Benavidez v. Shutiva

350 P.3d 1234

Salvador BENAVIDEZ, Plaintiff–Appellant

v.Cibola County Sheriff's Deputies Steven SHUTIVA, Garryl James, Pat Martinez, Cibola County Undersheriff Tony Mace, Cibola County Sheriff Johnny Valdez, Cibola County Sheriff's Department, Cibola County, Defendants–Appellees.

33,300.

Court of Appeals of New Mexico.

March 31, 2015.

Law Office of Derek V. Garcia, P.C., Derek V. Garcia, Albuquerque, NM, for Appellant.

Brennan & Sullivan, P.A., James P. Sullivan, Christina L.G. Brennan, Santa Fe, NM, Robyn Hoffman, Tijeras, NM, for Appellees.

OPINION

BUSTAMANTE, Judge.

{1} After he was arrested and charged with leaving the scene of an accident, resisting arrest, assault on a peace officer, and assault, Plaintiff Salvador Benavidez sued Deputies Steven Shutiva, Garryl James, Pat Martinez, Cibola County Undersheriff Tony Mace, Cibola County Sheriff Johnny Valdez, Cibola County Sheriff's Department, and Cibola County (Defendants) alleging violations of both the United States and New Mexico Constitutions as well as common law tort claims. The district court granted Defendants' motion for summary judgment on the ground that Defendants were entitled to qualified immunity from suit. Plaintiff appealed. We affirm in part and reverse in part.

I. Background

{2} Plaintiff was driving on Interstate 40 when his pickup truck was “lightly” rear-ended by a motor home. Plaintiff did not immediately stop and the motor home driver called 911 to report the accident. Defendant James was dispatched and stopped both vehicles. The two drivers disagreed about how exactly the accident occurred; Plaintiff maintained that he was not at fault but the motor home driver asserted that Plaintiff had caused the accident by pulling in front of the motor home and braking suddenly. Two other deputies arrived to assist James.

{3} After James approached Plaintiff's truck, Plaintiff got out and began arguing with James about the cause of the accident. Plaintiff admits that he “aggressively argued his innocence, asking ... James why he had been stopped and insisting that he had done nothing wrong.” He also walked toward the motor home, gesturing with his arms, swearing, and saying “[t]ell me to my face,” among other things, to the motor home driver in a loud voice. After Plaintiff either dropped or threw his identification on the ground, and then threw his wallet on the ground, Defendant Shutiva handcuffed Plaintiff and seated him on the bumper of Plaintiff's truck. He was later placed in James's police car and transported to the Cibola County Detention Center. Throughout the encounter, Plaintiff swore at the Defendants and used “racially[ ]charged language.”

{4} Plaintiff was charged with leaving the scene of an accident, assault on the motor home driver, resisting arrest, and assault upon a peace officer. The charges were later dismissed. Plaintiff then filed a complaint under 42 U.S.C. § 1983 (1996) alleging violations of the United States and New Mexico Constitutions and the New Mexico Tort Claims Act (NMTCA). Specifically, he alleged unreasonable seizure/arrest, selective and malicious prosecution, excessive force, retaliation for exercise of the right to freedom of speech, and false imprisonment. The district court granted Defendants' motion to dismiss based on its findings that the arrest and prosecution were supported by probable cause, the force used was reasonable, and Plaintiff's language constituted “fighting words” not protected by the First Amendment of the United States Constitution. Plaintiff appeals the dismissal of his complaint. Additional facts are provided as necessary to our discussion.

II. Discussion

Section 1983 and Qualified Immunity

{5} “A person acting under color of state law who violates the rights of a plaintiff established by the United States Constitution or federal statutes may be held personally liable for his or her action under 42 U.S.C. § 1983.” Archuleta v. Lacuesta, 1999–NMCA–113, ¶ 7, 128 N.M. 13, 988 P.2d 883. Section 1983 claims are “limited to deprivations of federal constitutional rights and federal statutory and regulatory rights. It does not cover official conduct that violates only state law.” 1 Martin A. Schwartz, Distinguishing Federal Constitutional Violations From State Law Wrongs, Section 1983 Litigation Claims & Defenses § 3.02 (4th ed.2007) (footnote omitted); accord Wells v. Valencia Cnty., 1982–NMSC–048, ¶ 6, 98 N.M. 3, 644 P.2d 517. Although courts often use common law torts as analogues to claims under § 1983, such as false arrest, false imprisonment, malicious prosecution, assault, and battery, “the ultimate question is whether [a] plaintiff can prove a constitutional violation.” Pierce v. Gilchrist, 359 F.3d 1279, 1288 (10th Cir.2004) ; see Schwartz, supra, § 3.02 (“[C]ourts frequently experience difficulties in determining whether conduct that is actionable under state tort law ... also violates some provision of the federal Constitution. Because § 1983 itself does not establish or create any rights, the answer to this question requires an interpretation of the federal Constitution itself, rather than of § 1983.” (footnote omitted)). Thus, the courts may use common law torts as a “starting point,” but not as the “final word” on whether a constitutional violation has occurred. Pierce, 359 F.3d at 1288 ; accord Wells, 1982–NMSC–048, ¶ 6, 98 N.M. 3, 644 P.2d 517. The “common law” with which courts begin their analyses is “the general common law tradition, rather than ... the law as defined by the jurisdiction where the action originated.” Pierce, 359 F.3d at 1289.

{6} “The doctrine of qualified immunity protects 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, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (internal quotation marks and citation omitted). To overcome the qualified immunity defense, a “plaintiff must demonstrate that (1) the defendant's alleged conduct violated a constitutional or statutory right, and (2) the right was clearly established at the time of the conduct.” Williams v. Bd. of Cnty. Comm'rs of San Juan Cnty., 1998–NMCA–090, ¶ 24, 125 N.M. 445, 963 P.2d 522. “[A] legal point is clearly established ... when it has been decided by either the highest state court where the cause of action arose, by a United States court of appeals, or by the United States Supreme Court.” Sanders v. Montoya, 1999–NMCA–079, ¶ 12, 127 N.M. 465, 982 P.2d 1064 (alteration in original) (internal quotation marks and citation omitted). “The granting of qualified immunity results in immunity from suit.” Oldfield v. Benavidez, 1994–NMSC–006, ¶ 12, 116 N.M. 785, 867 P.2d 1167.

State Constitutional and Tort Claims

{7} Although a tort does not always rise to a constitutional violation, when it does, “the federal remedy under § 1983 for deprivation of constitutional rights is supplementary to a state remedy.” Wells, 1982–NMSC–048, ¶ 13, 98 N.M. 3, 644 P.2d 517. Thus, “[t]he [NMTCA] does not prohibit a plaintiff from bringing an action for damages under the [NMTCA] where the plaintiff also pursues, by reason of the same occurrence, an action against the same government under 42 U.S.C. § 1983.” Id. ¶ 16; see NMSA 1978, § 41–4–12 (1977) (“The immunity granted pursuant to [NMTCA] does not apply to liability for personal injury, ... false imprisonment, false arrest, malicious prosecution, abuse of process, ... or deprivation of any rights, privileges or immunities secured by the constitution and laws of the United States or New Mexico when caused by law enforcement officers while acting within the scope of their duties.”).

Standard of Review

{8} On appeal from a grant of summary judgment based on qualified immunity, “[w]e view the evidence presented in the light most favorable to the party opposing summary judgment” and review the district court's decision de novo. Archuleta, 1999–NMCA–113, ¶ 6, 128 N.M. 13, 988 P.2d 883. We “look at the undisputed facts and those facts adduced by the party opposing summary judgment to see if there is any evidentiary support for finding a possible violation of law.... [I]f the law may have been violated, [we] must ask if that law was clearly established at the time of the alleged violation.” Id. (internal quotation marks and citation omitted). But, if it is clear that the relevant legal issue was not clearly established at the time, we may not reach the first issue. See Tolan v. Cotton, ––– U.S. ––––, 134 S.Ct. 1861, 1866, 188 L.Ed.2d 895 (2014) (per curiam) (stating that “[c]ourts have discretion to decide the order in which to engage the[ ] two prongs [of the qualified immunity analysis]”). As will be seen, for the most part the parties here do not dispute that the relevant law was clearly established when Plaintiff was arrested and thus, with one exception, our focus is on the “possible violation” part of the inquiry. If there is a genuine dispute over a material fact relevant to whether qualified immunity applies, summary judgment on this basis is improper. Id.

Plaintiff's Claims

{9} As a preliminary matter, we note that Plaintiff made several arguments on appeal that we do not address because they were not adequately developed, not preserved, or raised for the first time in Plaintiff's reply brief. See Headley v. Morgan Mgmt. Corp., 2005–NMCA–045, ¶ 15, 137 N.M. 339, 110 P.3d 1076 (“We will not review unclear arguments, or guess at what [a party's] arguments might be.”); State Farm Mut. Auto. Ins. Co. v. Barker, 2004–NMCA–105, ¶ 20, 136 N.M. 211, 96 P.3d 336 (“We will not entertain an argument made for the first time on appeal.”); Mitchell–Carr v. McLendon, 1999–NMSC–025, ¶ 29, 127 N.M. 282, 980 P.2d 65 (stating that “the general rule is that we do not address issues raised for the first time in a reply brief” except when the arguments are in response to issues raised in the answer brief). These arguments...