United States District Court, D. New Mexico
ORDER GRANTING DEFENDANT JAIME SERRANO'S MOTION
FOR SUMMARY JUDGMENT AND DISMISSING COUNT III WITH
R. SWEAZEA UNITED STATES MAGISTRATE JUDGE
MATTER comes before the Court on Defendant Officer
Jaime Serrano's motion for summary judgment based on
qualified immunity. (Doc. 81). At issue is whether Officer
Serrano entered Plaintiff Manuel Torres's home and seized
Torres's firearm and magazines in violation of the Fourth
Amendment and/or whether Torres's rights were clearly
established as of June 21, 2015 when the entry and seizure
occurred. In a previous order, the Court afforded
qualified immunity to co-defendants Silver City Chief of
Police Ed Reynolds and Detectives Christine Murillo and
Melinda Hobbs. (Doc. 75). In a nutshell, Torres's theory
was that the Chief and Detectives instructed Officer Serrano
to enter and obtain the gun, which Torres, himself a police
officer at the time, used earlier in the evening to shoot at
moving vehicle while off duty to thwart what he thought was
illegal activity. (Id.). Thus, in granting summary
judgment, the Court necessarily addressed Officer's
Serrano conduct under the Constitution, albeit as a predicate
to the Chief and Detectives' liability. (Id.).
As is relevant here, the Court concluded that Officer
Serrano-and therefore the Chief and Detectives-did not
violate the Fourth Amendment because Torres consented to
Officer Serrano's entry and, under the circumstances,
Officer Serrano did not act unreasonably by taking the gun
and magazines. (Id.).
material facts remain unchanged from previous briefing.
Critical to the Court's analysis then-and now-was that
when Officer Serrano approached and opened Torres' screen
door and asked after Torres's firearm, Torres motioned
with hand for Officer Serrano to come inside. (See
Doc. 81, Undisputed Material Fact (“UMF”) 5
(citing Docs. 34, 70); Doc. 83, at 6 (not disputing fact)).
Once inside, Torres gave Officer Serrano the gun with a
magazine inside without objection after asking if Officer
Serrano needed it. (Id.). Even after confirming
Officer Serrano's intent to confiscate the items, Torres
handed Officer Serrano another magazine in response to
Officer Serrano's command to “gimee.” (Doc.
83, Pl.'s Resp. UMF 5). There is no other evidence of
coercion or overbearing conduct. In fact, at one point before
Officer Serrano exited Torres's home, Torres asked
Serrano to “hold up.” (Doc. 81, UMF 6). Once
outside, the two parted company with a fist bump and Officer
Serrano offering assistance if Torres needed it.
(Id., UMF 7; Doc. 83, at 6 (not disputing these
discussed in the Court's previous order, these undisputed
facts do not give rise to a violation of a constitutional
right that was clearly established on June 21, 2015, the two
elements Torres must demonstrate to overcome Officer
Serrano's immunity from suit. (Doc. 75); Martinez v.
Beggs, 563 F.3d 1082, 1088 (10th Cir. 2009) (explaining
that “[w]hen a defendant asserts qualified immunity at
summary judgment, the burden shifts to the plaintiff to show
that: (1) the defendant violated a constitutional right and
(2) the constitutional right was clearly
established.”); Clark v. Edmunds, 513 F.3d
1219, 1222 (10th Cir. 2008) (holding that this “strict
two-part test” must be met before the defendant
“bear[s] the traditional burden of the movant for
summary judgment [to] show . . . there are no genuine
issues of material fact and that he or she is entitled to
judgment as a matter of law”) (citation omitted).
Officer Serrano's entry, Torres's hand motion would
reasonably have been understood as inviting Officer Serrano
inside and, therefore, consent under the Fourth Amendment.
See United States v. Pena-Sarabia, 297 F.3d 983, 985
(10th Cir. 2002) (“One of the specifically established
exceptions to the requirements of both a warrant and probable
cause is a search that is conducted pursuant to
consent.”); United States v. Guerrero, 472
F.3d 784, 789-90 (10th Cir. 2007) (explaining that consent
“may . . . be granted through gestures or other
indications of acquiescence, so long as they are sufficiently
comprehensible to a reasonable officer”). The totality
of the circumstances reinforces this conclusion: at no point
did Torres ask Officer Serrano to leave and even requested
Officer Serrano “hold up” as he was exiting.
Torres therefore has not established a Fourth Amendment
violation, and Officer Serrano is entitled to qualified
immunity under the undisputed material facts.
terms of the alleged seizure of the gun and magazines, the
Court, as before, resolves the question on the second prong
of the qualified immunity analysis-that Torres did not, and
does not here, point to case law that, as of June 21, 2015,
prohibited an officer from taking items of personal property
where a suspect hands them over without objection despite
whatever coercive force a law enforcement officer presence in
a residence might have. See Gutierrez v. Cobos, 841
F.3d 895, 901 (10th Cir. 2016) (affirming summary judgement
on qualified immunity grounds where “Plaintiffs did not
cite case law or make a legal argument to show how any
infringement of their constitutional rights violated clearly
established law”). Because Torres has not carried his
burden to overcome Officer Serrano's qualified immunity,
the Court must grant summary judgment in Officer
does not seriously contest these points. Instead, Torres
urges the Court to deny the motion to give effect to
“res judicata” principles because the
Court denied Officer Serrano's earlier request to dismiss
the complaint. See Fed. R. Civ. P. 12(b)(6); (Docs.
35 & 72). Torres also argues the motion is fatally flawed
because Officer Serrano did not seek concurrence in the
relief requested. Finally, Torres insists discovery is
necessary to develop his claims. See Fed. R. Civ. P.
56(d) (permitting the Court to allow “time . . . to
take discovery” if the non-movant shows “it
cannot present facts essential to justify its opposition [to
summary judgment]”). Torres's arguments lack merit.
denying Officer Serrano's motion to dismiss, the Court
determined that, as afar as Officer Serrano was concerned,
Torres had pleaded a plausible cause of action. See Bell
Atlantic Corp. v. Twombly, 550 U.S. 544 (2007);
Ashcroft v. Iqbal, 556 U.S. 662 (2011). The
Court's determination, therefore, did not address whether
Torres had come forward with record evidence demonstrating
that Officer Serrano violated Torres's clearly
established rights under the Fourth Amendment. In other
words, losing a motion to dismiss does not preclude a later
motion for summary judgment under any doctrine. The two
motions employ very different procedural standards. Moreover,
res judicata has no application to rulings within
the same case. See Plotner v. AT&T Corp., 224
F.3d 1161, 1168 (10th Cir. 2000) (precluding a second lawsuit
on the same issues decided in a previous suit).
is correct that Local Rule 7.1(a) requires a movant to
determine whether his motion is opposed before filing it and
include in the motion a good faith recitation that he sought
concurrence of the opposing party in the relief requested.
D.N.M.LR-Civ. 7.1(a). It is undisputed that Officer Serrano
did not comply with the Local Rule. Officer Serrano
acknowledges he should have but did not comply with the Local
Rule. At any rate, Officer Serrano contends, his earlier
motion to dismiss sought similar relief and the parties'
respective positions were already known. The Court disagrees
that the earlier motion obviated the need to seek concurrence
here. Nonetheless, it is difficult to see how Torres is
prejudiced by the lack of compliance. It obvious to the Court
that Torres would not have concurred in Officer Serrano's
motion for summary judgment in any event. Thus, in the
interest of resolving the matter on the merits instead of a
technical deficiency where there is no appreciable prejudice,
the Court rejects Torres's argument under Local Rule 7.1.
Torres's final ground for avoiding summary judgment, the
Court has already analyzed his request for Rule 56(d) relief
on previous occasions and denied it. Like before, Torres does
not offer a meritorious basis here for the Court to delay
ruling to allow him to pursue discovery. See Lewis v.
City of Ft. Collins, 903 F.2d 752, 759 (10th Cir. 1990)
(requiring the plaintiff to “demonstrate how discovery
will enable [him] to rebut a defendant's showing of
objective reasonableness” and establish “a
connection between the information [sought] in discovery and
the validity of the . . . qualified immunity defense”);
Jones v. City of Denver, 854 F.2d 1206, 1211 (10th
Cir. 1988). Torres's unsupported claims that Officer
Serrano's motion for summary judgment is premature absent
discovery is insufficient under the law, and the Court denies
relief under Rule 56(d).
IS, THEREFORE, ORDERED that Officer Serrano motion
for summary judgment (Doc. 81) is GRANTED.
IS FURTHER ORDERED that all claims against Officer
Serrano are DISMISSED WITH PREJUDICE.