United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT'S
MOTION FOR SUMMARY JUDGMENT AS TO COUNTS I AND II BASED ON
ABSOLUTE AND QUALIFIED IMMUNITY
MATTER comes before the Court upon a Motion for Summary
Judgment on the Basis of Qualified Immunity and other
grounds, filed on May 15, 2017 by Defendant Nathan Kinnison
(Doc. 51). Having reviewed the parties'
pleadings and the applicable law, the Court finds that
Defendant's motion is well-taken and is therefore
was arrested and charged with the distribution of her
son's prescription opiates in Roosevelt County, New
Mexico. Plaintiff filed this case under 42 U.S.C. §
1983, alleging that her Fourth Amendment rights were violated
by the Defendant, Officer Nathan Kinnison, because he omitted
from his grand jury testimony and his arrest warrant
affidavit that an unsearched third party was present at the
controlled buy. Plaintiff also alleges that Defendant did not
notify the prosecuting attorney about the failure to search
the third party. Evidence of the controlled buy was
apparently suppressed, and a year later the district attorney
dismissed the case.
filed a complaint asserting claims for Malicious Prosecution
(Count 1) and Unreasonable Seizure (Count 2). Defendant moved
for summary judgment and asserted absolute and qualified
have asserted the defense of qualified immunity, which
shields government officials from liability for civil damages
“insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a
reasonable person would have known.” Pearson v.
Callahan, 555 U.S. 223, 231 (2009); Romero v.
Story, 672 F.3d 880 (10th Cir. 2012).
defendant moves for summary judgment on the basis of
qualified immunity, the plaintiff bears a heavy two-fold
burden. Medina v. Cram, 252 F.3d 1124, 1128 (10th
Cir. 2001). The plaintiff must put forward evidence showing
(1) that the defendant violated plaintiff's
constitutional rights, and (2) the right at issue was clearly
established at the time of the violation. Id. If the
plaintiff fails to establish either part of the two-part
inquiry, the court must grant the defendant qualified
judgment is appropriate if “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).
However, “[t]o meet the heavy, two-part burden
necessary to overcome a qualified-immunity defense,
plaintiffs must allege facts sufficient to show a
constitutional violation, and those facts must find support
from admissible evidence in the record. [The Court]
construe[s] the facts in the light most favorable to the
plaintiff as the non-movant. But [the Court] need not make
unreasonable inferences or adopt one party's version of
the facts if the record doesn't support it.”
Harte v. Bd. of Commissioners of Cty. of Johnson,
Kansas, 864 F.3d 1154, 1173-74 (10th Cir. 2017),
cert. dismissed sub nom. Bd. of Cty. Comm'rs of
Johnson Cty., Kansas v. Harte, 138 S.Ct. 576, 199
L.Ed.2d 452 (2018) (internal citations and quotations
omitted). See also Hollander v. Sandoz Pharmaceuticals
Corp., 289 F.3d 1193, 1214 (10th Cir. 2002); White
v. Pauly, 137 S.Ct. 548, 550 (2017).
was a Deputy Sheriff for the Roosevelt County Sheriff's
Department. On May 28, 2010, Defendant had a confidential
informant, Michael Encinias (the “CI”), arrange
two controlled buys from Plaintiff. The CI signed a contract
with the Region V task force and worked with Defendant and
other agencies for about six weeks prior to the alleged
controlled buys involving Plaintiff. Thus, the CI's
credibility was established before the investigation of
Plaintiff, through drug purchases or supplying information.
of his agreement, the CI received compensation for providing
information or conducting controlled buys. He was compensated
for at least three buys prior to those with Plaintiff, and
received approximately $1, 700 for his work. Defendant
testified at the grand jury that the confidential informant
“has provided information that has led to numerous
felony level narcotics arrests as well as other arrests not
related to the narcotics.”
initially told Defendant that Plaintiff was selling
prescription drugs, and that she would obtain more drugs when
her son refilled his oxycodone prescription at the end of the
month. Another confidential informant also
provided the same information-that Plaintiff was selling
prescription drugs. Another Deputy, Mark Morrison, worked
with Defendant on both buys with Plaintiff.
to the first purchase in May 28, 2010, the Officers met with
the CI near grain silos in Portales, New Mexico. At the
meeting, the CI informed Defendant that Plaintiff's son
was refilling a prescription and that the drugs were
available for purchase. At the silo area, the CI was given
fifty dollars by the officers, which had been photocopied.
was a passenger in a vehicle driven by his girlfriend. The CI
and the CI's vehicle were searched. However, the
girlfriend was not searched. On prior occasions, the
girlfriend was present, but did not accompany the CI to the
location of the buys. The girlfriend apparently drove the CI
to the first buy because his driver's license was
arranged to do the buy at the CI's residence. When they
travelled to the buy location, the CI was always within sight
of the Officers. The CI was instructed not to go into the
Kinnison and Morrison positioned their vehicle about one or
two houses away. Plaintiff pulled up a few minutes later and
parked in front of the residence where the CI was waiting.
The CI walked to the passenger's side of the vehicle.
Plaintiff's son, Jordan, exited Plaintiff's vehicle,
and had a conversation with the CI, but they did not exchange
anything. The son got back in the driver's seat and the
CI got into the back seat of Plaintiff's vehicle on the
passenger's side. The CI was in the vehicle for a brief
period of time.
the buy, the CI walked to an alleyway off the residence,
where he met with the Officers. The Officers received
oxycodone pills from the CI. The CI said they were purchased
from Plaintiff. The CI also informed the Officers that
Plaintiff would be at her house later if they wanted to get
also informed the Officers that Plaintiff was on her way to
the Water Department to pay her water bill. Officers Kinnison
and Morrison went immediately to the Water Department. As
Officers Kinnison and Morrison were pulling into the Water
Department, Plaintiff's vehicle was pulling out.
Plaintiff asserts that her son and nephew went with her to
the Water Department.
Water Department, the Officers made contact with the clerks.
They were informed that the last customer was Plaintiff and
that her account had been paid. They were also informed that
the son had made the payment.
Officers received the money paid on the last transaction. The
bills used to pay Plaintiff's water bill matched the
money which had been earlier photocopied and provided to the
CI for the controlled buy.
on the information received from the CI that Plaintiff would
be at her home later if he wanted additional pills, a second
buy was arranged. A second pre-buy meeting was set up with
the CI at a cemetery in Portales. At the second pre-buy
meeting, the same procedure was followed. The CI and the
vehicle were searched, but the girlfriend was not searched.
The CI was provided $90.00 for the second buy. The CI then
proceeded to Plaintiff's house. The Officers followed,
never losing sight of the CI's vehicle. The CI exited his
vehicle and went to Plaintiff's home.
left the house and then drove to an arranged location to
provide the pills to the Officers. The CI's vehicle was
always within the Officer's sight. The CI provided
Officer Kinnison with the pills which were the same as the
initial purchase, and informed the Officers that Plaintiff
had sold him the pills.
the second controlled buy, Officer Kinnison prepared a search
warrant which was reviewed by deputy district attorney Kirk
Chavez and approved by a judge. During the search of
Plaintiff's house, Officers seized the packaging from the
pill bottle, which was prescribed to her son. Officers found
a receipt in Defendant's bedroom for Oxycodone,
indicating that a prescription for 200 pills was filled on
May 28, 2010. This was consistent with information provided
by the CI. Officers also found the $90.00 provided to the CI
for the second controlled buy under Plaintiff's mattress.
Plaintiff asserts the $90.00 was given to her by her nephew
as rent. Plaintiff was not arrested following the execution
of the search warrant.
case was presented to a grand jury on July 15, 2010. Officers
Kinnison and Morrison testified at the Grand Jury. Laura
Southerd, one of the clerks at the Water Department, and
Plaintiff also testified. At the grand jury hearing, deputy
district attorney Kirk Chavez did not ask Defendant about the
presence of the girlfriend or other third-parties, and the
presence of the girlfriend was not disclosed by Defendant.
Defendant testified that informants and their vehicles are
searched prior to controlled buys.
testified before the Grand Jury and denied being involved in
selling drugs or paying her water bill with money used to buy
drugs. The Grand Jury returned a true bill finding probable
cause on two counts of trafficking a controlled substance.
Defendant prepared an affidavit for an arrest warrant the
disclosed the presence of the unsearched girlfriend at the
controlled buys to DA Chavez, prior to an interview with
Chavez and Plaintiff's defense counsel on March 9, 2011.
DA Chavez believed that the omission was material, and
speculated that it was intentional.Nevertheless, the District
Attorney's Office did not dismiss the charges. In
continuing the prosecution, the District Attorney took the
position that the presence of the third-party was not
disclosed in an effort to protect the CI's identity. At
some point, there was apparently a ...