United States District Court, D. New Mexico
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
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.
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.”). Jojola contacted
an investigator, Steve Torbett,  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
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); Warrant Aff. at 1; Jojola Aff. ¶ 7
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. 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
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. 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
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). 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).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. 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.
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. 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
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).
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. 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. 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. 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.
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.
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
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
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
10. Plaintiff failed to comply with the notice provisions set
forth pursuant to the New Mexico Tort Claims Act, NMSA 1978,
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
Answer at ¶¶ 2-18, at 9-11.
The Motion for Summary Judgment.
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)).
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.
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.
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
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.
The Rule 56(d) Motion.
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.
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.
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
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.
The Rule 56(d) Motion Response.
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.
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.
The Rule 56(d) Motion Reply.
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.
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
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).
Court held a hearing. See Draft Hearing Transcript
at 1:21 (taken June 4, 2018)(“Tr.”)
(Court). 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).
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
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).
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).
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).
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).
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).
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).
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).
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
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).
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).
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
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
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
The MSJ Response.
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.
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. 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.
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.
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.
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.
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.
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.
The MSJ Reply.
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.
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.
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)).
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.
REGARDING MOTIONS FOR SUMMARY JUDGMENT
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
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). 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
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)).
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)).
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).
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.
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
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, 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).
REGARDING RULE 56(d)
(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