Douglass v. Target Corporation et al

Filing 55

MEMORANDUM OPINION AND ORDER by District Judge Martha Vazquez GRANTING IN PART AND DENYING IN PART 34 MOTION for Summary Judgment and GRANTING 32 Opposed MOTION for Summary Judgment on the basis of Qualified Immunity. IT IS THEREFORE ORDERED that 1. Defendants Target Corporation and Christopher Davidson's Opposed Motion for Summary Judgment (Doc. 34 ) is GRANTED IN PART AND DENIED IN PART, as follows: summary judgment is granted as to Count III and the assault c laim in Count IV, and denied as to Counts I, II, V, and the battery claim in Count IV. Count III and the assault claim in Count IV are hereby dismissed. 2. Defendants City of Albuquerque and Kamil Lewandowski's Opposed Motion for Summary Judgment (Doc. 32 ) is GRANTED. Counts VIX are hereby dismissed. (gr)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW MEXICO

John Douglass,
Plaintiff,
v.

Civ. No. 15-00524-MV/CG

Target Corporation, a corporation registered
to do and doing business in New Mexico,
Christopher Davidson, personally and as an
employee of Target Corp., the City of
Albuquerque and Kamil Lewandowski,
personally and as an employee of the City
of Albuquerque,
Defendants.

MEMORANDUM OPINION AND ORDER
THIS MATTER is before the Court on Defendants Target and Christopher Davidson’s
Motion for Summary Judgment and Defendants City of Albuquerque and Kamil Lewandowski’s
Motion for Summary Judgment. (Docs. 34 and 32.) For the reasons below, the Court GRANTS
Defendants Target and Mr. Davidson’s Motion for Summary Judgment as to Counts III and
Count IV with respect to assault only. (Doc. 34). The Court also GRANTS Defendants City of
Albuquerque and Officer Lewandowski’s Motion for Summary Judgment in its entirety. (Doc.
32.)
Background
“View[ed] . . . in the light most favorable to [Mr. Douglass]” as the record allows, the
facts are as follows. See Cavanaugh v. Woods Cross City, 625 F.3d 661, 662 (10th Cir. 2010).
On June 2, 2012, the Plaintiff, John Douglass, went to a Target store on Coors Boulevard
in Albuquerque, New Mexico. That day, Defendant Christopher Davidson was working at the

store as a loss prevention specialist. Mr. Douglass tried to shoplift a small amount of
merchandise. He concealed two packages of smart phone screen protectors, valued at $34.98,
and walked towards the store exit. (Doc. 34-1 at 2). Mr. Davidson saw what Mr. Douglass had
done. After Mr. Douglass passed the first of two sets of exit doors, Mr. Davidson and several
other unidentified men tackled him to the ground. (Doc. 34-1 at 3.) Mr. Davidson and the other
men pressed Mr. Douglass up against a wall, twisted his arms behind him, and handcuffed him
with one arm above his shoulder and the other arm behind his back. (Id.) Mr. Douglass later
admitted that while the men caused him pain when they twisted his arms “in a way they were not
supposed to go,” he did not sustain any injuries. (Doc. 34-1 at 3.) Mr. Davidson then took Mr.
Douglass to a back office and double-cuffed him to a desk. (Doc. 38-1 at 14.)
Here, the parties’ stories diverge. The Defendants claim that Mr. Douglass had thieved
merchandise from at least two other Target stores in New Mexico (one on Lomas Boulevard in
Albuquerque and another in Rio Rancho) and was the subject of a broad criminal trespass order
that prohibited him from entering all Target stores. Mr. Douglass disputes this fact.
After detaining Mr. Douglass, Mr. Davidson called Detective Albert Velarde of the
Albuquerque Police Department. (Doc. 38-7 at 6.) Detective Velarde told Mr. Davidson that Mr.
Douglass could be charged with felony commercial burglary if he had been previously issued a
“Criminal Trespass Notice” from Target, so long as the notice indicated that he was prohibited
from “all stores.” Id. at 7. Detective Velarde also told Mr. Davidson that he had previously
arrested Mr. Douglass and issued him a “Criminal Trespass Notice” for shoplifting from another
Target store on Lomas Boulevard in Albuquerque on March 24, 2012. (Doc. 34-2 at 3–4.)
Shortly after Mr. Davidson spoke with Detective Velarde by phone, Defendant Officer
Kamil Lewandowski of the Albuquerque Police Department arrived at Target and spoke with

2

Mr. Davidson. (Doc. 34-2 at 2.) Mr. Davidson told Officer Lewandowski that Mr. Douglass had
previously shoplifted at another Target location. (Doc. 34-2 at 3.) He then gave Officer
Lewandowski a copy of a “Criminal Trespass Notice” issued to Mr. Douglass on April 2, 2012,
for shoplifting from a Target store in the nearby town of Rio Rancho, New Mexico. (Id.) Mr.
Davidson also told Officer Lewandowski that he had just spoken on the phone with Detective
Velarde, who said to “book [Plaintiff] on commercial burglary.” (Doc. 34-2 at 3; Exhibit C.)
Officer Lewandowski then stepped out of the back room and called Detective Velarde,
who confirmed that he had arrested Plaintiff previously, although he did not have a copy of the
“Criminal Trespass Notice” from the Lomas Boulevard location.1 (Doc. 34-2 at 4.) However,
Detective Velarde confirmed that Plaintiff could be arrested for commercial burglary based on
either the Rio Rancho or the Lomas Boulevard Target “Criminal Trespass Notice.” Id.
After speaking with Detective Velarde for approximately five minutes, Officer
Lewandowski returned to the back office and requested the copy of the Rio Rancho notice,
which he had left with Davidson. (Doc. 38-1 at 10.) The writing on the Rio Rancho notice was
faded and hard to read except for the date and the words “(All Target Stores),” which were
boldly written on the business address section in a different handwriting. (Docs. 38-1 at 9; 41-1.)
The parties dispute whether Davidson altered the notice to include “(All Target Stores).”
Plaintiff claims that Davidson altered the notice after learning from Detective Velarde that the
notice needed to designate all store locations in order to charge the Plaintiff with felony
commercial burglary instead of petty theft, a simple misdemeanor. (Doc. 38 at 2.) In support of
Plaintiff’s allegation is the fact that the date and “(All Target Stores)” appears to be boldly
written in a different handwriting. (Docs. 38-1 at 9; 41-1.) Furthermore, the original notice later

1

Detective Velarde later stated at his deposition that he did not recall telling Defendant or Officer Lewandowski that
he arrested Plaintiff. (Doc. 38-7 at 6.)

3

subpoenaed from the Rio Rancho Police Department did not have “(All Target Stores)” written
in the business address section, listing only the address of the Rio Rancho Target Store. (Doc.
38-5.) However, Davidson claims that he received the notice in that condition and did not alter it.
(Doc. 34-4.) Officer Lewandowski also stated in his deposition that “[t]o the best of my
knowledge, I remember [the notice] the way it is right now [with “(All Target Stores)” written on
it].” (Doc. 34-2 at 7.)
Officer Lewandowski subsequently escorted Plaintiff to his squad car and arrested him
for commercial burglary. (Doc. 34-2 at 12.) He informed Plaintiff that the “main reason” he was
being arrested was because he had been prohibited previously from entering the Target store on
Lomas Boulevard. (Doc. 34-2 at 17.) Plaintiff denied having any knowledge of being prohibited
from entering the Target on Lomas Boulevard, (id. at 13), but admitted he received a notice
pertaining to the Rio Rancho Target.2
Plaintiff was indicted for commercial burglary on September 25, 2012. (Doc. 32-7.)
Officer Lewandowski testified to the grand jury that he placed Plaintiff under arrest for
commercial burglary because “[he] had, actually, a statement from Rio Rancho that [the
Plaintiff] was issued a criminal trespass, so [he] was able to prove that.” (Doc. 38-8 at 2.)
However, it was later determined that the “Criminal Trespass Notice” from the Rio Rancho
Target could not support a commercial burglary charge against the Plaintiff, as it was issued by a
city in a different county. In addition, the Albuquerque Police Department was unable to locate a
“Criminal Trespass Notice” for the Target on Lomas Boulevard. (Doc. 38-3.) Consequently, the
commercial burglary charge was dismissed by Nolle Prosequi due to insufficient evidence on
February 4, 2014. (Doc. 28-8.)

2

Although he has not produced it, Plaintiff stated that the notice he received from the Target in Rio Rancho “had a
very specific address [stating that he] couldn’t go back to that specific Target.” (Doc. 34-1 at 3.)

4

After he was arrested, Mr. Douglass sued Target Corporation (Target), Target loss
prevention specialist Christopher Davidson, the City of Albuquerque, and Officer Kamil
Lewandowski of the Albuquerque Police Department in a ten-count First Amended Complaint
(Complaint). The Complaint was removed from the Second Judicial District Court for the State
of New Mexico, County of Bernalillo, to this Court. (Doc. 1.) Mr. Douglass alleges five state tort
law claims against Target and Mr. Davidson. The Complaint alleges that Davidson committed
abuse of process (Count I), malicious prosecution (Count II) and fraud (Count III) by, inter alia,
writing “(All Target Stores)” on the Rio Rancho “Criminal Trespass Notice” in order to have
Plaintiff arrested for felony commercial burglary. (Doc. 1-1 at 4–6.) Plaintiff also alleges that
Davidson committed assault and battery when he tackled and handcuffed Plaintiff (Count IV)
and that Target Corp. is liable for the negligent hiring, retention, training, and supervision of its
employees (Count V). (Id. at 6–7.) Defendants Target Corp. and Davidson moved for summary
judgment on December 29, 2015. (Doc. 34.) Plaintiff filed his response on January 12, 2016.
(Doc. 38.) Defendants Target Corp. and Davidson filed their reply on January 26, 2016. (Doc.
41.)
Plaintiff alleges five civil rights claims under 42 U.S.C. § 1983 against the City of
Albuquerque and Officer Lewandowski: Malicious Prosecution (Count VI), Malicious Abuse of
Process (Count VII), False Arrest (Count VIII), Detention and Confinement (Count IX), and
False Arrest and Imprisonment (Count X). (Id. at 7–10.) Defendants City of Albuquerque and
Officer Lewandowski moved for summary judgment on the basis of qualified immunity on
December 29, 2015. (Doc. 32.) Mr. Douglass filed his response on January 12, 2016. (Doc. 39.)
Defendants City of Albuquerque and Officer Lewandowski filed their reply on January 26, 2016.
(Doc. 43.)

5

LEGAL STANDARD
I.

Summary Judgment
Summary judgment is appropriate “if the movant shows that there is no genuine dispute

as to any material fact and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P.
56(a); Jones v. Kodak Med. Assistance Plan, 169 F.3d 1287, 1290 (10th Cir. 1999). “[T]he 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.
Initially, the moving party bears the burden of demonstrating the absence of a genuine
issue of material fact. See Shapolia v. Los Alamos Nat’l Lab., 992 F.2d 1033, 1036 (10th Cir.
1993) (citations omitted). The moving party need not negate the nonmoving party’s claim, but
rather must show “that there is an absence of evidence to support the nonmoving party’s case.”
Celotex v. Catrett, 477 U.S. 317, 325 (1986). Once the moving party meets its initial burden, the
nonmoving party must show that genuine issues remain for trial “as to those dispositive matters
for which it carries the burden of proof.” Applied Genetics Int’l Inc. v. First Affiliated Secs., Inc.,
912 F.2d 1238, 1241 (10th Cir. 1991) (citation omitted). “In a response to a motion for summary
judgment, a party cannot rest on ignorance of facts, on speculation, or on suspicion and may not
escape summary judgment in the mere hope that something will turn up at trial.” Conaway v.
Smith, 853 F.2d 789, 794 (10th Cir. 1988). The nonmoving party cannot rely upon conclusory
allegations or contentions of counsel to defeat summary judgment, see Pueblo v. Neighborhood
Health Ctrs., Inc., 847 F.2d 642, 649 (10th Cir. 1988), but rather must “go beyond the pleadings
and by [its] own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on

6

file,’ designate ‘specific facts showing that there is a genuine issue for trial.’” Celotex, 477 U.S.
at 324 (citation omitted).
Upon a motion for summary judgment, the 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), aff’d, 162 F.3d 1173 (10th Cir. 1998). “[T]here is no evidence for trial unless there is
sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If
the evidence is merely colorable . . . or is not significantly probative, . . . summary judgment may
be granted.” Anderson, 477 U.S. at 249 (citations omitted). If there is no genuine issue of
material fact in dispute, then a court must next determine whether the movant is entitled to
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.
II.

Qualified Immunity and Summary Judgment
As compared to his burden at the summary judgment stage against Defendants Target and

Mr. Davidson, Mr. Douglass’s burden at the summary judgment stage against Defendants City of
Albuquerque and Officer Lewandowski is substantially greater because Defendants City of
Albuquerque and Officer Lewandowski have raised the defense of qualified immunity—an
expansive doctrine that shields government officials not only from liability, but also from the
“burdens of [pretrial] litigation.” See, e.g., Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) (“The
entitlement [to qualified immunity] is an immunity from suit rather than a mere defense to
liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to
go to trial.”); Allstate Sweeping, LLC v. Black, 706 F.3d 1261, 1266 (10th Cir. 2013).
Where, as here, a defendant raises the defense of qualified immunity at the summary

7

judgment stage, the Court’s summary judgment analysis is different from the analysis described
above. “‘When a defendant asserts qualified immunity at the summary judgment stage, the
burden shifts to the plaintiff, who must clear two hurdles to defeat the defendant's motion.’”
Cordova v. City of Albuquerque, 816 F.3d 645, 655 (10th Cir. 2016) (quoting Lundstrom v.
Romero, 616 F.3d 1108, 1118 (10th Cir. 2010)). “Qualified immunity shields federal and state
officials from money damages unless a plaintiff pleads facts showing (1) that the official
violated a statutory or constitutional right, and (2) that the right was ‘clearly established’ at the
time of the challenged conduct.” Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011) (quoting Harlow
v. Fitzgerald, 457 U.S. 800, 818 (1982)) (emphasis added). In other words, if a plaintiff fails to
meet his or her burden on either the first or second prong of qualified immunity, the Court must
grant qualified immunity to the government official(s). Id.
In the past, the Court was required to determine first whether the plaintiff had met the
burden under the first prong of qualified immunity—that the official violated a statutory or
constitutional right. Only after determining the first prong could the Court move to the second
prong—whether that right was clearly established at the time of the challenged conduct. Now,
however, “[t]he judges of the district courts . . . should be permitted to exercise their sound
discretion in deciding which of the two prongs of the qualified immunity analysis should be
addressed first in light of the circumstances in the particular case at hand.” Pearson v. Callahan,
555 U.S. 223, 236 (2009).
The plaintiff’s burden on the second prong—to show that the right was “clearly
established” at the time of the challenged conduct—is especially onerous. To meet that burden, a
plaintiff must show that “‘[t]he contours of [a] right [are] sufficiently clear’” such “that every
‘reasonable official would have understood that what he [or she] [was] doing violate[d] that

8

right.’” Al-Kidd, 563 U.S. at 741 (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987))
(emphasis added).
DISCUSSION
I.

The Court Grants In Part and Denies In Part Defendants Davidson and Target’s
Motion for Summary Judgment.
The Complaint in essence makes four claims against Defendants Davidson and Target.

First, regarding malicious abuse of process (Counts I and II), summary judgment is denied
because Plaintiff has raised a genuine dispute of material fact as to whether Davidson altered the
Rio Rancho “Criminal Trespass Notice.” Second, in regard to the claim in Count III for fraud
and deceit, summary judgment is granted, as New Mexico law requires that Plaintiff
detrimentally rely on the alleged misrepresentation and there is no evidence that Plaintiff relied
on the allegedly altered “Criminal Trespass Notice.” Third, in regard to the claim in Count IV of
assault and battery, summary judgment is granted with respect to assault and denied with respect
to battery, as the there is no evidence that Plaintiff suffered an apprehension of a harmful or
offensive contact, but there is sufficient evidence to create a genuine dispute as to whether
Plaintiff was detained in a reasonable manner. Lastly, in regard to the claim in Count V for
negligent hiring and training, summary judgment is denied because there are genuine disputes as
to whether Davidson altered the “Criminal Trespass Notice,” whether Officer Lewandowski
relied on the notice for probable cause, and whether Plaintiff was detained in a reasonable
manner, all of which are material to several of the underlying tortious claims against its
employee.
A. Malicious Abuse of Process
In Counts I and II, Plaintiff alleges that Davidson committed abuse of process and
malicious prosecution by altering the Rio Rancho “Criminal Trespass Notice” in order for

9

Plaintiff to be charged with felony commercial burglary. (Doc. 1-1 at 4–6.) Defendants make
three arguments in support of summary judgment, all of which fail because there is a genuine
dispute as to whether Davidson manipulated and falsified information that Officer Lewandowski
relied on for probable cause to arrest Plaintiff for the felony of commercial burglary.
Defendants correctly clarify that the two once distinct torts of abuse of process and
malicious prosecution have been combined in New Mexico into the single tort of malicious
abuse of process. (Doc. 34 at 7.) See DeVaney v. Thriftway Marketing Corp., 953 P.2d 277, 283
(N.M. 1997), overruled on other grounds by Durham v. Guest, 204 P.3d 19 (N.M. 2009).
Therefore the Court need only address the single tort of malicious abuse of process.
The tort of malicious abuse of process is construed narrowly to protect the right of access
to the courts. See id. at 284. In 2009, the Supreme Court of New Mexico revised the necessary
elements of the tort, eliminating the requirement that the defendant initiate judicial proceedings
against the plaintiff. See Durham v. Guest, 204 P.3d 19 (N.M. 2009). In doing so, the Supreme
Court of New Mexico revised the elements of malicious abuse of process to include: (i) “the use
of process in a judicial proceeding that would be improper in the regular prosecution or defense
of a claim or charge;” (ii) “a primary motive in the use of process to accomplish an illegitimate
end;” and (iii) damages. Id. at 26; see also LensCrafters, Inc. v. Kehoe, 282 P.3d 758, 765-66
(N.M. 2012) (citing Durham). Consequently, Defendants’ argument that they are not liable
because they did not themselves initiate any charges against Plaintiff is immaterial. (Doc. 34 at
8.)
The first element, an improper use of process in a judicial proceeding, may be shown by:
(1) filing a complaint without probable cause, or (2) an irregularity or impropriety
suggesting extortion, delay, or harassment, or other conduct formerly actionable
under the tort of abuse of process. A use of process is deemed to be irregular or
improper if it (1) involves a procedural irregularity or a misuse of procedural

10

devices such as discovery, subpoenas, and attachments, or (2) indicates the
wrongful use of proceedings, such as an extortion attempt.
Durham, 204 P.3d at 26. “[T]he filing of a proper complaint with probable cause, and without
any overt misuse of process, will not subject a litigant to liability for malicious abuse of process,
even if it is the result of a malicious motive.” DeVaney, 953 P.2d at 285. Thus, if a court
determines that probable cause existed for the underlying suit, and there is no evidence of any
procedural irregularity or impropriety, summary judgment should be granted in favor of the
defendant. Plaintiff does not allege, and the Court does not find, that the Defendant committed a
procedural irregularity or impropriety suggesting extortion, delay, or harassment. (Doc. 1-1 at 5.)
Therefore, Plaintiff’s claim rests solely on the allegation that Davidson facilitated charging
Plaintiff with commercial burglary without probable cause.
“[A] malicious-abuse-of-process plaintiff attempting to show a lack of probable cause
must demonstrate, by the applicable standard of proof, that the opponent did not hold a
reasonable belief in the validity of the allegations of fact or law of the underlying claim.”
DeVaney, 953 P.2d at 287; see Fleetwood Retail Corp. of N.M. v. LeDoux, 164 P.3d 31, 35
(N.M. 2007) (“Probable cause in the malicious abuse of process context is defined as a
reasonable belief, founded on known facts established after a reasonable pre-filing investigation
that a claim can be established to the satisfaction of a court or jury.”) (internal quotation marks
and citations omitted). “The existence of probable cause is a matter of law and shall be decided
by the trial judge. However, the circumstances surrounding the filing of the complaint, if in
dispute, must be resolved by a fact-finder.” DeVaney, 953 P.2d at 290 (citations omitted).
First, Defendants argue that there was probable cause to have the Plaintiff arrested
because he admitted to shoplifting. (Doc. 34 at 10.) In response, Plaintiff argues that there was
no probable cause to charge him with commercial burglary and that Davidson manipulated the

11

situation by altering the Rio Rancho Notice in order for Officer Lewandowski to arrest Plaintiff
for the more serious felony charge. (Doc. 38 at 16.) While Defendants obviously had probable
cause to detain Plaintiff and request that he be arrested for shoplifting, Defendants must have had
probable cause to request that Officer Lewandowski press charges for commercial burglary as
well. In civil cases, the New Mexico Supreme Court has held that because “probable cause
relates to the complaint as a whole,” the plaintiff in the underlying suit need not prove probable
cause for each individual count in order to be protected from a claim of malicious abuse of
process. Fleetwood, 164 P.3d at 37. The Fleetwood Court reasoned that it was unfair to expose
plaintiffs “who are subject to statutes of limitations and have not had the benefit of discovery
when deciding what claims to pursue, to malicious abuse of process attacks based on lack of
probable cause if it is later determined that one particular claim of several was not supported.”
Id. However, this decision was made “with an eye toward protecting honest litigants.” Id.
(emphasis added). Viewing the allegations in the light most favorable to Plaintiff, Mr. Davidson
is not necessarily an innocent or honest actor seeking to vindicate his own rights, and should not
be protected simply because he had probable cause to ask Officer Lewandowski that Plaintiff be
charged with petty misdemeanor shoplifting.
It would not be just to hold that the defendants must be absolved from liability
simply because a small part of their suit might end in judgment for them, when
the far larger part, the equivalent of a separate claim, has been decided against
them, and where there is reason to believe that this separate claim has been
prosecuted with malice and without probable cause.
Holmes v. Vill. of Hoffman Estate, 511 F.3d 673, 683 (7th Cir. 2007) (citation omitted). Nor does
the reasoning in Fleetwood apply in a criminal matter where private citizens encourage law
enforcement to press criminal charges, as they are not litigants and do not possess the same
rights as civil plaintiffs that the rule was meant to protect. See Fleetwood, 164 P.3d at 37 (“It

12

would be too inhibiting of the right to seek redress in court if plaintiffs had to win on every count
or be subject to a malicious abuse of process claim for any count that was unsuccessful.”). In
addition, the nature of the burden placed on a defendant facing criminal charges differs
substantially from civil complaints. “[W]hen it comes to prosecution, the number and nature of
the charges matters: the accused must investigate and prepare a defense to each charge, and as
the list of charges lengthens (along with the sentence to which the accused is exposed), the cost
and psychic toll of the prosecution on the accused increase.” Holmes, 511 F.3d at 682 (discussing
malicious prosecution in the context of facing separate criminal charges with and without
probable cause).
Because Plaintiff alleges improper use of the criminal justice process in a manner geared
to have Plaintiff charged with the felony of commercial burglary instead of petty misdemeanor
shoplifting, Plaintiff’s allegations must be considered separate and apart from the probable cause
to charge Plaintiff with shoplifting. Therefore the Court does not accept Defendants Target and
Davidson’s argument that probable cause for shoplifting will preclude a claim for malicious
abuse of process based on the charge of commercial burglary.
Second, Defendants Target and Davidson argue that that they are entitled to summary
judgment because Plaintiff has failed to provide evidence that Mr. Davidson altered the Rio
Rancho “Criminal Trespass Notice.” (Doc. 34 at 9.) Whether Mr. Davidson altered the trespass
notice is a material fact, because, if true, he would not have had probable cause to pursue the
commercial burglary charge, as Detective Velarde told him that the notice had to designate all
stores in order to charge Plaintiff with commercial burglary. In support of Defendants’ argument,
Davidson submitted an affidavit that he did not alter the notice. (Doc. 34-4.) In addition to this,
Officer Lewandowski stated in his deposition that he remembered the notice with “(All Target

13

Stores)” written on it. (Doc. 34-2 at 7.) However, Plaintiff asserts that the writing on the notice
was faded, except for the words “(All Target Stores)” and the date, and that these two statements
were written in a different handwriting than the rest of the notice. (Docs. 34-2 at 7; 41-1.)
Furthermore, the notice on file subpoenaed from the Rio Rancho Police Department did not have
these alterations. (Doc. 38-5.) The record indicates that Davidson had the knowledge, after
speaking with Detective Velarde, that the “Criminal Trespass Notice” must designate “all stores”
in order to charge the Plaintiff with commercial burglary at a different Target store. (Doc. 38-7 at
7.) Davidson also had ample time to write on the notice either after his call with Detective
Velarde, before Officer Lewandowski arrived, or while Officer Lewandowski stepped out of the
back room to call Detective Velarde. (Docs. 34-2 at 2; 38-1 at 9.) Under these circumstances, the
Court finds sufficient facts showing that there is a “genuine issue for trial.” Celotex, 477 U.S. at
324 (citation omitted).
Finally, Defendants argue that any alleged alteration to the Rio Rancho “Criminal
Trespass Notice” is irrelevant, as Officer Lewandowski relied on the notice purportedly issued
from the Target on Lomas Boulevard that Detective Velarde told him about over the phone.
(Doc. 34 at 10.) However, viewing the evidence in the light most favorable to Plaintiff, and
notwithstanding the shifted standard the Court applies to the defense of qualified immunity,
infra, there is a genuine dispute as to whether and to what extent Officer Lewandowski relied on
the Rio Rancho Notice. While Officer Lewandowski did write in the criminal complaint that the
“main reason” the Plaintiff was being arrested was because of the Lomas Boulevard Target
trespass, (Doc. 34-2 at 17), he later testified before the grand jury that he arrested Plaintiff
because he had “a statement from Rio Rancho that [Plaintiff] was issued a criminal trespass, so
[Officer Lewandowski] was able to prove that.” (Doc. 38-8 at 2.) The Court finds that these

14

contradictory statements are sufficient to create a genuine dispute as to the role of the Rio
Rancho “Criminal Trespass Notice” in charging Plaintiff with commercial burglary.
While the Court recognizes that the tort of malicious abuse of process is disfavored and
narrowly construed to protect the right of access to the courts, see DeVaney, 953 P.2d at 284,
summary judgment is inappropriate when the factual circumstances surrounding the filing of
criminal charges are in dispute. Id. at 290. Here, it is unclear whether Davidson manipulated
evidence that Officer Lewandowski relied on as probable cause to charge Plaintiff with
commercial burglary. Because there exists a genuine dispute as to whether Davidson altered the
Rio Rancho Notice and if Officer Lewandowski relied on the notice in his decision to charge
Plaintiff with commercial burglary, summary judgment is denied for Counts I and II of the
Complaint, which shall be consolidated into a single count of Malicious Abuse of Process.
B. Fraud and Deceit
Count III of the Complaint alleges that Davidson committed fraud and deceit by altering
the Rio Rancho “Criminal Trespass Notice” and misrepresenting that Plaintiff was given a
“Criminal Trespass Notice” on March 24, 2012 for shoplifting from the Target on Lomas
Boulevard. (Doc. 1-1 at 5.) The torts of fraud and deceit are synonymous under New Mexico
law. See Ledbetter v. Webb, 711 P.2d 874, 879 (N.M. 1985) (equating fraud and deceit); Maxey
v. Quintana, 499 P.2d 356, 359 (N.M. Ct. of App. 1972) (same).
Under New Mexico law, the elements of fraud include “(1) a misrepresentation of fact,
(2) either knowledge of the falsity of the representation or recklessness on the part of the party
making the misrepresentation, (3) intent to deceive and to induce reliance on the
misrepresentation, and (4) detrimental reliance on the misrepresentation.” Cain v. Champion
Window Co. of Albuquerque, LLC, 164 P.3d 90, 97 (N.M. Ct. App. 2007). All of these elements

15

must be proven by clear and convincing evidence. See UJI 13–1633 NMRA.
Regarding the alleged shoplifting incident at the store on Lomas Boulevard, Defendants
correctly state, and Plaintiff does not dispute, that there is no evidence that Davidson had
knowledge that Plaintiff had not actually been issued a “Criminal Trespass Notice” from the
Target on Lomas Boulevard. (Doc. 34 at 11.) Rather, the evidence suggests that Davidson was
merely repeating what Detective Velarde told him, and Plaintiff has not demonstrated how it
would be reckless to relay the information to Officer Lewandowski. (Doc. 34-2 at 4.) Therefore
Defendant cannot be held liable for these statements, as “either knowledge of the falsity of the
representation or recklessness on the part of the [defendant]” is a necessary element of fraud.
Cain, 164 P.3d at 97. Accordingly, summary judgment must be granted as to Count III.
Regarding the alleged incident at the Rio Rancho store, Defendants argue that they are
entitled to summary judgment because Plaintiff has not proven that Davidson altered the Rio
Rancho “Criminal Trespass Notice,” or that Officer Lewandowski relied on the notice. (Docs. 34
at 11; 41 at 11.) However, as discussed above, Plaintiff has come forth with sufficient evidence
to create a genuine dispute as to whether the notice was altered by Davidson. Defendants have
also failed to establish that Officer Lewandowski did not rely on the notice. Therefore summary
judgment is not appropriate based upon these arguments.
Defendants next assert that Plaintiff’s claim for fraud and deceit fails as a matter of law
because if anyone relied on the alleged misrepresentation, it was Officer Lewandowski and not
Plaintiff and that New Mexico law requires reliance on the part of the plaintiff. 3 (Doc. 34 at 12.)
Plaintiff argues that he need only be “in the class of persons” that the Defendant meant to
influence with the fraudulent conduct. (Doc. 38 at 19.) In support of this argument, Plaintiff cites

3

Defendants maintain that Officer Lewandowski did not rely on the Rio Rancho “No Trespass Notice,” but it is
assumed for purposes of discussion.

16

to Citizens Bank v. C & H Const. & Paving Co., 552 P.2d 796 (N.M. Ct. of App. 1976). (Doc. 38
at 18.) In Citizens Bank, the New Mexico Court of Appeals held that the plaintiff could recover
for damages proximately caused by a fraudulent misrepresentation made by the defendant,
despite the fact that plaintiff did not rely on or even know of the defendant’s statements. Citizens
Bank, 552 P.2d at 801. However, the Court is unable to find that Plaintiff’s theory based on a
forty-year-old New Mexico Court of Appeals opinion has been codified in New Mexico law. The
New Mexico Supreme Court most recently reiterated the elements of fraud as:
(1) a representation of fact was made (either by commission or by omission) that
was not true, (2) the defendant made the representation knowingly or recklessly,
(3) the representation was made with the intent to induce the plaintiff to rely upon
it, and (4) that the plaintiff relied on the representation.
Encinias v. Whitener Law Firm, P.A., 310 P.3d 611, 620 (N.M. 2013) (emphasis added). This
language closely follows New Mexico’s Uniform Jury Instructions requiring that the party
claiming fraud rely on the fraudulent misrepresentation. See UJI 13-1633 NMRA. Even
assuming arguendo that Davidson altered the Rio Rancho “Criminal Trespass Notice,” there is
no evidence that the Plaintiff relied on the allegedly altered notice, as he consistently denied that
the notice he received from the Rio Rancho Target barred him from all Target stores. (Doc. 34-1
at 3; Exhibit C.) It was Officer Lewandowski who would have relied on the alleged
misrepresentation, as he had the apparent authority to arrest the Plaintiff for felony commercial
burglary based on the Rio Rancho “Criminal Trespass Notice” as long as it applied to all Target
stores. Consequently, as Plaintiff has failed to demonstrate that he relied on the allegedly altered
notice, Plaintiff cannot establish an essential element and his claim must fail.
C. Assault and Battery
Count IV alleges that Davidson and several other unidentified Target employees
committed assault and battery when they tackled and handcuffed Plaintiff as he was leaving the

17

store. (Doc. 1-1 at 6.) Although New Mexico does not clearly define the elements of tortious
assault, see UJI 13-1624 NMRA Committee Commentary, generally assault requires an “act,
threat or menacing conduct which causes another person to reasonably believe that he is in
danger of receiving an immediate battery.” Baca v. Velez, 833 P.2d 1194, 1196 (N.M. Ct. of
App. 1992); Fuerschbach v. Sw. Airlines Co., 439 F.3d 1197, 1208 (10th Cir. 2006). Defendants
argue first, and Plaintiff does not dispute, that there is insufficient evidence to prove assault, as
Plaintiff was detained “without warning.” (Doc. 34.) Plaintiff does not offer any evidence that he
believed he was in danger of receiving an imminent battery before the Target employees “all of a
sudden” apprehended him. (Doc. 34-1 at 3.) Therefore Plaintiff’s claim for assault fails as a
matter of law, as he has failed to establish an essential element of his claim.
With respect to battery, Defendants argue that Plaintiff’s battery claim fails because he
did not sustain any injuries. (Docs. 34 at 13; 34-1 at 3.) Under New Mexico law, generally a
party is liable for battery if: “(a) he acts intending to cause a harmful or offensive contact with
the person of the other or a third person, or an imminent apprehension of such a contact, and (b)
an offensive contact with the person of the other directly or indirectly results.” State v. Ortega,
827 P.2d 152, 155 (N.M. Ct. of App. 1992) (quoting Restatement (Second) of Torts § 18 (Am.
Law Inst. 1965). Even assuming arguendo that the Plaintiff must have suffered a “harmful”
contact, (Doc. 34 at 13), the Restatement defines bodily harm as “any physical impairment of the
condition of another's body, or physical pain or illness.” Restatement (Second) of Torts § 15
(emphasis added). While Plaintiff admitted that he did not sustain any injuries during the
confrontation, he did state that it was “painful.” (Doc. 34-1 at 3.) It is undisputed that Plaintiff
was tackled by Davidson and handcuffed with one arm over his shoulder to his other arm behind
his back. Id. Officer Lewandowski stated that he had never seen someone handcuffed that way

18

before in his four-and-a-half years of doing shoplifting investigations. (Doc. 38-1 at 14.) Because
of the way Plaintiff was tackled and handcuffed, the Court believes that there are sufficient facts
for a jury to find that he suffered a harmful contact, and therefore Plaintiff’s claim for battery
must survive summary judgment.
Defendants assert that they are protected from liability under New Mexico’s Reasonable
Detention statute, (Doc. 34 at 14), which states:
“[i]f any . . . merchant has probable cause for believing that a person has willfully
taken possession of any merchandise with the intention of converting it without
paying for it, or has willfully concealed merchandise, and that he can recover the
merchandise by detaining the person or taking him into custody, the . . . merchant
may, for the purpose of attempting to affect a recovery of the merchandise, take
the person into custody and detain him in a reasonable manner for a reasonable
time. Such taking into custody or detention shall not subject the . . . merchant to
any criminal or civil liability.”
N.M.S.A. 1978 § 30-16-23 (1965) (emphasis added).

While Section 30-16-23 grants

shopkeepers a conditional privilege to detain suspected shoplifters, the apprehension of the
shoplifter must be made in a reasonable manner. See Holguin v. Sally Beauty Supply Inc., 264
P.3d 732, 733 (N.M. Ct. of App. 2011). The Court finds that Plaintiff has come forward with
sufficient facts to create a genuine dispute as to whether he was detained in a reasonable manner.
As noted above, the record indicates that Davidson and other Target employees “all of a sudden”
grabbed Plaintiff without identifying themselves, pressed him up against the wall, twisted his
arms behind him “in a way they were not supposed to go,” and handcuffed him with one arm
above his shoulder and the other arm behind his back. (Doc. 34-1 at 2.) Officer Lewandowski’s
statement that he had never seen someone handcuffed that way before in his four-and-a-half
years of doing shoplifting investigations also lends support to Plaintiff’s claim that he was
detained in an unreasonable manner. (Doc. 38-1 at 14.) Thus, whether Defendant detained
Plaintiff in a reasonable manner remains in dispute, and summary judgment on Count IV is

19

denied.
D. Negligent Hiring, Retention, Training and Supervision
Count V alleges that Target failed to properly train and supervise its employee, Davidson.
Target’s sole argument is that it cannot be found negligent for the actions of its employee if the
employee is not guilty of any tortious acts. (Doc. 34 at 14.) However, as discussed above, there
are genuine disputes of material facts that preclude summary judgment on several of the
underlying claims. Therefore summary judgment on Count V is denied.
II.

The Court Grants Defendants City of Albuquerque and Kamil Lewandowski’s
Motion for Summary Judgment.
The Complaint makes five civil rights claims against Defendants City of Albuquerque

and Kamil Lewandowski—all of which are predicated on the allegation that Officer
Lewandowski lacked probable cause to arrest Mr. Douglass. The parties agree that Officer
Lewandowski had probable cause to arrest Mr. Douglass for shoplifting. Indeed, Mr. Douglass
admitted that he shoplifted. Their dispute, then, turns on whether Officer Lewandowski needed
probable cause to arrest Mr. Douglass for commercial burglary—the crime for which Officer
Lewandowski apparently thought he was arresting Mr. Douglass. As discussed below, unlike the
analysis above, the Court does not need to reach this issue to resolve the question of qualified
immunity in favor of the Defendants.
The Court grants summary judgment on the basis of qualified immunity, dismissing all
claims against Defendants City of Albuquerque and Officer Lewandowski, including Malicious
Prosecution and Malicious Abuse of Process, False Arrest, Detention and Confinement, and
False Arrest and Imprisonment (Counts VI-X).

20

A. Mr. Douglass’s Allegations Against Defendants City of Albuquerque and Officer
Lewandowski
In Counts VI and VII, Mr. Douglass alleges that Officer Lewandowski was acting under
color of state law and in the course and scope of his employment with the City of Albuquerque,
when Officer Lewandowski “initiated felony charges against [Mr. Douglass] without probable
cause because he failed to adequately investigate the case” against Mr. Douglass. (Doc. 1-1 ¶¶
53–54, 57.) In doing so, Officer Lewandowski allegedly violated Mr. Douglass’s “rights,
privileges, or immunities secured by the United States Constitution or by federal law[.]” (Id. ¶
55.) Mr. Douglass also alleges that Defendants City of Albuquerque and Officer Lewandowski
“initiated felony charges by arresting [Mr. Douglass] on June 2, 2012, filing a criminal complaint
[against Mr. Douglass] on that day[,] and testifying at the Grand Jury[, resulting] in the
September 26, 2012 felony indictment [against Mr. Douglass] for Commercial Burglary.” (Id. ¶
56.) Further, Mr. Douglass alleges that “Officer Lewandowski actively participated in misusing
the judicial process to prosecute [Mr. Douglass] for the felony of commercial burglary” and
“Officer Lewandowski’s primary motive” in doing so “was to convict [Mr. Douglass] of
commercial burglary, a felony.” (Id. ¶¶ 61–62.) The felony charges against Mr. Douglass were
“terminated in [his] favor on February 4, 2014” after “the indictment was dismissed ‘due to
insufficient evidence.’” (Id. ¶ 58.)
B. Defendants City of Albuquerque and Officer Lewandowski’s Arguments in Support
of Qualified Immunity
Defendants City of Albuquerque and Officer Lewandowski urge that Officer
Lewandowski did in fact have probable cause to arrest Mr. Douglass for commercial burglary.
(Doc. 32 at 7–10). In support of their argument that Officer Lewandowski was justified in
arresting Mr. Douglass for commercial burglary, Defendants describe several undisputed facts.

21

First, Defendants note that Mr. Davidson told Officer Lewandowski that “he had
observed [Mr. Douglass] shoplifting”—specifically that Mr. Douglass “concealed the
merchandise and started to walk out of the store, passing all points of sale.” (Doc. 32 at 8, citing
Undisputed Facts No. 3, 4, and 7.)
After Officer Lewandowski read Mr. Douglass his Miranda rights, Mr. Douglass did not
deny that he had shoplifted. (Id., citing Undisputed Fact No. 8.) “[Mr.] Davidson told Officer
Lewandowski that [Mr. Douglass] had been given a Criminal Trespass Notice for shoplifting
previously at a Rio Rancho Target.” (Id., citing Undisputed Fact No. 13.)
Officer Lewandowski then saw the Criminal Trespass Notification from the Rio Rancho
Target—which is now alleged to have been altered by Mr. Davidson. Specifically, Mr. Douglass
alleges that Mr. Davidson added the words “All Target Stores” to the Criminal Trespass Notice.
(Id. at 9, citing Undisputed Fact No. 15.)
Nevertheless, even “[t]his allegedly altered Criminal Trespass Notice comported with
Officer Lewandowski’s training.” (Id. at 9, citing Undisputed Fact No. 15.) In his training,
Officer Lewandowski has been advised to tell “all people who are issued with a Notice [of
Trespass] that they are trespassing if they return to any of the store locations.” (Id., citing
Undisputed Fact No. 16.)
Additionally, “[Mr.] Davidson told Officer Lewandowski that [Mr. Douglass] had also
been issued a Criminal Trespass Notice for the Lomas Target in Albuquerque.” (Id., citing
Undisputed Fact No. 13.) Mr. Davidson advised Officer Lewandowski that Detective Velarde
had been involved in the case of the Lomas Target store. (Id.) Officer Lewandowski then spoke
with Detective Velarde, who confirmed that Mr. Douglass had been issued a criminal trespass
notice at the Lomas Target Store. (Id., citing Undisputed Facts No. 21 and 22.) Detective Velarde

22

also advised Officer Lewandowski that Mr. Douglass “could be arrested on either the
Albuquerque or the Rio Rancho trespass.” (Id. at 10, citing Undisputed Facts No. 23 and 24.)
With respect to his communications with Detective Velarde, Officer Lewandowski urges
that he could rely on the information that Detective Velarde gave him in determining probable
cause under the “collective knowledge doctrine.” (Doc. 32 at 10.) The doctrine operates in two
situations. First, in “horizontal” collective knowledge situations, where “a number of individual
law enforcement officers have pieces of the probable cause puzzle, but no single officer
possesses information sufficient for probable cause[,] the officers can “pool[] their collective
knowledge to meet the probable cause threshold.” See United States v. Chavez, 534 F.3d 1338,
1345 (10th Cir. 2008). Second, in “vertical” collective knowledge situations, where one officer
“instructs another officer to act, but does not communicate the corpus of information known to
the first officer that would justify the action[,]” probable cause exists where the first officer “had
the requisite level of suspicion[.]” (Doc. 32 at 10–11.) (citing and quoting Chavez, 534 F.3d at
1345 and United States v. Rodriguez-Rodriguez, 550 F.3d 1223, 1227 (10th Cir. 2008).
Alternatively, Defendants City of Albuquerque and Officer Lewandowski argue that
Officer Lewandowski had probable cause to arrest Mr. Douglass for shoplifting under N.M.S.A.
§ 30-16-20 (2015)—an argument that, as discussed further below, Mr. Douglass does not
dispute. (Doc. 32 at 12). They urge that even if Officer Lewandowski only had probable cause to
arrest Mr. Douglass for shoplifting—and did not have probable cause to arrest him for
commercial burglary—Officer Lewandowski and the City of Albuquerque did not violate Mr.
Douglass’s constitutional rights. (Id.)
Specifically, Defendants argue that under Tenth Circuit precedent, “[a] police officer’s
subjective reason for making the arrest need not be the criminal offense as to which the known

23

facts provide probable cause.” (Id. (citing Apodaca v. City of Albuquerque, 443 F.3d 1286, 1289
(10th Cir. 2006).) In other words, “[a]n arrest is not invalid under the Fourth Amendment simply
because the police officer subjectively intended to base the arrest on an offense for which
probable cause is lacking, so long as the circumstances, viewed objectively, justify the arrest.”
(Id. (citing Apodaca, 443 F.3d at 1289).)
C. Mr. Douglass’s Arguments Against Qualified Immunity
Because Defendants raised the defense of qualified immunity, Mr. Douglass has the
burden of pleading facts showing that (1) Officer Lewandowski “violated a statutory or
constitutional right, and (2) that the right was ‘clearly established’ at the time of the challenged
conduct.” Al-Kidd, 563 U.S. at 735 (quoting Harlow, 457 U.S. at 818) (emphasis added).
Mr. Douglass argues that several of the “undisputed material facts” upon which
Defendants rely are “misleading[,]” “incomplete[,]” or “misstate[] evidence[.]” (Doc. 39 at 1–3.)
He argues, for example, that Officer Lewandowski “did not look at the Rio Rancho no trespass
notice the way he was supposed to and did not know if he noticed relevant problems with it.” (Id.
at 1–2.) He also argues that the fact that Detective Velarde did not personally remember having
arrested Mr. Douglass in a separate shoplifting case impinges on several of the facts that
Defendants presented as undisputed. (Id. at 2–3.)
The thrust of Mr. Douglass’s legal argument against qualified immunity, however, rests
on his view that “[t]here is no binding authority supporting the claim that the law allows
[Officer] Lewandowski to arrest John for commercial burglary because he had probable cause to
arrest him on petty misdemeanor shoplifting.” (Id. at 8.)
As discussed below, Mr. Douglass’s view is wrong. While Mr. Douglass correctly
describes the rule for probable cause under Fourth Amendment case law—that a warrantless

24

arrest is unconstitutional under the Fourth Amendment unless it is supported by probable cause
(Id. at 10–12)—he misapprehends jurisprudence defining what suffices as probable cause for
arrest.
D. Defendants City of Albuquerque and Officer Lewandowski are shielded by qualified
immunity because Mr. Douglass has not shown that his constitutional rights were
violated.
All of Mr. Douglass’s claims against the City of Albuquerque and Officer Lewandowski
rest on a showing that Defendants did not have probable cause to arrest Mr. Douglass. The
Malicious Prosecution (Count VI) and Malicious Abuse of Process (Count VII) claims are
treated as the same cause of action and both require probable cause. See Novitsky v. City Of
Aurora, 491 F.3d 1244, 1258 (10th Cir. 2007) (One of the five “elements of the common law tort
of malicious prosecution, as applicable in a § 1983 claim” is “(3) there was no probable cause to
support the original arrest, continued confinement, or prosecution[.]”); DeVaney, 953 P.2d at
283, 287 (New Mexico has consolidated the torts of malicious abuse-of-process and malicious
prosecution into a single tort. “[A] malicious-abuse-of-process plaintiff attempting to show a
lack of probable cause must demonstrate, by the applicable standard of proof, that the opponent
did not hold a reasonable belief in the validity of the allegations of fact or law of the underlying
claim.”).
“The claims of false arrest, false imprisonment, and malicious prosecution must be
premised on a lack of probable cause.” Hoffman v. Martinez, 92 F. App'x 628, 631–32 (10th Cir.
2004) (“See State v. Johnson, [930 P.2d 1148] . . . (N.M. 1996) (stating that a warrantless arrest
by a police officer with probable cause to believe that an offense has been committed does not
become unlawful if the arrestee is later found to be innocent); Weststar Mortgage Corp. v.
Jackson, [61 P.3d 823] (N.M. 2002) (stating that a judicial determination to bind a plaintiff over

25

for a criminal trial constitutes prima facie evidence of the existence of probable cause for
detention); Wolford v. Lasater, 78 F.3d 484, 489 (10th Cir. 1996) (stating that lack of probable
cause is an essential element of malicious . . . prosecution in New Mexico).”).
Here, there is no question that under New Mexico state law, Officer Lewandowski had
probable cause to arrest Mr. Douglass for shoplifting. Indeed, after being advised of his Miranda
rights, Mr. Douglass admitted to having shoplifted at Target. See N.M.S.A. § 30-16-20 (among
other acts, shoplifting may consist of “(1) willfully taking possession of merchandise with the
intention of converting it without paying for it” or “(2) willfully concealing merchandise with the
intention of converting it without paying for it”). Under New Mexico state law, Officer
Lewandowski was permitted to arrest Mr. Douglass without a warrant because he had probable
cause to believe that Mr. Douglass had shoplifted. N.M.S.A. § 30-16-23 (“Any law enforcement
officer may arrest without warrant any person he has probable cause for believing has committed
the crime of shoplifting.”).
Defendants City of Albuquerque and Officer Lewandowski argue that Officer
Lewandowski had probable cause to arrest Mr. Douglass for both commercial burglary and
shoplifting. (Doc. 32 at 7–13.) Moreover, they urge that based only on the existence of probable
cause to arrest Mr. Douglass for shoplifting, they are protected under the doctrine of qualified
immunity and the Court should grant qualified immunity to them as to all of Mr. Douglass’s
claims. (Doc. 32 at 13.) The Court agrees and does not need to reach the question of whether
Officer Lewandowski had probable cause to arrest Mr. Douglass for commercial burglary.
The United States Supreme Court addressed a similar question in Devenpeck v. Alford:
“whether an arrest is lawful under the Fourth Amendment when the criminal offense for which
there is probable cause to arrest is not ‘closely related’ to the offense stated by the arresting

26

officer at the time of arrest.” 543 U.S. 146, 148 (2004). In Devenpeck, a state patrol officer
stopped a man whom he suspected of having impersonated a police officer and interrogated him.
Sergeant Devenpeck arrived on the scene shortly and inquired about the man’s “wig-wag
headlights[.]” While Sergeant Devenpeck questioned the man, he noticed a tape recorder with
the record buttons depressed. Sergeant Devenpeck believed that the man had been recording their
conversation and also incorrectly believed that the recording violated the state’s Privacy Act.
Sergeant Devenpeck then ordered the state patrol officer to take the man to jail. At booking, the
man was charged with violating the State Privacy Act and issued with a ticket for his flashing
headlights. The state trial court later dismissed both charges. Id. at 148–51. The Supreme Court
reasoned that an officer’s subjective state of mind is not determinative of whether an arrest
violated the Fourth Amendment:
Our cases make clear that an arresting officer's state of mind (except for the facts
that he knows) is irrelevant to the existence of probable cause. See Whren v.
United States, 517 U.S. 806, 812–813 . . . (1996) (reviewing cases); . . .
Arkansas v. Sullivan, 532 U.S. 769. . . (2001) (per curiam). That is to say, his
subjective reason for making the arrest need not be the criminal offense as to
which the known facts provide probable cause. As we have repeatedly explained,
“‘the fact that the officer does not have the state of mind which is hypothecated
by the reasons which provide the legal justification for the officer's action does
not invalidate the action taken as long as the circumstances, viewed objectively,
justify that action.’” Whren, supra, at 813 . . . (quoting Scott v. United States, 436
U.S. 128, 138, . . . (1978)). “[T]he Fourth Amendment's concern with
‘reasonableness' allows certain actions to be taken in certain circumstances,
whatever the subjective intent.” Whren, supra, at 814.
Id. at 153. The Court rejected the Fourth Amendment challenge, arguing that “[t]hose are
lawfully arrested whom the facts known to the arresting officers give probable cause to arrest.”
Id. at 155.
Here, all parties agree that there was probable cause to arrest Mr. Douglass for
shoplifting. Under New Mexico statute, Officer Lewandowski was permitted to “arrest without
warrant” because “he ha[d] probable cause for believing [Mr. Douglass] ha[d] committed the
27

crime of shoplifting.” N.M.S.A. § 30-16-23. Under Devenpeck, regardless of whether Officer
Lewandowski thought he was arresting Mr. Douglass for commercial burglary, Mr. Douglass’s
Fourth Amendment rights were not violated because there was probable cause for his arrest.
Unlike this Court’s holding that Officer Lewandowski’s subjective state of mind raises a genuine
dispute of material fact in support of Plaintiff’s malicious abuse of process claim against
Defendants Target and Davidson, supra I.A., here, because there was probable cause to arrest
Mr. Douglass for shoplifting, Officer Lewandowski’s subjective intent is immaterial as to
whether Mr. Douglass’s arrest violated his Fourth Amendment rights. Accordingly, because all
of Mr. Douglass’s claims against the City of Albuquerque and Officer Lewandowski require Mr.
Douglass to show that Defendants did not have probable cause to arrest him, Mr. Douglass is
unable to show that his Fourth Amendment rights were violated. Plaintiff has not shown that his
statutory or constitutional rights were violated, entitling Defendants to qualified immunity. AlKidd, 563 U.S. at 735.
CONCLUSION
Defendants Target and Davidson have failed to prove the absence of a genuine dispute of
material fact of whether Davidson altered the Rio Rancho “Criminal Trespass Notice” and
consequently had probable cause to file a complaint against Plaintiff for commercial burglary.
Therefore, Defendants’ motion for summary judgment is denied as to Counts I and II for
Malicious Abuse of Process. However, the claim in Count III for Fraud and Deceit fails as a
matter of law, as New Mexico law does not recognize Plaintiff’s theory that he need not have
relied on the misrepresentation. With respect to Count IV, summary judgment is granted with
respect to the assault claim and denied with respect to the battery claim, as the there is a genuine
dispute as to whether Plaintiff was detained in a reasonable manner. Finally, summary judgment
is not appropriate for the claim in Count V for negligent hiring and training, as Defendants have
28

failed to prove the absence of genuine disputes of material facts pertaining to several of the
underlying tortious claims against Davidson.
The Court grants Defendants City of Albuquerque and Officer Lewandowski’s Motion
for Summary Judgment on the basis of qualified immunity because Mr. Douglass did not show
the first prong of qualified immunity—that Defendants violated a constitutional or statutory
right—and dismisses all of Mr. Douglass’s claims (Counts VI–X) against the City of
Albuquerque and Officer Lewandowski.
IT IS THEREFORE ORDERED that
1. Defendants Target Corporation and Christopher Davidson’s Opposed Motion for
Summary Judgment (Doc. 34) is GRANTED IN PART AND DENIED IN PART,
as follows: summary judgment is granted as to Count III and the assault claim in
Count IV, and denied as to Counts I, II, V, and the battery claim in Count IV. Count
III and the assault claim in Count IV are hereby dismissed.
2. Defendants City of Albuquerque and Kamil Lewandowski’s Opposed Motion for
Summary Judgment (Doc. 32) is GRANTED. Counts VI–X are hereby dismissed.
DATED this 30th day of March, 2017.
__________________________________________
MARTHA VÁZQUEZ
United States District Court Judge
HOUSTON ROSS
Attorney for Plaintiff

JOSH A. HARRIS
Attorney for Defendants Target Corporation
and Christopher Davidson
JESSICA LYNN NIXON
TRISHA A. WALKER
Attorneys for Defendants City of Albuquerque
and Kamil Lewandowski

29