Blue
Shield of Kan., Inc., 452 F.3d 1193, 1199 (10th Cir.
2006); Fed.R.Civ.P. 56(e)).
a motion for summary judgment, genuine factual issues must
exist that “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. at 250. A mere “scintilla” of evidence will
not avoid summary judgment. Vitkus v. Beatrice Co.,
11 F.3d at 1539 (citing Anderson v. Liberty Lobby,
Inc., 477 U.S. at 248). Rather, there must be sufficient
evidence on which the fact finder could reasonably find for
the nonmoving party. See Anderson v. Liberty Lobby,
Inc., 477 U.S. at 251 (quoting Schuylkill &
Dauphin Improvement Co. v. Munson, 81 U.S. 442, 448
(1871)); Vitkus v. Beatrice Co., 11 F.3d at 1539.
“[T]here is no evidence for trial unless there is
sufficient evidence favoring the nonmoving party for a jury
to return a verdict for that party. If the evidence is merely
colorable . . . or is not significantly probative, . . .
summary judgment may be granted.” Anderson v.
Liberty Lobby, Inc., 477 U.S. at 249 (citations
reviewing a motion for summary judgment, the court should
keep in mind certain principles. First, the court's role
is not to weigh the evidence, but to assess the threshold
issue whether a genuine issue exists as to material facts
requiring a trial. See Anderson v. Liberty Lobby,
Inc., 477 U.S. at 249. Second, the ultimate standard of
proof is relevant for purposes of ruling on a summary
judgment, such that, when ruling on a summary judgment
motion, the court must “bear in mind the actual quantum
and quality of proof necessary to support liability.”
Anderson v. Liberty Lobby, Inc., 477 U.S. at 254.
Third, the court must resolve all reasonable inferences and
doubts in the nonmoving party's favor, and construe all
evidence in the light most favorable to the nonmoving party.
See Hunt v. Cromartie, 526 U.S. 541, 550-55 (1999);
Anderson v. Liberty Lobby, Inc., 477 U.S. at 255
(“The evidence of the non-movant is to be believed, and
all justifiable inferences are to be drawn in his
favor.”). Fourth, the court cannot decide credibility
issues. See Anderson v. Liberty Lobby, Inc., 477
U.S. at 255.
are, however, limited circumstances in which the court may
disregard a party's version of the facts. This doctrine
developed most robustly in the qualified immunity arena. In
Scott v. Harris, 550 U.S. 372 (2007), the Supreme
Court of the United States of America concluded that summary
judgment was appropriate where video evidence “quite
clearly contradicted” the plaintiff's version of
the facts. 550 U.S. at 378-81. The Supreme Court explained:
At the summary judgment stage, facts must be viewed in the
light most favorable to the nonmoving party only if there is
a “genuine” dispute as to those facts. Fed. Rule
Civ. Proc. 56(c). As we have emphasized, “[w]hen the
moving party has carried its burden under Rule 56(c), its
opponent must do more than simply show that there is some
metaphysical doubt as to the material facts . . . . Where the
record taken as a whole could not lead a rational trier of
fact to find for the nonmoving party, there is no
‘genuine issue for trial.'” Matsushita
Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S.
[at] 586-587 . . . (footnote omitted). “[T]he mere
existence of some alleged factual dispute between
the parties will not defeat an otherwise properly supported
motion for summary judgment; the requirement is that there be
no genuine issue of material fact.”
Anderson v. Liberty Lobby, Inc., 477 U.S. [at]
247-248 . . . . When 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 for purposes of
ruling on a motion for summary judgment.
Scott v. Harris, 550 U.S. at 380 (emphases in
original). Applying these standards to a factual dispute over
whether the plaintiff-respondent “was driving in such
fashion as to endanger human life, ” the Supreme Court
held that the plaintiff-respondent's “version of
events is so utterly discredited by the record that no
reasonable jury could have believed him.” 550 U.S. at
380. Thus, the Supreme Court concluded, “[t]he Court of
Appeals should not have relied on such visible fiction; it
should have viewed the facts in the light depicted by [a]
videotape, ” which showed the plaintiff-respondent
driving extremely dangerously. 550 U.S. at 381.
United States Court of Appeals for the Tenth Circuit applied
this doctrine in Thomson v. Salt Lake County, 584
F.3d 1304 (10th Cir. 2009), and explained:
[B]ecause at summary judgment we are beyond the pleading
phase of the litigation, a plaintiff's version of the
facts must find support in the record: more specifically,
“[a]s with any motion for summary judgment, when
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, 550
U.S. at 380); see also Estate of Larsen ex rel.
Sturdivan v. Murr, 511 F.3d 1255, 1258 (10th
Thomson v. Salt Lake Cty., 584 F.3d at 1312
(brackets omitted). “The Tenth Circuit, in
Rhoads v. Miller, [352 F. App'x 289
(10th Cir. 2009)(Tymkovich, J.)(unpublished), ] explained that
the blatant contradictions of the record must be supported by
more than other witnesses' testimony[.]” Lymon
v. Aramark Corp., 728 F.Supp.2d 1222, 1249 (D.N.M.
2010)(Browning, J.)(citation omitted), aff'd,
499 F. App'x 771 (2012).
In evaluating a motion for summary judgment based on
qualified immunity, we take the facts “in the light
most favorable to the party asserting the injury.”
Scott v. Harris, 550 U.S. 372, 377 (2007).
“[T]his usually means adopting . . . the
plaintiff's version of the facts, ” id. at
378, unless that version “is so utterly discredited by
the record that no reasonable jury could have believed him,
” id. at 380. In Scott, the
plaintiff's testimony was discredited by a videotape that
completely contradicted his version of the events. 550 U.S.
at 379. Here, there is no videotape or similar evidence in
the record to blatantly contradict Mr. Rhoads' testimony.
There is only other witnesses' testimony to oppose his
version of the facts, and our judicial system leaves
credibility determinations to the jury. And given the
undisputed fact of injury, Mr. Rhoads' alcoholism and
memory problems go to the weight of his testimony, not its
admissibility . . . . Mr. Rhoads alleges that his injuries
resulted from a beating rendered without resistance or
provocation. If believed by the jury, the events he describes
are sufficient to support a claim of violation of clearly
established law under Graham v. Connor, 490 U.S.
386, 395-96 (1989), and this court's precedent.
Rhoads v. Miller, 352 F. App'x at 291-92.
See Lymon v. Aramark Corp., 728 F.Supp.2d at 1249-50
(quoting Rhoads v. Miller, 352 F. App'x at
291-92). In a concurring opinion in Thomson v. Salt Lake
County, the Honorable Jerome A. Holmes, United States
Circuit Judge for the Tenth Circuit, stated that courts must
focus first on the legal question of qualified immunity and
“determine whether plaintiff's factual allegations
are sufficiently grounded in the record such that they may
permissibly comprise the universe of facts that will serve as
the foundation for answering the legal question before the
court, ” before inquiring into whether there are
genuine issues of material fact for resolution by the jury.
584 F.3d at 1326-27 (Holmes, J., concurring)(citing
Goddard v. Urrea, 847 F.2d 765, 770 (11th Cir.
1988)(Johnson, J., dissenting))(observing that, even if
factual disputes exist, “these disputes are irrelevant
to the qualified immunity analysis because that analysis
assumes the validity of the plaintiffs' facts”).
REGARDING QUALIFIED IMMUNITY
immunity recognizes the “need to protect officials who
are required to exercise their discretion and the related
public interest in encouraging the vigorous exercise of
official authority.” Harlow v. Fitzgerald, 457
U.S. 800, 807 (1982). “Qualified immunity protects
federal and state officials from liability for discretionary
functions, and from ‘the unwarranted demands
customarily imposed upon those defending a long drawn-out
lawsuit.'” Roybal v. City of Albuquerque,
No. 08-0181, 2009 WL 1329834, at *10 (D.N.M. April 28,
2009)(Browning, J.)(quoting Siegert v. Gilley, 500
U.S. 226, 232 (1991)). The Supreme Court deems it
“untenable to draw a distinction for purposes of
immunity law between suits brought against state officials
under § 1983 and suits brought directly under the
Constitution against federal officials.” Butz v.
Economou, 438 U.S. 478, 504 (1978). See Bivens v.
Six Unknown Named Agents of Federal Bureau of Narcotics,
403 U.S. 388, 392 (1971)(“Bivens”).
“The qualified immunity analysis is the same whether
the claims are brought under Bivens or pursuant to the
post-Civil War Civil Rights Acts.” Breidenbach v.
Bolish, 126 F.3d 1288, 1291 (10th Cir. 1997),
overruled on other grounds as recognized by Currier v.
Doran, 242 F.3d 905 (10th Cir. 2001).
§ 1983 -- invoked in this case -- and Bivens, a
plaintiff may seek money damages from government officials
who have violated his or her constitutional or statutory
rights. To ensure, however, that fear of liability will not
“unduly inhibit officials in the discharge of their
duties, ” Anderson v. Creighton, 483 U.S. 635,
638 (1987), the officials may claim qualified immunity; so
long as they have not violated a “clearly
established” right, the officials are shielded from
personal liability, Harlow v. Fitzgerald, 457 U.S.
800, 818 (1982).
That means a court can often avoid ruling on the
plaintiff's claim that a particular right exists. If
prior case law has not clearly settled the right, and so
given officials fair notice of it, the court can simply
dismiss the claim for money damages. The court need never
decide whether the ...