United States District Court, D. New Mexico
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,
TOWN OF SILVER CITY, GRANT COUNTY, ED REYNOLDS, RICKY VILLALOBOS, THE ESTATE OF MARCELLO CONTRERAS, DEPUTY JACOB VILLEGAS, SGT. FRANK GOMEZ, AND DETECTIVE ADAM ARELLANO, Defendants.
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART COUNTY DEFENDANTS' MOTION FOR SUMMARY
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.
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.
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
Count V: Fourth Amendment Illegal Entry against Arellano and
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
filed a motion for summary judgment on the above claims and
asserted qualified immunity on the constitutional violation
claims (Counts III, V, and VII).
STANDARD FOR COUNTS III, V, and VII
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).
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
“[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
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.
FOR QUALIFIED IMMUNITY ANALYSIS
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
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
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.
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.
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.
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.
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
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
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.
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
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
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.
this encounter, Sgt. Gomez apparently contacted SCPD. Chief
Reynolds of SCPD testified and identified on a call log a
conversation with Sgt. Gomez.
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.
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.
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.
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.
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.
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
Count VII: ...