United States District Court, D. New Mexico
ORDER ADOPTING CHIEF MAGISTRATE JUDGE'S PROPOSED
FINDINGS AND RECOMMENDED DISPOSITION
Thomas Marten, Judge.
MATTER is before the Court on Chief Magistrate Judge Carmen
E. Garza's Proposed Findings and Recommended Disposition
(Doc. 81), Defendants' Objections to the same (Doc. 82),
and Plaintiff's Response to Defendants' Objections
Proposed Findings, the Chief Magistrate Judge recommended
that Defendants' Motion for Summary Judgment and
Memorandum in Support (Doc. 35) be denied. (Doc. 81 at 15).
Defendants timely objected to the Proposed Fndings and
Plaintiff timely responded to Defendants' objections.
See Fed. R. Civ. P. 72(B)(2). Following a de
novo review of Defendants' Motion for Summary
Judgment, the Proposed Findings, Defendants' Objections,
and Plaintiff's Response, the Court will overrule the
Objections, adopt the Proposed Findings and Rcommendations,
and deny Defendants' Motion for Summary Judgment.
early morning of January 17, 2015, Officer Royal Hopper with
the Hobbs Police Department was dispatched to a bar in Hobbs,
New Mexico. (Doc. 82 at 1); (Doc. 84 at 2). The parties
dispute what happened after Officer Hopper arrived on the
scene, including what Officer Hopper announced before he
fired his duty weapon at Plaintiff Nathaniel Trujillo,
whether Trujillo had his hands on the weapon and how far he
stood from the suspect brandishing the firearm, and whether
Trujillo complied with Officer Hopper's verbal commands.
(Doc. 82 at 6). It is undisputed, however, that Officer
Hopper arrived on the scene without deploying his patrol
vehicle's lights or sirens, approached Trujillo and the
suspect with the firearm without the use of a flashlight,
uttered an announcement, and fired his duty weapon
“four or five” times, hitting Trujillo twice in
the upper thigh. (Doc. 82 at 5); (Doc. 84 at 2); (Doc. 67 at
16); (Doc. 1 at 6).
stage in litigation, Trujillo has four remaining claims
arising from Officer Hopper's January 17, 2015, use of
force: two claims under 42 U.S.C. § 1983 against Officer
Hopper and the City of Hobbs, and two claims under the New
Mexico Tort Claims Act (NMTCA) for battery against both
Defendants. (Doc. 1 at 27-32). In their Motion for Summary
Judgment, Defendants argue Officer Hopper is entitled to
qualified immunity on both Trujillo's claims for battery
under the NMTCA and excessive force under Section 1983. (Doc.
35 at 13-18). In addition, Defendants contend that because no
claim can be established against Officer Hopper in his
individual capacity, no liability can be imputed to the City
of Hobbs under either the NMTCA or Section 1983. Id.
Proposed Findings, the Chief Magistrate Judge recommended
that summary judgment be denied on both Trujillo's
Section 1983 and NMTCA claims because several issues of
material fact remain disputed. (Doc. 81 at 12, 14). In
addition, the Chief Magistrate Judge recommended that because
issues of fact remain as to the reasonableness of Officer
Hopper's conduct, the derivative-liability claims against
the City of Hobbs should remain viable. Id. at 15.
The Chief Magistrate Judge therefore recommended that
Defendants' Motion for Summary Judgment be denied on the
merits. Id. at 16.
have objected to the Chief Magistrate Judge's Proposed
Findings on two grounds. First, Defendants contend the Chief
Magistrate Judge committed legal error when she determined
“there is a clearly established right that police
officers are not entitled to defend themselves from the
threat of a firearm pointed at them.” (Doc. 82 at 3);
id. at 5 (“The [Chief] Magistrate Judge's
decision that persons pointing a firearm and persons in their
vicinity have a clearly established right for the officer not
to defend himself is in error.”). Second, Defendants
argue no material facts remain genuinely disputed which
preclude a finding of qualified immunity for Officer Hopper.
Id. at 5-13. As a result, Defendants contend the
derivative-liability claims against the City of Hobbs must
also be dismissed at the summary judgment stage. Id.
response, Trujillo contends Defendants frame the
“clearly-established prong of the qualified immunity
standard” using “self-serving” evidence and
testimony provided by Officer Hopper, ignoring the legal
mandate that the evidence be viewed in the light most
favorable to the non-movant. (Doc. 84 at 7-8) (citing
Tolan v. Cotton, 572 U.S. 650, 657-60 (2014);
Pauly v. White, 874 F.3d 1197, 1218 (10th Cir.
2017)). In addition, Trujillo alleges the facts Officer
Hopper boasts as “immaterial” are those which
inform the difference “between a potentially justified
shooting and a clearly established violation of the
Garner rule.” (Doc. 84 at 6). In conclusion,
Trujillo argues Officer Hopper is not entitled to qualified
immunity because “there are varying accounts of what
happened from different witnesses, including wildly
inconsistent accounts from Hopper himself.”
Id. at 15.
resolving objections to a magistrate judge's
recommendation, the district judge must make a de
novo determination regarding any part of the
recommendation to which a party has properly objected. 28
U.S.C. § 636(b)(1)(C). Filing objections that address
the primary issues in the case “advances the interests
that underlie the Magistrate's Act, including judicial
efficiency.” United States v. One Parcel of Real
Prop., With Bldgs., Appurtenances, Improvements, &
Contents, 73 F.3d 1057, 1059 (10th Cir. 1996).
Objections must be timely and specific to preserve an issue
for de novo review by the district court or for
appellate review. Id. at 1060. Additionally, issues
“raised for the first time in objections to the
magistrate judge's recommendation are deemed
waived.” Marshall v. Chater, 75 F.3d 1421,
1426 (10th Cir. 1996); see also United States v.
Garfinkle, 261 F.3d 1030, 1031 (10th Cir. 2001).
government defendant acting under color of state law raises
the defense of qualified immunity in a summary judgment
proceeding, the burden shifts to the plaintiff to prove that
(1) a reasonable jury could find facts supporting a violation
of a constitutional right, and the right (2) was clearly
established at the time of the defendant's conduct.
Estate of Booker v. Gomez, 745 F.3d 405, 411 (10th
Cir. 2014). The Court has discretion to decide which of the
two prongs of the qualified immunity test to address first.
Id. at 412. Once the plaintiff has met their initial
burden of proof, the defendant must then demonstrate that
“no material issues of fact remain as to whether his .
. . actions were objectively reasonable in light of the law
and the information he . . . possessed at the time.”
Zuchel v. Spinharney, 890 F.2d 273, 274 (10th Cir.
1989). If the defendant can demonstrate that his actions were
objectively reasonable under the circumstances, only then is
he entitled to summary judgment based on qualified immunity.
Defendants first contend the Chief Magistrate Judge erred in
analyzing the second prong of the qualified immunity
analysis, that “there is a clearly established right
that police officers are not entitled to defend themselves
from the threat of a firearm pointed at them.” (Doc. 82
at 3). Defendants' formulation of the right, and the
evidentiary prism in which they frame it, relies on their
recitation of the facts and the “persuasive
picture” they have painted to justify Officer
Hopper's use of force. See Zuchel, 890 F.2d at
275. However, as the nonmovant, the evidence must be viewed
in the light most favorable to Trujillo. See Walker v.
City of Orem, 451 F.3d 1139, 1155 (10th Cir. 2006)