United States District Court, D. New Mexico
MAJESTIC HOWARD, individually, and MAJESTIC HOWARD as Guardian of MAJESTY HOWARD, MAJESTIC HOWARD, JR., and KARISMA STRONG, Plaintiff,
CITY OF ALBUQUERQUE; OFFICER JONATHAN FRANCO, individually; OFFICER BEN DAFFRON, individually; OFFICER JOSHUA CHAFIN, individually, and SONNY MOLINA, individually, Defendants.
Gorence Louren Oliveros Amye Gayle Green Gorence &
Oliveros, P.C. Albuquerque, New Mexico Attorneys for the
Jessica Lynn Nixon Assistant City Attorney Office of the City
Attorney Albuquerque, New Mexico Attorney for Defendant City
M Martinez Law Firm of Jonlyn M. Martinez Albuquerque, New
Mexico Attorney for Defendant
Jonathan Franco David Anthony Roman Robles Rael & Anaya
PC Albuquerque, New Mexico Attorney for Defendants Ben
Daffron, Joshua Chafin, and Sonny Molina
MEMORANDUM OPINION 
MATTER comes before the Court on the Motion to Stay.
The Court held a hearing on June 5, 2018. The primary issue
is whether the Court should stay the case for a determination
of Plaintiff Majestic Howard's competency after the
Honorable Judge Pedro G. Rael, District Judge for the
Counties of Cibola, Sandoval, and Valencia, Thirteenth
Judicial District Court, State of New Mexico, declared
Howard, a defendant in a state criminal trial, incompetent
and while Howard awaits results of guardianship proceedings
before the Honorable Carl J. Butkus, District Judge for the
County of Bernalillo, Second Judicial District Court, State
of New Mexico. The Court granted the Motion to Stay on August
6, 2018 in its Order, filed August 6, 2018 (Doc. 61), because
questions about Howard's competency put his counsel in
the case in a difficult position, and the Defendants could
obtain the discovery they desire after Howard resolves
competency questions. The Court stays the case in federal
court pending a determination of Howard's competency and
orders the parties to provide the Court case status reports
every forty-five days.
Court takes its facts from the Complaint for Violations of
Civil Rights Pursuant to 42 U.S.C. §§ 1983 and 1988
and the New Mexico Tort Claims Act and for Damages,
D-202-CV-2017-04545 (Second Judicial District Court, County
of Bernalillo, State of New Mexico, filed June 23, 2017),
filed in federal court August 21, 2017 (Doc.
1-1)(“Complaint”). The Court provides these facts
for background. It does not adopt them as the truth, and it
recognizes that these facts are largely Howard's version
and a half before the events disputed in this matter, on
September 14, 2015, Howard received a gunshot to the head.
See Complaint ¶ 18, at 4; Motion to Stay at 1.
To address the injury, a surgeon removed part of Howard's
skull. See Complaint ¶ 18, at 4; Motion to Stay
at 1. The incident and operation left Howard especially
vulnerable to head injuries, and Howard alleges that the
Individual Defendants -- officers Jonathon Franco, Ben
Daffron, Joshua Chaffin, and Sonny Molina -- knew this
vulnerability when the encounter leading to this dispute
occurred. See Complaint ¶ 18, at 4; Motion to
Stay at 1.
interaction at issue here resulted when Howard activated a
bait vehicle on October 30, 2015. See Complaint
¶ 12, at 3. After initially fleeing the Individual
Defendants -- officers Franco, Daffron, Chaffin, and Molina,
Howard sat with his hands raised. See Complaint
¶¶ 13-14, at 3. At that point, Defendants Franco
and Molina “forcibly pulled” and pinned Howard to
the ground. Complaint ¶ 15. Franco and Daffron proceeded
to strike Howard several times, while Daffron -- as Franco
struck Howard, Chaffin, and Molina stood by, verbally abusing
Howard and not intervening. See Complaint ¶ 15,
at 3; id. ¶ 17, at 4; id. ¶¶
20-23, at 4. During the encounter, Howard lost consciousness.
See Complaint ¶ 24, at 4. While the Individual
Defendants asked Howard if he required medical attention, an
Individual Defendant opined that they should not take Howard
to the hospital. See Complaint ¶ 24, at 4.
According to Howard, he suffered serious injuries from the
excessive force that the Individual Defendants employed.
See Complaint ¶¶ 39-40, at 7. The
Individual Defendants did not properly report the incident,
and the Albuquerque, New Mexico Police Department
(“APD”) did not take appropriate investigatory or
disciplinary action, or address repeated excessive force
incidents within the APD. See Complaint ¶¶
26-40, at 5-7. According to Howard, he did not threaten the
Individual Defendants. See Complaint ¶ 16, at
August 14, 2017, Judge Rael found Howard incompetent for
trial in a New Mexico criminal case, Cause Number
D-1333-CR-201600160. See State of New Mexico v. Majestic
Howard, D-1333-CR-201600160, Nolle Prosequi at 1
(Thirteenth Judicial District, County of Cibola, New Mexico,
filed March 14, 2017), filed in federal court March 12, 2018
(Doc. 32-1). The Honorable Charles Brown, District Judge for
the County of Bernalillo, Second Judicial District Court,
State of New Mexico, also found Howard incompetent for
criminal court in October, 2017. See Plaintiffs
Reply to Defendant Franco's Response in Opposition to
Plaintiffs' Motion to Stay Proceedings Pending
Determination of Competency and Memorandum in Support at 2,
filed April 6, 2018 (Doc. 42)(“Motion to Stay
Reply”). Currently, Judge Butkus has a guardianship
and conservatorship proceeding for Howard pending before him.
See Motion to Stay at 2. Howard had a hearing in the
proceeding on February 23, 2018. See Motion to Stay
filed suit on June 23, 2017, alleging: (i) that the
Individual Defendants' excessive force violates 42 U.S.C.
§ 1983, see Complaint ¶¶ 41-49, at
7-8; (ii) that the City of Albuquerque's policies,
practices and customs condoning such conduct violates 42
U.S.C. § 1983, see Complaint ¶¶
50-56, at 8-9; and (iii) that the Individual Defendants'
actions create liability for a loss of consortium,
see Complaint ¶¶ 57-60, at 9-10. On August
21, 2017, the Defendants removed the case to federal court
under federal-question jurisdiction. See Notice of
Removal ¶¶ 1-10, at 1-3, filed August 21, 2017
Motion to Stay.
March 12, 2018, Howard filed the Motion to Stay, requesting a
stay in the proceeding pending a determination of his
competency under N.M. Stat. Ann. § 45-4-310.
See Motion to Stay at 1. Howard cites the gunshot
wound, and injuries from Daffron and Franco, as causing his
incompetency. See Motion to Stay at 3. Howard
explains that, around August 14, 2017, Judge Rael found him
incompetent for criminal trial, and he awaits a decision in
guardianship proceedings before Judge Butkus. See
Motion to Stay at 2. Howard's counsel in this matter
represent him in the guardianship proceedings and have
concluded that he lacks competency to prosecute this case.
See Motion to Stay at 2. Howard cites Bruce v.
Giconi, No. 14-CV-03232-RM-NYM, 2015 WL 8959480, at *2
(D. Colo. Dec. 16, 2015)(Wang, M.J.); Galindo v. American
Paramedical, Services, No. 04-01108-CV-W-FJG, 2008 WL
2620885, at *1-3 (W.D. Mo. June 30, 2008)(Gaitan, C.J), and
Mil'chamot v. New York City Housing Authority,
No. 15 CIV 108 (PAE), 2016 WL 659108, at *4 (S.D.N.Y. Feb.
16, 2016)(Engelmayer, J.) to illustrate that courts have
granted motions to stay when issues of competency arise.
See Motion to Stay at 3.
Motion to Stay Response.
responded to the Motion to Stay in Defendant Franco's
Response in Opposition to Plaintiff's Motion to Stay
Proceedings Pending Determination of Competency, filed March
23, 2018 (Doc. 35)(“Motion to Stay Response”).
Franco doubts Howard's incompetency. See Motion
to Stay Response at 1-2. Franco reasons that Howard's
counsel deemed Howard competent when filing suit and then
withheld from addressing Howard's competency in a timely
manner in the federal case given that the criminal trial and
guardianship proceeding raise the competency issue.
See Motion to Stay Response at 1-2. Franco also
contends that Howard requests an extension on Franco's
Motion to Unseal Criminal Records with no explanation.
See Motion to Stay Response at 3. Franco
differentiates the cases that Howard cites from the facts in
the present matter: (i) in Bruce v. Giconi, a pro se
plaintiff brought suit, so counsel did not initiate a suit,
see Motion to Stay Response, at 4-5 (citing 2015 WL
8959480, at *1); (ii) in Galindo v. American Paramedical,
Services, counsel questioned the plaintiff's
competency when a criminal trial began later than the civil
proceeding, see Motion to Stay Response at 5 (citing
2008 WL 2620885, at *1); and (iii) in Mil'chamot v.
New York City Housing Authority, a pro se plaintiff
raised his own incompetence after filing suit, see
Motion to Stay Response at 6 (citing 2016 WL 659108, at *4).
Franco complains about further delaying the case and
requests, at least, discovery on Howard's competency.
See Motion to Stay Response at 7-8.
Motion to Stay Reply.
reply to Franco's Motion to Stay Response, Howard files
the Motion to Stay Reply. Howard explains that his counsel
commenced the guardianship proceedings shortly following
Judge Rael's incompetency finding. See Motion to
Stay Reply at 1-2. Further, Howard argues that Franco's
complaints support staying the proceeding; Howard's
incompetency prevents him from participating in the case,
including from answering discovery. See Motion to
Stay Reply at 2.
Motion to Compel and the Motion to Unseal Criminal
March 10, 2018, Franco filed the Defendants' First Motion
to Compel Initial Disclosures, Discovery Responses, Costs and
Fees, filed March 10, 2018 (Doc. 29)(“Motion to
Compel”), asking the Court to compel from Howard
complete initial disclosures -- namely, healthcare providers,
HIPPA compliant releases, and damages calculations -- and
responses to interrogatories and requests for production.
Motion to Compel at 1-2. Franco contends that Howard has
responded to no discovery requests. See Motion to
Compel at 5. On March 12, 2018, Franco filed the Motion to
Unseal Criminal Records Concerning Plaintiff Majestic
Howard's Competency Proceedings, filed March 12, 2018
(Doc. 30)(“Motion to Unseal Criminal Records”).
Franco asks to unseal documents about Howard's competency
from nine criminal cases, because: (i) Howard has not
responded to Franco's discovery requests; (ii) Howard
retained competency to file the present case; (iii) Howard
has alleged incompetency in several cases proceeding this
one; (iv) Franco cannot evaluate the Motion to Stay without
the requested documents; and (v) Howard puts his competency
at issue. See Motion to Unseal Criminal Records at
Court held a hearing on the Motion to Stay on June 5, 2018.
The Court indicated that it planned to grant the Motion to
Stay, because: (i) Howard's counsel would not likely
manufacture an incompetency, which “create a lot of
problems” for plaintiffs, Transcript of Hearing at
5:19-21 (taken June 5, 2018)(Court) (“Tr.”),
(ii) rule 17(c) of the Federal Rules of Civil Procedure
requires courts to ensure plaintiff's competency,
see Tr. at 6:4-6 (Court). The City of Albuquerque,
Daffron, Chalin, and Molina contended that the Defendants
cannot evaluate the reason for the stay or Howard's
incompetency. See Tr. at 6:19-22 (Nixon);
id. at 8:18-19 (Roman); id. at 8:25-9:1
(Roman). The City argued that Howard has alleged incompetency
in proceedings since 2010, and Howard ignored the
Defendants' discovery requests until he notified them of
the incompetency issue. See Tr. at 6:23-7:12
(Nixon). The Court asked “what concern” the delay
in discovery raises, because “[i]t's hard for
[Howard's counsel] to get the discovery into [the
Defendants'] hands” if Howard is incompetent. Tr.
at 7:13-18 (Court). The City of Albuquerque contended that
filing suit is inconsistent with asserting incompetency.
See Tr. at 7:23-8:9 (Nixon).
contended that he doubted Howard's incompetence based on
the timeline leading to the hearing. See Tr. at
12:19-14:7 (Martinez). Franco also opposed delaying the trial
and complained that he could not obtain discovery.
See Tr. at 17:15-24 (Martinez); id. at
15:7-16:6 (Martinez). Franco explained:
So the problem in this case, Your Honor, is that the
competency issue was raised well after the [D]efendants
provided discovery requests to the [P]laintiff. And so this
proceeding has been delayed. [There] has been no evidence at
all before this Court that the [P]laintiff is incompetent.
And the [D]efendants have been deprived of the evidence
submitted under seal and in a separate proceeding. So we
can't even evaluate the appropriateness of the
Tr. at 17:15-24 (Martinez). Franco cited Regency Health
Services v. Superior Court, 76 Cal.Rptr.2d 95
(Cal.Ct.App. 1998) for the proposition that plaintiffs cannot
use incompetency to avoid discovery:
Here, plaintiff seeks to avoid these common discovery duties
by not answering at all. Although particularized protective
orders can be appropriate in special circumstances,
plaintiffs claim of a generalized exemption from discovery on
the basis of incompetency is unprecedented and unsupportable.
We hold therefore that a ward has no general right to evade
discovery, and that a guardian ad litem has the authority to
subject to the court's ultimate supervision to verify
proper responses to interrogatories on behalf of the board.
Tr. at 16:25-17:14 (Martinez)(citing Regency Health
Servs. v. Superior Court, 76 Cal.Rptr.2d at 100).
counsel contended that they believed in good faith that
Howard was competent when he filed suit. See Tr. at
26:9-13 (Gorence). They described their last meeting with
Howard: “[H]e did not recognize [counsels' names],
did not understand what was happening with regard to the
representation in any of these cases.” Tr. at 9:23-10:1
(Gorence). Howard's counsel explained that they initiated
the guardianship proceeding on November 20, 2017.
See Tr. at 10:7-10 (Gorence). Judge Butkus appointed
a Guardian ad Litem on February 23, 2018, and a court
visitor on May 14, 2018, but Judge Butkus had yet
to decide whether to appoint a permanent guardian.
See Tr. at 10:11-11:2 (Gorence). In response to the
Court's prompting, Howard confirmed that he did not
expect that the Court would make a competency decision
-rather, a guardian ad litem would prosecute the case.
See Tr. at 11:10-21 (Gorence). Addressing the
Defendants' concerns about the documents under seal in
state criminal proceedings, Howard argued that the
guardianship proceeding involved confidential mental health
concerns, and Howard could share the information after the
proceeding, when the parties could re-litigate the issue
before the Court. See Tr. at 26:19-27:17 (Gorence).
objected to relying on the state court's incompetency
findings. See Tr. at 14:12-15:6 (Martinez).
According to Franco, courts find defendants in New Mexico
criminal cases competent if the defendants “can
understand the nature and significance of the criminal
proceedings against [them] . . ., ha[ve] a factual
understanding of the criminal charges, and . . . [are] able
to assist [their] attorney[s] in [their] defense[s].”
Tr. at 14:12-16 (Martinez) (citing N.M. Stat. Ann. §
14-5-104). Franco contended that rule 17(c)
“contemplate[s] that the plaintiff is unrepresented,
” Tr. at 14:18-19 (Martinez), and, in New Mexico civil
cases, courts presume parties' “competence, ”
Tr. at 14:23-15:6 (Martinez) (citing N.M. ...