United States District Court, D. New Mexico
ORDER ADOPTING THE MAGISTRATE JUDGE'S PROPOSED
FINDINGS AND RECOMMENDED DISPOSITION
MATTER is before the Court on Plaintiff's objections to
the Magistrate Judge's “Proposed Findings and
Recommended Disposition” (“PFRD”), issued
February 11, 2019. On reference by the undersigned (Doc. 24),
United States Magistrate Judge Gregory J. Fouratt recommended
that this Court: (1) grant summary judgment to Defendants;
(2) dismiss Plaintiff's state law claim without
prejudice; (3) deny Plaintiff's Motion to file Amended
Complaint; and (4) deny Defendants' Motion to stay as
moot. (Doc. 49) at 1. On February 19, 2019, Plaintiff filed
his “Objections to Proposed Finding and Recommended
Disposition Opposing Summary Judgment.” (Doc. 50).
Defendants neither objected to the PFRD nor responded to
Plaintiff's objections. Having reviewed de novo
the portions of the PFRD to which Plaintiff objects, the
Court now overrules the objections and adopts the PFRD.
Therefore, and as explained below, the Court will grant
summary judgment to Defendants, dismiss Plaintiff's state
law claim without prejudice, deny Plaintiff's Motion to
file Amended Pleading (Doc.43), and deny Defendants'
Motion to Stay (Doc. 42) as moot.
Fouratt detailed the factual background of this case in his
PFRD. (Doc. 49) at 2-4.
Plaintiff engaged in a high-speed chase with law enforcement
on March 3, 2015. While in pursuit, one Bernalillo County
Sheriff's deputy fired shots at Plaintiff's vehicle.
Police terminated the chase by deploying a pursuit
intervention technique to force Plaintiff's vehicle into
a spin and stall its engine. Once stopped, Plaintiff
immediately exited the van and fled on foot. Deputies tackled
the resisting Plaintiff and then utilized a softening blow as
well as a lateral head displacement to gain his compliance.
From these events, Plaintiff contends that the individual
Defendants violated his Fourth Amendment rights by using
excessive force to effectuate the arrest. Plaintiff further
contends that the Bernalillo County Sheriff's
Office's failure to employ a policy requiring lapel
cameras enabled the alleged constitutional violation.
begins his challenge to Judge Fouratt's PFRD by
requesting appointment of counsel for the fourth time in this
litigation. (Doc. 50) at 1. While that is not a cognizable
objection, this Court will address it nonetheless. Similarly,
Plaintiff requests leave to supplement the record with
additional evidence, thus allowing him a belated opportunity
to attempt to create a fact dispute. Id. Again, this
is not a cognizable objection, but the Court will address
does, however, advance three cognizable objections in his
attack on Judge Fouratt's PFRD. First, he objects to
Judge Fouratt's conclusion that no genuine issues of
material fact exist as to whether the individually named
defendants used excessive force to effectuate his arrest.
Id. Plaintiff contends that “officers ignored
[his] surrender and blatantly lied falseifying [sic] facts
and still continued to use excessive force while I got on
knees and hands up.” Id. Second, Plaintiff
challenges the PFRD's conclusion that the Bernalillo
County Sheriff's Office could not be held accountable
under a theory of municipal liability. Specifically,
Plaintiff claims that he demonstrated that the
“officers committed an underlying constitutional
violation; (2) [a] Municipal policy or customs exists and (3)
there is a direct casual [sic] link between the policy and
custom and the constitutional violations alleged.”
Id. at 2. Lastly, Plaintiff objects to the
PFRD's recommendation that his motion for leave to amend
the complaint be denied. He contends for the first time that
amendment would not be futile because “the claims
against Deputy Hix would relate back.” Id. at
Standard for Objections to a Magistrate Judge's
to 28 U.S.C. § 636(b)(1)(B) (2012), a district judge may
designate a magistrate judge to submit proposed findings of
facts and recommendations for the disposition of any case
pending before the Court. Where a party timely objects to the
magistrate judge's proposed disposition, this Court
conducts a de novo review of all portions of the
recommendation which have been objected to and “may
accept, reject, or modify, in whole or in part, the findings
or recommendations.” See Id. §
636(b)(1)(C). De novo review requires the district
judge to consider relevant evidence of record and not merely
to review the magistrate judge's recommendation. In
re Griego, 64 F.3d 583-84 (10th Cir. 1995). “[A]
party's objections to the magistrate judge's [PFRD]
must be both timely and specific to preserve an issue for
de novo review by the district court or for
appellate review.” United States v. One Parcel of
Real Prop., With Buildings, Appurtenances, Improvements,
& Contents, 73 F.3d 1057, 1060 (10th Cir. 1996).
Summary Judgment Standard in Pro Se Prisoner Cases
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
appears pro se. 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 ...