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De Gutierrez v. Albuquerque Public Schools

United States District Court, D. New Mexico

January 15, 2019

LAURA LUCERO Y RUIZ DE GUTIERREZ, as mother and parent of Minor child M.B., Plaintiff,
v.
ALBUQUERQUE PUBLIC SCHOOLS, MICKEY LOZANO, Albuquerque Public Schools employee/officer, individually acting under color of law, ROY G. DENNIS, Albuquerque Public Schools employee/officer, individually acting under color of law, THE BOARD OF COUNTY COMMISSIONERS FOR THE COUNTY OF BERNALILLO, and MANUEL GONZALES, Bernalillo County Sheriff, individually and in his official capacity, Defendants.

          MEMORANDUM OPINION AND ORDER GRANTING APS DEFENDANTS' MOTION FOR SUMMARY JUDGMENT NO I

         In APS DEFENDANTS' MOTION FOR SUMMARY JUDGMENT NO. I: DISMISSAL OF PLAINTIFF'S FOURTH AMENDMENT CLAIM ON THE BASIS OF QUALIFIED IMMUNITY AND DISMISSAL OF PLAINTIFF'S NMTCA CLAIM BASED UPON THE STATUTE OF LIMITATIONS AND LACK OF EVIDENCE (Doc. No. 49) (Motion), the APS Defendants (Albuquerque Public Schools and Roy G. Dennis) ask the Court to dismiss Counts Two and Three of PLAINTIFF'S FIRST AMENDED COMPLAINT (Doc. No. 19) (FAC) the only remaining counts in the FAC.[1] The Motion is fully briefed. See PLAINTIFF'S RESPONSE TO APS DEFENDANTS MOTION FOR SUMMARY JUDGMENT NO. I: DISMISSAL OF PLAINTIFF'S FOURTH AMENDMENT CLAIM ON THE BASIS OF QUALIFIED IMMUNITY AND DISMISSAL OF PLAINTIFF'S NMTCA CLAIM BASED UPON THE STATUTE OF LIMITATIONS AND LACK OF EVIDENCE (Doc. No. 55) (Response) and APS DEFENDANTS' REPLY TO RESPONSE TO MOTION FOR SUMMARY JUDGMENT NO. I (Doc. No. 57) (Reply). Because Plaintiff's son M.B. did not stop in response to being chased and allegedly having been tased by APS School Resource Officer Roy G. Dennis (Officer Dennis), there was no “seizure.” Therefore, Officer Dennis did not violate M.B.'s Fourth Amendment rights, and the Court will grant summary judgment in favor of APS Defendants on Plaintiff's Count Two claim. Furthermore, because Plaintiff and M.B. were represented by legal counsel during the weeks following the incident, application of the two-year statute of limitations to Plaintiff's claims under the New Mexico Tort Claims Act (NMTCA) does not violate M.B.'s due process rights. Therefore, the Court will grant summary judgment dismissing Count Three[2] as well.

         I. BACKGROUND

         A. The Incident

         On September 30, 2014, Plaintiff's 13-year-old son M.B., who suffers from Autism, was a student at Jimmy Carter Middle School in Albuquerque, New Mexico. (FAC ¶ 41; Mot. UMF 1.) On that date, M.B.'s Adaptive Physical Education Teacher instructed him to “go inside after he ran his last lap.” (Id.) Another teacher stopped M.B. and told him “that he had to wait for a staff member before going to class.” (Id. ¶ 42.) M.B. then began to exhibit “his documented ‘shutting down' behavior[.]” (Id.) M.B. “told his teacher that he was walking home from school and proceeded to leave Jimmy Carter Middle School.” (Id. ¶ 43.) APS staff members and Officer Dennis began to search for M.B. by driving their vehicles on the streets near the school. (Mot. UMF 3.) The teacher was unable to reach Plaintiff on her cell phone and left a message that M.B. “had left campus.” (FAC ¶ 44.) Plaintiff sent a text message to an aid, Crystal Holtz, asking her to “contact the teacher.” (Id. ¶ 45.) Ms. Holtz contacted the teacher and “was told that the teacher was in radio communication with Defendant Dennis.” (Id.) The teacher also informed Ms. Holtz that M.B. was “running from security.” (Id. ¶ 47.) M.B. claimed that when Officer Dennis caught up with him, Officer Dennis “shot something at him and he saw wires.” (Mot. UMF 5; FAC ¶ 55.) “The wire hit and shocked M.B. on the leg.” (FAC ¶ 55.) M.B. did not stop after he was allegedly tased by Officer Dennis, but instead ran to and entered Ms. Holtz's vehicle. (Id. ¶ 53.)

         B. The Aftermath

         During the first two weeks in October 2014, Plaintiff consulted attorney Nancy Simmons regarding possible claims arising from the incident. In an October 7, 2014 telephone call between Plaintiff and a detective from the Albuquerque Police Department, Plaintiff stated that she and M.B. had retained Nancy Simmons as counsel, and Plaintiff informed the detective that he should coordinate with Ms. Simmons in setting up a forensic interview of M.B. (Mot. Ex. C (audio recording of call); Mot. Ex. D (transcript of call).) On October 16, 2014, however, Ms. Simmons sent a letter to Plaintiff declining to represent Plaintiff due to a heavy case load. (See Resp. Ex. 2.) On October 24, 2014, a tort claims notice under NMSA 1978 § 41-4-16, was submitted on M.B.'s behalf by attorney Frances Crockett indicating that Plaintiff and M.B. intended to sue the Albuquerque Police Department, Albuquerque Public Schools, and Bernalillo County for M.B.'s injuries caused by the incident. (See Plf's Resp. to County Defs' Mot. to Dismiss Ex. 1 (Doc. No. 38-1).) Ms. Crockett also requested preservation of all public records related to the incident under NMSA 1978 § 14-2-1. (Id.) There is no information in the record as to when Ms. Crockett ceased her representation of Plaintiff and M.B.

         On September 29, 2017, Plaintiff pro se filed the Complaint in the Second Judicial District Court, Bernalillo County, New Mexico. (See Doc. No. 1-1.) The case was removed to this Court on January 25, 2018. On February 13, 2018, Plaintiff's current counsel, Western Agriculture, Resource and Business Associates, LLP (A. Blair Dunn, Esq. and Dori E. Richards, Esq.) entered their appearances in this Court.[3]

         II. STANDARD OF REVIEW

         A. Summary Judgment Standard

         Under Rule 56 a court may grant summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The movant bears the initial responsibility of informing the court of the basis for the motion and identifying portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, which the movant believes demonstrates the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986). The movant may meet its burden by showing that the non-movant “failed to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Id. at 322-323; see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). In response, the non-movant must “go beyond the pleadings and by her own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on file,' designate ‘specific facts showing that there is a genuine issue for trial.'” Celotex, 477 U.S. at 324. At the summary judgment stage, the court draws “all inferences in favor of the nonmoving party to the extent supportable by the record[.]” Scott v. Harris, 550 U.S. 372, 381 n.8 (2007). “When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court cannot find a material fact issue by adopting the unsupported version of the facts for purposes of ruling on a motion for summary judgment. Id. at 380 (ruling that summary judgment should have been granted on the basis of video evidence).

         B. Qualified Immunity Standard

         Qualified immunity protects 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.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Once the qualified immunity defense is asserted, the plaintiff “bears a heavy two-part burden” to show, first, “the defendant's actions violated a constitutional or statutory right, ” and, second, that the right was “clearly established at the time of the conduct at issue.” Archuleta v. Wagner, 523 F.3d 1278, 1283 (10th Cir. 2008) (internal quotation marks omitted).

         A right is clearly established “when a Supreme Court or Tenth Circuit decision is on point, or if the clearly established weight of authority from other courts shows that the right must be as the plaintiff maintains.” PJ ex rel. Jensen v. Wagner, 603 F.3d 1182, 1196-97 (10th Cir. 2010) (internal quotation marks omitted). “The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a ...


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