Brown v. City of Las Cruces Police Dep't, CIV 17-0944 JB/JHR

DAVALOUS JAMON BROWN, Plaintiff, v. CITY OF LAS CRUCES POLICE DEPARTMENT, CITY OF, DONA ANA COUNTY SHERIFF DEPARTMENT;DONA ANA COUNTY DETENTION CENTER; CHASE DUVANELL; BRAD LUNSFORD;ENRIQUE KIKI VIGIL; JAIME MONTOYA;KENNETH DANIEL GALLEGOS MIYAGISHIMA and CHRIS BARELA, Defendants.

No. CIV 17-0944 JB/JHR

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

August 21, 2019

MAGISTRATE JUDGE'S PROPOSED FINDINGS AND RECOMMENDATION

This matter is before the Court on Plaintiff's Motion for Pretrial Conference and Telephonic Hearings; Scheduling Order and Case Management, filed on December 21, 2018 [Doc. 28]; Defendants' First Motion for Summary Judgment Based Upon Heck v. Humphrey and Qualified Immunity, filed on January 15, 2019 [Doc. 33]; Defendants' Second Motion for Summary Judgment on Plaintiff's Claims Under State Law, filed on January 15, 2019 [Doc. 34]; Defendants' Motion to Stay Proceedings Pending Resolution of Motion for Summary Judgment Based Upon Qualified Immunity, filed on January 15, 2019 [Doc. 35]; and Defendants' Motion to Strike Plaintiff's Surreply, filed on April 29, 2019 [Doc. 45]. On September 17, 2018, pursuant to 28 U.S.C. § 636(b)(1)(B) and (b)(3), United States District Judge James O. Browning referred the case to United States Magistrate Judge Jerry H. Ritter "to conduct hearings, if warranted, including evidentiary hearings, and to perform any legal analysis required to recommend to the Court an ultimate disposition of the case." [Doc. 2].

Having carefully considered the parties' submissions and the relevant law, and for the reasons outlined below, I recommend that summary judgment be granted against Plaintiff's claims directed toward Defendants Lunsford, Montoya, and Miyagishima and that Plaintiff's remaining claims against Defendants Montoya, Barela, and the Las Cruces Police Department be dismissed.

I. FACTUAL BACKGROUND¹

On July 11, 2014, Xavia Gutierrez, the mother of Plaintiff's children reported that she and Plaintiff were involved in a domestic dispute at her residence in Las Cruces, New Mexico. [Doc. 33-7, pp. 3-5]. In her statement to LCPD officers, Ms. Gutierrez said that when she arrived home on July 11, 2014, Plaintiff approached her wanting to talk about their relationship. [Doc. 33-7, p. 3]. When Ms. Gutierrez asked him to leave, Plaintiff reached into the driver's side of her vehicle, where she was sitting, grabbed her by the throat and pushed her into the passenger seat. [Id., p. 4]. Plaintiff drove around the area, continuing to hold Ms. Gutierrez by the throat. [Id.]. He refused to let her out of the vehicle and held her by her legs when she attempted to get out. [Id.]. Plaintiff drove Ms. Gutierrez back to her residence and exited the vehicle. [Id.]. Ms. Gutierrez called 911 and requested assistance. [Id.]. She was then able to regain control of her vehicle and get away. [Id.]. As she attempted to pull away from her residence, Plaintiff jumped on the hood of her car and threatened to kill her. [Id.]. Ms. Gutierrez managed to drive away. [Id.]. She and stopped at nearby convenience store and called 911 again. [Id.]. Officer Renteria of the LCPD responded to Ms. Gutierrez' residence where a male matching Plaintiff's description fled on foot, ignoring theofficer's directions to stop. [Id.]. Officer J. Roman of the LCPD responded to the convenience store where he took Ms. Gutierrez' statement and noted that it was supported by physical evidence on both Ms. Gutierrez' person and vehicle. [Id.]. As a result of the incident, Plaintiff was charged with battery against a household member; criminal damage to property; and resisting, evading, or obstructing an officer. [Doc. 33-2, p. 1; Doc. 33-7, p. 1]. A warrant was issued for Plaintiff's arrest. [Id.].

On the morning of July 12, 2014, at Ms. Gutierrez' suggestion, Plaintiff went to Ms. Gutierrez' residence. [Doc. 1-1, p. 3]. While Plaintiff was using Ms. Gutierrez' shower, she contacted Deputy Thouvenell of the LCPD, who arrived at the residence to arrest Plaintiff, pursuant to the warrant. [Doc. 1-1, p. 3-4].² Plaintiff was still in the shower when Deputy Thouvenell arrived at the residence and entered the bathroom with his Taser pointed at Plaintiff. [Doc. 1-1, p, 4]. Plaintiff exited the shower, took control of the Taser, fled the residence unclothed, and hid under a nearby mobile home. [Doc. 1-1, p. 4]. As Plaintiff was fleeing, shots were fired. [Doc. 1-1, p. 4; Doc. 33-3, p. 2].

Officer Brad Lunsford of the LCPD was dispatched to provide back up to the Sheriff's Deputies on scene. [Doc 33-3, p. 2]. As he was on his way to the scene, Officer Lunsford heard over his radio that shots had been fired, but it was not clear who had fired the shots. [Id.]. Officer Lunsford noticed Sheriff's Deputies moving quickly around a trailer in the area. [Id.]. He then observed Plaintiff fleeing. [Id.]. Plaintiff jumped over two fences and did not respond to Officer Lunsford's commands to stop. [Id.].

Deputy Thouvenell approached Officer Lunsford and advised him that the fleeing man had battered a peace officer and instructed Officer Lunsford to shoot the man. [Doc. 1-1, p. 4; Doc. 33-3, p. 2]. Deputy Thouvenell and Officer Lunsford both fired at Plaintiff as he continued to flee. [Doc. 1-1, p. 5; Doc. 33-3, p. 2]. Plaintiff's lower right calf was struck by a bullet. [Doc. 1-1, p. 5]. Plaintiff continued to flee from the police and eventually reentered Ms. Gutierrez' residence and barricaded himself inside. [Doc. 1-1, p. 5; Doc. 33-3, p. 2]. Officer Lunsford was relieved by another officer and was not involved in any subsequent efforts to apprehend or arrest Plaintiff. [Doc. 1-1, pp. 2-5; Doc. 33, p. 4].

The LCPD SWAT team arrived at Ms. Gutierrez' residence. [Doc. 33-4, p. 3]. Officers repeatedly instructed Plaintiff to exit the residence, but Plaintiff remained inside. [Id.]. An Avatar SWAT robot was placed into the residence through an open window. [Id.]. Plaintiff threw the robot out of the residence. [Id.]. Officers introduced "less-than lethal" chemical agents into the residence and placed the robot back inside. [Doc. 1-1, p. 5; Doc. 33-4, p. 3]. Through the robot's monitor, officers were able to observe images of Plaintiff running through the residence with a knife and what appeared to be "some kind of a bludgeoning object" that looked like the leg of a table. [Doc. 33-4, pp. 3-4].

The SWAT team entered the residence with a police service dog. [Doc. 1-1, p. 6; Doc. 33-4, p. 4]. Plaintiff was cornered in the bathroom of the residence. [Id.]. A physical confrontation ensued between Plaintiff, the police service dog, and at least one LCPD officer. [Doc. 1-1, p. 6; Doc. 33-4, pp. 4-5]. Plaintiff was taken into custody and transported to the University Medical Center in El Paso where he was treated for the gunshot wound to his calf and dog bites. [Doc. 1-1, p. 6; Doc. 33-4, p. 5; Doc. 35-5, pp. 2-3].

Plaintiff was subsequently indicted on charges of battery against a household member, use of a telephone to threaten, harass or offend, aggravated battery, disarming a peace officer, aggravated assault of a peace officer; battery on a peace officer, resisting or obstructing, abuse or interference with a police animal, and kidnapping. [Doc. 33-6, pp. 1-5]. A jury found Plaintiff guilty of one count of false imprisonment, one count of battery against a household member; one count of use of a telephone to threaten, harass, annoy, or offend, two counts of battery on a peace officer; and one count of resisting, evading, or obstructing an officer. [Doc. 33-10, pp. 1-4; Doc. 33-11, pp. 1-5]. Plaintiff was sentenced to nine years and one hundred eighty days of confinement in the custody of the New Mexico Corrections Department. [Doc. 33-10, pp. 1-4; Doc. 33-11, pp. 1-5].

II. PROCEDURAL BACKGROUND

On August 9, 2017, Plaintiff filed his Complaint against the LCPD, the Doña Ana County Sheriff's Department, the Doña Ana County Detention Center, Deputy Thouvenell, Officer Lunsford, Doña Ana County Sheriff Enrique "Kiki" Vigil, Chief of the LCPD, Jaime Montoya, Mayor of Las Cruces, Kenneth Daniel Gallegos Miyagishima, and Doña Ana County Detention Center administrator, Chris Barela in the First Judicial District Court of New Mexico in the County of Santa Fe. [Doc. 1-1, pp. 1-2].

Based on Plaintiff's allegations, the Court has discerned claims that appear to be raised by the Complaint under the Constitution of the United States of America, the Constitution of New Mexico, and the New Mexico Tort Claims Act ("NMTCA"), NMSA 1978, §§ 41-4-1 to -30 (1976, as amended through 2015), to wit: "(i) false arrest and false imprisonment; (ii) malicious prosecution (iii) excessive force; and (iv) failure to provide adequate and necessary medical care."[Doc. 18, p. 5]. The Complaint seeks compensatory damages in the amount of $400,000.00, and "exemplary and punitive damages." [Doc. 1-1, p. 13].

On May 7, 2018, the Court dismissed Plaintiff's federal constitutional claims against the LCPD, the Doña Ana County Sheriff Department and the Doña Ana County Detention Center as not cognizable under 42 U.S.C. § 1983 (2012). [Doc. 18, pp. 15, 24]. Subsequently, on October 29, 2018, the Court granted a joint motion to dismiss the remaining claims against the Doña Ana County Sheriff Department and the Doña Ana County Detention Center, as well as all claims against Deputy Thouvenell pursuant to a settlement agreement between the parties.³ [Doc. 26; Doc. 27].

On January 15, 2019, Defendants Lunsford, Montoya, and Miyagishima (collectively Defendants) moved for summary judgment on Plaintiff's federal constitutional claims against them [Doc. 33] and on Plaintiff's claims against them under the NMTCA [Doc. 34]. Defendants also moved to stay proceedings pending the Court's ruling on the motion for summary judgment on Plaintiff's federal constitutional claims. [Doc. 35]. Plaintiff did not timely respond to the motions and on February 15, 2019, notices of completion of briefing...