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Howard v. City of Albuquerque

United States District Court, D. New Mexico

October 9, 2018

MAJESTIC HOWARD, individually, and MAJESTIC HOWARD as Guardian of MAJESTY HOWARD, MAJESTIC HOWARD, JR., and KARISMA STRONG, Plaintiff,
v.
CITY OF ALBUQUERQUE; OFFICER JONATHAN FRANCO, individually; OFFICER BEN DAFFRON, individually; OFFICER JOSHUA CHAFIN, individually, and SONNY MOLINA, individually, Defendants.

          Robert Gorence Louren Oliveros Amye Gayle Green Gorence & Oliveros, P.C. Albuquerque, New Mexico Attorneys for the Plaintiff

          Jessica Lynn Nixon Assistant City Attorney Office of the City Attorney Albuquerque, New Mexico Attorney for Defendant City of Albuquerque

          Jonlyn 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 [1]

         THIS 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.

         FACTUAL BACKGROUND

         The 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 of events.

         A month 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.

         The interaction at issue here resulted when Howard activated a bait vehicle on October 30, 2015.[2] 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 4.

         On 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”).[3] 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 at 2.

         PROCEDURAL BACKGROUND

         Howard 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 (Doc. 1).

         1.The Motion to Stay.

         On 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.

         3.The Motion to Stay Response.

         Franco 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.

         4.The Motion to Stay Reply.

         In 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.

         2.The Motion to Compel and the Motion to Unseal Criminal Records.

         On 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,[4] 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 2.

         5.The Hearing.

         The 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.”), [5] and (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).[6] 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).

         Franco 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 submission.

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).

         Howard's 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[7] 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).

         Franco 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. ...


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