Conner v. Rodriguez

891 F.Supp.2d 1228

Charles Dale CONNER, Plaintiff,

v.Alex RODRIGUEZ and State of New Mexico Dep't of Public Safety, Defendants.

No. 10–CV–512 WJ/WDS.

United States District Court, D. New Mexico.

Dec. 8, 2011.

Merida I. Zerbi, Zerbi Law Firm, PC, Monte Vista, CO, Robert J. Gorence, Louren M. Oliveros, Gorence & Oliveros PC, Albuquerque, NM, for Plaintiff.

Michael Dickman, Santa Fe, NM, for Defendants.

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT

JOHNSON, District Judge.

THIS MATTER comes before the Court on Plaintiff Charles Dale Conner's Motion for Partial Summary Judgment (doc. 59), filed May 18, 2011, and Defendant Alex Rodriguez's Motion for Summary Judgment (Qualified Immunity) (doc. 92), filed August 19, 2011. In this civil action brought under 42 U.S.C. § 1983, Plaintiff alleges that Defendant violated Plaintiff's Fourth Amendment rights under the United States Constitution to be free from unreasonable searches and seizures. Specifically, Plaintiff claims that Defendant used excessive force in effecting Plaintiff's arrest. Each party argues that there are no disputes of material fact and that each party is entitled to summary judgment. The Court finds that Defendant's motion is well-taken and shall be GRANTED, while Plaintiff's shall be DENIED.

Background

I. Procedural History

Plaintiff filed this case in Federal Court on May 27, 2010, alleging five claims:

Count I: excessive force in violation of the Fourth Amendment against Defendant Rodriguez;

Count II: assault and battery under the New Mexico Tort Claims Act against Defendant Rodriguez;

Count III: municipal liability asserted against Defendant State of New Mexico Department of Public Safety (“DPS”) for violations of the Tort Claims Act;

Count IV: municipal liability asserted against Defendant DPS under § 1983; and

Count V: liability of DPS based on respondeat superior.

The Court previously granted Defendant New Mexico Department of Public Safety's (“DPS”) motion to dismiss Count IV of the Complaint based on immunity from suit under the Eleventh Amendment. (Doc. 20.) Thereafter, the Court granted both Defendants' Motion to Dismiss Counts II, III, and V of the Complaint for related sovereign immunity bars to suit. (Doc. 91.) Therefore, the only remaining claim in this case is Count I for excessive force under the Fourth Amendment against Defendant Rodriguez.¹ It is this remaining claim which is the subject of the parties' cross-motions for summary judgment.

II. Factual Background

On the evening of February 5th, and continuing into the early morning of February 6th, 2009, Plaintiff, through a series of misguided actions and criminal conduct, made himself the subject of a high-speed police chase in Southern Colorado that ended in New Mexico. When the Colorado officers pursuing Plaintiff realized that he would be driving into New Mexico, they requested assistance from the New Mexico State Police in setting up a roadblock and apprehending Plaintiff. Defendant was one of the New Mexico State Police officers who responded to this request.² That evening, Defendant was on duty wearing his uniform and driving a marked New Mexico State Police vehicle.

While en-route to intercept Plaintiff, Defendant learned from his police dispatcher that Plaintiff was driving erratically at a high rate of speed towards the Colorado/New Mexico border with nine to twelve Colorado law enforcement officers in pursuit; that Plaintiff has a history of mental illness and was armed with knives; that there was an outstanding warrant for Plaintiff's arrest; that earlier that evening Plaintiff had rammed two police vehicles in Colorado with shots being fired at Plaintiff by Colorado officers; and that Plaintiff was drinking beer and tossing the empty cans out of his vehicle.

The Colorado officers requested that Defendant and the other New Mexico officers set up spike strips to puncture Plaintiff's tires and thereafter take over the pursuit. Officer Lucero's in-car video documents the events from the time Plaintiff crossed the spike strips until the time when, after a face-to-face confrontation, Defendant discharged his shotgun at Plaintiff and wounded him in the shoulder. These events in New Mexico between Plaintiff and Defendant occurred over a time period of approximately 5 1/2 minutes.

When Plaintiff's vehicle initially encountered the spike strips placed on the road by Defendant and the other officers, one of Plaintiff's tires became shredded; however, Plaintiff's vehicle continued to drive for several miles on the metal rim of the wheel. When Plaintiff's vehicle veered off the road and came to a stop, Defendant and other officers identified themselves as New Mexico State Police officers and repeatedly ordered Plaintiff to show them his hands. Plaintiff did not comply and instead sat in the driver's seat moving somewhat erratically. According to Defendant, Plaintiff then ducked down towards the passenger seat in a manner that Defendant perceived to be threatening in that Plaintiff could have been reaching for a weapon. The audio recording has Defendant stating: “hold on, hold on, hold on, he just ducked, he just ducked.” (Doc. 59 ex. C at time-stamp 46:26.) Defendant then called out “bean bag” and fired his weapon striking Plaintiff in the shoulder.

Plaintiff contends there is a disputed issue of material fact in that according to Plaintiff, he disputes that he ducked towards the passenger seat or that he moved at all during the confrontation. ( See doc. 95 at 7; doc. 95 ex. B at 100–02.) However, Officer Lucero's dash cam recorder and Defendant's belt tape recording discredit Plaintiff's assertion that he was lying passively and unconscious during the entire confrontation with Defendant and the other New Mexico officers. See Scott v. Harris, 550 U.S. 372, 378–81, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (“When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.”) In the video, Defendant can be heard to say “hold on, hold on, hold on, he just ducked, he just ducked,” which refrain is echoed by the other officers present at the scene. The officers can be seen in the video backing up from Plaintiff's vehicle. It strains credulity to imagine that all of the police officers spontaneously fabricated this movement away from Plaintiff's vehicle while Plaintiff was lying passively and unconscious across the seat in his vehicle. Therefore, the video and audio evidence clearly contradicts Plaintiff's assertion that he was lying passively and unconscious across the seat of his vehicle and the Court will not give credence to this particular assertion.

While Defendant yelled out “bean bag” and then discharged his weapon, what struck Plaintiff in the shoulder was not a “bean bag” projectile, but rather was buckshot discharged from the 12–gauge shotgun issued to Defendant. Prior to the incident in question, the DPS issued Defendant two Remington model 870 12 gauge shotguns. The one shotgun considered to be “lethal” fires 12–gauge shells filled with buckshot and the other shotgun considered to be “less-lethal” fires “bean-bag” rounds. Additionally, while the two shotguns were Remington Model 870's, the bean-bag shotgun was marked with yellow tape on the barrel and on the stock, the bean-bag rounds were white and the bean-bag shotgun had a synthetic stock. In contrast, the lethal shotgun had a wooden stock and the shells were red and displayed in a holder on the outside of the stock.

The uncontroverted evidence establishes that while Defendant ordinarily stored his less-lethal shotgun in the trunk of his vehicle and the lethal shotgun beside the front seat, on this particular occasion Defendant's lethal shotgun was in the trunk of his police cruiser with his other equipment because Defendant was involved in an earlier mission. Defendant left the lethal shotgun in the trunk so that it would be secured over the long weekend and simply forgot to move it back to its normal position. The less-lethal shotgun was also in the trunk, covered up by other equipment.

Immediately prior to Defendant's confrontation with Plaintiff, Defendant accidentally removed his lethal shotgun from the trunk believing he had grabbed his less-lethal shotgun. Defendant stated that he was wearing gloves and could not feel the difference in texture between the stock of the lethal shotgun and the stock of the less-lethal shotgun. Moreover, the incident in question occurred at night so Defendant did not see that he had picked up the wrong shotgun. During the face-to-face encounter with Plaintiff, Defendant intended to use his less-lethal shotgun. After shooting Plaintiff with the lethal shotgun, Defendant expressed surprise and consternation that he had discharged a lethal-type round, as evidenced by the dash-cam and belt recorders.

These facts are not disputed, and the Court finds that they provide a sufficient basis to decide the legal questions presented by the parties' cross-motions for summary judgment.

Legal Standard

Summary judgment is only appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. Pro. 56(c); Martinez v. Beggs, 563 F.3d 1082, 1088 (10th Cir.2009). The moving party bears the initial burden of showing an absence of evidence to support the nonmoving party's case. Once that burden is met, the nonmoving party must put forth specific facts showing that there is a genuine issue of material fact for trial; it may not rest on mere allegations or denials in its own pleadings. Anderson v. Liberty Lobby, 477 U.S. 242,...