United States District Court, D. New Mexico
FINAL PRE-TRIAL ORDER
matter is before the Court pursuant to Fed.R.Civ.P. 16. The
parties conferred and have submitted a proposed Amended
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 firstname.lastname@example.org
For Defendant: Jonlyn M. Martinez LAW OFFICE OF JONLYN M.
MARTINEZ, LC. P.O. Box 1805 Albuquerque, NM 87103-1805 (505)
JURISDICTION AND RELIEF SOUGHT
Subject Matter Jurisdiction.
Was this action removed or transferred from another
was the action removed or transferred?
Removed __Transferred __Original forum
Is subject matter jurisdiction of this Court
Uncontested __Contested __Party Contesting
Asserted basis for jurisdiction.
Federal Question __Diversity __Other
Provision(s) Invoked: 42 U.S.C. § 1983
Personal Jurisdiction and Venue.
Is personal jurisdiction contested?
the party contesting personal jurisdiction and basis for
Is venue contested?
Uncontested __Contested __Party contesting
Are the proper parties before the Court?
contested, identify each missing party or improper party and
the basis for the contention:
Identify the affirmative relief sought in this
Compensatory damages against Defendant in an amount to be
determined by the finder of fact;
Punitive damages against Defendant in an amount to be
determined by the finder of fact;
Reasonable costs and attorneys' fees and costs incurred
in bringing this action as permitted by law;
and post-judgment interest; and
other relief this Court deems just and appropriate.
of the action with prejudice, attorneys' fees, costs and
all other appropriate relief.
BRIEF DESCRIPTION OF NATURE OF CLAIMS/DEFENSES.
brings claims for excessive force (Count VII) and false
arrest and false imprisonment (Count VIII) under 42 U.S.C.
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
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
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.
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
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.
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.
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.
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.
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.
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.
FACTUAL CONTENTIONS UNDERLYING CLAIMS/DEFENSES
Stipulated Factual Contentions.
parties agree to the following facts listed separately below:
events giving rise to the Complaint occurred in Albuquerque,
Bernalillo County, New Mexico. Doc. 9, para. 8.
Alfonso Hernandez audio and video recorded the interactions
between Defendant Fitzgerald and himself on August 30, 2012.
Contested Material Facts.
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
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
f. When Plaintiff Hernandez did not respond to him, Defendant
Fitzgerald grabbed Plaintiff's cell phone and used force
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.
Defendant's Material Contested Facts:
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
f. Whether Deputy Fitzgerald's conduct was reasonable