Maples v. Vollmer

JUSTIN MAPLES, Plaintiff,

v. MATTHEW VOLLMER, an Officer of the Albuquerque Police Department,Individually, D. FOX, an Officer of the Albuquerque Police Department, Individually,CITY OF ALBUQUERQUE, a municipality organized under the laws of the State of New Mexico, Defendants.

No. CIV 12-0294 JB/RHS

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

Dated: March 5, 2013

MEMORANDUM OPINION AND ORDER

THIS MATTER comes before the Court on Defendants' Motion to Dismiss, filed December 20, 2012 (Doc. 19). The Court held a hearing on January 25, 2013. The primary issue is whether the Court should enter an order of dismissal as a sanction for Plaintiff Justin Maples having allegedly committed perjury during discovery. The primary issue is whether Maples' imprecise and apparently contradictory statements in his answers to interrogatories and during his deposition warrant the Court to dismiss his case as a sanction. The Court will deny the Motion to Dismiss. The Court concludes that, based on the factors in Ehrenhaus v. Reynolds, 965 F.2d 916, 921 (10th Cir. 1992), that the United States Court of Appeals for the Tenth Circuit requires district courts to consider in deciding to grant dismissal as a discovery sanction, dismissal of Maples' case is not appropriate under the facts. Although providing inaccurate answers prejudices the defendant, the prejudice here is not substantial, as the inaccuracies have not caused delay or added significant expense, and will likely not prejudice the Defendants at trial. Additionally, becauseMaples provided an affidavit along with his Response in Opposition to Defendants' Motion to Dismiss, filed January 14, 2013 (Doc. 25), conceding many inaccuracies and providing a credible explanation why they occurred, his conduct has not caused great interference with the judicial process. Similarly, in providing an explanation and substituting his responses, Maples has demonstrated that his culpability, if any, does not rise to the level of that found in case law precedent in which dismissal was found appropriate. That the Court has not previously warned Maples implicates due-process concerns, and the Court believes it unfair to dismiss in these circumstances. Finally, although the Court declines to do so here, there are adequate sanctions aside from dismissal that the Court can justly impose on Maples for his conduct.

FACTUAL BACKGROUND

On January 26, 2010, Defendants Matthew Vollmer and D. Fox were dispatched to 1111 Major Northwest, Albuquerque, New Mexico, Maples' residence, because of a 911 call. See Complaint for Damages, Declaratory and Injunctive Relief and Petition for Writ of Mandamus ¶ 12, at 3, filed in state court on January 26, 2012, filed in federal court March 22, 2012 (Doc. 1-1)("Complaint"). Maples was standing in his front yard when the officers arrived and tried to walk away from them. See id. ¶¶ 13-14, at 3. Vollmer and Fox chased after Maples, and Maples then fled from the officers. See id. ¶¶ 17-18, at 3. Vollmer and/or Fox tackled Maples when they caught up to him. See id. ¶ 19, at 3. Maples alleges that Vollmer and Fox used "excessive and unnecessary force" against him, id. ¶ 20, at 4, and "caused him to suffer damages," id. ¶ 21, at 7. Vollmer placed Maples in handcuffs, arrested him, transported him to the prisoner transport center, and booked him. See Affidavit of Matthew Vollmer ¶¶ 16-17, at 3, filed December 20, 2012 (Doc. 19-1).

PROCEDURAL BACKGROUND

Maples instituted this lawsuit in state court on January 26, 2012, and the Defendants removed the case to this federal court on March, 22, 2012. See Notice of Removal (Doc. 1). Maples alleges that Defendants Vollmer, Fox, and the City of Albuquerque violated his constitutional rights by using excessive force in arresting him on January 26, 2010, at 1111 Major, and falsely imprisoning him following his arrest. The Defendants move the Court to dismiss the lawsuit as sanction, because Maples allegedly perjured himself throughout discovery. Maples states that the "City of Albuquerque is sued under 42 U.S.C. § 1983 for damages under a theory of municipal liability for failure to adequately train [sic] supervise Defendant Matthew Vollmer and/or Defendant D. Fox and for its customs, policies, and/or practices." Complaint ¶ 3, at 2. Maples also sues the City of Albuquerque "under the New Mexico Tort Claims Act . . . for damages under a theory of respondeat superior." Complaint ¶ 4, at 2. Maples states that "[t]his is a civil action for monetary damages, arising from Plaintiff's claims that he was illegally arrested, illegally imprisoned, suffered excessive force, and was otherwise wronged by Defendants Matthew Vollmer and D. Fox . . . ." Complaint ¶ 10, at 3. Maples alleges nine counts against the City of Albuquerque pursuant to the New Mexico Tort Claims Act, N.M.S.A. 1978, §§ 41-4-1 to -30 ("NMTCA"), and 42 U.S.C. § 1983: (i) Count I -- False Arrest under the NMTCA, see Complaint ¶¶ 22-27, at 4; (ii) Count II -- False Imprisonment under the NMTCA, see Complaint ¶¶ 28-33, at 5; (iii) Count III -- Assault under the NMTCA, see Complaint ¶¶ 34-37, at 5-6 ; (iv) Count IV -- Battery under the NMTCA, see Complaint ¶¶ 38-41, at 6; (v) Count V -- False Arrest/False Imprisonment under 42 U.S.C. § 1983, see Complaint ¶¶ 42-48, at 6-7; (vi) Count VI -- Excessive Force under § 1983, see Complaint ¶¶ 49-57, at 7-8; (vii) Count VII -- MunicipalLiability (Custom and Policy) under § 1983, see Complaint ¶¶ 58-63, at 8-9; (viii) Count VIII -- Municipal Liability (Failure to Train and Supervise), see Complaint ¶¶ 64-69, at 9-10; (ix) Count IX -- Respondeat Superior under the NMTCA, see Complaint ¶¶ 70-72, at 10-11. On March 22, 2012, the Defendants removed this action to this federal court. See Notice of Removal (Doc. 1).

1. The Alleged Discovery Abuses.

On July 19, 2012, the Defendants sent Maples their First Set of Interrogatories and First Requests for Production. See Motion to Dismiss ¶ 3, at 4; Maples' Responses to Defendant City of Albuquerque's First Requests for Production to Plaintiff Justin Maples at 1, filed December 20, 2012 (Doc. 19-3)("Response to First RFPs"). Maples responded on September 24, 2012, providing signed medical releases only. See Motion to Dismiss ¶¶4-5, at 4; Response to First RFPs at 1-6. Interrogatory No. 7, requested the following: "the name, address and phone number of any health care provider, including, without limitation, any physicians, dentists, chiropractors, mental health counselors, clinics and hospitals which treated you within the last 10 years"; Maples responded: "UNMH primary care Hospital, seen physicians for health/wellness, mental health clinic; [peer-to-peer [sic] counseling after DWI, In Los Lunas -- Valencia Counseling." Plaintiff's Answers to Defendant City of Albuquerque's First Set of Interrogatories to Plaintiff Justin Maples at 5-6, filed December 20, 2012 (Doc. 19-4)("Response to First Interrogatories"). See Motion to Dismiss ¶ 6, at 4. Interrogatory No. 8, which requested the following: "Please list the name, address and phone number of any mental health counselors, clinics and hospitals which treated you within the last 10 years for any psychological and/or mental health treatment"; Maples responded: "Please see my answer to Interrogatory No. 7, I have only been seen at UNMH and the clinic I believe was called Valencia Counseling." Response to First Interrogatories at 6. SeeMotion to Dismiss ¶ 7, at 4-5.

Interrogatory No. 9 requests the following: "Please state the name, address and phone number of each person who was with Plaintiff Justin Maples or has any knowledge of his activities on January 26, 2010"; Maples responded: "Kevin Lane and his daughter Sarah Lane." Response to First Interrogatories at 6. See Motion to Dismiss ¶ 8, at 5. Interrogatory No. 10 requests:

State whether during the ten years immediately prior to the date of the occurrence alleged in the Complaint you had been confined to a hospital or other medical care facility or x-rayed for any reason. If so, for each such instance, state: a. The name, address and phone number of the hospital or medical care facility, medical doctor, osteopath, chiropractor, other health care provider; b. The approximate date of each such care, confinement, treatment or service; c. The reason for each such care, confinement, treatment or service; and d. Whether you (the Plaintiff) suffered any permanent effects or disability as a result thereof.

Maples responded: "Yes, I was. UNMH; suicide attempts/risk. I am willing to provide you with a reasonable medical release for my records." Response to First Interrogatories at 6-7. See Motion to Dismiss ¶ 9, at 5. Interrogatory No. 13 states: "Please state your whereabouts on January 26, 2010 prior to the incident alleged in your Complaint"; Maples responded: "Home at 1111 Major Ave; all of the events happened at approximately 10:30 am; I was at residence since prior evening." Response to First Interrogatories at 8. See Motion to Dismiss ¶ 10, at 5. Interrogatory No. 18 asks: "Do you claim to have been physically injured as a result of the occurrence alleged in your complaint?" Response to Interrogatories at 10. Maples responded by stating that he was kicked in his abdominal area and back after he was tackled to the ground. See id. at 10; Motion to Dismiss ¶ 11, at 5. Interrogatory No. 27 states: "Please describe, in detail, how the incident on January 26, 2010 occurred, as it pertains to the allegations in your Complaint." Maples responded:

[O]n or about January 26, 2010, Defendants Matthew Vollmer and D. Fox weredispatched to Plaintiff's residence and/or otherwise decided to respond to a 911 call at Plaintiff's residence. According to Defendant Matthew Vollmer and/or Defendant Fox, Plaintiff was standing in his front yard when they arrived at the residence.

Upon information and belief, Plaintiff tried to walk away from Defendant Matthew Vollmer and/or Defendant D. Fox. It was lawful for Plaint

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