Sabeerin v. Fassler

BOBACK SABEERIN, MICHELLE ROYBAL, J.R. and S.S. Plaintiffs, v. ALBUQUERQUE POLICE DEPARTMENT DETECTIVE TIMOTHY FASSLER, in his individual capacity,ALBUQUERQUE POLICE DEPARTMENT DETECTIVE JOHN DEAR, in his individual capacity,CITY OF ALBUQUERQUE, STATE OF NEW MEXICO,SECRETARY GREGG MARCANTEL, in his official and individual capacity,NEW MEXICO CORRECTIONS DEPARTMENT, Defendants.

No. 1:16-cv-00497 JCH-LF

UNITED STATES DISTRICT COURT DISTRICT OF NEW MEXICO

April 1, 2021

MEMORANDUM OPINION AND ORDER

Boback Sabeerin was convicted in state-court of automobile theft and similar charges after police officers allegedly found stolen vehicles on his property while executing a search warrant. An appeals court later ruled that the affidavit used to obtain the search warrant was invalid for lack of probable cause. Sabeerin and his family, proceeding pro se, bring state-law tort and constitutional claims and federal constitutional claims under 42 U.S.C. § 1983 against Timothy Fassler, the officer who wrote the search warrant affidavit, and other Defendants.¹

After considering Defendants' motion for summary judgment (ECF No. 158), the Court holds that Defendants are entitled to qualified immunity and dismisses with prejudice Plaintiffs' federal claims. The Court declines to exercise supplemental jurisdiction over Plaintiffs' state-law claims and instead dismisses them without prejudice. Finally, Plaintiffs' objections to the magistrate judge's order staying discovery (ECF Nos. 184, 185, 186) are overruled and their request for discovery under Federal Rule of Civil Procedure 56(d) is denied.

1. Background

a. Factual Background

At the summary judgment stage a court must "view facts in the light most favorable to the non-moving party and draw all reasonable inferences in [his] favor." Leone v. Owsley, 810 F.3d 1149, 1153 (10th Cir. 2015). In 2009, Detective Fassler was investigating a man named Anjum Tahir for driving a vehicle with a stolen Vehicle Identification Number (VIN). Test. of Timothy Michael Fassler, 11:19-12:1-19, ECF No. 158-1 (Fassler Test.). Fassler learned that Tahir had a shop on 108 Rhode Island in Albuquerque. Id. at 13:5-7. On August 19th, Fassler obtained a warrant to search Tahir's property and allegedly found more stolen vehicles on Tahir's property. Id. at 18:3-13. Fassler also learned that Tahir was "doing business with" Sabeerin and that Sabeerin's address was 112 General Arnold. Id. at 18:14-17. Fassler sent other officers to watch the General Arnold location to see if Tahir would "show up." Id. at 18:17-19. Tahir did show up and officers arrested him. Id. at 18:19-20.

Fassler went to the General Arnold location, which was a "body shop" Sabeerin owned. Second Am. Compl. ¶ 17, ECF No. 69. Although the circumstances are not clear from the record, Fassler was apparently familiar with Sabeerin. When Fassler arrived at the shop he brought up Sabeerin's prior criminal charges and told him that "the two officers that worked on your case 20years ago they work for me now we are going to make sure you don't get out this time." Affidavit of Boback Sabeerin, 3, ECF No. 172 (Sabeerin Aff.). Detective John Dear told Sabeerin's domestic partner, Michelle Roybal, that officers had been "looking for Sabeerin for twenty years" and that when they "found out Sabeerin was part of the investigation [the officers] came out of retirement" to ensure that Sabeerin did "not get out this time." Id. at 4.

According to Fassler, he asked Sabeerin "if Tahir had any vehicles on his property that would tie into all this altering stuff" and Sabeerin answered affirmatively that Tahir had several vehicles on the General Arnold property. Fassler Test. at 18:21-25. However, according to Sabeerin's affidavit, which the Court must credit as true, Sabeerin "never made any statement or admit [sic] to having or being involved in Tahirs [sic] criminal activity." Sabeerin Aff. at 4 (capitalization omitted).

Later that day, August 19th, officers applied for a search warrant for Sabeerin's General Arnold property. Most of the affidavit that Fassler wrote in support of the warrant focused on officers' investigation of Tahir and Tahir's VIN-switching activities. The only references Fassler made to Sabeerin's property was that Fassler observed on the property "numerous vehicles visible through the fence that have been, or are being dismantled," and that Fassler "learned that ... Tahir also did business at 112 General Arnold NE. [Fassler] sent a unit to watch that address and [Tahir] was taken into custody walking around the business. Several suspicious vehicles can also be seen on that lot." Affidavit for Search Warrant, ECF No. 158-2, 1, 2 (Search Warrant Aff.).

At 4:40 pm on August 19th a state-judge approved the warrant. Search Warrant, ECF No. 158-2 at 4. According to Fassler, officers discovered stolen vehicles on the 112 General Arnold property, although Sabeerin contends that the vehicles were not stolen.

On October 1, 2009, Sabeerin was indicted for receiving or transferring a stolen motor vehicle and similar charges. Defendants' Undisputed Material Fact, ¶ 14, ECF No. 158 (Defs.' UF). He moved to suppress evidence on the ground that Fassler's search warrant affidavit did not provide sufficient probable cause, which the court denied. On December 7, 2010 Defendant was tried and convicted and sentenced to 24 years of imprisonment. Defs.' UF ¶ 14.

He appealed the trial court's denial of his motions to suppress evidence. In 2014, the New Mexico Court of Appeals, over the dissent of one judge, held that Fassler's affidavit in support of a search warrant for Sabeerin's place of business at the General Arnold property failed to establish probable cause. State v. Sabeerin, 2014-NMCA-110, ¶ 2, 336 P.3d 990, 992 (2-1 decision). The court held that probable cause was lacking because: (1) Fassler's affidavit was "copied directly" from the search warrant affidavit used for Tahir's Rhode Island property, id. at ¶ 16, (2) Fassler's statement that "[he] learned that ... Tahir also did business at 112 General Arnold" failed to establish "the source and substance of such information[,]" and "whether the information was obtained through a" reliable tipster, id. at ¶ 18, (3) Fassler noted "suspicious vehicles" on Sabeerin's property without explaining why they were suspicious or ruling out innocent activity, id. at ¶¶ 20-25, and (4) the affidavit did not particularize the items to be seized. Id. at ¶ 26.

The dissenting judge believed that Fassler's search warrant affidavit established probable cause because it "included details regarding Detective Fassler's investigation into Tahir's VIN-switching operation at the Rhode Island property," and "surveillance of the General Arnold property revealed an apparently similar operation." Id. at ¶ 36. The dissent believed that Fassler's investigation of the Rhode Island property combined with his independent observations ofSabeerin's General Arnold property sufficiently established the unknown tipster's reliability and therefore the dissent would have affirmed the trial court. Id. at ¶ 34.

Without evidence for another prosecution, Sabeerin was released from prison in 2015. Second Am. Compl. at ¶ 32.

b. Procedural Background

The only remaining Plaintiffs are Sabeerin and his child "S.S." Former Plaintiffs Michell Roybal and "J.R." voluntarily dismissed all claims. See ECF Nos. 122, 124, 126. Former Defendants the State of New Mexico, the New Mexico Corrections Department, and Secretary of Corrections Gregg Marcantel have either been dismissed as parties or had the claims against them voluntarily withdrawn. See ECF No. 83. The only remaining claims are asserted against the City of Albuquerque and APD Detectives Fassler and Dear in their individual capacities.

2. Plaintiffs' Objections to the Magistrate Judge's Stay-Order

Defendants moved for a stay of discovery based on their defense of qualified immunity, which the Court granted on November 13, 2020. ECF No. 177. Plaintiffs filed objections, amended objections, and second amended objections to the magistrate judge's stay-order on November 30, December 7, and December 8, respectively.

Pretrial matters involving discovery, such as a stay-order, are generally considered non-dispositive since they do not resolve the substantive claims for relief alleged in the pleadings. See Hutchinson v. Pfeil, 105 F.3d 562, 566 (10th Cir. 1997). Under Federal Rule of Civil Procedure 72(a) a party may serve and file objections to a magistrate judge's order on a non-dispositive motion within 14 days after being served with a copy of the order. Fed. R. Civ. P. 72(a). If a party timely objects to the magistrate judge's non-dispositive rulings on pretrial matters, the district judge must modify or set aside any part of the disputed order that is "clearly erroneous orcontrary to law." Fed. R. Civ. P. 72(a). "[I]t is extremely difficult to justify alteration of the magistrate judge's non-dispositive actions by the district judge." Quarrie v. Wells, No. CV 17-350 MV/GBW, 2020 WL 7385730, at *2 (D.N.M. Dec. 16, 2020) (citation and quotation marks omitted).

Plaintiffs state that the magistrate judge did not "pay attention to the schedule considering that it had been agreed to, did not pay attention to the fact that we have a pro se plaintiff and did not give any attention at all to the discovery that would be required to show how much time it would take and how expensive it would be." ECF No. 186 at 13-14. However, the magistrate judge properly focused on the fact that in § 1983 litigation "a qualified immunity defense 'protects the official both from liability as well as from the ordinary burdens of litigation, including far-ranging discovery.'" ECF No. 177 at 2 (quoting Workman v. Jordan, 958 F.2d 332, 335 (10th Cir. 1992)). It is well established that discovery does not normally begin until the question of whether the defendant's conduct violated clearly established law is resolved. See Mitchell v....