United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT'S
MOTION FOR SUMMARY JUDGMENT ON PLAINTIFF'S SECOND AND
THIRD CAUSES OF ACTION
MATTER comes before the Court upon a Motion for Summary
Judgment on Plaintiff's Second and Third Causes of
Action, filed by Defendants City of Truth or Consequences,
Chief Lee Alirez, and Captain Michael Apodaca
(“Defendants” herein) on August 12, 2019 (Doc.
42). Having reviewed the parties' pleadings and the
applicable law, the Court finds that Defendant's motion
is well-taken and, therefore, is granted.
a resident of Sierra County, New Mexico, was an outspoken
critic of the Spaceport America facility located in Sierra
County. According to the complaint, Plaintiff claims that he
“has been very outspoken regarding his disagreement
with the city of Truth or Consequences regarding the lease of
a city building to” Spaceport America. Compl.,
¶¶1, 10. He alleges that “[h]e has frequently
attended meetings and publicly protested in traditional
forums against the use of Truth or Consequences funds for the
benefit of Spaceport America.” Id. at ¶
10.Aug. 2, 2018).
has a lengthy history of being asked to leave the Lee Belle
Johnson Center, 301 S. Foch St., which was a senior center in
Truth or Consequences (where the Spaceport America
Visitor's Center is housed, alongside other facilities).
He was ultimately arrested for trespassing at the Johnson
Center in June of 2017, and criminal trespass charges were
filed against him. In the criminal case, Plaintiff filed a
motion to dismiss for failure to establish essential elements
of the offense. A hearing was held, and the motion to dismiss
was denied. The criminal case was dismissed without prejudice
(Nolle Proseque) on October 11, 2017.
filed this complaint alleging (1) First Amendment
Retaliation; (2) Malicious Prosecution and Abuse of Process;
and (3) supervisory and Monell liability.
prior Memorandum Opinion and Order, this Court granted in
part Defendants' First Motion to Dismiss, concluding
(1) Defendants Apodaca and Alirez were entitled to qualified
immunity on the First Amendment claim (Count I) because a
“reasonable [law enforcement] officer could have
reasonably believed that probable cause existed for criminal
trespass in light of well-established law, ” Doc. 38 at
(2) Defendant Alirez was also entitled to qualified immunity
as to the supervisory liability claim (Count III); and that
(3) Defendant Hicks is entitled to qualified immunity on the
First Amendment claim (Count I);
(4) However, the Court found that the Monell claim
(Count III) against the City of Truth or Consequence remains.
motion, Defendants seek summary judgment on the second and
third counts in the complaint which assert claims of (1)
Malicious Prosecution and Abuse of Process; and (2)
supervisory and Monell liability.
have raised the defense of qualified immunity, which shields
government officials from liability for civil damages
“insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a
reasonable person would have known.” Pearson v.
Callahan, 555 U.S. 223, 231 (2009); Romero v.
Story, 672 F.3d 880 (10th Cir. 2012). “In
resolving questions of qualified immunity at summary
judgment, courts engage in a two-pronged inquiry.”
Tolan v. Cotton, 134 S.Ct. 1861, 1865(2014). The
first prong asks whether the facts, taken in the light most
favorable to the party asserting the injury-here the
Defendant officers-show that the officer's conduct
violated a federal right. The second asks whether the right
in question was “clearly established” at the time
of the violation. Id. at 1865-66 (citations and
quotation marks omitted). The Court may consider these two
inquiries in any order. See Pearson, 555 U.S. 223,
defendant asserts a defense of qualified immunity, the burden
shifts to the plaintiff to show that the defendant violated a
constitutional or statutory right, and that the right was
clearly established at the time of the conduct. See
McBeth v. Himes, 598 F.3d 708, 716 (10th Cir. 2010). The
contours of the right must be sufficiently clear that a
reasonable official would understand what he is doing
violates that right.” Thomas v. Kaven, 765
F.3d 1183, 1194 (10th Cir. 2014). Courts may decide
“which of the two prongs of the qualified immunity
analysis should be addressed first in light of the
circumstances in the particular case.”
Pearson, 555 U.S. at 236 (2009); Quinn v.
Young, 780 F.3d 998, 1004 (10th Cir. 2015).
Defendants point out, Plaintiff has not complied with
Fed.R.Civ.P.56 by offering any responsive facts to
Defendants' thirty-one Statement of Undisputed Facts.
Under Rule 56, a party opposing a motion for summary judgment
must set out in its response specific facts showing a genuine
issue for trial.” Failure to do so allows the Court to
consider the movant's facts as undisputed and enter
summary judgment against the non-movant. See
Fed.R.Civ.P. 56(e)(2); Elephant Butte Irr. Dist. of New
Mexico v. U.S. Dep't of Interior, 538 F.3d 1299,
1305 (10th Cir. 2008); see also D.N.M.LR-Civ.56.1(b)
(“All material facts set forth in the Memorandum will
be deemed undisputed unless specifically
Defendants' statement of facts are supported by evidence
presented in exhibits. Based on Plaintiff's failure to
controvert any of these facts, the Court deems as undisputed
all facts leading up to Plaintiff's arrest for criminal
trespass, as well as the description and disposition of the
criminal charges that were filed.
Second Cause of Action: Malicious Prosecution/Abuse of
asserts claims of malicious prosecution/abuse of process
against Defendants Apodaca and Alirez. Defendants
contend that Plaintiff cannot maintain a claim for malicious
prosecution under the first qualified immunity prong, and
that Defendants Alirez and Apodaca are entitled to qualified
immunity under the second “clearly established”
Malicious Prosecution: Probable Cause and ...