Wilson v. Montano et al

Filing 158

MEMORANDUM OPINION AND ORDER by District Judge Kenneth J. Gonzales granting in part 126 Defendants' Motion to Dismiss and for Summary Judgment. (tah)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
MICHAEL WILSON, SR., et al.,
Plaintiffs,
vs.
DEPUTY LAWRENCE MONTANO, et al.,

Civ. No. 11-658 KG/SCY
Consolidated with
Civ. No. 11-951 KG/SCY
Civ. No. 11-1021 KG/SCY

Defendants.
MEMORANDUM OPINION AND ORDER
This matter comes before the Court upon Defendants former Valencia County Detention
Center (VCDC) Warden Derek Williams, VCDC Warden Joe Chavez, Valencia County Sheriff
Louis Burkhard, former Valencia County Sheriff Rene Rivera, and Valencia County Sheriff’s
Deputy Lawrence Montano’s (collectively, Defendants)1 “Defendants’ Motion to Dismiss and
for Summary Judgment,”2 filed on August 20, 2015. (Doc. 126).3 Plaintiffs filed a response4 on
October 5, 2015, and Defendants filed a reply on November 11, 2015. (Docs. 144 and 149).

1

Former Warden Williams is a Defendant in Civ. No. 11-1021 KG/SCY, the Sarrett case, while
Warden Chavez is a Defendant in all three of the consolidated cases. Sheriff Burkhard is a
Defendant in the Sarrett case; former Sheriff Rivera is a Defendant in both the Sarrett case and in
Civ. No. 11-658 KG/SCY, the Wilson case; and Deputy Montano is a Defendant in the Wilson
case.
2

Defendants failed to comply with D.N.M. LR-Cv 7.1(a)’s concurrence requirement when they
filed Defendants’ Motion to Dismiss and for Summary Judgment. See Local Rule 7.1(a) (“a
motion that omits recitation of a good-faith request for concurrence may be summarily denied.”).
Since Plaintiffs would not have concurred with Defendants’ Motion to Dismiss and for Summary
Judgment, they are not prejudiced by Defendants’ failure to comply with Local Rule 7.1(a). In
the interest of justice, the Court will, therefore, decide Defendants’ Motion to Dismiss and for
Summary Judgment on the merits.
3

Unless otherwise noted, citations to the record and pleadings refer to docket entries in Civ. No.
11-658 KG/SCY.

Having considered Defendants’ Motion to Dismiss and for Summary Judgment, the
accompanying briefs, and the relevant evidence, the Court grants in part Defendants’ Motion to
Dismiss and for Summary Judgment. Specifically, the Court dismisses with prejudice (1) the
remaining 42 U.S.C. § 1983 Fifth and Fourteenth Amendment claims and claims for injunctive
relief, (2) all of the claims against Sheriff Burkhard, and (3) the Section 1983 individual capacity
claims against former Warden Williams, Warden Chavez, and former Sheriff Rivera.
A. Background
The Plaintiffs in these three consolidated cases, the Wilson, Ortiz, and Sarrett cases,
allege that in 2010 various law enforcement officers within Valencia County arrested them and
others similarly situated without warrants and booked them into VCDC. Plaintiffs allege that
VCDC wardens then held Plaintiffs and others without criminal charges having been filed by the
arresting officers or probable cause determinations having been made by the magistrate courts.
1. Relevant Claims
Plaintiffs bring Section 1983 claims against former Warden Williams and Warden
Chavez, in both their individual and official capacities, for establishing a policy or custom of
holding persons at VCDC without pending criminal charges. Plaintiffs also contend that former
Warden Williams and Warden Chavez trained their staff to accept inmates knowing that charges
may not get filed, thereby violating the Fourth, Fifth, and Fourteenth Amendments. Finally,
Plaintiffs allege that former Warden Williams and Warden Chavez failed to supervise their staff
to prevent people from being held without filed charges.
Plaintiffs argue, inter alia, that Defendants’ Motion to Dismiss and for Summary Judgment is
premature, because discovery has not begun. (Doc. 144) at 19-20. Plaintiffs, however, do not
seek to defer ruling on Defendants’ Motion to Dismiss and for Summary Judgment under Fed. R.
Civ. P. 56(d). Having failed to seek relief under Rule 56(d), the Court will not consider
Plaintiffs’ argument that Defendants’ Motion to Dismiss and for Summary Judgment is
premature.
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2

Similar to former Warden Williams and Warden Chavez, Plaintiffs bring Section 1983
claims against former Sheriff Rivera and Sheriff Burkhard, in their individual and official
capacities, for establishing a policy or custom of allowing officers to arrest people and then wait
to file charges, thereby resulting in people being detained without charges ever being filed.
Plaintiffs also contend that former Sheriff Rivera and Sheriff Burkhard failed to train their staff
not to violate the Fourth, Fifth, and Fourteenth Amendments by arresting Plaintiffs Dustin Sarrett
and Michael Wilson, Sr., and others, without filing criminal charges. Finally, Plaintiffs allege
that former Sheriff Rivera and Sheriff Burkhard failed to supervise their staff to prevent people
from being incarcerated without filed charges.
Plaintiff Wilson brings a Section 1983 Fourth Amendment claim against Deputy
Montano in his individual capacity. Plaintiff Wilson alleges that Deputy Montano violated the
Fourth Amendment by failing to ensure that he received a prompt probable cause determination
by an impartial judge. Generally, a probable cause determination is sufficiently prompt if it
occurs within 48 hours of an arrest. Cty. of Riverside v. McLaughlin, 500 U.S. 44, 56 (1991).
Plaintiff Wilson also brought Section 1983 Fifth and Fourteenth Amendment claims against
Deputy Montano, but the Court dismissed those claims. (Doc. 53). Plaintiffs bring similar Fifth
and Fourteenth Amendment claims against other law enforcement officers in the Ortiz and
Sarrett cases.
In addition, Plaintiffs bring claims for injunctive relief in the Ortiz and Sarrett cases. The
Court already dismissed the claim for injunctive relief in the Wilson case. Id.

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2. Facts Presented with Respect to Defendants’ Motion to Dismiss and for Summary
Judgment
a. Affidavit of Former Warden Williams
Williams was VCDC warden until August 2010. (Doc. 126-3) at 1, ¶ 2. Neither he nor
VCDC had a policy or custom of holding detainees without prompt probable cause
determinations. Id. at ¶¶ 3 and 4. The policy at VCDC was to require a probable cause
statement and criminal complaint5 when a detainee was booked into VCDC. Id. at ¶ 6. VCDC
policy was also to fax, on a daily basis, a list of new detainees to the magistrate court and to
bring the detainees before the magistrate court at the next magistrate court session and to each
subsequent magistrate court session until the magistrate court acted. Id. at 2, ¶ 8. VCDC further
faxed the names of the named Plaintiffs every day to the magistrate court “beginning on their
arrest date and continuing to the release date.” Id. at 4, ¶ 26. Former Warden Williams did not
know that any of the named Plaintiffs were being detained without a probable cause
determination or were denied a hearing before a court. Id. at 2, ¶ 9.
In 2007, former Warden Williams became aware that detainees were not being
“processed quickly enough.” Id. at 2-3, ¶ 13. Former Warden Williams then requested that the
Valencia County magistrate judges issue a directive to law enforcement agencies to leave copies
of the probable cause statements or criminal complaints at VCDC upon booking. Id. In fact, the
Valencia County magistrate judges sent a letter dated November 28, 2007, to law enforcement

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The Court assumes that the policy refers to unfiled and filed criminal complaints. The Court
notes, for example, that former Warden Williams’ affidavit and other evidence do not state that
“filed” criminal complaints were required at booking, and a letter by former Warden Williams
refers to preparing a criminal complaint for booking purposes and then discusses separately
when to file the criminal complaint in magistrate court. (Doc. 126-3) at 8. Moreover, Deputy
Montano attested that he left an unfiled criminal complaint at VCDC when he booked Plaintiff
Wilson at VCDC. (Doc. 126-22) at 1, ¶¶ 3-5. Unless the Court otherwise specifies, references
to presenting criminal complaints upon booking include unfiled criminal complaints.
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officials, including former Sheriff Rivera, stating that it came to their attention that VCDC “does
not require a Criminal Complaint/Probable Cause Statement at the time of intake to the facility.”
Id. at 6. That failure on the part of VCDC apparently became a problem over the Thanksgiving
weekend. Id. The magistrate judges noted that they could not make probable cause
determinations within 48 hours after custody commences, as required by Rule 6-203, NMRA
1998, without probable cause statements and criminal complaints being “filed” at the time of
intake at VCDC. Id. Consequently, the magistrate judges asked the law enforcement officials to
instruct their officers “to file the probable cause statement, at the very least, if not the full
criminal complaint at the time of intake.” Id. The magistrate judges also noticed that “many
complaints take several days to get” filed in magistrate court. Id.
In a letter dated July 8, 2008, former Warden Williams wrote to law enforcement
officials, including former Sheriff Rivera, that officers must present a criminal complaint and a
statement of probable cause to VCDC’s records department at the time of intake or the defendant
would not be processed. Id. at 9. Defendant Williams explained that the purpose of this
requirement is “to ensure that defendants are afforded due process under the law, to facilitate a
probable cause determination and reduce Valencia County’s exposure to liability.” Id.
Defendant Williams decided to write this letter after receiving the magistrate judges’ November
28, 2007, letter and after it came to Defendant Williams’ “attention that some law enforcement
personnel was [sic] not leaving the criminal complaints and the probable cause statement at the
detention center for each and every detainee.” Id. at 3, ¶ 14. Former Warden Williams also
understood that under New Mexico law VCDC could not release a detainee without a court
order. Id. at ¶ 18.

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b. Affidavit of Warden Chavez
Chavez was first hired by Valencia County in February 2010 as Deputy Warden at
VCDC and then became the Warden in August 2010. (Doc. 126-4) at ¶¶ 2 and 3. Neither
Warden Chavez nor VCDC had a policy or custom of holding detainees without prompt probable
cause determinations. Id. at ¶¶ 4 and 5. The policy at VCDC was to require a probable cause
statement and criminal charge when a detainee was booked into VCDC. Id. at ¶¶ 7 and 8.
VCDC policy was also to fax, on a daily basis, a list of new detainees to the magistrate court and
to bring detainees before the magistrate court at the next magistrate court session and to each
subsequent magistrate court session until the magistrate court acted. Id. at ¶ 10. VCDC further
faxed the names of the named Plaintiffs to the magistrate court every day. Id. at ¶ 24.
Warden Chavez did not know that any of the named Plaintiffs were detained without a
probable cause determination or hearing before the magistrate court. Id. at ¶ 13. Warden
Chavez understood that, under state law, he could not release any detainee without a court order.
Id. at ¶ 17. Moreover, “[c]opies of the probable cause statement or criminal complaint were
available to the detainees and the magistrate court at any time after booking.” Id. at ¶ 21.
Magistrate judges would, in fact, request a copy of the probable cause statement or criminal
complaint from VCDC “if a formal copy had not yet been filed with the court by law
enforcement.” Id. at ¶ 25.
c. Affidavit of Former Sheriff Rivera
Rivera was Sheriff prior to the end of December 2010 and was Sheriff at the time named
Plaintiffs were arrested. (Doc. 126-2) at ¶¶ 2 and 3. Former Sheriff Rivera did not have a policy
or custom of allowing deputies to arrest individuals and then delay the filing of the criminal
complaints. Id. at ¶ 5. Former Sheriff Rivera’s policy required that the arresting deputy

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complete a criminal complaint and probable cause statement at the time of arrest and present
those documents to the arrestee at the time of booking into VCDC. Id. at ¶ 6. Former Sheriff
Rivera also directed the deputies to present the criminal complaints to the District Attorney’s
office for review prior to filing them in magistrate court. Id. at ¶ 8. Former Sheriff Rivera
understood that, once the District Attorney’s office approved a criminal complaint, staff from the
Sheriff’s office would pick up the complaint and have it filed in court. Id. at ¶ 10. The District
Attorney’s office also indicated to former Sheriff Rivera that it would “immediately” inform the
Sheriff’s office of any problems with the criminal complaints.
In 2008, former Sheriff Rivera became aware of untimely filed criminal complaints and
probable cause statements. Id. at ¶ 13. Former Sheriff Rivera, therefore, reiterated to deputies,
through training, of the policy that criminal complaints be completed at the time of arrest and
provided, along with a probable cause statement, to the arrestee and VCDC at the time of
booking, and that deputies “immediately” transmit the criminal complaints to the District
Attorney’s office for review. Id. at ¶ 14. In July 2008, after the training, former Sheriff Rivera
instructed his staff to let him know of any problems about untimely filed criminal complaints or
the lack of probable cause determinations. Id. at ¶ 15. Former Sheriff Rivera was, thereafter,
unaware of any issues with untimely filed criminal complaints or lack of probable cause
statements. Id. at ¶¶ 15 and 16. Furthermore, former Sheriff Rivera did not hear of any
“systemic problems with the criminal complaints against the named plaintiffs.” Id. at ¶ 9.
Additionally, no one from the District Attorney’s office informed former Sheriff Rivera of any
untimely filed criminal complaints. Id. at ¶ 11.

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d. Affidavit of Sheriff Burkhard
Burkhard became Sheriff in January 2011. (Doc. 126-1) at ¶ 2. He was not Sheriff or
employed with Valencia County at the time any of the named Plaintiffs were arrested. Id. at ¶ 3.
e. Deposition Testimony of Lemuel Martinez, Valencia County District Attorney
The District Attorney is not responsible for filing criminal complaints. (Doc. 144-1) at 2.
Typically, the arresting officer files the criminal complaint. Id. Martinez did not have a policy
of instructing law enforcement officers not to file criminal complaints or delay filing the criminal
complaints. Id.
f. Affidavit of Deputy Montano
Deputy Montano arrested Plaintiff Wilson, without a warrant, in December 2010. (Doc.
126-22) at 1, ¶ 2. Deputy Montano completed a criminal complaint, a copy of which he provided
to Plaintiff Wilson and to VCDC at the time of booking. Id. at ¶¶ 3 and 4. Deputy Montano also
placed a copy of the criminal complaint in a file at the Sheriff’s office for delivery to the District
Attorney’s office for approval to file in magistrate court. Id. at ¶ 5. Deputy Montano was not
informed by the District Attorney’s office that there was any objection to the form of the
criminal complaint. Id. at ¶ 6. Deputy Montano then “assumed, in accordance with the
department’s policy, that the complaint and the probable cause statement had been filed with the
magistrate court.” Id. at ¶ 7.
g. Affidavits by Magistrate Court Managers
Teresa Chavez, the Belen magistrate court manager since June 2008, observed that law
enforcement agencies, including the Valencia County Sheriff’s Department, failed to file
criminal complaints within 48 hours of an arrest. (Doc. 129-1) at 1, ¶¶ 1-4. Chavez noted that
this failure to file timely criminal complaints “happened frequently until sometime in 2011, when

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a procedure was put in place.” Id. at ¶ 5. In fact, the Belen magistrate “staff would monitor the
daily jail list of individuals in custody, then make calls to [law enforcement] agencies [about the
failure to file criminal complaints] and send release orders as needed.” Id. at ¶ 12. See also id. at
¶ 7. The Belen magistrate court also alerted VCDC daily about those persons being held without
criminal charges being filed. Id. at ¶ 8.
Carla Gonzales, the Los Lunas magistrate court manager from the early 1990’s until
2013, also observed that law enforcement agencies, including the Valencia County Sheriff’s
Department, frequently failed to file timely criminal complaints. (Doc. 129-2) at 1, ¶¶ 1-5.
Gonzales further stated that “there was at least one meeting held with the judges, the various law
enforcement agency representatives, and VCDC administrators prior to 2011 discussing the
frequency of this problem and the need to stop this practice.” Id. at 2, ¶ 15.
h. Plaintiffs’ Research
Plaintiffs employed Alejandra Quijano to research the filing of untimely criminal
complaints in Valencia County magistrate courts. She produced a list of felony, DWI, and
misdemeanor cases “filed between November 2008 and November 2011 in Los Lunas and Belen
magistrate courts where complaints were filed more than 48 hours after the listed charge date.”
(Doc. 134-9) at 2, ¶ 10. Quijano located “1075 cases where the criminal complaint was filed
more than 48 hours after the charge date.” Id. at ¶ 11. Plaintiffs acknowledge that some of those
cases did not involve arrests. (Doc. 138) at 4, ¶ b.
B. Defendants’ Motion to Dismiss and for Summary Judgment
Defendants first move under Fed. R. Civ. P. 12(b)(6) to dismiss the Fifth and Fourteenth
Amendment claims and the claims for injunctive relief raised in the Ortiz and Sarrett cases.
Defendants base this motion to dismiss on the fact that the Court already dismissed those claims

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in the Wilson case. Plaintiffs do not oppose the motion to dismiss in their response and,
therefore, have consented to the motion to dismiss. See D.N.M. LR-Cv 7.1(b) (failure to
respond “constitutes consent to grant the motion.”). For the reasons previously articulated in its
Memorandum Opinion (Doc. 53), the Court will dismiss with prejudice the Fifth and Fourteenth
Amendment claims and the claims for injunctive relief raised in the Ortiz and Sarrett cases.
Defendants then move for summary judgment on the individual and official capacity
claims brought against Sheriff Burkhard. Plaintiffs do not oppose that motion for summary
judgment in their response and so have also consented to granting the motion for summary
judgment as to Sheriff Burkhard. See D.N.M. LR-Cv 7.1(b). Hence, the Court will dismiss with
prejudice the individual and official capacity claims against Sheriff Burkhard.
In addition, Defendants move for summary judgment on the individual capacity claims
against the remaining Defendants on the basis of qualified immunity. Plaintiffs oppose this
motion for summary judgment.
C. Standard of Review
When a defendant moves for summary judgment on the basis of a qualified immunity
defense, the Court “still view[s] the facts in the light most favorable to the non-moving party and
resolve[s] all factual disputes and reasonable inferences in its favor.” Estate of Booker v. Gomez,
745 F.3d 405, 411 (10th Cir. 2014). Unlike other affirmative defenses, the plaintiff bears the
burden of overcoming the defense of qualified immunity. Id. At the summary judgment stage,
the Court “must grant qualified immunity unless the plaintiff can show (1) a reasonable jury
could find facts supporting a violation of a constitutional right, which (2) was clearly established
at the time of the defendant’s conduct.” Id. The Court may in its discretion decide which of the
two-parts of the qualified immunity test to address first. Id. at 412.

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D. Discussion
1. Former Warden Williams and Warden Chavez
Defendants argue first that, under New Mexico law, it was not clearly established that
VCDC had a duty to obtain prompt probable cause determinations for detainees. Defendants
argue that, instead, the duty to ensure prompt probable cause determinations falls on the
magistrate court. The Tenth Circuit, however, already ruled in the Wilson case that New Mexico
law charged Warden Chavez with “ensuring arrestees received a prompt probable cause
determination.” Wilson v. Montano, 715 F.3d 847, 856-59 (10th Cir.), cert. denied, 134 S.Ct.
426 (2013). Former Warden Williams and Warden Chavez, therefore, had a clearly established
duty to ensure that arrestees received prompt probable cause determinations.
To hold a supervisor, like a warden or sheriff, individually liable under Section 1983, a
plaintiff must establish three elements: (1) personal involvement, (2) causation, and (3) the
requisite mental state. See Estate of Booker v. Gomez, 745 F.3d 405, 435 (10th Cir. 2014). At a
minimum, to demonstrate the requisite mental state, a plaintiff must establish “a deliberate and
intentional act on the part of the supervisor to violate the plaintiff’s legal rights.” Wilson, 715
F.3d at 858. Precisely what state of mind is required for individual liability depends on the type
of claim a plaintiff brings. Schneider v. City of Grand Junction Police Dep't, 717 F.3d 760, 769
(10th Cir. 2013). In this case, the Court previously noted that it is not clear whether a deliberate
indifference or recklessness state of mind applies.6 (Doc. 98) at 7-8. “‘[D]eliberate indifference’
is a stringent standard of fault, requiring proof that a municipal actor disregarded a known or
obvious consequence of his action.” Bd. of Cnty. Comm'rs of Bryan Cnty., Okla. v. Brown, 520
U.S. 397, 410 (1997). “[R]eckless intent is established if the actor was aware of a known or
6

Plaintiffs do not dispute that it is unclear whether to apply a deliberate indifference or
recklessness state of mind standard.
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obvious risk that was so great that it was highly probable that serious harm would follow and he
or she proceeded in conscious and unreasonable disregard of the consequences.” Medina v. City
& Cnty. of Denver, 960 F.2d 1493, 1496 (10th Cir. 1992).
Defendants argue that former Warden Williams and Warden Chavez were not personally
involved in causing Plaintiffs to not receive prompt probable cause determinations. It is
undisputed that both former Warden Williams and Warden Chavez did not have a policy of
holding detainees without prompt probable cause determinations. The Court also notes that
former Warden Williams and Warden Chavez could lawfully hold detainees for 48 hours without
a probable cause determination while attempting to ensure that those detainees receive probable
cause determinations from the magistrate court within that 48-hour time-frame. See Rule 6203(A), NMRA 1998 (“The probable cause determination shall be made by a magistrate …
judge promptly, but in any event with forty-eight (48) hours after custody commences and no
later than the first appearance of the defendant whichever occurs earlier.”). To meet that time
deadline, it is undisputed that (1) VCDC faxed a daily list of detainees, including the named
Plaintiffs, to the magistrate court and brought detainees before the magistrate court at each
available court session until such time as the magistrate court acted; and (2) VCDC made
available to the magistrate court the probable cause statements and criminal complaints received
at booking. Despite these efforts, Plaintiffs were unlawfully incarcerated without prompt
probable cause determinations. It is undisputed that, even if former Warden Williams and
Warden Chavez knew that Plaintiffs were unlawfully incarcerated, former Warden Williams and
Warden Chavez could not release Plaintiffs without court orders. See NMSA 1978, § 33-3-12(B)
(1998 Repl. Pamp.) (“Any jailer who deliberately and knowingly releases a prisoner without an
order of release … except upon expiration of the prisoner’s term of commitment, is guilty of a

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misdemeanor and shall be removed from office.”).
Viewing the above evidence in the light most favorable to Plaintiffs, a reasonable jury
could find that former Warden Williams and Warden Chavez were personally involved in
holding Plaintiffs when they should have been released due to lack of prompt probable cause
determinations. However, a reasonable jury could not find that former Warden Williams and
Warden Chavez necessarily “caused” the denial of prompt probable cause determinations by
accepting probable cause statements and criminal complaints at the beginning of the 48-hour
time-frame and then faxing daily lists of detainees, including the named Plaintiffs, to the
magistrate court, and transporting them to magistrate court at each possible court session. Even
if Plaintiffs show causation, they have not provided sufficient evidence from which a reasonable
jury could find that the proactive procedure to bring detainees before the magistrate court within
48 hours demonstrates deliberate indifference or reckless disregard of Plaintiffs’ Fourth
Amendment right to prompt probable cause determinations. Hence, Plaintiffs have not
demonstrated that a reasonable jury could find former Warden Williams and Warden Chavez
liable under Section 1983 in their individual capacities. Consequently, former Warden Williams
and Warden Chavez are entitled to qualified immunity on the individual capacity claims.
2. Former Sheriff Rivera
Defendants assert that former Sheriff Rivera lacked the requisite personal involvement
and mental state to be personally liable under Section 1983 for depriving Plaintiffs Wilson and
Sarrett of their Fourth Amendment right to prompt probable cause determinations. Plaintiffs, on
the other hand, argue that former Sheriff Rivera’s policy and training consisting of deputies
providing VCDC with a probable cause statement and criminal complaint upon booking, and
then forwarding the criminal complaint to the District Attorney’s office for review prior to filing

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in the magistrate court, caused Plaintiff Wilson, Plaintiff Sarrett, and others to be deprived of
their Fourth Amendment right to prompt probable cause determinations. Plaintiffs contend that
former Sheriff Rivera should have, instead, trained his deputies to file the criminal complaints
with the courts as required by state law. See Rule 6-201(D) (“If the defendant is in custody, the
complaint shall be filed with the magistrate court at the time it is given to the defendant.”). This
argument, however, is flawed.
Requiring an arresting officer to file a timely criminal complaint, which can only be filed
during the magistrate court’s office hours, does not necessarily assure a prompt probable cause
determination under the Fourth Amendment. In United States v. Bueno-Vargas, the Ninth
Circuit held that a Friday fax exchange between an arresting officer and the magistrate judge
satisfied the Fourth Amendment’s 48-hour requirement even though the criminal complaint was
not filed until the following Monday morning. 383 F.3d 1104 (9th Cir. 2004). The Ninth Circuit
further held that the 48-hour requirement under the Fourth Amendment to conduct a probable
cause determination “is distinct from” a requirement to promptly file a criminal complaint after a
warrantless arrest. Id. at 1107. The Ninth Circuit explained that “[t]he procedural rules
governing the filing of a complaint do not necessarily govern the probable cause determination
necessary for the government to detain a warrantless arrestee.” Id. at 1108. The Ninth Circuit
noted that a criminal complaint ensures that a suspect is not arrested without probable cause,
while the 48-hour requirement ensures “that no warrantless arrestee is detained, pending further
proceedings, without probable cause.” Id. After observing that filing a criminal complaint
within 48 hours could comply with the prompt probable cause determination requirement, the
Ninth Circuit “decline[d] to hold that a formal complaint is the only way to present evidence of
probable cause to a neutral magistrate judge within 48 hours of a warrantless arrest.” Id.

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Another Ninth Circuit case similarly held that a pre-printed probable cause application form
which “provides for a sworn certification and refers to and incorporates ‘official reports and
records’ that are prepared by law enforcement officers” and is presented to the court for review
“satisfies the requirements of a post-arrest probable cause determination.” Jones v. City of Santa
Monica, 382 F.3d 1052, 1056 (9th Cir. 2004).
These Ninth Circuit cases demonstrate that the key Fourth Amendment issue is whether
former Sheriff Rivera’s actions ensured prompt probable cause determinations, not whether he
ensured the prompt filing of criminal complaints. See Wilson v. Montano, 715 F.3d 847, 856-57
(10th Cir.), cert. denied, 134 S.Ct. 426 (2013) (“New Mexico law charged Sheriff Rivera with
the responsibility of running the VCDC and ensuring arrestees received a prompt probable cause
determination.”); New Mexico Administrative Office of the Court 6/11 Memo (Doc. 126-23)
(criminal complaint need not be filed in order for court to make probable cause determination).
See also Robinson v. Hecht, 2004 WL 2413338, at *1 (D. Kan.) (no Fourth Amendment right to
timely filed criminal charges, although Fourth Amendment protects right to prompt probable
cause determination). The majority of Plaintiffs’ evidence, such as the affidavits from the
magistrate court managers and Quijano’s research, as well as the evidence regarding the District
Attorney’s review of criminal complaints concern the filing of criminal complaints, not whether
detainees received prompt probable cause determinations. Moreover, the November 28, 2007,
letter from the magistrate judges, and the July 8, 2008, letter from former Warden Williams
reflect conditions two or three years before the arrest of Plaintiffs Wilson and Sarrett in 2010.
Those letters also concern what documentation to provide at the time of booking and the timely
filing of criminal complaints, issues “distinct from” whether former Sheriff Rivera trained and
supervised deputies to ensure prompt probable cause determinations. Even accepting that former

15

Sheriff Rivera’s training prior to 2008 was insufficient to ensure prompt probable cause
determinations, former Sheriff Rivera attested that after the 2008 training to address the issues
raised in the 2007 and 2008 letters from the magistrate judges and former Warden Williams,
respectively, he was not aware of any problems with providing prompt probable cause
determinations. (Doc. 126-2) at ¶ 15.
On the other hand, Plaintiffs have not produced evidence from which a reasonable jury
could find that former Sheriff Rivera knew that his actions would result in the deprivation of
Plaintiff Wilson and Sarrett’s Fourth Amendment right to prompt probable cause determinations,
or that former Sheriff Rivera was aware that his actions created an obvious risk so great that it
was highly probable that Plaintiffs Wilson and Sarrett’s Fourth Amendment right to prompt
probable cause determinations would be violated. Plaintiffs, therefore, have failed to present
sufficient evidence from which a reasonable jury could find that former Sheriff Rivera acted with
either deliberate indifference or reckless disregard toward the Fourth Amendment rights of
Plaintiffs Wilson and Sarrett to prompt probable cause determinations. Thus, Plaintiffs have not
carried their burden of showing that a reasonable jury could find former Sheriff Rivera liable
under Section 1983 in his individual capacity. As such, former Sheriff Rivera is entitled to
qualified immunity on the individual capacity claims and so is entitled to summary judgment on
those claims.
3. Deputy Montano
Defendants argue that because Deputy Montano completed a criminal complaint against
Plaintiff Wilson, provided a copy of that complaint to Plaintiff Wilson and to VCDC at the time
of booking, forwarded the criminal complaint to the District Attorney’s office for review, was
not informed by the District Attorney’s office that there was a problem with the criminal

16

complaint, presumably knew that VCDC provided Plaintiff Wilson’s name to the magistrate
court, and also presumably knew that VCDC transported Plaintiff Wilson to the magistrate court
at each available opportunity, Deputy Montano did not have had the requisite state of mind, i.e.,
deliberate indifference, to be liable for violating Plaintiff Wilson’s Fourth Amendment right to a
prompt probable cause determination.
First, the Court will not presume that Deputy Montano knew about the VCDC procedures
to get detainees in front of the magistrate court. See Lujan v. National Wildlife Federation, 497
U.S. 871, 889 (1990) (courts do not presume missing facts in affidavit). Second, the Tenth
Circuit recently held that since the Fourth Amendment protects the right to a prompt probable
cause hearing, courts do not consider the state of mind of the government actor. Webb v.
Thompson, 643 Fed. Appx. 718, 725 (10th Cir. 2016). Instead, courts must rely on an objective
reasonableness standard. Id. Third, the Court notes that it already ruled in the Ortiz case that
“[c]ompliance with internal procedures is not a per se defense to charges of unconstitutional
conduct.” (Doc. 98) at 5 (citing Roska ex rel. Roska v. Peterson, 328 F.3d 1230, 1252 (10th Cir.
2003)). The Court further held that a “policy of forwarding complaints to the District Attorney’s
office should not have prevented Defendant [Officer] Benavidez from understanding or
discharging his constitutional duties.” Id. The Court noted that Defendant Officer “Benavidez
could have complied with the internal policy AND monitored the progress of the case to ensure
that Plaintiff received a timely probable cause hearing.” Id. at 6. The Court then determined that
“[t]he policy was not incompatible with Defendant fulfilling his constitutional duties.” Id.
The Court concludes that viewing all of the evidence in the light most favorable to
Plaintiffs, Plaintiffs have presented enough evidence that a reasonable jury could find that
Deputy Montano violated Plaintiff Wilson’s Fourth Amendment right to a prompt probable cause

17

determination, which right was clearly established at the time of Plaintiff Wilson’s arrest. See
Wilson, 715 F.3d at 855. Consequently, Deputy Montano is not entitled to qualified immunity
on the Fourth Amendment Section 1983 individual capacity claim.
IT IS ORDERED that
1. Defendants’ Motion to Dismiss and for Summary Judgment (Doc. 126) is granted in
part;
2. the remaining Section 1983 Fifth and Fourteenth Amendment claims and claims for
injunctive relief will be dismissed with prejudice;
3. summary judgment will be entered in favor of Sheriff Burkhard;
4. all claims against Sheriff Burkhard will be dismissed with prejudice;
5. summary judgment will be entered in favor of former Warden Williams, Warden
Chavez, and former Sheriff Rivera on the Section 1983 individual capacity claims; and
6. those Section 1983 individual capacity claims will be dismissed with prejudice.

_______________________________
UNITED STATES DISTRICT JUDGE

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