J.H. ex rel. J.P. v. Bernalillo Cnty.

61 F.Supp.3d 1085

J.H., on behalf of her minor child, J.P., Plaintiffs

v.BERNALILLO COUNTY, and J.M. Sharkey, Bernalillo County Deputy, Defendants.

No. CIV 12–0128 JB/LAM.

United States District Court, D. New Mexico.

Filed Nov. 19, 2014.

Joseph P. Kennedy, Shannon L. Kennedy, Laura Schauer Ives, Kennedy Kennedy & Ives, LLC, Albuquerque, NM, Attorneys for the Plaintiffs.

Terri S. Beach, Miller Stratvert P.A., Albuquerque, NM, Luis E. Robles, Marcus J. Rael, Jr., Robles, Rael & Anaya, P.C., Albuquerque, NM, Attorneys for Defendants Bernalillo County and J.M. Sharkey.

Jeremy K. Harrison, Megan Muirhead, Modrall Sperling, Albuquerque, NM, Attorneys for Defendants Cee Kaye Nation and Alison Gonzales.

UNSEALED MEMORANDUM OPINION¹

JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on Defendant J.M. Sharkey's Motion for Partial Summary Judgment No. I: Dismissal of Plaintiffs' Fourth Amendment Illegal Seizure Claim (Count I) Based on Qualified Immunity, filed July 30, 2013 (Doc. 92) (“MSJ No. 1”). The Court held a hearing on September 6, 2013. The primary issue is whether the Court should grant summary judgment on the claim of Plaintiffs J.H., on behalf of her minor child, J.P., that Defendant J.M. Sharkey violated the rights of J.P., an eleven-year-old girl, under the Fourth Amendment to the Constitution of the United States of America when he arrested her, handcuffed her, and transported her to the juvenile detention center following an altercation at Roosevelt Elementary School in Bernalillo County, New Mexico. The Court will grant the MSJ No. 1. Sharkey did not violate J.P.'s Fourth Amendment right to be free from unlawful seizure when he arrested her. Given J.P.'s recent attack on a student and on a school employee, Sharkey had probable cause to do so. Sharkey's decision to transport J.P. to the juvenile detention center similarly did not violate any right that the Fourth Amendment secures. Moreover, even if Sharkey violated J.P.'s Fourth Amendment rights by either arresting her or transporting her to the juvenile detention center, such rights were not clearly established. Accordingly, Sharkey is entitled to qualified immunity, and the Court will grant summary judgment as to the Plaintiffs' Fourth Amendment unlawful seizure claim.

FACTUAL BACKGROUND

The Court will discuss the factual background in multiple parts. First, the Court needs to point out several formatting notes. Throughout their summary judgment briefing, the parties incorporated by reference most of the basic facts from MSJ No. 1, from the Plaintiff's Response to Defendant Sharkey's Motion for Partial Summary Judgment No. I: Plaintiff's Fourth Amendment Illegal Seizure Claim (Count I) Based on Qualified Immunity, filed August 16, 2013 (Doc. 103) (“Response to MSJ No. 1”), and from the Reply to Plaintiffs' Response to J.M. Sharkey's Motion for Partial Summary Judgment No. I: Dismissal of Plaintiffs' Fourth Amendment Illegal Seizure Claim (Count I) Based on Qualified Immunity, filed September 3, 2013 (Doc. 115) (“Reply to Response to MSJ No. 1”). The Court separated out the facts from the briefing on MSJ No. 1 from the facts in other motions. The Court has below included only the facts in MSJ No. 1. Those facts are substantially identical to those that the Court used in its Unsealed Memorandum Opinion, filed July 8, 2014 (Doc. 152), on pages two through fifty-four.

Confusion over the parties' names plagues the briefing. Sometimes the parties—including the Plaintiffs—refer to J.H. on behalf of her minor child J.P. as a singular Plaintiff, see, e.g., Response to MSJ No. 1 at 1 (“Plaintiff, J.H. on behalf of J.P., a minor, hereby responds to” MSJ No. 1), and sometimes the parties refer to J.H. and J.P. as plural Plaintiffs, see, e.g., Plaintiffs' Response to Defendants' Motion for Partial Summary Judgment No. II: Dismissal of Counts II, V, and VI of Plaintiffs' Second Amended Complaint at 2, filed August 16, 2013 (Doc. 102) (“Plaintiffs hereby respond to Defendants' ‘undisputed’ numerical material facts.”). Given that even the Plaintiffs' briefing does not clearly prefer one name over the other, the Court will refer to J.H., on behalf of her minor child, J.P., in the plural as Plaintiffs, because the caption refers to them in the plural. Where the Court quotes the briefings, however, it will not change the parties' naming conventions, because changing the parties' naming conventions would confuse rather than enlighten the reader.

The facts proceed in seven parts. First, the Court provides background on J.P. Second, the Court discusses Sharkey's background, his training, and his role at Roosevelt Middle School. Third, the Court discusses the procedure for handling a de-escalation event. Fourth, the Court discusses the September 26, 2011, events. Fifth, the Court discusses J.P.'s booking at the Bernalillo County Detention Center. Sixth, the Court discusses the arrest's effects on J.P. Seventh, and finally, the Court discusses the charges against J.P., her competency evaluation, and the circumstances surrounding the dropping of her charges.

1. Background on J.P.

“J.P. has qualified as emotionally disturbed since at least 2008.” Response to MSJ No. 1 ¶ A, at 9 (setting forth this fact). See Unidentified Report at 5–6 (taken July 19, 2013), filed August 16, 2013 (Doc. 103–1) (“Unidentified Report”).² According to John King, Ph. D., who diagnosed J.P. after the incident underlying this case, her present condition is such that

[s]he doesn't think about the consequences. And she just kind of reacts, instead of thinks about it. So if some other child upsets her, instead of being able to step back and think about and analyze the situation, she just reacts right away. And her reaction is with anger and aggression.

Deposition of John H. King, Ph. D. at 36:25–37:6 (taken July Depo. at 36:25–37:6), filed August 16, 2013 (Doc. 103–1) (“King Depo.”).See Neuropsychological Evaluation Report at 1 (dated April 5, 2012), filed September 3, 2013 (Doc. 115–1).³

J.P. received special education services because “she has the eligibility of Emotional Disturbance. She has difficulty regulating her emotions. Her mood can vary from one minute to the next. At her best, she can be a very cooperative, helpful girl who is a natural leader. However, she also has had episodes of violent verbal and physical acting out towards other students and adults. More commonly, J[.P.] can also shut down and refuse to interact with anyone for hours at a time.”

MSJ No. 1 ¶ 1, at 4 (setting forth this fact). See Response to MSJ No. 1 ¶ 1, at 2 (not disputing this fact); Individualized Education Program at 3, dated October 19, 2010, filed July 30, 2013 (Doc. 91–1) (“IEP”).

J.P. “requires specific, direct 1:1 or small group instruction in the area of academics and social emotional issues to compensate for social emotional deficits. This instruction cannot be appropriately or adequately addressed in the regular education setting because J[.P.] is unable to maintain her emotions in the larger group setting and impedes the learning of herself and other[s].”

MSJ No. 1 ¶ 2, at 5 (setting forth this fact). See Response to MSJ No. 1 ¶ 2, at 3 (not disputing this fact); IEP at 10. “J.P.'s IEP team also prepared a [Behavioral Intervention Plan (“BIP”) ] for J.P. because she exhibited frequent verbal and physical aggression towards fellow students and staff, and interventions were needed to redirect her behavior.” MSJ No. 1 ¶ 3, at 5 (setting forth this fact). See Response to MSJ No. 1 ¶ 3–7, at 3 (not disputing this fact)⁴ ; Behavior Intervention Plan (dated March 3, 2011), filed July 30, 2013 (Doc. 92–3) (“BIP”). “J.P.'s behavior had resulted in physical harm to both peers and staff.” MSJ No. 1 ¶ 4, at 5 (setting forth this fact). See Response to MSJ No. 1 ¶ 3–7, at 3 (not disputing this fact);⁵ BIP at 1.

The BIP indicated that the following is the targeted behavior for J.P.: “J[.P.] will frequently lash out at peers and adults in the classroom. This behavior manifests as cussing, throwing objects and furniture with the intent to cause harm, as well as physical and verbal aggression to cause harm to peers and/or adults.”

MSJ No. 1 ¶ 5, at 5 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 3–7, at 3 (not disputing this fact);⁶ BIP at 1. “According to her BIP, J.P.'s behavior is a performance deficit, meaning she ‘knows how to perform the desired behavior, but does not consistently do so.’ ” MSJ No. 1 ¶ 6, at 5 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 3–7, at 3 (not disputing this fact);⁷ BIP at 1. “The presumed reason for J.P.'s behavior was ‘task/consequence avoidance.’ ” MSJ No. 1 ¶ 7, at 5 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 3–7, at 3 (not disputing this fact);⁸ BIP at 1.

J.P. was “categorized as emotionally disturbed for IEP purposes” at the time of the incident underlying this case. MSJ No. 1 ¶ 8 at 6 (setting forth unmodified version of this fact). See Response to MSJ No. 1 ¶ 8, at 3 (not disputing this portion of the fact).⁹

According to the BIP, “In the event that J[.P.] physically harms a peer or adult (by direct contact or by throwing an object with the intent to harm) [,][t]he crisis team will be called. If necessary, appropriate physical management may be employed by trained personnel to ensure the safety of J[.P.] and/or other persons involved in the crisis situation. J[.P.]'s Mother will be called. Administration will determine if the need for APS Police or other law enforcement is necessary.”

MSJ No. 1 ¶ 9, at 6 (quoting BIP at 3) (setting forth this fact). See Response to MSJ No. 1 ¶ 9, at 3 (not disputing this fact). “The crisis intervention team is comprised of members of Roosevelt Middle School staff ‘that have been trained in de-escalation’ and ‘are called in to any situation where a ... teacher or staff member needs assistance.’ ” MSJ No. 1 ¶ 10, at 6 (quoting Deposition of Cee Kaye Nation at 32:6–11 (taken June 14, 2013), filed July 30, 2013 (Doc. 92–2

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