Martinez v. Brown et al

Filing 61

MEMORANDUM OPINION AND ORDER re 45 Response; Request for additional discovery is denied by Chief Judge M. Christina Armijo. (vv)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
GARY J. MARTINEZ
Plaintiff,
v.

No. 1:16-CV-00263-MCA-SCY

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
POLICE DEPARTMENT,
Defendants.
MEMORANDUM OPINION AND ORDER
THIS MATTER is before the Court on Plaintiff’s Rule 56(d) Response to
Defendants’ Motion for Summary Judgment Based on Qualified Immunity, filed
September 26, 2016. [Doc. 45]
Defendants filed a Motion [for] Summary Judgment Based on Qualified Immunity,
which is presently pending before the Court. [Doc. 37] Discovery has been stayed
pending its resolution. [Doc. 53] In the Rule 56(d) Response presently before the Court,
Plaintiff argues that without discovery he “cannot present facts essential to justify his
opposition” to Defendants’ Motion. [Doc. 45 p. 1] On this basis, Plaintiff seeks relief
pursuant to Fed. R. Civ. P. 56(d), which permits a nonmoving party in a summary
judgment action to discover information that is vital in opposing a motion for summary
judgment.
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DISCUSSION
Rule 56(d) pertains to circumstances in which, owing to the unavailability of
essential facts, a nonmovant is unable to effectively oppose a motion for summary
judgment. It provides that
[i]f a nonmovant shows by affidavit or declaration that, for specified
reasons, it cannot present facts essential to justify its opposition, the court
may: (1) defer considering the motion [for summary judgment] or deny it;
(2) allow time to obtain affidavits or declarations or to take discovery; or
(3) issue any other appropriate order.
Normally, a Rule 56(d) request is treated liberally. Lewis v. City of Ft.
Collins, 903 F.2d 752, 758 (10th Cir. 1990).

However, where, as here, the

summary judgment motion is grounded in the defense of qualified immunity, the
Court’s otherwise broad discretion under Rule 56(d) is circumscribed by the
nature of that defense. Lewis, 903 F.2d at 758. See Martin v. Cty. of Santa Fe,
626 Fed.Appx. 736, 740 (10th Cir. 2015) (“Because the driving force behind
creation of the qualified immunity doctrine was a desire to ensure that
insubstantial claims against government officials will be resolved prior to
discovery, there is a strong policy justification for staying discovery and for
refusing requests for additional discovery once a defendant invokes qualified
immunity as a defense.” (citation omitted)). The burden is on the nonmovant to
show that the additional discovery is necessary. Martin, 626 Fed. Appx. at 740.
Our Tenth Circuit has described the nonmovant’s burden under Rule 56(d)
as follows:
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A prerequisite to granting relief pursuant to [Rule 56(d)] is an affidavit
furnished by the nonmovant. Although the affidavit need not contain
evidentiary facts, it must explain why facts precluding summary judgment
cannot be presented. This includes identifying the probable facts not
available and what steps have been taken to obtain these facts. In this
circuit the nonmovant also must explain how additional time will enable
them to rebut movant’s allegations of no genuine issues of fact.
Price ex rel. Price v. W. Res., Inc., 232 F.3d 779, 783 (10th Cir. 2000).
Additionally, the nonmovant is required to explain what facts he wants to
discover, why he has not yet discovered them, and how additional time would help
him to rebut the movant’s allegations. Id. at 784. Plaintiff has failed to carry this
burden.
In his Rule 56(d) Response, Plaintiff contends that in order to effectively
respond to Defendants’ Motion, “at a minimum” he requires: (1) the deposition of
the ambulance driver and EMT personnel who were present at the scene of the
crash; (2) the deposition of the “appropriate person from the company that
installed and/or maintained the ignition interlock in . . . Plaintiff’s car”; (3) the
depositions of two police officers; (4) the deposition “of any witness identified by
the City who is or may be responsible for training” any of the three police officers
that participated in the investigation that led to Plaintiff’s incarceration; (5) the
deposition of any witness who may be responsible for the promulgation and/or
implementation of policies and procedures regarding probable cause determination
in DWI arrests and drug recognition; (6) responses to requests for production; (7)
responses to requests for admission; and (8) responses to interrogatories. [Doc. 45

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¶¶ 1-8] In sum, through his Rule 56(d) Response, Plaintiff seeks virtually full
discovery.
While Plaintiff has furnished an Affidavit of the Plaintiff in Support of his
Response to Defendants’ Motion for Summary Judgment Based on Qualified
Immunity, the Affidavit does not satisfy the standards set by our Tenth Circuit.
The Affidavit contains only two statements that reasonably correspond to the
requested discovery.1 One is Plaintiff’s statement that: “Although EMTs were
called to the scene, the APD officers sent them away and did not give them an
opportunity to offer me medical assistance or to examine me. I believe that if they
had been allowed to do so, they would have learned that a seizure had caused me
to crash and to perform poorly on the field sobriety test.” [Doc. 45-1 ¶ 4] The
other is Plaintiff’s statement that: “I used the interlock installed in my car vehicle
(sic) to start it before the crash. It may have been dislodged and/or damaged by
the collision and was lying on the floor of the car when I regained consciousness.”
[Doc. 45-1 ¶ 6]

The Court understands these statements to pertain to the

prospective witness testimony of the EMT personnel and the ignition interlock
employee.
The Affidavit does not explain what steps Plaintiff took to contact or
interview these individuals, or why additional time is necessary. See Price, 232
F.3d at 783-84. Plaintiff’s failure to address these factors is particularly curious

1

Additional statements in the Affidavit comprise Plaintiff’s own recollection of the
events.
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because there is no indication that exclusive access to these prospective witnesses
is within Defendants’ control. See id. at 784 (recognizing that opposing party’s
“exclusive control of desired information is a factor favoring relief under” Rule
56(d)). Furthermore, neither the Affidavit nor the Rule 56(d) Response explains
how the discovery, which appears to seek speculative and hypothetical opinions
from the prospective witnesses, would enable Plaintiff to rebut Defendants’
presentation of undisputed facts such that a “genuine issue” would arise. Id. at
784; Martin, 626 Fed.Appx. at 741 (affirming the district court’s denial of a
request for additional discovery where the plaintiff failed to demonstrate how
additional discovery would have raised a genuine fact issue as to the defendant’s
qualified immunity defense).
In sum, Plaintiff’s Rule 56(d) Response does not satisfy the requirements
applicable to a request for additional discovery under Rule 56(d) set forth by our
Tenth Circuit. Accordingly, Plaintiff’s request for discovery shall be denied.
CONCLUSION
IT IS HEREBY ORDERED that Plaintiff’s request for additional
discovery pursuant to Fed. R. Civ. P. 56(d) is DENIED.
SO ORDERED this 21st day of March, 2017 in Albuquerque, New
Mexico.
___________________________
M. CHRISTINA ARMIJO
Chief United States District Judge

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