Gallegos v. City of Albuquerque et al

Filing 81

MEMORANDUM OPINION AND ORDER by District Judge Judith C. Herrera granting 54 Motion for Summary Judgment On the Basis of Qualified Immunity finding that Defendant Jared Frazier is entitled to qualified immunity on Plaintiff's claims for (1) violation of the Fourth Amendment right to be free from the use of excessive force, and (2) violation of the Fourteenth Amendment right of a detainee to timely medical care. (baw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
ROBERT L. GALLEGOS,
Plaintiff,
vs.

Civ. No. 13-0716 JCH/SCY

CITY OF ALBUQUERQUE, et al.,
Defendants.

MEMORANDUM OPINION AND ORDER
In this case Plaintiff Robert Gallegos (“Gallegos”) claims that his constitutional rights
were violated by the City of Albuquerque (“the City”) and police officer Jared Frazier
(“Frazier”) when Frazier used excessive force in arresting Gallegos and denied Gallegos proper
medical care for his injuries at the time of arrest. The case is before the Court on Frazier’s
Motion for Summary Judgment On the Basis of Qualified Immunity [Doc. 54]. After reviewing
the motion, response, and reply as well as the exhibits thereto, the Court concludes that Frazier’s
motion should be granted because Gallegos has failed to meet his burden to show that his
constitutional rights were clearly established at the time such that a reasonable person in
Frazier’s position would have known that his conduct violated Gallegos’ rights.
LEGAL STANDARD
Summary judgment generally is appropriate when a court determines that “‘there is no
genuine dispute over a material fact and the moving party is entitled to judgment as a matter of
law.’” Thrasher v. B & B Chem. Co., 2 F.3d 995, 996 (10th Cir. 1993) (citation omitted). Under
Rule 56(c), “the mere existence of some alleged factual dispute between the parties will not
defeat an otherwise properly supported motion for summary judgment.” Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 247-48 (1986). Rather, “[o]nly disputes over facts that might affect
the outcome of the suit under the governing law will properly preclude the entry of summary
judgment.” Id. at 248.
To carry its initial burden, the moving party need not negate the nonmoving party’s
claim. See Allen v. Muskogee, Okl., 119 F.3d 837, 840 (10th Cir. 1997), cert. denied sub nom.
Smith v. Allen, 522 U.S. 1148 (1998). “‘Instead, the movant only bears the initial burden of
‘showing’—that is, pointing out to the district court—that there is an absence of evidence to
support the nonmoving party’s case.’” Id. (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 325
(1986)). Once the moving party meets its burden, the nonmoving party must “go beyond the
pleadings and by [its] own affidavits, or by the ‘depositions, answers to interrogatories, and
admissions on file,’ designate ‘specific facts showing that there is a genuine issue for trial.’”
Celotex, 477 U.S. at 324 (quoting Fed. R. Civ. P. 56(e)). A plaintiff cannot rely upon conclusory
allegations or contentions of counsel to defeat summary judgment but rather must produce some
specific factual support of its claim. See Pueblo Neighborhood Health Centers, Inc. v. Losavio,
847 F.2d 642, 649 (10th Cir. 1988); Fritzcshe v. Albuquerque Mun. Sch. Dist., 194 F. Supp. 2d
1194, 1206 (D.N.M. 2002). “Where the record taken as a whole could not lead a rational trier of
fact to find for the nonmoving party, there is no ‘genuine issue for trial.’” Matsushita Elec.
Indus. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citation omitted). Upon a motion for
summary judgment, a court “must view the facts in the light most favorable to the nonmovant
and allow the nonmovant the benefit of all reasonable inferences to be drawn from the evidence.”
Kaus v. Standard Ins. Co., 985 F. Supp. 1277, 1281 (D. Kan. 1997). If there is no genuine issue
of material fact in dispute, then a court must next determine whether the movant is entitled to

2 

judgment in its favor as a matter of law. See, e.g., Jenkins v. Wood, 81 F.3d 988, 990 (10th Cir.
1996); Celotex, 477 U.S. at 322.
The standard for analyzing a motion for summary judgment shifts slightly if, as here, a
defendant raises qualified immunity as a defense in a lawsuit brought under 42 U.S.C. § 1983.
Qualified immunity bars Section 1983 suits against defendants in their individual—but not
official—capacities. See, e.g., Kentucky v. Graham, 473 U.S. 159, 167 (1985) (citations omitted).
The qualified immunity defense was created to shield public officials “from undue interference
with their duties and from potentially disabling threats of liability.” Harlow v. Fitzgerald, 457
U.S. 800, 806 (1982). It provides immunity from suit and not merely from liability. See Mitchell
v. Forsyth, 472 U.S. 511, 526 (1985). It therefore spares defendants the burden of going forward
with trial. See Wilson v. Meeks, 52 F.3d 1547, 1552 (10th Cir. 1995), abrogated on other
grounds, Saucier v. Katz, 533 U.S. 194 (2001).
Once a moving party raises the defense of qualified immunity, the nonmoving party must
(1) assert facts which, if true, would constitute a violation of a constitutional right, and (2)
demonstrate that the “right was clearly established at the time such that a reasonable person in
the [movant’s] position would have known that [the] conduct violated the right.” Garramone v.
Romo, 94 F.3d 1446, 1449 (10th Cir. 1996) (citations omitted); see also, e.g., Saucier v. Katz,
533 U.S. 194, 201-02 (2001). The first part of this inquiry requires a court to determine whether
the parties’ submissions, viewed in the light most favorable to the plaintiff, could show the
officers’ conduct violated a constitutional right. Cf. id. at 201. The second part of the inquiry
requires a court to “assess[] the objective legal reasonableness of the action at the time of the
alleged violation and ask[] whether ‘the right was sufficiently clear that a reasonable officer
would understand that what he [or she was] doing violates that right.’” See Medina v. Cram, 252
3 

F.3d 1124, 1128 (10th Cir. 2001) (quotation omitted); Anderson v. Creighton, 483 U.S. 635, 639
(1987) (citations omitted). The Court may decide “which of the two prongs of the qualified
immunity analysis should be addressed first in light of the circumstances in the particular case.”
Pearson v. Callahan, 555 U.S. 223, 236 (2009); accord Green v. Post, 574 F.3d 1294, 1299
(10th Cir. 2009).
If a nonmoving party fails to satisfy its two-part burden, a court must grant the moving
party qualified immunity. See Medina, 252 F.3d at 1128. If, and only if, the plaintiff establishes
both elements of the qualified immunity test does a defendant then bear the traditional burden of
showing “‘that there are no genuine issues of material fact and that he or she is entitled to
judgment as a matter of law.’” Nelson v. McMullen, 207 F.3d 1202, 1206 (10th Cir. 2000)
(quoting Albright v. Rodriguez, 51 F.3d 1531, 1535 (10th Cir. 1995)). In other words, although
the court “review[s] the evidence in the light most favorable to the nonmoving party, the record
must clearly demonstrate the plaintiff has satisfied his heavy two part burden; otherwise, the
defendants are entitled to qualified immunity.” Medina, 252 F.3d at 1128 (citation omitted).
However, if the nonmoving party successfully demonstrates the violation of a clearly established
right, the moving party assumes the normal summary judgment burden of demonstrating that no
genuine issue of material fact exists that would defeat its claim for qualified immunity. See
Woodward v. City of Worland, 977 F.2d 1392, 1396-97 (10th Cir. 1992) (citations omitted).

4 

FACTUAL BACKGROUND
On summary judgment, the Court does not make credibility determinations or weigh the
evidence. Rather, the Court views the evidence in the light most favorable to the non-moving
party—in this case, Gallegos—and resolves all factual disputes in his favor.1 With that in mind,
for purposes of the motion currently before it, the Court finds the facts as follows.
On the evening of June 5, 2012, at approximately 9:49 p.m., Gallegos was driving a
motorcycle southbound on Tramway Boulevard in Albuquerque. Second Am. Cmplt. [Doc. 25]
at ¶¶ 21-22, 24. At the intersection of Tramway and Cloudview, Gallegos collided with another

1
  The Local Rules for the United States District Court for the District of New Mexico address

with specificity the manner in which the moving and responding parties must address the facts in
a motion for summary judgment. Specifically, D.N.M. LR-56.1(b) provides:
 The memorandum in support of the [Rule 56] motion must initially set out a concise
statement of all of the material facts as to which movant contends no genuine issue exists.
The facts must be numbered and must refer with particularity to those portions of the
record upon which movant relies.
 A memorandum in opposition to the motion must contain a concise statement of the
material facts as to which the party contends a genuine issue does exist. Each fact in
dispute must be numbered, must refer with particularity to those portions of the record
upon which the opposing party relies, and must state the number of the movant’s fact that
is disputed. All material facts set forth in the statement of the movant will be deemed
admitted unless specifically controverted.
Although Frazier complied with this Rule, Gallegos did not. Gallegos simply submitted his own
list of undisputed material facts, and made no effort to identify by number the facts provided by
Frazier that he is disputing. This puts the Court in the position of having to sort through both
parties’ list of facts in order to determine where they are in dispute. Under the Rule, the Court
would be justified in simply concluding that all of Frazier’s facts should be deemed admitted.
In the signature block on his response brief, Gallegos’ counsel identified himself as “pro hac
vice.” Of course, attorneys who are not licensed to practice in the District of New Mexico may,
under certain circumstances, still practice in this Court. However, they are not relieved of the
duty to know and comply with the Local Rules. Still, because this appears to be Plaintiff’s
counsel’s first appearance in this Court, the Court will not deem Frazier’s facts to be admitted on
this occasion. However, the Court will not overlook Gallegos’ counsel’s violations of Local
Rules in the future.

5 

vehicle. Id. at ¶ 22. A witness called 911 to report the accident. Doc. 64-2 at 1. According to the
dispatch log, the caller stated that the driver of the motorcycle (now known to be Gallegos) got
up and ran southbound on Tramway. Id. At some point, Gallegos made his way to a nearby
residential area. At 10:04 p.m. a resident called 911, stating that a “male subject” with “blood all
over his arm” was banging on his door. Exh. E, Doc. 54-2 at 2. About a minute and a half later,
two officers arrived on the scene. Defendant Frazier was dispatched to evaluate Gallegos for
possible signs of intoxication. Exh. C, Doc. 54-1 at 4, ¶ 3. After going first to the scene of the
accident, at approximately 10:13 p.m. Frazier arrived at the residential area where Gallegos had
been found. Id. at ¶ 4-6; Exh. E, Doc. 54-2 at 2.
When Frazier arrived, he saw Gallegos wearing handcuffs in the front yard of a
residence. Exh. C, Doc. 54-1 at ¶ 7. After speaking with another officer, Tommy Benavides,
Frazier spoke with at least one of the Albuquerque Ambulance paramedics on the scene. Exh. E,
Doc. 54-2 at 2; Exh. 1, Doc. 64-3 at 7, 22, and 67 of 115. Of the two paramedics who were there,
Rachael Wennekamp was the lead paramedic and was the only one who spoke to the police at
the scene. Exh. 1, Doc. 64-3 at 67, 85 of 115. Wennekamp spoke to the officer that she believed
to be the lead officer in charge. Id. at 67, 70, 85. That officer told Wennekamp that the patient
did not need to be assessed and that the paramedics could cancel the call. Id. at 67, 74, 76, 86. As
a result, the paramedics left without assessing Gallegos. Id. at 67, 71, 74, 85-86; Exh. 3, Doc. 644 at ¶ 18.
Frazier did not read Gallegos his Miranda rights.2 Exh. 3, Doc. 64-4 at ¶ 34. However,
officers (including Frazier) did question Gallegos while Gallegos sat with his arms handcuffed

2

 Frazier asserts that he did read Gallegos his Miranda rights, but that his lapel camera

malfunctioned and therefore did not record it. Doc. 54-1 at ¶ 10. There is no independent
6 

behind his back. Id. at ¶ 12-13; Exh. C, Doc. 54-1 at ¶ 11. When officers initially arrived,
Gallegos did not consent to take a breathalyzer test. Exh. 1, Doc. 64-3 at 101 of 115; Exh. 3,
Doc. 64-4 at ¶¶ 15-17. However, after officers sent the paramedics away, Frazier told Gallegos
that he would receive no medical treatment until he took the test; as a result, Gallegos
consented.3 Exh. 1, Doc. 64-3 at 97, 99-100, 105-06, and 108 of 115; Exh. 3, Doc. 64-4 at ¶ 1517, 23-24. Gallegos asked Frazier and the other officers to please let the paramedics examine
him. Exh. 1, Doc. 64-3 at 99 of 115; Exh. 3, Doc. 64-4 at ¶ 14; Exh. D, Doc. 54-2; Exh. 12, Doc.
64-13.4
Frazier recorded at least a portion of his interaction with Gallegos with his lapel camera.
See Exh. D, Doc. 54-2; and Exh. 12, Doc. 64-13. That video recording shows Gallegos denying
having a motorcycle accident and running to the residential area from the scene of an accident.
Gallegos begged Frazier to let the paramedics look at his ankle. Frazier says, “You got a little
scuff on it.” Frazier accuses Gallegos of lying; Gallegos denies it. Gallegos says, “I’m hurting.”
Frazier responds, “That’s what happens when you fall off a motorcycle.” Frazier directs
Gallegos, who is out of frame, to stand up. There is a sound of movement, and Gallegos can be
heard crying out in pain. It is impossible to tell from the video alone if Frazier or anyone else is
touching Gallegos at this point. In his affidavit, Gallegos states that he believes that Frazier
grabbed his left shoulder and used the handcuffs as leverage to raise Gallegos to a standing

evidence that Frazier read Gallegos his rights. As it must on a motion for summary judgment, the
Court resolves these conflicting accounts in favor of Gallegos. 
3
In the criminal case against Gallegos for driving under the influence of alcohol, the state judge
found that the evidence of Gallegos’ breathalyzer test should be suppressed on the grounds that
officers coerced his consent by withholding medical treatment. Exh. 1, Doc. 64-3 at 114 of 115.
4
A compact disc containing the recording from Frazier’s lapel camera is lodged in the record as
Defendant’s Ex. D, Doc. 54-2. Gallegos attached a transcript of that recording as Ex. 12, Doc.
64-13. The Court has examined both the recording and the transcript.
7 

position, tugging on Gallegos’ shoulder harder when he saw that this caused Gallegos pain. Doc.
64-4 at ¶ 22. Then Frazier directs Gallegos to roll over, and there is a sound of heavy breathing
and struggling. Frazier directs Gallegos to bring his knees up, and then to sit up. Then, he directs
Gallegos to stand. Gallegos says, “Please, help me stand. I can’t stand,” to which Frazier says,
“Stand up. We’re helping you.” Frazier then says, “This is what happens when you fall off a
motorcycle.” Gallegos again denies falling off a motorcycle. Then, the camera perspective shifts
so that Gallegos becomes visible in the frame. His left arm and right shoulder are bloody and
appear raw; it appears that large patches of skin have been scraped off. Frazier says, “That is
called road rash.” Gallegos denies having road rash and again denies falling off a motorcycle.
Gallegos asks to be taken to a hospital for treatment for his ankle “because, I promise you, it’s
broken.” Fraser responds, “That’s why you ran a quarter of a mile?” After additional accusations
by Frazier and denials of lying by Gallegos, Gallegos again says “I’m hurting,” and asks for
medical attention for his ankle. In an exchange with another officer, Frazier observes that
Gallegos “has road rash all over him.” A short time later, Frazier and another officer take
Gallegos by the arm and walk him toward a police cruiser. Fraser tells Gallegos that he is under
arrest for DWI, fleeing the scene of an accident, and “being an absolute liar.” As the officers put
him in the car, Gallegos says that he wants a breathalyzer “as soon as possible.”
Gallegos was seated in the back of the patrol car with his hands cuffed behind him. Exh.
3, Doc. 64-4 at ¶ 25, Exh. C, Doc. 54-1 at ¶ 28. That position caused pain in his injured left
shoulder and right ankle. Exh. 3, Doc. 64-4 at ¶ 25. On the drive to the police station, Gallegos
continued to ask to be taken to the hospital, to which Frazier responded, “Be a man already,”
which Gallegos interpreted to mean that Frazier wanted him to confess before he would take
Gallegos to the hospital. Id. at ¶ 26-27. Frazier drove Gallegos to the Prisoner Transport Center
8 

(“PTC”) in order to administer a breathalyzer test. Exh. C, Doc. 54-1 at ¶ 29. When they arrived
at the PTC, Frazier put his right arm under Gallegos’ left shoulder to help him balance as
Gallegos hopped on his left foot, causing additional pain to Gallegos’ shoulder. Exh. 3, Doc. 644 at ¶ 29. Frazier and Gallegos arrived at the PTC at 10:42 p.m. Exh. C, Doc. 54-1 at ¶ 30.
At the PTC, Gallegos’ injuries prevented him from being able to sit comfortably. Exh. 3,
Doc. 64-4 at ¶ 30. He was hunched over in pain, bleeding, and asking for medical help. Id.
Frazier administered a breathalyzer test, Exh. C, Doc. 54-1 at ¶ 31, and then Gallegos heard a
man behind a counter tell Frazier that they were not going to accept Gallegos into the PTC
because he did not believe that the paramedics had cleared Gallegos. Exh. 3, Doc. 64-4 at ¶ 3132. Frazier called the paramedics, who arrived at the PTC to examine Gallegos at 11:33 p.m.
Exh. C, Doc. 54-1 at ¶ 34-35; Exh. G, Doc. 54-2 at 5 of 6; Doc. 64-4 at ¶ 33.
The physician who examined Gallegos a few hours later noted severe road rash to
approximately 20% of Gallegos’ body, a likely grade 3 left shoulder joint separation, and right
ankle sprain. Exh. H, Doc. 54-3.
PLAINTIFF’S COMPLAINT
In his Second Amended Complaint [Doc. 25], Gallegos alleges several violations of his
constitutional rights. Although he has grouped them together in a somewhat tangled fashion, it
appears that he is asserting the violation of the following rights by Frazier: substantive due
process under the Fourteenth Amendment, id. at ¶ 126-127, 145; freedom from cruel and unusual
punishment under the Eighth Amendment, id. at ¶ 126, 135; freedom from unlawful search and

9 

seizure, as well as excessive force, under the Fourth Amendment, id. at ¶ 128, 134; and
deprivation of timely medical care, id. at ¶ 130-133, 141.5
DISCUSSION
Frazier has filed a motion for summary judgment on the grounds that he has qualified
immunity for Gallegos’ claims for (1) use of excessive force under the Fourth Amendment and
(2) deprivation of timely medical care. Doc. 54 at 7-8. Frazier’s motion does not address any of
Gallegos’ other possible § 1983 claims. However, in his response brief [Doc. 64], Gallegos
muddies the waters significantly by arguing that he “has a Fifth Amendment right to be free from
the infliction of pain and suffering used as coercion to overcome his right to remain silent” and
that Frazier “us[ed] the denial of medical assistance to coerce consent to a confession.” Doc. 64
at 1-2. Gallegos’ response goes on to state that “[t]his is a due process case,” and that under the
Fifth Amendment, his confession was coerced because it was obtained through unnecessary
infliction of pain and without a Miranda warning. Id. at 18-19.
As a threshold matter, the Court must clarify that it will not address a claim of violation
of the Fifth Amendment right against self-incrimination for the fundamental reason that Gallegos
did not attempt to plead such a claim. In his Second Amended Complaint [Doc. 25], Gallegos
mentions the Fifth Amendment only once, in a paragraph that enumerates the federal statutes and
constitutional amendments that serve as the basis for this Court’s jurisdiction. Doc. 25 at ¶ 9. At
no point in the portion of the Second Amended Complaint that enumerates Gallegos’ causes of
action does he mention anything about the Fifth Amendment or the right against selfincrimination. Thus, although both parties discuss the right against self-incrimination in their

5

The Court expresses no opinion as to whether or not Gallegos’s Second Amended Complaint
has adequately stated a claim on any constitutional cause of action that is not the subject of
Frazier’s present motion.
10 

briefs, it does not appear to the Court that this constitutional claim was pled in the first instance.
For this reason, it is not clear to the Court why the parties spend the time they do in discussing it.
Further, even if Gallegos had plead a claim for violation of the right against selfincrimination, that claim would not be legally viable. Gallegos argues in his response that
although initially he exercised his right against self-incrimination by refusing to consent to the
breathalyzer test, Frazier coerced him into waiving that right by refusing to provide Gallegos
with medical treatment until he took the breath test. Thus, Gallegos argues that Frazier violated
his right against self-incrimination and that the decision of the state court judge excluding the
breathalyzer results in the state court DUI case against him was proper. See Doc. 64 at 18.
However, it is the very decision of the state court judge suppressing the breathalyzer evidence
that would preclude Gallegos from recovering under § 1983 for violation of his right to selfincrimination. In Chavez v. Martinez, 538 U.S. 760 (2003), the Supreme Court found that the
right to self-incrimination is not violated unless and until a coerced statement is used against a
defendant in a criminal case. In that case, while respondent Martinez was being treated for
gunshot wounds received during an altercation with police, police officer Chavez interrogated
him without giving Martinez Miranda warnings. Id. at 764. Although he was never charged with
a crime and his statements to Chavez were never used against him in any criminal proceeding,
Martinez filed a § 1983 claim asserting violation of his Fifth Amendment right against selfincrimination and his Fourteenth Amendment substantive due process right to be free from
coercive questioning. Id. at 764-65. The Supreme Court held that officer Chavez was entitled to
qualified immunity on the Fifth Amendment claim because Martinez’s statements were never
admitted as testimony against him in a criminal case, and therefore Martinez was never forced to
be a “witness” against himself. Id. at 767. Similarly, the Court found that Chavez’s failure to
11 

read Martinez his Miranda rights could not be grounds for a § 1983 action. Id. at 772. Thus,
Frazier’s alleged failure to read Gallegos his Miranda rights is not actionable in this case.
However, the Supreme Court also pointed out that its rulings did not preclude all civil claims for
violations of constitutional rights under certain circumstances:
Our views on the proper scope of the Fifth Amendment’s Self-Incrimination
Clause do not mean that police torture or other abuse that results in a confession is
constitutionally permissible so long as the statements are not used at trial; it
simply means that the Fourteenth Amendment’s Due Process Clause, rather than
the Fifth Amendment’s Self-Incrimination Clause, would govern an inquiry in
those cases and provide relief in appropriate circumstances.
Id. at 773.
Having clarified that the Second Amended Complaint presents no claim for violation of
the right against self-incrimination, the Court turns to the question of whether Frazier is entitled
to qualified immunity on Gallegos’ Fourth Amendment excessive force claim and Fourteenth
Amendment substantive due process claim for violation of the right to timely medical care.

I.

USE OF EXCESSIVE FORCE IN VIOLATION OF THE
FOURTH AMENDMENT
“Excessive force claims can be maintained under the Fourth, Fifth, Eighth, or Fourteenth

Amendment . . . and each carries with it a very different legal test.” Porro v. Barnes, 624 F.3d
1322, 1325 (10th Cir. 2010). For instance, although an excessive force claim brought under the
Fourth Amendment depends on the objective reasonableness of the defendant’s actions, the same
claim brought under the Fourteenth Amendment turns on additional factors, including “the
motives of the state actor.” See id. at 1325-26. Thus, a district court evaluating an excessive force
claim must first “isolate the precise constitutional violation with which [the defendant] is

12 

charged” because “[t]he choice of amendment matters.” Id. at 1325 (citing Baker v. McCollan,
443 U.S. 137, 140 (1979)); see also Graham v. Connor, 490 U.S. 386, 393-95 (1989).
Determining which amendment applies to an allegation of excessive force requires
consideration of “where the [plaintiff] finds himself in the criminal justice system.” Porro, 624
F.3d at 1325. Any force used “leading up to and including an arrest” may be actionable under the
Fourth Amendment’s prohibition against unreasonable seizures. Id. at 1325-26. By contrast,
claims of excessive force involving convicted prisoners arise under the Eighth Amendment. Id.
“And when neither the Fourth nor Eighth Amendment applies—when the plaintiff finds himself
in the criminal justice system somewhere between the two stools of an initial seizure and postconviction punishment—we turn to the due process clauses of the Fifth or Fourteenth
Amendment and their protection against arbitrary governmental action by federal or state
authorities.” Id. at 1326 (citing Cnty. of Sacramento v. Lewis, 523 U.S. 833, 843 (1998)). It is
well-established that the Fourteenth Amendment governs any claim of excessive force brought
by a “pretrial detainee”—one who has had a “judicial determination of probable cause as a
prerequisite to [the] extended restraint of [his] liberty following arrest.” Bell v. Wolfish, 441 U.S.
520, 536 (1979) (quoting Gerstein v. Pugh, 420 U.S. 103, 114 (1975).
Applying these principles to this case, the Court concludes that the Fourth Amendment
applies here because Gallegos alleges the use of excessive force by Frazier in the events leading
up to and during his arrest. Fourth Amendment excessive force claims are analyzed under the
objective reasonableness standard of the Fourth Amendment. Graham v. Connor, 490 U.S. 386,
395 (1989). The reasonableness of an officer’s conduct must be assessed “from the perspective
of a reasonable officer on the scene,” recognizing the fact that the officer may be “forced to
make split-second judgments” under stressful and dangerous conditions. Id. at 396-97. The
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Fourth Amendment standard requires inquiry into the factual circumstances of every case;
relevant factors include the crime’s severity, the potential threat posed by the suspect to the
officer’s and others’ safety, and the suspect’s attempts to resist or evade arrest. Id. at 396.
The Court turns now to the question of whether Frazier is entitled to qualified immunity
for Gallegos’ excessive force claim. That, in turn, raises the question of whether Frazier violated
the Fourth Amendment prohibition against the use of excessive force by (a) denying Gallegos
medical care at the scene of the arrest, instead delaying his examination by paramedics until after
they arrived at the PTC (a delay that was just over an hour from the time Frazier first
encountered Gallegos), and (b) pulling Gallegos to a standing position and making him walk to
the patrol car despite the fact that Gallegos stated that his ankle and shoulder were injured.
As discussed above, because Frazier has raised the defense of qualified immunity, the
burden shifts to Gallegos to show not only that his Fourth Amendment rights were violated, but
also that there was clearly established law prohibiting Frazier’s conduct “of which a reasonable
person would have known.’” Mullenix v. Luna, 577 U.S. –––– , 136 S. Ct. 305, 308 (2015). In
order to show that the law was clearly established at the time of the defendant’s conduct, a
plaintiff must identify an on-point Supreme Court or published Tenth Circuit decision, or show
that “the clearly established weight of authority from other courts must have found the law to be
as the plaintiff maintains. Weise v. Casper, 593 F.3d 1163, 1167 (10th Cir. 2010) (internal
quotation marks omitted).
Importantly, a case that generally outlines the constitutional right at issue is insufficient.
“We do not require a case directly on point, but existing precedent must have placed the statutory
or constitutional question beyond debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011).
“Qualified immunity is no immunity at all if ‘clearly established’ law can simply be defined as
14 

the right to be free from unreasonable searches and seizures.” City of San Francisco v. Sheehan,
— U.S. —, 135 S. Ct. 1765, 1776 (2015). The clearly established right at issue should be
defined “ ‘on the basis of the specific context of the case.’” Quinn v. Young, 780 F.3d 998, 1005
(10th Cir. 2015) (quoting Tolan v. Cotton, — U.S. —, 134 S. Ct. 1861, 1866 (2014)). As the
Supreme Court very recently reminded us,
Today, it is again necessary to reiterate the longstanding principle that ‘clearly
established law’ should not be defined at a high level of generality. As this Court
explained decades ago, the clearly established law must be ‘particularized’ to the
facts of the case. Otherwise, [p]laintiffs would be able to convert the rule of
qualified immunity . . . into a rule of virtually unqualified liability simply by
alleging violation of extremely abstract rights.”
White v. Pauly, — U.S. —, 137 S. Ct. 548, 552 (2017) (internal citations and quotations
omitted).
Here, a review of Gallegos’ brief shows that he has not met his burden to identify a
“particularized” Supreme Court or published Tenth Circuit decision, or show that “the clearly
established weight of authority from other courts, which would prohibit the specific conduct at
issue in this case. Gallegos argues that “Officer Frazier’s manner of seizure, handling during
detention, and denial of prompt medical access used to inflict punishment constitutes excessive
use of force.” Doc. 64 at 19-20. However, lacking from his brief is citation to or discussion of
any case in which law enforcement officers are accused to violating the Fourth Amendment by
withholding medical treatment from an injured arrestee at the scene of the arrest, or by the way
they handled him during his arrest. Instead, Gallegos cites Graham v. Connor, 490 U.S. 386
(1989) and Bell v. Wolfish, 441 U.S. 520 (1979) for extremely general propositions regarding the
“objective reasonableness” standard and violations of due process. Yet, neither case bears any
factual similarity to this one. Bell stems from allegations that practices at a short-term custodial
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facility violated the rights of pretrial detainees. 441 U.S. at 523-24. These practices included
“double bunking” (the confinement of two inmates in individual rooms originally intended for
single occupancy), id. at 530-31, the prohibition of hardcover books not mailed directly from
publishers or bookstores, id. at 548-50, prohibition of packages of food and personal items from
outside the facility, id. at 553, a requirement that detainees remain outside their rooms during
inspections by prison officials, id. at 555-56, and the practice of conducting visual body-cavity
searches of inmates, id. at 557-58. It did not address the use of excessive force, but rather
unreasonable search and seizure. Graham is closer. In that case, Graham, a diabetic, went to a
convenience store to purchase orange juice to counteract the onset of an insulin reaction. 490
U.S. at 388. After seeing a long line at checkout, Graham quickly left the store to go to a friend’s
house instead. Id. at 388-89. A watching police officer became suspicious after seeing Graham
hastily enter and leave the store. He followed the car in which Graham was a passenger and
made an investigative stop, ordering Graham and the driver to wait while he found out what had
happened in the store. Id. at 389. Back-up police officers arrived on the scene, handcuffed
Graham, and ignored or rebuffed attempts to explain and treat Graham’s condition. Id. at 389.
During the encounter, in which the police treated him very roughly, Graham sustained multiple
injuries. Id. The Supreme Court held that all claims that law enforcement officials have used
excessive force in the course of an arrest, investigatory stop, or other “seizure” of a free citizen
are properly analyzed under the Fourth Amendment’s “objective reasonableness” standard,
rather than under a substantive due process standard. Id. at 398-99. After making this purely
legal determination, the Court then remanded the case to the district court for review under the
objective reasonableness standard. Id. at 399. Thus, from the point of view of what is purely
established, the Graham decision provides no guidance under the particular facts of this case.
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Similarly, none of the other Supreme Court and Tenth Circuit decisions cited by Gallegos in his
response brief address the issue of whether Frazier applied excessive force to Gallegos during the
course of his arrest. Gallegos’ brief does not discuss the facts of any of those cases, much less
explain how they would have placed Frazier on notice that he was violating Gallegos’
constitutional rights.
Because Gallegos has failed to meet his burden to show that the law prohibiting Frazier’s
conduct was clearly established, the Court need not reach the other prong of the qualified
immunity analysis—whether Frazier violated Gallegos’ Fourth Amendment right to be free from
the use of excessive force. Accordingly, the Court concludes that Frazier is entitled to qualified
immunity, and Gallegos’ Fourth Amendment excessive force claim will be dismissed.

II.

DEPRIVATION OF TIMELY MEDICAL CARE
“[D]eliberate indifference to serious medical needs of prisoners” violates the Eighth

Amendment’s proscription of cruel and unusual punishments. Estelle v. Gamble, 429 U.S. 97,
104 (1976). Under the Fourteenth Amendment due process clause, “pretrial detainees are . . .
entitled to the degree of protection against denial of medical attention which applies to convicted
inmates” under the Eighth Amendment. Garcia v. Salt Lake County, 768 F.2d 303, 307 (10th
Cir. 1985). Claims of denial of medical treatment by pretrial detainees are evaluated under the
Due Process Clauses of the Fifth and Fourteenth Amendments, which prohibit the defendants
from undertaking acts that amount to punishment. See Bell v. Wolfish, 441 U.S. 520, 535 (1979).
A claim for inadequate medical attention will be successful if the plaintiff shows “‘deliberate
indifference to serious medical needs.’ ” Estate of Hocker v. Walsh, 22 F.3d 995, 998 (10th Cir.
1994) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)).
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Deliberate indifference “involves both an objective and a subjective component.” Mata v.
Saiz, 427 F.3d 745, 751 (10th Cir. 2005) (quotation omitted). For the objective component, a
prisoner or detainee must provide “evidence that the deprivation at issue was in fact sufficiently
serious.” Id. (quotation omitted). The subjective component requires “evidence of the prison
official’s culpable state of mind,” which may be fulfilled by showing that the official “[knew] of
and disregard[ed] an excessive risk to inmate health or safety; the official must both be aware of
facts from which the inference could be drawn that a substantial risk of serious harm exists, and
she must also draw the inference.” Id. (brackets and quotation omitted). This “standard lies
somewhere between the poles of negligence at one end and purpose or knowledge at the other.”
Id. at 752 (quotation omitted).The Supreme Court has warned that “an inadvertent failure to
provide adequate medical care” does not rise to a constitutional violation. Estelle, 429 U.S. at
105-06.
Here, Gallegos has again failed to meet his burden to show that the law was clearly
established that Frazier violated his right to timely medical care. As with his excessive force
claim, Gallegos’ response brief enumerates general legal principles extracted from Supreme
Court opinions but makes no effort to examine the facts of a single case that he cites and
analogize those facts to the ones presented here. Thus, Gallegos has failed to show that Frazier
should have been on notice that his actions violated Gallegos’ due process right to timely
medical treatment. As discussed above, Supreme Court precedent places that burden squarely
upon Gallegos’ shoulders—it is not the purview of this Court to make his arguments for him.
Accordingly, the Court concludes that as a result of Gallegos’ failure to meet his burden, Frazier
is entitled to qualified immunity for Gallegos’ claim of deprivation of timely medical care.

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CONCLUSION
In light of the foregoing,
IT IS HEREBY ORDERED that Motion for Summary Judgment On the Basis of
Qualified Immunity [Doc. 54] is GRANTED, and Defendant Jared Frazier is entitled to qualified
immunity on Plaintiff’s claims for (1) violation of the Fourth Amendment right to be free from
the use of excessive force, and (2) violation of the Fourteenth Amendment right of a detainee to
timely medical care.

___________________________________
UNITED STATES DISTRICT JUDGE

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