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Gabaldon v. Bernalillo County Sheriff's Office

United States District Court, D. New Mexico

February 11, 2019

DANAN GABALDON, Plaintiff,
v.
BERNALILLO COUNTY SHERIFF'S OFFICE et al., Defendants.

          PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

          THE HONORABLE GREGORY J. FOURATT UNITED STATES MAGISTRATE JUDGE

         THIS MATTER comes before the Court[1] on the following motions: (1) “County Defendants' Motion for Summary Judgment” (“MSJ”) [ECF No. 37], filed August 9, 2018; (2) “County Defendants' Unopposed Motion to Stay Proceedings Pending Outcome of Defendants' Motion for Summary Judgment” (“MTS”) [ECF No. 42], filed September 6, 2018; and (3) Plaintiff's “Motion to File Amended Pleading” (“MTA”) [ECF No. 43], filed September 10, 2018. The motions are fully briefed.

         For the reasons that follow, the Court RECOMMENDS that: (1) summary judgment be GRANTED to Defendants; (2) Plaintiff's state law claim be DISMISSED WITHOUT PREJUDICE; (3) Plaintiff's Motion to file Amended Pleading be DENIED; and (4) Defendants' Motion to Stay be DENIED AS MOOT.

         I. BACKGROUND

         A. Factual Background

         The following factual history is drawn from the parties' statements of uncontroverted facts and from video evidence. The facts are viewed in the light most favorable to Plaintiff, the non-moving party. See Tolan v. Cotton, 572 U.S. 650, 657 (2014).

         On the morning of March 3, 2015, a caller reported a suspicious vehicle parked in a residential neighborhood in Albuquerque. Bernalillo County Sheriff's Department dispatched two deputies to investigate, Defendants Hayworth and Madrid, who located a white van matching the description given by the caller. On approach, Defendant Hayworth noticed Plaintiff sleeping in the van and knocked on one of the windows.[2] Awakened by the knock, Plaintiff climbed into the driver's seat and, without acknowledging Defendants Hayworth and Madrid, drove off at a high rate of speed. Defendant Hayworth immediately notified dispatch that the white van fled. To help the deputies locate the fleeing van, dispatch enlisted the help of Albuquerque Police Department's Air One helicopter. With the guidance of Air One, Defendant Hayworth located the van traveling west on Muniz Road. Plaintiff continued down Muniz Road, which becomes Copeland Road, and turned onto a dead-end side street. Plaintiff parked the van in a driveway next to a purple sedan, exited the vehicle along with a female passenger, and appeared to begin attempting to steal the purple car.

         At this same time, Defendant Hayworth closed in on Plaintiff's location, exited his vehicle, and gave Plaintiff verbal commands. Ignoring those commands, Plaintiff ran back to the van, quickly reversed out of the driveway, and began fleeing from the deputies a second time. During the getaway, and sometime shortly after Plaintiff evaded Defendants Hayworth and Madrid, Deputy Valdez fired shots at Plaintiff's vehicle.[3] Apparently undeterred by the gunfire, Plaintiff continued northbound on Isleta Boulevard, at times exceeding 70 miles per hour and narrowly missing several vehicles, including a school bus in a school zone.

         At this time, Deputy Vearde began blocking off an intersection located further north on Isleta Boulevard to ensure no other vehicles crossed in front of Plaintiff. After entering the intersection, Deputy Hayworth drove up on the side of Plaintiff's van and deployed a pursuit intervention technique to force the van into a spin and stall its engine. Once stopped, Plaintiff immediately exited the van and fled on foot. The foot chase abruptly ended when Defendant Hayworth tackled the resisting Plaintiff. Within seconds, five additional deputies converged on them to assist in the arrest. To overcome Plaintiff's resistance, Deputy Hix delivered a “softening blow” to the left thigh and, as a distraction technique, utilized a lateral head displacement to allow deputies to handcuff Plaintiff. Once Plaintiff was restrained, deputies transported him to a local hospital where he was treated for minor injuries and then taken to jail.

         B. Procedural Background

         Plaintiff, a pro se prisoner now in the custody of Lea County Correctional Facility, filed this lawsuit under 42 U.S.C. § 1983. In his complaint [ECF No. 1], Plaintiff alleged that Defendants Valdez, Marinelarena, Valverde, Madrid, Hayworth, and the Bernalillo County Sheriff's Office (“BCSO”) violated his Fourth and Eighth[4] Amendment rights. The complaint further alleged negligence against all named defendants. Defendant Valdez answered on September 20, 2017, and Defendants Marinelarena, Madrid, Hayworth, and the BCSO answered on November 9, 2017.[5]

         Following Defendants' answers, this Court entered a scheduling order and subsequent order setting discovery and motions deadlines. See ECF Nos. 21, 23, 25. Approximately seven months into discovery, Defendants brought the current motion for summary judgment and then moved to stay the proceedings pending a rulinokg on the dispositive motion. Plaintiff then moved this Court for leave to amend complaint.

         II. LEGAL STANDARDS

         A. Summary Judgment Standard

         Summary judgment will be granted “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 must “cit[e] to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations . . ., admissions, interrogatory answers, or other materials.” Fed.R.Civ.P. 56(c)(1)(A).

         The movant has the initial burden of establishing that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). If this burden is met, the non-movant must come forward with specific facts, supported by admissible evidence, which demonstrate the presence of a genuine issue for trial. Id. at 324. Although all facts are construed in favor of the non-movant, the non-movant still has a responsibility to “go beyond the pleadings and designate specific facts so as to make a showing sufficient to establish the existence of an element essential to [his] case in order to survive summary judgment.” Johnson v. Mullin, 422 F.3d 1184, 1187 (10th Cir. 2005) (alteration in original) (citation and internal quotation marks omitted).

         The Court liberally construes Plaintiff's filings because he is appearing pro se. See Erickson v. Pardus, 551 U.S. 89, 94 (2007); Andrews v. Heaton, 483 F.3d 1070, 1076 (10th Cir. 2007); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). Still, a pro se non-movant must “identify specific facts that show the existence of a genuine issue of material fact.” Munoz v. St. Mary-Corwin Hosp., 221 F.3d 1160, 1164 (10th Cir. 2000) (citation and internal quotation marks omitted). Conclusory allegations are insufficient to establish an issue of fact that would defeat the motion. Llewellyn v. Allstate Home Loans, Inc., 711 F.3d 1173, 1180 (10th Cir. 2013).

         B. Qualified Immunity

         The defense of qualified immunity shields officials from civil liability as long as they do not “violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Lincoln v. Maketa, 880 F.3d 533, 537 (10th Cir. 2018) (quoting Mullenix v. Luna, 136 S.Ct. 305, 308 (2015). Qualified immunity also shields officials who have “reasonable, but mistaken beliefs” and operates to protect officials from the law's sometimes “hazy border[s].” Saucier v. Katz, 533 U.S. 194, 205 (2001). In sum, qualified immunity protects “all but the plainly incompetent or those who knowingly violate the law.” District of Columbia v. Wesby, 138 S.Ct. 577, 589 (2018) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).

         Because of the burdens of litigation, issues of qualified immunity are best resolved at the “earliest possible stage of litigation.” Pearson v. Callahan, 555 U.S. 223, 231 (2009). “If qualified immunity is to mean anything, it must mean that public employees who are just doing their jobs are generally immune from suit.” Lewis v. Tripp, 604 F.3d 1221, 1230 (10th Cir. 2010). “Once a defendant raises qualified immunity, the plaintiff bears the burden to show that the defendant is not entitled to immunity.” Lincoln, 880 F.3d at 537 (citing Douglas v. Dobbs, 419 F.3d 1097, 1100 (10th Cir. 2005)).

         To overcome the defense of qualified immunity, a plaintiff must show that the defendant violated a constitutional or statutory right and that the violated right was clearly established at the time of the alleged unlawful activity. Lincoln, 880 F.3d at 537 (internal quotations omitted) (citing Estate of Reat v. Rodriguez, 824 F.3d 960, 964 (10th Cir. 2016)). For the law to be clearly established:

[t]he contours of the constitutional right at issue must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. And the contours of a particular right are generally only sufficiently clear to put a reasonable official on notice if a plaintiff (1) identif[ies] an on-point Supreme Court or published Tenth Circuit decision, or (2) shows the clearly established weight of authority from other courts [has] found the law to be as the plaintiff maintains.

Perry v. Durborow, 892 F.3d 1116, 1122-23 (10th Cir. 2018) (quotations and citations omitted).

         “A right is ‘clearly established' when every “‘reasonable official would [understand] that what he is doing violates that right.'” Lincoln, 880 F.3d at 537 (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)). In other words, a court may conclude that a right was clearly established only if it “was sufficiently clear that a reasonable government officer in the defendant's shoes would understand that what he or she did violated that right.” Casey v. West Las Vegas Independent School Dist., 473 F.3d 1323, 1327 (10th Cir. 2007) (emphasis added). But courts cannot define the relevant constitutional right “at a high level of generality[;]” rather, the analysis must determine whether the “clearly established law . . . [is] particularized to the facts of the case.” White v. Pauly, 137 S.Ct. 548, 552 (2017) (internal quotation omitted). Although, this inquiry “do[es] not require a case directly on point for a right to be clearly established, existing precedent must have placed the statutory or constitutional question beyond debate.” Id. at 551 (quoting Mullenix v. Luna, 136 S.Ct. 305, 308 (2015)) (internal quotations omitted). “[T]he key is whether the specific conduct has been clearly established as a constitutional violation.” Lincoln, 880 F.3d at 537 (quoting Mullenix, 136 S.Ct. at 308) (emphasis added).

         C. Excessive Force

         In the Tenth Circuit, “[e]xcessive force claims can be maintained under the Fourth, Fifth, Eighth, or Fourteenth Amendment-all depending on where the defendant finds himself in the criminal justice system.” Porro v. Barnes, 624 F.3d 1322, 1325 (10th Cir. 2010). However, “all claims that law enforcement officers have used excessive force-deadly or not-in the course of an arrest, investigatory stop, or other ‘seizure' of a free citizen should be analyzed under the Fourth Amendment and its ‘reasonableness' standard . . . .” Graham v. Connor, 490 U.S. 386, 395 (1989). In Graham, the Supreme Court “established a balancing test to determine when the use of force to effect a seizure is unreasonable.” McCoy v. Meyers, 887 F.3d 1034, 1045 (10th Cir. 2018) (citing Graham, 490 U.S. at 396). Graham requires a court to balance “the nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing governmental interests at stake.” Id. (quotations omitted). On balance, courts must pay “careful attention to the facts and circumstances of each particular case, ” which include (1) “the severity of the crime at issue, ” (2) “whether the suspect poses an immediate threat to the safety of the officers or others, ” and (3) “whether [the suspect] is actively resisting arrest or attempting to evade arrest by flight.” Graham, 490 U.S. at 396; see also McCoy, 887 F.3d at 1045.

         “The ‘reasonableness' of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Graham, 490 U.S. at 396. “The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments-in circumstances that are tense, uncertain, and rapidly evolving-about the amount of force that is necessary in a particular situation.” Id. at 396-97. “[T]he ‘reasonableness' inquiry ... is an objective one: the question is whether the officers' actions are ‘objectively reasonable' in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.” Id. at 397. Put simply, “[a]n officer's evil intentions will not make a Fourth Amendment violation out of an objectively reasonable use of force; nor will an officer's good intentions make an objectively unreasonable use of force constitutional.” Id.

         Once an individual is convicted of a crime, the analysis proceeds under the Eighth Amendment. Porro v. Barnes, 624 F.3d 1322, 1326 (10th Cir. 2010). But “when neither the Fourth nor the Eighth Amendment applies-when the plaintiff finds himself in the criminal justice system somewhere between the two stools of an initial seizure and post-conviction punishment- [courts] turn to the due process clauses of the Fifth or Fourteenth Amendment and their protection against arbitrary governmental action by federal or state authorities.” Id. at 1326. That is, when the plaintiff is a pretrial detainee, claims of excessive force proceed under the Fifth or Fourteenth Amendment, where the appropriate standard is objective reasonableness, not a subjective standard that takes into account the officer's state of mind. Kingsley v. Hendrickson, 135 S.Ct. 2466, 2470, (2015). “[A] pretrial detainee must show only that the force purposely or knowingly used against him was objectively unreasonable.” Id. at 2473.

         D. ...


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