Christopher James Castillo v. Las Cruces Police Department et al
MEMORANDUM OPINION AND ORDER by District Judge Martha Vazquez GRANTING 66 MOTION to Proceed under 28 U.S.C. 1915; and DENYING AS MOOT 60 MOTION for Extension of Time to File and 61 MOTION for Extension of Time to File. See Order for Specifics. (gr)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
CHRISTOPHER JAMES CASTILLO,
No. CV 14-00407 MV/LF
MEMORANDUM OPINION AND ORDER
GRANTING MOTION AND AFFIDAVIT FOR LEAVE TO PROCEED
ON APPEAL PURSUANT TO 28 U.S.C. § 1915 AND FED. R. APP. P. 24
THIS MATTER is before the Court on Plaintiff Christopher James Castillo’s Prisoner’s
Motion and Affidavit for Leave to Proceed on Appeal Pursuant to 28 U.S.C. § 1915 and Fed. R.
App. P. 24 filed November 10, 2016 (Doc. 66) (“Motion”). For the reasons set out, below, the
Court will GRANT Plaintiff Castillo’s Motion.1 Also pending before the Court are two motions
for extension of time to file notices of appeal (Docs. 60, 61), which the Court will DENY as
unnecessary and moot.
Factual and Procedural Background
On March 13, 2014, Plaintiff Christopher James Castillo commenced this proceeding pro
se in the Third Judicial District Court, Doña Ana County, New Mexico as an action under the
New Mexico Tort Claims Act, N.M. Stat. Ann. § 41-4-1, et seq. (1978). (Doc. 1-2 at 1). The
case was removed to this Court by the Defendants, Las Cruces Police Department and Police
The Court notes that Plaintiff has also filed a motion seeking leave to proceed in forma
pauperis in the Tenth Circuit. See Doc. 68. Because Fed. R. App. 24 requires that the District
Court decide the motion in the first instance, the Court will rule on Plaintiff’s Motion filed in this
Court. See Fed. R. App. P. 24(a)(1).
Officer Cody Austin, on May 1, 2014, under 28 U.S.C. § 1441. (Doc. 1). The Defendants filed
an Answer to Plaintiff’s Complaint on May 5, 2014. (Doc. 3).
On June 17, 2015, the Court entered a sua sponte Memorandum Opinion and Order
dismissing some of Plaintiff’s claims. (Doc. 25). The Court construed Plaintiff’s allegations
under the New Mexico Tort Claims Act as civil rights claims under 42 U.S.C. § 1983. The Court
dismissed the Las Cruces Police Department on the grounds that the allegations were for
municipal liability against the City of Las Cruces and the complaint failed to state a claim of
municipal liability. (Doc. 25 at 2–3). The Court also dismissed Plaintiff’s claims of illegal
search, seizure, and arrest without reasonable suspicion or probable cause for failure to state a
claim on which relief can be granted, but ruled that Plaintiff’s physical/sexual abuse claims
during Plaintiff’s initial search would be permitted to go forward against Defendant Cody
Austin. (Doc. 25 at 3). Last, the Court dismissed Plaintiff’s claim for reversal of his conviction,
without prejudice, because Plaintiff’s only avenue for relief from his conviction is under the
habeas corpus statutes. (Doc. 25 at 3–4).
Plaintiff filed a Notice of Appeal, appealing the Court’s June 17, 2015 Memorandum
Opinion and Order, on July 24, 2015. (Doc. 28). On July 27, 2015, the United States Court of
Appeals for the Tenth Circuit issued an Order to Show Cause as to why the appeal should not be
dismissed (1) because Plaintiff was seeking to appeal a non-final, interlocutory order or, in the
alternative (2) because, if the appeal was from a final order, the appeal was untimely in that it
was filed more than thirty days after entry of the Memorandum Opinion and Order. (Doc. 31).
The Tenth Circuit Court of Appeals concluded that Plaintiff had not submitted a sufficient
response to the Order to Show Cause and dismissed Plaintiff’s appeal on August 25, 2015 for
lack of prosecution. (Doc. 32-1).
Following dismissal of Plaintiff’s appeal, the Court ordered Defendant Austin to file a
report under Martinez v. Aaron, 570 F.2d 317, 318–19 (10th Cir. 1978). (Doc. 36). Defendant
filed the Martinez Report and a Motion for Summary Judgment based on qualified immunity on
December 18, 2015. (Docs. 37–39). Plaintiff filed his Response to the Motion for Summary
Judgment and Objections to the Martinez Report on February 29, 2016. (Docs. 45, 46). The
parties then filed several replies, supplements, and additional motions related to the Motion for
Summary Judgment and the Martinez Report. (Docs. 47–56). The Magistrate Judge also
directed Plaintiff to file a factual statement detailing the alleged physically and sexually abusive
conduct of Defendant Austin. (Doc. 55). Plaintiff did not file the factual statement, but did send
the Court a letter inquiring as to the status of the case. (Doc. 56).
On September 8, 2016, the Magistrate Judge made Proposed Findings and a
Recommended Disposition (“PFRD”).
The PFRD recommended that the
Defendant’s Motion for Summary Judgment based on qualified immunity be granted and that the
case be dismissed with prejudice. The PFRD concluded that there were no genuine disputes of
material fact and the Defendant was entitled to summary judgment as a matter of law, in part,
because of Plaintiff’s failure to submit the factual statement requested by the Court. (Doc. 57 at
1–2 and n.6). The PFRD also contained the following statement in boldface type:
THE PARTIES ARE FURTHER NOTIFIED THAT WITHIN 14 DAYS OF
SERVICE of a copy of these Proposed Findings and Recommended
Disposition they may file written objections with the Clerk of the District
Court pursuant to 28 U.S.C. § 636(b)(1). A party must file any objections
with the Clerk of the District Court within the fourteen-day period if that
party wants to have appellate review of the proposed findings and
recommended disposition. If no objections are filed, no appellate review will
(Doc. 57 at 10). The PFRD was mailed to Plaintiff at his address of record on September 8, 2016
by the Clerk of the Court as required by 28 U.S.C. § 636(b)(1)(C). Plaintiff did not file any
objections to the PFRD, nor did he seek any extension of time to file objections. On September
28, 2016, the Court entered its Order Adopting Magistrate Judge’s Proposed Findings and
Recommended Disposition (Doc. 58) and its Judgment dismissing the Complaint with prejudice.
Plaintiff filed his Notice of Appeal on October 13, 2016, appealing the Memorandum
Opinion and Order and Judgment entered September 28, 2016. (Doc. 62). Plaintiff’s Notice of
Appeal raises concerns about sending and receiving mail through the prison mail facilities. The
Notice also indicates the appeal is “based on points and authorities and Declaration of Facts” but
does not specifically identify any particular issue Plaintiff is raising on appeal. (Doc. 62).
Plaintiff submitted his Motion seeking leave to proceed in forma pauperis on appeal under 28
U.S.C. § 1915 on November 10, 2016. (Doc. 66). This Motion specifies the issues he intends to
raise on appeal as follows: “sexual misconduct and sexual abuse by Police Officer Cody Austin,
Appellants Fourth Amendment claims for illegal search and seizure, false arrest, and never
waived his right to appellate review.” (Doc. 66 at 1).
Plaintiff’s Prisoner’s Motion and Affidavit for Leave to Proceed on Appeal
Pursuant to 28 U.S.C. § 1915 and Fed. R. App. P. 24
In his Motion, Plaintiff seeks to proceed on appeal without prepayment of fees or costs
under the provisions of 28 U.S.C. § 1915 and Fed. R. App. P. 24. Section 1915 of Title 28
[A]ny court of the United States may authorize the commencement, prosecution
or defense of any suit, action or proceeding, civil or criminal, or appeal therein,
without prepayment of fees or security therefore, by a person who submits an
affidavit that includes a statement of all assets such prisoner possesses that the
person is unable to pay such fees or give security therefore. Such affidavit shall
state the nature of the action, defense or appeal and affiant’s belief that the
person is entitled to redress.
28 U.S.C. § 1915(a)(1). Rule 24 of the Federal Rules of Appellate Procedure similarly states:
[A]ny party to a district-court action who desires to appeal in forma pauperis must
file a motion in the district court. The party must attach an affidavit that:
(A) shows in the detail prescribed by Form 4 of the Appendix of Forms
the party’s inability to pay or to give security for fees and costs;
(B) claims an entitlement to redress; and
(C) states the issues that the party intends to present on appeal.
Fed. R. App. P. 24(a)(1). Plaintiff Castillo’s Motion complies with the formal requirements of
Rule 24 for requesting leave to proceed in forma pauperis.
In determining whether to permit a party to proceed in forma pauperis on appeal, the
Court must decide two questions: (1) whether the appeal is taken in good faith; and (2) whether
the appellant has shown a financial inability to pay or give security for fees and costs. See 28
U.S.C. § 1915(a)(1) and (3). The burden is on the party seeking in forma pauperis status to show
that he is raising reasoned and nonfrivolous issues on appeal and that he lacks the financial
resources to pay or give security for the fees and costs of appeal. DeBardeleben v. Quinlan, 937
F.2d 502, 505 (10th Cir. 1991).
A. Whether the Appeal is Taken in Good Faith
With respect to the first question, Section 1915(a)(3) states that “[a]n appeal may not be
taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith.” 28
U.S.C. § 1915(a)(3). For purposes of § 1915(a)(3), a good faith appeal is one that presents a
“reasoned, nonfrivolous argument on the law and facts in support of the issues raised on appeal.”
Caravalho v. Pugh, 177 F.3d 1177, 1179 (10th Cir. 1999) (internal quotations omitted); see also
Coppedge v. United States, 369 U.S. 438, 442–450 (1962). In determining good faith, the Court
should not decide the merits of the issues on appeal but, instead, should only reach the question
of whether the appellant has presented a reasoned and nonfrivolous argument. See Ragan v. Cox,
305 F.2d 58, 59–60 (10th Cir. 1962).
The Court liberally construes Plaintiff’s Motion as raising three issues on appeal: (1)
whether, on his allegations of sexual misconduct and sexual abuse by Police Officer Cody
Austin, Defendant Austin is entitled to qualified immunity; (2) whether his Fourth Amendment
claims for illegal search and seizure, or false arrest state a claim for relief; and (3) whether
Plaintiff “waived his right to appellate review.” (Doc. 66). With respect to the qualified
immunity issue, Plaintiff contends:
The police officer Samuel Cody Austin should not be granted qualified immunity
for the defendants request for summary judgment because he is responsible for his
actions and conduct. He deliberately and purposely grabbed my genitals and
groin area, fondling my penis after I told him that I was not giving him permission
to search me or my pockets. I assured him I did not have any weapons. He
grabbed my penis then laughed he grabbed my buttox also. He had no reason to
stop me at all, he called me by my name Christopher and told me I had a warrant.
I asked him how did he know I had a warrant without knowing what [sic] was. I
never showed him identification! The officer refused to answer me! I also did not
fit the description of a woman in a dress, high heels, long hair or wig, carrying a
large duffel bag! I was wearing white tenny [sic] shoes, light brown k[h]aki
pants, white short sleeve T-shirt and I was not carrying a large duffel bag. The
police never found those items and the district attorney didn’t have any video
evidence of me dressed in the description of a woman!
(Doc. 45 at 2). In the context of alleged Fourth Amendment violations, “[t]he primary concern is
whether a reasonable officer would have believed that probable cause existed to arrest the
defendant based on the ‘information possessed by the [arresting] offic[er].’” Olsen v. Layton
Hills Mall, 312 F.3d 1304, 1312 (10th Cir. 2002) (quoting Anderson v. Creighton, 483 U.S. 635,
When there are unresolved disputes of historical fact relevant to whether the
officer had probable cause and to what information he possessed—and thus to
whether he may properly claim qualified immunity, a court may not grant
summary judgment based on qualified immunity because the officer would not
have shown that no genuine dispute exists as to material fact.
Id. at 1312–13. Without deciding the merits of the issue, the Court finds that Plaintiff Castillo
presents a reasoned, non-frivolous argument that issues of fact preclude summary judgment on
the grounds of qualified immunity.
Plaintiff’s second issue relates to the dismissal of his Fourth Amendment search, seizure,
and arrest claims for failure to state a claim on which relief can be granted. The Court may
dismiss a prisoner’s civil rights complaint for failure to state a claim upon which relief may be
granted under Fed. R. Civ. P. 12(b)(6) and 28 U.S.C. § 1915(e)(2)(B). The court may dismiss a
complaint under rule 12(b)(6) for failure to state a claim if “it is ‘patently obvious’ that the
plaintiff could not prevail on the facts alleged.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
555 (2007); Hall v. Bellmon, 935 F.2d 1106, 1109 (10th Cir. 1991). A plaintiff must allege
“enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570.
“A police officer violates an arrestee’s clearly established Fourth Amendment right to be
free of unreasonable seizure if the officer makes a warrantless arrest without probable cause.”
Olsen, 312 F.3d at 1312 (“Probable cause exists if facts and circumstances within the arresting
officer’s knowledge and of which he or she has reasonably trustworthy information are sufficient
to lead a prudent person to believe that the arrestee has committed or is committing an offense.”).
Similarly, the Fourth Amendment prohibits unreasonable searches. “The reasonableness of a
search depends on the totality of the circumstances, including the nature and purpose of the
search and the extent to which the search intrudes upon reasonable privacy expectations.” Grady
v. North Carolina, 135 S. Ct. 1368, 1371 (2015). Plaintiff Castillo’s allegations against Officer
Austin, as set out above, present a reasoned, nonfrivolous argument in support of a Fourth
Amendment claim for relief.
Last, with respect to the third issue of waiver, the Tenth Circuit has “adopted a firm
waiver rule when a party fails to object to the findings and recommendations of the magistrate.”
Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991). “[F]ailure to make timely objection
to a magistrate’s findings or recommendations waives appellate review of both factual and legal
questions.” Id. The waiver rule does not apply when: “(1) a pro se litigant has not been
informed of the time period for objecting and the consequences of failing to object, or (2) when
the ‘interests of justice’ require review.” Morales–Fernandez v. Immigration & Naturalization
Serv., 418 F.3d 1116, 1119 (10th Cir. 2005).
The Tenth Circuit has recognized in the context of pro se prisoner cases that “[o]ur
decisions have not defined the ‘interests of justice’ exception with much specificity.” Wirsching
v. Colorado, 360 F.3d 1191, 1197 (10th Cir. 2004). “Likely this is because ‘interests of justice’
is a rather elusive concept.” Morales–Fernandez, 418 F.3d at 1119. The Court has, however,
enumerated several factors to be considered in determining whether to apply the ‘interests of
justice’ exception. “[A] pro se litigant’s effort to comply, the force and plausibility of the
explanation for his failure to comply, and the importance of the issues raised are all relevant
considerations in this regard.” Id. See also Wirsching, 360 F.3d at 1197–98; Theede v. United
States Dep’t of Labor, 172 F.3d 1262, 1268 (10th Cir. 1999).
The Proposed Findings and Recommended Disposition were mailed to Plaintiff at his
address of record on September 8, 2016 by the Clerk of the Court as required by 28 U.S.C. §
636(b)(1)(C). Castillo did not file any objections to the Proposed Findings and Recommended
Disposition, nor did he seek any extension of time to file objections. On September 28, 2016,
the Court entered its Order Adopting Magistrate Judge’s Proposed Findings and Recommended
Disposition (Doc. 58) and it’s Judgment dismissing the Complaint with prejudice. (Doc. 59).
Therefore, the firm waiver rule would apply to Plaintiff’s appeal unless the “interests of justice”
exception excuses Plaintiff’s failure to object.
Plaintiff claims there have been issues regarding the timely delivery and mailing of the
papers relating to this proceeding by correctional officials. Plaintiff states:
There is a serious problem with the Prison mail room Clerk. He does not like me
and is purposely refusing to mail out my legal mail! I don’t know why! This is
part of the reason why the case was dismissed. The stipulated statement the Judge
requested me to submit I mail to [sic] Court on August 1, 2016. The mail room
Clerk refused to mail it. When the Court notified me that they did not receive it I
filed an informal complaint with the Southern New Mexico Correctional Facility
in Las Cruces NM and also told staff what the mail room Clerk was doing! Please
allow me to appeal the dismissal of the case!
(Doc. 62). Therefore, Plaintiff contends, he should not be deemed to have waived the issues on
appeal. (Doc. 66 at 1). Again, without deciding the issue, the Court finds that Plaintiff makes a
reasoned, nonfrivolous argument for application of the “interests of justice” exception to the firm
waiver rule. The Court concludes that Plaintiff presents reasoned and nonfrivolous arguments on
the law and facts in support of all three issues he raises on appeal and concludes that the appeal
is taken in good faith for purposes of 28 U.S.C. § 1915.
B. Whether the Appellant Has a Financial Inability to Pay
The second question the Court must address in deciding whether to grant an application
to proceed in forma pauperis is the appellant’s financial inability to pay or give security for fees
or costs on appeal. An appellant’s motion must include an affidavit containing a statement “that
the person is unable to pay such fees or give security therefor.” 28 U.S.C. § 1915(a)(1). Plaintiff
Castillo’s Motion includes a statement made under penalty of perjury that he is “indigent and
ha[s] no money to pay the cost for filing fees or any other court costs.” (Doc. 66 at 1–2).
Plaintiff’s statement meets the requirement of § 1915(a)(1).
In addition to the § 1915(a)(1) statement of indigency, Section 1915 also provides:
A prisoner seeking to bring a civil action or appeal a judgment in a civil action or
proceeding without prepayment of fees or security therefor, in addition to filing
the affidavit filed under paragraph (1), shall submit a certified copy of the trust
fund account statement (or institutional equivalent) for the prisoner for the 6month period immediately preceding the filing of the complaint or notice of
appeal . . .
28 U.S.C. § 1915(a)(2).
(1) [I]f a prisoner brings a civil action or files an appeal in forma pauperis, the
prisoner shall be required to pay the full amount of the filing fee. The court
shall assess and, when funds exist, collect, as a partial payment of any court
fees required by law, an initial partial filing fee of 20 percent of the greater
(A) the average monthly deposits to the prisoner’s account; or
(B) the average monthly balance in the prisoner’s account for the 6-month
period immediately preceding the filing of the complaint or notice of
(2) After payment of the initial partial filing fee, the prisoner shall be required to
make monthly payments of 20 percent of the preceding month’s income
credited to the prisoner’s account. The agency having custody of the prisoner
shall forward payments from the prisoner’s account to the clerk of the court
each time the amount in the account exceeds $10 until the filing fees are paid.
28 U.S.C. § 1915(b).
Plaintiff Castillo submitted his 6-month inmate account statement with his Motion as
required by § 1915(a)(2). Analyzing the account statement under § 1915(b)(1), there have been
no deposits to Plaintiff’s account in the 6-month period preceding the filing of his notice of
appeal, and at all times, the account balance has been $0.00. (Doc. 66 at 3–10). Plaintiff has
demonstrated a financial inability to pay or give security for fees or costs on appeal. Therefore,
the Court will grant Plaintiff’s Motion.
Motions for Extension of Time to File the Notice of Appeal (Docs. 60, 61)
Also pending before the Court are two motions for extension of time to file a notice of
appeal. In his first Motion for Extension of Time to File the Notice of Appeal (Doc. 60),
Plaintiff Castillo requests an extension of time to appeal the Court’s September 28, 2016
Judgment. Plaintiff’s Motion for Extension of Time was filed on October 13, 2016. On that
same date, Plaintiff filed a Notice of Appeal, appealing the Court’s September 28, 2016
Judgment. (Doc. 62).
Under Rule 4 of the Federal Rules of Appellate Procedure, “the notice of appeal required
by Rule 3 must be filed with the district clerk within 30 days after entry of the judgment or order
appealed from.” Fed. R. App. P. 4(a)(1)(A). Plaintiff filed his first Notice of Appeal within
thirty days after entry of the Judgment and no extension of time is necessary. The Court will
deny Plaintiff Castillo’s Motion for Extension of Time to File the Notice of Appeal (Doc. 60) as
unnecessary and moot.
In his second Motion for Extension of Time (Doc. 61), Castillo appears to seek an
extension of time to appeal from the Court’s Memorandum Opinion and Order of Partial
Dismissal entered June 17, 2015 (Doc. 25). Castillo states “[t]he notice of appeal should have
been filed by July 17, 2015.” (Doc. 61). Castillo did file an untimely notice of appeal on July
24, 2015, appealing the Court’s June 17, 2015 Memorandum Opinion and Order. (Doc. 28).
The Circuit Court dismissed that appeal on August 25, 2015 based on Plaintiff’s failure to
sufficiently respond to the Court’s July 27, 2015 Order to Show Cause. (Doc. 32-1).
The Court’s June 17, 2015 Memorandum Opinion and Order was an interlocutory, nonappealable order. As such, Plaintiff’s appeal was premature. The Court has now entered a final
Judgment, allowing Plaintiff to appeal any claims of error arising out of the Court’s June 17,
2015 Memorandum Opinion and Order. Grubb v. Fed. Deposit Ins. Corp., 868 F.2d 1151, 1154
n.4 (10th Cir. 1989) (appeal from a final judgment “allows the appellant to challenge all prior
nonfinal orders and all rulings that produced the judgment.”). Therefore, Plaintiff’s timely
Notice of Appeal of the Court’s final Judgment encompasses any issues Plaintiff may seek to
raise and no extension of time or separate notice of appeal is necessary. The Court will therefore
deny Plaintiff’s second Motion for Extension of Time (Doc. 61) as unnecessary and moot.
IT IS ORDERED:
(1) Plaintiff Christopher James Castillo’s Prisoner’s Motion and Affidavit for Leave to
Proceed on Appeal Pursuant to 28 U.S.C. § 1915 and Fed. R. App. P. 24 (Doc. 66) is
(2) Plaintiff’s first Motion for Extension of Time to File the Notice of Appeal (Doc. 60)
second Motion for Extension of Time (Doc. 61) are DENIED as unnecessary and moot.
UNITED STATES DISTRICT JUDGE
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