Opinion
No. Civ-05-77-BRB/LCS.
June 27, 2006
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
Plaintiff Ray Peters, individually and on behalf of his deceased son's estate, pursues this civil rights action based on both federal and state law against Carlsbad, New Mexico, two of its police officers, and two of its 911 dispatchers. The case arises out of a vehicle chase through the city during the early morning hours of December 5, 2003. The Court in a 28-page order (hereinafter "prior order") previously granted in part Defendants' motion to dismiss, disposing of certain claims and parties. See Docket Entry 27. Now before the Court is Defendants' motion for summary judgment on the basis of, among other defenses, qualified immunity. Applying the applicable standards, the Court grants in part and denies in part Defendants' motion.
I.
The facts viewed in a light most favorable to Plaintiff, the non-moving party, are as follows: Defendants Tommy Barnett and T.J. Cisneros are police officers for the City of Carlsbad. Defendants Warren Hardin and Pat Turner are certified police dispatchers for the city. Around 2:51 a.m. on December 5, 2003, Defendant Hardin received a 911 "hang-up" call from Plaintiff's residence. One minute later, Defendant Hardin returned the call to inquire. Plaintiff's wife informed Hardin that "my son is dehydrated, he's got the flu and he's cold. . . . So we're going to run to the emergency room." She informed Hardin they didn't need an ambulance. Defendant Hardin did not request any additional information from her and did not urge her to summon an ambulance. Hardin concluded by telling Plaintiff's wife: "Well, if you have any trouble, let us know, okay."
After Plaintiff and their son left for the hospital, Plaintiff's wife called the hospital to inform them of the situation. She then called the regular number for the Carlsbad Police Department. Defendant Hardin answered. Plaintiff's wife informed Hardin that her husband was en route to the emergency room with her son: "I called the hospital. Then I called 885-2111, the regular number and I told them my husband would be speeding through town with a big F-250 truck. . . . I did tell them he'd be going to the hospital."
Moments later, Defendant Barnett while on routine patrol observed a Ford pickup truck traveling at a high rate of speed along the city's main thoroughfare. Unbeknownst to Barnett, Plaintiff was transporting his son to the hospital with a medical emergency. Defendant Barnett, sensing a public safety threat and unable to observe the truck's occupants, activated his lights and siren and pursued the truck. During the initial portion of the chase, the truck's rate of speed ranged from 73 mph to 45 mph. Defendant Barnett informed Defendant Hardin at dispatch of the chase and reported no other traffic on the street. Hardin did not inform Barnett of the previous 911 call from Plaintiff's wife.
According to Plaintiff's statement of the facts, Defendant Pat Turner, another dispatcher, was also on duty that night:
She had gone on break at the time when Hardin missed the original 911 call from Mrs. Peters [Plaintiff's wife] and then called back. When Ms. Turner returned to duty, Hardin did not inform her about the 911 call, or the non-emergency call from Mrs. Peters that followed. In fact, Hardin did not tell anyone about the 911 call until after Ray Peters' [Plaintiff's] license plate number had been called in, some time after the pursuit had ended.
Lieutenant Kelly Lowe, also on patrol that night, was ahead of the chase and deployed a spike belt as the truck approached. The belt punctured the truck's front tires about one-half mile from the hospital. The truck slowed to 30 mph. Defendant Barnett directed Plaintiff over the public address system to stop. Plaintiff waved his hand out the truck's window but did not stop. The truck slowed further as it reached the entrance to the emergency room parking lot. Because of its blown tires, Plaintiff had difficulty turning the truck into the hospital entrance. Plaintiff stopped and put the truck in reverse. He then proceeded forward into the parking lot. Defendant Barnett backed up his patrol car to avoid a collision. At this point, Defendant Barnett had yet to contact dispatch with the truck's license plate number. Plaintiff finally brought the truck to a stop in the middle of the parking lot about 100 feet from the emergency room entrance.
Defendant Barnett observed Plaintiff exit the truck and begin running towards the emergency room entrance. Defendant Barnett and Defendant Cisneros, who earlier had joined the pursuit, ordered Plaintiff to the ground. Plaintiff continued to run while yelling: "My son's here . . . He's here . . . Come and get him; he's sick." With guns drawn, Defendants Barnett and Cisneros tackled Plaintiff from behind while Plaintiff continued to yell for help for his son. Once Defendant Barnett had handcuffed and secured Plaintiff, Plaintiff advised Barnett that his son was in the truck and needed medical attention. Defendant Cisneros subsequently transported Plaintiff to headquarters.
Officer David Snow, another officer responding to Defendant Barnett's call, observed Plaintiff's son exiting the passenger side of the truck with a blanket on his lap. Snow drew his gun and ordered the son to the ground:
Once I got him on the ground, I used my right knee, and I put my knee on the back of him to hold him in place. . . . While I was doing that, I was grabbing ahold of his arm, because at that point I didn't know who he was or what he was doing there or what his intentions were. At that point he told me that he had a lot of pain in his stomach. I took my — took my leg off of his — off of his back, still holding onto his hand, and I kept it behind him. Because again, I wasn't sure if he was bluffing me or if he was really in pain. . . . I waved to the security guard over there at the emergency room entrance and told him to come over . . . with a wheelchair. And again, keeping him down till I got him there. . . .
After Plaintiff had been transported to headquarters, hospital staff advised Lieutenant Lowe they needed Plaintiff at the hospital because his son's condition was life threatening. Lowe asked dispatch to run Plaintiff's license plate. Defendant Hardin reported the speeding truck was from the Peters' residence. Lieutenant Lowe authorized Plaintiff's release on his own recognizance. Defendant Cisneros transported Plaintiff back to the hospital. Defendants Barnett and Cisneros did not learn of the 911 call until after the incident.
II.
As reflected in the Court's prior order, the following claims remained viable pending discovery: (1) Plaintiff's § 1983 excessive force claims alleged in his individual and representative capacities; (2) Plaintiff's § 1983 false arrest and false imprisonment claims alleged in his representative capacity; (3) Plaintiff's state law excessive force claims alleged in his individual and representative capacities; (4) Plaintiff's state law false arrest and false imprisonment claims alleged in his representative capacity; (5) Plaintiff's state law negligent failure to communicate claims alleged in his individual and representative capacities; and (6) Plaintiff's § 1983 municipal liability claims alleged in his individual and representative capacities. See Prior Order at 27.
A. Plaintiff's § 1983 Excessive Force Claim in His Individual Capacity
Defendant Barnett and Cisneros' contend they are entitled to qualified immunity on Plaintiff's § 1983 excessive force claim alleged in his individual capacity. When a defendant raises a qualified immunity defense to a claimed violation of the federal constitution in the context of a summary judgment motion, the initial burden rests with plaintiff. Plaintiff must first establish his version of the facts constitute a constitutional violation. If plaintiff cannot do so, then no additional inquiry is necessary. Defendant is entitled to qualified immunity, and judgment as a matter of law. See Cortez v. McCauley, 438 F.3d 980, 988 (10th Cir. 2006). If, however, plaintiff's facts establish such violation, the Court then asks whether the constitutional right was clearly established. Id. To be clearly established, "`[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.'" Denver Justice Peace Comm., Inc. v. City of Golden, 405 F.3d 923, 928 (10th Cir. 2005) (quotingSaucier v. Katz, 533 U.S. 194, 201 (2001)). This is not to say that qualified immunity protects official action unless a court has previously held the challenged action unlawful; rather, the unlawfulness of the action must be apparent in light of preexisting law. See Hope v. Pelzer, 536 U.S. 730, 739 (2002). If plaintiff shows the right was clearly established, the burden shifts to defendant to establish no genuine issues of material fact for trial under the ordinary summary judgment standard. See Fed.R.Civ.P. 56; Cortez, 438 F.3d at 988.
Throughout their opening and reply memoranda, Defendants focus exclusively on the first prong of the qualified immunity inquiry, i.e., whether a constitutional violation occurred. Defendants literally devote no time to the second prong, i.e., whether the law was clearly established such that a reasonable officer would have known he was violating the law. Accordingly, where the Court concludes genuine issues of material fact leave the question of a constitutional violation unresolved, the Court presumes the clearly established state of the law. In other words, because Defendants fail to argue the law was not clearly established, they have waived such argument. See United States v. Hardwell, 80 F.3d 1471, 1492 (10th Cir. 1996) (issue waived where defendant failed to make any argument or cite any authority to support his assertion).
Accepting Plaintiff's facts as true and drawing all reasonable inferences therefrom in his favor, the Court concludes a reasonable jury might find Defendants Barnett and Cisneros employed unconstitutional force against him. No one disputes that Defendant Officers used force against Plaintiff when they arrested and hauled him off to jail. The question is whether that use of force was reasonable. The reasonableness inquiry in a Fourth Amendment excessive force case is objective and turns on the totality of the circumstances. See Graham v. Connor, 490 U.S. 386, 397 (1989). Specifically, the reasonableness of Defendant Barnett and Cisneros' actions depends on (1) whether the force they employed against Plaintiff was justified when it occurred and (2) whether their own reckless or deliberate conduct during the moments preceding the use of force unreasonably created the need to use such force.See Allen v. Muskogee, Oklahoma, 119 F.3d 837, 840 (10th Cir. 1997); see also Bella v. Chamberlain, 24 F.3d 1251, 1256 n. 7 (10th Cir. 1994) ("Obviously, events immediately connected with the actual seizure are taken into account in determining whether the seizure is reasonable.").
Of course, if Defendant Officers' conduct just prior to Plaintiff's seizure constitutes no more than negligence, such conduct may not be considered as part of Plaintiff's § 1983 excessive force case. See Sevier v. City of Lawrence, 60 F.3d 695, 699 nn. 7 8 (10th Cir. 1995).
In this case, genuine issues of material fact surrounding Defendant Barnett and Cisneros' conduct and knowledge immediately preceding Plaintiff's seizure preclude summary judgment on the question of excessive force. At what point Defendants Officers became aware or should have become aware under reasonable police practice that Plaintiff's erratic driving was due to his son's medical condition is very much in dispute. A jury might infer that Defendant Officers knew of and disregarded Plaintiff's predicament ( i.e., deliberate conduct), or acted recklessly in failing to discern his predicament, by, for instance, failing to report the truck's license plate or heed Plaintiff's verbal pleas for help ( i.e., reckless conduct). If a reasonable officer would have understood Plaintiff's predicament under the facts of the case, then a reasonable officer would have understood Plaintiff (1) was not attempting to flee or commit any other crime, and (2) posed no threat to anyone's safety once he arrived at the hospital. See Graham, 490 U.S. at 396. Under such scenario, the use of force would be wholly inappropriate, and unconstitutional. Accordingly, the Court denies Defendants' motion for summary judgment on the basis of qualified immunity as to Plaintiff's § 1983 excessive force claim alleged in his individual capacity.
Despite Defendants' insistence to the contrary, Plaintiff's facts support an inference that Defendant Officers might have been able to read and thus report the truck's license plate to dispatch prior to the conclusion of the chase. In their reply brief, Defendants acknowledge an officer able to read the plate would have reported it: "There would be no reason for the officer to delay resolving the unknown and possibly dangerous situation."
B. Plaintiff's State Law Excessive Force Claim in His Individual Capacity
Defendants Barnett and Cisneros next argue they are entitled to summary judgment on Plaintiff's state law excessive force claim alleged in his individual capacity. The Court denies this portion of Defendant Officers' motion for substantially the same reasons it denied their motion on Plaintiff's § 1983 excessive force claim. As the Court explained in its prior order:
The Court can discern no meaningful difference between federal and New Mexico state law regarding the use of excessive force. . . . Under both federal and state law, the test for reasonableness in the use of force is a question of fact governed by an objective standard. See State v. Mantelli, 42 P.3d 272, 278-79 (N.M.App. 2002) (noting that whether the force employed was reasonable is usually a question for the jury).
Prior Order at 14.
Defendants' argument that they are entitled to immunity under the general grant of immunity to public employees contained in N.M. Stat. § 41-4-4 is frivolous and unacceptable. See Prior Order at 19; Fed.R.Civ.P. 11(b)(2). Section 41-4-12 plainly waives that immunity under the circumstances of this case: "The immunity granted pursuant to . . . § 41-4-4 . . . does not apply to liability . . . resulting from . . . deprivation of any rights . . . secured by the constitution and laws of . . . New Mexico when caused by law enforcement officers while acting within the scope of their duties." N.M. Stat. § 41-4-12. The Court denies Defendants' motion for summary judgment as to Plaintiff's state law excessive force claim alleged in his individual capacity.
C. Plaintiff's § 1983 False Arrest, False Imprisonment, and Excessive Force Claims in His Representative Capacity
Defendants Barnett and Cisneros assert they are entitled to summary judgment on the basis of qualified immunity on Plaintiff's § 1983 false arrest, false imprisonment, and excessive force claims alleged in his representative capacity. Defendants note Officer Snow was the only officer who had any physical contact with Plaintiff's son at the hospital. Defendants then point out the Court dismissed Officer Snow from this action over nine months ago for failure to specifically allege any constitutional violation against him. In its prior order the Court explained the relevant counts of the complaint did not name Officer Snow individually as a Defendant although the complaint "alleged he `arrested, handcuffed, and detained' the decedent."See Prior Order at 5 n. 1. To be sure, Plaintiff's representative capacity claims seem more properly brought against Officer Snow. To date, however, Plaintiff has not moved to amend his complaint to allege any constitutional violation against Officer Snow or rename him as a party defendant.
In his response memorandum, "Plaintiff recognizes that Officer David Snow has been dismissed as a defendant. However, [according to Plaintiff] the conduct of the remaining named defendants resulted in the false arrest and use of excessive force upon Jeffrey Peters, . . . ." Again accepting Plaintiff's version of the facts and all reasonable inferences to be drawn therefrom, the Court concludes a reasonable jury might find Officer Snow utilized excessive force in unlawfully arresting and confining Plaintiff's son, albeit momentarily. "An arrest occurs when the police use a show of official authority such that a reasonable person would have believed he was not free to leave." United States v. Edwards, 242 F.3d 928, 934 (10th Cir. 2001) (internal quotations omitted). Officer Snow appears to have exercised such authority over Plaintiff's son in this case. Defendants' argument that Officer Snow necessarily had probable cause to arrest Plaintiff's son falls on deaf ears for the reasons stated in the Court's prior order.See Prior Order at 10-11; Cortez, 438 F.3d at 991 (noting the "established principle that it is a jury question in a civil rights suit whether an officer had probable cause to arrest") (internal quotations omitted). The Court need not repeat itself. Moreover, a reasonable jury might find under Plaintiff's version of the facts that the use of force against Plaintiff's son was unnecessary. After all, not many criminals intending to flee or otherwise resist arrest wear blankets on their laps and claim to be sick while appearing outside a hospital's emergency room entrance.
Even assuming Officer Snow did not arrest Plaintiff's son, he may have "imprisoned" him within the meaning of the civil law. As the Court noted in its prior order, for practical purposes Plaintiff's § 1983 false arrest and false imprisonment claims in his representative capacity are one and the same because his son was seized under color of law but not confined for any significant period of time. See Prior Order at 17-18. In other words, Plaintiff may claim his son was unlawfully seized even if he was not arrested. This is so because while false arrest is a means of committing false imprisonment, false imprisonment may occur without an arrest. Id. at 18.
The question then becomes can this spell liability for Defendants Barnett and Cisneros. The answer is perhaps. An officer cannot exonerate himself from liability under § 1983 simply by claiming he did not personally inflict injury upon the victim. If such officer's conduct was a substantial factor in bringing about the injury then the officer may be liable. As the Tenth Circuit explained in Wright v. City of St. Francis, 95 Fed. Appx. 915, 929 (10th Cir. 2004):
Absence from the scene at which the injury is inflicted is not necessarily sufficient to exonerate a defendant from a § 1983 claim. Section 1983 does contain a causation requirement. See Tonkovich v. Kansas Bd. of Regents, 159 F.3d 504, 518 (10th Cir. 1998) ("[A] defendant may not be held liable under § 1983 unless he or she subjected a citizen to the deprivation, or caused a citizen to be subjected to the deprivation."). . . . [T]hat causation element may be satisfied if the defendant's conduct was "a substantial factor in bringing [the injury] about." Northington v. Marin, 102 F.3d 1564, 1569 (10th Cir. 1996). . . . [internal quotations omitted].
In other words, if Defendant Barnett or Cisneros' deliberate or reckless conduct led to Officer Snow's unconstitutional seizure of Plaintiff's son, then a jury may find them liable. See Allen, 119 F.3d at 840 (recognizing the possibility of officer liability where such officer's conduct precipitates an unlawful seizure). Accordingly, the Court denies Defendants' motion for summary judgment on the basis of qualified immunity on Plaintiff's § 1983 false arrest, false imprisonment, and excessive force claims alleged in his representative capacity.
D. Plaintiff's State Law False Arrest, False Imprisonment, and Excessive Force Claims in His Representative Capacity
The Court has already concluded genuine issues of material fact surround the questions of whether Officer Snow violated Plaintiff's son's Fourth Amendment rights and whether Defendants Barnett and Cisneros can be held liable for any such violation. Because, as the Court explained in its prior order, New Mexico state law regarding false arrest, false imprisonment, and excessive force does not differ in any significant respect from federal law, see Prior Order at 14-19, the Court for substantially the reasons just stated denies Defendant Officers' motion for summary judgment on these state law claims alleged in Plaintiff's representative capacity.
E. Plaintiff's State Law Negligent Failure to Communicate Claims in His Individual and Representative Capacities
Defendant Dispatchers join Defendant Officers in claiming entitlement to summary judgment on Plaintiff's state law negligent failure to communicate claims. After resolving Defendants' previous motion to dismiss, this was the only claim remaining against Defendant Dispatchers. See Prior Order at 27. N.M. Stat. § 41-4-4 generally provides immunity to state employees for torts committed in the scope of their employment. N.M. Stat. § 41-4-12, however, waives "law enforcement officials'" immunity for personal injury resulting from, among other things, false arrest, false imprisonment, and deprivation of civil rights secured by federal and state law. The New Mexico Supreme Court "has held that a law enforcement officer . . . may be held liable under § 41-4-12 for negligently causing infliction of one of [§ 41-4-12's] predicate torts." Bober v. New Mexico State Fair, 808 P.2d 614, 623-24 (N.M. 1991). In this case, Plaintiff claims the negligence of Defendant Officers and Defendant Dispatchers in failing to communicate with each other and amongst themselves resulted in false arrest, false imprisonment, and excessive force in violation of both federal and state law. 1.
Defendant Dispatchers Hardin and Turner are both entitled to summary judgment on Plaintiff's negligent failure to communicate claims. Plaintiff's version of the facts simply do not support any claim against Defendant Turner. According to Plaintiff, Turner was on break when the 911 call came in, and when she returned, Defendant Hardin did not inform her of the call. She did not learn of the call until after the pursuit ended. See supra n. 1. Additionally, both Defendants Hardin and Turner are entitled to immunity under § 41-4-4's general grant of immunity to public employees because dispatchers are not law enforcement officers within the meaning of § 41-4-12's exception to that grant. The New Mexico Tort Claims Act defines "law enforcement officer" as "a full-time salaried public employee of a governmental entity whose principal duties under law are to hold in custody any person accused of a criminal offense, to maintain public order or to make arrests for crimes, . . . ." N.M. Stat. § 41-4-3.D.
Certainly, 911 dispatchers do not hold persons in custody or make arrests, and while they do in a sense help maintain public order, that connection under New Mexico state court precedent is too indirect to satisfy the statutory definition. See Dunn v. McFeeley, 984 P.2d 760, 766-67 (N.M.App. 1999) (Hartz, J.). Courts have previously held that mayors, prison wardens, district attorneys, and probation and parole officers do not fall within the Act's definition of law enforcement officer although they too, in a sense, help maintain public order. Id. at 767 (citing cases). Logically then, neither do 911 dispatchers fall within that definition.
Plaintiff's argument that Defendant Hardin's negligence led to Defendant Officers' unlawful conduct lends him no support. In California First Bank v. State, 801 P.2d 646, 650 (N.M. 1990), the New Mexico Supreme Court explained:
To interpret § 41-4-12 to extend its waiver of immunity to any and all governmental actors who caused the injury producing conduct of a law enforcement officer would run counter to the structure of the Act that is quite specific with respect to the employee conduct for which immunity of an employee . . . is waived. Had the Legislature intended to waive immunity for all governmental [actors] whose conduct concurrently caused the non-immune act of a law enforcement officer, we believe it would have enacted clear provisions to effect that intent.
Accordingly, the Court grants Defendant Dispatchers' motion for summary judgment on Plaintiff's state law failure to communicate claims. Because no claims remain against Defendants Hardin and Turner, they are hereby dismissed from this action.
2.
As law enforcement officers, Defendants Barnett and Cisneros are not entitled to summary judgment on these claims. In Methola v. County of Eddy, 622 P.2d 234, 238 (N.M. 1980), the court "held the § 41-4-12 waiver of immunity for various tortious acts `caused by' law enforcement officers were not limited to acts committed by such officers. . . ." California State Bank, 801 P.2d at 650. In other words, if Defendant Officers' negligence resulted in a violation of Plaintiff and his son's rights, then the Officers may be held accountable under New Mexico state law regardless of whether they personally committed such acts. See Bober, 808 P.2d at 623-24. Accordingly, the Court denies Defendant Officers' motion for summary judgment on Plaintiff's state law failure to communicate claims.
This standard differs from federal law which requires deliberate or reckless conduct before liability may attach under § 1983. See supra n. 3.
F. Plaintiff's § 1983 Municipal Liability Claims in His Individual and Representative Capacities
Finally, Defendant City of Carlsbad argues its entitlement to summary judgment on Plaintiff's § 1983 municipal liability claims. In his response brief, Plaintiff does not attack the City's training and supervision of Defendant Officers, i.e., those directly responsible for the alleged constitutional violations, but rather its training and supervision of Defendant Dispatchers. This is critical. As the Court explained in its prior order, municipal liability cannot attach to Defendant Dispatchers' conduct under federal law because Plaintiff has never alleged any constitutional violation against them. Instead, Plaintiff has alleged only negligent conduct on their part. See Prior Order at 24. The Tenth Circuit has held "[a] claim of inadequate training, supervision, and policies under § 1983 cannot be made out against a supervisory authority absent a finding of a constitutional violation by the person supervised."Webber v. Mefford, 43 F.3d 1340, 1342-43 (10th Cir. 1994);accord Trigalet v. City of Tulsa, 239 F.3d 1150, 1154 (10th Cir. 2001). Thus, even if Defendant Hardin's training and supervision were inadequate, Defendant City cannot be held liable for such inadequacies where Defendant Hardin's conduct did not constitute a constitutional violation. See Count of Sacramento v. Lewis, 523 U.S. 833, 850 n. 10 (1998) (claim of failure to train sustainable against a municipality where trained employee "causes harm by unconstitutional conduct for which he would be individually liable"). Accordingly, the Court grants Defendant City of Carlsbad's motion for summary judgment.
In any event, the Court doubts based on the record before it that Defendant City was deliberately indifferent in training Dispatcher Hardin. See City of Canton v. Harris, 489 U.S. 378, 388 (1989) (failure to train may serve as a basis for § 1983 municipal liability only where such failure amounts to deliberate indifference). While Defendant Hardin might have "saved the day" by connecting the 911 "hang up" call to the high speed chase and relaying that information to Defendant Officers, his failure to do so under the circumstances of this case was hardly the "moving force" behind Defendant Officers' conduct. A fortiori, Defendant City's dispatcher training was hardly the moving force behind any constitutional violation. See id. at 389.
III.
For the foregoing reasons, Defendants' motion for summary judgment (Docket Entry 55) is GRANTED IN PART and DENIED IN PART. Because no claims remain against them, Defendant Dispatchers Hardin and Turner and Defendant City of Carlsbad are hereby dismissed from this action. Only the claims against Defendant Officers Barnett and Cisneros remain for trial. This matter is referred to the appropriate United States Magistrate to schedule a settlement conference.
SO ORDERED.