United States District Court, D. New Mexico
PROPOSED FINDINGS AND RECOMMENDED
CARMEN E. GARZA, CHIEF UNITED STATES MAGISTRATE JUDGE
MATTER is before the Court on Defendants City of
Hobbs and Royal Hopper's Motion for Summary Judgment
and Memorandum in Support (the “Motion”),
(Doc. 35), filed August 16, 2017; Plaintiff Nathaniel
Trujillo's Response to Defendants' Motion for
Summary Judgment and Memorandum in Support (the
“Response”), (Doc. 67), filed February 1, 2019;
and Defendants' Reply in Support of Motion for
Summary Judgment (the “Reply”), (Doc. 74),
filed March 7, 2019.
August 5, 2019, United States District Judge J. Thomas Marten
referred this matter to the undersigned to make findings of
fact, conduct legal analysis, and recommend an ultimate
disposition. (Doc. 79). After considering the parties'
filings, the record, and the relevant law, the Court
RECOMMENDS that Defendants' Motion
for Summary Judgment and Memorandum in Support, (Doc.
35), be DENIED.
January 16, 2015, Defendant Royal Hopper was working as a
patrol officer for the City of Hobbs Police Department. (Doc.
35 at 2). In the early hours of January 17, 2015, he received
a call on his radio indicating that a fight was in progress
at Diamond Lil's, a local bar in Hobbs, New Mexico.
Id. Officer Hopper arrived at Diamond Lil's in
his patrol vehicle without activating his lights or sirens.
Id. As he approached, Officer Hopper saw a
“crowd of people on the side of the bar.”
Id. Officer Hopper pulled into the area where the
crowd was located, and witnessed people starting to walk
away. Id. Upon entering the parking lot, Officer
Hopper believed the fight that resulted in his initial
dispatch to the scene was over. Id.
Hopper exited his patrol vehicle to ensure the scene was
secure and no fighting continued. (Doc. 35 at 3). Officer
Hopper was in full uniform, with his badge and duty weapon.
Id. at 4. As he walked to the back parking lot to
assess the scene, Officer Hopper did not use his flashlight
because “he did not want people to see him from
afar.” (Doc. 74 at 10). After viewing at least one
individual with a rifle and yelling something akin to
“Freeze, HPD, ” Officer Hopper fired his duty
weapon “six to eight times.” (Doc. 67 at 14).
Plaintiff Nathaniel Trujillo was shot twice in the upper
thigh and Kyle Laughrin was shot once. (Doc. 1 at 5). Mr.
Trujillo was severely injured as a result of the gunshot
wounds and was later airlifted to University Medical Center
in Lubbock, Texas, for emergency medical treatment.
Id. at 6.
Complaint, Mr. Trujillo alleges five causes of action against
the City of Hobbs (the “City”) and Officer
Hopper. (Doc. 1 at 27-31). Defendants now seek summary
judgment on the basis of qualified immunity on each of Mr.
Trujillo's five claims. (Doc. 35 at 1). In response to
Defendants' Motion, Mr. Trujillo has abandoned one of his
claims - a 42 U.S.C. § 1983 action alleging Officer
Hopper violated his Fourteenth Amendment right to receive
medical aid after being shot. (Doc. 67 at 2, n. 1). Thus,
what remains before the Court are: two claims against Officer
Hopper in his individual capacity, including one count of
battery under the New Mexico Tort Claims Act
(“NMTCA”) and one Fourth Amendment claim for the
use of excessive force under 42 U.S.C. § 1983
(“Section 1983”); and two claims against the
City, including one count of “negligence resulting in
battery” under the NMTCA and one count of Section 1983
Monell liability under a theory of failure to train
and the excessive use of force under the Fourth and
Fourteenth Amendments. (Doc. 1 at 27-32).
their Motion, Defendants have divided the “undisputed
material facts” of this case into four subsections,
each section detailing a different actor's or
witness's “recollection of events” from the
early morning hours of January 17, 2015. (Doc. 35 at 2)
(“Officer Hopper's Recollection of Events”);
id. at 5 (“Events described by Kyle
Laughrin”); id. at 6 (“Adam
McGranahan's Recollection of Events”); id.
at 8 (“Plaintiff's Recollection of Events”).
Defendants then argue that under each of the factual
recitations provided, it remains undisputed that: (1) Officer
Hopper announced his presence; and (2) the gun pointed in his
direction was not lowered when Officer Hopper issued his
commands. Id. at 16-17. Essentially, Defendants
argue, based on these two undisputed facts alone, the Court
should conclude that Officer Hopper's decision to shoot
Mr. Trujillo was reasonable and he is therefore entitled to
qualified immunity as a matter of law. Id.
judgment is appropriate “if the movant shows that there
is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). A fact is “material” if it
could have an effect on the outcome of the lawsuit.
Smothers v. Solvay Chems., Inc., 740 F.3d
530, 538 (10th Cir. 2014) (citation omitted). A dispute over
a material fact is “genuine” if the evidence
presented could allow a rational jury to find in favor of the
non-moving party. E.E.O.C. v. Horizon/CMS Healthcare
Corp., 220 F.3d 1184, 1190 (10th Cir. 2000) (internal
citation omitted). “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.'” Harapat v. Vigil, 676 F.Supp.2d
1250, 1258-59 (D.N.M. 2009) (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 250 (1986)).
considering a summary judgment motion, the court views the
facts in the light most favorable to the non-moving party and
draws all reasonable inferences in his or her favor.
Shero v. City of Grove, 510 F.3d 1196, 1200 (10th
Cir. 2007). A party seeking summary judgment bears the
initial burden of showing there is no genuine dispute as to
any material fact. Adler v. Wal-Mart Stores, Inc.,
144 F.3d 664, 670-71 (10th Cir. 1998). When the movant does
not have the burden of persuasion at trial, it can satisfy
its burden at the summary judgment stage by identifying a
lack of evidence on an essential element of the claim.
Id. at 671. If the party seeking summary judgment
satisfies its burden, the burden then shifts to the
non-movant cannot rest on the pleadings but must
“designate specific facts so as to make a showing
sufficient to establish the existence of an element essential
to that party's case in order to survive summary
judgment.” Sealock v. Colo., 218 F.3d 1205,
1209 (10th Cir. 2000) (citation omitted). Specifically, the
non-movant must identify facts from which a rational trier of
fact could find in the non-movant's favor, utilizing
evidence such as affidavits, deposition transcripts, or
incorporated exhibits. Adler, 144 F.3d at 671. The
party cannot rest on ignorance of the facts, speculation, or
unsubstantiated conclusory allegations. Harvey Barnett,
Inc. v. Shidler, 338 F.3d 1125, 1129 (10th Cir. 2003).
mere existence of a scintilla of evidence will not avoid
summary judgment.” Harapat, 676 F.Supp.2d at
1259 (citing Vitkus v. Beatrice Co., 11 F.3d 1535,
1539 (10th Cir. 1993)). If the evidence in favor of the
nonmovant “is merely colorable . . . or is not
significantly probative, . . . summary judgment may be
granted.” Id. (quoting Anderson, 477
U.S. at 249). “A fact is ‘disputed' in a
summary-judgment proceeding only if there is contrary
evidence or other sufficient reason to disbelieve it; a
simple denial, much less an assertion of ignorance, does not
suffice.” Grynberg v. Total S.A., 538 F.3d
1336, 1345 (10th Cir. 2008) (citing Fed.R.Civ.P. 56(e)).