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Dalton v. Town of Silver City

United States District Court, D. New Mexico

November 14, 2018

KARRI DALTON, as the personal representative of the Estate of Nikki Bascom, And Next Friend to M.B., a minor Child, and A.C., a minor child, Plaintiff,


         THIS MATTER comes before the Court upon Defendants Grant County's, Deputy Jacob Villegas', Sgt. Frank Gomez's, and Deputy Adam Arellano's (the “County Defendants'”) Motion for Summary Judgment, filed on April 13, 2018 (Doc. 29). Having reviewed the parties' pleadings and the applicable law, the Court finds that Defendants' motion is well-taken in part and, therefore, is GRANTED IN PART and DENIED IN PART.


         These claims arise out of Nikki Bascom's murder by her ex-boyfriend, Silver City Police Department Captain Marcello Contreras. Grant County Sherriff's Department (“GCSD”) officers Sgt. Gomez, Deputy Villegas and Detective Arellano were investigating certain domestic disturbance claims against him by victims Nikki Bascom and Dr. Darrick Nelson. On April 21, 2016, Captain Contreras shot and killed Ms. Bascom, and then himself. Plaintiff's claims arise out of her allegations that the Defendants failed to protect Ms. Bascom and otherwise violated Ms. Bascom's constitutional rights.

         On behalf of Ms. Bascom's estate and her minor children, Plaintiff filed this case under 42 U.S.C. § 1983 and the New Mexico Tort Claims Act, alleging the following relevant claims against the County Defendants:

Count III: Fourth Amendment Unlawful Entry against the Estate of Contreras and Deputies Gomez and Villegas, and Grant County;
Count V: Fourth Amendment Illegal Entry against Arellano and Grant County;
Count VII: Equal Protection against Defendants Arellano, Gomez and Villegas;
Count XI: Negligence Resulting in Battery; and
Count XII: Deprivation of Statutory Rights Resulting in Wrongful Death.

         Defendants filed a motion for summary judgment on the above claims and asserted qualified immunity on the constitutional violation claims (Counts III, V, and VII).


         The individual County Defendants have asserted the defense of qualified immunity for Counts III, V, and VII, 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.

         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).

         To be clear, “[i]n determining whether the plaintiff meets this burden, [the Court] ordinarily accept[s] the plaintiff's version of the facts-that is, the facts alleged.” Halley v. Huckaby, 902 F.3d 1136, 1144 (10th Cir. 2018) (quotation marks omitted). However, Plaintiff's versions of the facts must find support in the record. Id.


         The Silver City Police Department (“SCPD”), not associated with the Grant County Defendants, was called out on March 9, 2016 to a domestic disturbance between Ms. Bascom and Cpt. Contreras. Ms. Bascom's son reported that Cpt. Contreras had threatened suicide. Although SCPD apparently made no record of the incident, Dr. Darrick Nelson, Ms. Bascom's boss, told Sgt. Gomez and Deputy Villegas on April 19 that after the incident saw “alarming bruises” on her. Doc. 49-5, p. 7 of 19.

         However, there is no evidence in the record that Ms. Bascom ever told Sgt. Gomez or Deputy Villegas that Cpt. Contreras battered her. See Lapel Video of Deputy Villegas.

         Sometime after his threatened suicide, Cpt. Contreras apparently moved out of their shared residence. Ms. Bascom told the County Defendants that he moved out in early March, but Cpt. Contreras told them he still lived there.[2]

         On April 21, 2016 Ms. Bascom reported to the SCPD that Cpt. Contreras had (1) cut her off to stop her while driving and forced her to the side of the road; (2) he was on duty and in uniform, and (3) Cpt. Contreras accused her of “fucking her boyfriend” and ripped the phone from her hand. SCPD apparently did not document this incident.

         The County Defendants knew Cpt. Contreras, and Det. Arellano had previously worked with Cpt. Contreras. From the lapel video, it was clear they were on friendly terms.

         Cpt. Contreras had, at various times, confronted Dr. Nelson, including at Dr. Nelson's home and outside of a Walgreens store. He accused Dr. Nelson of having an affair with Ms. Bascom. Dr. Nelson alleged that Cpt. Contreras threatened him, including putting his hand on his firearm.

         On the morning of April 21, 2016, Ms. Bascom reported to SCPD that while driving Cpt. Contreras had cut her off and stop her, he was on duty and in uniform, and he accused her of “fucking her boyfriend” and ripped her phone from her hand. She apparently only told Sgt. Gomez and Deputy Villegas that Cpt. Contreras had stopped her. Sgt. Gomez, in deposition testimony, stated that an officer can stop a relative.

         Later on April 21, Ms. Bascom called the County Defendants out to her house. She believed Cpt. Contreras was following her to her home, and she wanted Cpt. Contreras out of her home. Sgt. Gomez and Deputy Villegas responded. Chief Reynolds of the SCPD, Cpt. Contreras' boss, had already met Cpt. Contreras at the home and had placed him on administrative leave, but had already left when Sgt. Gomez and Deputy Villegas arrived.

         When Sgt. Gomez and Deputy Villegas arrived, both Cpt. Contreras and Ms. Bascom were at the house. They first talked to Cpt. Contreras. He stated that he lived at the house but acknowledged that Ms. Bascom didn't want him there. However, he stated that the home was owned by Ms. Bascom's father.

         They then talked to Ms. Bascom separately. They did not ask her about her previous reports. She told them that Cpt. Contreras had stopped her earlier, but apparently not that he had taken her phone. Sgt. Gomez told Ms. Bascom to ask for the County Defendants when she called 911, because GSCD was handling her reports.

         All three individual County Defendants testified that it was Grant County policy that once a person establishes residency by staying in the dwelling for thirty days, the owner of the residence cannot ask the person to leave unless civilly evicted. Cpt. Contreras knew this policy. Based on this policy, the County Defendants told Ms. Bascom it was legal for Cpt. Contreras to be in her home, and they could not remove him.

         Sgt. Gomez and Deputy Villegas counseled her to go to a shelter, El Refugio. They stated that the shelter could aid her in preparing forms for a restraining order. However, they did not offer to get her an emergency restraining order or offer to escort her to the shelter.

         After this encounter, Sgt. Gomez apparently contacted SCPD. Chief Reynolds of SCPD testified and identified on a call log a conversation with Sgt. Gomez.

         Ms. Bascom went to the shelter. She called 911, and Det. Arellano was dispatched to the shelter at the beginning of his shift. Ms. Bascom believed that Cpt. Contreras was following her there or would be at the shelter. Det. Arellano stood the entire time he spoke to Plaintiff, which was against training. At the shelter, she recounted much of what had already been reported to either SCPD or other County Defendants. For example, she told Det. Arellano that Cpt. Contreras had stopped her and taken her phone. She told him that she had wanted county officers at her house, because she was afraid. She stated that he refuses to leave her house, and that they had lived together for three years. She stated that they shared a residence, but also stated that she had the locks changed at the beginning of March and that he didn't have a key. Det. Arellano told her that because he established residency, they couldn't make him leave, but that she could get a restraining order to make him leave.

         Det. Arellano confirmed that there was no new incident for him to act on, and that everything had already been reported. Det. Arellano apparently did nothing to ensure that Cpt. Contreras was investigated or that he was arrested.

         After Det. Arellano left, the victim's advocate, who was present during the meeting, apologized for his demeanor. Ms. Bascom left the shelter to get her son and her belongings. However, it appears that the County Defendants were not aware that she left the shelter.

         At shift change, Sgt. Gomez briefed Sgt. Yost that Cpt. Contreras had either assaulted or harassed Dr. Nelson, that either Sgt. Gomez or Deputy Villegas was going to do a report on the incident, and that either Sgt. Gomez or Deputy Villegas was going to seek the district attorney's input on any charges against Cpt. Contreras. He also stated that he had issued a criminal trespass warning to Cpt. Contreras for Dr. Nelson's house, and that he had advised Ms. Bascom to go to the shelter.

         After she left, Dr. Nelson called to report that he had seen Cpt. Contreras near his home. Sgt. Yost responded and patrolled around Dr. Nelson's house. Around 4:05 p.m. Sgt. Yost saw Cpt. Contreras' truck and followed him to prevent him from further harassing Dr. Nelson. Sgt. Yost was not aware that Cpt. Contreras had threatened suicide previously, that he had previously threatened Dr. Nelson, or that he had been entering Ms. Bascom's home without her permission. Sgt. Yost believed he could not stop Cpt. Contreras because he did not have probable cause, and there was no warrant out for Cpt. Contreras' arrest. He stopped following Cpt. Contreras after about four or five minutes.

         Cpt. Contreras pulled up behind Ms. Bascom and her friend, who were in separate cars, outside the friend's house. Ms. Bascom's children were in her friend's car, and she screamed at her friend to leave. Cpt. Contreras then shot her and himself.


         I. Count VII: ...

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