United States District Court, D. New Mexico
PROPOSED FINDINGS AND RECOMMENDED
HONORABLE GREGORY J. FOURATT UNITED STATES MAGISTRATE JUDGE
MATTER comes before the Court 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.
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.
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).
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. 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
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. 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.
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.
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 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.
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.
Summary Judgment Standard
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.”
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).
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).
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)).
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)).
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
[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).
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)
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.
‘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.
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.