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Ganley v. Jojola

United States District Court, D. New Mexico

August 30, 2019

JOHN GANLEY, Plaintiff,
v.
ERIC JOJOLA, in his individual capacity, and CITY OF ALBUQUERQUE, Defendants.

          Nicole Moss The Law Office of Nicole W. Moss Albuquerque, New Mexico and Marshall J. Ray Law Offices of Marshall J. Ray LLC Albuquerque, New Mexico Attorneys for the Plaintiff

          Jessica Lynn Nixon Office of the City Attorney Albuquerque, New Mexico Attorney for the Defendants

          MEMORANDUM OPINION AND ORDER

         THIS MATTER comes before the Court on: (i) Defendants Eric Jojola and City of Albuquerque's Motion for Summary Judgment on Qualified Immunity and Other Grounds, filed December 21, 2017 (Doc. 32)(“MSJ”); and (ii) Plaintiff John Ganley's Motion for a Continuance of the Motion for Summary Judgment to Permit Discovery Pursuant to Rule 56(d) and Affidavit at 1, filed January 1, 2018 (Doc. 35)(“Rule 56(d) Motion”). The Court held a hearing on June 4, 2018. The primary issues are: (i) whether Defendant Eric Jojola violated Ganley's constitutional rights under the Fourth and Fourteenth Amendments of the Constitution of the United States by securing an arrest warrant based on the Criminal Complaint -- Arrest Warrant Affidavit (executed March 14, 2016), filed December 21, 2017 (Doc. 32-1)(“Warrant Aff.”), which Jojola authored, that incorrectly identifies Ganley as having committed check fraud; (ii) whether Jojola violated Ganley's constitutional rights by not uncovering evidence of Ganley's innocence; (iii) whether Jojola would have violated Ganley's constitutional rights if he did not achieve Ganley's release immediately upon finding exculpatory evidence in Ganley's booking sheet; and (iv) whether Ganley needs further discovery to defend against the MSJ. The Court concludes that: (i) Jojola did not violate Ganley's constitutional rights by submitting the Warrant Aff., because the Warrant Aff. cured of its alleged inaccuracies establishes probable cause for Ganley's arrest; (ii) Jojola did not violate Ganley's constitutional rights by not uncovering exonerating evidence, because Jojola did not act recklessly or deliberately; (iii) Jojola would not have violated Ganley's constitutional rights if he had ignored exonerating evidence on Ganley's booking sheet, because Ganley was already released from detention before Jojola could have acted on the booking sheet's exonerating evidence; and (iv) further discovery is not necessary to defend against the MSJ, because Ganley does not identify specific information necessary to establish a constitutional violation. Accordingly, the Court grants the MSJ's requests to dismiss Ganley's Fourth and Fourteenth Amendment claims in Count I of Ganley's First Amended Complaint for Damages for Violation of Civil Rights and Tort Claims, filed August 8, 2017 (Doc. 22)(“Complaint”), and denies the Rule 56(d) Motion. The Court also dismisses the Complaint's municipal liability claim in Count III, because that claim requires that Ganley prove a city employee violated Ganley's federal constitutional rights, and the Court determines that Jojola did not violate Ganley's constitutional rights. Having granted summary judgment on all the Complaint's federal claims, the Court declines to exercise supplemental jurisdiction over the remaining state law claims and remands them to the County of Bernalillo, Second Judicial District Court, State of New Mexico.

         FACTUAL BACKGROUND

         The Court draws the factual background from the parties' undisputed material facts in their MSJ briefing. See MSJ ¶¶ 1-23, at 2-5; Plaintiff's Response to Defendants Eric Jojola and the City of Albuquerque's Motion for Summary Judgment on Qualified Immunity and Other Grounds ¶¶ 2-23, at 2-6, filed June 18, 2018 (Doc. 47)(“MSJ Response”); Defendants Eric Jojola and City of Albuquerque's Reply in Support of Their Motion for Summary Judgment on Qualified Immunity and Other Grounds ¶¶ 1-13, at 1-5, filed July 11, 2018 (Doc. 51)(“MSJ Reply”). Jojola, a law enforcement officer for the City of Albuquerque, began investigating a “large amount of stolen mail” in October, 2015. MSJ ¶ 3, at 2 (asserting this fact). See MSJ Response ¶ 3, at 2 (admitting this fact). During Jojola's investigation, Postal Inspector Brad Specht told Jojola that a man named Ganley cashed a forged check (“Ganley Check”) on September 4, 2015. See MSJ ¶ 4, at 2 (asserting this fact); Warrant Aff. at 1; Affidavit of Detective Eric Jojola ¶ 3, at 1 (executed December 21, 2017), filed December 21, 2017 (Doc. 32-2)(“Jojola Aff.”).[1] Jojola contacted an investigator, Steve Torbett, [2] on March 3, 2016, about the Ganley Check, and Torbett gave Jojola a copy of the Ganley Check. See MSJ ¶ 6, at 2-3 (asserting this fact); Warrant Aff. at 1; Jojola Aff. ¶¶ 5-6, at 1.[3] Torbett also gave Jojola still photographs from a surveillance video showing a white male with brown hair cashing the Ganley Check. See MSJ ¶ 7, at 3 (asserting this fact); MSJ Response ¶ 7 at 3 (not disputing this fact)[4]; Warrant Aff. at 1; Jojola Aff. ¶ 7 at 1.

         In his investigation, Jojola learned that a bank teller wrote down a driver's license number associated with the Ganley Check. See MSJ ¶ 8, at 3 (asserting this fact); MSJ Response ¶ 8, at 4 (admitting this fact). Jojola also learned that the person cashing the Ganley Check left a fingerprint on the check. See MSJ Response ¶ 8, at 4 (asserting this fact); Warrant Aff. at 1.[5] Jojola did not analyze the fingerprint before executing the Warrant Aff. See MSJ Response ¶ 8, at 4 (asserting this fact); MSJ Reply ¶ 6, at 3 (not disputing this fact); Warrant Aff. at 1 (stating that “a forensic comparison will be ordered to match the fingerprint on the check to John's fingerprint”).

         Jojola searched New Mexico's Motor Vehicle Department (“MVD”) records for the driver's license number. See MSJ ¶ 9, at 3 (asserting this fact); Jojola Aff. ¶ 9, at 2.[6] The driver's license number belongs to Ganley. See MSJ ¶ 10, at 3 (asserting this fact); MSJ Response ¶ 10, at 4 (admitting this fact); Jojola Aff. ¶ 10, at 2. Jojola obtained a MVD photograph of Ganley. See MSJ ¶ 11, at 3 (asserting this fact); MSJ Response ¶ 11, at 4 (admitting this fact); Warrant Aff. at 1; Jojola Aff. ¶ 11, at 2. Ganley's MVD photograph shows Ganley with short brown hair. See MSJ ¶ 12, at 3 (asserting this fact); MSJ Response ¶ 12, at 4 (admitting this fact); Jojola Aff. ¶ 12, at 2. Jojola compared Ganley's MVD photograph with the surveillance video photographs of the man cashing the Ganley Check. See MSJ ¶ 12, at 3 (asserting this fact); MSJ Response ¶ 12, at 4 (admitting this fact); Jojola Aff. ¶ 12, at 2. Ganley in his MVD photograph and the man in the surveillance video photographs are both white men with short brown hair. See MSJ ¶ 12, at 3 (asserting this fact); MSJ Response ¶ 12, at 4 (admitting this fact); Jojola Aff. ¶ 12, at 2. Jojola thought that the person in the surveillance video “appeared to be of a similar age” to Ganley in his MVD photograph. MSJ ¶ 13, at 5 (asserting this fact); Jojola Aff. ¶ 13, at 2.[7] Ganley was thirty- nine years old when the Ganley Check was cashed; the man cashing the Ganley check was about twenty-nine years old at that time. See MSJ Response ¶ 13, at 5 (asserting this fact); New Mexico Driver License Inquiry at 1, filed December 21, 2017 (Doc. 32-5)(stating that Ganley was born on March 18, 1976).[8] The man cashing the check had tattoos on his arms, but Ganley's MVD photograph does not show his arms. See MSJ ¶ 14, at 4 (asserting this fact); New Mexico Driver License Inquiry at 1; Surveillance Video Images at 1-7, filed December 21, 2017 (Doc. 32-4).[9]Jojola concluded that Ganley was the man in the surveillance video cashing the check. MSJ ¶ 15, at 4 (asserting this fact); Jojola Aff. ¶ 15, at 2.[10] On March 7, 2017, Jojola spoke with the check's true owner -- Nancy Starr -- and the owner told Jojola that Ganley did not have permission to cash the check. See MSJ ¶ 16, at 4 (asserting this fact); Warrant Aff. at 1; Jojola Aff. ¶ 16 at 2.[11]

         Jojola attempted to call Ganley on the telephone but was unable to reach him. See MSJ ¶ 17, at 4 (asserting this fact); Jojola Aff. ¶ 17, at 3.[12] When Jojola examined the check, Jojola concluded that “John Ganley appeared to have signed the back of the check.” MSJ ¶ 18, at 4 (asserting this fact); Warrant Aff. at 1; Jojola Aff. ¶ 18, at 3; Check Copy at 2, filed December 21, 2017 (Doc. 32-3)(showing a signature on the back of the check).[13]

         Jojola submitted the Warrant Aff. to a judge in the Metropolitan Court for the County of Bernalillo, State of New Mexico, on March 14, 2016, swearing that Ganley had committed forgery and violated the Remote Financial Services Act, N.M. Stat. Ann. § 58-16-16. See MSJ ¶ 19, at 4 (asserting this fact); MSJ Response ¶ 19, at 6 (admitting this fact); Warrant Aff. at 1; Jojola Aff. ¶ 19, at 3. That same day, an arrest warrant was issued for Ganley. See MSJ ¶ 21, at 4 (asserting this fact); Jojola Aff. ¶ 20, at 3; Warrant for Arrest at 1, filed December 21, 2017 (Doc. 32-6).[14]

         Officer Kelly Burt conducted a preliminary investigation into the stolen checks, and Burt wrote in his report that “[i]t is unknown if they are offenders or victim[s] of identity theft.” MSJ ¶ 22, at 5 (asserting this fact); Jojola Aff. ¶¶ 21-22, at 3.[15] During Jojola's investigation, and after speaking with Specht and Torbett, Jojola reviewed Burt's report. See MSJ ¶ 22, at 5 (asserting this fact); Jojola Aff. ¶ 23, at 3.[16] Jojola searched for Ganley in a criminal history database, but did not find evidence that Ganley had committed fraud or burglary in the past. See MSJ ¶ 23, at 5 (asserting this fact); Jojola Aff. ¶ 23, at 3.[17] Law enforcement no longer considered Ganley a suspect as of October 19, 2016, at the latest. See MSJ ¶ 23, at 5; (asserting this fact); Jojola Aff. ¶ 24, at 3.[18]

         PROCEDURAL BACKGROUND

         Ganley filed his first Complaint for Damages for Violation of Civil Rights and Tort Claims, in state court on March 5, 2017, filed in federal court on April 10, 2017 (Doc. 1-1). The Defendants removed the case to federal court asserting federal-question jurisdiction. See Notice of Removal at 2, filed April 10, 2017 (Doc. 1). In Ganley's Complaint, he asserts three Counts. First, he asserts that the Defendants violated his civil rights under the Fourth and Fourteenth Amendments, see Complaint ¶¶ 36-44, at 7-9, and that Jojola violated clearly established law, by ignoring exculpatory information and not completing the investigation into the check fraud, see Complaint ¶¶ 38-40, at 7-8. Second, Ganley asserts tort claims against the Defendants. See Complaint ¶¶ 45-54, at 9-10. Ganley alleges that Jojola's “tortious conduct proximately caused damages and injuries, including physical and emotional suffering, attorney fees, costs of record expungement, reputation damage, damage to personal relationships, lost time and productivity, and continuing medical expenses and expenses associated with counseling.” Complaint ¶ 47, at 9-10. Third, Ganley alleges that the City of Albuquerque deprived Ganley of his Fourth, Fifth, and Fourteenth Amendment rights, see Complaint ¶¶ 55-57, at 11, because Jojola's “actions constituted a custom, practice, and policy of deliberate indifference” to Ganley's and other citizens' civil rights, Complaint ¶ 56, at 11.

         The Defendants answered the Complaint. See Defendants' Answer to Plaintiff's “First Amended Complaint for Damages for Violation of Civil Rights and Tort Claims, ” filed August 22, 2017 (Doc. 26)(“Answer”). The Defendants deny Ganley's claims and allegations. See Answer ¶¶ 36-57, at 7-9. The Defendants assert several affirmative defenses:

1. Plaintiff has failed to set forth one or more claims for which relief may be granted.
2. There was probable cause for Eric Jojola to submit the arrest warrant and charge Plaintiff.
3. Eric Jojola's actions were objectively reasonable under the totality of the circumstances, done in good faith, and therefore, he is entitled to qualified immunity and immunity under the New Mexico Tort Claims Act.
4. Eric Jojola did not commit a clearly established constitutional violation.
5. The City of Albuquerque is not liable because one or more of its employees did not commit any constitutional violation or commit any torts under the New Mexico Claims Act.
6. The City of Albuquerque is not liable because there was no unlawful policy or custom which was the moving force behind an alleged constitutional violation.
7. The City of Albuquerque is not liable because it was not negligent in its supervision, retention, hiring, and training of Eric Jojola.
8. The City of Albuquerque is not liable because its supervision, retention, hiring, and training of Eric Jojola did not cause any alleged constitutional violation or commission of any torts under the New Mexico Tort Claims Act.
9. Plaintiff's state law claims are barred, in whole or in part, by the provisions set forth in the New Mexico Tort Claims Act.
10. Plaintiff failed to comply with the notice provisions set forth pursuant to the New Mexico Tort Claims Act, NMSA 1978, § 41-4-16.
11. The Defendants' immunity has not been waived under the New Mexico Tort Claims Act.
12. Plaintiff's injuries or losses, if any, were proximately caused by the negligence, intentional misconduct, or other fault of Plaintiff and/or other third-party for whom Defendants are not liable.
13. Plaintiff's damages, if any, were due to an independent, intervening cause rather than due to any fault on the part of Defendants.
14. Plaintiff failed to mitigate his damages, if any.
15. Plaintiff's claims should be barred or reduced insofar as any alleged acts or omissions on the part of the Defendants, which is denied, were not the cause of Plaintiff's damages, if any.
16. Defendants breached no duty owed to Plaintiff.
17. There are insufficient grounds to permit Plaintiff to recover punitive damages.
18. The Defendants reserve the right to assert additional affirmative defenses which may become available during the course of litigation in this matter and which are not asserted herein.

Answer at ¶¶ 2-18, at 9-11.

         1. The Motion for Summary Judgment.

         The Defendants move for summary judgment. See MSJ at 1. The Defendants first argue that Ganley's wrongful arrest claim “cannot be premised on the Fourteenth Amendment, ” because, according to the Defendants, the Fourth Amendment, and not the Fourteenth, governs unlawful detention claims. MSJ at 7-8. The Defendants contend that probable cause supported the Warrant Aff. See MSJ at 8-9. The Defendants also argue that Ganley cannot succeed on a 42 U.S.C. § 1983 claim, because Jojola did not act with reckless disregard for the truth or intentionally use false statements in the arrest warrant's affidavit. See MSJ at 11-12. Specifically, the Defendants contend that it was reasonable for Jojola to conclude that Ganley was the man in the surveillance video, because Ganley's MVD photograph resembled the man in the surveillance video, and because the differences between Ganley and the man in the surveillance video are not apparent when looking at the MVD photograph, which shows only Ganley's face -- e.g., that the man in the surveillance video has tattoos on his arms but Ganley does not have tattoos. See MSJ at 12-13. The Defendants contend that overlooking the differences in the basic characteristics between the two men, such as their height and weight, does not “negate probable cause, ” because such differences are slight discrepancies. MSJ at 13 (citing Thompson v. Prince William Cty., 753 F.2d 363, 365 (4th Cir. 1984)).

         The Defendants contend that Jojola had “at least arguable probable cause” to submit the affidavit, because the photographic evidence, the driver's license number, and the name on the forged check all point to Ganley. MSJ at 16. The Defendants also respond to Ganley's contention that Jojola did not conduct a complete investigation before seeking the arrest warrant, arguing that his investigation was “[c]onstitutionally [s]ound” based on the totality of the circumstances. MSJ at 17-18.

         Next, the Defendants contend that the constitutional violations that Ganley alleges are not clearly established. See MSJ at 19. Specifically, the Defendants argue that Jojola “could not have been on notice that submission of the Affidavit amounted to a constitutional violation on its face, ” because there is a presumption that detectives act in good faith when a Magistrate Judge finds probable cause, and, even assuming that Jojola included false statements in the affidavit, Jojola “would not have been on notice that identity of the name on the forged check, as confirmed by a witness, with the MVD record would not have established probable cause.” MSJ at 20-21. Jojola contends that not interviewing Ganley before submitting the affidavit is not a constitutional violation for which Jojola would be on notice, because the United States Court of Appeals for the Tenth Circuit does not require a law enforcement officer to continue investigating once probable cause is established. See MSJ at 21-22.

         Next, the Defendants address Ganley's tort claim, contending that New Mexico has not waived immunity for false arrest, constitutional violations, or failure to investigate. See MSJ at 22-23. The Defendants also contend that Ganley's false arrest claim fails in any case, because Jojola's actions were lawful, and because he acted with probable cause. See MSJ at 23-24. The Defendants also contend that Jojola did not violate N.M. Stat. Ann. § 29-1-1, which provides that law enforcement officers have a duty

“to investigate all violations of criminal laws of the state which are called to the attention of any such officer or which he is aware, and it is also declared the duty of every such officer to diligently file a complaint or information, if the circumstances are such to indicate to a reasonably prudent person that such action should be taken.”

MSJ at 24 (quoting N.M. Stat. Ann. § 29-1-1). The Defendants reiterate that Jojola did not violate that statute, because Jojola conducted a “constitutionally appropriate investigation” and found probable cause that Ganley committed a crime. MSJ at 24. The Defendants conclude that the Court should grant Jojola qualified immunity and should dismiss Counts I and II with prejudice. See MSJ at 25.

         2. The Rule 56(d) Motion.

         Ganley asks for leave to conduct discovery before responding to the MSJ. See Rule 56(d) Motion at 1. Ganley asks that the Court stay his deadline to respond to the MSJ and allow Ganley to seek discovery necessary to respond to the MSJ. See Rule 56(d) Motion at 1. Specifically, Ganley requests leave to conduct the following discovery:

Written interrogatories and a deposition of Defendant Jojola limited in scope to questions about the investigation he conducted in the underlying criminal case and about his assertions set forth in his affidavit supporting summary judgment, to questions about past lawsuits or complaints similar to this one, questions about his past discipline for conduct similar to what is alleged in this lawsuit, and to questions about his training as relevant to investigating check fraud and identity theft; (ii) a limited deposition of Steve Torbett, an individual who initially investigated the matters leading to Plaintiff's arrest and who, according to Defendant Jojola's affidavit, spoke with Defendant Jojola about the matter; and (iii) a limited deposition of Officer Kelly Burt, whom Defendant identifies in his reports, in his affidavit supporting summary judgment, and in his motion for summary judgment as someone who participated in the investigation and prepared a report. Plaintiff has been diligent in litigating the matter and seeking discovery.

Rule 56(d) Motion at 1-2.

         Ganley contends that he has acted in good faith and has not been dilatory in making discovery requests. See Rule 56(d) Motion at 7-8. Nonetheless, Ganley states that he and the Defendants have not reached an agreement about discovery's scope. See Rule 56(d) Motion at 7. Ganley asserts that he has “not had an opportunity to conduct any meaningful discovery and it would be unfair to prevent Plaintiff to conduct some limited discovery before he is required to respond to the summary judgment motion.” Rule 56(d) Motion at 8.

         Ganley asserts that “Defendant Jojola's factual narratives, as set forth in his warrant affidavit, and in his summary judgment affidavit, are self-serving and should be tested through deposition testimony.” Rule 56(d) Motion at 10. Ganley contends that Jojola's liability depends on “whether he was reasonable or whether he acted with deliberate indifference to Plaintiff's rights, based on the facts known to him.” Rule 56(d) Motion at 10. Ganley believes that

Defendant Jojola was not as careful as he claims to be in his investigation, that other investigators involved did not say what Defendant Jojola asserts they said, and that Defendant Jojola did not do what he says he did or would do in his arrest warrant affidavit, and deposition testimony from him and the individuals he worked with can illuminate the discrepancies.

         Rule 56(d) Motion at 10-11. Ganley also asserts that Jojola can provide answers relating to the Albuquerque Police Department's customs or practices. See Rule 56(d) Motion at 11.

         3. The Rule 56(d) Motion Response.

         The Defendants respond to the Rule 56(d) Motion. See Defendants Eric Jojola and City of Albuquerque's Response in Opposition to Plaintiff's ‘Motion for a Continuance of the Motion for Summary Judgment to Permit Discovery Pursuant to Rule 56(d) and Affidavit' at 1, filed February 1, 2018 (Doc. 36)(“Rule 56(d) Response”). The Defendants argue that Ganley has not identified how he intends to narrow discovery issues. See Rule 56(d) Response at 1-2; id. at 4-8. Specifically, the Defendants contend that Ganley does not identify “what facts regarding Detective Jojola's training, alleged past discipline or past complaints are necessary to rebut the Motion for Summary Judgment.” Rule 56(d) Response at 5. The Defendants also argue that Ganley has not shown that deposing Torbett and Burt is necessary to respond to the MSJ. See Rule 56(d) Response at 5-6.

         The Defendants dispute Ganley's assertion that they oppose any discovery in light of the MSJ. See Rule 56(d) Response at 7 (citing Rule 56(d) Motion at 7). Rather, the Defendants contend that they have “repeatedly requested” that Ganley “identify, with specificity, what facts will be sought in the discovery as being necessary to respond” to the MSJ, but that Ganley has not demonstrated how “limited discovery, narrowly tailored to the issue of qualified immunity, will raise a genuine issue of material fact.” Rule 56(d) Response at 7. The Defendants also argue that Ganley's requests for video recordings made after Jojola submitted the Warrant Aff. is irrelevant and not reasonably calculated to lead to the discovery of admissible evidence, because the qualified immunity question depends on whether Jojola had probable cause before submitting the Warrant Aff. See Rule 56(d) Response at 8. The Defendants also contend that Ganley violated the Federal Rules of Civil Procedure by subpoenaing a third party without first providing notice to other parties. See Rule 56(d) Response at 8 (citing Fed.R.Civ.P. 45(a)(4)). The Defendants also note that Ganley made requests pursuant to the Inspection of Public Records Act, N.M. Stat. Ann. § 14-2-1 (“IPRA”), after the Defendants filed their motion to stay discovery, see Detective Jojola and City of Albuquerque's Motion for Stay of Discovery, filed January 4, 2018 (Doc. 33), and after the parties agreed to stay discovery and define parameters of limited discovery, see Rule 56(d) Response at 9-10. According to the Defendants, although IPRA provides anyone a right to inspect public records, that right is not unconditional, and, therefore, Ganley should not have the right to make IPRA requests while also agreeing to limit discovery. See Rule 56(d) Response at 10 (citing State ex rel. Newsome v. Alarid, 1977-NMSC-076, ¶¶ 27-34, 568 P.2d 1236, 1243). The Defendants add that, once they asserted Jojola's qualified immunity defense, pretrial discovery should cease. See Rule 56(d) Response at 10-11.

         4. The Rule 56(d) Motion Reply.

         Ganley replies to the Rule 56(d) Response. See Plaintiff's Reply in Support of his Motion Pursuant to Rule 56(d), filed February 14, 2018 (Doc. 37)(“Rule 56(d) Reply”). Ganley contends that the Defendants “struggle mightily to obscure their role in trying to prevent Plaintiff from receiving any information regarding this case.” Rule 56(d) Reply at 1. Ganley argues that the discovery which he seeks “is not out of bounds for defending a qualified immunity motion, as it is all directed at specific factual statements made in the Defendant's motion.” Rule 56(d) Reply at 2.

         Ganley contends that deposing Jojola will help determine if Jojola had probable cause by “inquir[ing] into Defendant Jojola's state of mind, ” which is “difficult, if not impossible” to discern from police reports and affidavits. Rule 56(d) Reply at 4-5. Ganley also contends that discovery relating to Jojola's state of mind -- including lapel footage of Jojola apparently discussing deficiencies of his investigation and whether Jojola examined the fingerprint --addresses “factual issues” that are “directly relevant to whether qualified immunity is appropriate.” Rule 56(d) Reply at 5-6.

         Ganley also contends that the Honorable Stephan M. Vidmar, United States Magistrate Judge for the United States District Court for the District of New Mexico, should not have granted a stay of discovery, because the District of New Mexico's local rules give a party fourteen days to respond to a motion to stay discovery, but Magistrate Judge Vidmar granted the stay request after only twelve days. See Rule 56(d) Reply at 6. Ganley adds that he has in good faith agreed to the Defendants' requests for extensions in responding to discovery requests, so it “would be an abuse of Plaintiff's counsels' professional courtesies to allow Defendants to enjoy summary judgment because Plaintiff did not get the opportunity to receive responses to his discovery requests.” Rule 56(d) Reply at 7. Moving to the IPRA issue, Ganley contends that the public's right to IPRA is not limited and that the Defendants cite to outdated caselaw in their arguments to the contrary. See Rule 56(d) Reply at 9-10 (citing Republican Party of N.M. v. N.M. Taxation & Revenue Dep't, 2012-NMSC-026, ¶¶ 14-16, 283 P.3d 853, 860).

         5. The Hearing.

         The Court held a hearing. See Draft Hearing Transcript at 1:21 (taken June 4, 2018)(“Tr.”) (Court).[19] The Court began by wondering whether it could consider the photographic evidence -- i.e., Ganley's MVD photograph and the surveillance footage images -- when ruling on a matter of law or whether considering photographic evidence is a factual inquiry for a jury. See Tr. at 3:17-4:3 (Court). The Court added that it thought there was “probably . . . enough probable cause here, and there is not a constitutional violation, ” Tr. at 4:4-7 (Court), and that Ganley has not pointed to an established constitutional right that Jojola may have violated, see Tr. at 4:8-5:3 (Court). The Court next stated that it was inclined to deny the Rule 56(d) Motion, because the requested discovery and Jojola deposition is not likely to lead to case-determinative information. See Tr. at 5:11-25 (Court).

         The Court asked the Defendants how law enforcement came to determine that Ganley was the victim and not the perpetrator of identity fraud. See Tr. at 10:8-12 (Court). The Defendants explained that, about six months after Ganley was arrested, Ganley visited the district attorney's office and told them he believed he was a victim of identity theft. See Tr. at 10:13-17 (Nixon). The district attorney's office connected Ganley with Jojola, who took Galey's fingerprints and determined that the fingerprint on the check did not belong to Ganley. See Tr. at 10:17-24 (Nixon).

         The Court then asked the Defendants whether, if it dismisses Ganley's federal claims, it should decide the state claims. See Tr. at 11:22-12:1 (Court). The Defendants stated that they would not object to that approach, but asserted that it might not be a great leap to dismiss the state claims as well, because those claims also fail if Jojola had probable cause to arrest Ganley. See Tr. at 12:2-8 (Nixon).

         Ganley wished to “clarify how it became apparent that Mr. Ganley was a victim of identity theft, ” stating that, when Ganley arrived to be fingerprinted, Jojola saw Ganley and said, “‘Oh, that's not our guy,' because he obviously wasn't.” Tr. at 13:1-7 (Ray). Ganley added that his criminal lawyer at the time witnessed Jojola's reaction to seeing Ganley and that Ganley could submit a sworn statement describing his encounter with Jojola. See Tr. at 13:22-24 (Ray). Ganley also noted that Jojola stated in a report that there was video recording the encounter, but the Defendants “have decided that that video doesn't exist anymore, although everything that happened afterwards does.” Tr. at 13:23-14:5 (Ray). Ganley addressed the photographs:

[H]e had a bunch of photographs in front of him of the perpetrator -- a much younger man with a different looking face, with a different hairline, a much younger you know more forward hairline and then the driver's license photo which is an even older photo than what those recent photos were that he saw short guy with a much more recede hairline. It requires a little bit of willful blindness on the part of the city to say, yeah, white guy with short hair, close enough. And I think, I mean, I wonder what a Court's analysis would [look] like in saying, you know a white person with short hair [is] close enough for an officer to say I've got probable cause.

Tr. at 14:16-15:8 (Ray).

         Next, Ganley addressed the Warrant Aff., arguing that it contains “either reckless or knowing false statements.” Tr. at 15:13-15 (Ray). Ganley first took issue with the Warrant Aff.'s statement that, after comparing Ganley's MVD photograph with the surveillance footage, “it was verified John Ganley cashed the check.” Tr. at 15:20-24 (Ray)(quoting Warrant Aff. at 1). The Court pushed back on Ganley's criticism of the word “verified, ” stating:

[I]t may not be the most artful way to say that to me they look like the same person, but, isn't that what he's saying in his own words that he looked at the two pictures, and in his mind that they were the same person? Now, I think it's a little odd to use the word verified, because that sounds like somebody else did it. But isn't it pretty clear and there is nothing terribly devious about the fact that he's telling us that he looked at the two pictures, and in his mind, they were the same person?

Tr. at 16:8-18 (Court). Ganley disagreed with the Court, arguing that Jojola could have described exactly what he did -- i.e., compared the two photographs and found them to be similar -- but instead he “used the passive voice” to indicate that the match “was verified, ” which “implies that there was some proceeding that he used to confirm the identity of the person.” Tr. At 16:19-17:3 (Ray). Ganley then argued that Jojola again makes misleading statements in the Warrant Aff. regarding fingerprinting, such that a judge would believe that “a fingerprint has been run and matched, and . . . that it's been verified.” Tr. at 17:16-20 (Ray). The Court rebutted that the Warrant Aff. makes clear that law enforcement has a fingerprint but is waiting for the warrant before analyzing the fingerprint further. See Tr. at 17:24-18:12 (Court). Ganley insisted that the Warrant Aff. uses “way [too] much puffing [of] the facts that did not occur, ” and that, if a law enforcement officer uses the word “verified, ” he or she should mean that the fact was actually verified. Tr. at 18:13-20 (Ray).

         The Court asked Ganley whether his “stronger argument” is that the Court cannot grant summary judgment, because the photographs show two men with different features. Tr. at 19:1-6 (Court). Ganley said that he agreed the photographs are important, because, according to Ganley, “the photographs are so different that it was at least reckless.” Tr. at 19:7-9 (Ray).

         Ganley added that the parties' discussion about what Jojola meant to say in the Warrant Aff. supports granting Ganley's Rule 56(d) Motion, because discovery would allow Ganley to ask Jojola what he intended to say. See Tr. at 19:18-23 (Ray). The Court questioned the value of deposing Jojola on these topics given that, in the Tenth Circuit, an officer's subjective thoughts are not the pivotal issue in § 1983 claims. See Tr. at 19:24-20:5 (Court). Ganley acknowledged that qualified immunity generally concerns objective analysis, but mused:

I've always wondered how we deal with that in the situation where the test for, say, a false affidavit requires that there be some sort of the recklessness or intentional falsification of fact. [Do] you see how there is a little bit of a disconnect in the case law on how to analyze that? . . . [W]e've got this analysis that comes in [regarding] whether the officer recklessly or intentionally didn't investigate something properly or misrepresented the facts to a magistrate in order to establish probable cause and obtain a warrant, I think the analysis is a little bit tricky to go back and say well, he objectively was or wasn't reckless or [he] objectively didn't intentionally or did intentionally misstate his facts [to a] magistrate in order to obtain a warrant.

Tr. at 20:8-21:11 (Ray). Ganley next asserted that the differences in the photographs present a factual issue for a jury to resolve. See Tr. at 22:5-8 (Ray). Ganley also stated that, if Court dismisses the federal claims based on qualified immunity, the Court should send the state claims back to state court. See Tr. at 23:10-13 (Ray).

         The Court then asked Ganley which cases from the Tenth Circuit or the Supreme Court of the United States are so factually similar to this case that Jojola would have been on notice that his actions were unconstitutional. See Tr. at 23:15-21 (Court). Ganley responded:

I don't really have a Tenth Circuit case where something like this happened. . . . But the generic standard that the Tenth Circuit has cited in a bunch of cases is if there is a reckless disregard or intentional misrepresentation of fact in the affidavit, then that would be a constitutional [violation]. And there is a lot of common sense to that. An officer is always on notice that I can't misrepresent the facts that in order to create probable cause. That's . . . just Basic Integrity and Honesty 101.

Tr. at 23:22-24:8 (Ray). Ganley added that, in other Courts of Appeals, courts “have said that reckless and intention always seems to be the standard to investigatory leads of a defendant's due process rights, ” and that, “in situations where state actors have the opportunity to deliberate various alternatives prior to selecting [a] course of action they violate due process if they do so recklessly, i.e., he's got at [sic] fingerprint in hand and he's got pictures that don't look alike.” Tr. At 24:9-21 (Ray)(citing Wilson v. Lawrence Cty., 260 F.3d 946 (8th Cir. 2001); Sanders v. English, 950 F.2d 1152, 1155 (5th Cir. 1992)); Whitley v. Seibel, 676 F.2d 245, 247 (7th Cir. 1982)). The Court stated its belief that the closest Tenth Circuit case factually to this case is Romero v. Fay, 45 F.3d 1472 (10th Cir. 1995), which also involves misidentification by law enforcement. See Tr. at 35:17-23 (Court). The Defendants agreed that Romero v. Fay is probably the closest Tenth Circuit case to this case, but contended that, even if Ganley's allegations are true, the factual differences between the two cases prevent Romero v. Fay from indicating whether Jojola lacked probable cause or violated a clearly established constitutional right. See Tr. at 35:25-36:9 (Nixon).

         The Defendants responded to Ganley's Rule 56(d) Motion, and argued that Ganley requests discovery beyond the primary inquiry relating to qualified immunity. See Tr. At 38:14-39:6 (Court). The Defendants concluded that “there is no discovery which would lead to a genuine dispute of material fact which would . . . defeat . . . the defendant's motion for summary judgment on qualified immunity.” Tr. at 39:21-24 (Court).

         The Court asked what Jojola saw when Ganley arrived for the fingerprinting that made him realize that Ganley was not the right person. See Tr. at 39:25-2 (Court). The Defendants responded:

It's my understanding that it was the tattoos on the arm. Detective Jojola had an idea before meeting with Mr. Ganley that he was not the person based on the booking sheets obtained after the arrest, long after the arrest warrant affidavit was completed, because those booking sheets indicated he was not -- he did not have any tattoos. I suspect that that would be the same reason that upon seeing Mr. Ganley and being able to see Mr. Ganley's arms for the first time in person, and observing that his arms did not have the tattoos that we see in the surveillance video photos, that Detective Jojola knew that Mr. Ganley was not the person who had appeared in those surveillance videos.

Tr. at 40:3-16 (Nixon).

         The Court gave Ganley the last word on the Rule 56(d) Motion. See Tr. at 42:1-3 (Court). Ganley stated that the hearing has underscored how “some of the questions that the Court has raised would be illuminated by discovery.” Tr. at 42:4-6 (Ray). Ganley stated that he just heard for the first time that Jojola's “epiphany of recognition happened because he didn't see tattoos on John Ganley's arms, ” and so discovery would allow Ganley to clear up factual disputes by, for example, hearing from witnesses under oath about Ganley's appearance. Tr. at 42:7-18 (Ray).

         The Court stated:

I obviously am going to have to spend some time in determining whether there is a constitutional violation, and I will. . . . But I guess I'm just not seeing a way that I can deny the [MSJ], at least on clearly established grounds. I'm thinking that this is too factually intense to . . . come up [in] any case. And the one case that I keep coming back to, Romero v. Fay, . . . the Tenth Circuit found that there was no constitutional violation. So the one case we have available points in the opposite direction. So probably one way or another I'll be granting this motion, and dismissing out the federal claims, and remanding the state claims and the rest of the case back to state court.

Tr. at 44:12-45:2 (Court). The Court stated that it would not permit further discovery for now. See Tr. at 45:24-25 (Court). The Court continued:

The one thing . . . I need to give some thought as to when if Mr. Jojola began to get suspicious and when that would make any difference as to the claims here. It might have more to do with damages than it does to claims . . . . If I agree with the city and with Mr. Jojola that there was probable cause at the beginning, does him beginning to get suspicious that he had is the wrong person if, does a new claim sort of accrue at that point that has some legs? That's the only thing that I guess I'm walking away from this a little bit concerned [about] and think I need to maybe look at [more].

Tr. at 46:5-18 (Court). Ganley addressed the Court's point, and clarified that, although he contends that Jojola did not have probable cause when submitting the Warrant Aff., Ganley also believes that there may be an “independent constitutional claim” arising at the moment that “Jojola learns that there is a problem” in targeting Ganley. Tr. at 47:13-25 (Ray). The following exchange ensued:

MS. NIXON: Your Honor, I would just argue that [the independent constitutional claim theory is] not part of the amended complaint that been filed in this case -- [it] has never been an allegation in this case.
MR. RAY: That's what happens when you disclose a fact at the hearing that nobody has ever of heard of before.
MS. NIXON: And it's also not dispositive to the issues before the Court at this time. Again, based upon the complaint, we are looking at what Detective Jojola knew at the time that he effectuated the arrest warrant affidavit, not what was learned after, not when it was learned after. I think that was a question of damages, which we don't get to in this case yet.

Tr. at 48:14-49:3 (Nixon, Ray). The Court recognized that “we have a new issue that y'all may need to address in the briefing, so I'll look forward to seeing what y'all have to say on that issue.” Tr. at 49:4-7 (Court).

         6. The MSJ Response.

         Ganley responds to the MSJ. See MSJ Response at 1. Ganley argues that “the sort of aggressive puffery that Defendant Jojola displayed in his criminal complaint and warrant affidavit were unreasonable and constituted knowing false statements, the absence of which would have vitiated probable cause.” MSJ Response at 8. Ganley adds that

[i]t is difficult to imagine a judicial officer signing this warrant if it had contained the truth (i.e., the Detective observed several color pictures of the suspect cashing the check, he pulled the driver's license number and name written on the forged check, saw that it was another white male with short hair, chose not to run a finger print even though one was present on the check, and had been advised that John Ganley was a potential victim of identity theft).

MSJ Response at 8.

         Ganley also disagrees with the Court's contention that the affidavit's use of the word “verified” should be interpreted loosely. MSJ Response at 8. Rather, Ganley insists that verified “connotes follow-up and careful securing of information.” MSJ Response at 8.[20] Ganley continues: “For a commissioned law enforcement officer to tell a judge that he has ‘verified' something, he is putting his trust, and his capacities and efforts as an investigator into that statement. He is seeking to strengthen, not loosen or weaken, the believability of the statement.” MSJ Response at 9. Ganley insists, however, that Jojola “falsely swore his warrant affidavit, ” because “he did not verify anything, and he knows it.” MSJ Response at 9-10.

         Ganley contends that he has demonstrated “that there is at least a genuine issue of material fact regarding whether Defendant Jojola, the affiant, made his statements under oath knowingly or with reckless disregard for the truth.” MSJ Response at 10-11. Specifically, Ganley contends that Jojola unreasonably misidentified Ganley based on the photographic evidence, knew that Ganley may have been the victim of identity theft, but did not investigate that possibility, and did not analyze the fingerprint until Ganley's criminal defense attorney asked for it to be analyzed. See MSJ Response at 10-11.

         Ganley then addresses whether Jojola's actions violated a clearly established civil right. See MSJ Response at 11. Ganley argues that there need not be a Tenth Circuit case “finding that a false or reckless statement in a warrant resulted in the finding of a constitutional violation, ” because the “principle governing Defendant Jojola's behavior (reckless disregard) has been articulated in multiple cases in the Tenth Circuit in discussing arrest warrants” and, therefore, it was clearly established that his actions were unconstitutional. MSJ Response at 11. Ganley also contends that, although qualified immunity relies on an objective standard, inquiry into subjective perspectives is necessary when it comes to whether someone acted knowingly or with reckless disregard for the truth. See MSJ Response at 11. Thus, Ganley asserts that “this case provides a genuine issue of material fact regarding whether Defendant acted willfully or with reckless disregard for the veracity of his affidavit.” MSJ Response at 11.

         Ganley then asserts that United States Courts of Appeals have found due process violations in circumstances similar to this case. See MSJ Response at 12-13 (citing Fairley v. Luman, 281 F.3d 913, 915 (9th Cir. 2002); Wilson v. Lawrence Cty., 260 F.3d 946 (8th Cir. 2001); Cannon v. Macon Cty., 1 F.3d 1558 (11th Cir. 1993); Sanders v. English, 950 F.2d 1152 (5th Cir. 1992); Whitley v. Seibel, 613 F.2d 682 (7th Cir. 1980)). According to Ganley, those cases “demonstrate that irresponsible and reckless failure to follow up on certain information can lead to violation of clearly established rights.” MSJ Response at 14. Ganley also contends that the facts in Romero v. Fay are distinguishable from this case.

         Ganley then argues that qualified immunity does not bar his tort claims, noting that the New Mexico Tort Claim Act (“NMTCA”), N.M. Stat. Ann. § 41-4-1 to -30, waives immunity for

personal injury, bodily injury, wrongful death or property damage resulting from assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, defamation of character, violation of property rights or deprivation of any rights, privileges or immunities secured by the constitution and laws of the United States or New Mexico when caused by law enforcement officers while acting within the scope of their duties.

         MSJ Response at 16 (quoting N.M. Stat. Ann. § 41-4-12). Ganley also contends that the Defendants' qualified immunity defense does not apply to his claims against the City of Albuquerque. See MSJ Response at 20-22. Ganley concludes by asking the Court to deny the MSJ and to permit discovery to continue. See MSJ Response at 23. Ganley also asks that, if the Court dismisses his federal claims, it should decline to exercise supplemental jurisdiction and remand the state claims to state court. See Response at 23.

         7. The MSJ Reply.

         The Defendants reply to Ganley's response. See MSJ Reply at 1. The Defendants first address Ganley's argument that qualified immunity does not apply, because Jojola submitted the Warrant Aff. with false statements, and that, without those false statements, probable cause does not exist. See MSJ Reply at 6. The Defendants argue that, to prevail on that argument, Ganley must demonstrate that Jojola “knowingly, or with reckless disregard for the truth, included false statements in the affidavit.” MSJ Reply at 6 (citing Kerns v. Bader, 663 F.3d 1173, 1188 (10th Cir. 2011)(Gorsuch, J.)). The Defendants contend, however, that Jojola's statement that “it is verified John Ganley cashed the check, ” MSJ Reply at 6 (quoting Warrant Aff. at 1), is “not false nor made knowingly or with reckless disregard for the truth, ” MSJ Reply at 6. The Defendants further argue that, even excluding that statement, the Warrant Aff. demonstrates probable cause, because it “outline[s] a series of facts to demonstrate a substantial probability” that Ganley committed a crime. MSJ Reply at 6.

         The Defendants then address Ganley's argument that including in the Warrant Aff. a statement that Ganley was a potential victim of identity theft would have vitiated the affidavit's probable cause. See MSJ Reply at 7. The Defendants contend that there is nothing in Jojola's investigation leading him to believe that Ganley is “in fact a victim of identity theft.” MSJ Reply at 7 (emphasis in original). Moreover, the Defendants note that Burt's statement was that it was “unknown” whether Ganley was a victim of identity theft and not that he is potentially a victim. MSJ Reply at 7 (emphasis omitted). The Defendants also contend that Ganley did not omit material information or mislead the judge regarding the fingerprint, arguing that the Warrant Aff. clearly states that the fingerprint had not yet been analyzed. See MSJ Reply at 8.

         The Defendants next argue that summary judgment is proper in this case, because there is “arguable probable cause to support” the Warrant Aff. MSJ Reply at 9. See id. at 9-10. The Defendants also reiterate that the Fourth Amendment governs Ganley's claims and that Jojola's investigation was robust enough not to violate the Fourth Amendment. See MSJ Reply at 10-11. The Defendants then assert that Jojola did not violate any clearly established constitutional rights. See MSJ Reply at 11 (citing White v. Pauly, 137 S.Ct. 548, 552 (2017); Medina v. City & Cty. of Denver, 960 F.2d 1493, 1498 (10th Cir. 1992)).

         Next, the Defendants address Ganley's tort claims. See MSJ Reply at 13-17. The Defendants argue that the NMTCA does not waive immunity for simple negligence: “While immunity may be waived where a law enforcement officer negligently causes a third party to commit one of the enumerated torts, ‘[t]here is substantial case law in New Mexico establishing that under Section 41-4-12, immunity is not waived for negligence standing alone.'” MSJ Reply at 14 (quoting Lessen v. City of Albuquerque, 2008-NMCA-085, ¶ 35, 187 P.3d 179, 186). The Defendants admit that the NMTCA waives immunity for failure to investigate pursuant to N.M. Stat. Ann. § 29-1-1, but argue that Jojola met his duty to investigate as that statute requires. See MSJ Reply at 14-15. Similarly, the Defendants recognize that the NMTCA waives immunity for false imprisonment, but argue that Jojola had probable cause to submit the Warrant Aff. See MSJ Reply at 15. The Defendants conclude that the Court should grant the MSJ.

         LAW REGARDING MOTIONS FOR SUMMARY JUDGMENT

         Rule 56(a) of the Federal Rules of Civil Procedure 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.)(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 (1986)(“Celotex”)

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).

Plustwik v. Voss of Nor. ASA, No. 2:11-cv-757, 2013 WL 1945082, at *1 (D. Utah May 9, 2013)(Sam, J.)(emphasis added). “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).[21] 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”).

         The 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)). 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 256. 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.” (citation omitted) (internal quotation marks omitted)).

         Nor can a party “avoid summary judgment by repeating conclusory opinions, allegations unsupported by specific facts, or speculation.” Colony Nat'l Ins. Co. v. Omer, No. CIV 07-2123, 2008 WL 2309005, at *1 (D. Kan. June 2, 2008)(Robinson, J.)(citing Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1199 (10th Cir. 2006); Fed.R.Civ.P. 56(e)). “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. Co. v. Omer, 2008 WL 2309005, at *1 (quoting Conaway v. Smith, 853 F.2d 789, 794 (10th Cir. 1988)).

         To deny 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. 442, 448 (1871); Vitkus v. Beatrice Co., 11 F.3d at 1539. “[T]here is no evidence 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. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

         When 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.”). Fourth, the court cannot decide any issues of credibility. See Liberty Lobby, 477 U.S. at 255.

         There 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 concluded that summary judgment is appropriate where video evidence “quite clearly contradicted” the plaintiff's version of the facts. 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 (emphasis in original).

         The Tenth Circuit applied this doctrine in Thomson v. Salt Lake County, 584 F.3d 1304 (10th Cir. 2009), and explained:

[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, 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.” 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).

Thomson v. Salt Lake Cty., 584 F.3d at 1312 (brackets omitted). “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.)(citation omitted), aff'd, 499 Fed.Appx. 771 (10th Cir. 2012).

         LAW REGARDING RULE 56(d)

         Rule 56(d) provides:

(d) When Facts Are Unavailable to the Nonmovant.
If a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify ...

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