Hernandez v. City of Albuquerque et al

Filing 120

MEMORANDUM OPINION AND ORDER by District Judge Kenneth J. Gonzales granting, in part, 73 Defendants City of Albuquerque, Galvan and Markwick's Motion for Summary Judgment. (tah)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
ALFONSO HERNANDEZ,
Plaintiff,
vs.

Civ. No. 14-964 KG/SCY

CITY OF ALBUQUERQUE, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER GRANTING, IN PART, DEFENDANT [SIC]
CITY OF ALBUQUERQUE, GALVAN AND MARKWICK’S
MOTION FOR SUMMARY JUDGMENT
This matter is before the Court on Defendant [sic] City of Albuquerque (City), Galvan
and Markwick’s Motion for Summary Judgment, filed October 21, 2015. (Doc. 73). Defendants
filed a Notice of Completion of Briefing on November 10, 2015, noting that Plaintiff did not file
a response or request an extension of time to respond. (Doc. 83).1 Having considered the
Motion for Summary Judgment, the Dismissal and the record,2 the Court denies, in part, and
grants, in part, the Motion for Summary Judgment. Defendants Daniel Galvan and Amy
Markwick and all claims against them have been dismissed. Therefore, this motion is denied as

1

On November 17, 2015, Plaintiff filed a Notice of Dismissal (Dismissal), dismissing all claims
against Defendants Galvan and Markwick, with prejudice. (Doc. 92). In the Dismissal, Plaintiff
indicated that on November 10, 2015, presumably after the Notice of Completion of Briefing
was filed, the City’s counsel granted his request for an extension of time to respond to the
Motion for Summary Judgment. (Doc. 92) at 3. Rather than responding, Plaintiff explained in
the Dismissal that he deliberately chose to dismiss Defendants Galvan and Markwick instead.
Id.
2

On March 16, 2016, 127 days after Defendants filed the Notice of Completion of Briefing,
Plaintiff filed a Motion to Strike Argument Advanced by Inappropriate Party or, in the
Alternative, to Direct the Appropriate Defendants to Join the Motion and for Related Relief
(Motion to Strike). (Doc. 103). The Court denied Plaintiff’s Motion to Strike for reasons set
forth a corresponding opinion.

moot as it pertains to those claims. The motion is granted in favor of Defendants as to the
remaining claims.
I.

Background
This litigation arises out of an altercation between Plaintiff and Albuquerque Transit

Department transit security officers (TSOs) Defendants Andy Fitzgerald and Akeem Powdrell
on August 30, 2012. (Doc. 1-2). Plaintiff claims he approached the TSOs as they were
detaining a homeless man (later identified as Manuel Bustamante). Id. at ¶ 26. Plaintiff was
recording his contact with the TSOs both with an audio-recording device in his pocket and the
video-recording function of his cell phone. Id. at ¶¶ 27, 29. Plaintiff alleges that Defendant
Fitzgerald attempted to grab Plaintiff’s cell phone while “attacking” him and ultimately tackled
Plaintiff. Id. at ¶¶ 43-44, 46. Plaintiff states that both TSOs then handcuffed him, ordered him
to the ground, and yelled at him to roll over while they twisted his left arm behind his back. Id.
at ¶¶ 50, 56-57, 63.
Plaintiff originally filed this case on August 14, 2014, in the Second Judicial District
Court, County of Bernalillo, New Mexico. (Doc. 1-2). Defendants removed the case to this
Court on October 24, 2014. (Doc. 1). Plaintiff’s Complaint for Violations of the Tort Claims
Act and Deprivation of Civil Rights (Complaint) alleges ten counts. (Doc. 1-2). In Count I,
Plaintiff asserts claims against the City for negligent hiring, training, and supervision resulting
in violations of the New Mexico Tort Claims Act (NMTCA), NMSA 1978, § 41-4-1 et seq.
(Repl. Pamp. 1996) for the acts involving Defendants Fitzgerald and Powdrell. Id. at 13-14.
Plaintiff raises the same claims against the City for the acts involving Defendants Galvan and
Markwick in Count II. Id. at 14-16. In Counts III, IV and V, Plaintiff makes additional claims
against the City and Defendants Fitzgerald and Powdrell under the NMTCA for assault, battery,

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and false arrest/false imprisonment. Id. at 16-18. In Count VI, Plaintiff raises additional claims
against the City and Defendants Galvan and Markwick for false arrest/false imprisonment under
the NMTCA. Id. at 18-19. In Counts VII and VIII, Plaintiff alleges 42 U.S.C. § 1983 Fourth
Amendment claims against Defendants Fitzgerald and Powdrell for excessive force and false
arrest/imprisonment. Id. at 20-23. In Count X, Plaintiff asserts Monell claims of municipal
liability against the City. Id. at 24-26.
On November 17, 2015, Plaintiff voluntarily dismissed Defendants Galvan and
Markwick and the claims against them in their entirety (Counts II, VI, and IX). (Doc. 92) at 12. Plaintiff also dismissed the Monell claim against the City involving Defendants Galvan and
Markwick (Count X). Id. at 2. Plaintiff did not dismiss the Monell claim against the City based
on the alleged actions of remaining Defendants Fitzgerald and Powdrell. Id. The City moves in
this Motion for Summary Judgment to dismiss that Monell claim as well as the NMTCA claims
brought against it based on the alleged actions of Defendants Fitzgerald and Powdrell.
II.

Standard of Review
Summary judgment is appropriate if there is no genuine dispute as to a material fact and

the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). When applying this
standard, the Court examines the factual record and reasonable inferences therefrom in the light
most favorable to the non-movant. Deepwater Invs. Ltd. v. Jackson Hole Ski Corp., 938 F.2d
1105, 1110 (10th Cir. 1991). The movant bears the initial burden of showing the absence of a
genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Only then
does the burden shift to the non-movant to come forward with evidence showing that there is a
genuine issue of material fact. Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th
Cir. 1991). A fact is “material” if, under the governing law, it could have an effect on the

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outcome of the lawsuit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Hardy v.
S.F. Phosphates Ltd. Co., 185 F.3d 1076, 1079 (10th Cir. 1999). An issue of material fact is
genuine if a reasonable jury could return a verdict for the non-movant. Kaul v. Stephan, 83 F.3d
1208, 1212 (10th Cir. 1996) (citation omitted). The non-movant may not avoid summary
judgment by resting upon the mere allegations or denials of its pleadings. Bacchus Indus., Inc.,
939 F.2d at 891.
III.

Discussion
1. Plaintiff’s Monell Claim (Count X) Based On Defendants Fitzgerald and
Powdrell’s Actions
In Monell, the United States Supreme Court held that the government as an entity can be

held responsible under Section 1983 “when execution of a government’s policy or custom …
inflicts the injury….” Monell v. Dept. of Soc. Serv. of City of N.Y., 436 U.S. 658, 694 (1978).
“A plaintiff suing a [municipality] under section 1983 for the acts of one of its [employees] must
demonstrate two elements: (1) a municipal employee committed a constitutional violation, and
(2) a municipal policy or custom was the moving force behind the constitutional deprivation.”
Myers v. Okla. Cty. Bd. of Cty. Comm’rs, 151 F.3d 1313, 1318 (10th Cir. 1998) (citation
omitted).
First, the City argues that Plaintiff cannot prevail on a Section 1983 Monell claim
because he has not proven, as a matter of law, that a municipal employee committed a
constitutional violation. (Doc. 73) at 17. “It is well established … that a municipality cannot be
held liable under section 1983 for the acts of an employee if … the municipal employee
committed no constitutional violation.” Myers, 151 F.3d at 1316; see, e.g., City of Los Angeles v.
Heller, 475 U.S. 796, 799 (1986) (per curiam); Webber v. Mefford, 43 F.3d 1340, 1344-45 (10th
Cir. 1994); Watson v. City of Kansas City, 857 F.2d 690, 697 (10th Cir. 1988). The City then
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states that even if Plaintiff could establish that Defendants Fitzgerald and Powdrell committed a
constitutional infraction, the Monell claim would still fail where Plaintiff cannot show that a
municipal policy or custom was “the moving force” behind the alleged constitutional violation.
Id. at 18. To succeed under Monell, Plaintiff must demonstrate both the existence of an improper
policy and a causal link to the constitutional deprivation. Id. The City claims Plaintiff has
proven neither.
In his Complaint, Plaintiff asserts that the City “is liable…for its own bad acts as well as
for the acts of its employees and agents under the doctrine of respondeat superior and/or
agency.” (Doc. 1-2) at ¶ 6. Plaintiff claims the City failed to “adequately train and/or supervise
its employees” or to maintain proper “policies, and/or practices.” Id. at ¶ 12. Plaintiff alleges
that the City’s “policy and practice of inadequate training” and “culture of ignoring wrongful,
unreasonable and/or excessive use of force by its [TSOs]…was a moving force in causing”
Plaintiff’s asserted claims and damages. Id. at ¶ 187.
According to Plaintiff, the City maintains
an official policy of a) permitting its [TSOs] to use excessive and unlawful force
against citizens and b) permitting its [TSOs] to illegally arrest and detain people
unlawfully or, in the alternative, maintains a de facto policy of ignoring such
actions by Defendants Andy Fitzgerald and Akeem Powdrell and other City of
Albuquerque [TSOs].
Id. at ¶ 183. Plaintiff further claims that the City’s knowledge of the TSOs’ actions can be
“inferred by the obviousness of the facts” and that the TSOs’ actions were not secret. Id. at ¶¶
184-85. Plaintiff states that it would be impossible for Defendants Fitzgerald and Powdrell to
have acted without the City’s knowledge and permission. Id. at ¶ 186. Plaintiff argues that the
City “was aware of a widespread practice” of unconstitutional acts by TSOs and that the City had
a “policy and practice of failing to adequately monitor, supervise, discipline and otherwise

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control” the TSOs. Id. at ¶¶ 188-89. Because the City was “aware of the substantial risk” of
allowing the TSOs’ unconstitutional actions and “chose not to take the appropriate steps to
protect citizens,” Plaintiff claims that the City was “deliberately indifferent as to the obvious
consequences” of the TSOs’ actions. Id. at ¶¶ 190-94.
It is well-settled that a municipality has no liability under Section 1983 on a respondeat
superior theory. Monell v. Dep’t of Soc. Serv. Of City of N.Y., 436 U.S. 658, 691 (1978). Even
if Defendants Fitzgerald and Powdrell did, in fact, commit a constitutional violation, the City
cannot be held liable under Section1983 solely because it employs tortfeasors. Id.; see also Bd.
of Cty. Comm’rs of Bryan Cty., Okla. v. Brown, 520 U.S. 397, 403 (1997) (plaintiff seeking to
impose liability on a municipality under Section 1983 must identify municipal “policy” or
“custom” that caused injury); Myers v. Okla. Cty. Bd. of Cty. Comm’rs, 151 F.3d 1313, 1316
(10th Cir. 1998) (municipal policy or custom must be moving force behind employee’s
constitutional violation). To sue the City for the acts of the TSOs under Section 1983, Plaintiff
must prove both that Defendants Fitzgerald and Powdrell committed a constitutional violation
and that the City had a specific policy or custom that precipitated their specific behavior. Myers,
151 F.3d 1313 at 1316 (emphasis added). “[I]t is not enough for a § 1983 plaintiff merely to
identify conduct properly attributable to the municipality. The plaintiff must also demonstrate
that, through its deliberate conduct, the municipality was the moving force behind the injury
alleged.” Comm’rs of Bryan Cty., 520 U.S. 397 at 404 (internal citation and quotation omitted)
(emphasis in original).
A municipality may face constitutional liability for inadequate police training only in
cases where the failure to train is the result of the municipality’s “deliberate” or “conscious”
choice. Myers, 151 F.3d 1313 at 1318 (citing City of Canton v. Harris, 489 U.S. 378, 389 (1989)

6

(explaining for liability to attach to municipality, failure to train must amount to “deliberate
indifference” to rights of persons with whom police come into contact)); see also Houston v.
Reich, 932 F.2d 883, 888 (10th Cir. 1991) (finding municipality liable for “essentially a complete
failure to train, or training is so reckless or grossly negligent that future misconduct is almost
inevitable”).
The Tenth Circuit utilizes a four-part test to determine whether a municipality is liable for
inadequate training on use of force. Myers, 151 F.3d 1313 at 1318.
[A] plaintiff must show (1) the officers exceeded constitutional limitations on the
use of force; (2) the use of force arose under circumstances that constitute a usual
and recurring situation with which police officers must deal; (3) the inadequate
training demonstrates a deliberate indifference on the part of the city towards
persons with whom the police officers come into contact, and (4) there is a direct
causal link between the constitutional deprivation and the inadequate training.
Id. Even assuming arguendo that Plaintiff could prove the first element, that Defendants
Fitzgerald and Powdrell committed a constitutional violation, Plaintiff has not produced
sufficient evidence to satisfy any other part of the Myers test necessary to withstand a motion for
summary judgment.
Viewing the factual record and drawing reasonable inferences most favorable to Plaintiff,
there is nothing in the record to suggest that the use of force alleged in this case “arose under
circumstances that constitute a usual and recurring situation” with which the TSOs dealt.
Although Plaintiff alleges in his Complaint that TSOs were “routinely assaulting, battering, and
otherwise mistreating metrocampers,”3 there is nothing in the record, particularly the TSOs’ job
description, to support Plaintiff’s assertion. (Doc. 1-2) at ¶ 21. A plaintiff’s self-serving
conclusory allegations, without specific supporting facts, lacks probative value. Thomas v. Int’l

3

“Metrocamper” is a term used by Plaintiff to describe “homeless people and people suffering
hardships.”
7

Bus. Machines, 48 F.3d 478, 485 (10th Cir. 1995). Plaintiff admits to routinely interjecting
himself into encounters between TSOs and “metrocampers” to record such interactions. (Doc. 12) at ¶ 22. However, there is no indication that the specific circumstances of this case and use of
force on Plaintiff or other persons recording TSO actions were otherwise “usual and recurring.”
Id. Additionally, it would be unreasonable to permit Plaintiff to create “usual and recurring”
events and then treat those events as sufficient to satisfy the second element of the Tenth
Circuit’s test.
Perhaps most significantly, Plaintiff has not identified any particular policy or custom, or
described any specific conduct by the City that would give rise to municipal liability. Bd. of Cty.
Comm’rs of Bryan Cty., Okla. v. Brown, 520 U.S. 397, 403 (1997). Plaintiff offers no evidence
to support his claim that the City failed to adequately train or supervise the TSOs. Plaintiff’s
allegations, absent any corroborating evidence, are insufficient to create a reasonable inference
that the City’s policy, or lack thereof, showed deliberate indifference toward the people with
whom TSOs regularly came into contact.
Likewise, there is nothing in the record to suggest any causal link between the alleged
constitutional violation and Plaintiff’s claims of inadequate training or improper policies and
practices. Absent corroborating evidence, Plaintiff’s unsupported arguments are insufficient.
Pasternak v. Lear Petroleum Exploration, Inc., 790 F.2d 828, 834 (10th Cir. 1986) (“Conclusory
allegations, general denials, or mere argument of an opposing party’s case cannot be utilized to
avoid summary judgment.”). Here, summary judgment in favor of the City on the Monell claim
as a matter of law is appropriate because there is no genuine issue of material fact.
2. Plaintiff’s NMTCA Respondeat Superior Claims Against the City Based On The
Actions Of Defendants Fitzgerald and Powdrell (Counts I, III, IV and V)
Likewise, Plaintiff’s NMTCA claims against the City fail as a matter of law. Because
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“[a]n entity or agency can only act through its employees,” the City only faces liability under the
NMTCA if Defendants Fitzgerald and Powdrell are liable. See Abalos v. Bernalillo Cty. Dist.
Attorney’s Office et al., 1987-NMCA-026, ¶ 18, 734 P.2d 794.
An action against a particular entity under the [NMTCA] requires two things:
(1) a negligent public employee who meets one of the waiver exceptions under
Sections 41-4-5 to -12; and (2) an entity that has immediate supervisory
responsibilities over the employee. If a public employee meets an exception to
immunity, then the particular entity that supervises the employee can be named as
a defendant in an action under the [NMTCA].
Silva v. State, 1987-NMSC-107, ¶ 15, 745 P.2d 380 (internal citation and quotation omitted).
Defendants Fitzgerald and Powdrell are immune from suit under the NMTCA because they do
not fit any statutory waiver. A governmental entity’s immunity is waived only to the extent that
it is liable under principles of respondeat superior. NMSA 1978, § 41-4-12 (Repl. Pamp. 1996);
see Silva, 1987-NMSC-107, ¶ 15. Therefore, where Defendants Fitzgerald and Powdrell are
immune from liability, the City is also immune from liability. Id.
The NMTCA provides the exclusive remedy for a state tort action brought against a
governmental entity or public employee. NMSA 1978, § 41-4-17 (Repl. Pamp. 1996). The
NMTCA preserves governmental immunity for governmental entities and public employees
acting within the scope of their duties, unless immunity has been specifically waived. Id. at §
41-4-4. The NMTCA does not provide a general waiver of immunity for intentional torts with
regard to public employees. Id. at § 41-4-1 et seq.
To succeed in his claims against Defendants under the NMTCA, Plaintiff must prove that
immunity from tort liability has been waived pursuant to one of the enumerated classes of
activity in Sections 41-4-5 through 41-4-12 of the NMTCA. One such enumerated class of
activity pertains to law enforcement officers. Id. at § 41-4-12. The City denies that Defendants

9

Fitzgerald and Powdrell fit the definition of law enforcement officers under the NMTCA and
case law, and argue that Plaintiff’s claims, therefore, fail. (Doc. 73) at 7-8.
Plaintiff declined to file a timely response to the City’s Motion for Summary Judgment,
but raised issues of waiver in his Motion to Strike (Doc. 103) filed several months later.4
Specifically, Plaintiff claims that immunity has been waived in this case based on Section 41-412 of the NMTCA which waives immunity for “law enforcement officers while acting within the
scope of their duties.” Id. at § 41-4-12. Plaintiff argues that Defendants Fitzgerald and Powdrell
fit the statutory definition of law enforcement officers. (Doc. 103) at 10. As support for his
position, Plaintiff alleges that Defendants Fitzgerald and Powdrell spend “the majority of their
time working to maintain public order” on behalf of the City, carry weapons (although not guns),
and are empowered to make citizen’s arrests. (Doc. 103) at 9-10. According to Plaintiff, “a
badge-wearing, City-employed, officer who regularly retains citizens and is specifically
employed to maintain order is clearly a law enforcement officers for the purposes of the
[NMTCA].” Id. at 11.
The NMTCA defines a law enforcement officer as
a full-time salaried public employee of a governmental entity, or a certified parttime salaried police officer employed by a governmental entity, whose principal
duties under law are to hold in custody any person accused of a criminal offense,
to maintain public order or to make arrests for crimes, or members of the national
guard when called to active duty by the governor.

4

The Court’s exercise of its decision to evaluate summary judgment on the merits despite
procedural error here is in keeping with the overarching purpose of the Federal Rules of Civil
Procedure that procedure should not predetermine the outcome on the merits whenever possible.
FED. R. CIV. P. 1 (“[These rules] should be construed, administered, and employed by the court
and the parties to secure the just, speedy, and inexpensive determination of every action and
proceeding.”). This opinion only addresses Plaintiff’s arguments related to the issue of waiver of
NMTCA liability. Plaintiff’s other arguments about the City’s standing to seek summary
judgment and the possibility that Defendants Fitzgerald and Powdrell could litigate waiver again
are addressed in a separate opinion specifically related to Plaintiff’s Motion to Strike (Doc. 103).
10

Id. at § 41-4-3(D). The statutory waiver of immunity for “law enforcement officers” requires
that the defendant be a law enforcement officer as the statute defines the phrase. Lymon v.
Aramark Corp., 728 F.Supp.2d 1222, 1255 (D.N.M. 2010) (finding plaintiff’s claims outside
scope of any applicable waiver). “‘[A]kin’ to a law enforcement officer is, as a matter of law,
insufficient to waive sovereign immunity under § 41–4–12 NMSA 1978.” Johnson ex rel. Estate
of Cano v. Holmes, 377 F.Supp.2d 1069, 1083 (D.N.M. 2004) (rejecting plaintiff’s argument that
CYFD employees akin to law enforcement officers under the NMTCA).
New Mexico courts strictly construe this definition. See e.g.; Leyba v. City of Santa Fe,
198 F.Supp.3d 1254, 1259 (D.N.M. 2016) (holding emergency service dispatcher not law
enforcement officer under NMTCA); Tate v. Fish, 347 F.Supp.2d 1049, 1060 (D.N.M. 2004)
(holding animal control officer not law enforcement officer under NMTCA); Montes v. Gallegos,
812 F.Supp. 1165, 1172 (D.N.M. 1992) (holding mayor not law enforcement officer under
NMTCA, notwithstanding statutory authority and obligation to exercise law enforcement
functions); Dunn v. McFeeley, 1999-NMCA-084, ¶ 24, 984 P.2d 760 (holding OMI Medical
Investigator and crime laboratory technician not law enforcement officers under NMTCA);
Coyazo v. State, 1995-NMCA-056, 897 P.2d 234 (holding District Attorney and staff not law
enforcement officers under NMTCA); Callaway v. N.M. Dep’t of Corrections, 1994-NMCA049, ¶ 12, 875 P.2d 393 (holding correctional officers at penitentiary not law enforcement
officers under NMTCA, notwithstanding statutory power to make arrests); Dunn v. State ex rel.
Taxation and Revenue Dep’t, 1993-NMCA-059, ¶ 11, 859 P.2d 469 (holding Director of Motor
Vehicle Division not law enforcement officer under NMTCA, notwithstanding statutory power
to make arrests); Vigil v. Martinez, 1992-NMCA-033, ¶ 20, 832 P.2d 405 (holding probation and
parole officers not law enforcement officers under NMTCA); Anchondo v. Corrections Dep’t,

11

1983-NMSC-051, ¶ 13, 666 P.2d 1255 (holding Secretary of Corrections and Warden of state
penitentiary not law enforcement officers NMTCA).
“The statutory requirement that the defendants be law enforcement officers does not
focus on the defendants’ specific acts at the time of their alleged negligence. Instead it simply
requires that the defendants’ principal duties, those duties to which they devote a majority of
their time, be of a law enforcement nature.” Weinstein v. City of Santa Fe ex rel. Santa Fe
Police Dep’t, 1996-NMSC-021, ¶ 12, 916 P.2d 1313 (citing Anchondo, 1983-NMSC-051, ¶ 10);
see also Rayos v. State ex rel. N.M. Dep’t of Corr. et al., 2014-NMCA-103, ¶ 8, 336 P.3d 428.
New Mexico cases consistently illustrate that, “to fall within the ‘maintaining public order’
category, a public employee’s principal duties must be duties traditionally performed by law
enforcement officers that directly impact public order.” Leyba v. City of Santa Fe, 198
F.Supp.3d 1254, 1259-60 (D.N.M. 2016) (“In interpreting the [NMTCA], [New Mexico’s]
appellate courts have repeatedly found that a connection to law enforcement activity, even being
a member of the law enforcement team, is insufficient by itself to make one a law enforcement
officer: the person's duties must directly impact public order.”). The courts agree that in cases
where a defendant’s “primary job duties do not encompass the arrest and detention of accused
persons, [New Mexico] courts have generally exempted the positions from inclusion in the law
enforcement officer exception” of the NMTCA. Limacher v. Spivey, 2008-NMCA-163, ¶ 23,
198 P.3d 370 (granting summary judgment to water resource specialist on this issue and
reiterating “that for an employee to fall within the exception for maintaining public order, that
person’s duties must be traditional law enforcement duties that directly impact public order”).
Plaintiff repeatedly points out that Defendants Fitzgerald and Powdrell wore uniforms
and carried badges. (Doc. 103) at 9-11. However, these facts are irrelevant as Plaintiff concedes

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that “[t]here is no requirement in the [NMTCA’s] definition [of law enforcement] that the public
employee be a ‘sworn’ officer, or even that a law enforcement officer wear a uniform, or a carry
a badge.” Id. at 10. Plaintiff also claims that Defendants Fitzgerald and Powdrell fit the
NMTCA’s definition of law enforcement because they were “specifically employed to maintain
order.” Id. at 11. However, Plaintiff does not offer any evidence or facts to support this
allegation. After a careful review of the record, and for the reasons explained below, this Court
concludes that Defendants Fitzgerald and Powdrell are not law enforcement officers within the
meaning of the NMTCA.
The Court considers the job description for TSOs to determine whether Defendants
Fitzgerald and Powdrell’s primary duties are traditional law enforcement duties sufficient to
satisfy the NMTCA’s definition. See Rayos, 2014-NMCA-103, ¶ 8 (stating courts may consider
departmental job descriptions, affidavits, statutes or regulations – among other items – in
determining duties of public employees). The inquiry is whether the principal duties of TSOs are
of a law enforcement nature, i.e. holding people accused of a criminal offense in custody,
maintaining public order or making arrests for crimes. § 41-4-3(D). Defendants Fitzgerald’s and
Powdrell’s specific actions at the time of incident are not the focus, but rather the duties to which
they devoted the majority of their time. Weinstein, 1996-NMSC-021, ¶ 12.
The City’s job summary for TSOs states that they “[p]rovide twenty four hour security
services for assigned City facilities and property, including vehicles and equipment; protect
facilities from unlawful intrusion and criminal acts and ensure public safety.” (Doc. 49-2) at 4.
TSOs do not carry guns, they have no authority to arrest or provide medical attention, and they
are not licensed by the State of New Mexico as security officers. (Doc. 49-2) at ¶¶ 5-9. They are
not involved with the pre-indictment and post-judgment phases of the criminal process and they

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do not handle the custody of criminal subjects, arrestees or convicted criminals. Id. at ¶¶ 10-11.
These undisputed facts support the City’s contention that TSOs are not law enforcement officers
as defined by the NMTCA.
Plaintiff, however, urges the Court to consider Cobos v. Dona Ana Cty. Housing Auth., a
case involving the building waiver exception under the NMTCA where the New Mexico
Supreme Court focused on the scope of duties, not the property ownership, to determine if the
waiver applied. Id. at 9, citing 1998-NMSC-049, ¶ 6, 970 P.2d 1143 (applying NMTCA’s
building waiver based on public employees’ duties rather than legal status of real property’s
title). This case is immaterial because courts already consider defendants’ principle duties to
determine whether they meet the definition of law enforcement under the NMTCA waiver and
the large body of related case law.
Plaintiff next cites Methola v. Eddy Cty., 1980-NMSC-145, 622 P.2d 234, for the
proposition that TSOs should be considered law enforcement officers because the court in that
case determined that jailers met the law enforcement officer definition for waiver under the
NMTCA. (Doc. 103) at 11. Methola does not apply here; Methola involved sheriffs, deputies
and county jailers, and the court in that case concluded that their principal duties included both
maintaining public order and holding accused persons in custody. Methola, 1980-NMSC-145, ¶
17 (emphasis added). By contrast, Defendants Fitzgerald’s and Powdrell’s principal duties do
not include holding accused persons. (Doc. 49-2) at 4.
Likewise, Plaintiff refers to Abalos v. Bernalillo Cty. Dist. Atty’s Office, 1987-NMCA026, ¶29, 734 P.2d 794, where the court held that a Detention Center director’s duties were
“principally to hold in custody persons accused of a criminal office” and, therefore, fell within
the law enforcement definition of the NMTCA. (Doc. 103) at 11. Again, Defendants Fitzgerald

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and Powdrell’s principal duties do not include holding persons accused of a crime. (Doc. 49-2)
at 4.
Even if the Court determined that Defendants Fitzgerald and Powdrell were holding a
suspect in custody at the time of Plaintiff’s alleged constitutional violation, which it declines to
do, the test does not focus on the defendants’ specific acts at the time of their alleged tortious
actions. Weinstein, 1996-NMSC-021, ¶ 12. Rather, the critical inquiry involves the defendants’
principal duties to which they devote a majority of their time. Id.
As with Plaintiff’s argument regarding jailers, New Mexico courts here held that
probation and parole officers do not qualify as law enforcement officers, rejecting arguments that
that they have overlapping training, share policies and procedures that deal extensively with
arrest powers, self-identify as peace officers and are authorized to carry firearms in the field.
Rayos, 2014-NMCA-103, ¶ 20; Vigil v. Martinez, 1992-NMCA-033, 832 P.2d 405 (probation
and parole officers not “law enforcement officers” for the purposes of the NMTCA); id. at ¶ 21.
Plaintiff also states that the argument that school security officers might be considered
law enforcement officers under the NMTCA was sufficient to survive summary judgment and so
should his similar argument regarding TSOs. (Doc. 103) at 12 (citing Butler ex rel. Butler v. Rio
Rancho Pub. Sch. Bd. of Educ., 245 F.Supp.2d 1188 (D.N.M. 2002), rev’d on other grounds, 341
F.3d 1197 (10th Cir. 2003)). However, the Butler court stated it could not make a determination
whether the defendants were law enforcement officers based on the factual allegations before the
court. Butler, 245 F.Supp.2d at 1202. By contrast, there are sufficient facts here to establish that
Defendants Fitzgerald and Powdrell do not meet the definition of law enforcement officers as a
matter of law.
Finally, Plaintiff alleges that if an animal control officer could be a law enforcement

15

officer under the NMTCA, TSOs should also fit the definition. (Doc. 103) at 12 (citing Baptiste
v. City of Las Cruces, 1993-NMCA-017, 848 P.2d 1105). Again, the Baptiste court could not
make a determination whether the defendant met the law enforcement waiver under the NMTCA
based on a lack of facts in the record. Baptiste, 1993-NMCA-017, ¶ 10. That is not true in the
present case. Moreover, animal control officers have been held to not fit within the meaning of
law enforcement officer under the NMTCA where he did not maintain public order for the
majority of his time. Tate, 347 F.Supp.2d at 1060.
Aside from Plaintiff’s unsupported factual assertions, there is nothing in the record to
establish that Defendants Fitzgerald and Powdrell’s “principal duties” match those of a law
enforcement officer as defined by the NMTCA and extensive case law. In light of existing
authority on this issue, it is apparent that New Mexico courts have intentionally maintained a
narrow and precise definition of law enforcement officer under the NMTCA. After examining
the factual record and making all reasonable inferences in favor of Plaintiff, a reasonable jury
could not find that Defendants Fitzgerald and Powdrell fit the law enforcement exception.
IV.

Conclusion
In light of the forgoing, Defendants City of Albuquerque, Galvan and Markwick’s

Motion for Summary Judgment is granted, in part, and denied, in part. As it relates to the claims
against dismissed parties Defendants Galvan and Markwick, Counts II, VI and IX have been
dismissed in their entirety. The Motion for Summary Judgment is moot as to those claims,
therefore, and is denied. As it relates to the claims against the City under the NMTCA in Counts
I, III, IV and V, and the Monell claim in Count X, the motion is granted in favor of the City.
IT IS ORDERED that
1.

Defendants City of Albuquerque, Galvan and Markwick’s Motion for Summary

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Judgment (Doc. 73) is moot and, therefore, denied as to Counts II, VI and IX. These claims, as
well as Defendants Galvan and Markwick, have been dismissed in their entirety;
2.

The Motion for Summary Judgment is granted in favor of the City as to Counts I

3.

The Motion for Summary Judgment is also granted in favor of the City as to

and X;

Counts III, IV and V;
4.

Summary judgment will be entered in favor of the City on Counts I, III, IV, V and

X of the Complaint;
5.

Counts I and X are dismissed in their entirety;

6.

Counts III, IV and V are dismissed as to Defendant City of Albuquerque; and

7.

Defendant City of Albuquerque is dismissed entirely from this matter and its

name will be stricken from the caption of this case.

_______________________________
UNITED STATES DISTRICT JUDGE

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