Opinion
No. CIV-05-77-BRB/LCS.
September 14, 2005
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS
Plaintiff Ray Peters filed this civil rights action against Carlsbad, New Mexico and certain of its law enforcement officials on behalf of himself and his deceased son's estate. Now before the Court is Defendants' motion to dismiss Peters' nine-count complaint for failure to state a cause of action and on the basis of qualified immunity. See Fed.R.Civ.P. 12(b)(6). The procedural posture of this case requires the Court to accept the well-pleaded factual allegations of Peters' complaint as true.See Sutton v. Utah State Sch. for the Deaf and Blind, 173 F.3d 1226, 1236 (10th Cir. 1999). The Court grants in part and denies in part Defendants' motion.
I.
According to Peters' complaint, Defendant Warren Hardin was working as a 911 dispatcher for Defendant City of Carlsbad during the early morning hours of December 5, 2003. Around 2:45 a.m., Hardin received a "hang-up" call from 885-2431, which traced back to Peters' residence. Hardin returned the call. A female voice answered and told Hardin that her son was having difficulty breathing and was en route to the hospital with a medical emergency. Around 3:00 a.m., Defendant Tommy Barnett, a Carlsbad police officer, notified Hardin that he was in pursuit of a brown pickup traveling northbound on Canal Street at approximately 70 mph. Dispatch informed Barnett that the truck's license plate was registered to Ray Peters. Neither Hardin nor Defendant Pat Turner, another 911 dispatcher apparently on duty at the time, informed any of the pursuing officers that the suspect was reportedly en route to the hospital with a medical emergency. Barnett as well as Defendant Officers T.J. Cisneros and David Snow, pursued Peters into the parking lot of the Carlsbad Medical Center where the chase ended.
At this point, medical personnel were awaiting the arrival of Peters and his son and were in full view of the officers. According to paragraph fifteen of the complaint, Officers Barnett and Cisneros drew their weapons and used —
other aggressive police tactics upon Plaintiff and the son of Plaintiff and then arrested the Plaintiff, handcuffed the Plaintiff and threw son of the Plaintiff, Jeffery Peters, on the ground and handcuffed him, and then transferred the Plaintiff, Ray Peters, to Carlsbad Police Department, all the while [Plaintiff] advising that his son was in need of emergency care at the Medical Center.
Paragraph sixteen additionally alleges that Officer Snow "arrested, handcuffed, and detained Plaintiff's son, Jeffery Peters, all the while the Plaintiff advising that his son [was in need of emergency care]." Sometime thereafter, Dispatcher Hardin notified police department personnel of the 911 call, whereupon Peters was released from custody. Peters' son was air evacuated to the Lubbock Medical Center and later died as a result of his medical condition. Charges against Peters for reckless driving and for resisting, evading, and obstructing a police officer were dismissed.
II.
In evaluating Defendants' motion to dismiss under Fed.R.Civ.P. 12(b)(6), the Court accepts the complaint's factual recitations as true. The Court will not dismiss a claim (federal or state) for failure to state a cause of action unless the complaint fails to set forth facts establishing the alleged violation. See Sutton, 173 F.3d at 1236. To determine whether qualified immunity renders Defendants immune from Peters' federal claims, the Court's inquiry is two-fold. The Court first asks whether Defendants' actions, as alleged in the complaint, violated a federal constitutional or statutory right. If so, the Court then must determine "whether the right allegedly violated has been 'clearly established in a more particularized, and hence more relevant sense: The 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) (quoting Saucier v. Katz, 533 U.S. 194, 201 (2001)).In the Tenth Circuit, a right is clearly established if Supreme Court or Tenth Circuit case law exists on point or if the clearly established weight of authority from other circuits has found the law to be as plaintiff maintains. See Peterson v. Jensen, 371 F.3d 1199, 1202 (10th Cir. 2004). 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 pre-existing law. See Hope v. Pelzer, 536 U.S. 730, 739 (2002). Mindful of these standards, the Court now turns to Peters' complaint.
III.
Count I of Peters' complaint alleges false arrest and excessive force against Officers Barnett and Cisneros in violation of 42 U.S.C. § 1983 and the Fourth Amendment. Count II alleges false arrest and excessive force against the same two officers in violation of New Mexico state law. Notably, Counts I and II do not name Officer Snow individually as a Defendant although the complaint alleges he "arrested, handcuffed, and detained" the decedent. Counts III and IV allege false imprisonment in violation of federal and state law respectively. Count V alleges Defendants' negligent failure to communicate resulting in a violation of state constitutional rights. Count VI alleges a violation of substantive due process rights under the Fourteenth Amendment. Count VII alleges municipal liability against the City of Carlsbad under § 1983. Count VIII alleges failure to intercede against 911 Dispatchers Hardin and Turner in violation of § 1983. Finally, Count IX alleges interference with family relationships under the Fourteenth Amendment's Due Process Clause. Counts III through VI and IX do not name specific Defendants, but rather allege claims against Defendants generally. We ascertain the viability of each count, or part thereof, seriatim in light of Defendants' motion to dismiss.
While Peters' complaint identifies all Defendants as City of Carlsbad law enforcement officers, nowhere does it explain, even in cursory fashion, how Defendants Kelly Lowe, David Whitzel or "Assistant Chief" Hill violated Peters' or his son's legal rights. The Court is not required to guess. Accordingly, the Court dismisses these three Defendants, along with Defendant Snow, from this action for failure to allege any violation of law against them.
A. — Count I Peters' § 1983 False Arrest Claim in His Individual Capacity
Defendant Officers Barnett and Cisneros first assert their entitlement to qualified immunity on Peters' § 1983 false arrest claim. To state a claim for false arrest under the Fourth Amendment, the alleged facts must establish the arresting officer lacked probable cause to make the arrest. See Tanberg v. Sholtis, 401 F.3d 1151, 1159 (10th Cir. 2005). Probable cause does not require facts sufficient to establish guilt. See United States v. Vazquez-Pulido, 155 F.3d 1213, 1216 (10th Cir. 1998). Rather, probable cause exists under federal law when the facts and circumstances within the arresting officer's knowledge would lead a prudent person to believe the suspect has committed or is committing an offense. Devenpeck v. Alford, 125 S. Ct. 588, 593 (2004). The nature of the offense is irrelevant if committed in the presence of an officer. "If an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender." Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001) (rejecting a Fourth Amendment challenge to a suspect's arrest for failing to wear a seat belt, a fine-only misdemeanor). Moreover, an officer who has probable cause to arrest someone is not liable for false arrest simply because charges against the suspect are later dismissed. See Atkins v. Lanning, 556 F.2d 485, 487 (10th Cir. 1977).
In this case, the § 1983 false arrest claim as to Peters in his individual capacity must fail because Defendant Officers had, at the very least, probable cause to arrest him for speeding — a fine-only misdemeanor in New Mexico. See N.M. Stat. § 66-8-116. Peters' complaint indicates he was traveling "north bound on Canal Street at a high rate of speed, estimated at 70 mph." That alone was enough to justify Peters' arrest. See Atwater, 532 U.S. at 354. The Court is well aware of the dire medical emergency which caused Peters to speed. Unfortunately, dispatch did not inform Defendant Officers of the emergency and they had no knowledge of it at the incident's outset. While the complaint indicates Peters repeatedly informed Defendant Officers of the situation once the chase ended, the Court is aware of no authority which holds a justification for speeding — a strict liability offense — negates probable cause where it once existed. Rather, justification, or more narrowly, necessity, is an affirmative defense available to a person "who acts in an emergency that he. . . . did not create and who commits a harm that is less severe than the harm that would have occurred but for the person's action." Black's Law Dictionary 1053 (7th ed. 1999); see also State v. Rios, 980 P.2d 1068, 1072 (N.M.App. 1999).
The Court is aware of some authority which suggests that under certain circumstances, a police officer's awareness of facts supporting an affirmative defense may bear upon the probable cause determination. See, e.g., Jocks v. Tavernier, 316 F.3d 128, 135-36 (2d Cir. 2003); Kuehl v. Burtis, 173 F.3d 646, 650-51 (8th Cir. 1999). But unlike here, in those cases the crime did not occur in the presence of the arresting officer. Rather, the officer arrived on the scene after commission of the alleged crime and thus had a duty to conduct a brief investigation. See Baptiste v. J.C. Penny Co., 147 F.3d 1252, 1259 (10th Cir. 1998); Romero v. Fay, 45 F.3d 1472, 1476-77 (10th Cir. 1995).
This Court is unaware of any case holding that before effectuating an arrest, an officer who witnesses the commission of a crime has a duty to consider possible affirmative defenses, or in other words, to conduct a "mini-trial." Cf. Baptiste, 147 F.3d at 1259. ("[T]he standard for evaluating probable cause is whether the officer has 'reasonably trustworthy' information sufficient to lead a prudent person to believe that the person arrested has committed the offense."). Even assuming Count I states a claim for false arrest as to Peters in his individual capacity (which it does not), a reasonable officer in the situation Defendant Officers Barnett and Cisneros confronted would not have understood Peters' arrest was unlawful under the current state of the law. See Saucier, 533 U.S. at 202;Atwater, 532 U.S. at 354. Accordingly, because Defendant Officers are entitled to qualified immunity on Peters' § 1983 false arrest claim alleged in his individual capacity, said claim is dismissed.
Peters' § 1983 Excessive Force Claim in His Individual Capacity
Defendant Officers Barnett and Cisneros next assert their entitlement to qualified immunity on Peters' § 1983 excessive force claim. The right to make an arrest necessarily carries with it the right to use some degree of physical coercion or threat thereof. Nonetheless, an officer may effectuate a lawful arrest in an unlawful manner by employing excessive force. See Martinez v. City of Albuquerque, 184 F.3d 1123, 1125-27 (10th Cir. 1999). The reasonableness inquiry in a Fourth Amendment excessive force case is objective: "[T]he question is whether the officers' actions are 'objectively reasonable' in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation." Graham v. Connor, 490 U.S. 386, 397 (1989). Proper application of the inquiry requires careful attention to the facts and circumstances of the particular case. Id. at 396.The complaint in this case alleges "Officer T.J. Cisneros and Corporal Barnett used excessive force including drawn weapons and other aggressive police tactics upon Plaintiff. . . ." While not a model pleading, the Court concludes Count I is sufficient to state a constitutional violation for excessive force against Defendant Officers under Fed.R.Civ.P. 8 pleading standards. Viewing the complaint's allegations in a light most favorable to Plaintiff, Defendant Officers at some point during their encounter with Peters became aware of his son's medical emergency, and thus the explanation for Peters' erratic driving. What knowledge Defendant Officers actually possessed immediately prior to Peters' arrest is one factor, among others, bearing on the amount of force reasonably necessary to effectuate his arrest.
Moreover, the Court at this stage can envision a scenario following from the complaint's allegations where a reasonable officer would have understood the difference between using lawful and excessive force against Peters. See Hope, 536 U.S. 730, 741 (recognizing officials can be on notice that certain conduct violates clearly established law "even in novel factual circumstances"). In other words, Peters may overcome Defendant Officers' immunity defense "by showing that the force used was so plainly excessive under the circumstances that a reasonable officer would have known of the constitutional violation."Humphrey v. Staszak, 148 F.3d 719, 725-26 (7th Cir. 1998). Accordingly, the Court denies Defendant Officers' motion to dismiss Peters' § 1983 excessive force claim in his individual capacity. See Denver Justice Peace Comm., Inc. v. City of Golden, 405 F.3d 923, 927 (10th Cir. 2005) (noting a court should not dismiss a complaint unless it appears plaintiff "cannot prove any set of facts that would entitle him to relief").
Peters' § 1983 False Arrest Claim in His Representative Capacity
Defendant Officers Barnett and Cisneros also assert their entitlement to qualified immunity on Peters' § 1983 false arrest claim alleged in his capacity as representative of his son's estate. Accepting the complaint's allegation that Defendant Officers in fact arrested Peters' son, the son's presence as a passenger in his father's vehicle did not alone establish probable cause to arrest him. See United States v. Di Re, 332 U.S. 581, 591-95 (1948). An arrest of a person "must be supported by probable cause with respect to that person. "This requirement cannot be undercut or avoided by simply pointing to the fact that coincidentally there exists probable cause to . . . seize another . . . where the person may happen to be." Ybarra v. Illinois, 444 U.S. 85, 91 (1979). To be sure, "a car passenger . . . will often be engaged in a common enterprise with the driver." Wyoming v. Houghton, 526 U.S. 295, 304 (1999). And given the high rate of speed at which Peters drove and his failure to promptly pull over, safety concerns may have justified Defendant Officers initially cautious approach towards the son.See United States v. Melendez-Garcia, 28 F.3d 1046, 1052 (10th Cir. 1994) (recognizing the use of "firearms, handcuffs, and other forceful techniques" does not necessarily transform an investigative detention into an arrest when the circumstances justify such measures).
Nonetheless, in a civil rights suit whether an officer had probable cause to arrest a suspect is a question of fact for the jury unless only one conclusion is possible. See DeLoach v. Bevers, 922 F.2d 618, 623 (10th Cir. 1990); Radvansky v. City of Olmstead Falls, 395 F.3d 291, 302 (6th Cir. 2005). The complaint states a constitutional claim for false arrest as to Peters' son because it alleges Defendant Officers lacked probable cause to arrest him. The Court accepts those factual allegations as true because, unlike the case of Peters himself, the complaint's underlying factual allegations do not conclusively establish otherwise. Furthermore, because discovery is necessary before determining whether a reasonable officer would have understood that his conduct towards Peters' son was unlawful (assuming it was), any grant of qualified immunity would be premature.See Olsen v. Layton Hills Mall, 312 F.3d 1304, 1312-13 (10th Cir. 2002) (recognizing a grant of qualified immunity as improper where unresolved issues remained "relevant to whether the officer had probable cause and to what information he possessed"). Accordingly, the Court denies Defendant Officers' motion to dismiss Peters' § 1983 false arrest claim alleged in his representative capacity.
Peters' § 1983 Excessive Force Claim in His Representative Capacity
Peters' claim that Defendant Officers Barnett and Cisneros exercised unconstitutional or excessive force against his son similarly survives Defendants' motion to dismiss. Whether Defendant Officers exercised excessive force against Peters' son turns upon the totality of the circumstances and is yet to be determined. See Chavez v. City of Albuquerque, 402 F.3d 1039, 1045 (10th Cir. 2005) ("[T]he determination whether excessive force was used turns on the totality of the circumstances of each particular case[.]"). For now, the complaint alleges Defendant Officers exercised excessive force against Peters' son by drawing their weapons and using "other aggressive police tactics" against him. The complaint further alleges Defendant Officers threw Peters' son "on the ground and handcuffed him." For substantially the same reasons stated in regard to Peters' § 1983 excessive force claim alleged in his individual capacity, the Court denies Defendant Officers' motion to dismiss Peters' § 1983 excessive force claim alleged in his representative capacity.
B. — Count II Peters' State Law False Arrest Claim in His Individual Capacity
Peters' state law claim that Defendant Officers Barnett and Cisneros falsely arrested him fails for the same reason his § 1983 false arrest claim fails — Peters' arrest was based on probable cause. "Under New Mexico law, a police officer may make a warrantless arrest for a misdemeanor if he has probable cause to believe the offense occurred in his presence." Tanberg, 401 F.3d at 1157 (citing Boone v. State, 731 P.2d 366, 369 (N.M. 1986)). Under New Mexico law, "[a]n officer has probable cause to believe a misdemeanor is taking place in his presence 'when the facts and circumstances as observed by the officer through the officer's senses are sufficient to warrant an officer of reasonable caution to believe that an offense is occurring.'"Id. (emphasis added) (quoting State v. Salas, 986 P.2d 482, 486 (N.M. 1999)).In Tanberg, the Tenth Circuit rejected a New Mexico state false arrest claim where probable cause arose from the arresting officer's personal observations. Id. at 1159. Similarly, Defendant Officers in this case, initially unaware of the underlying circumstances prompting Peters' conduct, observed Peter's vehicle racing through the street of Carlsbad and failing to pull over. These observations gave rise to Defendant Officers' reasonable belief that Peters was speeding, driving recklessly and/or evading arrest, and gave them probable cause to arrest Peters under New Mexico law. Accordingly, the Court grants Defendant Officers' motion to dismiss Peters' state law false arrest claim alleged in his individual capacity for failure to state a cause of action.
Peters' State Law Excessive Force Claim in His Individual Capacity
Peters' individual state law claim that Defendant Officers exercised excessive force in arresting him states a cause of action for substantially the same reasons that his § 1983 excessive force claim does. The Court can discern no meaningful difference between federal and New Mexico state law regarding the use of excessive force. Under N.M. Const. Art. II, § 10, "[t]he people shall be secure in their persons . . . from unreasonable . . . seizures. . . ." Similarly, U.S. Const. Amend. IV states "[t]he right of the people to be secure in their persons . . . against unreasonable . . . seizures, shall not be violated. . . ." See State v. Manus, 597 P.2d 280, 285 (N.M. 1979) (equating "excessive" force with "unreasonable" force),overruled on other grounds, Sells v. State, 653 P.2d 162, 164 (N.M. 1982). 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 force employed was reasonable is usually a question for the jury).
The Court categorically rejects Defendants' suggestion that it apply federal immunity standards to Peters' state law false arrest and excessive force claims. Rather, state law immunity standards apply to such claims. In that regard, Defendants argument that N.M. Stat. § 63-9D-10 provides immunity to Defendant Officers Barnett and Cisneros is unavailing. Section 63-9D-10 addresses immunity in the operation of "911 systems." Section 63-9D-10 provides:
911 systems are within the governmental powers and authorities of the local governing body or state agency in the provision of services for the public health, welfare and safety. In contracting for such services or the provisioning of a 911 system, except for willful or wanton negligence or intentional acts, the local governing body, public agency, equipment supplier, telecommunications company, commercial mobile radio service provider, and their employees and agents are not liable for damages resulting from installing, maintaining or providing 911 systems or transmitting calls.
Defendant Officers Barnett and Cisneros conduct must be considered separate and apart from the operation of a 911 system because, among other reasons, they had no knowledge that Peters had phoned 911 until the critical events had passed. More importantly, § 63-9D-10 exempts intentional acts from its coverage. The foundation of any false arrest and excessive force claim is intentional conduct. To suggest that because Peters had phoned 911, Defendant Officers were at liberty to effectuate an unlawful seizure of Peters and his son is absurd. Accordingly, the Court denies Defendants Officers' motion to dismiss Peters' state law excessive force claim alleged in his individual capacity.
Peters' State Law False Arrest Claim in His Representative Capacity
Defendant Officers' motion to dismiss Peters' state law false arrest claim alleged on behalf of his son's estate is similarly unsuccessful. Under New Mexico law, an arrest for a crime which the arresting officer did not personally observe not only must be based upon probable cause, but also must comply with the reasonableness component of N.M. Const. Art. II, § 10. See Campos v. State, 870 P.2d 117, 119 (N.M. 1994). Whether Defendant Officers Barnett and Cisneros actually arrested Peters' son, whether they had probable cause to do so, and whether any such arrest was reasonable remain unresolved. See supra at 11-12. For now, the Court accepts the complaint's allegations that Defendant Officers unreasonably arrested Peters' son without probable cause. Accordingly, the Court denies Defendant Officers' motion to dismiss Peters' state law false arrest claim alleged in his representative capacity.
Peters' State Law Excessive Force Claim in His Representative Capacity
As previously explained, New Mexico state law concerning the use of excessive force does not materially differ from federal law. Objective reasonableness is the standard. See supra at 14. For substantially the same reasons stated in regard to Peters' § 1983 excessive force claim alleged in his capacity as representative of his son's estate, the Court denies Defendant Officers Barnett and Cisneros' motion to dismiss Peters' state law excessive force claim alleged in his representative capacity.
C. — Count III Peters' § 1983 False Imprisonment Claim in His Individual Capacity
Defendant Officers next claim entitlement to qualified immunity on Peters' § 1983 false imprisonment claim alleged in his individual capacity. The Court has already concluded Peters' § 1983 false arrest claim fails because the complaint conclusively establishes probable cause for his arrest. Where probable cause to make a warrantless arrest exists, a suspect generally may be detained for up to 48 hours prior to a judicial determination of probable cause. See County of Riverside v. McLaughlin, 500 U.S. 44, 56 (1991). In this case, Peters' complaint does not allege he was held in custody for an excessive period of time; rather the complaint alleges his arrest and subsequent confinement constituted false imprisonment per se. Peters' proposition is incorrect as a matter of law given the lawfulness of his arrest and McLaughlin's holding. Accordingly, because Defendant Officers are entitled to qualified immunity on Peters' § 1983 false imprisonment claim alleged in his individual capacity, said claim is dismissed.
Peters' § 1983 False Imprisonment Claim in His Representative Capacity
Peters' § 1983 false imprisonment claim as representative of his son's estate presents a different situation. First, if Defendant Officers Barnett and Cisneros falsely arrested Peters' son, then his son was unlawfully confined, however brief. "A wrongful arrest usually invades the interest in freedom from confinement and therefore constitutes a false imprisonment." 1 Fowler V. Harper, Fleming James, Jr., Oscar S. Gray, The Law of Torts § 3.18, at 365 (2d ed. 1986). For practical purposes, however, Peters' § 1983 false arrest and false imprisonment claims may be one and the same because the complaint indicates his son was not confined for any significant period of time.
Second, Peters states a cognizable claim for an unlawful seizure, and thus false imprisonment, on behalf of his son's estate regardless of whether that seizure amounted to an arrest. While false arrest is a means of committing false imprisonment, false imprisonment may occur without an arrest. See McCune v. City of Grand Rapids, 842 F.2d 903, 907 (6th Cir. 1988). The complaint alleges Peters' son was unlawfully handcuffed and placed on the ground. This is sufficient to establish confinement, however brief. As such, any pre-discovery grant of qualified immunity would be premature.See supra at 11-12. Accordingly, the Court denies Defendants Officers motion to dismiss Peters' § 1983 false imprisonment claim alleged in his representative capacity
D. — Count IV Peters' State Law False Imprisonment Claim in His Individual Capacity
Defendant Officers Barnett and Cisneros further challenge Peters' claim that they falsely imprisoned him in violation of state law. Under New Mexico law, false imprisonment consists of intentionally confining or restraining another person without consent and with knowledge that lawful authority to confine that person is lacking. See Diaz v. Lockheed Electronics, 618 P.2d 372, 375 (N.M.App. 1980) (Sutin, J., concurring) (citing N.M. Stat. § 30-4-3). Defendant Officers may be held liable if (1) they intentionally confined Peters absent his consent, and (2) they knew his confinement was unlawful. Id. at 376. To meet his burden, Peters need only show Defendant Officers restrained him. The burden to establish justification for the restraint or, in other words, to establish probable cause, rests on Defendant Officers. Id. at 375; accord Perea v. Stout, 613 P.2d 1034, 1039 (N.M.App. 1980). While the burden to establish probable cause is on Defendant Officers, that burden is met on the face of the complaint as heretofore explained. Accordingly, the Court grants Defendant Officers' motion to dismiss Peters' state law false imprisonment claim in his individual capacity for failure to state a cause of action.
Peters' State Law False Imprisonment Claim in His Representative Capacity
For substantially the same reasons stated in regard to Peters' § 1983 false imprisonment claim alleged in his capacity as representative of his son's estate, the Court denies Defendant Officers Barnett and Cisneros' motion to dismiss Peters' state law false imprisonment claim alleged in his representative capacity.
E. — Count V
Count V alleges Defendant Officers' and Defendant Dispatchers' negligence in failing to properly communicate with each other and amongst themselves resulted in a violation of Peters' and his son's legal rights contrary to New Mexico state law. N.M. Stat. § 41-4-4 generally provides immunity to state employees for torts committed in the scope of their employment. Section 41-4-12, however, waives that immunity for personal injury resulting from, among other things, false arrest, false imprisonment, and deprivation of rights secured by federal and state law "when caused by law enforcement officials." The New Mexico Supreme Court has held "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 other words, a third party assault on a victim caused by the negligent inaction of law enforcement officers is actionable against the officers. Id. at 624. At the very least, the complaint alleges negligence against Defendant Dispatchers in failing to inform Defendant Officers of Peters' situation. Defendant Officers too may have been negligent in failing to communicate with each other if, for instance, one officer had knowledge of the medical emergency and failed to inform the others. Of course, Count V remains viable only to the extent a predicate tort is first established. Because many of Peters' federal and state law claims surrounding the incident at the hospital survive Defendants' motion to dismiss, Count V survives as well. Accordingly, Defendants' motion to dismiss Count V of Peters' complaint is denied.
Defendant Dispatchers do not argue they are not "law enforcement officers" for purposes of § 41-4-12. Similarly, they do not argue that N.M. Stat. § 63-9D-10 regarding the operation of 911 systems provides them immunity from Count V. The Court deems any such arguments heretofore waived.
F. — Count VI
Count VI alleges Defendants' conduct "is shocking to the conscience" in violation of substantive due process as guaranteed by the Fourteenth Amendment. Defendants assert entitlement to qualified immunity on Count VI. The viable federal constitutional claims which Peters presents against Defendant Officers Barnett and Cisneros surround their allegedly unreasonable seizures of him and his son. The Supreme Court has clearly indicated a plaintiff may not maintain a substantive due process claim when a specific constitutional provision, in this case the Fourth Amendment, protects the rights allegedly violated. See United States v. Lanier, 520 U.S. 259, 272 n. 7 (1997); Graham v. Connor, 490 U.S. 386, 394 (1989). Because Count VI fails to state a constitutional claim against Defendant Officers, they are entitled to qualified immunity on said count.
The case of Defendant Dispatchers presents a closer question. Peters has no Fourth Amendment claim against them for they seized no one. Substantive due process analysis is therefore appropriate as to Defendant Dispatchers Hardin and Turner. See County of Sacramento v. Lewis, 523 U.S. 833, 842-45 (1998) (holding an officer engaged in a high speed chase of a criminal suspect did not violate a third-party decedent's substantive due process rights by causing his death through deliberate or reckless indifference to life). The concept of substantive due process protects individuals against arbitrary government conduct. Supreme Court decisions "have repeatedly emphasized that only the most egregious official conduct can be said to be arbitrary in the constitutional sense." Id. at 846 (internal quotations omitted). The cognizable level of government abuse of power under the Due Process Clause is that which "shocks the conscience."Id.
The Constitution "does not guarantee due care on the part of state officials; liability for negligently inflicted harm is categorically beneath the threshold of constitutional due process." Id. at 849. On the other hand, "conduct intended to injure in some way unjustifiable by any government interest is the sort of official action most likely to rise to the conscience-shocking level." Id. "Whether the point of conscience shocking is reached when injuries are produced with culpability falling within the middle range . . . such as recklessness or gross negligence is a matter for closer calls."Id. (internal citation and quotations omitted).
In this case, Count VI of Peters' complaint simply alleges Defendant Dispatchers' conduct "as described herein is shocking to the conscience." That conduct as alleged was Defendant Dispatchers failure to inform the pursuing officers that Peters was in route to the hospital with a medical emergency. The complaint further alleges that "[u]pon the realization by Defendant Hardin that no communication had been made to the police officers about the emergency call in by the Plaintiff and/or his family, Hardin notified the Department personnel of the fact and the Plaintiff was released. . . ." Notably, the complaint does not allege Defendant Dispatchers contributed to the son's death. Rather, the complaint states the son "later died as a result of his medical condition."
What role Dispatcher Turner played in all of this is unclear from the complaint and can in no manner, based upon the complaint's allegations, be considered conscious shocking in the constitutional sense. Meanwhile, the complaint's allegations as they relate to Dispatcher Hardin, viewed in a light most favorable to Peters, reflect a level of incompetence and lack of due care, but little more. Indeed, once Dispatcher Hardin realized his unfortunate oversight, he immediately sought to correct it by informing police department personnel of Peters' situation. The complaint does not suggest Dispatcher Hardin's nonfeasance was intentional, arbitrary, willful or wanton or that he was deliberately indifferent to Peters' situation. Nor does it allege that such nonfeasance was the cause of any serious injury. See Uhlrig v. Harder, 64 F.3d 567, 576 (10th Cir. 1995) (characterizing conduct which shocks the conscience as "egregious, outrageous and fraught with unreasonable risk"). Because Count VI fails to state a constitutional claim against Defendant Dispatchers, they, like Defendant Officers, are entitled to qualified immunity on said count. Accordingly, the Court grants Defendants' motion to dismiss Count VI.
G. — Count VII
Count VII alleges Defendant City of Carlsbad was deliberately indifferent in training and supervising the individual Defendants in this case. Although no model of clarity, Count VII apparently seeks to state a § 1983 claim against the City inasmuch as it seeks attorney fees pursuant to 42 U.S.C. § 1988. Defendant City asserts Count VII fails to state a claim. The Tenth Circuit set out the law applicable to a § 1983 municipal liability claim inCarr v. Castle, 337 F.3d 1221 (10th Cir. 2003). To prevail on a claim against a municipality for failure to train or supervise its police officers in the use of force, a plaintiff must first prove the training or supervision was in fact inadequate, and then satisfy the following requirements: (1) the officers exceeded constitutional limitations on the use of force; (2) the use of force arose under circumstances that constitute a usual and recurring situation with which police officers must deal; (3) the inadequate training or supervision demonstrates a deliberate indifference on the part of the city towards persons with whom the police officers come into contact, and (4) a direct causal link exists between the constitutional deprivation and the inadequate training or supervision. Id. at 1228.
In this case, as explained herein, the complaint fails to state any federal constitutional claim against either Defendant Dispatcher Hardin or Turner. Thus, municipal liability cannot attach to their conduct under federal law because underlying unconstitutional conduct is a requisite to such liability. See Trigalet v. City of Tulsa, 239 F.3d 1150, 1154-55 (10th Cir. 2001). That is not the case as to Defendant Officers on the scene at the hospital. As the Court has concluded, the complaint remains viable as to numerous Fourth Amendment claims against them. Furthermore, Count VII alleges the remaining requirements for liability set out in Carr. Accordingly, Defendant City's motion to dismiss Count VII is denied.
H. — Count VIII
Count VIII alleges Dispatcher Hardin and Turner failed to intercede to prevent Defendant Officers from subjecting Peters and his son to unconstitutional seizures in violation of § 1983. In Lusby v. T.G. Y. Stores, Inc., 749 F.2d 1423, 1433 (10th Cir. 1984), vacated and remanded on other grounds by City of Lawton v. Lusby, 474 U.S. 805 (1985), reinstated by Lusby v. T.G. Y. Stores, Inc., 796 F.2d 1307 (10th Cir. 1986), the Tenth Circuit held a police officer "present at the scene of a constitutional violation" may be liable under § 1983 if he had the opportunity to intervene but failed to do so. Accord Mick v. Brewer, 76 F.3d 1127, 1136-37 (10th Cir. 1996). To this Court's knowledge, however, no federal appellate court has ever held the constitutional duty to intercede extends beyond those law enforcement officials who actually witness unconstitutional conduct.
Peters acknowledges in his response brief that Count VIII's "failure to intercede is nothing more than simple negligence on the 911 officers." Thus, in effect, Count VIII seeks to impose vicarious federal constitutional liability upon Dispatchers Hardin and Turner for the purportedly unconstitutional acts of the Defendant Officers on the scene. Cf. Daniels v. Williams, 474 U.S. 327, 329-36 (1986) (holding state official's negligent act causing unintended injury to life or liberty does not violate due process). This case is unlike Lusby and Mick, where the Tenth Circuit recognized law enforcement officials' failure to intervene, although present on the scene, as an independent constitutional violation. Moreover, the Court is certain, given the dearth of authority, that Dispatchers Hardin and Turner could not have reasonably known they were violating Peters' and his son's constitutional rights when they failed to exercise due care and adequately inform the officers of the situation. See Saucier, 533 U.S. at 202. Accordingly, because Defendants Hardin and Turner are entitled to qualified immunity on Count VIII, said count is dismissed.
I. — Count IX
In Count IX, Peters alleges "interference with family relations" based on his inability "to console, comfort and be present at the last moments of [his son's life]." Count IX claims Defendants' actions violated his and his son's rights to familial association as secured by the Fourteenth Amendment's Due Process Clause. In the Tenth Circuit, "an allegation of intent to interfere with a particular relationship protected by the freedom of intimate association is required to state a claim under § 1983." Trujillo v. Board of County Comm'rs, 768 F.2d 1186, 1190 (10th Cir. 1985). "Not every . . . act that results in an interference with the rights of intimate association is actionable. Rather, to rise to the level of a constitutional claim, the defendant must direct his . . . conduct at the intimate relationship with knowledge that the . . . conduct will adversely affect that relationship." Griffin v. Strong, 983 F.2d 1544, 1548 (10th Cir. 1993).Count IX fails to allege Defendants' requisite intent to deprive Peters and his son of their right to familial association under the Fourteenth Amendment. Nothing in Count IX indicates Defendants directed their conduct towards that relationship. The Court is aware that the New Mexico Court of Appeals has held allegations of gross negligence or recklessness on the part of a defendant may suffice to state a cause of action for interference with the right to familial association. See Blea v. City of Espanola, 870 P.2d 755, 760 (N.M.App. 1994). Peters, however, does not allege any violation of New Mexico state law in Count IX. To the extent, if any, Blea purported to address federal law, it carries no weight in light of the Tenth Circuit's binding decision in Trujillo. Accordingly, Count IX fails to state a federal cause of action against Defendants and is dismissed.
III.
To summarize, the § 1983 claims alleged in Count I of Peters' complaint remain viable, excepting his claim for false arrest alleged in his individual capacity, which is dismissed. The state law claims alleged in Count II of the complaint remain viable, excepting Peters' claim for false arrest alleged in individual capacity, which is dismissed. Count III's § 1983 false imprisonment claim alleged in Peters' individual capacity is dismissed, while the same claim alleged in his representative capacity remains viable. Count IV's state law false imprisonment claim alleged in Peters' individual capacity is dismissed, while the same claim alleged in his representative capacity remains viable. Count V's state law claim of negligent conduct resulting in a deprivation of legal rights remains viable. Count VI's federal substantive due process claim is dismissed in its entirety. Count VII's § 1983 municipal liability claim remains viable. Count VIII's § 1983 claim for failure to intercede is dismissed in its entirety. Count IX's § 1983 claim of interference with familial relationships is dismissed in its entirety. Furthermore, Defendants Kelly Lowe, David Snow, David Whitzel, and Assistant Chief Hill are dismissed from this action because the complaint fails to specifically identify any of the foregoing Defendants as violating any legal right of Peters or his son.
Accordingly, Defendants' Motion to Dismiss is GRANTED IN PART and DENIED IN PART. The discovery stay imposed pending resolution of Defendants' motion to dismiss is DISSOLVED. This matter is referred to the appropriate United States Magistrate Judge for submission of an initial pretrial report.
SO ORDERED.