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Fenn v. City of Truth or Consequences

United States District Court, D. New Mexico

November 6, 2019

RON FENN, Plaintiff,
v.
CITY OF TRUTH OR CONSEQUENCES, MICHAEL APODACA, Truth or Consequences Police Captain individually acting under the color of Law, LEE ALIREZ, Truth or Consequences Police Chief individually Acting under color of state law, and DANIEL HICKS, Director of Spaceport America, Defendants.

          MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT ON PLAINTIFF'S SECOND AND THIRD CAUSES OF ACTION

         THIS 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.

         BACKGROUND

         Plaintiff, 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.[1]Aug. 2, 2018).

         Plaintiff 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.

         Plaintiff filed this complaint alleging (1) First Amendment Retaliation; (2) Malicious Prosecution and Abuse of Process; and (3) supervisory and Monell liability.

         In its prior Memorandum Opinion and Order, this Court granted in part Defendants' First Motion to Dismiss, concluding that:

(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 8;
(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.

         DISCUSSION

         In this 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.

         I. Legal Standard

         Defendants 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, 236 (2009).

         Once a 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).

         As 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 controverted”).

         All of 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.

         II. Second Cause of Action: Malicious Prosecution/Abuse of Process

         Plaintiff asserts claims of malicious prosecution/abuse of process against Defendants Apodaca and Alirez.[2] 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” prong.

         A. Malicious Prosecution: Probable Cause and ...


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