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Hernandez v. Fitzgerald

United States District Court, D. New Mexico

May 9, 2019



         This matter is before the Court pursuant to Fed.R.Civ.P. 16. The parties conferred and have submitted a proposed Amended Pretrial Order.


         Attorneys who will try the action:

For Plaintiff: Louren Oliveros GORENCE & OLIVEROS, P.C. 300 Central Avenue SW, Suite 1000E Albuquerque, NM 87102 Telephone (505) 244-0214 Facsimile (505) 244-0888
Anna C. Martinez AEQUITAS LAW, LLC P.O. Box 23504 Albuquerque, New Mexico 87125 Telephone: (505)750-8005 Facsimile: (505)212-0249
For Defendant: Jonlyn M. Martinez LAW OFFICE OF JONLYN M. MARTINEZ, LC. P.O. Box 1805 Albuquerque, NM 87103-1805 (505) 247-9488


         A. Subject Matter Jurisdiction.

         1. Was this action removed or transferred from another forum?

         X Yes___No.

         If yes, was the action removed or transferred?

         X Removed __Transferred __Original forum

         2. Is subject matter jurisdiction of this Court contested?

         X Uncontested __Contested __Party Contesting

         3. Asserted basis for jurisdiction.

         X Federal Question __Diversity __Other

         Statutory Provision(s) Invoked: 42 U.S.C. § 1983

         B. Personal Jurisdiction and Venue.

         1. Is personal jurisdiction contested?

         X Uncontested __Contested

         Identify the party contesting personal jurisdiction and basis for objection:


         2. Is venue contested?

         X Uncontested __Contested __Party contesting

         C. Are the proper parties before the Court?

         X Uncontested __Contested

         If contested, identify each missing party or improper party and the basis for the contention:

         D. Identify the affirmative relief sought in this action.

         1. Plaintiff seeks:

         a. Compensatory damages against Defendant in an amount to be determined by the finder of fact;

         b. Punitive damages against Defendant in an amount to be determined by the finder of fact;

         c. Reasonable costs and attorneys' fees and costs incurred in bringing this action as permitted by law;

         d. Pre- and post-judgment interest; and

         e. Any other relief this Court deems just and appropriate.


         Defendant seeks:

         Dismissal of the action with prejudice, attorneys' fees, costs and all other appropriate relief.


         A. Plaintiff's claims:

         Plaintiff brings claims for excessive force (Count VII) and false arrest and false imprisonment (Count VIII) under 42 U.S.C. § 1983.[1]

         Mr. Hernandez observed a man at a public bus stop being detained by City of Albuquerque Transit Officer Andy Fitzgerald. Mr. Hernandez felt a personal responsibility to stand up for people whom he refers to as “metrocampers, ” which include homeless people and people suffering hardships in the Albuquerque area. As a part of his community service, Mr. Hernandez shared food with “metrocampers” in downtown Albuquerque almost every Sunday. As a result, Mr. Hernandez made it a point to stop, video-record, and ask questions when he saw a metrocamper who was at risk of being harassed, arrested, or harmed by anyone. All of his actions were lawful.

         Out of concern for the safety and wellbeing of the man later identified as Michael Bustamante, Mr. Hernandez approached the bus stop at First Street and Central in Albuquerque on August 30, 2012. Mr. Hernandez parked his vehicle. He then activated an audio-recording device in his pocket and the video-recording function on his cell phone and approached the scene. Defendant Fitzgerald saw that Mr. Hernandez was filming the encounter and became highly upset. Defendant Fitzgerald demanded to know Mr. Hernandez's name. When Mr. Hernandez indicated his right to record the encounter, Defendant Fitzgerald became incensed. He lunged at Mr. Hernandez to get the cell phone out of his hands. Defendant Fitzgerald began physically and verbally assaulting Mr. Hernandez in an effort to handcuff and arrest him without justification. Defendant Fitzgerald pried the cell phone out of Mr. Hernandez's hands and Defendant Fitzgerald twisted Mr. Hernandez's left arm painfully and forcefully behind his back.

         After Mr. Hernandez was handcuffed and under Defendant Fitzgerald's custody and control, Mr. Hernandez told Defendant Fitzgerald not to hurt Mr. Bustamante. Defendant Fitzgerald went into what he calls “survival mode” and began physically attacking Mr. Hernandez. The attack was so vicious that Officer Powdrell can be heard saying “Andy, Andy!” at least eleven times in the recording of the incident. Defendant Fitzgerald cannot recall what he did when he went into survival mode. According to Defendant Fitzgerald's sworn testimony, everything went black. Mr. Hernandez vividly remembers being choked by Defendant Fitzgerald during this same time.

         APD Officers Daniel Galvan and Amy Markwick arrived on the scene as a result of Mr. Bustamante's 911 call. Defendant Fitzgerald did not tell Officer Galvan about his use of force against Plaintiff, which would have required a full investigation.

         The conduct of the Defendant Fitzgerald has caused Plaintiff damages, including emotional distress, anxiety and harm, damage to reputation, humiliation, pain and suffering, and physical injury and harm, both temporary and permanent, to his wrists, arms, elbows, shoulders and throat.

         B.Defendant's defenses:

         On August 30, 2012, the Plaintiff observed Manuel Bustamante being detained by two City of Albuquerque Transit Officers at a bus stop in Albuquerque. Mr. Bustamante was seated at the bus stop, and was not in handcuffs, nor was he being touched by any Transit Officers. Manuel Bustamante was being detained because he was consuming alcohol at the City bus stop and the Transit Officers were waiting for a law enforcement officer to arrive to issue Mr. Bustamante a no trespass order. The Plaintiff stopped his vehicle and walked to the bus stop. The Plaintiff began filming the Transit Officers without their permission and began speaking to Mr. Bustamante.

         The Plaintiff began disrespecting Defendant Fitzgerald and told Mr. Bustamante that he did not have to follow Defendant Fitzgerald's commands because he was just a security guard. Throughout his interaction with Defendant Fitzgerald, the Plaintiff was rude, disrespectful, and was interfering with the Transit Officer's attempts to keep the bus stop safe for the traveling public. As a result of his contact with Defendant Fitzgerald, the Plaintiff claims he received superficial red marks to his neck. The Plaintiff was handcuffed but he does not know if he was handcuffed by Defendant Fitzgerald or another transit officer. Plaintiff does recall that he was actively resisting being handcuffed. The Plaintiff also claims that he suffered shoulder pain as a result of being handcuffed. However, the Plaintiff did not visit a healthcare provider concerning this alleged damage until February of 2015, about 2.5 years after his contact with Defendant Fitzgerald. The Plaintiff did not receive any medical treatment for the alleged injury to his neck. These are precisely the same injuries for which the Plaintiff claimed damages and received remuneration from the City and its employees shortly before he filed the current lawsuit.

         At no time did the Plaintiff complain to Officer Galvan, or any other law enforcement officer that he had been harmed or mistreated by Defendant Fitzgerald. Following the incident, the Plaintiff immediately met up with a friend, Michael Herrick, who had previously helped him draft complaints against the City of Albuquerque. Michael Herrick also runs a website called “police complaints.” The Plaintiff's original legal counsel, Anna Martinez, was recommended to him by Michael Herrick.

         The Plaintiff audio recorded his interaction with Defendant Fitzgerald and his interaction with Mr. Herrick and unknown friends immediately following the incident. The audio recording reveals Mr. Herrick and other unidentified voices congratulating the Plaintiff on his conduct and in obtaining his recordings. Mr. Herrick can be heard telling the Plaintiff that they have found lawyers who want to take these kinds of cases. The Plaintiff can be heard calling himself a lion and he never complains of any injuries as a result of his contact with Defendant Fitzgerald. The Plaintiff can then be heard saying that he has to hurry home to his girlfriend because he is late for dinner and that he will not mention the incident to her.

         Plaintiff's Complaint fails, in whole or in part, to states a claim upon which relief can be granted. Plaintiff's Complaint is barred in whole, or in part, by the doctrines of qualified immunity and/or absolute immunity. All actions of the Defendant were in done good faith and without malice, were justified, were objectively reasonable, lawful and necessary under the circumstances, and were not taken with any deliberate indifference to Plaintiff's rights. The acts or omissions of persons other than the Defendant constitute the sole proximate cause of the injuries and damages, if any, alleged by the Plaintiff. To the extent Plaintiff has failed to mitigate his damages, if any, any recovery from the Defendant is barred in whole or in part. Defendant Fitzgerald is entitled to qualified immunity and/or absolute immunity. Any claims for punitive damages are barred, in whole or in part, by law. Plaintiff's claims are barred, in whole or in part, by the doctrines of waiver, consent, estoppel, provocation, and/or unclean hands. The Defendant's purported actions and alleged omissions do not rise to the level of any statutory or constitutional deprivation of Plaintiff's rights. To the extent Plaintiff alleges that Defendants were negligent or otherwise at fault under any theory, which is denied, Plaintiff and/or other third persons were negligent or otherwise at fault, thereby barring or reducing Plaintiff's recovery from the Defendants under the principles of comparative fault. Plaintiff's claims are barred, in whole or in part, due to Plaintiff's failure to demonstrate that the Defendant engaged in a pattern of alleged unconstitutional acts and/or by Plaintiff's failure to demonstrate that the Defendants acted with deliberate indifference to Plaintiff's rights.


         A. Stipulated Factual Contentions.

         The parties agree to the following facts listed separately below:

         1. All events giving rise to the Complaint occurred in Albuquerque, Bernalillo County, New Mexico. Doc. 9, para. 8.

         Plaintiff Alfonso Hernandez audio and video recorded the interactions between Defendant Fitzgerald and himself on August 30, 2012.

         B. Contested Material Facts.

         1. Plaintiff's Material Contested Facts:

a. Plaintiff refers to the Complaint, [Doc. 1] which is incorporated herein by reference. All factual allegations not admitted by Defendant's respective answers to the Complaint are contested.
b. Plaintiff Hernandez approached Manual Bustamante who was being detained by Defendant Fitzgerald.
c. Plaintiff Hernandez asked Mr. Bustamante why he was being detained and asked Defendant Fitzgerald what his position was.
d. When Defendant Fitzgerald saw that Plaintiff Hernandez was filming the encounter, Defendant Fitzgerald asked Plaintiff Hernandez his name and why he was filming the encounter.
e. Plaintiff Hernandez never verbally or phsycially threatened Defendant.
f. When Plaintiff Hernandez did not respond to him, Defendant Fitzgerald grabbed Plaintiff's cell phone and used force against Plaintiff.
g. Defendant Fitzgerald used force against Plaintiff while Plaintiff was handcuffed.
h. After Plaintiff was handcuffed and under Defendant's custody and control, Defendant Fitzgerald choked Mr. Hernandez. i. Mr. Bustamante called 911 as a result of Defendant Fitzgerald's actions.
j. APD Officers Daniel Galvan and Amy Markwick arrived on the scene as a result of Mr. Bustamante's 911 call.
k. Defendant Fitzgerald did not tell Officer Galvan about his use of force against Plaintiff.
l. Due to Defendant Fitzgerald's misrepresentations of the incident, Officers Galvan failed to thoroughly investigate the assault and battery.
m. Plaintiff was then detained at the bus stop for approximately fourteen minutes.
n. Plaintiff has suffered damages.

         2. Defendant's Material Contested Facts:

         Defendant Fitzgerald contends that he entitled to summary judgment and incorporates his briefing related thereto [Document Nos. 149 and 176]. In addition, the contested issues of fact are:

a. Whether Defendants Fitzgerald's conduct was objectively reasonable under the circumstances?
b. Whether Plaintiff's alleged injuries are sufficient to establish an alleged violation of his rights?
c. Whether the Plaintiff's previous claim for the same injuries preclude his current claim for damages?
d. Whether the Plaintiff's intentional provocation of Defendant Fitzgerald precludes his current claims?
e. Whether Defendant Fitzgerald is entitled to qualified immunity?
f. Whether Deputy Fitzgerald's conduct was reasonable under ...

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