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Griffin v. Kinnison

United States District Court, D. New Mexico

March 21, 2018



         THIS 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 GRANTED.


         Plaintiff 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.

         Plaintiff 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 immunity.


         Defendants 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).

         When a 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 immunity. Id.

         Summary 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).


         Defendant 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.

         As part 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.”

         A. Controlled Buys.

         The CI 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.[2] 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.

         Prior 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.

         The CI 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 suspended.

         The CI 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 residence.

         Officers 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.

         After 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 more pills.

         The CI 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.

         At the 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.

         The 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.

         Based 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.

         The CI 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.

         B. Legal Process.

         Following 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.

         The 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.

         Plaintiff 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 next day.

         Defendant 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.[3]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 ...

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