Gallegos v. City of Espanola, Corp.

ANTONIO GALLEGOS and KRISTIAN PETTINE, Plaintiffs, v. CITY OF ESPANOLA, a municipal corporation; JOE MARTINEZ, individually and in his officialcapacity; JEREMY APODACA, individually and in his official capacity; ROBERT VIGIL,individually and in his official capacity;CITY OF ESPANOLA OFFICERS and SUPERVISORS JOHN DOES 1through 10, individually and in their official capacities, Defendants.

No. 12-CV-224 JAP/KBM

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

June 4, 2015

MEMORANDUM OPINION AND ORDER

On March 20, 2015, Defendants filed DEFENDANTS' THIRD MOTION FOR SUMMARY JUDGMENT AGAINST PLAINTIFF ANTONIO GALLEGOS (Motion for Summary Judgment) (Doc. No. 228). On April 30, Plaintiff Antonio Gallegos filed a RESPONSE (Doc. No. 235) opposing the Motion for Summary Judgment. On May 14, 2015, Defendants filed a REPLY (Doc. No. 236). For the following reasons, the Court will grant in part and deny in part the Motion for Summary Judgment.

I. Background

On July 31, 2010, Defendants Apodaca and Vigil went to Plaintiffs' mobile home sales office (which Plaintiffs also used as a residence)¹ to investigate a reported assault. Alfonso Gurule, Plaintiffs' guest, had called 911 after Plaintiff Gallegos's son, Estevan Gallegos, threatened him with a handgun. Defendants Apodaca and Vigil essentially detained PlaintiffGallegos to question Plaintiff Gallegos about his son's whereabouts. When Plaintiff Gallegos refused to obey the police officers' verbal commands to stay outside Plaintiffs' mobile home office-cum-residence, the situation quickly escalated. The parties dispute who initiated physical force, but whatever happened, Defendant Apodaca 'drive stunned' Plaintiff Gallegos three times with a Taser,² after which point Plaintiffs Gallegos and Pettine³ were arrested and taken to jail.

II. Legal standards

A. Standard for evaluating a motion for summary judgment under Fed. R. Civ. P. 56

Under the Federal Rules of Civil Procedure, summary judgment may be granted if "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). When applying this standard, the Court examines the factual record and reasonable inferences therefrom in the light most favorable to the party opposing summary judgment. Applied Genetics Int'l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir. 1990). The party seeking summary judgment bears the initial burden of "show[ing] that there is an absence of evidence to support the nonmoving party's case." Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir. 1991) (internal quotation marks omitted). Once the movant meets this burden, Rule 56 requires the non-movingparty to designate specific facts showing that there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). In considering a motion for summary judgment, then, the Court's "role is simply to determine whether the evidence proffered by plaintiff would be sufficient, if believed by the ultimate factfinder, to sustain her claim." Foster v. Alliedsignal, Inc., 293 F.3d 1187, 1195 (10th Cir. 2002).

B. Standard for granting summary judgment on the basis of qualified immunity

When a defendant raises the defense of qualified immunity at summary judgment, courts engage in a two-pronged inquiry. See Tolan v. Cotton, — U.S. —, 134 S.Ct. 1861, 1865, 188 L.Ed.2d 895 (2014) (per curiam). "The first [prong] asks whether the facts, taken in the light most favorable to the party asserting the injury, show the officer's conduct violated a federal right." Id. (alterations omitted). "The second prong...asks whether the right in question was 'clearly established' at the time of the violation." Id. at 1866. "[U]nder either prong" of the qualified immunity inquiry, "courts may not resolve genuine disputes of fact in favor of the party seeking summary judgment." See id.

III. Discussion

A. Undisputed material facts

The following facts are not in dispute. On July 31, 2010, Defendant Apodaca, a police officer employed by Defendant City of Española, was dispatched to Plaintiff's "home/business" to investigate a reported "assault." Motion at 3, Doc. No. 144 at 1. The dispatcher advised Defendant Apodaca that a man named "Estevan" had threatened the victim, Alfonso Gurule, with a weapon. Incident Report (Doc. No. 68-1) at 1. The dispatcher told Defendant Apodaca that "[Estevan] had left the scene with a 'black in color handgun' or 'pistol'." Motion at 3; Doc.No. 144 at 2. The dispatcher told Defendant Apodaca that the suspect was walking south towards New Mexico Community College. Doc. No. 144 at 2; Doc. No. 94 at 9.

Defendant Apodaca testified that he drove to Plaintiffs' business-cum-residence by way of the road to the Community College and did not observe anyone matching the dispatcher's description of the suspect. Doc. No. 94 at 9. After arriving at Plaintiffs' "home/business," Defendant Apodaca and Defendant Robert Vigil (also a police officer employed by Defendant City of Española) began questioning the individuals present about the reported assault. Motion at 3. Defendant Apodaca was concerned that the suspect had "left the scene and was walking around with a hand gun." Motion at 3; Doc. No. 68 at 7.

Defendant Apodaca smelled alcohol on Plaintiff Pettine, who was slurring her words, yelling, and having difficulty standing up. Doc. No. 139 at 4; Doc. No. 144 at 8 ¶ 1. Plaintiff Pettine admitted that she had consumed a "couple" of alcoholic beverages. Doc. No. 139 at 5; Doc. No. 144 at 8 ¶ 3. Officer Apodaca asked if there was anyone else in the home, at which point Plaintiff Gallegos and his stepson, Andre, stepped out of the house. Doc. No. 139 at 5; Doc. No. 144 at 8 ¶ 3. Plaintiff Gallegos "thought [Defendant Vigil] might be a customer, so he went outside and asked [Defendant] Vigil if he could help him." Motion at 3; Doc. No. 144 at 2. Plaintiff Gallegos was "highly intoxicated, as were the rest of the adults at the scene. Andre [Gallegos] was sober." Doc. No. 139 at 5; Doc. No. 144 at 8 ¶ 3.

Defendant Vigil told Plaintiff Gallegos that "there was a 911 call" and that "somebody had pulled a gun on somebody else." Motion at 4; Doc. No. 144 at 8. Plaintiff Gallegos responded that he knew nothing about the 911 call, and asked Mr. Gurule whether he had seen his son Estevan with a gun. Id. Mr. Gurule then said "no, I don't know." Id. Plaintiff Gallegosthen told Defendant Vigil that "obviously there is not anything going on here. Somebody made a call saying there was a gun and now [Mr. Gurule] is saying no, and he doesn't know." Id.

Defendant Vigil asked Plaintiff Gallegos if there were any guns in the house, to which Plaintiff Gallegos responded that there "probably were" guns in the house. Motion at 5 ¶ 1. Plaintiff Gallegos's "anger, volatility and threats" caused Defendants Apodaca and Vigil to be concerned about their safety and "the safety of everybody involved." Motion for Summary Judgment at 5 ¶ 23; Doc. No. 141 at 6; Doc. No. 144 at 10 ¶ 6. Defendant Apodaca ordered Plaintiff Gallegos to stand by Apodaca's police cruiser. Motion at 3; Doc. No. 68 at 7. Plaintiff Gallegos ignored the order and tried to reenter his home. Motion at 4; Doc. No. 68 at 8. Defendant Vigil interposed himself between Plaintiff Gallegos and the entrance to his home, telling Plaintiff Gallegos that he was not allowed to go back into his home. Motion at 4; Doc. No. 68 at 8. A struggle ensued. Defendants Apodaca and Vigil tussled with Plaintiff Gallegos in an effort to subdue and handcuff him. Defendant Apodaca "drive stunned" Plaintiff Gallegos three times with his Taser. Motion at 6.

B. Disputed material facts

Plaintiff Gallegos contends that although he ignored Defendant Apodaca's first set of orders to remain by the police cruiser, he "stopped at the top of the stairs" to his home after Defendant Vigil "ran up behind me, and said stop." Doc. No. 144 at 9. In other words, Plaintiff Gallegos contends that he obeyed Defendant Apodaca's order, but Defendants physically subdued Plaintiff Gallegos and 'drive stunned' him anyway. Id. Defendants, on the other hand, maintain that after Defendant Vigil ordered Plaintiff Gallegos to stop and got between Plaintiff Gallegos and the entrance to the home, Plaintiff Gallegos "aggressively shoved Officer Vigil." Motion at 6.

C. Plaintiff Gallegos's claims against Defendants

Count I of Plaintiffs' Third Amended Complaint (Doc. No. 50) asserts a claim under "42 U.S.C. § 1983 against Defendants...for violations of [Plaintiff Gallegos's] constitutional rights under color of law." Doc. No. 50 at 9. This Court has read Count I to assert that Defendants unlawfully seized Plaintiffs. See Doc. No. 133 at 3. Count II asserts a claim for "assault and battery" against Defendants Apodaca and Vigil. Third Amended Complaint at 9. In Count III, Plaintiff Gallegos claims Defendants used excessive force against him in violation of the Fourth Amendment. Id. at 10. Count IV asserts claims for false imprisonment against Defendants Apodaca and Vigil. Count V asserts that Defendant City of Española is liable for Plaintiffs' injuries because they stem from a policy or practice of negligent hiring and supervision of police officers. Id. at 10-11. Count VI asserts a claim for "malicious abuse of process" against the City of Española for the (subsequently dismissed) criminal charges filed against Plaintiffs after their arrests. Id. at 12-13. Finally, Count VII asserts a claim for "punitive damages" against Defendants Apodaca and Vigil based on these defendants' allegedly "intentional, wanton[,] and reckless" violation of Plaintiffs' constitutional rights.

D. Defendants' Motion for Summary Judgment

i. Whether Defendants are entitled to summary judgment on Counts I, II, and IV of the Amended Complaint because they had probable cause to arrest Plaintiff Gallegos for violating 1978 N.M.S.A., Section 30-22-1(B)

Defenda...