Martinez v. Brown et al
MEMORANDUM OPINION AND ORDER granting 19 MOTION for Partial Summary Judgment Requesting Dismissal of Plaintiff's Claims Under the New Mexico Tort Claims Act (Counts IV, V, and VI) Against Defendant City of Albuquerque by Chief Judge M. Christina Armijo. (vv)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
GARY J. MARTINEZ
JASON C. BROWN, individually
and in his official capacity with the
Albuquerque Police Department;
CITY OF ALBUQUERQUE,
a municipal entity organized under
the laws of the STATE OF NEW MEXICO,
and its Subsidiary, the ALBUQUERQUE
MEMORANDUM OPINION AND ORDER
THIS MATTER is before the Court on Defendants’ Motion for Partial Summary
Judgment Requesting Dismissal of Plaintiff’s Claims Under the New Mexico Tort Claims
Act (Counts IV, V, and VI) Against Defendant City of Albuquerque, filed June 10, 2016.
[Doc. 19] This Court, has considered the Motions, the briefs, the relevant law, and is
otherwise fully informed. For the reasons that follow, the Court GRANTS Defendants’
Standard of Review
Rule 56 of the Federal Rules of Civil Procedure allows summary judgment when
the evidence submitted by the parties establishes that no genuine issue of material fact
exists and the moving party is entitled to judgment as a matter of law. An issue is
“genuine” when the evidence before the Court is such that a reasonable jury could return
a verdict in favor of the nonmovant as to that issue. Anderson v. Liberty Lobby Inc., 477
U.S. 242, 248-52 (1986). A fact is “material” if under the substantive law it is essential
to the proper disposition of the claim. Id. at 248. Judgment is appropriate as a matter of
law if the nonmovant has failed to make an adequate showing on an essential element of
its case, as to which it has the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S.
317, 322-23 (1986); Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670-71 (10th Cir.
It is not the Court’s role to weigh the evidence, assess the credibility of witnesses, or
make factual findings in ruling on a motion for summary judgment. Daniels v. United
Parcel Serv., Inc., 701 F.3d 620, 627 (10th Cir. 2012). Rather, the Court assumes the
admissible evidence of the nonmovant to be true, resolves all doubts against the movant,
construes all admissible evidence in the light most favorable to the nonmovant, and draws
all reasonable inferences in favor of the nonmovant. Hunt v. Cromartie, 526 U.S. 541,
On May 15, 2015, Plaintiff crashed his vehicle into the center median at an
intersection in Albuquerque, New Mexico. [Doc. 19 p. 2; Doc. 29 p. 1] Albuquerque
Police (APD) Officer Jason Brown, one of the Defendants in this matter, responded to the
scene of the crash and arrested Defendant for driving under the influence of intoxicating
liquor or drugs, a fourth offense; careless driving; and driving with a suspended license.
[Doc. 19 ¶ 1; Doc. 19-1 p. 2-3] After he was arrested, Plaintiff was given a breath
alcohol test which showed a negative result for alcohol. [Doc. 29 ¶ 4; Doc. 19-1 p. 3]
Officer Matt Trahan then conducted a “drug recognition investigation” to determine
whether Plaintiff was under the influence of drugs. [Doc. 19-1 p. 3, 13] Officer Trahan
concluded that Plaintiff was under the influence of a central nervous system stimulant
that rendered him unable to safely operate a vehicle. [Doc. 19-1 p. 3] A blood technician
drew a sample of Plaintiff’s blood and sent it to the Scientific Laboratory Division (SLD)
for testing. [Doc. 19-1 p. 3, 13]
When Plaintiff was arrested, he had four or more prior convictions for DWI, he
was on probation, and his driver’s license was revoked. [Doc. 19-1 p. 3] The probation
department issued a “no bond hold” as a result of which, Plaintiff remained in jail at the
Metropolitan Detention Center. [Doc. 19-1 p. 3; Doc. 29 ¶ 5]
When SLD tested Plaintiff’s blood sample, no drugs were detected. [Doc. 19-1 p.
13] Plaintiff was released from jail on July 14, 2015. [Doc. 29 ¶ 5; 29-1 ¶ 8; Doc. 31 p.
5] And, on July 23, 2015, the district attorney nolle prosequied the charges against
Plaintiff on the ground that his blood test results revealed that he was not under the
influence of drugs or alcohol at the time of his arrest. [Doc. 29-3]
On September 21, 2015, Plaintiff sent a tort claims notice to the Risk Management
Division of the City of Albuquerque. [Doc. 19 ¶ 2; Doc. 19-2] The notice advised the
City that Plaintiff intended to pursue a lawsuit arising from his May 15, 2015, “false
arrest.” [Doc. 19-2] In March, 2016, Plaintiff filed the present lawsuit. [Doc. 1-1 p. 1]
Plaintiff’s Complaint included the following relevant claims: Count IV: Negligence by
the City of Albuquerque Under the New Mexico Tort Claims Act; Count V: Claim for
Deprivation of Rights, Privileges and Immunities Under the New Mexico Tort Claims
Act; and VI: Denial of Due Process Under the New Mexico Tort Claims Act. [Doc. 1-1
p. 5-7] Each of these claims was premised on Officer Brown’s conduct in arresting
Plaintiff. [Doc. 1-1 p. 5-8]
In the present Motion, Defendants seek dismissal of Counts IV, V, and VI, on the
ground that Plaintiff failed to give the City written notice of his tort claims as required by
Section 41-4-16 of New Mexico Tort Claims Act (NMTCA). Defendants Motion rests
upon the following three undisputed facts:
1. On May 15, 2015 Plaintiff was arrested by Defendant Jason Brown . . .
for Driving under the Influence of Intoxicating Liquor or Drugs, Fourth
Offense; Careless Driving; and Driving While License Suspended.
2. On September 21, 2015, Plaintiff sent a tort claims notice to the City of
Albuquerque . . . Risk Management Department and Mayor Richard J.
3. The City of Albuquerque is a governmental entity as defined by the
New Mexico Tort Claims Act.
[Doc. 19 ¶¶ 1-3]
The NMTCA Notice Requirement
Every person who claims damages from the state or any local public body
under the Tort Claims Act shall cause to be presented to the risk
management division for claims against the state, the mayor of the
municipality for claims against the municipality . . . or to the administrative
head of any other local public body for claims against such local public
body, within ninety days after an occurrence giving rise to a claim for
which immunity has been waived under the Tort Claims Act, a written
notice stating the time, place and circumstances of the loss or injury.
NMSA 1978, § 41-4-16(A) (1977). The notice requirement operates as a statute of
limitations, barring an action unless notice is provided within the ninety day time frame.
Ferguson v. N.M. State Highway Comm’n., 1982-NMCA-180, ¶ 14; NMSA 1978 § 41-416(B) (“No suit or action for which immunity has been waived under the Tort Claims Act
shall be maintained and no other court shall have jurisdiction to consider any suit or
action against the state or any local public body unless notice has been given[.]”). A
single exception to the notice requirement exists—that is, where “the governmental entity
had actual notice of the occurrence.” Id.
Plaintiff’s “Actual Notice” Argument
The undisputed facts of this case illustrate that Plaintiff’s tort claims notice was
sent to the City more than four months after his arrest, which is the incident that gave rise
to his tort claims. Rather than concede that, having sent his notice too late, his tort claims
against the City are barred, Plaintiff seeks through various rationales to circumvent the
written notice requirement. The first of these rationales is Plaintiff’s argument that he
was exempt from the written notice requirement because the City had “actual notice” of
the circumstances giving rise to his tort claims. [Doc. 29 p. 4-6]
“The standard for actual notice under Section 41-4-16(B)” is “that the state must
be given notice of a likelihood that litigation may ensue[.]” Callaway v. N.M. Dep’t of
Corrections, 1994-NMCA-049, ¶ 6. The notice must “reasonably alert the state to the
necessity of investigating the merits of the potential claim.” Id. Standing alone, “actual
notice of the occurrence of an accident or injury” does not satisfy this standard. Id.
Plaintiff argues that through “the combination” of documents available to it, the
City had actual notice of his potential tort claim. [Doc. 29 p. 5] In Plaintiff’s view this
effective “combination” includes:
(1) the report of the arrest; (2) documents showing that the Plaintiff had
been booked into MDC and remained there; (3) the results of the
intoxilyzer showing a breath alcohol concentration of 00.00%; (4) the
results of his blood draw showing a complete absence of drugs or
metabolites and (5) the nolle prosequi showing that the charges against the
Plaintiff were dismissed because he was not intoxicated when he was
arrested—after he had been incarcerated for more than a month on those
[Doc. 29 p. 5] In support of this argument, Plaintiff cites Lopez v. State, 1996-NMSC071; and Callaway, 1994-NMCA-049.
Lopez and Callaway exemplify the practical meaning of “actual notice” in Section
41-4-16(B). Central to the analysis in Lopez was an incident in which the plaintiff fell
and was injured in a courtroom at the Bernalillo County Metropolitan Court (Metro
Lopez, 1996-NMSC-071, ¶ 1.
The undisputed facts showed that after the
plaintiff’s accident, the Metro Court building administrator prepared an accident report
stating that the plaintiff had been transported to the hospital, and stating the date, time,
and location of the plaintiff’s accident, as well as the names and contact information of
three witnesses. Id. ¶ 5. A Bernalillo County sheriff’s deputy also investigated the
plaintiff’s accident and prepared a report. Id. ¶ 4. The deputy’s report detailed the
circumstances of the accident, and indicated that the plaintiff was incapacitated and
transported to the hospital. Id. The Metro Court building administrator sent both reports
to Risk Management, which is the agency that is under a duty to “compromise, adjust,
settle and pay claims.” Id. ¶ 5. The Lopez Court concluded that based on the known
facts and circumstances, the Metro Court could reasonably have inferred that that the
plaintiff might file a lawsuit, reasoning that, from its “actual notice of the occurrence” the
Metro Court had actual notice that it may be subject to a claim. Id. ¶¶ 15-16.
In Callaway the plaintiff, who was an inmate at the state penitentiary, filed a tort
claim against the state after he was beaten by other inmates. Callaway, 1994-NMCA049, ¶ 4. After the incident, the plaintiff’s wife and his attorney took several actions that
the Callaway court determined could be construed as actual notice of a potential tort
Id. ¶ 5-8.
These actions included: a letter from the plaintiff’s wife to the
Department of Corrections requesting a summary of the plaintiff’s medical records and
information about the incident; a letter from the plaintiff’s wife to the Governor’s Office
regarding the incident, which letter was forwarded by the Governor’s Office to the
Secretary of the Department of Corrections with instructions to “take whatever action” he
deemed appropriate; correspondence between the Department of Corrections and the
plaintiff initiated by the plaintiff’s attorney in which the attorney requested an
investigation into the incident; notes taken by the plaintiff’s Department of Corrections
caseworker indicating that the plaintiff and his wife had hired an attorney as a result of
the incident; and evidence that the plaintiff’s father may have informed the prison
chaplain that the plaintiff intended to sue the state as a result of the incident. Id. ¶ 5.
Taken together, the Callaway court concluded, these various communications could
amount to actual notice of impending litigation. Id. ¶ 8.
In contrast to Lopez and Callaway, where the governmental entity knew of the
injury and it had reasonable notice that litigation may ensue, New Mexico courts have
consistently rejected the notion that the actual notice standard is satisfied by mere “notice
of the occurrence of an accident or injury.” Callaway, 1994-NMCA-049, ¶ 6; Dutton v.
McKinley Cnty. Bd. of Comm’rs, 1991-NMCA-130, ¶ 9 (stating that it is “firmly
established that the notice required is not simply actual notice of the occurrence of an
accident or injury but rather, actual notice that there exists a likelihood that litigation may
ensue”). For example, the New Mexico Court of Appeals held that a medical resident’s
report to residency administrators that she was raped by a fellow resident did not provide
“actual notice” of a potential lawsuit against UNM Hospital arising out of the alleged
rape. Herald v. Bd of Regents of the Univ. of N.M., 2015-NMCA-104, ¶¶ 48-51. Nor
was the actual notice standard satisfied by a wrongful death plaintiff’s report to
“appropriate personnel” at a county housing authority that, as a result of the county’s
failure to install a smoke alarm and to maintain a chimney in a house that it subsidized,
the plaintiff’s daughter and grandchildren perished in a house fire. Cobos v. Dona Ana
Cnty. Hous. Auth., 1995-NMCA-132, ¶¶ 4, 13-14 (“Although the [c]ounty knew about
the fire and its possible causes, the [d]efendants did not have actual notice that [the
plaintiff] would bring a claim against the [c]ounty.”), rev’d in part on other grounds,
1998-NMSC-049. Nor was the “actual notice” standard satisfied where a police report
indicated that passengers in a car had been injured when a guardrail penetrated the length
of the car, the highway department’s foreman had a conversation with state police about
the accident, and the highway department had “special knowledge” of the hazard of the
particular type of guardrail at issue. Powell v. N.M. State Highway & Transp. Dep’t,
1994-NMCA-035, ¶¶ 14-18 (“Even when these factors are considered jointly, there is no
evidence that the [highway department] had notice that this particular accident was likely
to result in litigation against the [d]epartment or that the [p]laintiff considered the
accident to be the [d]epartment’s fault.”).
In sum, a governmental entity’s notice of an accident or injury no matter how
egregious, does not constitute “actual notice” under Section 41-4-16(B) unless the
governmental entity is also on notice that the plaintiff is contemplating litigation. Thus,
in Herald, Cobos, and Powell, where the governmental entity knew of the incidents that
eventually led to litigation; such knowledge did not constitute actual notice. In Lopez and
Callaway, on the other hand, the governmental entities’ knowledge of the litigationcausing incident combined with the knowledge that litigation would likely ensue satisfied
the actual knowledge standard.
Turning again to the facts of this case, even giving Plaintiff the benefit of all doubt
and assuming that “the combination” of documents that he relies on to establish “actual
notice” was in the hands of City administrators, that fact would not satisfy the actual
notice standard. Assuming that the City was aware that Plaintiff had been arrested and
jailed for driving under the influence and that the results of his blood draw led to his
eventual exoneration, the City was merely on notice of the incident itself. Nothing in the
documents would reasonably have led the City to infer that Plaintiff was contemplating
litigation as a result of his “wrongful” arrest. Therefore, as a matter of law, the City did
not have actual notice of Plaintiff’s tort claims.
Plaintiff’s Tolling Argument
Plaintiff argues, in the alternative, that the ninety day notice requirement was
tolled while he was in jail. [Doc. 29 p. 6-10] Plaintiff submits three theories by which he
seeks to persuade the Court of his tolling argument.
First, Plaintiff argues that he was under a “legal disability” by virtue of his
incarceration because he had no access to a legal library and therefore no way of learning
about the ninety day notice requirement. [Doc. 29 p. 6-7] He argues, further, that the
ninety days did not begin to run until he conferred with an attorney, at which point,
armed with knowledge of the notice requirement, his “legal disability” presumably
ended. [Doc. 29 p. 7]
Plaintiff’s ignorance of the law does not constitute a legal disability such that it
effectively tolled the ninety day notice requirement. Coslett v. Third St. Grocery, 1994NMCA-046, ¶ 24 (rejecting the argument that ignorance of one’s legal rights tolls the
statute of limitations; and reasoning that an “action accrues when the plaintiff knows or
should know the relevant facts, whether or not the plaintiff also knows that these facts are
enough to establish a legal cause of action”); see Ferguson, 1982-NMCA-180, ¶ 14
(stating that the Section 41-4-16(A) notice requirement is effectively a statute of
limitations). Plaintiff’s argument to the contrary is not persuasive.
Secondly, Plaintiff argues that, under the discovery rule, the ninety day notice
period did not commence until the charges against him were nolle prosequied. [Doc. 29
p. 7-8] Plaintiff reasons that the discovery rule tolled the notice requirement in this case
because “Plaintiff did not know that the City was aware that he was not intoxicated when
he was arrested until it filed the nolle prosequi on June 23, 2015[.]” [Doc. 29 p. 8]
Plaintiff’s argument misapprehends the discovery rule.
“The discovery rule provides that the cause of action accrues when the plaintiff
discovers or with reasonable diligence should have discovered that a claim exists.”
Williams v. Stewart, 2005-NMCA-061, ¶ 12; see Montano v. Frezza, 2015-NMCA-069, ¶
38 (stating that the discovery rule applies to ninety day notice requirement); rev’d on
other grounds, NO. S-1-SC-35214, NO. S-1-SC-35297, 2017 WL 962447 (N.M. Mar. 13,
2017). The determinative date is that on which the plaintiff learns of his injury and its
cause. Maestas v. Zager, 2007-NMCA-003, ¶ 22. Thus, it is the plaintiff’s knowledge of
his injury not, as Plaintiff implies here, the tortfeasor’s knowledge of its wrongdoing that
constitutes the operative “discovery” under the discovery rule.
Because Plaintiff was present and conscious during his arrest and concomitant
interactions with the officers, he was immediately aware of the injury underlying his tort
claims. Accordingly, Plaintiff’s discovery rule argument is not persuasive.1
Finally, Plaintiff argues that the ninety day notice period should be equitably
tolled to account for the time that he was prevented from seeking counsel because he was
in jail. [Doc. 29 p. 9-11] “Equitable tolling . . . operates to suspend the statute of
limitations in situations where circumstances beyond a plaintiff’s control prevented the
plaintiff from filing in a timely manner.” Slusser v. Vantage Builders, Inc., 2013NMCA-073, ¶ 7.
Assuming without deciding that Plaintiff was “prevented from seeking counsel”
while he was in jail, his equitable tolling argument fails nonetheless. Plaintiff was in jail
for sixty days, from May 15, 2015 until July 14, 2015. After he was released, Plaintiff
the extent that Plaintiff’s “discovery rule” argument may be construed as an assertion
that, until the charges against him were dismissed by the district attorney, Plaintiff had
yet to discover that he was not driving under the influence of illegal drugs or alcohol and,
by extension, that he was wrongfully arrested, the Court rejects this absurdity out of
had thirty days within which to seek counsel and submit a timely tort claims notice. His
failure to do so cannot reasonably be attributed to Defendants.
For the foregoing reasons, Defendants’ Motion for Partial Summary Judgment
Requesting Dismissal of Plaintiff’s Claims Under the New Mexico Tort Claims Act
(Counts IV, V, and VI) Against Defendant City of Albuquerque, is GRANTED.
SO ORDERED this 21st day of March, 2017 in Albuquerque, New Mexico.
M. CHRISTINA ARMIJO
Chief United States District Judge
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