United States District Court, D. New Mexico
RUBEN O. FAVELA, Plaintiff,
CITY OF LAS CRUCES ex rel. LAS CRUCES POLICE DEPARTMENT; LAS CRUCES POLICE OFFICERS MATTHEW DOLLAR and MANUEL SOTO; PHC-LAS CRUCES, INC., a New Mexico Corporation, d/b/a MEMORIAL MEDICAL CENTER; DANIELLE WILHELM, M.D.; JAMES PROCTOR, R.N.; JAMIE PITTS, R.N.; JOSE REVELES, R.N.; CASSANDRIA BRANCH, R.N., and JOHN DOE SECURITY GUARDS 1 and 2, Defendants.
R. Coronado Law Offices of Jose R. Coronado Las Cruces, New
Mexico Attorney for the Plaintiff
L. Martínez Haley R. Grant Holt Mynatt Martínez
P.C. Attorneys for Defendants City of Las Cruces ex rel. Las
Cruces Police Department, Matthew Dollar, and Manuel Soto
Scott Mann Kathryn Brack Morrow Kemp Smith LLP Attorneys for
Defendants PHC-Las Cruces, Inc. d/b/a Memorial Medical
Center, James Proctor, Jamie Pitts, Jose Reveles, and
MATTER comes before the Court on Defendants [Matthew Dollar
and Manuel Soto's] Motion and Supporting Memorandum for
Qualified Immunity and Summary Judgment, filed February 6,
2018 (Doc. 30) (“Motion”). The Court held a
hearing on July 2, 2018. The primary issue is whether
Defendants Matthew Dollar and Manuel Soto are entitled to
qualified immunity and summary judgment with respect to: (i)
Counts I and IX of the Complaint to Recover Damages for
Deprivation of Civil Rights and Personal Injury at 1, filed
in state court on May 2, 2017, filed in federal court on May
18, 2017 (Doc. 1-1)(“Complaint”), because
probable cause supported the traffic stop and subsequent
detention, and (ii) the Complaint's Counts II-III and
VIII-IX, because neither Dollar nor Soto participated in the
catheterization of which Plaintiff Ruben O. Favela complains.
Counts I-III and Counts VIII-IX are the only counts that
Favela brings against Dollar and Soto. The Court concludes
that probable cause supports the traffic stop and subsequent
detention, and that neither Dollar nor Soto participated in
the catheterization, so they cannot be liable for any harm it
caused. Further, the Court concludes that if Soto violated
Favela's rights by not stopping the forced
catheterization, this right was not clearly established when
Soto acted. Accordingly, the Court determines that Dollar and
Soto are entitled qualified immunity, because they did not
violate Favela's clearly established constitutional
rights, and grants the Motion.
Court draws the factual background from the parties'
undisputed material facts in the Motion; in the Response to
Defendants' Motion and Supporting Memorandum for
Qualified Immunity and Summary Judgment, filed March 15, 2018
(Doc. 36)(“Response”); and in the Defendants'
Reply in Support of Motion and Supporting Memorandum for
Qualified Immunity and Summary Judgment, filed March 29, 2018
(Doc. 37)(“Reply”). The facts of this case are
essentially undisputed. See Response at 2 (not
disputing all but one of Dollar and Soto's thirty-nine
proffered undisputed material facts); Reply ¶¶ 1-9,
at 2 (not disputing the substantive content of any of
Favela's twenty-four proffered undisputed material
April 13, 2016, Dollar, a police officer with the Las Cruces
Police Department (“LCPD”), observed Favela
riding his motorcycle at approximately ninety miles an hour
through an intersection that had a posted speed limit of
thirty-five miles an hour. See Motion ¶¶
1-2, at 4 (setting forth this fact) (citing Affidavit of
Matthew Dollar ¶¶ 3-7, at 1-2 (dated February 1,
2018), filed February 6, 2018 (Doc. 30-1)(“Dollar
Aff.”)); Response at 2 (not disputing this fact). Upon
seeing Favela, Dollar activated the emergency lights on his
police unit and pursued Favela for a distance, pacing Favela
at approximately seventy-five miles an hour. See
Motion ¶¶ 3-4, at 4 (setting forth this fact)
(citing Dollar Aff. ¶¶ 8-9, at 2); Response at 2
(not disputing this fact). Favela eventually slowed after
Dollar activated the sirens on his police unit, but did not
stop for another nine blocks, at which point Favela made a
sharp U-turn and stopped his motorcycle on a city sidewalk in
a position directly in front of Dollar's police unit.
See Motion ¶¶ 4-5, at 4 (setting forth
this fact) (citing Dollar Aff. ¶¶ 9-10, at 2);
Response at 2 (not disputing this fact). Dollar informed
dispatch of his location, requested back up, and parked his
police unit in front of Favela, who had not yet dismounted
his motorcycle nor shut off its power. See Motion
¶¶ 6-8, at 4 (setting forth this fact) (citing
Dollar Aff. ¶¶ 11-15, at 2); Response at 2 (not
disputing this fact). Dollar then exited his police unit with
his sidearm drawn and ordered Favela to cut the power to his
motorcycle. See Motion ¶ 8, at 4 (setting forth
this fact) (citing Dollar Aff. ¶¶ 13-15, at 2);
Response at 2 (not disputing this fact). After revving his
motorcycle engine, Favela complied, at which point Dollar
holstered his sidearm. See Motion ¶ 8, at 4
(setting forth this fact) (citing Dollar Aff. ¶¶
13-15, at 2); Response at 2 (not disputing this fact).
Favela had shut off the power to this motorcycle, Dollar
activated his lapel footage. See Motion ¶ 9, at
5 (setting forth this fact) (citing Dollar Aff. ¶¶
5, 16, at 2; Matthew Dollar Lapel Video 1 at 00:35-00:40
(dated April 13, 2016), filed February 6, 2018 (Doc.
30-1)(“Dollar Video 1”)); Response at 2 (not
disputing this fact). As Favela was dismounting his
motorcycle, Dollar noticed what he believed to be a handgun
protruding from underneath Favela's jacket. See
Motion ¶¶ 10, 15, at 5 (setting forth this fact)
(citing Dollar Aff. ¶¶ 17, 22, at 2-3; Dollar Video
1 at 03:45-04:00, 01:30-01:35); Response at 2 (not disputing
this fact). Upon seeing the weapon, Dollar ordered Favela to
turn around so Dollar could pat him down. See Motion
¶ 11, at 5 (setting forth this fact) (citing Dollar Aff.
¶¶ 18 at 3; Dollar Video 1 at 00:35-00:40);
Response at 2 (not disputing this fact). Dollar eventually
threatened to taser Favela before Dollar was able to pat down
Favela. See Motion ¶¶ 11-13, at 5 (setting
forth this fact) (citing Dollar Aff. ¶¶ 18-20, at
3; Dollar Video 1 at 00:30-00:45, 00:40-01:00); Response at 2
(not disputing this fact). Dollar then secured the handgun on
Favela's person and placed Favela in handcuffs.
See Motion ¶¶ 13-15, at 5 (setting forth
this fact) (citing Dollar Aff. ¶¶ 20- 22, at 3;
Dollar Video 1 at 00:40-01:00, 01:15-01:20, 01:30-01:35);
Response at 2 (not disputing this fact). During this time,
Favela began sweating profusely in a manner that indicated to
Dollar that Favela was under the influence of an intoxicating
substance. See Motion ¶ 16, at 5 (setting forth
this fact) (citing Dollar Aff. ¶ 23, at 3; Dollar Video
1 at 01:50-1:55); Response at 2 (not disputing this fact).
Dollar then placed a handcuffed Favela in the back of his
police unit. See Motion ¶ 17, at 5 (setting
forth this fact) (citing Dollar Video 1 at 01:50-01:55);
Response at 2 (not disputing this fact).
the back of Dollar's police unit, Favela began to express
that he was hot and felt that he may pass out. See
Motion ¶ 19, at 6 (setting forth this fact) (citing
Dollar Aff. ¶ 25, at 3; Dollar Video 1 at 03:30-05:10);
Response at 2 (not disputing this fact). Favela repeatedly
requested that Dollar take off Favela's jacket and
neckband. See Motion ¶ 19, at 6 (setting forth
this fact) (citing Dollar Aff. ¶ 25, at 3; Dollar Video
1 at 03:30-05:10); Response at 2 (not disputing this fact).
After waiting for backup to arrive, Dollar removed
Favela's neckband and opened the door of the police unit
for Favela. See Motion ¶ 21, at 6 (setting
forth this fact) (citing Dollar Aff. ¶ 26, at 3; Dollar
Video 1 at 05:20-06:45); Response at 2 (not disputing this
fact). Dollar then attempted to read Favela his
Miranda rights; Favela, however, passed out in the
back of Dollar's police unit as his Miranda
rights were read to him. See Motion ¶¶
22-23, at 6 (setting forth this fact) (citing Dollar Aff.
¶ 27-29, at 3; Dollar Video 1 at 07:10-07:45,
08:00-08:15); Response at 2 (not disputing this fact). At
this point, other officers at the scene contacted emergency
services to tend to Favela. See Motion ¶ 23, at
6 (setting forth this fact) (citing Dollar Aff. ¶¶
28-29, at 3; Dollar Video 1 at 08:00-08:15); Response at 2
(not disputing this fact). Officers removed Favela from the
back of Dollar's police unit and laid Favela on the
sidewalk while waiting for emergency services. See
Motion ¶ 25, at 6 (setting forth this fact) (citing
Dollar Aff. ¶ 30, at 4; Dollar Video 1 at 10:20-10:45);
Response at 2 (not disputing this fact). Favela faded in and
out of consciousness while being moved from the police unit
to the sidewalk. See Motion ¶ 25, at 6 (setting
forth this fact) (citing Dollar Aff. ¶ 30, at 4; Dollar
Video 1 at 10:20-10:45); Response at 2 (not disputing this
the officers were waiting for emergency personnel, Dollar
requested that dispatch run a “Triple-I
check” on Favela to determine whether Favela had
any warrants. Motion ¶ 24, at 6 (setting forth this
fact) (citing Dollar Aff. ¶ 30, at 4; Dollar Video 1 at
13:10-13:50). See Response at 2 (not disputing this
fact). While waiting for this information from dispatch,
Dollar informed other officers at the scene that Favela would
be under arrest regardless what dispatch informed, because
Favela had concealed a firearm without a permit. See
Motion ¶ 27, at 7 (setting forth this fact) (citing
Dollar Aff. ¶ 31, at 4; Dollar Video 1 at 16:20-16:20);
Response at 2 (not disputing this fact). Dispatch then
informed Dollar that Favela had a previous felony conviction
for shooting from a vehicle. See Motion ¶ 26,
at 7 (setting forth this fact) (citing Dollar Aff.
¶¶ 30-32; Dollar Video 1 at 17:15-17:25; Response
at 2 (not disputing this fact).
emergency services arrived on the scene, Favela was loaded
into an ambulance. See Motion ¶¶ 28-29, at
7 (setting forth this fact) (citing Affidavit of Manuel Soto
¶¶ 6-8, at 1-2 (dated February 5, 2018), filed
February 6, 2018 (Doc. 30-2)(“Soto Aff.”);
Officer Manuel Soto Lapel Video 1 at 04:40-05:10, 13:30,
16:45-17:05 (dated April 13, 2016), filed February 6, 2018
(Doc. 30-2)(“Soto Video 1”); Dollar Aff. ¶
33, at 4; Officer Matthew Dollar Video 2 at 00:45-01:45
(dated April 13, 2016), filed February 6, 2018 (Doc.
30-1)(“Dollar Video 2”)); Response at 2 (not
disputing this fact). At this point, Favela regained
consciousness and began asking what happened. See
Motion ¶ 29, at 7 (setting forth this fact) (citing
Dollar Aff. ¶ 33, at 4; Dollar Video 2 at 00:45-01:45);
Response at 2 (not disputing this fact). Dollar informed
Favela that he was under arrest for concealing a firearm and
that officers were further investigating Favela as a felon in
possession of a firearm. See Motion ¶ 29, at 7
(setting forth this fact) (citing Dollar Aff. ¶ 33, at
4; Dollar Video 2 at 00:45-01:45); Response at 2 (not
disputing this fact). Favela was further informed that he
could either leave the ambulance if he answered emergency
personnel's questions or go to the hospital if he did not
answer questions. See Motion ¶ 30, at 7
(setting forth this fact) (citing Dollar Video 2 at
00:45-01:45); Response at 2 (not disputing this fact). Favela
was instructed that he was going to jail regardless whether
he answered emergency personnel's questions. See
Motion ¶ 30, at 7 (setting forth this fact) (citing
Dollar Video 2 at 00:45-01:45); Response at 2 (not disputing
this fact). Favela refused to answer questions, and emergency
personnel accordingly transported Favela to Memorial Medical
Center (“Memorial Medical”) hospital.
See Motion ¶ 31, at 7 (setting forth this fact)
(citing Dollar Aff. ¶ 34, at 4); Response at 2 (not
disputing this fact). Dollar remained at the scene and Soto,
an officer with LCPD, followed Favela and emergency personnel
to Memorial Medical. See Motion ¶ 32, at 7
(setting forth this fact) (citing Dollar Aff. ¶ 34, at
4); Response at 2 (not disputing this fact). Dollar no longer
had any contact with Favela. See Transcript of
Hearing at 9:14-21 (taken July 2, 2018)(Court, Coronado,
Martinez), filed October 31, 2018 (Doc.
52)(“Tr.”)(noting the undisputed nature of this
at Memorial Medical informed Favela that they would need a
blood test and a urine sample to clear him for transportation
to the jail. See Motion ¶ 35, at 8 (setting
forth this fact) (citing Soto Aff. at ¶¶ 13-14, at
2; Officer Manuel Soto Lapel Video 2 at 00:45-01:00,
01:15-01:25 (dated April 13, 2016), filed February 6, 2018
(Doc. 30-2)(“Soto Video 2”)); Response at 2 (not
disputing this fact). Favela was also informed that his
failure to give a urine sample would result in staff
catheterizing Favela to collect the urine. See
Motion ¶ 35, at 8 (setting forth this fact) (citing Soto
Aff. at ¶¶ 13-14, at 2; Soto Video 2 at
00:45-01:00, 01:15-01:25); Response at 2 (not disputing this
fact). Soto was standing in the doorway of the hospital room
while Memorial Medical staff attempted to collect urine
samples from Favela. See Response ¶ 15, at 4
(setting forth this fact) (citing Soto Video 2); Reply ¶
6, at 2 (admitting this fact). Favela was handcuffed to a
floor mattress with Soto's police-issued handcuffs.
See Response ¶ 2, at 2 (setting forth this
fact) (citing Soto Video 2); Reply ¶ 1, at 2 (admitting
this fact). Favela was provided with water so he could
provide a urine sample. See Response ¶ 10, at 3
(setting forth this fact) (citing Transcript of Officer
Manuel Soto's April 13, 2016 Lapel Video at 4:1-2, filed
March 3, 2018 (Doc. 36-1)(“Tr. of Soto Lapel”));
Reply ¶ 3, at 2 (admitting this fact). Favela became
agitated, began screaming and crying, and had to be
restrained by seven male nurses. See Response ¶
13, at 3 (setting forth this fact) (citing Tr. of Soto Lapel
at 7:16-25, 8:1-25; Soto Video 2); Reply ¶ 4, at 2
(admitting this fact). At this point, Soto entered the
hospital room and removed the handcuffs from Favela, and
Memorial Medical staff placed Favela in soft restraints.
See Response ¶ 14, at 4 (setting forth this
fact) (citing Tr. of Soto Lapel at 8:5-13; Soto Video 2);
Reply ¶ 7, at 2 (not disputing this fact). While Favela
was placed in soft restraints, Soto received an incoming call
on his cellular telephone. See Response ¶ 16,
at 4 (setting forth this fact) (citing Tr. of Soto Lapel at
9:12); Reply ¶ 4, at 2 (not disputing this fact). This
call informed Soto that the District Attorney was not going
to charge Favela with felony possession of a deadly weapon,
because the District Attorney was waiting on a report
regarding Favela's felony status. See Motion
¶ 38, at 8 (setting forth this fact) (citing Soto Aff.
¶¶ 18-19, at 2-3; Soto Video 2 at 06:55-07:45);
Response at 2 (not disputing this fact). After receiving this
information, Soto remained in the room with Favela while
Memorial Medical staff attempted to collect a urine sample
from Favela. See Response ¶ 23, at 4-5 (setting
forth this fact) (citing Tr. of Soto Lapel at 12:1-25; Soto
Video 2); Reply ¶ 8, at 2 (admitting this fact). Favela
was not willing to provide a urine sample; Memorial Medical
staff subsequently used a straight catheter on Favel to
obtain a urine sample. See Tr. at 9:2-8 (Coronado)
(stating a catheterization of Favela occurred at Memorial
Medical); id. at 11:19-25 (Martinez) (noting the
undisputed nature of this fact). As Favela was not yet
charged, Favela was then released from the hospital of his
own recognizance. See Motion ¶ 38, at 8
(setting forth this fact) (citing Soto Aff. at ¶¶
18-19, at 2-3; Soto Video 2 at 06:55-07:45); Response at 2
(not disputing this fact).
filed his Complaint in state court on May 2, 2017. He brings
nine counts against the Defendants. See Complaint
¶¶ 63-107, at 9-15. In Count I, Favela alleges
Defendants City of Las Cruces, Dollar, and Solo violated his
rights under the Fourth Amendment of the Constitution of the
United States by detaining him for an unreasonable amount of
time without probable cause, constituting a constructive
arrest, and bringing him to Memorial Medical to conduct a
search of his body without a warrant. See Complaint
¶¶ 63-69, 72 at 9-10. In Count II, Favela alleges
Dollar, Solo, and the Memorial Medical Defendants -- Memorial
Medical, Dr. Danielle Wilhelm, Jamie Pitts, James Proctor,
Jose Reveles, and Cassandria Branch -- violated Favela's
Fourth Amendment rights by forcibly inserting a straight
catheter without a valid arrest or law enforcement
authority. See Complaint ¶¶ 75-78, at 10.
In Count III, Favela alleges Dollar, Solo, and the Memorial
Medical Defendants violated his Fourth Amendment rights by
extracting his urine without probable cause or a warrant.
See Complaint ¶¶ 81-84, at 11. Favela
alleges in Count IV that the Memorial Medical Defendants
breached their duty to conform to professional standards by
forcibly obtaining Favela's urine sample without consent
or probable cause via straight catheterization. See
Complaint ¶¶ 87-89, at 11-12. In Count V, Favela
alleges that Memorial Medical and Dr. Wilhelm failed to
obtain his informed consent to treatment, as the law
requires, or should have known it was given “under
duress and/or revoked by Plaintiff prior to treatment,
” Complaint ¶ 95, at 13, and thus “failed to
comport with professional standards, ” Complaint ¶
96, at 13. See id. ¶¶ 93-96, at 13. In
Count VI, Favela alleges that, if Dr. Wilhelm is not Memorial
Medical's employee, Memorial Medical was negligent in
selecting Dr. Wilhelm as a staff physician and granting her
staff privileges, or, alternatively, that Memorial Medical
was negligent in failing to supervise Dr. Wilhelm and
determining whether she possessed the care and skill an
emergency room doctor requires. See Complaint
¶¶ 99-100, at 13-14. In Count VII, Favela alleges
Memorial Medical and Dr. Wilhelm are “engaging in
commerce by providing services, ” the New Mexico Unfair
Practices Act, N.M. Stat. Ann. §§ 57-12-1 to-26
(“NMUPA”), binds them, and they violated the
NMUPA by “engaging in unconscionable trade
practices” when they billed Favela for a medical
service he refused and did not request. See
Complaint ¶¶ 101-04, at 14. In Count VIII, Favela
alleges Soto, Memorial Medical, Dr. Wilhelm, and Memorial
Medical personnel acted in concert to commit assault and
battery against Favela by physically inserting a straight
catheter into him to extract urine. See Complaint
¶¶ 108-11, at 15. Finally, Favela alleges in Count
IX that Soto, Memorial Medical, Dr. Wilhelm, and Memorial
Medical personnel intentionally and unlawfully confined him
in room 18 of Memorial Medical without his consent or a valid
arrest, constituting false imprisonment. See
Complaint ¶¶ 113-16, at 15.
and Soto move the Court to grant them qualified immunity and
summary judgment under rule 56 of the Federal Rules of Civil
Procedure by filing their Motion on February 6, 2018.
See Motion at 1. Regarding Count I, Soto argues that
he could not have invaded Favela's Fourth Amendment
rights during the traffic stop, because he was not involved
with the stop and an officer can be liable only if his own
actions proximately violate the Fourth Amendment.
See Motion at 10 (citing Martinez v.
Carson, 697 F.3d 1252, 1255 (10th Cir. 2012)). Dollar
argues that Favela's reckless driving provided reasonable
suspicion to conduct the traffic stop, while Favela's
“concealed weapon and felony possession of a firearm
supplied probable cause for continued detention until his
release.” Motion at 10-11. Dollar asserts that an
officer may perform a pat-down search for weapons when he has
specific information leading him to believe the individual is
armed or dangerous. See Motion at 15. Dollar and
Soto thus argue that there is no constitutional violation nor
clearly established law to prevent their asserting qualified
immunity as to the traffic stop and pat-down search.
See Motion at 17-18. Finally, Dollar and Soto
contend that the Triple-I report showing Favela's lack of
a concealed firearm permit and his felony conviction for
shooting from a motor vehicle provide probable cause for his
arrest, and that Dollar and Soto were thus acting
appropriately in their continued detention of Favela.
See Motion at 20-21.
Counts II, III, VIII, and IX, Dollar and Soto assert that the
evidence clearly shows that they were not involved in
Favela's catheterization, or any of Memorial Medical and
its staff's alleged wrongful acts. See Motion at
21. Dollar and Soto also contend that any force which they
used was reasonable. See Motion at 21-22. Dollar and
Soto further assert that there is probable cause to support
Favela's detention, and thus any false imprisonment
claims alleged under the federal Constitution or the
Constitution of the State of New Mexico must fail.
See Motion at 22-24.
responded to the Motion on March 15, 2018. See
Response at 1. Favela concedes that the law which Dollar and
Soto cites regarding Count I shows that they had probable
cause to conduct the traffic stop and reasonable suspicion to
conduct the pat down, and thus will not resist the
Court's ruling in their favor on this Count. See
Response at 1-2.
challenges, however, the assertion that Soto had no part in
Favela's treatment or catheterization, and thus disputes
that Soto is entitled to qualified immunity on Counts II,
III, VIII, and IX. See Response at 5. Favela asserts
that Soto “set into motion a chain of events that he
knew would lead to the deprivation of [Favela's]
constitutional rights.” Response at 5-7. Favela relies
on Martinez v. Carson, and Trask v. Franco,
446 F.3d 1036 (10th Cir. 2006), to establish the proposition
that an actor can be held liable for harm caused when he or
she “sets in motion a series of events that are
reasonably likely to cause the deprivation of a
constitutional right.” Response at 7. See id.
at 8. Favela contends that the Memorial Medical Defendants
only insisted on taking a blood and urine sample from him,
because Soto told them he was under arrest and had to be
medically cleared before being transported to the detention
center. See Response at 8. Favela notes that Soto
knew before the forced catheterization that Favela would not
be held in the detention center and was free to go but did
not tell the nurses that there was no longer a reason to
clear Favela for confinement. See Response at 8-9.
Favela alleges that Soto knew or should have known that the
catheterization, as an intrusion into the human body,
requires a search warrant to perform absent exigent
circumstances. See Response at 9 (citing
Schmerber v. California, 384 U.S. 757 (1966)).
Favela further contends that Soto knew or should have known
that a catheterization without informed consent, a search
warrant, or an emergency would shock the conscience.
See Response at 10 (citing Rochin v.
California, 342 U.S. 165 (1952); Yanez v.
Romero, 619 F.2d 851 (10th Cir. 1980); Woods v.
Brumlop, 1962-NMSC-133, 377 P.2d 520). Favela asserts
that Soto is thus proximately liable for the harm that the
Memorial Medical Defendants caused, “because at least
some of this harm would not have occurred but for Soto's
failure to inform them that [Favela] was free to go, that
there was no need for a medical clearance.” Response at
and Soto replied to Favela's Response on March 29, 2018.
See Reply at 1. Soto reasserts his entitlement to
qualified immunity under Counts II, III, VIII, and IX by
noting that Favela was transported to Memorial Medical
because he lost consciousness during the traffic stop and not
for any “criminal investigatory purpose.” Reply
at 3. Soto alleges that he “had no reason to believe
that Plaintiff's medical clearance was part of, or would
lead to, any violation of his rights.” Reply at 3. Soto
asserts that, even if the Memorial Medical Defendants
violated Favela's rights, he was not a but-for cause of
the violation. See Reply at 4. Soto states that
Favela “was under MMC's exclusive care and control
until he would have been released to Soto's custody,
” and that Favela has not cited to any clearly
established law so as to waive Soto or Dollar's qualified
immunity. Reply at 4.
proceeds to note that Favela concedes probable cause
supported his arrest and does not dispute the probable cause
supporting his detention at Memorial Medical. See
Reply at 5. While Favela argues that the District
Attorney's decision not to charge Favela terminated the
basis for continued detention, Soto asserts that the District
Attorney's “decision does not implicate the
probable cause supporting” detention. Reply at 5. Soto
alleges that Favela's loss of consciousness instituted
the responsibility of the arresting officers to provide him
with medical treatment. See Reply at 6. Further,
Soto argues that the forced catheterization was done only to
ensure Favela's health and not to support criminal
charges. See Reply at 6-7. Soto notes that Favela
was not arrested on drug-related charges, or any other
charges supporting the need for a urine or blood sample.
See Reply at 7.
the state law claims, Soto states that he “did not
unlawfully touch, attempt to touch, threaten, insult, or in
any way batter or assault” Favela. Reply at 8. Soto
alleges that his “interactions with Plaintiff were
limited to removing his handcuffs and verbally confirming
that failure to comply with MMC staff would force staff to
catheterize” him. Reply at 8. Soto states that this
contact was “sanctioned by his law enforcement
authority and probable cause.” Reply at 8 (citing
Santillo v. N.M. Dep't of Pub. Safety,
2007-NMCA-159, ¶ 14, 173 P.3d 6, 10-11). Finally, Soto
argues that probable cause supports the arrest and continued
detention of Favela, thus no false imprisonment claims can
stand. See Reply at 9.
Court held a hearing on July 2, 2018, to hear argument
regarding Dollar and Soto's Motion. See Tr. at
7:18-21 (Court). The Court quickly determined that all claims
against Dollar should be dismissed, allowing the parties to
argue only regarding Soto's conduct. See Tr. at
9:11-16 (Court, Coronado). Accordingly, Dollar and Soto
started with arguments regarding whether Soto is entitled to
qualified immunity on Fourth Amendment unreasonable search
and excessive force claims. See Tr. at 9:17-10:7
(Court, Martinez). Dollar and Soto argued that there was no
constitutional violation resulting from their handcuffing of
Favela, because the initial search and seizure was proper --
as Favela conceded. See Tr. at 11:12-18 (Martinez).
They further argued that Soto cannot be liable for any
excessive force claim from Favela's catheterization,
because Soto “was not involved in that aspect of the
hospital process, ” did not transport Favela to the
hospital, and was at the hospital only because Favela was
going to be arrested. Tr. at 11:24-25 (Martinez). See
id. at 11:7-12:2 (Martinez). All Soto did at the
hospital, he argued, was remove the handcuffs that he had
placed on Favela so the medical staff could place Favela in
soft restraints and complete their medical clearance of him.
See Tr. at 12:2-5 (Martinez). Favela argued in
response that Soto is liable, because he participated in the
excessive force used against Favela by permitting the
hospital staff to catheterize Favela despite knowing that he
was not going to be charged or detained. See Tr. at
13:16-14:19 (Coronado). He also argued that Favela was no
longer under arrest once Soto learned charges were not going
to be brought. See Tr. at 15:16-21 (Coronado).
Favela argued that this news meant the excessive force of the
hospital staff in catheterizing Favela against his will and
without any medical necessity can be imputed onto Soto for
not stopping it. See Tr. at 22:8-22 (Coronado).
Memorial Medical, Proctor, Pitts, Reveles, and Branch posited
their belief that the catheter was medically necessary
because of Favela's history of losing consciousness that
night, although they conceded it was unclear whether he would
be in the emergency room but for his interaction with the
police. See Tr. at 28:13-17 (Brack Morrow);
id. at 29:1-4, 13-20 (Brack Morrow). Dollar and Soto
noted that Favela was only at Memorial Medical because Dollar
responsibly called an ambulance to ensure Favela's health
after he passed out during the arrest. See Tr. at
31:2-6 (Martinez). In response, Favela could not produce any
cases with a similar factual situation to show the law is
clearly established that this was excessive force on
Soto's part. See Tr. at 38:25-39:2 (Coronado).
Dollar and Soto asserted the requirement for Favela to tender
a case on point establishing officers must stop any force in
the medical providers catheterizing Favela. See Tr.
at 42:2-12 (Martinez).
whether the catheterization constituted an unreasonable
search, Dollar and Soto argued that the catheterization was
done only to obtain a medical clearance and to ensure Favela
was healthy, with no evidence showing the urine was used for
any other purpose. See Tr. at 43:25-44:24
(Martinez). Favela responded that no bodily intrusion may be
made, even in a non-criminal setting, without a search
warrant unless there are exigent circumstances -- which were
not present here. See Tr. at 45:23-46:8 (Coronado).
He further argued that Soto is liable for this violation
because he knew that the arrest was not enduring and that
Favela was free to leave once Soto learned no charges would
be brought that night, but still permitted Memorial Medical
to conduct a search. See Tr. at 45:9-15 (Coronado).
Dollar and Soto countered that the law is not clearly
established that what Soto did is a constitutional violation,
and that officers are still entitled to qualified immunity
when they should have known that probable cause to make an
arrest has dissipated. See Tr. at 48:1-18
(Martinez). As to the state law claims of assault and
battery, Dollar and Soto asserted that Soto cannot be held
liable, because he had no contact with Favela during the
catheterization. See Tr. at 51:1-9 (Martinez).
Finally, as to the state law claim of false imprisonment,
they argued that Soto again cannot be liable because there
was probable cause to make the stop and seizure. See
Tr. at 51:10-19 (Martinez). Favela reasserted that Soto was
present during the catheterization and should have ended the
encounter once he learned charges were going to be dropped,
but because he did not stop the catheterization, he is liable
for assault, battery, and false imprisonment. See
Tr. at 52:15-20 (Coronado, Court).
REGARDING MOTIONS FOR SUMMARY JUDGMENT
56(a) states: “The court shall grant summary judgment
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
bears the initial burden of ‘show[ing] that there is an
absence of evidence to support the nonmoving party's
case.'” Herrera v. Santa Fe Pub. Sch., 956
F.Supp.2d 1191, 1221 (D.N.M. 2013)(Browning, J.) (alteration
in Herrera v. Santa Fe Pub. Sch.) (quoting
Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d
887, 891 (10th Cir. 1991)). See Celotex Corp. v.
Catrett, 477 U.S. 317, 323
Before the court can rule on a party's motion for summary
judgment, the moving party must satisfy its burden of
production in one of two ways: by putting evidence into the
record that affirmatively disproves an element of the
nonmoving party's case, or by directing the court's
attention to the fact that the non-moving party lacks
evidence on an element of its claim, “since a complete
failure of proof concerning an essential element of the
nonmoving party's case necessarily renders all other
facts immaterial.” Celotex, 477 U.S.
at 323-25. On those issues for which it bears the burden of
proof at trial, the nonmovant “must go beyond the
pleadings and designate specific facts to make a showing
sufficient to establish the existence of an element essential
to his case in order to survive summary judgment.”
Cardoso v. Calbone, 490 F.3d 1194, 1197 (10th Cir.
2007)(internal quotations and brackets omitted).
Plustwik v. Voss of Nor. ASA, No. 2:11CV00757 DS,
2013 WL 1945082, at *1 (D. Utah May 9, 2013)(Sam, J.).
“If the moving party will bear the burden of
persuasion at trial, that party must support its motion with
credible evidence -- using any of the materials specified in
Rule 56(c) --that would entitle it to a directed verdict if
not controverted at trial.” Celotex, 477 U.S.
at 331 (Brennan, J., dissenting) (emphasis in
original). Once the movant meets this burden, rule 56
requires the nonmoving party to designate specific facts
showing that there is a genuine issue for trial. See
Celotex, 477 U.S. at 324; Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 256 (1986)(“Liberty
Lobby”). In American Mechanical Solutions, LLC
v. Northland Piping, Inc., 184 F.Supp.3d 1030 (D.N.M.
2016)(Browning, J.), the Court granted summary judgment for
the defendant when the plaintiff did not offer expert
evidence supporting causation or proximate causation in its
See 184 F.Supp.3d at 1075-78. The Court reasoned
that the plaintiff could prove neither the breach-of-contract
claim's causation requirement nor the
proximate-causation requirement with mere common knowledge,
and so New Mexico law required that the plaintiff bolster its
arguments with expert testimony, which the plaintiff had not
provided. See 184 F.Supp.3d at 1067, 1073, 1075,
1079. Without the requisite evidence, the plaintiff, the
Court determined, failed to prove “an essential element
of the nonmoving party's case, ” rendering
“all other facts immaterial.” 184 F.Supp.3d at
1075 (internal quotation marks omitted) quoting Plustwik
v. Voss of Nor. ASA, 2013 WL 1945082, at *1). Thus, if a
plaintiff has the burden of proof, and the plaintiff has no
competent evidence, the defendant may move, without any
competent evidence itself, past the plaintiff's lack of
competent evidence, and secure summary judgment.
See, e.g., Celotex, 477 U.S. at
323-25 (providing that summary judgment is proper where a
plaintiff lacks evidence on an essential element of its
case); Am. Mech. Sols., LLC v. Northland Piping,
Inc., 184 F.Supp.3d at 1075 (granting summary judgment
because plaintiff lacked evidence on causation); Morales
v. E.D. Entyre & Co., 382 F.Supp.2d 1252, 1272
(D.N.M. 2005)(Browning, J.) (granting summary judgment
because plaintiff lacked competent evidence that defendants
defectively manufactured an oil distributor). A conclusory
assertion that the plaintiff lacks evidence is insufficient,
however, to secure summary judgment; the defendant must make
some evidentiary showing that the plaintiff lacks competent
evidence. See Halley v. Huckaby, 902 F.3d 1136, 1143
(10th Cir. 2018)(stating that summary judgment may be
warranted if the movant notes a lack of evidence for an
essential element of the claim). See also 11 James
William Moore et al., Moore's Federal Practice
§ 56.40[b][iv], at 56-109 to -111 (3d ed. 2018).
party opposing a motion for summary judgment must “set
forth specific facts showing that there is a genuine issue
for trial as to those dispositive matters for which it
carries the burden of proof.” Applied Genetics
Int'l, Inc. v. First Affiliated Sec., Inc., 912 F.2d
1238, 1241 (10th Cir. 1990). See Vitkus v. Beatrice
Co., 11 F.3d 1535, 1539 (10th Cir. 1993)(“However,
the nonmoving party may not rest on its pleadings but must
set forth specific facts showing that there is a genuine
issue for trial as to those dispositive matters for which it
carries the burden of proof.” (internal quotation marks
omitted) (quoting Applied Genetics Int'l Inc. v.
First Affiliated Sec., Inc., 912 F.2d at 1241). Rule
56(c)(1) provides: “A party asserting that a fact . . .
is genuinely disputed must support the assertion by . . .
citing to particular parts of materials in the record,
including depositions, documents, electronically stored
information, affidavits or declarations, stipulations
(including those made for purposes of the motion only),
admissions, interrogatory answers, or other materials . . .
.” Fed.R.Civ.P. 56(c)(1)(A). It is not enough for the
party opposing a properly supported motion for summary
judgment to “rest on mere allegations or denials of his
pleadings.” Liberty Lobby, 477 U.S. at 259.
See Abercrombie v. City of Catoosa, 896 F.2d 1228,
1231 (10th Cir. 1990); Otteson v. United States, 622
F.2d 516, 519 (10th Cir. 1980)(“[O]nce a properly
supported summary judgment motion is made, the opposing party
may not rest on the allegations contained in his complaint,
but must respond with specific facts showing the existence of
a genuine factual issue to be tried.” (internal
quotation marks omitted) (quoting Coleman v. Darden,
595 F.2d 533, 536 (10th Cir. 1979)).
a party “avoid summary judgment by repeating conclusory
opinions, allegations unsupported by specific facts, or
speculation.” Colony Nat'l Ins. v. Omer,
No. 07-2123-JAR, 2008 WL 2309005, at *1 (D. Kan. June 2,
2008)(Robinson, J.)(citing Fed.R.Civ.P. 56(e); Argo v.
Blue Cross & Blue Shield of Kan., Inc., 452 F.3d
1193, 1199 (10th Cir. 2006)(McConnell, J.)). “In
responding to a motion for summary judgment, ‘a party
cannot rest on ignorance of facts, on speculation, or on
suspicion and may not escape summary judgment in the mere
hope that something will turn up at trial.'”
Colony Nat'l Ins. v. Omer, 2008 WL 2309005, at
*1 (quoting Conaway v. Smith, 853 F.2d 789, 794
(10th Cir. 1988)).
a motion for summary judgment, genuine factual issues must
exist that “can be resolved only by a finder of fact
because they may reasonably be resolved in favor of either
party.” Liberty Lobby, 477 U.S. at 250. A mere
“scintilla” of evidence will not avoid summary
judgment. Vitkus v. Beatrice Co., 11 F.3d at 1539
(citing Liberty Lobby, 477 U.S. at 248). Rather,
there must be sufficient evidence on which the fact finder
could reasonably find for the nonmoving party. See
Liberty Lobby, 477 U.S. at 251 (quoting Schuylkill
& Dauphin Improvement Co. v. Munson, 81 U.S. (14
Wall.) 442, 448 (1871)(“Schuylkill”);
Vitkus v. Beatrice Co., 11 F.3d at 1539.
“[T]here is no issue for trial unless there is
sufficient evidence favoring the nonmoving party for a jury
to return a verdict for that party. If the evidence is merely
colorable or is not significantly probative, summary judgment
may be granted.” Liberty Lobby, 477 U.S. at
249 (citations omitted). Where a rational trier of fact,
considering the record as a whole, cannot find for the
nonmoving party, “there is no ‘genuine issue for
trial.'” Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986)(quoting First
Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S.
253, 289 (1968)).
reviewing a motion for summary judgment, the court should
keep in mind certain principles. First, the court's role
is not to weigh the evidence, but to assess the threshold
issue whether a genuine issue exists as to material facts
requiring a trial. See Liberty Lobby, 477 U.S. at
249. Second, the ultimate standard of proof is relevant for
purposes of ruling on a summary judgment, such that, when
ruling on a summary judgment motion, the court must
“bear in mind the actual quantum and quality of proof
necessary to support liability.” Liberty
Lobby, 477 U.S. at 254. Third, the court must resolve
all reasonable inferences and doubts in the nonmoving
party's favor, and construe all evidence in the light
most favorable to the nonmoving party. See Hunt v.
Cromartie, 526 U.S. 541, 550-55 (1999); Liberty
Lobby, 477 U.S. at 255 (“The evidence of the
non-movant is to be believed, and all justifiable inferences
are to be drawn in his favor.” (citation omitted)).
Fourth, the court cannot decide any issues of credibility.
See Liberty Lobby, 477 U.S. at 255.
are, however, limited circumstances in which the court may
disregard a party's version of the facts. This doctrine
developed most robustly in the qualified immunity arena. In
Scott v. Harris, 550 U.S. 372 (2007), the Supreme
Court of the United States concluded that summary judgment is
appropriate where video evidence quite clearly contradicted
the plaintiff's version of the facts. See 550
U.S. at 378-81. The Supreme Court explained:
At the summary judgment stage, facts must be viewed in the
light most favorable to the nonmoving party only if there is
a “genuine” dispute as to those facts. Fed. Rule
Civ. Proc. 56(c). As we have emphasized, “[w]hen the
moving party has carried its burden under Rule 56(c), its
opponent must do more than simply show that there is some
metaphysical doubt as to the material facts . . . . Where the
record taken as a whole could not lead a rational trier of
fact to find for the nonmoving party, there is no
‘genuine issue for trial.'” Matsushita
Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S.
[at] 586-587 . . . (footnote omitted). “[T]he mere
existence of some alleged factual dispute between
the parties will not defeat an otherwise properly supported
motion for summary judgment; the requirement is that there be
no genuine issue of material fact.”
Anderson v. Liberty Lobby, Inc., 477 U.S. [at]
247-248 . . . . When opposing parties tell two different
stories, one of which is blatantly contradicted by the
record, so that no reasonable jury could believe it, a court
should not adopt that version of the facts for purposes of
ruling on a motion for summary judgment.
That was the case here with regard to the factual issue
whether respondent was driving in such fashion as to endanger
human life. Respondent's version of events is so utterly
discredited by the record that no reasonable jury could have
believed him. The Court of Appeals should not have relied on
such visible fiction; it should have viewed the facts in the
light depicted by the videotape.
Scott v. Harris, 550 U.S. at 380-81 (alterations in
Scott v. Harris) (emphasis in Liberty
Tenth Circuit applied this doctrine in Thomson v. Salt
Lake County, 584 F.3d 1304 (10th Cir. 2009), and
[B]ecause at summary judgment we are beyond the pleading
phase of the litigation, a plaintiff's version of the
facts must find support in the record: more specifically,
“[a]s with any motion for summary judgment,
‘[w]hen opposing parties tell two different stories,
one of which is blatantly contradicted by the record, so that
no reasonable jury could believe it, a court should not adopt
that version of the facts[.]'” York v. City of
Las Cruces, 523 F.3d 1205, 1210 (10th Cir. 2008)(quoting
Scott, 550 U.S. at 380); see also Estate of
Larsen ex rel. Sturdivan v. Murr, 511 F.3d 1255, 1258
(10th Cir. 2008)[(Tymkovich, J.)].
Thomson v. Salt Lake Cty., 584 F.3d at 1312 (second
alteration in Thomson v. Salt Lake Cty., third and
fourth alterations in York v. City of Las Cruces).
“The Tenth Circuit, in Rhoads v. Miller, [352
Fed.Appx. 289 (10th Cir. 2009)(Tymkovich, J.) (unpublished),
] explained that the blatant contradictions of the record
must be supported by more than other witnesses'
testimony[.]” Lymon v. Aramark Corp., 728
F.Supp.2d 1222, 1249 (D.N.M. 2010)(Browning, J.),
aff'd, 499 Fed.Appx. 771 (10th Cir. 2012).
REGARDING QUALIFIED IMMUNITY
immunity recognizes the “need to protect officials who
are required to exercise their discretion and the related
public interest in encouraging the vigorous exercise of
official authority.” Butz v. Economou, 438
U.S. 478, 506 (1978). “Qualified immunity protects
federal and state officials from liability for discretionary
functions, and from ‘the unwarranted demands
customarily imposed upon those defending a long drawn-out
lawsuit.'” Roybal v. City of Albuquerque,
No. CIV 08-0181 JB/LFG, 2009 WL 1329834, at *10 (D.N.M. April
28, 2009)(Browning, J.) (quoting Siegert v. Gilley,
500 U.S. 226, 232 (1991)). The Supreme Court deems it
“untenable to draw a distinction for purposes of
immunity law between suits brought against state officials
under § 1983 and suits brought directly under the
Constitution against federal officials.” Butz v.
Economou, 438 U.S. at 504. See Bivens v. Six Unknown
Named Agents of Fed. Bureau of Narcotics, 403
U.S. 388, 392 (1971)(“Bivens”).
“The qualified immunity analysis is the same whether
the claims are brought under Bivens or pursuant to
the post-Civil War Civil Rights Acts.” Breidenbach
v. Bolish, 126 F.3d 1288, 1291 (10th Cir. 1997),
overruled on other grounds as recognized by
Currier v. Doran, 242 F.3d 905 (10th Cir. 2001).
§ 1983 and Bivens, a plaintiff may seek money
damages from government officials who have violated his or
her constitutional or statutory rights. To ensure, however,
that fear of liability will not “unduly inhibit
officials in the discharge of their duties, ”
Anderson v. Creighton, 483 U.S. 635, 638 (1987), the
officials may claim qualified immunity; so long as they have
not violated a “clearly established” right, the
officials are shielded from personal liability, Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982).
That means a court can often avoid ruling on the
plaintiff's claim that a particular right exists. If
prior case law has not clearly settled the right, and so
given officials fair notice of it, the court can simply
dismiss the claim for money damages. The court need never
decide whether the plaintiff's claim, even though novel
or otherwise unsettled, in fact has merit.
Camreta v. Greene, 563 U.S. 692, 705 (2011).
immunity shields government officials from liability where
“their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable
person would have known.” Pearson v. Callahan,
555 U.S. 223, 231 (2009)(internal quotation marks omitted)
(quoting Harlow v. Fitzgerald, 457 U.S. at 818).
Qualified immunity also shields officers who have
“reasonable, but mistaken beliefs, ” and operates
“to protect officers from the sometimes ‘hazy
border[s]'” of the law. Saucier v. Katz,
533 U.S. 194, 205 (2001)(quoting Priester v. City of
Riviera Beach, 208 F.3d 919, 926-27 (11th Cir. 2000)).
When a defendant asserts qualified immunity, the plaintiff
must demonstrate: (i) that the defendant's actions
violated his or her constitutional or statutory rights; and
(ii) that the right was clearly established at the time of
the alleged misconduct. See Riggins v. Goodman, 572
F.3d 1101, 1107 (10th Cir. 2009)(citing Pearson v.
Callahan, 555 U.S. at 232, 236). See also Pueblo of
Pojoaque v. New Mexico, 214 F.Supp.3d 1028, 1096 (D.N.M.
Procedural Approach to Qualified Immunity.
Supreme Court recently revisited the proper procedure for
lower courts to evaluate a qualified immunity defense. In
Pearson v. Callahan, the Supreme Court held that
lower courts “should be permitted to exercise their
sound discretion in deciding which of the two prongs of the
qualified immunity analysis should be addressed first in
light of the circumstances of the particular case at
hand.” 555 U.S. at 236. The Supreme Court also noted
that, while no longer mandatory, Saucier v.
Katz' protocol -- by which a court first decides if
the defendant's actions violated the Constitution, and
then the court determines if the right violated was clearly
established -- will often be beneficial. See Pearson v.
Callahan, 555 U.S. at 233, 236. In rejecting the prior
mandatory approach, the Supreme Court recognizes that
“[t]here are cases in which it is plain that a
constitutional right is not clearly established but far from
obvious whether in fact there is such a right, ” and
that such an approach burdens district courts and courts of
appeals with “what may seem to be an essentially
academic exercise.” 555 U.S. at 237. The Supreme Court
also recognizes that the prior mandatory approach
“departs from the general rule of constitutional
avoidance and runs counter to the ‘older, wiser
judicial counsel not to pass on questions of
constitutionality . . . unless such adjudication is
unavoidable.'” 555 U.S. at 241 (quoting Scott
v. Harris, 550 U.S. at 388). See Reichle v.
Howards, 566 U.S. 658, 664 (2012)(affirming Pearson
v. Callahan's procedure and noting that deciding
qualified immunity issues on the basis of a right being not
“clearly established” by prior case law
“comports with our usual reluctance to decide
constitutional questions unnecessarily”).
Supreme Court recognizes seven circumstances where district
courts “should address only” the clearly
established prong of the qualified immunity analysis,
Kerns v. Bader, 663 F.3d 1173, 1180 (10th Cir.
2011)(internal quotation marks omitted) (quoting Camreta
v. Greene, 563 U.S. at 707), when:
(1) the first, constitutional violation question “is so
factbound that the decision provides little guidance for
future cases”; (2) “it appears that the question
will soon be decided by a higher court”; (3) deciding
the constitutional question requires “an uncertain
interpretation of state law”; (4) “qualified
immunity is asserted at the pleading stage, ” and
“the precise factual basis for the . . . claim . . .
may be hard to identify”; (5) tackling the first
element “may create a risk of bad decisionmaking,
” due to inadequate briefing; (6) discussing both
elements risks “bad decisionmaking, ” because the
court is firmly convinced that the law is not clearly
established and is thus inclined to give little thought to
the existence of the constitutional right; or (7) the
doctrine of “constitutional avoidance” suggests
the wisdom of passing on the first constitutional question
when “it is plain that a constitutional right is not
clearly established but far from obvious whether in fact
there is such a right.”
Kerns v. Bader, 663 F.3d at 1180-81 (quoting
Pearson v. Callahan, 555 U.S. at 236-42). Regarding
the last of these seven circumstances, the Supreme Court has
clarified that courts may “avoid avoidance, ” and
address the first prong before the second prong in cases
involving a recurring fact pattern, where guidance on the
constitutionality of the challenged conduct is necessary, and
the conduct is likely to face challenges only in the
qualified immunity context. Camreta v. Greene, 563
U.S. at 706. See Kerns v. Bader, 663 F.3d at
1181. “Courts should think carefully
before expending ‘scarce judicial resources' to
resolve difficult and novel questions of constitutional or
statutory interpretation that will ‘have no effect on
the outcome of the case.'” Ashcroft v.
al-Kidd, 563 U.S. 731, 735 (2011)(quoting Pearson v.
Callahan, 555 U.S. at 236-37). See Camreta v.
Greene, 563 U.S. at 707 (“In general, courts
should think hard, and then think hard again, before turning
small cases into large ones.”). The Tenth Circuit will
remand a case to the district court for further consideration
when the district court has given only cursory treatment to
qualified immunity's clearly established prong. See
Kerns v. Bader, 663 F.3d at 1182. See also Kerns v.
Bd. of Comm'rs of Bernalillo Cty., 888 F.Supp.2d
1176, 1202 (D.N.M. 2012)(Browning, J.), abrogated on
other grounds as recognized by Ysasi v. Brown, 3
F.Supp.3d 1088, 1130 n.24 (D.N.M. 2014)(Browning, J.).
Clearly Established Rights.
determine whether a right was clearly established, a court
must consider whether the right was sufficiently clear that a
reasonable government employee would understand that what he
or she did violated a right. See Casey v. W. Las Vegas
Indep. Sch. Dist., 473 F.3d 1323, 1327 (10th Cir.
2007)(Gorsuch, J.). “A clearly established right is
generally defined as a right so thoroughly developed and
consistently recognized under the law of the jurisdiction as
to be ‘indisputable' and
‘unquestioned.'” Lobozzo v. Colo.
Dep't of Corr., 429 Fed.Appx. 707, 710 (10th Cir.
2011)(unpublished) (quoting Zweibon v. Mitchell,
720 F.2d 162, 172-73 (D.C. Cir. 1983)).
in order for the law to be clearly established, there must be
a Supreme Court or Tenth Circuit decision on point, or the
clearly established weight of authority from other courts
must have found the law to be as the plaintiff
maintains.” Medina v. City & Cty. of
Denver, 960 F.2d 1493, 1498 (10th Cir. 1992),
overruled in part on other grounds by Cty. of Sacramento
v. Lewis, 523 U.S. 833 (1998), as recognized by
Morris v. Noe, 672 F.3d 1185, 1197 n.5 (10th Cir. 2012).
“In determining whether the right was ‘clearly
established,' the court assesses the objective legal
reasonableness of the action at the time of the alleged
violation and asks whether ‘the contours of the right
[were] sufficiently clear that a reasonable official would
understand that what he is doing violates that
right.'” Holland ex rel. Overdorff v.
Harrington, 268 F.3d 1179, 1186 (10th Cir.
2001)(alteration in Holland ex rel. Overdorff v.
Harrington) (quoting Saucier v. Katz, 533 U.S.
at 202). A court should inquire “whether the law put
officials on fair notice that the described conduct was
unconstitutional” rather than engage in “a
scavenger hunt for cases with precisely the same
facts.” Pierce v. Gilchrist, 359 F.3d 1279,
1298 (10th Cir. 2004)(McConnell, J.).
Supreme Court has clarified that qualified immunity's
clearly established prong is a very high burden for the
plaintiff: “A Government official's conduct
violates clearly established law when, at the time of the
challenged conduct, ‘[t]he contours of [a] right [are]
sufficiently clear' that every ‘reasonable official
would have understood that what he is doing violates that
right.'” Ashcroft v. al-Kidd, 563 U.S. at
741 (alterations in Ashcroft v. al-Kidd) (quoting
Anderson v. Creighton, 483 U.S. at 640. “In
other words, ‘existing precedent must have placed the
statutory or constitutional question beyond
debate.'” Reichle v. Howards, 566 U.S. at
664 (quoting Ashcroft v. al-Kidd, 563 U.S. at 741).
“The operation of this standard, however, depends
substantially upon the level of generality at which the
relevant ‘legal rule' is to be identified.”
Anderson v. Creighton, 483 U.S. at 639. “The
general proposition, for example, that an unreasonable search
or seizure violates the Fourth Amendment is of little help in
determining whether the violative nature of particular
conduct is clearly established.” Ashcroft v.
al-Kidd, 563 U.S. at 742. The level of generality at
which the legal rule is defined is important, because
qualified immunity shields officers who have
“reasonable, but mistaken beliefs” as to the
application of law to facts and operates “to protect
officers from the sometimes ‘hazy border[s]'”
of the law. Saucier v. Katz, 533 U.S. at 205
(quoting Priester v. City of Riviera Beach, 208 F.3d
case on point isn't required if the impropriety of the
defendant's conduct is clear from existing case law,
” but the law is not clearly established where “a
distinction might make a constitutional
difference.” Kerns v. Bader, 663 F.3d at
1186-87 (emphasis in original). In Kerns v.
Bader, dealing with the search of a home, the Tenth
Circuit explained that the relevant question
“wasn't whether we all have some general privacy
interest in our homes, ” but “whether it was
beyond debate in 2005 that the officers' entry
and search lacked legal justification.” 663 F.3d at
1183 (emphasis added). Furthermore, “general statements
of the law are not inherently incapable of giving fair and
clear warning.” Hope v. Pelzer, 536 U.S. 730,
the Tenth Circuit has recognized “a sliding
scale” for qualified immunity's clearly established
inquiry, Casey v. City of Fed. Heights, 509 F.3d
1278, 1284 (10th Cir. 2007)(McConnell, J.)(“We have
therefore adopted a sliding scale to determine when law is
clearly established.”), the Tenth Circuit may have
since walked back its holding that a sliding scale is the
appropriate approach, see Aldaba v. Pickens, 844
F.3d 870, 876 (10th Cir. 2016)(“Aldaba
II”). In Aldaba II, the Tenth Circuit
reconsidered its ruling from Aldaba v. Pickens, 777
F.3d 1148 (10th Cir. 2015)(“Aldaba I”),
that officers were entitled to qualified immunity after the
Supreme Court vacated its decision in light of Mullenix
v. Luna, 136 S.Ct. 305 (2015)(per curiam). In concluding
that it had previously erred in Aldaba I, the Tenth
We erred . . . by relying on excessive-force cases markedly
different from this one. Although we cited Graham v.
Connor, 490 U.S. 386 . . . (1989) to lead off our
clearly-established-law discussion, we did not just repeat
its general rule and conclude that the officers' conduct
had violated it. Instead, we turned to our circuit's
sliding-scale approach measuring degrees of egregiousness in
affirming the denial of qualified immunity. Aldaba,
777 F.3d at 1159. We also relied on several cases resolving
excessive-force claims. But none of those cases remotely
involved a situation as here . .
Aldaba II, 844 F.3d at 876. The Tenth Circuit
further noted that its sliding-scale approach may have fallen
out of favor, because the sliding-scale test relies, in part,
on Hope v. Pelzer, 536 U.S. at 739-41, and the
Supreme Court's most recent qualified immunity decisions
do not invoke that case. See Aldaba II, 844 F.3d at
874 n.1. See also Lowe v. Raemisch, 864 F.3d 1205,
1211 n.10 (10th Cir. 2017)(“But our sliding-scale
approach may arguably conflict with recent Supreme Court
precedent on qualified immunity.”). The Tenth Circuit
To show clearly established law, the Hope Court did
not require earlier cases with “fundamentally
similar” facts, noting that “officials can still
be on notice that their conduct violates established law even
in novel factual circumstances.” [Hope v.
Pelzer, 536 U.S.] at 741 . . . . This calls to mind our
sliding-scale approach measuring the egregiousness of
conduct. See Morris v. Noe, 672 F.3d 1185, 1196
(10th Cir. 2012). But the Supreme Court has vacated our
opinion here and remanded for us to reconsider our opinion in
view of Mullenix, which reversed the Fifth Circuit
after finding that the cases it relied on were “simply
too factually distinct to speak clearly to the specific
circumstances here.” 136 S.Ct. at 312. We also note
that the majority opinion in Mullenix does not cite
Hope v. Pelzer, 536 U.S. 730 . . . (2002). As can
happen over time, the Supreme Court might be emphasizing
different portions of its earlier decisions.
Aldaba II, 844 F.3d at 874 n.1. Since Aldaba
II, the Supreme Court has reversed, per curiam, another
Tenth Circuit qualified immunity decision. See White v.
Pauly, 137 S.Ct. 548, 551 (2017)(per curiam). In
concluding that police officers were entitled to qualified
immunity, the Supreme Court emphasized: “As this Court
explained decades ago, the clearly established law must be
‘particularized' to the facts of the case.”
White v. Pauly, 137 S.Ct. at 552 (quoting
Anderson v. Creighton, 483 U.S. at 640). With that
principle in mind, the Supreme Court explained that the Tenth
Circuit “panel majority misunderstood the
‘clearly established' analysis: It failed to
identify a case where an officer acting under similar
circumstances as Officer White was held to have violated the
Fourth Amendment.” White v. Pauly, 137 S.Ct.
at 552. See District of Columbia v. Wesby,
138 S.Ct. 577, 591 (2018)(“Tellingly, neither the panel
majority nor the partygoers have identified a single
precedent -- much less a controlling case or robust consensus
of cases -- finding a Fourth Amendment violation ‘under
similar circumstances.'” (quoting White
v. Pauly, 137 S.Ct. at 552)). Although the Supreme
Court noted that “we have held that [Tennessee
v. ]Garner[, 471 U.S. 1 (1985), ] and
Graham[ v. Connor] do not by themselves
create clearly established law outside ‘an obvious
case, '” it concluded “[t]his is not a case
where it is obvious that there was a violation of clearly
established law under Garner and
Graham.” White v. Pauly, 137 S.Ct. at
552 (quoting Brosseau v. Haugen, 436 U.S. 194, 199
LAW REGARDING LIABILITY FOR CONSTITUTIONAL VIOLATIONS UNDER
42 U.S.C. § 1983
1983 of Title 42 of the United States Code provides:
Every person who under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or
the District of Columbia, subjects, or causes to be
subjected, any citizen of the United States or other person
within the jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the Constitution
and laws, shall be liable to the party injured in an action
at law, suit in equity, or other proper proceeding for
redress, except that in any action brought against a judicial
officer for an act or omission taken in such officer's
judicial capacity, injunctive relief shall not be granted
unless a declaratory decree was violated or declaratory
relief was unavailable. For the purposes of this section, any
Act of Congress applicable exclusively to the District of
Columbia shall be considered to be a statute of the District
42 U.S.C. § 1983. “To state a claim under §
1983, a plaintiff must allege the violation of a right
secured by the Constitution and laws of the United States,
and must show that the alleged deprivation was committed by a
person acting under color of state law.” West v.
Atkins, 487 U.S. 42, 48 (1988). Individual,
non-supervisory defendants may be liable if they knew or
reasonably should have known that their conduct would lead to
the deprivation of a plaintiff's constitutional rights by
others, and an unforeseeable intervening act has not
terminated their liability. See Martinez v. Carson,
697 F.3d at 1255 (“The requisite causal connection is
satisfied if [Defendants] set in motion a series of events
that [Defendants] knew or reasonably should have known would
cause others to deprive [Plaintiffs] of [their]
constitutional rights.” (alterations in Martinez v.
Carson) (internal quotation marks omitted) (quoting
Trask v. Franco, 446 F.3d at 1046)). The Supreme
Court has made clear that there is no respondeat superior
liability under 42 U.S.C. § 1983. See Ashcroft v.
Iqbal, 556 U.S. 662, 676 (2009)(“Because vicarious
liability is inapplicable to Bivens and § 1983
suits, a plaintiff must plead that each Government-official
defendant, through the official's own individual actions,
has violated the Constitution.”); Bd. of Cty.
Comm'rs of Bryan Cty. v. Brown, 520 U.S. 397, 403
(1997)(stating that “a municipality may not be held
liable under § 1983 solely because it employs a
tortfeasor”). “An entity cannot be held liable
solely on the basis of the existence of an employer-employee
relationship with an alleged tortfeasor.” Garcia v.
Casaus, No. CIV 11-0011 JB/RHS, 2011 WL 7444745, at *25
(D.N.M. Dec. 8, 2011)(Browning, J.) (citing Monell v.
Dep't of Soc. Servs., 436 U.S. 658, 689 (1978)).
Supervisors can be held liable only for their own
unconstitutional or illegal policies, and not for the
employees' tortious acts. See Barney v.
Pulsipher, 143 F.3d 1299, 1307-08 (10th Cir.
Color of State Law.
Section 1983, liability attaches only to conduct occurring
‘under color of law.'” Gallagher v. Neil
Young Freedom Concert, 49 F.3d 1442, 1447 (10th Cir.
1995). The under-color-of-state-law requirement is a
“‘jurisdictional requisite for a § 1983
action,' which . . . furthers the fundamental goals of
‘preserv[ing] an area of individual freedom by limiting
the reach of federal law . . . [and] avoid[ing] imposing on
the State, its agencies or officials, responsibility for
conduct for which they cannot fairly be blamed.'”
Jojola v. Chavez, 55 F.3d 488, 492 (10th Cir.
1995)(alterations in Jojola v. Chavez)(first quoting
Polk Cty. v. Dodson, 454 U.S. 312, 315 (1981); and
then quoting Gallagher v. Neil Young Freedom
Concert, 49 F.3d at 1447). “The traditional
definition of acting under color of state law requires that
the defendant in a § 1983 action have exercised power
‘possessed by virtue of state law and made possible
only because the wrongdoer is clothed with the authority of
state law.'” West v. Atkins, 487 U.S. at
49 (quoting United States v. Classic, 313 U.S. 299,
326 (1941)). “The authority with which the defendant is
allegedly ‘clothed' may be either actual or
apparent.” Jojola v. Chavez, 55 F.3d at 493.
Accordingly, at a base level, to conclude that an action was
taken under color of state law, the court must determine that
“‘the conduct allegedly causing the deprivation
of a federal right' [is] ‘fairly attributable to
the State.'” Gallagher v. Neil Young Freedom
Concert, 49 F.3d at 1447 (quoting Lugar v. Edmondson
Oil Co., 457 U.S. 922, 937 (1982)).
Tenth Circuit has directed that, while “‘state
employment is generally sufficient to render the defendant a
state actor . . . [, ]' at the same time, it is
‘well settled that an otherwise private tort is not
committed under color of law simply because the tortfeasor is
an employee of the state.'” Jojola v.
Chavez, 55 F.3d at 493 (first quoting Lugar v.
Edmondson Oil Co., 457 U.S. at 935-36 n.18; and then
quoting Mark v. Borough of Hatboro, 51 F.3d 1137,
1150 (3d Cir. 1995)). Thus, “before conduct may be
fairly attributed to the state because it constitutes action
‘under color of state law,' there must be ‘a
real nexus' between the employee's use or misuse of
their authority as a public employee, and the violation
allegedly committed by the defendant.” Jojola v.
Chavez, 55 F.3d at 493. What constitutes the required
real nexus, however, is not completely clear. As the Tenth
Circuit has stated, whether there is a real nexus in a
particular case depends on the circumstances:
The under color of law determination rarely depends on a
single, easily identifiable fact, such as the officer's
attire, the location of the act, or whether or not the
officer acts in accordance with his or her duty. Instead one
must examine “the nature and circumstances of the
officer's conduct and the relationship of that conduct to
the performance of his official duties.”
David v. City & Cty. of Denver, 101 F.3d 1344,
1353 (10th Cir. 1996)(citations omitted) (quoting
Martinez v. Colon, 54 F.3d 980, 986 (1st Cir.
actors may be liable for the constitutional violations that
another committed, if the actors “set in motion a
series of events that the defendant[s] knew or reasonably
should have known would cause others to deprive the plaintiff
of [his] constitutional rights, ” thus establishing the
“requisite causal connection” between the
government actor's conduct and a plaintiff's
constitutional deprivations. Trask v. Franco, 446
F.3d at 1046 (internal quotation marks omitted) (quoting
Snell v. Tunnell, 920 F.2d 673, 700 (10th Cir.
1990)). The Tenth Circuit has explained that § 1983
liability “should be read against the background of
tort liability that makes a man responsible for the natural
consequences of his actions.” Martinez v.
Carson, 697 F.3d at 1255 (internal quotation marks
omitted) (quoting Monroe v. Pape, 365 U.S. 167, 187
(1961), overruled in part by Monell v. Dep't of Soc.
Servs., 436 U.S. at 663). “Thus, Defendants are
liable for the harm proximately caused by their
conduct.” Martinez v. Carson, 697 F.3d at 1255
(citing Trask v. Franco, 446 F.3d at 1046). As the
Court has previously concluded, “a plaintiff who
establishes liability for deprivations of constitutional
rights actionable under 42 U.S.C. § 1983 is entitled to
recover compensatory damages for all injuries suffered as a
consequence of those deprivations. The recovery should be
guided by common-law tort principles -- including principles
of causation . . . .” Train v. City of
Albuquerque, 629 F.Supp.2d 1243, 1251 (D.N.M.
Tenth Circuit has found liability for those defendants who
proximately caused an injury alleged under § 1983 and
stated that the fact that the “conduct of other people
may have concurrently caused the harm does not change the
outcome as to [the defendant], ” so long as there was
not a superseding, intervening cause of a plaintiff's
harm. Lippoldt v. Cole, 468 F.3d 1204, 1220 (10th
Even if a factfinder concludes that the residential search
was unlawful, the officers only “would be liable for
the harm ‘proximately' or ‘legally'
caused by their tortious conduct.” Bodine v.
Warwick, 72 F.3d 393, 400 (3d Cir. 1995). “They
would not, however, necessarily be liable for all of the harm
caused in the ‘philosophic' or but-for sense by the
illegal entry.” Id. In civil rights cases, a
superseding cause, as we traditionally understand it in tort
law, relieves a defendant of liability. See,
e.g., Warner v. Orange County Dep't of
Prob., 115 F.3d 1068, 1071 (2d Cir. 1997); Springer
v. Seaman, 821 F.2d 871, 877 (1st Cir. 1987),
abrogated on other grounds by Jett v. Dallas Indep. Sch.
Dist., 491 U.S. 701 . . . (1989).
Trask v. Franco, 446 F.3d at 1046. Thus, in the
context of a claim under the Fourth Amendment, the Tenth
Circuit has held that government actors “may be held
liable if the further unlawful detention and arrest would not
have occurred but for their conduct and if there were no
unforeseeable intervening acts superseding their
liability.” Martinez v. Carson, 697 F.3d at
1255 The Tenth Circuit gave an example of a
superseding-intervening cause, quoting the Honorable Samuel
J. Alito, then-United States Circuit Judge for the United
States Court of Appeals for the Third Circuit:
“Suppose that three police officers go to a
suspect's house to execute an arrest warrant and that
they improperly enter without knocking and announcing their
presence. Once inside, they encounter the suspect, identify
themselves, show him the warrant, and tell him that they are
placing him under arrest. The suspect, however, breaks away,
shoots and kills two of the officers, and is preparing to
shoot the third officer when that officer disarms the suspect
and in the process injures him. Is the third officer
necessarily liable for the harm caused to the suspect on the
theory that the illegal entry without knocking and announcing
rendered any subsequent use of force unlawful? The obvious
answer is “no.” The suspect's conduct would
constitute a “superseding” cause, see
Restatement (Second) of Torts § 442 (1965), that
would limit the officer's liability. See Id.
Trask v. Franco, 446 F.3d at 1046 (quoting
Bodine v. Warwick, 72 F.3d at 400). Additionally,
“[f]oreseeable intervening forces are within the scope
of the original risk, and . . . will not supersede the
defendant's responsibility.” Trask v.
Franco, 446 F.3d at 1047 (internal quotation marks
omitted) (quoting William Lloyd Prosser et al., Prosser
and Keeton on Torts § 44, at 303-04 (5th ed.1984)).
[I]f “the reasonable foreseeability of [an intervening
act's occurrence] is a factor in determining whether the
intervening act relieves the actor from liability for his
antecedent [wrongful act], and under the undisputed facts
there is room for reasonable difference of opinion as to
whether such act was [wrongful] or foreseeable, the question
should be left for the jury.”
Trask v. Franco, 446 F.3d at 1047 (second, third,
and fourth alterations added by Trask v. Franco)
(quoting Restatement (Second) of Torts § 453 cmt. b).
Tenth Circuit has held that supervisors are not liable under
42 U.S.C. § 1983 unless there is “an affirmative
link . . . between the constitutional deprivation and either
the supervisor's personal participation, . . . exercise
of control or direction, or . . . failure to
supervise.” Gallagher v. Shelton, 587 F.3d
1063, 1069 (10th Cir. 2009)(internal quotation marks omitted)
quoting Green v. Branson, 108 F.3d 1296, 1302 (10th
Cir. 1997)). Because supervisors can be held liable only for
their own constitutional or illegal policies, and not for the
torts that their employees commit, supervisory liability
requires a showing that such policies were a
“‘deliberate' or ‘conscious'
choice.” Barney v. Pulsipher, 143 F.3d at 1307
(quoting City of Canton v. Harris, 489 U.S. 378, 389
(1989)). Accord Bd. of Cty. Comm'rs of Bryan Cty. v.
Brown, 520 U.S. at 404 (“[I]t is not enough for a
§ 1983 plaintiff merely to identify conduct properly
attributable to the municipality. The plaintiff must also
demonstrate that, through its deliberate conduct,
the municipality was the ‘moving force' behind the
injury alleged.” (emphasis in original)).
Tenth Circuit has recognized that Ashcroft v. Iqbal
limited, but did not eliminate, “supervisory liability
for government officials based on an employee's or
subordinate's constitutional violations.”
Garcia v. Casaus, 2011 WL 7444745, at *25 (citing
Dodds v. Richardson, 614 F.3d 1185 (10th Cir.
2010)). The language that may have altered the landscape for
supervisory liability in Ashcroft v. Iqbal is as
follows: “Because vicarious liability is inapplicable
to Bivens and § 1983 suits, a plaintiff must
plead that each Government-official defendant, through the
official's own individual actions, has violated the
Constitution.” Ashcroft v. Iqbal, 556 U.S. at
676. The Tenth Circuit in Dodds v. Richardson held:
Whatever else can be said about Iqbal, and certainly
much can be said, we conclude the following basis of §
1983 liability survived it and ultimately resolves this case:
§ 1983 allows a plaintiff to impose liability upon a
defendant-supervisor who creates, promulgates, implements, or
in some other way possesses responsibility for the continued
operation of a policy the enforcement (by the
defendant-supervisor or her subordinates) of which
“subjects, or causes to be subjected” that
plaintiff “to the deprivation of any rights . . .
secured by the Constitution . . . .”
614 F.3d at 1199 (quoting 42 U.S.C. § 1983). The Tenth
Circuit noted that Ashcroft v. Iqbal “does not
purport to overrule existing Supreme Court precedent, ”
but stated that “Iqbal may very well have
abrogated § 1983 supervisory liability as we previously
understood it in this circuit in ways we do not need to
address to resolve this case.” Dodds v.
Richardson, 614 F.3d at 1200. It concluded that
Ashcroft v. Iqbal did not alter “the Supreme
Court's previously enunciated § 1983 causation and
personal involvement analysis.” Dodds v.
Richardson, 614 F.3d at 1200. The Tenth Circuit, based
on this conclusion, set forth a test for supervisory
liability under § 1983 after Ashcroft v. Iqbal:
A plaintiff may . . . succeed in a § 1983 suit against a
defendant-supervisor by demonstrating: (1) the defendant
promulgated, created, implemented or possessed responsibility
for the continued operation of a policy that (2) caused the
complained of constitutional harm, and (3) acted with the
state of mind required to establish the alleged
Dodds v. Richardson, 614 F.3d at 1199 (citing
Summum v. City of Ogden, 297 F.3d 995, 1000 (10th
Cir. 2002)). The Tenth Circuit noted, however: “We do
not mean to imply that these are distinct analytical prongs,
never to be intertwined.” Dodds v. Richardson,
614 F.3d at 1199 n.8. Relying on the Supreme Court's
opinion in Board of County Commissioners of Bryan County
v. Brown, the Tenth Circuit reasoned that two of the
prongs often, if not always, are sufficient proof that the
third prong has been met also:
“Where a plaintiff claims that a particular municipal
action itself violates federal law, or directs an employee to
do so, resolving these issues of fault and causation is
straightforward. Section 1983 itself contains no
state-of-mind requirement independent of that necessary to
state a violation of the underlying federal right. In any
§ 1983 suit, however, the plaintiff must establish the
state of mind required to prove the underlying violation.
Accordingly, proof that a municipality's legislative body
or authorized decisionmaker has intentionally deprived a
plaintiff of a federally protected right necessarily
establishes that the municipality acted culpably. Similarly,
the conclusion that the action taken or directed by the
municipality or its authorized decisionmaker itself violates
federal law will also determine that the municipal action was
the moving force behind the injury of which the plaintiff
Dodds v. Richardson, 614 F.3d at 1199-1200 n.8
(internal quotation marks and citations omitted)(quoting
Bd. of Cty. Comm'rs of Bryan Cty. v. Brown, 520
U.S. at 404-05). The Tenth Circuit noted: “We think the
same logic applies when the plaintiff sues a
defendant-supervisor who promulgated, created, implemented or
possessed responsibility for the continued operation of a
policy that itself violates federal law.” Dodds v.
Richardson, 614 F.3d at 1200 n.8. Thus, the Tenth
Circuit reduced the test to what is essentially a two-part
test for supervisor liability, requiring the plaintiff to
prove “an ‘affirmative' link . . . between
the unconstitutional acts by their subordinates and their
‘adoption of any plan or policy . . . -- express or
otherwise -- showing their authorization or approval of such
misconduct.'” Dodds v. Richardson, 614
F.3d at 1200-01 (quoting Rizzo v. Goode, 423 U.S.
362, 371 (1976)).
REGARDING STATE ACTION AND CIVIL-RIGHTS CLAIMS
Supreme Court has stated that it is a
judicial obligation . . . to not only
“‘preserv[e] an area of individual freedom by
limiting the reach of federal law' and avoi[d] the
imposition of responsibility on a State for conduct it could
not control, ” [Nat'l Collegiate Athletic
Ass'n v.] Tarkanian, [488 U.S. 179');">488 U.S. 179, 191
(2001)](quoting Lugar, supra, at 936-937 .
. .), but also to assure that constitutional standards are
invoked “when it can be said that the State is
responsible for the specific conduct of which the
plaintiff complains, ” Blum [v.
Yartesky, 457 U.S. 991, 1004 (1982)](emphasis in
Brentwood Acad. v. Tenn. Secondary Sch. Athletic
Ass'n, 531 U.S. 288, 295 (2001)(first two
alterations in Brentwood Acad. v. Tenn. Secondary Sch.
Athletic Ass'n). Most rights under the Constitution
secure protection only against infringement through state
action. See, e.g., Flagg
Bros., Inc. v. Brooks, 436 U.S. 149, 156
(1978)(“[M]ost rights secured by the Constitution are
protected only against infringement by governments.”).
Under some circumstances, however, private parties'
conduct may be deemed to be state action when “the
conduct allegedly causing the deprivation of a federal right
may be fairly attributable to the State.” Lugar v.
Edmondson Oil Co., 457 U.S. at 937. Whether the
conduct may in fact be “fairly attributed” to the
state requires a two-part inquiry. Lugar v. Edmondson Oil
Co., 457 U.S. at 937. “First, the deprivation must
be caused by the exercise of some right or privilege created
by the State or by a rule of conduct imposed by the state or
by a person for whom the State is responsible.”
Lugar v. Edmondson Oil Co., 457 U.S. at
937. “Second, the party charged with the deprivation
must be a person who may fairly be said to be a state
actor.” Lugar v. Edmondson Oil Co., 457 U.S.
at 937. See West v. Atkins, 487 U.S. at 48
(explaining that, to state a claim under § 1983, the
plaintiff must show: (i) a deprivation of a right that the
federal Constitution or federal laws secure; and (ii) that a
person acting under color of state law caused the
Supreme Court in Lugar v. Edmondson Oil Co.
explained that the two prongs merge when the claim is
“directed against a party whose official character is
such as to lend the weight of the State to his decisions,
” whereas they remain distinct when analyzing private
parties' conduct. 457 U.S. at 937. The first prong of
Lugar v. Edmondson Oil Co.'s test -- that the
deprivation of a right is attributable to the state -- is
satisfied when “the authority of state officials . . .
put the weight of the State behind their private
decision.” 457 U.S. at 940. The second prong,
identification of a defendant as a state actor, is met where
the defendant “is a state official, because he has
acted together with or has obtained significant aid from
state officials, or because his conduct is otherwise
chargeable to the State.” 457 U.S. at 937. The Supreme
Court applied these prongs and determined that the
plaintiff's allegation that private unlawful conduct
deprived him of his property without due process failed to
state a claim under § 1983. See 457 U.S. at
940. The Supreme Court also held that the plaintiff's
claim, which alleged that the private parties had invoked a
state statute maliciously or without valid grounds, did not
give rise to state action. See 457 U.S. at 940.
Instead, that claim amounted to nothing more than the private
misuse or abuse of a state statute. See 457 U.S. at
private individual to act under color of state law, the
deprivation of a federal right “must be caused by the
exercise of some right or privilege created by the State or
by a rule of conduct imposed by the state or by a person for
whom the State is responsible, ” and the defendant
accused of a constitutional deprivation “must be a
person who may fairly be said to be a state actor[, ] . . .
because he is a state official, because he has acted together
with or has obtained significant aid from state officials, or
because his conduct is otherwise chargeable to the
State.” Lugar v. Edmondson Oil Co., 457 U.S.
Congress did not, in using the term “under the color of
state law, ” intend to subject private citizens, acting
as private citizens, to a federal lawsuit whenever they seek
to initiate a prosecution or seek a remedy involving the
judicial system. To hold otherwise would significantly
disregard one purpose of the state action requirement, which
is to “preserve an area of individual freedom by
limiting the reach of federal law and federal judicial
power.” Lugar, 457 U.S. at 936 . . . .
Instead, in enacting § 1983, Congress intended to
provide a federal cause of action primarily when the actions
of private individuals are undertaken with state authority.
See Id. at 934. Thus, absent more, causing the
state, or an arm of the state, to initiate a prosecution or
serve process is insufficient to give rise to state action.
How v. City of Baxter Springs, 217 Fed.Appx. 787');">217 Fed.Appx. 787,
793 (10th Cir. 2007)(unpublished).
Whether There Is State Action by Private Actors is ...