Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Brown v. City of Las Cruces Police Department

United States District Court, D. New Mexico

May 7, 2018

DAVALOUS JAMON BROWN, Plaintiff,
v.
CITY OF LAS CRUCES POLICE DEPARTMENT, CITY OF, DOÑA ANA COUNTY SHERIFF DEPARTMENT; DOÑA ANA COUNTY DETENTION CENTER; CHASE DUVANELL; BRAD LUNSFORD; ENRIQUE KIKI VIGIL; JAIME MONTOYA; KENNETH DANIEL GALLEGOS MIYAGISHIMA and CHRIS BARELA, Defendants.

          Davalous Jamon Brown Southern New Mexico Correctional Facility Las Cruces, New Mexico Plaintiff pro se

          Roberto A. Cabello City Attorney's Office Las Cruces, New Mexico Attorney for Defendants Las Cruces Police Department, Brad Lunsford, Jaime Montoya, Kenneth Daniel Gallegos Miyagishima

          Damian L. Martinez Holt Mynatt Martinez P.C. Las Cruces, New Mexico Attorneys for Defendants Doña Ana County Sheriff's Department, Chase Thouvenell

          MEMORANDUM OPINION AND ORDER

         THIS MATTER comes before the Court on: (i) the Defendant Chase Thouvenell's Motion to Dismiss Plaintiff's Complaint (Doc. 1-1), filed September 21, 2017 (Doc. 3) (“Thouvenell's First Motion to Dismiss”)[1]; (ii) the Amended Defendant Chase Thouvenell's Motion to Dismiss Plaintiff's Complaint (Doc. 1-1), filed October 3, 2017 (Doc. 5) (“Thouvenell's Amended Motion To Dismiss”); (iii) the Defendant Sheriff Enrique “Kiki” Vigil and the Dona Ana County Sheriff's Department's Motion To Dismiss Plaintiff's Complaint (Doc. 1-1), filed October 3, 2017 (Doc. 6)(“County's Motion to Dismiss”); (iv) the Plaintiff's Response and Motion to Oppose Defendant's Motion to Dismiss and for Enlargement and Extension of Time to File All Response and Other Pleadings and for Permission to Give Leave to Amend and Supplement Pleadings And Motion to Stay the Proceedings and Hold in Abeyance for Plaintiff to Acquire Appointment of Counsel, filed January 2, 2018 (Doc. 13)(“Brown's Surreply and Motion to Amend and Stay”); and (v) the Defendants' Joint Motion to Strike Plaintiff's Response and Motion to Oppose the Defendant's Motion to Dismiss Et Seq (Doc. 13), filed January 24, 2018 (Doc. 15)(“Defendants' Joint Motion to Strike”). Plaintiff Davalous Jamon Brown is incarcerated, appears pro se, and is proceeding in forma pauperis. For the reasons explained below, the Court will deny Thouvenell's First Motion to Dismiss as moot, grant in part and deny in part Thouvenell's Amended Motion to Dismiss, the requests in the Plaintiff's Surreply and Motion to Amend and Stay, and deny the Defendants' Joint Motion to Strike.

         FACTUAL BACKGROUND

         According to the Complaint, Defendant Chase Thouvenell “entrapped” Brown on July 12, 2014 by “using [his girlfriend] as bait in order to effectuate” an unlawful seizure and arrest. Complaint (Tort) ¶ 5, at 3, filed August 9, 2017 in First Judicial District Court, County of Santa Fe, State of New Mexico, filed in federal court September 14, 2017 (Doc. 1-1)(“Complaint”). Brown's girlfriend “duped [Brown] into believing that she wanted him to take a shower to clean up [his] leg injuries from a physical altercation” the prior night. See Complaint ¶ 5, at 3. While Brown was in the shower, Thouvenell entered the bathroom and pointed a Taser directly at him. Brown was “in shock and in fear for his life and his welfare, ” so he “reacted through the use of self defense and disarmed the deputy officer, secured the taser, [and] ran out of the house completely naked, ” discarding the taser in the neighboring yard. See Complaint ¶ 5, at 4. As Brown fled, Thouvenell pursued him, firing gunshots. See Complaint ¶ 5, at 4.

         Brown “ran and hid under a nearby Mobile home, ” while police “backup . . . arrived onto the scene.” Complaint ¶ 5, at 4. One of the backup officers was Defendant Brad Lunsford. See Complaint ¶ 5, at 4. Thouvenell “screamed and yelled out to Police Officer Brad Lunsford . . . ‘shoot him, shoot him, shoot that black mother f*****.'” Complaint ¶ 5, at 4. Lunsford shot at Brown three times, and “the third projectile . . . struck [Brown] in the rear lower calf of his right leg, causing emotional and serious permanent bodily injury.” Complaint ¶ 5, at 5. “Upon suffering the gunshot wound, ” Brown “was forced to run and hide for safety, ” so he “retreated back inside” his girlfriend's house. Complaint ¶ 5, at 5. Brown remained in the house for the next three hours, tending to his gunshot wound, and “advising the assaulting law enforcement officers that he had ‘been shot unjustly' and ‘was afraid to come out of the house . . . and in fear for his life and welfare.'” Complaint ¶ 5, at 5.

         “[S]hortly thereafter, the SWAT team was called and arrived onto the scene under the authoritative direction and commands of” Defendant Jaime Montoya. Complaint ¶ 5, at 5. “The SWAT team then shot out the windows” of the house “in which [Brown] was seeking refuge . . . and then threw a steam ball grenade into the window subjecting [Brown] to undue poisonous and harmful gas chemical agents.” Complaint ¶ 5, at 5. Shortly after “deploying the chemical agents . . . the SWAT team breached the house and made entry with the K-9 law enforcement officer dog in which dog was released by the SWAT team K-9 handler.” Complaint ¶ 5, at 6. The “law enforcement officer dog proceeded to bite, rip, tear, and gnaw upon the plaintiff's flesh, ” injuring his chest and right hand. Brown “reacted by utilizing self defense so as to subdue the dog.” Complaint ¶ 5, at 6. At that point, “several SWAT team law enforcement officers” arrived, and they proceeded “to punch, kick, and stomp all upon [Brown's] face, cranium, back, chest, and legs.” Complaint ¶ 5, at 5. “After a severe beating and brutal assault, ” the “SWAT team then picked up [Brown] by his arms and drug him outside where he was then placed into an ambulance and transfer[red] to the El Paso Medical Center trauma unit.” Complaint ¶ 5, at 6. After a few hours of medical treatment, Brown was transferred from El Paso back to Las Cruces, where he was booked into the Defendant Doña Ana County Detention Center. See Complaint ¶ 5, at 6.

         Brown was in pretrial detention at the Doña Ana County Detention Center for approximately one and a half years. See Complaint ¶ 5, at 7. During his pretrial detention, Brown alleges that he was deprived of adequate medical care for his “serious bodily gunshot and canine dog bite injuries and open wounds.” Complaint ¶ 5, at 11. Specifically, Brown alleges that Defendants Doña Ana County Detention Center and Chris Barela ignored his “continuous medical request and doctor[']s orders for urgent and immediate medical care and doctor's order for occupational physical therapy.” Complaint ¶ 5, at 11.

         On October 15, 2015, Brown was acquitted of the following charges: “disarming a police officer, aggravated assault on a peace officer with intent to commit another felony, [and] assault on a K-9 Officer.” Complaint ¶ 5, at 7. Brown was convicted, however, of “two counts of a fourth degree non aggravated battery on a police officer.” Complaint ¶ 5, at 7.

         PROCEDURAL BACKGROUND

         Brown brought the Complaint in state court against the following Defendants: (i) the City of Las Cruces Police Department; (ii) Doña Ana County Sheriff Department; (iii) Doña Ana County Detention Center; (iv) Chase Duvanell, a deputy sheriff for the Doña Ana County Sheriff Department; (v) Brad Lunsford, a police officer for the Las Cruces Police Department; (vi) Enrique “Kiki” Vigil, a sheriff for the Doña Ana County Sheriff Department; (vii) Jaime Montoya, chief of police of the Las Cruces Police Department; (viii) Kenneth Daniel Gallegos Miyagishima, mayor of the City of Las Cruces; and (ix) Barela, jail administrator for the Doña Ana County Detention Center. See Complaint ¶ 4, at 1-2.

         Based on the foregoing facts, the Complaint appears to raise the following claims against the Defendants under the Constitution of the United States of America, the Constitution of New Mexico, and the New Mexico Tort Claims Act (“NMTCA”), N.M. Stat. Ann. § 41-4-1 to -30: (i) false arrest and false imprisonment; (ii) malicious prosecution (iii) excessive force; and (iv) failure to provide adequate and necessary medical care. See Complaint ¶ 1, at 1. The Complaint seeks compensatory damages in the amount of $400, 000.00, and “exemplary and punitive damages.” Complaint at 13.

         On September 21, 2017, Thouvenell filed Thouvenell's First Motion to Dismiss, which Thouvenell's Amended Motion to Dismiss superseded on October 3, 2017. Therefore, the Court will deny Thouvenell's First Motion to Dismiss as moot.

         In Thouvenell's Amended Motion to Dismiss, Thouvenell explains that the Complaint “erroneously spells Defendant Thouvenell's last name as Duvanell, ” because “the 2014 incident which is the subject of Plaintiff's complaint involved Thouvenell and since no individual named Duvanell has ever worked for the Dona Ana County Sheriff's Department.” Thouvenell's Amended Motion To Dismiss at 1 n.2. Brown does not dispute that Thouvenell's name is misspelled as Duvanell in the Complaint. See generally Plaintiff Response to Motion to Dismiss, filed December 4, 2017 (Doc. 10)(“Brown's Response”); Plaintiff's Response and Motion to Oppose Defendant's Motion to dismiss and for Enlargement and Extension of Time to File all Response and Other Pleadings and for Permission to give Leave to Amend and Supplement Pleadings and Motion to Stay the Proceedings and Hold in Abeyance for Plaintiff to Acquire Appointment of Counsel, filed January 2, 2018 (Doc. 13). The Court therefore will direct the Clerk of the Court to correct the caption to reflect the proper spelling of Thouvenell's last name.

         Thouvenell seeks to dismiss the Complaint pursuant to rules 10 and 12(b)(6) of the Federal Rules of Civil Procedure. See Thouvenell's Amended Motion to Dismiss at 1. Specifically, Thouvenell contends that the Complaint violates rule 10, because “it is not readily apparent . . . whether Plaintiff intends to bring claims against the” individual Defendants “in their official or individual capacity.” Thouvenell's Amended Motion to Dismiss at 2. Thouvenell also moves to dismiss the Complaint under rule 12(b)(6) because: (i) the Doña Ana County Sheriff Department and Doña Ana County Detention Center “are not individuals under Section 1983 and therefore, may not be sued”; and (ii) the applicable statutes of limitations bars Brown's claims under 42 U.S.C. § 1983 and the NMTCA. Thouvenell's Amended Motion to Dismiss at 6, 8-9. On October 3, 2017, Vigil and Doña Ana County Sheriff's Department adopted, pursuant to local rule 7.1 of the Local Civil Rules of the United States District Court for the District of New Mexico, the “defenses and arguments found in Defendant Thouvenell's Amended Motion To Dismiss.” County's Motion to Dismiss at 1.

         Brown did not file a timely response to Thouvenell's Amended Motion to Dismiss or County's Motion to Dismiss, and, therefore, on October 24, 2017 Thouvenell, Vigil, and Doña Ana County Sheriff's Department filed a notice of completion of briefing. See Notice of Completion of Briefing at 1, filed October 24, 2017 (Doc. 8); Notice of Completion of Briefing at 1, filed October 24, 2017 (Doc. 7); D.N.M.LR-Civ.7.4(e). Approximately one month later, Brown filed his response to Defendants' motions to dismiss. See Brown's Response at 1. Brown contends that he timely filed his Complaint on July 12, 2017 by placing it in Southern New Mexico Correctional Facility's mail system. See Brown's Response at 1. In support of this contention, Brown attached a receipt from the mailroom for postage to the First Judicial District of New Mexico in the amount of $1.60. See Brown's Response at 3. The receipt is dated July 12, 2017, but stamped “RECEIVED” on July 13, 2017, and July 19, 2017. See Brown's Response at 3. Alternatively, Brown contends that the statutes of limitations should be tolled from November 29, 2015, the day in which he was placed in the custody of the New Mexico Corrections Department (“NMCD”), because, he asserts, the NMCD deprives inmates of meaningful access to a law library and legal assistance. See Brown's Response at 2. Thouvenell, Vigil, and Doña Ana County Sheriff's Department respond that Brown has not identified sufficient facts to justify tolling the statutes of limitations, has failed to provide the declarations necessary to establish timely filing under the prisoner mailbox rule, and has “ignore[d] that there is no mailbox rule for state law claims.” Reply in Support of Defendants Chase Thouvenell, Sheriff Enrique “Kiki” Vigil, and the Doña Ana County Sheriff's Department's Motion to Dismiss (Docs. 5 and 6) Plaintiff's Complaint (Doc. 1-1) at 2, filed December 13, 2017 (Doc. 11)(“Reply”).

         On January 2, 2018, Brown filed his Surreply and Motion to Amend and Stay, in which Brown reiterates his contentions that his Complaint was timely filed pursuant to the prisoner mailbox rule, and, alternatively, that the statutes of limitations should be tolled because of his inability to gain meaningful access to a law library or legal assistance. See Brown's Surreply and Motion to Amend Stay at 1-3. Furthermore, in lieu of dismissal under Rules 10 and 12(b)(6) of the Federal Rules of Civil Procedure, Brown asks the Court to permit him to file an amended complaint pursuant to Rule 15. Last, Brown appears to ask the Court to excuse the late filing of his response pursuant to Rule 6 of the Federal Rules of Civil Procedure, and to grant him an “enlargement and extension of time to file all response and other pleadings” because he is proceeding pro se, he is in the process of acquiring and obtaining counsel, and he is being deprived of meaningful access to a law library and legal assistance. Brown's Surreply and Motion to Amend Stay at 4.

         On January 24, 2018, the Las Cruces Police Department, Lunsford, Montoya, Miyagishima, Thouvenell, Vigil and Dona Ana County Sheriff's Department moved to strike Brown's Surreply and Motion to Amend and Stay, because “it is an untimely surplus pleading ‘which requires leave of the Court' before filing pursuant to D.N.M.LR-Civ. 7.4(b).” Defendants' Joint Motion to Strike at 2. Additionally, the Defendants ask the Court to deny Brown's request to stay or to hold the case in abeyance, because rules 6 and 12(b)(6) of the Federal Rules of Civil Procedure do not provide authority to impose an unlimited stay of the proceedings, which would be prejudicial to Defendants. See Defendants' Joint Motion to Strike at 6-7. Last, the Defendants contend the Court should deny Brown's Surreply and Motion to Amend and Stay as futile, because the applicable statutes of limitations would bar any proposed amendments. See Defendants' Joint Motion to Strike at 7-8.

         ANALYSIS

         The Court first will address the Defendants' Joint Motion to Strike and Brown's Surreply and Motion to Amend and Stay. The Court will then proceed to consider ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.