Wilson v. Montano et al
MEMORANDUM OPINION AND ORDER by District Judge Kenneth J. Gonzales granting 123 Motion for Summary Judgment on Claims Asserted Against Defendant Dan Robb. (tah)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
MICHAEL WILSON, SR., et al.,
DEPUTY LAWRENCE MONTANO, et al.,
Civ. No. 11-658 KG/SCY
Civ. No. 11-951 KG/SCY
Civ. No. 11-1021 KG/SCY
MEMORANDUM OPINION AND ORDER
This matter comes before the Court upon the Motion for Summary Judgment on Claims
Asserted Against Defendant Dan Robb1 (Motion for Summary Judgment),2 filed on August 11,
2015. (Doc. 123).3 Sarrett Plaintiffs filed a response on September 1, 2015, and Robb filed a
reply on September 17, 2015. (Docs. 129 and 135). Having considered the Motion for Summary
Judgment, the accompanying briefs, and the relevant evidence, the Court grants the Motion for
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
Plaintiffs Dustin Sarrett, Oscar Leyva, Mark Sanchez, and Patrick Marquez (Sarrett Plaintiffs)
sued Defendant Dan Robb (Robb), among others, in Civ. No. 11-1021 KG/SCY.
Robb failed to comply with D.N.M. LR-Cv 7.1(a)’s concurrence requirement when he filed the
Motion 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 Sarrett Plaintiffs would
not have concurred with the Motion for Summary Judgment, they are not prejudiced by Robb’s
failure to comply with Local Rule 7.1(a). In the interest of justice, the Court will, therefore,
decide the Motion for Summary Judgment on the merits.
Unless otherwise noted, citations to the record and pleadings refer to docket entries in Civ. No.
others similarly situated without warrants and booked them into the Valencia County Detention
Center (VCDC). Plaintiffs allege that VCDC wardens 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
Sarrett Plaintiffs filed a First Amended Class Action Complaint against, inter alia, Belen
Police Department (BPD) Officer Joseph Chavez (BPD Officer Chavez), John Doe BPD officers,
John Doe booking officers, and former BPD Chief of Police Robb. Sarrett Plaintiffs have not yet
moved to certify a class. Sarrett Plaintiff Leyva specifically alleges that BPD Officer Chavez
arrested him, without a warrant, on March 6, 2010, for committing several misdemeanors. (Doc.
5) at ¶¶ 67-69, filed in Civ. No. 11-1021 KG/SCY. According to Sarrett Plaintiffs, BPD Officer
Chavez wrote a criminal complaint prior to booking Leyva into VCDC, but did not file the
criminal complaint either at the time he booked Plaintiff Leyva into VCDC or at any time during
his detention, which ended March 17, 2010. Id. at ¶¶ 70-74. Plaintiff Leyva further asserts that
at no time during that detention did Defendant John Doe booking officer arrange to take him
before a judge for a probable cause determination. Id. at ¶81. Finally, Plaintiff Leyva alleges
that Defendant John Doe booking officer did not release him from VCDC “when it became
apparent no charges were filed.” Id. at ¶ 82.
In Count VIII of the First Amended Class Action Complaint, Sarrett Plaintiffs bring 42
U.S.C. § 1983 claims against Robb alleging that, in his individual and official capacities as BPD
Chief of Police, Robb “established a policy or custom of allowing officers to arrest people and
wait before filing charges,” and that this policy or custom “in some circumstances … resulted in
the arrest and detention of citizens with charges never being filed.” Id. at ¶¶ 199 and 200.
Sarrett Plaintiffs also allege that Robb failed to train and supervise his staff so that they would
not violate the Fourth Amendment4 by arresting citizens who would “routinely [be] incarcerated
without pending charges.” Id. at ¶¶ 201 and 204. Sarrett Plaintiffs further contend that Robb
acted with deliberate indifference to the constitutional violations and that his policy “was a
significant moving force behind” the illegal detentions. Id. at ¶¶ 202 and 206.
2. Facts Relevant to the Motion for Summary Judgment
Robb was appointed interim BPD Chief of Police in May 2010, after Plaintiff Leyva’s
arrest in March 2010. (Doc. 123-2) at ¶ 2. The Belen City Council then appointed Robb as BPD
Chief of Police in June 2011. Id. at ¶ 3. In addition, Robb had no personal involvement in the
arrest of Plaintiff Leyva, no knowledge of any improper filing of Plaintiff Leyva’s criminal
complaint, nor did Robb know about Plaintiff Leyva’s incarceration. Id. at ¶¶ 19, 23, and 24.
B. The Motion for Summary Judgment
Robb moves for summary judgment on the Section 1983 individual capacity claims on
the basis of qualified immunity for his actions related to Plaintiff Leyva. Sarrett Plaintiffs argue
that the Court should deny the Motion for Summary Judgment because (1) it is premature, and
(2) there are questions of material fact regarding Robb’s mental state which preclude qualified
1. Whether the Motion for Summary Judgment is Premature
The Court notes that although Count VIII originally included references to violations of the
Fifth and Fourteenth Amendments, the Court has dismissed the claims based on those alleged
violations. (Doc. 159).
Sarrett Plaintiffs argue first that the Motion for Summary Judgment is premature, because
discovery has not begun.5 (Doc. 129) at 6. Sarrett Plaintiffs, however, do not seek to defer
ruling on the Motion for Summary Judgment under Fed. R. Civ. P. 56(d). Having failed to seek
relief under Rule 56(d), the Court will not consider Sarrett Plaintiffs’ argument that the Motion
for Summary Judgment is premature due to the lack of discovery.
Sarrett Plaintiffs further argue that the Motion for Summary Judgment is a premature
attack on the adequacy of Plaintiff Leyva as a class representative. Put another way, Sarrett
Plaintiffs assert that the issue of the adequacy of Plaintiff Leyva as a class representative is not
ripe, because Sarrett Plaintiffs have not yet moved to certify a class. In fact, Sarrett Plaintiffs
admit that if Plaintiff “Leyva was not a proposed class representative in claims against Defendant
Robb, then Robb’s motion would have merit.” (Doc. 129) at 2. Sarrett Plaintiffs also contend
that there are many individuals similarly situated to Plaintiff Leyva who, unlike Plaintiff Leyva,
were improperly incarcerated while Robb was BPD Chief of Police. Sarrett Plaintiffs, thus,
conclude that the Court cannot, as Robb requests, consider just Plaintiff Leyva’s situation in
deciding the Motion for Summary Judgment without first deciding whether to certify the class.
Contrary to Sarrett Plaintiffs’ argument, the Tenth Circuit recently held that the Court is
not obligated to decide a class certification motion before deciding a summary judgment motion
related to a named plaintiff. Ellis v. J.R.'s Country Stores, Inc., 779 F.3d 1184, 1207–08 (10th
Cir. 2015). See also Manual for Complex Litigation (4th) § 21.133 (“The court may rule on
motions pursuant to … Rule 56, or other threshold issues before deciding on certification;
however, such rulings bind only the named parties;” “Early resolution of these questions may
avoid expense for the parties and burdens for the court and may minimize use of the class action
The Court stayed discovery because of unresolved qualified immunity issues. See (Docs. 43,
78, and 151).
process for cases that are weak on the merits.”); Fed. R. Civ. P. 23, Advisory Committee Notes
(“The party opposing the class may prefer to win dismissal or summary judgment as to the
individual plaintiffs without certification and without binding the class that might have been
certified.”). Hence, this Motion for Summary Judgment, which relates only to Plaintiff Leyva, is
2. The Motion for Summary Judgment: Individual Capacity Claims and Qualified
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.
To hold a supervisor 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). Although Sarrett Plaintiffs argue
that Robb has the requisite mental state to be liable in his individual capacity, it is undisputed
that Robb could not have personally been involved in causing any violation of Plaintiff Leyva’s
constitutional rights, because Robb was not even interim BPD Chief of Police at the time of
Plaintiff Leyva’s arrest. Consequently, Robb cannot be individually liable under Section 1983.
As such, Robb is entitled to qualified immunity on the individual capacity claims and so is
entitled to summary judgment on those claims.
IT IS ORDERED that
1. the Motion for Summary Judgment on Claims Asserted Against Defendant Dan Robb
(Doc. 123) is granted;
2. summary judgment will be entered in Robb’s favor on the Section 1983 individual
capacity claims brought in Count VIII of Sarrett Plaintiffs’ First Amended Class Action
3. those Section 1983 claims will be dismissed with prejudice.
UNITED STATES DISTRICT JUDGE
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