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Torres v. Murillo

United States District Court, D. New Mexico

April 25, 2018

MANUEL G. TORRES, Plaintiff,



         THIS MATTER comes before the Court on Defendant Chief Deputy District Attorney G. George Zsoka's motion for summary judgment on the basis of absolute and/or qualified immunity (Doc. 37). As is relevant here, Plaintiff Manuel Torres, a police officer for the Village of Santa Clara, sued Zsoka under 42 U.S.C. § 1983 and the New Mexico Tort Claims Act (“NMTCA”) after Zsoka unsuccessfully prosecuted Torres in state court for shooting at a motor vehicle.[1] Zsoka asserts he is immune from suit because his actions were part and parcel of his job as prosecutor or, alternatively, reasonable under extant law.[2] Torres does not rebut Zsoka's assertion of absolute or qualified immunity. Instead, Torres asks the Court to delay ruling because he needs discovery to fully respond. See Fed. R. Civ. P. 56(d). With the consent of the parties to conduct dispositive proceedings, see 28 U.S.C. §636(c), the Court has considered the parties' submissions and applicable law as well as reviewed the record on summary judgment. Having done so, the Court grants Zsoka's motion in part.


         On June 21, 2015, Torres hosted a Father's Day barbeque at his home in Silver City, New Mexico. (Def.'s UMF[3] 2; Doc. 1, Compl., ¶¶14, 16). Torres was off duty at the time. (UMF 2; Doc. 1, ¶14). While outside during the festivities, Torres heard arguing nearby, and ultimately gunshots were fired. (Id., ¶ 17). A woman yelled “please stop shooting . . . my brother.” (UMF 4; Doc. 1, ¶ 21). From his vantage point, Torres saw gunshots coming from a dark-colored truck that was backing up. (UMF 5; Doc. 1, ¶ 20). Torres, not on duty at time, yelled “stop, police” and shot at the vehicle's back tire in an effort to prevent escape. (UMF 6; Doc. 1., ¶22).

         As a prosecutor in New Mexico's Sixth Judicial District, Zsoka soon learned of the events. Zsoka received information from four witnesses that Torres, whom Zsoka knew to be a peace officer, “came out of his (Torres') home with a handgun (not his duty weapon) and shot towards a moving vehicle several times.” (UMF 8, Doc. 37-1, Zsoka Aff., ¶ 6). The witnesses were Chris Valencia, Javier Hernandez, Melinda Hobbs, and Michael Salaiz. (UMF 8, Doc. 37-1, ¶5).[4] Zsoka also reviewed “police reports in detail and determined that probable cause existed for the filing of criminal charges” against Torres. (UMF 10, Doc. 37-1, ¶ 8).

         On July 21, 2015, Zsoka approved a criminal complaint for filing in the Grant County magistrate court prepared by Detective Hobbs charging Torres with a single count of shooting at or from a motor vehicle contrary to N.M. Stat. Ann. § 30-3-8(B). (UMF 11, Doc. 37-1, ¶¶ 3-4). Zsoka based his approval on Detective Hobbs' sworn statement. (Id.). By agreement of the parties, a nolle prosequi was later filed allowing Zsoka to charge Torres in the Sixth Judicial District Court. Zsoka prosecuted the case in the state district court until the charge was dismissed following a preliminary hearing on March 17, 2016. (UMF 12; Doc. 1-1, ¶ 50). Zsoka undertook no other activity in connection with the criminal matter. (UMF 14-24, Doc. 37-1, ¶¶10-18).

         On July 25, 2017, Torres commenced this federal action alleging various civil rights violations under federal and state law against multiple individuals and entities. (Doc. 1). As it relates to Zsoka, Torres' multicount complaint asserts Zsoka maliciously prosecuted him in violation of Fourth Amendment (Count II); and intentionally and/or negligently failed to conduct a proper investigation, gather evidence, “spoiled” and/or destroyed evidence, and initiated criminal proceedings knowing they lacked probable cause (Count IV). (Id.) On December 22, 2017, Zsoka filed the instant motion for summary judgment (Doc. 37) to which Torres responded on February 19, 2018 (Doc. 48). Zsoka submitted a reply (Doc. 64), and briefing is now complete.


         The 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). “When applying this standard, [the Court] view[s] the evidence and draw[s] reasonable inferences therefrom in the light most favorable to the nonmoving party.” Gutierrez v. Cobos, 841 F.3d 895, 900 (10th Cir. 2016). This traditional standard applies to the assertion of prosecutorial immunity. Where qualified immunity is concerned, however, “the plaintiff . . . bear[s] the ultimate burden of persuasion at trial” and at the summary judgment stage, the Court must “grant qualified immunity unless the plaintiff can show [with record evidence] (1) a reasonable jury could find facts supporting a violation of a constitutional right, which (2) was clearly established at the time of the defendant's conduct.” Id.


         State prosecutors are immune from suits for money damages when they act as “officer[s] of the court in a quasi-judicial role.” Mink v. Suthers, 482 F.3d 1244, 1258 (10th Cir. 2007). Where a prosecutor initiates or presents a case in court or undertakes activities that are “intimately associated with the judicial phase of the criminal process, ” a plaintiff is barred from recovery. Id. This “absolute immunity, ” however, does not extend to a prosecutor who serves as an administrator or police investigator, rather than an advocate. See Imbler v. Pachtman, 424 U.S. 409, 430 (1976). To determine whether absolute immunity applies, the Tenth Circuit employs a “functional approach, ” which focuses on “the nature of function performed, not the identity of the actor who performed it.” Mink, 482 F.3d at 159. In this case, Zsoka bears the burden of “showing that [immunity] is justified by overriding considerations of public policy.” Forrester v. White, 484 U.S. 219, 224 (1988).

         Although a state prosecutor who performs “police-like” functions is not entitled to absolute protection, the prosecutor still enjoys a “qualified immunity.” Stanley v. Gallegos, 852 F.3d 1210, 1217 (10th Cir. 2017). This immunity “shields government officials performing discretionary functions 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.” Id. at 1227 (internal alterations omitted) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). To overcome qualified immunity, the plaintiff must prove (1) that the defendant violated plaintiff's constitutional rights, and (2) the right at issue was clearly established at the time of the violation. Pearson v. Callahan, 555 U.S. 223, 236 (2009).

         Immunity analysis

          Count I of the complaint alleges that Zsoka violated Torres' Fourth Amendment rights by maliciously prosecuting him. Zsoka “recklessly misrepresented the truth and/or forwarded deliberate falsehoods in initiating a criminal complaint and action against Plaintiff without probable cause.”[5] (Doc. 1, ¶72). Zsoka also allegedly fabricated and filed an affidavit based on reckless or deliberately falsely information, ” which “excluded known, exculpatory evidence.” (Id.). Zsoka adduces record support that contradicts these allegations. It appears to the Court that all Zsoka did in connection with Torres' criminal case is review witness statements, approve a criminal complaint filed in the magistrate court, and then later initiate charges in the state district court after the matter was dismissed in the magistrate court. In district ...

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