Ward v. City of Hobbs

398 F.Supp.3d 991

Octavia WARD; Dennis Hargrove, and Sandra Todd, Plaintiffs,

v.The CITY OF HOBBS; Officer Troy D. Brackeen, a Hobbs Police Department Officer; Officer Zakariah T. Dale, a Hobbs Police Department Officer, and Officer Ruben Gastelum, a Hobbs Police Department Officer, Defendants.

No. CIV 18-1025 JB\KRS

United States District Court, D. New Mexico.

Filed July 31, 2019

Joseph P. Kennedy, Shannon L. Kennedy, Larissa M. Lozano, Kennedy, Kennedy & Ives, LLC, Albuquerque, New Mexico, Attorney for the Plaintiffs.

Luis Robles, Robles, Rael & Anaya, P.C., Albuquerque, New Mexico, Attorneys for the Defendants.

MEMORANDUM OPINION AND ORDER

James O. Browning, UNITED STATES DISTRICT JUDGE

THIS MATTER comes before the Court on (i) the Plaintiffs' Motion for Summary Judgment, filed January 8, 2019 (Doc. 12)("Pltfs.' MSJ"); and (ii) the City Defendants' Motion for Summary Judgment, filed January 31, 2019 (Doc. 21)("Defs.' MSJ"). The Court held a hearing on February 28, 2019. See Clerk's Minutes at 1, filed February 28, 2019 (Doc. 36). The primary issues are: (i) whether the Court should recognize that qualified immunity protects the City of Hobbs¹ Police Department Officers, Defendants Troy Brackeen, Zakariah Dale, and Ruben Gastelum (collectively, "the Defendant Officers"), should grant summary judgment for the Plaintiffs, or should grant summary judgment for the Defendant Officers, on Count III of Plaintiffs Sandra Todd, Octavia Ward, and Dennis Hargrove's Complaint to Recover Damages for Civil Rights Violations, filed November 2, 2018 (Doc. 1)("Complaint"), in which the Plaintiffs allege that the Defendant Officers unlawfully entered Todd's home while responding to a domestic violence call with no indication of an emergency, see Complaint ¶¶ 67-72, at 7; (ii) whether the Court should grant summary judgment for Ward and Hargrove on their Counts IV and V in which they allege unlawful arrest, because the Defendant Officers acted unlawfully in ordering Ward and Hargrove to leave their host's home and had no probable cause for arrest, see Complaint ¶¶ 73-84, at 7-8, or should grant summary judgment for the Defendant Officers or recognize their qualified immunity protection, because the Defendant Officers arrested Ward and Hargrove for Resisting, Evading or Obstructing an Officer, N.M. Stat. Ann. § 30-22-1, when Ward and Hargrove ignored their orders to leave the garage door open and to step outside the garage, retreated into Todd's house, and evaded arrest; (vi) whether the Court should grant Defendant City of Hobbs, New Mexico summary judgment on the Complaint's Counts III, IV, and V, because the doctrine of respondeat superior cannot engender liability under 42 U.S.C. § 1983 ; and (v) whether the Court should grant summary judgment for the Defendants on Counts I and II in which the Plaintiffs allege that the Defendant Officers battered Ward and Hargrove during the arrest, because the Defendant Officers used objectively reasonable force, see Complaint ¶¶ 57-66, at 6-7. The Court will deny the Pltfs.' MSJ, and grant in part and deny in part the Defs.' MSJ. Although the Defendant Officers' entry into Todd's residence violates the Plaintiffs' constitutional rights as the Plaintiffs allege in Count III, qualified immunity protects the Defendant Officers against Count III, see Complaint ¶¶ 67-72, at 7, clearly established law does not establish that the Defendant Officers' committed the Constitutional violation. Likewise, the Defendant Officers violated Ward's and Hargrove's constitutional rights when the Defendant Officers arrested Ward and Hargrove as the Plaintiffs allege in Counts IV and V, see Complaint ¶¶ 73-84, at 7-8, but qualified immunity protects, however, the Defendant Officers from liability for Counts IV and V, because clearly established law does not establish the Constitutional violation. The Court does not read the Complaint to reflect that the Plaintiffs bring, in Counts III, IV, and V, § 1983 claims against the City of Hobbs. See Complaint ¶¶ 67-84, at 7-8. If the Plaintiffs intend to raise such claims against the City of Hobbs, the Court will grant summary judgment for the City of Hobbs, because a municipality cannot be liable under § 1983 on a respondeat superior theory. See Schneider v. City of Grand Junction Police Dep't, 717 F.3d 760, 767 (10th Cir. 2013) (quoting Brown v. Montoya, 662 F.3d 1152, 1164 (10th Cir. 2011) ). Last, the Court will not grant summary judgment for the Defendants on Counts I and II, because the Defendant Officers unlawfully arrested Ward and Hargrove.

FACTUAL BACKGROUND

The Court begins by recounting the facts. The Court draws the factual background from the parties' undisputed material facts in the Pltfs.' MSJ, the City Defendants' Response to Plaintiffs' Motion for Summary Judgment, filed January 28, 2019 (Doc. 19)("Defs.' Response to Pltfs.' MSJ"); the Plaintiffs' Reply in Support of Plaintiffs' Motion for Summary Judgment, filed February 15, 2019 (Doc. 27)("Pltfs.' Reply to Pltfs.' MSJ"), the Defs.' MSJ, and the Plaintiffs' Response to City Defendants' Motion for Summary Judgment, filed February 20, 2019 (Doc. 29)("Pltfs.' Response to Defs.' MSJ"). The Defendants did not reply to the Pltfs.' Response to Defs.' MSJ.

On September 9, 2018, at around 12:23 a.m., the Hobbs Police Department received a 911 call from Jessica Gonzales about a verbal altercation, involving no weapons, at 9 Acoma Court in Hobbs, New Mexico. See Pltfs.' MSJ ¶ 1, at 2 (asserting this fact);² Defs.' Response to Pltfs.' MSJ ¶ 1, at 4 (also asserting this fact)(citing Hobbs Police Department Daily Activity Log, with CAD Comments at 1, filed January 28, 2019 (Doc. 19-1)("CAD Report"); HPD 911 Call Audio Recording at 00:52-00:59, filed with court on February 28, 2019 (on file with court)("911 Call"); Transcript of Jessica Gonzales 911 Call at 3:8-12, filed January 28, 2019 (Doc. 19-2)("911 Call Tr.")); Pltfs.' Reply to Pltfs.' MSJ ¶ 1, at 3 (admitting this fact). Gonzales informed the Lea County Communication Authority dispatcher that she was at 10 Acoma Court and that she heard her neighbors across the street arguing. See Defs.' Response to Pltfs.' MSJ ¶ 2, at 4 (asserting this fact)(citing 911 Call at 00:03-00:18; 911 Call Tr. at 22:2-6); Pltfs.' Reply to Pltfs.' MSJ ¶ 1, at 3 (admitting this fact). Gonzales indicated: "There's a man and the other person is a woman. And he's going off on her, yelling at her." Defs.' Response to Pltfs.' MSJ ¶ 3, at 4 (asserting this fact)(citing 911 Call at 00:03-00:18, 911 Call Tr. at 2:2-6); Pltfs.' Reply to Pltfs.' MSJ ¶ 1, at 3 (admitting this fact). Gonzales specified that the fighting was not physical. See Pltfs.' MSJ ¶ 2, at 2 (asserting this fact)(CAD Report at 1).³ When the dispatcher asked if the incident was physical, Gonzales stated: "No. I'm afraid it will get physical. They're -- he's yelling at her." Defs.' Response to Pltfs.'

MSJ ¶ 4, at 5 (asserting this fact)(citing 911 Call at 00:32-00:43; 911 Call Tr. at 2:18-19). See Pltfs.' Reply to Pltfs.' MSJ ¶ 1, at 3 (admitting this fact). Gonzales specified that "it'll get physical" without intervention, Defs.' Response to Pltfs.' MSJ ¶ 5, at 5 (asserting this fact)(citing 911 Call at 00:42-00:48; 911 Call Tr. at 2:25-3:4); see Pltfs.' Reply to Pltfs.' MSJ ¶ 1, at 3 (admitting this fact), and stated that the individuals were fighting in the garage, see Defs.' Response to Pltfs.' MSJ ¶ 6, at 5 (asserting this fact)(citing 911 Call at 01:06-01:18; 911 Call Tr. at 3:16-19); Pltfs.' Reply to Pltfs.' MSJ ¶ 1, at 3 (admitting this fact). The dispatcher confirmed that the incident was at "9 West Acoma." Defs.' Response to Pltfs.' MSJ ¶ 7, at 6 (asserting this fact)(citing 911 Call at 02:31-02:33; 911 Call Tr. at 5:7). See Pltfs.' Reply to Pltfs.' MSJ ¶ 1, at 3 (admitting this fact). The dispatcher recorded in the Computer Aided Dispatch ("CAD") Report: "Neighbors across the street are fighting, male/female, just verbal." Defs.' Response to Pltfs.' MSJ ¶ 9, at 5 (asserting this fact)(citing CAD Report at 1). See Pltfs.' Reply to Pltfs.' MSJ ¶ 2, at 3 (admitting this fact).

Around one minute later, the dispatcher radioed the Defendant Officers about the call. See Defs.' Response to Pltfs.' MSJ ¶ 12, at 5-6 (asserting this fact)(citing HPD Dispatch Call at 00:00-00:16, filed January 28, 2019 (on file with court)("HPD Dispatch Call"); Transcript of HPD Dispatch at 2:1-65, filed January 28, 2019 (Doc. 19-3)("HPD Dispatch Tr."); CAD Report, at 1).⁴ The dispatcher informed the Defendant Officers: "10 West Acoma Court, 1-0 West Acoma Court. It's going to be a domestic. Male and female fighting outside." Defs.' Response to Pltfs.' MSJ ¶ 13, at 6 (asserting this fact)(citing HPD Dispatch Call at 00:08-00:16; HPD Dispatch Tr. at 2:3-5; CAD Report, at 1). See Pltfs.' Reply to Pltfs.' MSJ ¶ 3, at 3 (not disputing this fact). The dispatcher followed this call with a correction: "Correction. The offenders are going to be at 9 Acoma Court, Acoma Court in a garage." Defs.' Response to Pltfs.' MSJ ¶ 15, at 6 (asserting this fact)(citing HPD Dispatch Call at 00:30-00:39; HPD Dispatch Tr.at 2:8-10). See Pltfs.' Reply to Pltfs.' MSJ ¶ 3, at 3 (not disputing this fact). On this information, the officers responded to 9 West Acoma Court with the perception that a physical altercation was occurring or had occurred. See Defs.' Response to Pltfs.' MSJ ¶ 16, at 6 (asserting this fact)(citing Affidavit of Officer Troy Brackeen ¶ 5, at 2, filed January 28, 2019 (Doc. 19-4)("Brackeen Aff."); Affidavit of Officer Zakariah Dale ¶ 5, at 2, filed January 28, 2019 (Doc. 19-5)("Dale Aff."); Affidavit of Officer Ruben Gastelum ¶ 5, at 2, filed January 28, 2019 (Doc. 19-6)("Gastelum Aff.")).⁵ The officers did not review the CAD Report in detail, because they were actively responding to the call. See Defs.'

Response to Pltfs.' MSJ ¶ 17, at 6-7 (asserting this fact)(citing Brackeen Aff. ¶ 6, at 2; Dale Aff. ¶ 6, at 2, Gastelum Aff. ¶ 6, at 2); Pltfs.'...