United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
C. Herrera United States District Court Judge
MATTER is before the Court on Defendants'
First Motion for Partial Summary Judgment and Memorandum in
Support Thereof (“Motion for Summary
Judgment”) (ECF No. 41). After considering the
parties' filings, the record, and the relevant law, the
Court concludes that the motion for summary judgment should
be granted as to Defendants' requests to dismiss
Plaintiff's claim for violation of due process under the
Fourteenth Amendment against Defendants Aguilar and Loomis
and Plaintiff's § 1983 unlawful arrest claim against
Defendant Loomis. In all other respects, the Court will deny
judgment is appropriate “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). A fact is “material” if it
could have an effect on the outcome of the lawsuit.
Smothers v. Solvay Chems., Inc., 740 F.3d 530, 538
(10th Cir. 2014) (citation omitted). A dispute over a
material fact is “genuine” if the evidence
presented could allow a rational jury to find in favor of the
non-moving party. E.E.O.C. v. Horizon/CMS Healthcare
Corp., 220 F.3d 1184, 1190 (10th Cir. 2000) (internal
citation omitted). In considering a summary judgment motion,
the court views the facts in the light most favorable to the
non-moving party and draws all reasonable inferences in his
or her favor. Shero v. City of Grove, 510 F.3d 1196,
1200 (10th Cir. 2007).
seeking summary judgment bears the initial burden of showing
that there is no genuine dispute as to any material fact.
Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670
(10th Cir. 1998). When the movant does not have the burden of
persuasion at trial, it can satisfy its burden at the summary
judgment stage by identifying a lack of evidence on an
essential element of the claim. Id. at 671. If the
party seeking summary judgment satisfies its burden, the
burden then shifts to the non-movant to go beyond the
pleadings and set forth specific facts supported by reference
to affidavits, deposition transcripts, or other admissible
evidence. See id.
incident in this case was captured, at least in part, on the
police dashcam video, submitted as “Plaintiff's
Exhibit 4, ” and from Officer Aguilar's lapel
camera entitled “Plaintiff's Exhibit 3.” In a
case, such as this one, where there is a video recording
capturing the events in question, a court should view the
facts in the light depicted by the video recording. See
Scott v. Harris, 550 U.S. 372, 380-81 (2007).
“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.” Id. at 380.
Consequently, the facts set forth in the next section are
drawn from the undisputed evidence; the video recording; and,
for the facts not conclusively established in the video
recording, those facts that are supported by admissible
evidence and construed in the light most favorable to
Plaintiff, the non-moving party.
2:15 a.m. on August 3, 2014, Officer Brent Aguilar with the
Clovis Police Department conducted a traffic stop after
observing a vehicle speeding through a red light in Clovis,
New Mexico. See Defs.' Mot. for Summ. J.,
Undisputed Facts ¶¶ 1-2, ECF No. 1. Immediately
upon approaching the stopped vehicle, Officer Aguilar
instructed the driver, Teshia Lujan, to roll down the
back-passenger window while he shined his flashlight into the
rear driver side window. See id., Undisputed Fact
¶ 5; Pl.'s Ex. 3 at 00:17-:21. Plaintiff Jorge
Corona, a passenger in the back seat of the vehicle, asked
Officer Aguilar why he stopped the vehicle. Defs.' Mot.
for Summ. J., Undisputed Fact ¶ 5; Pl.'s Ex. 3 at
00:17. In response, Officer Aguilar said he was not talking
to him. Pl.'s Ex. 3 at 00:23-:24. While continuing to
shine his flashlight into the rear driver side window,
Officer Aguilar asked the driver for her license,
registration, and insurance. Id. 00:25-:27. A few
moments later, Ms. Lujan handed some papers out the window
and Officer Aguilar took the paperwork from her and asked if
she had her license with her. Id. at 00:46-:51.
Ms. Lujan searched for her license, Mr. Corona asked Officer
Aguilar why he stopped them. Defs.' Mot. for Summ. J.,
Undisputed Fact ¶ 5; Pl.'s Ex. 3 at 01:09-:11.
Officer Aguilar did not suspect Mr. Corona of committing a
crime at that point. Tr. 47:4-11, ECF No. 54 at 39. In
response to Mr. Corona's question, Officer Aguilar
stated, “You're not driving, buddy. You got
ID?” Id. at 1:12-:13. Mr. Corona responded,
“Nah. Why you stopping us?” Id. at
01:13-15. Officer Aguilar replied while shining his
flashlight in the back window, “Let me have your
ID.” Id. at 01:16. Again, Mr. Corona asked why
he stopped them, and Officer Aguilar once again replied,
“Let me have your ID.” Id. at 01:17-18.
Mr. Corona immediately asked again, “Why you stopping
us?” Id. at 01:19-20. Officer Aguilar
responded, “I'm gonna ask you one more time and
then I'm going to place you under arrest” and asked
for his Id. Id. at 01:20-22. Mr. Corona
asked, “for what?” Id. at 01:23. Officer
Aguilar then ordered Mr. Corona to step out of the car.
Id. at 01:24. During this approximately 15-second
interaction, Ms. Lujan continued to search for her license.
See Id. at 01:09-:22.
Corona got out of the car while asking again why he was
stopping them. Id. at 01:25-:35. Officer Aguilar
instructed him to turn around and face the car with
instructions to place his hands behind his back. Id.
at 01:35-:39. As Mr. Corona was being handcuffed and placed
against the car, he once more asked Officer Aguilar,
“why are you stopping us?” Id. at
1:36-38. Mr. Corona repeated his question and asked if he has
a reason to pull them over, to which Officer Aguilar replied,
“Yes, I do.” Id. at 1:38-1:48. When he
asked, “for what?” Officer Aguilar told him not
to worry about it. Id. 1:48-:52.
the same time, Officer Travis Loomis with the Clovis Police
Department arrived on scene and approached the
driver's-side window of the vehicle. See Id. at
1:58-:59; Defs.' Mot. for Summ. J., Undisputed Fact
¶ 10. Upon seeing Officer Loomis, Officer Aguilar
informed him that Mr. Corona had been placed under arrest for
concealing Id. Pl.'s Ex. 3, 1:58-:59. In
response, Mr. Corona said, “Concealing ID, for
what?” and repeatedly said, “I didn't conceal
ID.” Id. at 2:00-07. Mr. Corona noted,
“You didn't even ask me what my name was.”
Id. at 2:07-:08.
Officer Aguilar led Mr. Corona to the patrol car while Mr.
Corona repeated that he didn't conceal ID, Officer
Aguilar told him three times in a normal tone of voice,
“Come on. Come on. Stop. Stop. Stop. Come on. I asked
you for your ID.” Id. at 2:00-2:12. Officer
Aguilar then slammed Mr. Corona down to the ground on the
asphalt. See Pl.'s Ex. 4 at 3:57-4:00. Officer
Aguilar commanded loudly, “Stop. Stop.”
See Pl.'s Ex. 3 at 2:12-:16; Pl.'s Ex. 4 at
4:00-:01. A few moments later, Officer Aguilar informed him,
“Now you are under arrest for resisting and evading
too.” Pl.'s Ex. 3 at 2:22-:25.
Mr. Corona's arrest, Officer Aguilar charged him with
resisting, evading, or obstructing an officer, in violation
of N.M.S.A. § 30-22-1, and concealing identity, in
violation of N.M.S.A. § 30-22-3. See Criminal
Compl., ECF No. 54 at 28-29. A Curry County Magistrate Judge
found probable cause existed in the complaint. Id.
at 29. The district attorney's office dismissed the
concealing identity charge. See Notice of Dismissal,
ECF No. 54 at 42. After a trial, the jury acquitted Mr.
Corona of the only charge before it of resisting, evading, or
obstructing an officer. See Verdict, ECF No. 54 at
41. Mr. Corona then brought a civil lawsuit in the Ninth
Judicial District of New Mexico, subsequently removed to this
Court, alleging “assault, battery, wrongful arrest,
prima facie tort, intentional infliction of emotional
distress, pain and suffering, negligence, damages, misuse of
process and malicious abuse of process and violation of 42
U.S.C. 1983” against the City of Clovis, the Clovis
Police Department, and Officers Brent Aguilar and Travis
Loomis. First Am. Compl., ECF No. 1-1 at 1. In a Memorandum
Opinion and Order entered contemporaneously with this
opinion, the Court dismissed Plaintiff's claims for prima
facie tort, intentional infliction of emotional distress,
conspiracy, negligence/negligent training, and municipal
liability under § 1983.
the claims that remain are as follows. Mr. Corona contends
that Officer Aguilar's conduct exposed him to liability
under the New Mexico Tort Claims Act (“NMTCA”)
for assault, battery, malicious abuse of process, and false
arrest. First Am. Compl. 5, ECF No. 1-1. Further, Plaintiff
asserts under the NMTCA a cause of action for malicious abuse
of process against Officer Loomis. See Id. Mr.
Corona has also articulated a claim for violating the NMTCA
against the Clovis Police Department and the City of Clovis,
seeking to impute liability for Officers Aguilar and
Loomis' conduct under the doctrine of respondeat
superior. See Pl.'s Resp. to Mot. for
Partial J. on the Pleadings 3, ECF No. 55 (citing Paragraph
48 of the First Amended Complaint and Weinstein v. City
of Santa Fe ex rel. Santa Fe Police Department,
1996-NMSC-021, ¶ 14, 121 N.M. 646). Finally, Plaintiff
asserts § 1983 claims against Officers Aguilar and
Loomis for unlawful arrest under the Fourth Amendment and
unlawful assault without justification and due process in
violation of the Fourteenth Amendment. See First Am.
Compl. 8, ECF No. 1-1.
have moved for partial summary judgment and ask the Court to
dismiss the following claims: the § 1983 claims alleging
violations of Mr. Corona's Fourth and Fourteenth
Amendment rights against Officers Aguilar and Loomis,
see Def.'s Mot. for Summ. J. 5-19, ECF No. 41,
and the malicious abuse of process claims against each
Defendant, id. at 19-20.
42 U.S.C. § 1983 Claims Against Officers Aguilar and
1. “[A]ssault … without
justification” in violation of the Fourteenth
challenge Mr. Corona's claim that Officers Aguilar and
Loomis violated § 1983 by assaulting Mr. Corona
“under color of state law, without justification and
due process of law, in violation of the Fourteenth Amendment
to the United States Constitution.” First Am. Compl.
¶ 58, ECF No. 1-1. Defendants argue that an assault does
not amount to a substantive due process claim and that the
Fourth Amendment, not the Fourteenth Amendment, provides the
constitutional foundations for false arrest and excessive
force claims. See Def.'s Mot. 18-19, ECF No. 41.
Defendants thus ask for summary judgment on the Fourteenth
Amendment assault claim.
argues that the basis for his allegations arise from the
assault that took place before and while he was in custody
and is a violation of substantive due process. Pl.'s
Resp. 12, ECF No. 54. In support, Mr. Corona cites Bell
v. Wolfish, a United States Supreme Court decision
discussing the contours of a pretrial detainee's right to
assert a constitutional violation based on the conditions of
his confinement while detained pending trial. 441 U.S. 520
(1979). In particular, Mr. Corona cites to a section in
Bell which analyzes whether a detainee's
conditions of confinement amount to “punishment,
” thus triggering a detainee's constitutional right
to be free from punitive measures prior to an adjudication of
guilt. Bell, 441 U.S. at 535-37.
Supreme Court, however, has rejected the argument that an
excessive force claim arising during an arrest may be brought
under the Due Process Clause. In Graham v. Connor,
the Supreme Court held, “all claims that law
enforcement officers have used excessive force-deadly or
not-in the course of an arrest, investigatory stop, or other
‘seizure' of a free citizen should be analyzed
under the Fourth Amendment and its ‘reasonableness'
standard, rather than under a ‘substantive due
process' approach.” 490 U.S. 386, 395 (1989)
(emphasis in original). The Graham court expressly
noted that § 1983 claims alleging the excessive use of
force during an arrest proceeding are not governed by the
Fourteenth Amendment's substantive due process standard.
Id. The Supreme Court explained, citing Bell v.
Wolfish, that the Due Process Clause protects a pretrial
detainee from the use of excessive force that amounts to
punishment, but it made clear that the Fourth Amendment
applies during an arrest. Id. at n.10.
Plaintiff relied on the incorrect constitutional provision in
Paragraph 58, his factual allegations and legal assertions
reasonably advised Defendants that he was alleging an
excessive force claim in violation of the Constitution.
Although he used the phrase “assaulting …
without justification, ” instead of excessive force,
Paragraph 56 of the Section 1983 portion of his complaint
incorporated the prior paragraphs. First Am. Compl. ¶
56, ECF No. 1-1. Earlier in the complaint, Plaintiff alleged
he was slammed facedown into the asphalt without warning
while he was handcuffed with his arms behind his back and
totally defenseless, id. ¶ 21, even though
Plaintiff had not attempted to pull away from Officer Aguilar
or thrust his shoulder aggressively, see Id. ¶
22. He asserted that Officer Aguilar's use of force
fractured his cheekbone and caused other injuries, see
Id. ¶ 21, and the amount of force used was likely
to cause serious and painful injuries including great bodily
harm, id. ¶ 24.
state an excessive force claim under the Fourth Amendment,
the plaintiff must show that (1) a “seizure”
occurred and (2) the seizure was “unreasonable.”
Bella v. Chamberlain, 24 F.3d 1251, 1255 (10th Cir.
1994) (quoting Brower v. County of Inyo, 489 U.S.
593 (1989)). Despite not using the express term
“excessive force, ” the facts and all reasonable
inferences derived therefrom gave Defendants notice that
Plaintiff was asserting an unreasonable seizure based on an
excessive force theory as well as an unlawful arrest theory.
The Court will therefore construe Plaintiff's § 1983
assault without justification claim as an excessive force
claim under the Fourth Amendment. Defendants' summary
judgment motion does not address the merits of
Plaintiff's constitutional excessive force claim ...