Ganley v. Jojola et al
Filing
54
MEMORANDUM OPINION AND ORDER granting 32 MOTION for Summary Judgment by District Judge James O. Browning. (vv)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
JOHN GANLEY,
Plaintiff,
vs.
No. CIV 17-0432 JB\SMV
ERIC JOJOLA, in his individual capacity,
and CITY OF ALBUQUERQUE,
Defendants.
MEMORANDUM OPINION AND ORDER
THIS MATTER comes before the Court on: (i) Defendants Eric Jojola and City of
Albuquerque’s Motion for Summary Judgment on Qualified Immunity and Other Grounds, filed
December 21, 2017 (Doc. 32)(“MSJ”); and (ii) Plaintiff John Ganley’s Motion for a Continuance
of the Motion for Summary Judgment to Permit Discovery Pursuant to Rule 56(d) and Affidavit
at 1, filed January 1, 2018 (Doc. 35)(“Rule 56(d) Motion”). The Court held a hearing on June 4,
2018. The primary issues are: (i) whether Defendant Eric Jojola violated Ganley’s constitutional
rights under the Fourth and Fourteenth Amendments of the Constitution of the United States by
securing an arrest warrant based on the Criminal Complaint -- Arrest Warrant Affidavit (executed
March 14, 2016), filed December 21, 2017 (Doc. 32-1)(“Warrant Aff.”), which Jojola authored,
that incorrectly identifies Ganley as having committed check fraud; (ii) whether Jojola violated
Ganley’s constitutional rights by not uncovering evidence of Ganley’s innocence; (iii) whether
Jojola would have violated Ganley’s constitutional rights if he did not achieve Ganley’s release
immediately upon finding exculpatory evidence in Ganley’s booking sheet; and (iv) whether
Ganley needs further discovery to defend against the MSJ. The Court concludes that: (i) Jojola
did not violate Ganley’s constitutional rights by submitting the Warrant Aff., because the Warrant
Aff. cured of its alleged inaccuracies establishes probable cause for Ganley’s arrest; (ii) Jojola did
not violate Ganley’s constitutional rights by not uncovering exonerating evidence, because Jojola
did not act recklessly or deliberately; (iii) Jojola would not have violated Ganley’s constitutional
rights if he had ignored exonerating evidence on Ganley’s booking sheet, because Ganley was
already released from detention before Jojola could have acted on the booking sheet’s exonerating
evidence; and (iv) further discovery is not necessary to defend against the MSJ, because Ganley
does not identify specific information necessary to establish a constitutional violation.
Accordingly, the Court grants the MSJ’s requests to dismiss Ganley’s Fourth and Fourteenth
Amendment claims in Count I of Ganley’s First Amended Complaint for Damages for Violation
of Civil Rights and Tort Claims, filed August 8, 2017 (Doc. 22)(“Complaint”), and denies the Rule
56(d) Motion. The Court also dismisses the Complaint’s municipal liability claim in Count III,
because that claim requires that Ganley prove a city employee violated Ganley’s federal
constitutional rights, and the Court determines that Jojola did not violate Ganley’s constitutional
rights. Having granted summary judgment on all the Complaint’s federal claims, the Court
declines to exercise supplemental jurisdiction over the remaining state law claims and remands
them to the County of Bernalillo, Second Judicial District Court, State of New Mexico.
FACTUAL BACKGROUND
The Court draws the factual background from the parties’ undisputed material facts in their
MSJ briefing. See MSJ ¶¶ 1-23, at 2-5; Plaintiff’s Response to Defendants Eric Jojola and the
City of Albuquerque’s Motion for Summary Judgment on Qualified Immunity and Other Grounds
¶¶ 2-23, at 2-6, filed June 18, 2018 (Doc. 47)(“MSJ Response”); Defendants Eric Jojola and City
of Albuquerque’s Reply in Support of Their Motion for Summary Judgment on Qualified
Immunity and Other Grounds ¶¶ 1-13, at 1-5, filed July 11, 2018 (Doc. 51)(“MSJ Reply”). Jojola,
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a law enforcement officer for the City of Albuquerque, began investigating a “large amount of
stolen mail” in October, 2015. MSJ ¶ 3, at 2 (asserting this fact). See MSJ Response ¶ 3, at 2
(admitting this fact). During Jojola’s investigation, Postal Inspector Brad Specht told Jojola that
a man named Ganley cashed a forged check (“Ganley Check”) on September 4, 2015. See MSJ
¶ 4, at 2 (asserting this fact); Warrant Aff. at 1; Affidavit of Detective Eric Jojola ¶ 3, at 1 (executed
December 21, 2017), filed December 21, 2017 (Doc. 32-2)(“Jojola Aff.”). 1 Jojola contacted an
investigator, Steve Torbett, 2 on March 3, 2016, about the Ganley Check, and Torbett gave Jojola
a copy of the Ganley Check. See MSJ ¶ 6, at 2-3 (asserting this fact); Warrant Aff. at 1; Jojola
Aff. ¶¶ 5-6, at 1. 3 Torbett also gave Jojola still photographs from a surveillance video showing a
1
Ganley purports to dispute this fact. See MSJ Response ¶ 4, at 3. Ganley argues that
“Jojola was already on alert . . . that the names added as payees to the altered checks in question,
including the name of John Ganley, may have belonged to victims of identity theft” and, therefore,
Jojola knew that “Mr. Ganley’s name had been used as the payee of the check -- not that John
Ganley had cashed a check.” MSJ Response ¶ 4, at 3 (citing Burt Report at 1 (dated September
21, 2015), filed June 18, 2018 (Doc. 47-1)(stating that it was “unknown” if the checks’ forged
payee names -- including Ganley’s -- “are offenders or victim[s] of identity theft”)). What Burt
put in his report, and what Jojola might have thought about it, does not relate to whether Specht
told Jojola that Ganley cashed a forged check. The Court therefore deems this fact undisputed.
See Fed. R. Civ. P. 56(e)(2); D.N.M.LR-Civ. 56.1(b) (“All material facts set forth in the Response
will be deemed undisputed unless specifically controverted.”).
2
The record does not reveal for whom Torbett worked as an investigator. See Defendants
Eric Jojola and City of Albuquerque’s Response in Opposition to Plaintiff’s ‘Motion for a
Continuance of the Motion for Summary Judgment to Permit Discovery Pursuant to Rule 56(d)
and Affidavit,’ filed February 1, 2018 (Doc. 36)(“Rule 56(d) Response”)(stating that “Torbett is
not an employee of the City of Albuquerque nor was he an employee at the time of the events in
question”).
3
The Defendants assert that Torbett “provided Detective Jojola with a copy of the forged
check cashed by John Ganley.” MSJ ¶ 6, at 2-3 (emphasis added). Ganley disputes that fact,
noting that he did not cash the check. See MSJ Response ¶ 6, at 3 (citing Jojola Aff. ¶ 24, at 3
(stating that, as of October 19, 2016, “it was learned that [Ganley] had likely been the victim of
identity theft and was no longer a suspect”)). The Defendants respond that Ganley’s dispute is
“immaterial,” as he bases his attempt to show a dispute of facts on information “acquired . . . after
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white male with brown hair cashing the Ganley Check. See MSJ ¶ 7, at 3 (asserting this fact);
MSJ Response ¶ 7 at 3 (not disputing this fact) 4; Warrant Aff. at 1; Jojola Aff. ¶ 7 at 1.
In his investigation, Jojola learned that a bank teller wrote down a driver’s license number
associated with the Ganley Check. See MSJ ¶ 8, at 3 (asserting this fact); MSJ Response ¶ 8, at 4
(admitting this fact). Jojola also learned that the person cashing the Ganley Check left a fingerprint
on the check. See MSJ Response ¶ 8, at 4 (asserting this fact); Warrant Aff. at 1. 5 Jojola did not
analyze the fingerprint before executing the Warrant Aff. See MSJ Response ¶ 8, at 4 (asserting
the [Warrant Aff.] was submitted.” MSJ Reply ¶ 4, at 3 (citing Montoya v. Ramos, No. 1:13 CV0773 WJ-SCY, 2017 WL 4325731, at *1 (D.N.M. Sept. 26, 2017)(Johnson, J.)). The Court
presumes the Defendants cite to Montoya v. Ramos for its recognition that “[t]he existence of
probable cause is determined in terms of the circumstances confronting the arresting officer at the
time of the seizure, and so the validity of an arrest is not affected by subsequent events.” Montoya
v. Ramos, 2017 WL 4325731, at *1. The Court has no quibble with the Honorable William Paul
Johnson, Chief Judge for the United States District Court for the District of New Mexico, on that
issue, but the Defendants miss the point of what the Court is trying to do here: determine which
facts are undisputed. Torbett did not give Jojola a copy of the check that Ganley cashed,
because -- if there is one thing on which the parties all agree -- Ganley was not the one who cashed
that check. Therefore, Ganley’s purported dispute with the Defendants’ statement that Ganley
cashed the check is not a genuine dispute, because the Defendants do not mean to assert that as a
fact.
Ganley states, however, that he “does not have any information to dispute that Steve
Torbett provided a copy of the forged check to Defendant Jojola.” MSJ Response ¶ 6, at 3. Thus
the Court deems that fact to be undisputed. See D.N.M.LR-Civ. 56.1(b)(“All material facts set
forth in the Response will be deemed undisputed unless specifically controverted.”).
4
Ganley asserts that he has “no information to dispute that Mr. Torbett provided still
photographs of the transaction involving the altered check.” MSJ Response ¶ 7 at 3. The Court
therefore deems this fact undisputed. See D.N.M.LR-Civ. 56.1(b) (“All material facts set forth in
the [Motion for Summary Judgment] will be deemed undisputed unless specifically
controverted.”).
5
The Defendants do not address this fact in its MSJ Reply. The Court therefore deems this
fact undisputed. See D.N.M.LR-Civ. 56.1(b) (“All material facts set for in the Response will be
deemed undisputed unless specifically controverted”).
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this fact); MSJ Reply ¶ 6, at 3 (not disputing this fact); Warrant Aff. at 1 (stating that “a forensic
comparison will be ordered to match the fingerprint on the check to John’s fingerprint”).
Jojola searched New Mexico’s Motor Vehicle Department (“MVD”) records for the
driver’s license number. See MSJ ¶ 9, at 3 (asserting this fact); Jojola Aff. ¶ 9, at 2. 6 The driver’s
license number belongs to Ganley. See MSJ ¶ 10, at 3 (asserting this fact); MSJ Response ¶ 10,
at 4 (admitting this fact); Jojola Aff. ¶ 10, at 2. Jojola obtained a MVD photograph of Ganley.
See MSJ ¶ 11, at 3 (asserting this fact); MSJ Response ¶ 11, at 4 (admitting this fact); Warrant Aff.
at 1; Jojola Aff. ¶ 11, at 2. Ganley’s MVD photograph shows Ganley with short brown hair. See
MSJ ¶ 12, at 3 (asserting this fact); MSJ Response ¶ 12, at 4 (admitting this fact); Jojola Aff. ¶ 12,
at 2. Jojola compared Ganley’s MVD photograph with the surveillance video photographs of the
man cashing the Ganley Check. See MSJ ¶ 12, at 3 (asserting this fact); MSJ Response ¶ 12, at 4
(admitting this fact); Jojola Aff. ¶ 12, at 2. Ganley in his MVD photograph and the man in the
surveillance video photographs are both white men with short brown hair. See MSJ ¶ 12, at 3
(asserting this fact); MSJ Response ¶ 12, at 4 (admitting this fact); Jojola Aff. ¶ 12, at 2. Jojola
thought that the person in the surveillance video “appeared to be of a similar age” to Ganley in his
MVD photograph. MSJ ¶ 13, at 5 (asserting this fact); Jojola Aff. ¶ 13, at 2. 7 Ganley was thirty-
6
Ganley states that he “does not have information to dispute” this fact. MSJ Response ¶ 9,
at 4. The Court therefore deems this fact undisputed. See D.N.M.LR-Civ. 56.1(b) (“All material
facts set forth in the [motion for summary judgment] will be deemed undisputed unless specifically
controverted.”).
7
Ganley purports to dispute this fact, arguing that Ganley is roughly ten years older than
the man in the surveillance footage, and that the MVD records show Ganley’s age and listed other
facts that indicated that Ganley was not the man in the surveillance footage, such as that Ganley
was listed at 6’2” and over 200 pounds, and the man in the surveillance footage is not that big.
See MSJ Response ¶ 13, at 5. Ganley also argues that his booking sheet indicates that he does not
have any tattoos, but the man in the surveillance footage had tattoos on his arms. See MSJ
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nine years old when the Ganley Check was cashed; the man cashing the Ganley check was about
twenty-nine years old at that time. See MSJ Response ¶ 13, at 5 (asserting this fact); New Mexico
Driver License Inquiry at 1, filed December 21, 2017 (Doc. 32-5)(stating that Ganley was born on
March 18, 1976). 8 The man cashing the check had tattoos on his arms, but Ganley’s MVD
Response ¶ 13, at 5. These assertions do not dispute that Jojola thought the men in the photographs
were of similar age. The Court therefore deems this fact undisputed. See D.N.M.LR-Civ. 56.1(b)
(“All material facts set forth in the [Motion for Summary Judgment] will be deemed undisputed
unless specifically controverted.”).
To be sure, the Defendant’s use of the word “observe” may confuse this issue. See MSJ
Response ¶ 13, at 5. The Defendants assert: “Comparing the photographs, Detective Jojola also
observed that the person pictured in the surveillance video photographs appeared to be of a similar
age to the individual pictured in the MVD photograph.” MSJ Response ¶ 13, at 5 (citing Jojola
Aff. ¶ 13, at 2). “Observing” that something is the case suggests that the thing observed is
objectively true; one typically does not “observe” that something is so when that thing is the
observer’s subjective opinion.
E.g., Observe, Merriam-Webster, https://www.merriamwebster.com/dictionary/observe (last visited April 17, 2019)(“to watch carefully especially with
attention to details or behavior for the purpose of arriving at a judgment”); id. (“to come to realize
or know especially through consideration of noted facts”).
In context, however, it is clear that the Defendants mean to assert that Jojola subjectively
concluded that they were of a similar age. First, the Defendants later frame this factual assertion
as a fact that Jojola reached a certain conclusion, not that the conclusion is true: “[T]hat the
individuals pictured in the photographs were different ages, weight, and height, does not change
the fact that Detective Jojola made observations through his comparison of the photographs.” MSJ
Reply ¶ 8, at 3 (emphasis added). Second, the Defendants, throughout their MSJ, assert facts that
can only sensibly be understood as reflecting Jojola’s subjective point of view rather than as a
literal statement of facts.
Nevertheless, the pictures’ similarity factors into the Court’s analysis in this Memorandum
Opinion and Order. Many of Ganley’s claims depend on whether there was probable cause for his
arrest. For instance, Ganley argues that Jojola’s assertion, in the Warrant Aff., that he “verified”
that Ganley was the man in the surveillance video cashing the check, was deceptive, and that, had
the judge understood what Jojola meant, there would not be probable cause for his arrest. See
Complaint at ¶¶ 38-40, at 7-8. When a party contends that there would be no probable cause absent
false statements or deceptive omissions, courts consider whether there is probable cause even after
curing the arrest warrant’s perfidy. See Kerns v. Bader, 663 F.3d 1173, 1188 (10th Cir.
2011)(Gorsuch, J.). The Court thus considers whether probable cause remains once the
photographs’ dissimilarities are taken into account.
8
The Defendants purport to dispute these facts. See MSJ Reply ¶ 8, at 3. According to the
Defendants, Ganley and the other man’s age, weight, and height do “not change the fact that
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photograph does not show his arms. See MSJ ¶ 14, at 4 (asserting this fact); New Mexico Driver
License Inquiry at 1; Surveillance Video Images at 1-7, filed December 21, 2017 (Doc. 32-4). 9
Jojola concluded that Ganley was the man in the surveillance video cashing the check. MSJ ¶ 15,
at 4 (asserting this fact); Jojola Aff. ¶ 15, at 2. 10 On March 7, 2017, Jojola spoke with the check’s
Detective Jojola made observations through his comparison of the photographs.” MSJ Reply ¶ 8,
at 3. The Defendants also contend that the facts about Ganley’s tattoos are immaterial to the
probable-cause determination. See MSJ Reply ¶ 8, at 3. The Defendants dispute these facts’
materiality and not their veracity. The Court therefore deems these facts undisputed. See
D.N.M.LR-56.1(b) (“All material facts set forth in the [Motion for Summary Judgment] will be
deemed undisputed unless specifically controverted.”). The Court will consider these facts’
materiality infra in its analysis.
9
Ganley “admits that the MVD photograph does not show Plaintiff’s arms,” but argues that
“his face and that of the correct suspect are so different that it was objectionably unreasonable for
Defendant Jojola to consider them the same person.” MSJ Response ¶ 14, at 5. Whether their
facial features are so different that it was unreasonable to conclude that they are the same person
does not implicate whether the MVD photograph shows Ganley’s arms. The Court therefore
deems this fact undisputed. See D.N.M.LR-Civ. 56.1(b) (“All material facts set forth in the
[motion for summary judgment] will be deemed undisputed unless specifically controverted.”).
10
Ganley purports to dispute this fact. See MSJ Response ¶ 15, at 5. In the MSJ, the
Defendants assert that, “[b]ased on the identity of the name with the driver’s license number and
the similarities Detective Jojola observed between the two sets of photographs, Detective Jojola
verified that John Ganley cashed the check on September 4, 2015.” MSJ ¶ 15, at 4. Ganley
counters that
[i]t is well known by now that Defendant Jojola could not have “verified that John
Ganley cashed the check” because everyone admits that John Ganley did not cash
the check. Defendant’s insistence on swearing this fact is defamatory and
perpetuates the falsehood that Mr. Ganley was anything other than a victim of
identity theft.
MSJ Response ¶ 15, at 5. As the Defendants no longer contend that Ganley actually cashed the
check, the parties do not dispute facts so much as spar over the meaning of the word “verified” in
this context. Ganley does not, therefore, dispute that Jojola concluded that Ganley was the man in
the surveillance video. The Court therefore deems this fact undisputed. See D.N.M.LR-Civ.
56.1(b) (“All material facts set forth in the [Motion for Summary Judgment] will be deemed
undisputed unless specifically controverted.”).
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true owner -- Nancy Starr -- and the owner told Jojola that Ganley did not have permission to cash
the check. See MSJ ¶ 16, at 4 (asserting this fact); Warrant Aff. at 1; Jojola Aff. ¶ 16 at 2. 11
Jojola attempted to call Ganley on the telephone but was unable to reach him. See MSJ
¶ 17, at 4 (asserting this fact); Jojola Aff. ¶ 17, at 3. 12 When Jojola examined the check, Jojola
concluded that “John Ganley appeared to have signed the back of the check.” MSJ ¶ 18, at 4
(asserting this fact); Warrant Aff. at 1; Jojola Aff. ¶ 18, at 3; Check Copy at 2, filed December 21,
2017 (Doc. 32-3)(showing a signature on the back of the check). 13
11
Ganley purports to dispute this fact. See MSJ Response ¶ 16, at 5. In the MSJ, the
Defendants state that “Jojola spoke with the victim of the forged check cashed by John Ganley
who informed him that John Ganley did not have permission to cash the check and did not have
an affiliation with the business.” See MSJ ¶ 16, at 4 (emphasis added). Ganley takes issue with
this characterization, arguing once again that “Ganley did not cash the check at issue and . . . [i]t
is confusing that, even now, Defendants are making statements in court pleadings accusing Mr.
Ganley of cashing the forged check when they know he did nothing of the kind.” MSJ ¶ 16, at 5.
Once again, it appears that the parties do not dispute facts so much as get hung up on how they are
described. The Defendants do not contend that Ganley cashed the check; rather, they present the
facts as Jojola understood them at the time. Presenting facts not as they are but as someone
mistakenly believes them to be at the time can make for dramatic narrative, where the reader or
viewer shares in a character’s surprise, see, e.g., The Third Man (Carol Reed, 1949)(Holly Martins
spotting Harry Lime in a dark doorway, alive and well), but not helpful in a briefing for a motion
for summary judgment, when the Court is trying to nail down undisputed facts. Thus, Ganley’s
purported dispute with the Defendants’ asserted fact is no dispute at all, because the Defendants
do not assert the fact to which Ganley objects. The Court therefore deems this fact undisputed.
See D.N.M.LR-Civ. 56.1(b) (“All material facts set forth in the [motion for summary judgment]
will be deemed undisputed unless specifically controverted.”).
12
Ganley states that he “does not have information to dispute” this fact. MSJ Response
¶ 17, at 5. The Court therefore deems this fact undisputed. See D.N.M.LR-56.1(b) (“All material
facts set forth in the [Motion for Summary Judgment] will be deemed undisputed unless
specifically controverted.”).
13
Ganley purports to dispute this fact. See MSJ Response ¶ 18, at 6. According to Ganley,
there is “no evidence submitted to show that Defendant Jojola knew what John Ganley’s signature
looked like, such that he could state that it appeared that John Ganley signed the back of the check.
What Detective Jojola saw was a signature on the back of the check.” MSJ Response ¶ 18, at 6.
Whether Jojola made a reasonable, well-informed conclusion does not implicate whether he
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Jojola submitted the Warrant Aff. to a judge in the Metropolitan Court for the County of
Bernalillo, State of New Mexico, on March 14, 2016, swearing that Ganley had committed forgery
and violated the Remote Financial Services Act, N.M. Stat. Ann. § 58-16-16. See MSJ ¶ 19, at 4
(asserting this fact); MSJ Response ¶ 19, at 6 (admitting this fact); Warrant Aff. at 1; Jojola Aff.
¶ 19, at 3. That same day, an arrest warrant was issued for Ganley. See MSJ ¶ 21, at 4 (asserting
this fact); Jojola Aff. ¶ 20, at 3; Warrant for Arrest at 1, filed December 21, 2017 (Doc. 32-6). 14
Officer Kelly Burt conducted a preliminary investigation into the stolen checks, and Burt
wrote in his report that “[i]t is unknown if they are offenders or victim[s] of identity theft.” MSJ
¶ 22, at 5 (asserting this fact); Jojola Aff. ¶¶ 21-22, at 3. 15 During Jojola’s investigation, and after
speaking with Specht and Torbett, Jojola reviewed Burt’s report. See MSJ ¶ 22, at 5 (asserting
this fact); Jojola Aff. ¶ 23, at 3. 16 Jojola searched for Ganley in a criminal history database, but
did not find evidence that Ganley had committed fraud or burglary in the past. See MSJ ¶ 23, at 5
reached that conclusion. The Court therefore deems this fact undisputed. See D.N.M.LR-Civ.
56.1(b) (“All material facts set forth in the [Motion for Summary Judgment] will be deemed
undisputed unless specifically controverted.”).
14
Ganley states that he “does not have information to dispute” this fact. MSJ Response
¶ 21, at 6. The Court therefore deems this fact undisputed. See D.N.M.LR-Civ. 56.1(b) (“All
material facts set forth in the [motion for summary judgment] will be deemed undisputed unless
specifically controverted.”).
15
Ganley states that he “does not have information to dispute” this fact. MSJ Response
¶ 22, at 6. The Court therefore deems this fact undisputed. See D.N.M.LR-Civ. 56.1(b) (“All
material facts set forth in the [motion for summary judgment] will be deemed undisputed unless
specifically controverted.”).
16
Ganley states that he “does not have information to dispute” this fact. MSJ Response
¶ 22, at 6. The Court therefore deems this fact undisputed. See D.N.M.LR-Civ. 56.1(b) (“All
material facts set forth in the [motion for summary judgment] will be deemed undisputed unless
specifically controverted.”).
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(asserting this fact); Jojola Aff. ¶ 23, at 3. 17 Law enforcement no longer considered Ganley a
suspect as of October 19, 2016, at the latest. See MSJ ¶ 23, at 5; (asserting this fact); Jojola Aff.
¶ 24, at 3. 18
17
Ganley states that he “does not have information to dispute” this fact. MSJ Response
¶ 22, at 6. The Court therefore deems this fact undisputed. See D.N.M.LR-Civ. 56.1(b) (“All
material facts set forth in the [Motion for Summary Judgment] will be deemed undisputed unless
specifically controverted.”).
18
When Jojola learned that Ganley was not the culprit is disputed. The Defendants state
that “it was learned” on October 19, 2016, that “Ganley had likely been the victim of identity theft
and was not a suspect.” MSJ ¶ 23, at 5. Ganley purports to dispute this fact, contending that, at
the June 4, 2018, hearing, the Defendants represented that “Jojola suspected before that date that
he had the wrong person.” MSJ Response ¶ 23, at 6 (citing Tr. at 39:25-40:16 (Nixon)). The
Defendants reply that Ganley “misrepresent[s]” the Defendants’ statements at the hearing, arguing
that the Defendants’ counsel “explained that Detective Jojola had a suspicion upon entering the
meeting on October 19, 2016, that Plaintiff may not have been the suspect in the check fraud case
based upon his review of the booking sheet” and so “did not represent that Detective Jojola had
such suspicion before the date of the meeting.” MSJ Reply ¶ 12, at 4 n.2. At the hearing, the
following exchange took place between the Court and the Defendants’ counsel:
THE COURT: What was it that Mr. Jojola saw when Mr. Ganley walked into the
room that made him instantly realize that he wasn’t the right person?
MS. NIXON: It’s my understanding that it was the tattoos on the arm. Detective
Jojola had an idea before meeting with Mr. Ganley that he was not the person based
on the booking sheets obtained after the arrest, long after the arrest warrant affidavit
was completed, because those booking sheets indicated . . . he did not have any
tattoos. I suspect that that would be the same reason that upon seeing Mr. Ganley
and being able to see Mr. Ganley’s arms for the first time in person, and observing
that his arms did not have the tattoos that we see in the surveillance video photos,
that Detective Jojola knew that Mr. Ganley was not the person who had appeared
in those surveillance videos.
Tr. at 39:25-40:16 (Court, Nixon)(emphasis added). Although Ms. Nixon’s statement that Jojola
“had an idea before meeting with Ganley that he was not the person based on the booking sheets”
suggests that Jojola’s suspicions began before he took a look at Ganley in person, it is not
inconsistent with Jojola only figuring it out that morning, and, therefore, not “before the date of
the meeting.” MSJ Reply ¶ 12, at 4 n.2. Thus, the parties agree that Jojola began to suspect Ganley
was not the culprit at some point after seeing Ganley’s booking sheet, because the booking sheet
does not list any tattoos and the man in the surveillance video has many tattoos on his arms. See
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PROCEDURAL BACKGROUND
Ganley filed his first Complaint for Damages for Violation of Civil Rights and Tort Claims,
in state court on March 5, 2017, filed in federal court on April 10, 2017 (Doc. 1-1). The Defendants
removed the case to federal court asserting federal-question jurisdiction. See Notice of Removal
at 2, filed April 10, 2017 (Doc. 1). In Ganley’s Complaint, he asserts three Counts. First, he
asserts that the Defendants violated his civil rights under the Fourth and Fourteenth Amendments,
see Complaint ¶¶ 36-44, at 7-9, and that Jojola violated clearly established law, by ignoring
exculpatory information and not completing the investigation into the check fraud, see Complaint
¶¶ 38-40, at 7-8. Second, Ganley asserts tort claims against the Defendants. See Complaint
¶¶ 45-54, at 9-10. Ganley alleges that Jojola’s “tortious conduct proximately caused damages and
injuries, including physical and emotional suffering, attorney fees, costs of record expungement,
reputation damage, damage to personal relationships, lost time and productivity, and continuing
medical expenses and expenses associated with counseling.” Complaint ¶ 47, at 9-10. Third,
Ganley alleges that the City of Albuquerque deprived Ganley of his Fourth, Fifth, and Fourteenth
Amendment rights, see Complaint ¶¶ 55-57, at 11, because Jojola’s “actions constituted a custom,
practice, and policy of deliberate indifference” to Ganley’s and other citizens’ civil rights,
Complaint ¶ 56, at 11.
MSJ Reply ¶ 12, at 4 n.2; MSJ Response ¶ 23, at 6. The dispute instead boils down to whether
Jojola put the pieces together on the day that he met Ganley -- either “upon entering the meeting,”
MSJ Reply ¶ 12, at 4 n.2, or “before the meeting,” Tr. at 40:4-5 (Nixon) -- or whether Jojola’s
suspicions began on some prior day, see MSJ Response ¶ 23, at 6 (“Jojola suspected before that
date that he had the wrong person.” (emphasis added)).
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The Defendants answered the Complaint. See Defendants’ Answer to Plaintiff’s “First
Amended Complaint for Damages for Violation of Civil Rights and Tort Claims,” filed August
22, 2017 (Doc. 26)(“Answer”). The Defendants deny Ganley’s claims and allegations. See
Answer ¶¶ 36-57, at 7-9. The Defendants assert several affirmative defenses:
1. Plaintiff has failed to set forth one or more claims for which relief may be
granted.
2. There was probable cause for Eric Jojola to submit the arrest warrant and charge
Plaintiff.
3. Eric Jojola’s actions were objectively reasonable under the totality of the
circumstances, done in good faith, and therefore, he is entitled to qualified
immunity and immunity under the New Mexico Tort Claims Act.
4. Eric Jojola did not commit a clearly established constitutional violation.
5. The City of Albuquerque is not liable because one or more of its employees did
not commit any constitutional violation or commit any torts under the New
Mexico Claims Act.
6. The City of Albuquerque is not liable because there was no unlawful policy or
custom which was the moving force behind an alleged constitutional violation.
7. The City of Albuquerque is not liable because it was not negligent in its
supervision, retention, hiring, and training of Eric Jojola.
8. The City of Albuquerque is not liable because its supervision, retention, hiring,
and training of Eric Jojola did not cause any alleged constitutional violation or
commission of any torts under the New Mexico Tort Claims Act.
9. Plaintiff’s state law claims are barred, in whole or in part, by the provisions set
forth in the New Mexico Tort Claims Act.
10. Plaintiff failed to comply with the notice provisions set forth pursuant to the
New Mexico Tort Claims Act, NMSA 1978, § 41-4-16.
11. The Defendants’ immunity has not been waived under the New Mexico Tort
Claims Act.
12. Plaintiff’s injuries or losses, if any, were proximately caused by the negligence,
intentional misconduct, or other fault of Plaintiff and/or other third-party for
whom Defendants are not liable.
- 12 -
13. Plaintiff’s damages, if any, were due to an independent, intervening cause rather
than due to any fault on the part of Defendants.
14. Plaintiff failed to mitigate his damages, if any.
15. Plaintiff’s claims should be barred or reduced insofar as any alleged acts or
omissions on the part of the Defendants, which is denied, were not the cause of
Plaintiff’s damages, if any.
16. Defendants breached no duty owed to Plaintiff.
17. There are insufficient grounds to permit Plaintiff to recover punitive damages.
18. The Defendants reserve the right to assert additional affirmative defenses which
may become available during the course of litigation in this matter and which
are not asserted herein.
Answer at ¶¶ 2-18, at 9-11.
1.
The Motion for Summary Judgment.
The Defendants move for summary judgment. See MSJ at 1. The Defendants first argue
that Ganley’s wrongful arrest claim “cannot be premised on the Fourteenth Amendment,” because,
according to the Defendants, the Fourth Amendment, and not the Fourteenth, governs unlawful
detention claims. MSJ at 7-8. The Defendants contend that probable cause supported the Warrant
Aff. See MSJ at 8-9. The Defendants also argue that Ganley cannot succeed on a 42 U.S.C. § 1983
claim, because Jojola did not act with reckless disregard for the truth or intentionally use false
statements in the arrest warrant’s affidavit. See MSJ at 11-12. Specifically, the Defendants
contend that it was reasonable for Jojola to conclude that Ganley was the man in the surveillance
video, because Ganley’s MVD photograph resembled the man in the surveillance video, and
because the differences between Ganley and the man in the surveillance video are not apparent
when looking at the MVD photograph, which shows only Ganley’s face -- e.g., that the man in the
surveillance video has tattoos on his arms but Ganley does not have tattoos. See MSJ at 12-13.
The Defendants contend that overlooking the differences in the basic characteristics between the
- 13 -
two men, such as their height and weight, does not “negate probable cause,” because such
differences are slight discrepancies. MSJ at 13 (citing Thompson v. Prince William Cty., 753 F.2d
363, 365 (4th Cir. 1984)).
The Defendants contend that Jojola had “at least arguable probable cause” to submit the
affidavit, because the photographic evidence, the driver’s license number, and the name on the
forged check all point to Ganley. MSJ at 16. The Defendants also respond to Ganley’s contention
that Jojola did not conduct a complete investigation before seeking the arrest warrant, arguing that
his investigation was “[c]onstitutionally [s]ound” based on the totality of the circumstances. MSJ
at 17-18.
Next, the Defendants contend that the constitutional violations that Ganley alleges are not
clearly established. See MSJ at 19. Specifically, the Defendants argue that Jojola “could not have
been on notice that submission of the Affidavit amounted to a constitutional violation on its face,”
because there is a presumption that detectives act in good faith when a Magistrate Judge finds
probable cause, and, even assuming that Jojola included false statements in the affidavit, Jojola
“would not have been on notice that identity of the name on the forged check, as confirmed by a
witness, with the MVD record would not have established probable cause.” MSJ at 20-21. Jojola
contends that not interviewing Ganley before submitting the affidavit is not a constitutional
violation for which Jojola would be on notice, because the United States Court of Appeals for the
Tenth Circuit does not require a law enforcement officer to continue investigating once probable
cause is established. See MSJ at 21-22.
Next, the Defendants address Ganley’s tort claim, contending that New Mexico has not
waived immunity for false arrest, constitutional violations, or failure to investigate. See MSJ at
22-23. The Defendants also contend that Ganley’s false arrest claim fails in any case, because
- 14 -
Jojola’s actions were lawful, and because he acted with probable cause. See MSJ at 23-24. The
Defendants also contend that Jojola did not violate N.M. Stat. Ann. § 29-1-1, which provides that
law enforcement officers have a duty
“to investigate all violations of criminal laws of the state which are called to the
attention of any such officer or which he is aware, and it is also declared the duty
of every such officer to diligently file a complaint or information, if the
circumstances are such to indicate to a reasonably prudent person that such action
should be taken.”
MSJ at 24 (quoting N.M. Stat. Ann. § 29-1-1). The Defendants reiterate that Jojola did not violate
that statute, because Jojola conducted a “constitutionally appropriate investigation” and found
probable cause that Ganley committed a crime. MSJ at 24. The Defendants conclude that the
Court should grant Jojola qualified immunity and should dismiss Counts I and II with
prejudice. See MSJ at 25.
2.
The Rule 56(d) Motion.
Ganley asks for leave to conduct discovery before responding to the MSJ. See Rule 56(d)
Motion at 1. Ganley asks that the Court stay his deadline to respond to the MSJ and allow Ganley
to seek discovery necessary to respond to the MSJ. See Rule 56(d) Motion at 1. Specifically,
Ganley requests leave to conduct the following discovery:
Written interrogatories and a deposition of Defendant Jojola limited in scope to
questions about the investigation he conducted in the underlying criminal case and
about his assertions set forth in his affidavit supporting summary judgment, to
questions about past lawsuits or complaints similar to this one, questions about his
past discipline for conduct similar to what is alleged in this lawsuit, and to questions
about his training as relevant to investigating check fraud and identity theft; (ii) a
limited deposition of Steve Torbett, an individual who initially investigated the
matters leading to Plaintiff’s arrest and who, according to Defendant Jojola’s
affidavit, spoke with Defendant Jojola about the matter; and (iii) a limited
deposition of Officer Kelly Burt, whom Defendant identifies in his reports, in his
affidavit supporting summary judgment, and in his motion for summary judgment
as someone who participated in the investigation and prepared a report. Plaintiff
has been diligent in litigating the matter and seeking discovery.
- 15 -
Rule 56(d) Motion at 1-2.
Ganley contends that he has acted in good faith and has not been dilatory in making
discovery requests. See Rule 56(d) Motion at 7-8. Nonetheless, Ganley states that he and the
Defendants have not reached an agreement about discovery’s scope. See Rule 56(d) Motion at 7.
Ganley asserts that he has “not had an opportunity to conduct any meaningful discovery and it
would be unfair to prevent Plaintiff to conduct some limited discovery before he is required to
respond to the summary judgment motion.” Rule 56(d) Motion at 8.
Ganley asserts that “Defendant Jojola’s factual narratives, as set forth in his warrant
affidavit, and in his summary judgment affidavit, are self-serving and should be tested through
deposition testimony.” Rule 56(d) Motion at 10. Ganley contends that Jojola’s liability depends
on “whether he was reasonable or whether he acted with deliberate indifference to Plaintiff’s
rights, based on the facts known to him.” Rule 56(d) Motion at 10. Ganley believes that
Defendant Jojola was not as careful as he claims to be in his investigation, that other
investigators involved did not say what Defendant Jojola asserts they said, and that
Defendant Jojola did not do what he says he did or would do in his arrest warrant
affidavit, and deposition testimony from him and the individuals he worked with
can illuminate the discrepancies.
Rule 56(d) Motion at 10-11. Ganley also asserts that Jojola can provide answers relating to the
Albuquerque Police Department’s customs or practices. See Rule 56(d) Motion at 11.
3.
The Rule 56(d) Motion Response.
The Defendants respond to the Rule 56(d) Motion. See Defendants Eric Jojola and City of
Albuquerque’s Response in Opposition to Plaintiff’s ‘Motion for a Continuance of the Motion for
Summary Judgment to Permit Discovery Pursuant to Rule 56(d) and Affidavit’ at 1, filed February
1, 2018 (Doc. 36)(“Rule 56(d) Response”). The Defendants argue that Ganley has not identified
- 16 -
how he intends to narrow discovery issues.
See Rule 56(d) Response at 1-2; id. at 4-8.
Specifically, the Defendants contend that Ganley does not identify “what facts regarding Detective
Jojola’s training, alleged past discipline or past complaints are necessary to rebut the Motion for
Summary Judgment.” Rule 56(d) Response at 5. The Defendants also argue that Ganley has not
shown that deposing Torbett and Burt is necessary to respond to the MSJ. See Rule 56(d) Response
at 5-6.
The Defendants dispute Ganley’s assertion that they oppose any discovery in light of the
MSJ. See Rule 56(d) Response at 7 (citing Rule 56(d) Motion at 7). Rather, the Defendants
contend that they have “repeatedly requested” that Ganley “identify, with specificity, what facts
will be sought in the discovery as being necessary to respond” to the MSJ, but that Ganley has not
demonstrated how “limited discovery, narrowly tailored to the issue of qualified immunity, will
raise a genuine issue of material fact.” Rule 56(d) Response at 7. The Defendants also argue that
Ganley’s requests for video recordings made after Jojola submitted the Warrant Aff. is irrelevant
and not reasonably calculated to lead to the discovery of admissible evidence, because the qualified
immunity question depends on whether Jojola had probable cause before submitting the Warrant
Aff. See Rule 56(d) Response at 8. The Defendants also contend that Ganley violated the Federal
Rules of Civil Procedure by subpoenaing a third party without first providing notice to other
parties. See Rule 56(d) Response at 8 (citing Fed. R. Civ. P. 45(a)(4)). The Defendants also note
that Ganley made requests pursuant to the Inspection of Public Records Act, N.M. Stat. Ann.
§ 14-2-1 (“IPRA”), after the Defendants filed their motion to stay discovery, see Detective Jojola
and City of Albuquerque’s Motion for Stay of Discovery, filed January 4, 2018 (Doc. 33), and
after the parties agreed to stay discovery and define parameters of limited discovery, see Rule
56(d) Response at 9-10. According to the Defendants, although IPRA provides anyone a right to
- 17 -
inspect public records, that right is not unconditional, and, therefore, Ganley should not have the
right to make IPRA requests while also agreeing to limit discovery. See Rule 56(d) Response at
10 (citing State ex rel. Newsome v. Alarid, 1977-NMSC-076, ¶¶ 27-34, 568 P.2d 1236, 1243).
The Defendants add that, once they asserted Jojola’s qualified immunity defense, pretrial
discovery should cease. See Rule 56(d) Response at 10-11.
4.
The Rule 56(d) Motion Reply.
Ganley replies to the Rule 56(d) Response. See Plaintiff’s Reply in Support of his Motion
Pursuant to Rule 56(d), filed February 14, 2018 (Doc. 37)(“Rule 56(d) Reply”). Ganley contends
that the Defendants “struggle mightily to obscure their role in trying to prevent Plaintiff from
receiving any information regarding this case.” Rule 56(d) Reply at 1. Ganley argues that the
discovery which he seeks “is not out of bounds for defending a qualified immunity motion, as it is
all directed at specific factual statements made in the Defendant’s motion.” Rule 56(d) Reply at
2.
Ganley contends that deposing Jojola will help determine if Jojola had probable cause by
“inquir[ing] into Defendant Jojola’s state of mind,” which is “difficult, if not impossible” to
discern from police reports and affidavits. Rule 56(d) Reply at 4-5. Ganley also contends that
discovery relating to Jojola’s state of mind -- including lapel footage of Jojola apparently
discussing deficiencies of his investigation and whether Jojola examined the fingerprint -addresses “factual issues” that are “directly relevant to whether qualified immunity is appropriate.”
Rule 56(d) Reply at 5-6.
Ganley also contends that the Honorable Stephan M. Vidmar, United States Magistrate
Judge for the United States District Court for the District of New Mexico, should not have granted
a stay of discovery, because the District of New Mexico’s local rules give a party fourteen days to
- 18 -
respond to a motion to stay discovery, but Magistrate Judge Vidmar granted the stay request after
only twelve days. See Rule 56(d) Reply at 6. Ganley adds that he has in good faith agreed to the
Defendants’ requests for extensions in responding to discovery requests, so it “would be an abuse
of Plaintiff’s counsels’ professional courtesies to allow Defendants to enjoy summary judgment
because Plaintiff did not get the opportunity to receive responses to his discovery requests.” Rule
56(d) Reply at 7. Moving to the IPRA issue, Ganley contends that the public’s right to IPRA is
not limited and that the Defendants cite to outdated caselaw in their arguments to the contrary.
See Rule 56(d) Reply at 9-10 (citing Republican Party of N.M. v. N.M. Taxation & Revenue Dep’t,
2012-NMSC-026, ¶¶ 14-16, 283 P.3d 853, 860).
5.
The Hearing.
The Court held a hearing. See Draft Hearing Transcript at 1:21 (taken June 4, 2018)(“Tr.”)
(Court). 19
The Court began by wondering whether it could consider the photographic
evidence -- i.e., Ganley’s MVD photograph and the surveillance footage images -- when ruling on
a matter of law or whether considering photographic evidence is a factual inquiry for a jury. See
Tr. at 3:17-4:3 (Court). The Court added that it thought there was “probably . . . enough probable
cause here, and there is not a constitutional violation,” Tr. at 4:4-7 (Court), and that Ganley has
not pointed to an established constitutional right that Jojola may have violated, see Tr. at 4:8-5:3
(Court). The Court next stated that it was inclined to deny the Rule 56(d) Motion, because the
requested discovery and Jojola deposition is not likely to lead to case-determinative information.
See Tr. at 5:11-25 (Court).
19
The Court’s citations to the hearing transcript refer to the court reporter’s original,
unedited version. If a final transcript is made, it may contain slightly different page and/or
line numbers.
- 19 -
The Court asked the Defendants how law enforcement came to determine that Ganley was
the victim and not the perpetrator of identity fraud. See Tr. at 10:8-12 (Court). The Defendants
explained that, about six months after Ganley was arrested, Ganley visited the district attorney’s
office and told them he believed he was a victim of identity theft. See Tr. at 10:13-17 (Nixon).
The district attorney’s office connected Ganley with Jojola, who took Galey’s fingerprints and
determined that the fingerprint on the check did not belong to Ganley. See Tr. at 10:17-24 (Nixon).
The Court then asked the Defendants whether, if it dismisses Ganley’s federal claims, it
should decide the state claims. See Tr. at 11:22-12:1 (Court). The Defendants stated that they
would not object to that approach, but asserted that it might not be a great leap to dismiss the state
claims as well, because those claims also fail if Jojola had probable cause to arrest Ganley. See
Tr. at 12:2-8 (Nixon).
Ganley wished to “clarify how it became apparent that Mr. Ganley was a victim of identity
theft,” stating that, when Ganley arrived to be fingerprinted, Jojola saw Ganley and said, “‘Oh,
that’s not our guy,’ because he obviously wasn’t.” Tr. at 13:1-7 (Ray). Ganley added that his
criminal lawyer at the time witnessed Jojola’s reaction to seeing Ganley and that Ganley could
submit a sworn statement describing his encounter with Jojola. See Tr. at 13:22-24 (Ray). Ganley
also noted that Jojola stated in a report that there was video recording the encounter, but the
Defendants “have decided that that video doesn’t exist anymore, although everything that
happened afterwards does.” Tr. at 13:23-14:5 (Ray). Ganley addressed the photographs:
[H]e had a bunch of photographs in front of him of the perpetrator -- a much younger
man with a different looking face, with a different hairline, a much younger you
know more forward hairline and then the driver’s license photo which is an even
older photo than what those recent photos were that he saw short guy with a much
more recede hairline. It requires a little bit of willful blindness on the part of the
city to say, yeah, white guy with short hair, close enough. And I think, I mean, I
- 20 -
wonder what a Court’s analysis would [look] like in saying, you know a white
person with short hair [is] close enough for an officer to say I’ve got probable cause.
Tr. at 14:16-15:8 (Ray).
Next, Ganley addressed the Warrant Aff., arguing that it contains “either reckless or
knowing false statements.” Tr. at 15:13-15 (Ray). Ganley first took issue with the Warrant Aff.’s
statement that, after comparing Ganley’s MVD photograph with the surveillance footage, “it was
verified John Ganley cashed the check.” Tr. at 15:20-24 (Ray)(quoting Warrant Aff. at 1). The
Court pushed back on Ganley’s criticism of the word “verified,” stating:
[I]t may not be the most artful way to say that to me they look like the same person,
but, isn’t that what he’s saying in his own words that he looked at the two pictures,
and in his mind that they were the same person? Now, I think it’s a little odd to use
the word verified, because that sounds like somebody else did it. But isn’t it pretty
clear and there is nothing terribly devious about the fact that he’s telling us that he
looked at the two pictures, and in his mind, they were the same person?
Tr. at 16:8-18 (Court). Ganley disagreed with the Court, arguing that Jojola could have described
exactly what he did -- i.e., compared the two photographs and found them to be similar -- but
instead he “used the passive voice” to indicate that the match “was verified,” which “implies that
there was some proceeding that he used to confirm the identity of the person.” Tr. at 16:19-17:3
(Ray). Ganley then argued that Jojola again makes misleading statements in the Warrant Aff.
regarding fingerprinting, such that a judge would believe that “a fingerprint has been run and
matched, and . . . that it’s been verified.” Tr. at 17:16-20 (Ray). The Court rebutted that the
Warrant Aff. makes clear that law enforcement has a fingerprint but is waiting for the warrant
before analyzing the fingerprint further. See Tr. at 17:24-18:12 (Court). Ganley insisted that the
Warrant Aff. uses “way [too] much puffing [of] the facts that did not occur,” and that, if a law
enforcement officer uses the word “verified,” he or she should mean that the fact was actually
verified. Tr. at 18:13-20 (Ray).
- 21 -
The Court asked Ganley whether his “stronger argument” is that the Court cannot grant
summary judgment, because the photographs show two men with different features. Tr. at 19:1-6
(Court). Ganley said that he agreed the photographs are important, because, according to Ganley,
“the photographs are so different that it was at least reckless.” Tr. at 19:7-9 (Ray).
Ganley added that the parties’ discussion about what Jojola meant to say in the Warrant
Aff. supports granting Ganley’s Rule 56(d) Motion, because discovery would allow Ganley to ask
Jojola what he intended to say. See Tr. at 19:18-23 (Ray). The Court questioned the value of
deposing Jojola on these topics given that, in the Tenth Circuit, an officer’s subjective thoughts
are not the pivotal issue in § 1983 claims. See Tr. at 19:24-20:5 (Court). Ganley acknowledged
that qualified immunity generally concerns objective analysis, but mused:
I’ve always wondered how we deal with that in the situation where the test for, say,
a false affidavit requires that there be some sort of the recklessness or intentional
falsification of fact. [Do] you see how there is a little bit of a disconnect in the case
law on how to analyze that? . . . [W]e’ve got this analysis that comes in [regarding]
whether the officer recklessly or intentionally didn’t investigate something properly
or misrepresented the facts to a magistrate in order to establish probable cause and
obtain a warrant, I think the analysis is a little bit tricky to go back and say well, he
objectively was or wasn’t reckless or [he] objectively didn’t intentionally or did
intentionally misstate his facts [to a] magistrate in order to obtain a warrant.
Tr. at 20:8-21:11 (Ray). Ganley next asserted that the differences in the photographs present a
factual issue for a jury to resolve. See Tr. at 22:5-8 (Ray). Ganley also stated that, if Court
dismisses the federal claims based on qualified immunity, the Court should send the state claims
back to state court. See Tr. at 23:10-13 (Ray).
The Court then asked Ganley which cases from the Tenth Circuit or the Supreme Court of
the United States are so factually similar to this case that Jojola would have been on notice that his
actions were unconstitutional. See Tr. at 23:15-21 (Court). Ganley responded:
- 22 -
I don’t really have a Tenth Circuit case where something like this
happened. . . . But the generic standard that the Tenth Circuit has cited in a bunch
of cases is if there is a reckless disregard or intentional misrepresentation of fact in
the affidavit, then that would be a constitutional [violation]. And there is a lot of
common sense to that. An officer is always on notice that I can’t misrepresent the
facts that in order to create probable cause. That’s . . . just Basic Integrity and
Honesty 101.
Tr. at 23:22-24:8 (Ray). Ganley added that, in other Courts of Appeals, courts “have said that
reckless and intention always seems to be the standard to investigatory leads of a defendant’s due
process rights,” and that, “in situations where state actors have the opportunity to deliberate various
alternatives prior to selecting [a] course of action they violate due process if they do so recklessly,
i.e., he’s got at [sic] fingerprint in hand and he’s got pictures that don’t look alike.” Tr. at 24:9-21
(Ray)(citing Wilson v. Lawrence Cty., 260 F.3d 946 (8th Cir. 2001); Sanders v. English, 950 F.2d
1152, 1155 (5th Cir. 1992)); Whitley v. Seibel, 676 F.2d 245, 247 (7th Cir. 1982)). The Court
stated its belief that the closest Tenth Circuit case factually to this case is Romero v. Fay, 45 F.3d
1472 (10th Cir. 1995), which also involves misidentification by law enforcement. See Tr. at
35:17-23 (Court). The Defendants agreed that Romero v. Fay is probably the closest Tenth Circuit
case to this case, but contended that, even if Ganley’s allegations are true, the factual differences
between the two cases prevent Romero v. Fay from indicating whether Jojola lacked probable
cause or violated a clearly established constitutional right. See Tr. at 35:25-36:9 (Nixon).
The Defendants responded to Ganley’s Rule 56(d) Motion, and argued that Ganley requests
discovery beyond the primary inquiry relating to qualified immunity. See Tr. at 38:14-39:6
(Court). The Defendants concluded that “there is no discovery which would lead to a genuine
dispute of material fact which would . . . defeat . . . the defendant’s motion for summary judgment
on qualified immunity.” Tr. at 39:21-24 (Court).
- 23 -
The Court asked what Jojola saw when Ganley arrived for the fingerprinting that made him
realize that Ganley was not the right person. See Tr. at 39:25-2 (Court). The Defendants
responded:
It’s my understanding that it was the tattoos on the arm. Detective Jojola had an
idea before meeting with Mr. Ganley that he was not the person based on the
booking sheets obtained after the arrest, long after the arrest warrant affidavit was
completed, because those booking sheets indicated he was not -- he did not have
any tattoos. I suspect that that would be the same reason that upon seeing Mr.
Ganley and being able to see Mr. Ganley’s arms for the first time in person, and
observing that his arms did not have the tattoos that we see in the surveillance video
photos, that Detective Jojola knew that Mr. Ganley was not the person who had
appeared in those surveillance videos.
Tr. at 40:3-16 (Nixon).
The Court gave Ganley the last word on the Rule 56(d) Motion. See Tr. at 42:1-3 (Court).
Ganley stated that the hearing has underscored how “some of the questions that the Court has
raised would be illuminated by discovery.” Tr. at 42:4-6 (Ray). Ganley stated that he just heard
for the first time that Jojola’s “epiphany of recognition happened because he didn’t see tattoos on
John Ganley’s arms,” and so discovery would allow Ganley to clear up factual disputes by, for
example, hearing from witnesses under oath about Ganley’s appearance. Tr. at 42:7-18 (Ray).
The Court stated:
I obviously am going to have to spend some time in determining whether there is a
constitutional violation, and I will. . . . But I guess I’m just not seeing a way that I
can deny the [MSJ], at least on clearly established grounds. I’m thinking that this is
too factually intense to . . . come up [in] any case. And the one case that I keep
coming back to, Romero v. Fay, . . . the Tenth Circuit found that there was no
constitutional violation. So the one case we have available points in the opposite
direction. So probably one way or another I’ll be granting this motion, and
dismissing out the federal claims, and remanding the state claims and the rest of the
case back to state court.
Tr. at 44:12-45:2 (Court). The Court stated that it would not permit further discovery for now.
See Tr. at 45:24-25 (Court). The Court continued:
- 24 -
The one thing . . . I need to give some thought as to when if Mr. Jojola began to get
suspicious and when that would make any difference as to the claims here. It might
have more to do with damages than it does to claims . . . . If I agree with the city
and with Mr. Jojola that there was probable cause at the beginning, does him
beginning to get suspicious that he had is the wrong person if, does a new claim
sort of accrue at that point that has some legs? That’s the only thing that I guess
I’m walking away from this a little bit concerned [about] and think I need to maybe
look at [more].
Tr. at 46:5-18 (Court). Ganley addressed the Court’s point, and clarified that, although he contends
that Jojola did not have probable cause when submitting the Warrant Aff., Ganley also believes
that there may be an “independent constitutional claim” arising at the moment that “Jojola learns
that there is a problem” in targeting Ganley. Tr. at 47:13-25 (Ray). The following exchange
ensued:
MS. NIXON: Your Honor, I would just argue that [the independent constitutional
claim theory is] not part of the amended complaint that been filed in this case -- [it]
has never been an allegation in this case.
MR. RAY: That’s what happens when you disclose a fact at the hearing that
nobody has ever of heard of before.
MS. NIXON: And it’s also not dispositive to the issues before the Court at this
time. Again, based upon the complaint, we are looking at what Detective Jojola
knew at the time that he effectuated the arrest warrant affidavit, not what was
learned after, not when it was learned after. I think that was a question of damages,
which we don’t get to in this case yet.
Tr. at 48:14-49:3 (Nixon, Ray). The Court recognized that “we have a new issue that y’all may
need to address in the briefing, so I’ll look forward to seeing what y’all have to say on that issue.”
Tr. at 49:4-7 (Court).
6.
The MSJ Response.
Ganley responds to the MSJ. See MSJ Response at 1. Ganley argues that “the sort of
aggressive puffery that Defendant Jojola displayed in his criminal complaint and warrant affidavit
- 25 -
were unreasonable and constituted knowing false statements, the absence of which would have
vitiated probable cause.” MSJ Response at 8. Ganley adds that
[i]t is difficult to imagine a judicial officer signing this warrant if it had contained
the truth (i.e., the Detective observed several color pictures of the suspect cashing
the check, he pulled the driver’s license number and name written on the forged
check, saw that it was another white male with short hair, chose not to run a finger
print even though one was present on the check, and had been advised that John
Ganley was a potential victim of identity theft).
MSJ Response at 8.
Ganley also disagrees with the Court’s contention that the affidavit’s use of the word
“verified” should be interpreted loosely. MSJ Response at 8. Rather, Ganley insists that verified
“connotes follow-up and careful securing of information.” MSJ Response at 8. 20
20
As proof, Ganley provides numerous definitions for “verified”:
The first definition to arise in a Google search for the definition of “Verify” is:
“Make sure that (something) is true, accurate, or justified.”[] Merriam-Webster
provides: “[T]o establish the truth, accuracy, or reality of . . . . ”
https://www.merriamwebster.com/dictionary/verify (retrieved June 18, 2018).
Both sources give a secondary definition, which is to “to confirm or substantiate in
law by oath.” Id. Dictionary.com provides three definitions of the word: “to prove
the truth of, as by evidence or testimony; confirm; substantiate,” “to ascertain the
truth or correctness of, as by examination, research, or comparison,” and “to act as
ultimate
proof
or
evidence
of;
serve
to
confirm.”
http://www.dictionary.com/browse/verify (retrieved June 18, 2018). Collins
Dictionary states: “If you verify something, you check that it is true by careful
examination or investigation.” Collins alternatively provides the following
definition: “If you verify something, you state or confirm that it is true.”
https://www.collinsdictionary.com/us/dictionary/english/verify (retrieved June 18,
2018). Oxford Living Dictionaries states: “Make sure or demonstrate that
(something) is true, accurate, or justified,” and, as a secondary definition, “Swear
to
or
support
(a
statement)
by
affidavit.”
(https://en.oxforddictionaries.com/definition/verify)(retrieved June 18, 2018).
MacMillan gives two definitions: “To check or to provide that something is true or
correct,” and, as a secondary definition, “to say that something is true or correct.”
https://www.macmillandictionary.com/us/dictionary/american/verify
(retrieved
June 18, 2018). Black’s Law Dictionary gives this definition: “To confirm or
- 26 -
Ganley
continues: “For a commissioned law enforcement officer to tell a judge that he has ‘verified’
something, he is putting his trust, and his capacities and efforts as an investigator into that
statement. He is seeking to strengthen, not loosen or weaken, the believability of the statement.”
MSJ Response at 9. Ganley insists, however, that Jojola “falsely swore his warrant affidavit,”
because “he did not verify anything, and he knows it.” MSJ Response at 9-10.
Ganley contends that he has demonstrated “that there is at least a genuine issue of material
fact regarding whether Defendant Jojola, the affiant, made his statements under oath knowingly or
with reckless disregard for the truth.” MSJ Response at 10-11. Specifically, Ganley contends that
Jojola unreasonably misidentified Ganley based on the photographic evidence, knew that Ganley
may have been the victim of identity theft, but did not investigate that possibility, and did not
analyze the fingerprint until Ganley’s criminal defense attorney asked for it to be analyzed. See
MSJ Response at 10-11.
Ganley then addresses whether Jojola’s actions violated a clearly established civil right.
See MSJ Response at 11. Ganley argues that there need not be a Tenth Circuit case “finding that
a false or reckless statement in a warrant resulted in the finding of a constitutional violation,”
because the “principle governing Defendant Jojola’s behavior (reckless disregard) has been
substantiate by oath ; to show to be true. Particularly used of making formal oath
to accounts, petitions, pleadings, and other papers. The word ‘verify’ sometimes
means to confirm and substantiate by oath, and some- times by argument. When
used in legal proceedings it is generally employed [i]n the former sense.”
https://thelawdictionary.org/letter/v/page/15/ (retrieved on June 18, 2018).
Plaintiff could go on, as there are many dictionaries. Plaintiff can find none
that supports a definition other than one that connotes careful investigation,
confirmation, and examination, or of solemn confirmation by oath.
MSJ Response at 9.
- 27 -
articulated in multiple cases in the Tenth Circuit in discussing arrest warrants” and, therefore, it
was clearly established that his actions were unconstitutional. MSJ Response at 11. Ganley also
contends that, although qualified immunity relies on an objective standard, inquiry into subjective
perspectives is necessary when it comes to whether someone acted knowingly or with reckless
disregard for the truth. See MSJ Response at 11. Thus, Ganley asserts that “this case provides a
genuine issue of material fact regarding whether Defendant acted willfully or with reckless
disregard for the veracity of his affidavit.” MSJ Response at 11.
Ganley then asserts that United States Courts of Appeals have found due process violations
in circumstances similar to this case. See MSJ Response at 12-13 (citing Fairley v. Luman, 281
F.3d 913, 915 (9th Cir. 2002); Wilson v. Lawrence Cty., 260 F.3d 946 (8th Cir. 2001); Cannon v.
Macon Cty., 1 F.3d 1558 (11th Cir. 1993); Sanders v. English, 950 F.2d 1152 (5th Cir. 1992);
Whitley v. Seibel, 613 F.2d 682 (7th Cir. 1980)). According to Ganley, those cases “demonstrate
that irresponsible and reckless failure to follow up on certain information can lead to violation of
clearly established rights.” MSJ Response at 14. Ganley also contends that the facts in Romero
v. Fay are distinguishable from this case.
Ganley then argues that qualified immunity does not bar his tort claims, noting that the
New Mexico Tort Claim Act (“NMTCA”), N.M. Stat. Ann. § 41-4-1 to -30, waives immunity for
personal injury, bodily injury, wrongful death or property damage resulting from
assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of
process, libel, slander, defamation of character, violation of property rights or
deprivation of any rights, privileges or immunities secured by the constitution and
laws of the United States or New Mexico when caused by law enforcement officers
while acting within the scope of their duties.
MSJ Response at 16 (quoting N.M. Stat. Ann. § 41-4-12).
Ganley also contends that the
Defendants’ qualified immunity defense does not apply to his claims against the City of
- 28 -
Albuquerque. See MSJ Response at 20-22. Ganley concludes by asking the Court to deny the
MSJ and to permit discovery to continue. See MSJ Response at 23. Ganley also asks that, if the
Court dismisses his federal claims, it should decline to exercise supplemental jurisdiction and
remand the state claims to state court. See Response at 23.
7
The MSJ Reply.
The Defendants reply to Ganley’s response. See MSJ Reply at 1. The Defendants first
address Ganley’s argument that qualified immunity does not apply, because Jojola submitted the
Warrant Aff. with false statements, and that, without those false statements, probable cause does
not exist. See MSJ Reply at 6. The Defendants argue that, to prevail on that argument, Ganley
must demonstrate that Jojola “knowingly, or with reckless disregard for the truth, included false
statements in the affidavit.” MSJ Reply at 6 (citing Kerns v. Bader, 663 F.3d 1173, 1188 (10th
Cir. 2011)(Gorsuch, J.)). The Defendants contend, however, that Jojola’s statement that “it is
verified John Ganley cashed the check,” MSJ Reply at 6 (quoting Warrant Aff. at 1), is “not false
nor made knowingly or with reckless disregard for the truth,” MSJ Reply at 6. The Defendants
further argue that, even excluding that statement, the Warrant Aff. demonstrates probable cause,
because it “outline[s] a series of facts to demonstrate a substantial probability” that Ganley
committed a crime. MSJ Reply at 6.
The Defendants then address Ganley’s argument that including in the Warrant Aff. a
statement that Ganley was a potential victim of identity theft would have vitiated the affidavit’s
probable cause. See MSJ Reply at 7. The Defendants contend that there is nothing in Jojola’s
investigation leading him to believe that Ganley is “in fact a victim of identity theft.” MSJ Reply
at 7 (emphasis in original). Moreover, the Defendants note that Burt’s statement was that it was
“unknown” whether Ganley was a victim of identity theft and not that he is potentially a victim.
- 29 -
MSJ Reply at 7 (emphasis omitted). The Defendants also contend that Ganley did not omit
material information or mislead the judge regarding the fingerprint, arguing that the Warrant Aff.
clearly states that the fingerprint had not yet been analyzed. See MSJ Reply at 8.
The Defendants next argue that summary judgment is proper in this case, because there is
“arguable probable cause to support” the Warrant Aff. MSJ Reply at 9. See id. at 9-10. The
Defendants also reiterate that the Fourth Amendment governs Ganley’s claims and that Jojola’s
investigation was robust enough not to violate the Fourth Amendment. See MSJ Reply at 10-11.
The Defendants then assert that Jojola did not violate any clearly established constitutional rights.
See MSJ Reply at 11 (citing White v. Pauly, 137 S. Ct. 548, 552 (2017); Medina v. City & Cty. of
Denver, 960 F.2d 1493, 1498 (10th Cir. 1992)).
Next, the Defendants address Ganley’s tort claims. See MSJ Reply at 13-17. The
Defendants argue that the NMTCA does not waive immunity for simple negligence: “While
immunity may be waived where a law enforcement officer negligently causes a third party to
commit one of the enumerated torts, ‘[t]here is substantial case law in New Mexico establishing
that under Section 41-4-12, immunity is not waived for negligence standing alone.’” MSJ Reply
at 14 (quoting Lessen v. City of Albuquerque, 2008-NMCA-085, ¶ 35, 187 P.3d 179, 186). The
Defendants admit that the NMTCA waives immunity for failure to investigate pursuant to N.M.
Stat. Ann. § 29-1-1, but argue that Jojola met his duty to investigate as that statute requires. See
MSJ Reply at 14-15. Similarly, the Defendants recognize that the NMTCA waives immunity for
false imprisonment, but argue that Jojola had probable cause to submit the Warrant Aff. See MSJ
Reply at 15. The Defendants conclude that the Court should grant the MSJ.
- 30 -
LAW REGARDING MOTIONS FOR SUMMARY JUDGMENT
Rule 56(a) of the Federal Rules of Civil Procedure states: “The court shall grant summary
judgment 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). “The movant bears the
initial burden of ‘show[ing] that there is an absence of evidence to support the nonmoving party’s
case.’” Herrera v. Santa Fe Pub. Sch., 956 F. Supp. 2d 1191, 1221 (D.N.M. 2013)(Browning,
J.)(quoting Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir. 1991)). See
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)(“Celotex”)
Before the court can rule on a party’s motion for summary judgment, the moving
party must satisfy its burden of production in one of two ways: by putting evidence
into the record that affirmatively disproves an element of the nonmoving party’s
case, or by directing the court’s attention to the fact that the non-moving party lacks
evidence on an element of its claim, “since a complete failure of proof concerning
an essential element of the nonmoving party’s case necessarily renders all other
facts immaterial.” Celotex, 477 U.S. at 323-25. On those issues for which it bears
the burden of proof at trial, the nonmovant “must go beyond the pleadings and
designate specific facts to make a showing sufficient to establish the existence of
an element essential to his case in order to survive summary judgment.” Cardoso
v. Calbone, 490 F.3d 1194, 1197 (10th Cir. 2007).
Plustwik v. Voss of Nor. ASA, No. 2:11-cv-757, 2013 WL 1945082, at *1 (D. Utah May 9,
2013)(Sam, J.)(emphasis added). “If the moving party will bear the burden of persuasion at trial,
that party must support its motion with credible evidence -- using any of the materials specified in
Rule 56(c) -- that would entitle it to a directed verdict if not controverted at trial.” Celotex, 477
U.S. at 331 (Brennan, J., dissenting)(emphasis in original). 21 Once the movant meets this burden,
21
Although the Honorable William J. Brennan, Jr., Associate Justice of the Supreme Court,
dissented in Celotex, this sentence is widely understood to be an accurate statement of the law.
See 10A Charles Allen Wright & Arthur R. Miller, Federal Practice and Procedure § 2727, at 470
(3d ed. 1998)(“Although the Court issued a five-to-four decision, the majority and dissent both
agreed as to how the summary-judgment burden of proof operates; they disagreed as to how the
standard was applied to the facts of the case.”).
- 31 -
rule 56 requires the nonmoving party to designate specific facts showing that there is a genuine
issue for trial. See Celotex, 477 U.S. at 324; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256
(1986)(“Liberty Lobby”).
The party opposing a motion for summary judgment must “set forth specific facts showing
that there is a genuine issue for trial as to those dispositive matters for which it carries the burden
of proof.” Applied Genetics Int’l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir.
1990). See Vitkus v. Beatrice Co., 11 F.3d 1535, 1539 (10th Cir. 1993)(“However, the nonmoving
party may not rest on its pleadings but must set forth specific facts showing that there is a genuine
issue for trial as to those dispositive matters for which it carries the burden of proof.” (internal
quotation marks omitted)). Rule 56(c)(1) provides: “A party asserting that a fact . . . is genuinely
disputed must support the assertion by . . . citing to particular parts of materials in the record,
including depositions, documents, electronically stored information, affidavits or declarations,
stipulations (including those made for purposes of the motion only), admissions, interrogatory
answers, or other materials[.]” Fed. R. Civ. P. 56(c)(1)(A). It is not enough for the party opposing
a properly supported motion for summary judgment to “rest on mere allegations or denials of his
pleadings.” Liberty Lobby, 477 U.S. at 256. See Abercrombie v. City of Catoosa, 896 F.2d 1228,
1231 (10th Cir. 1990); Otteson v. United States, 622 F.2d 516, 519 (10th Cir. 1980)(“[O]nce a
properly supported summary judgment motion is made, the opposing party may not rest on the
allegations contained in his complaint, but must respond with specific facts showing the existence
of a genuine factual issue to be tried.” (citation omitted)(internal quotation marks omitted)).
Nor can a party “avoid summary judgment by repeating conclusory opinions, allegations
unsupported by specific facts, or speculation.” Colony Nat’l Ins. Co. v. Omer, No. CIV 07-2123,
2008 WL 2309005, at *1 (D. Kan. June 2, 2008)(Robinson, J.)(citing Argo v. Blue Cross & Blue
- 32 -
Shield of Kan., Inc., 452 F.3d 1193, 1199 (10th Cir. 2006); Fed. R. Civ. P. 56(e)). “In responding
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.’” Colony Nat’l Ins. Co. v. Omer, 2008 WL 2309005, at *1 (quoting Conaway v. Smith,
853 F.2d 789, 794 (10th Cir. 1988)).
To deny a motion for summary judgment, genuine factual issues must exist that “can be
resolved only by a finder of fact because they may reasonably be resolved in favor of either party.”
Liberty Lobby, 477 U.S. at 250. A mere “scintilla” of evidence will not avoid summary judgment.
Vitkus v. Beatrice Co., 11 F.3d at 1539 (citing Liberty Lobby, 477 U.S. at 248). Rather, there
must be sufficient evidence on which the fact finder could reasonably find for the nonmoving
party. See Liberty Lobby, 477 U.S. at 251 (quoting Schuylkill & Dauphin Improvement Co. v.
Munson, 81 U.S. 442, 448 (1871); Vitkus v. Beatrice Co., 11 F.3d at 1539. “[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.” Liberty Lobby, 477 U.S. at 249 (citations
omitted). Where a rational trier of fact, considering the record as a whole, cannot find for the
nonmoving party, there is no genuine issue for trial. See Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986).
When reviewing a motion for summary judgment, the court should keep in mind certain
principles. First, the court’s role is not to weigh the evidence, but to assess the threshold issue
whether a genuine issue exists as to material facts requiring a trial. See Liberty Lobby, 477 U.S.
at 249. Second, the ultimate standard of proof is relevant for purposes of ruling on a summary
judgment, such that, when ruling on a summary judgment motion, the court must “bear in mind
- 33 -
the actual quantum and quality of proof necessary to support liability.” Liberty Lobby, 477 U.S.
at 254. Third, the court must resolve all reasonable inferences and doubts in the nonmoving party’s
favor, and construe all evidence in the light most favorable to the nonmoving party. See Hunt v.
Cromartie, 526 U.S. 541, 550-55 (1999); Liberty Lobby, 477 U.S. at 255 (“The evidence of the
non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.”). Fourth,
the court cannot decide any issues of credibility. See Liberty Lobby, 477 U.S. at 255.
There are, however, limited circumstances in which the court may disregard a party’s
version of the facts. This doctrine developed most robustly in the qualified immunity arena. In
Scott v. Harris, 550 U.S. 372 (2007), the Supreme Court concluded that summary judgment is
appropriate where video evidence “quite clearly contradicted” the plaintiff’s version of the facts.
550 U.S. at 378-81. The Supreme Court explained:
At the summary judgment stage, facts must be viewed in the light most favorable
to the nonmoving party only if there is a “genuine” dispute as to those facts. Fed.
Rule Civ. Proc. 56(c). As we have emphasized, “[w]hen the moving party has
carried its burden under Rule 56(c), its opponent must do more than simply show
that there is some metaphysical doubt as to the material facts . . . . Where the record
taken as a whole could not lead a rational trier of fact to find for the nonmoving
party, there is no ‘genuine issue for trial.’” Matsushita Elec. Industrial Co. v. Zenith
Radio Corp., 475 U.S. [at] 586-587 . . . (footnote omitted). “[T]he mere existence
of some alleged factual dispute between the parties will not defeat an otherwise
properly supported motion for summary judgment; the requirement is that there be
no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. [at]
247-248 . . . . When opposing parties tell two different stories, one of which is
blatantly contradicted by the record, so that no reasonable jury could believe it, a
court should not adopt that version of the facts for purposes of ruling on a motion
for summary judgment.
That was the case here with regard to the factual issue whether respondent
was driving in such fashion as to endanger human life. Respondent’s version of
events is so utterly discredited by the record that no reasonable jury could have
believed him. The Court of Appeals should not have relied on such visible fiction;
it should have viewed the facts in the light depicted by the videotape.
Scott v. Harris, 550 U.S. at 380-81 (emphasis in original).
- 34 -
The Tenth Circuit applied this doctrine in Thomson v. Salt Lake County, 584 F.3d 1304
(10th Cir. 2009), and explained:
[B]ecause at summary judgment we are beyond the pleading phase of the litigation,
a plaintiff’s version of the facts must find support in the record: more specifically,
“[a]s with any motion for summary judgment, when opposing parties tell two
different stories, one of which is blatantly contradicted by the record, so that no
reasonable jury could believe it, a court should not adopt that version of the facts.”
York v. City of Las Cruces, 523 F.3d 1205, 1210 (10th Cir. 2008)(quoting Scott,
550 U.S. at 380); see also Estate of Larsen ex rel. Sturdivan v. Murr, 511 F.3d 1255,
1258 (10th Cir. 2008).
Thomson v. Salt Lake Cty., 584 F.3d at 1312 (brackets omitted). “The Tenth Circuit, in Rhoads
v. Miller, [352 F. App’x 289 (10th Cir. 2009)(Tymkovich, J.)(unpublished),] explained that the
blatant contradictions of the record must be supported by more than other witnesses’ testimony[.]”
Lymon v. Aramark Corp., 728 F. Supp. 2d 1222, 1249 (D.N.M. 2010)(Browning, J.)(citation
omitted), aff’d, 499 F. App’x 771 (10th Cir. 2012).
LAW REGARDING RULE 56(d)
Rule 56(d) provides:
(d) When Facts Are Unavailable to the Nonmovant.
If 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 or deny it;
(2) allow time to obtain affidavits or declarations or to take discovery; or
(3) issue any other appropriate order.
Fed. R. Civ. P. 56(d). 22 “A party who seeks relief under subdivision (d) may seek an order
22
Before 2010, this rule was rule 56(f); rule 56(d) “carries forward without substantial
change the provisions of former subdivision (f).” Fed. R. Civ. P. 56(d) advisory committee’s note
to the 2010 amendments.
- 35 -
deferring the time to respond to the summary-judgment motion.” Fed. R. Civ. P. 56(d) advisory
committee’s note to the 2010 amendments. The rule permits a nonmovant to show by affidavit or
declaration the need for additional discovery; a formal affidavit is thus not required. See Fed. R.
Civ. P. 56(d). The rule permits a “written unsworn declaration, certificate, verification, or
statement subscribed in proper form as true under penalty of perjury to substitute for an affidavit.”
Fed. R. Civ. P. 56(c) advisory committee’s note to the 2010 amendments.
When a party files an affidavit or declaration, and moves for additional discovery time
under rule 56(d), the party invokes the court’s discretion. See Jensen v. Redev. Agency of Sandy
City, 998 F.2d 1550, 1553-54 (10th Cir. 1993). “Unless dilatory or lacking in merit,” a party’s
56[(d)] application “should be liberally treated.” Jensen v. Redev. Agency of Sandy City, 998
F.2d at 1554 (internal quotation marks and citations omitted). “The general principle of Rule 56(d)
is that summary judgment should be refused where the nonmoving party has not had the
opportunity to discover information that is essential to opposition.” Price ex rel. Price v. W. Res.,
Inc., 232 F.3d 779, 783 (10th Cir. 2000). Rule 56(d) does not require, however, that summary
judgment not be entered until discovery is complete. See Price ex rel. Price v. W. Res., Inc., 232
F.3d at 784.
“Rule 56[(d)] is not a license for a fishing expedition . . . .” Lewis v. Ft. Collins, 903 F.2d
752, 758 (10th Cir. 1990). To invoke rule 56(d), the party filing the affidavit or declaration must
state with specificity how the desired time would allow it to meet its burden in opposing summary
judgment. See Jensen v. Redev. Agency of Sandy City, 998 F.2d at 1554. Rule 56(d) may not be
invoked based solely upon the assertion that discovery is incomplete or that specific facts
necessary to oppose summary judgment are unavailable. See Jensen v. Redev. Agency of Sandy
City, 998 F.2d at 1554. Moreover, while the summary judgment movant’s exclusive control of
- 36 -
information weighs heavily in favor of relief under 56(d), see Price ex rel. Price v. W. Res., Inc.,
232 F.3d at 783, merely asserting such is insufficient to justify denial of summary judgment, see
Jensen v. Redev. Agency of Sandy City, 998 F.2d at 1554. Furthermore, “if the party filing the
Rule 56[(d)] affidavit has been dilatory, or the information sought is either irrelevant to the
summary judgment motion or merely cumulative, no extension will be granted.” Jensen v. Redev.
Agency of Sandy City, 998 F.2d at 1554 (denying a 56(d) request stating “the record reflects that
plaintiffs were dilatory in pursuing discovery prior to the filing of their 56[(d)] affidavit”). See
Johnson v. Holmes, 377 F. Supp. 2d 1039, 1044-45 (D.N.M. 2004)(Browning, J.)(denying a 56(d)
request where plaintiff did not explain why, during the discovery period that the court allowed, he
did not obtain the discovery sought in his motion). The Tenth Circuit has summarized rule 56(d)’s
requirements as follows:
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[, with
specificity,] how additional time will enable him to rebut movant’s allegations of
no genuine issue of fact.
Price ex rel. Price v. W. Res., Inc., 232 F.3d at 783 (citations and internal quotation marks omitted).
See Tadlock v. Lahood, 2013 WL 6284428, at *5 (10th Cir. 2013)(unpublished)(citing Price ex
rel. Price v. W. Res., Inc. for the rule 56(d) requirements after the 2010 amendment); Douglass v.
United Auto Workers Local Union 31, 188 F. App’x 656, 658 (10th Cir. 2006)(stating that the
affidavit must state how additional time will enable the party to meet its burden “with specificity”).
A rule 56(d) affidavit or declaration must state, with specificity, exactly what additional discovery
is believed necessary. See Burke v. Utah Transit Auth. & Local 382, 462 F.3d 1253, 1264 (10th
Cir. 2006); Chavez v. Perry, 142 F. App’x 325, 334 (10th Cir. 2005)(unpublished)(“To resist
- 37 -
summary judgment on this basis (56[(d)]), a party must specifically identify what facts it seeks to
discover and show how those facts would materially aid its case on the dispositive issues.”). If a
party does not file an affidavit or declaration, a district court does not abuse its discretion in
denying discovery. See Tadlock v. Lahood, 2013 WL 6284428, at *5.
The Court has previously denied rule 56(d) motions where the information sought does not
relate to a relevant legal question. See Martinez v. Lucero, 2012 WL 2175772, at *30 (D.N.M.
May 31, 2012)(Browning, J.)(“Because the information sought would not alter the Court’s
decision on either absolute or qualified immunity, the Court will deny the request for discovery
pursuant to rule 56(d).”). Similarly, it has denied 56(d) requests where the party seeks duplicative
information.
See
Todd
v.
Montoya,
877
F. Supp. 2d
1048,
1099
(D.N.M.
2012)(Browning, J.)(“There is little difference between the discovery he seeks and what he would
seek if Montoya had not raised a qualified-immunity defense.”). Finally, the Court has dismissed
rule 56(d) motions where the proponent does not submit a rule 56(d) affidavit. See Chavez v. Cty.
of Bernalillo, 3 F. Supp. 3d 933, 991 (D.N.M. 2014)(Browning, J.)(“He did not submit a rule 56(d)
affidavit or declaration.”).
LAW REGARDING § 1983 CLAIMS
Section 1983 is the exclusive vehicle for vindication of substantive rights under the
Constitution of the United States of America. See Baker v. McCollan, 443 U.S. 137, 144 n.3
(1979); Albright v. Oliver, 510 U.S. 266, 271 (1994)(explaining that § 1983 creates no substantive
rights; rather it is the means through which a plaintiff may seek redress for deprivations of rights
established in the Constitution). Section 1983 provides:
Every person who, under color of any statute, ordinance, regulation, custom, or
usage of any State . . . subjects or causes to be subjected, any citizen of the United
- 38 -
States . . . to the deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured in an action at law . . . .
42 U.S.C. § 1983. To state a claim for relief under 42 U.S.C. § 1983, a plaintiff must assert that
government officials acted under color of law in a way that resulted in a deprivation of rights which
the United States Constitution secures. See 42 U.S.C. § 1983; West v. Atkins, 487 U.S. 42, 48
(1988). There must be a connection between official conduct and violation of a constitutional right;
conduct that is not connected to a constitutional violation is not actionable under § 1983. See
Trask v. Franco, 446 F.3d 1036, 1046 (10th Cir. 1998).
Further, a civil rights action against a public official or entity may not be based solely on a
theory of respondeat superior liability for the actions of co-workers or subordinates. A plaintiff
must allege that each government official, through the official’s own individual actions, has
violated the Constitution. See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). To succeed under
§ 1983, the plaintiff must allege some identified official’s personal involvement in the alleged
constitutional violation. See Fogarty v. Gallegos, 523 F.3d 1147, 1162 (10th Cir. 2008). In a
§ 1983 action, it is particularly important that a plaintiff’s complaint “make clear exactly who is
alleged to have done what to whom, to provide each individual with fair notice as to the basis of
the claim against him or her.” Robbins v. Oklahoma, 519 F.3d 1242, 1249-50 (10th Cir.
2008)(emphasis in original). Nor do generalized statements that the defendants caused the
deprivation of a constitutional right, without plausible supporting factual allegations, state any
claim for relief. See Robbins v. Oklahoma, 519 F.3d at 1249-50.
A municipality may not be held liable under § 1983 solely because its employees inflicted
injury on the plaintiff. To establish municipal liability, a plaintiff has the burden of demonstrating:
(i) the existence of a municipal policy or custom; and (ii) a direct causal link between the policy
- 39 -
or custom, and the alleged injury. See Hinton v. City of Elwood, 997 F.2d 774, 782 (10th Cir.
1993). A municipal policy or custom may be shown by: (i) “a formal regulation or policy
statement”; (ii) an informal custom “amoun[ting] to ‘a widespread practice that, although not
authorized by written law or express municipal policy, is so permanent and well settled as to
constitute a custom or usage with the force of law’”; (iii) “the decisions of employees with final
policymaking authority”; (iv) “the ratification by such final policymakers of the decisions -- and
the basis for them -- of subordinates to whom authority was delegated subject to these
policymakers’ review and approval”; or (v) the “failure to adequately train or supervise employees,
so long as that failure results from ‘deliberate indifference’ to the injuries that may be caused.”
Brammer-Hoelter v. Twin Peaks Charter Acad., 602 F.3d 1175, 1189-90 (10th Cir. 2010)(first
quoting City of St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988); then quoting City of Canton v.
Harris, 489 U.S. 378, 388-91(1989)(internal quotation marks omitted); and then quoting Bryson
v. City of Oklahoma City, 627 F.3d 784, 788 (10th Cir. 2010)).
LAW REGARDING QUALIFIED IMMUNITY
Qualified immunity recognizes the “need to protect officials who are required to exercise
their discretion and the related public interest in encouraging the vigorous exercise of official
authority.” Harlow v. Fitzgerald, 457 U.S. 800, 807 (1982). “Qualified immunity protects federal
and state officials from liability for discretionary functions, and from ‘the unwarranted demands
customarily imposed upon those defending a long drawn-out lawsuit.’” Roybal v. City of
Albuquerque,
No.
08-0181,
2009
WL
1329834,
at
*10
(D.N.M.
April
28,
2009)(Browning, J.)(quoting Siegert v. Gilley, 500 U.S. 226, 232 (1991)). The Supreme Court
deems it “untenable to draw a distinction for purposes of immunity law between suits brought
against state officials under § 1983 and suits brought directly under the Constitution against federal
- 40 -
officials.” Butz v. Economou, 438 U.S. 478, 504 (1978). See Bivens v. Six Unknown Named
Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 392 (1971)(“Bivens”).
“The qualified
immunity analysis is the same whether the claims are brought under Bivens or pursuant to the postCivil War Civil Rights Acts.” Breidenbach v. Bolish, 126 F.3d 1288, 1291 (10th Cir. 1997),
overruled on other grounds as recognized by Currier v. Doran, 242 F.3d 905 (10th Cir. 2001).
Under § 1983 and Bivens, a plaintiff may seek money damages from government officials
who have violated his or her constitutional or statutory rights. To ensure, however, that fear of
liability will not “unduly inhibit officials in the discharge of their duties,” Anderson v. Creighton,
483 U.S. 635, 638 (1987), the officials may claim qualified immunity; so long as they have not
violated a “clearly established” right, the officials are shielded from personal liability, Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982).
That means a court can often avoid ruling on the plaintiff’s claim that a particular
right exists. If prior case law has not clearly settled the right, and so given officials
fair notice of it, the court can simply dismiss the claim for money damages. The
court need never decide whether the plaintiff’s claim, even though novel or
otherwise unsettled, in fact has merit.
Camreta v. Greene, 563 U.S. 692, 705 (2011).
Qualified immunity shields government officials from liability where “their conduct does
not violate clearly established statutory or constitutional rights of which a reasonable person would
have known.” Pearson v. Callahan, 555 U.S. at 231 (quoting Harlow v. Fitzgerald, 457 U.S. at
818). Qualified immunity also shields officers who have “reasonable, but mistaken beliefs,” and
operates to protect officers from the sometimes “hazy border[s]” of the law. Saucier v. Katz, 533
U.S. 194, 205 (2001).
When a defendant asserts qualified immunity, the plaintiff must
demonstrate: (i) that the defendant’s actions violated his or her constitutional or statutory rights;
and (ii) that the right was clearly established at the time of the alleged misconduct. See Riggins v.
- 41 -
Goodman, 572 F.3d 1101, 1107 (10th Cir. 2009). See also Pueblo of Pojoaque v. New Mexico,
214 F. Supp. 3d 1028, 1079 (D.N.M. 2016)(Browning, J.).
1.
Procedural Approach to Qualified Immunity.
The Supreme Court recently revisited the proper procedure for lower courts to evaluate a
qualified immunity defense. In Pearson v. Callahan, the Supreme Court held that lower 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 of the particular
case at hand.” 555 U.S. at 236. The Supreme Court also noted that, while no longer mandatory,
Saucier v. Katz’ protocol -- by which a court first decides if the defendant’s actions violated the
Constitution, and then the court determines if the right violated was clearly established -- will often
be beneficial. See Pearson v. Callahan, 555 U.S. at 241. In rejecting the prior mandatory approach,
the Supreme Court recognizes that “[t]here are cases in which it is plain that a constitutional right
is not clearly established but far from obvious whether in fact there is such a right,” and that such
an approach burdens district court and courts of appeals with “what may seem to be an essentially
academic exercise.” 555 U.S. at 237. The Supreme Court also recognizes that the prior mandatory
approach “departs from the general rule of constitutional avoidance and runs counter to the older,
wiser judicial counsel not to pass on questions of constitutionality unless such adjudication is
unavoidable.” 555 U.S. at 241 (alterations omitted). See Reichle v. Howards, 566 U.S. 658, 664
(2012)(affirming Pearson v. Callahan’s procedure and noting that deciding qualified immunity
issues on the basis of a right being not “clearly established” by prior case law “comports with our
usual reluctance to decide constitutional questions unnecessarily”).
- 42 -
The Supreme Court recognizes seven circumstances where district courts “should address
only” 23 the clearly established prong of the qualified immunity analysis: when (i) the constitutional
violation question “is so factbound that the decision provides little guidance for future cases”;
(ii) “it appears that the question will soon be decided by a higher court”; (iii) deciding the
constitutional question requires “an uncertain interpretation of state law”; (iv) “qualified immunity
is asserted at the pleading stage,” and “the precise factual basis for the . . . claim . . . may be hard
to identify”; (v) tackling the first element “may create a risk of bad decisionmaking,” because of
inadequate briefing; (vi) discussing both elements risks “bad decisionmaking,” because the court
is firmly convinced that the law is not clearly established and is thus inclined to give little thought
to the existence of the constitutional right; or (vii) the doctrine of “constitutional avoidance”
suggests the wisdom of passing on the first constitutional question when “it is plain that a
constitutional right is not clearly established but far from obvious whether in fact there is such a
right.” Kerns v. Bader, 663 F.3d at 1180-81 (quoting Pearson v. Callahan, 555 U.S. at 236-42).
Regarding the last of these seven circumstances, the Supreme Court has clarified that courts may
“avoid avoidance” and address the first prong before the second prong in cases involving a
recurring fact pattern, where guidance on the constitutionality of the challenged conduct is
23
In Camreta v. Greene, the Supreme Court, somewhat confusingly, states that there are
seven circumstances in which the district courts “should address only” the clearly established
prong, but, in the same sentence, notes that deciding the violation prong is left “to the discretion
of the lower courts.” Camreta v. Greene, 563 U.S. at 707. In Kerns v. Bader, the Tenth Circuit
interpreted Camreta v. Greene to mean that district courts are restricted from considering the
violation prong in seven particular circumstances. See Kerns v. Bader, 663 F.3d at 1180-81. The
Supreme Court, however, has not stressed the seven circumstances as mandatory. Instead, it has
recently reaffirmed only that lower courts “should think hard, and then think hard again before
addressing both qualified immunity and the merits of an underlying constitutional claim.” District
of Columbia v. Wesby, 138 S. Ct. 577, 589 n.7 (2018). This language suggests that the inquiry is
still discretionary, although the Court’s discretion should be exercised carefully.
- 43 -
necessary, and the conduct is likely to face challenges only in the qualified immunity context.
Camreta v. Greene, 563 U.S. at 706-707. See Kerns v. Bader, 663 F.3d at 1181. 24 “Courts should
24
In Kerns v. Bader, the Tenth Circuit reversed the Court’s decision that an officer was not
entitled to qualified immunity, noting that the Court “analyzed both aspects of the qualified
immunity test before agreeing” with the plaintiff that the qualified immunity defense did not
protect the officer. 663 F.3d at 1183. In reversing, the Tenth Circuit stated:
Because we agree with Sheriff White on the latter (clearly established law)
question, we reverse without addressing the former (constitutional violation)
question. And we pursue this course because doing so allows us to avoid rendering
a decision on important and contentious questions of constitutional law with the
attendant needless (entirely avoidable) risk of reaching an improvident decision on
these vital questions.
663 F.3d at 1183-84. The Tenth Circuit did not analyze whether the officer violated the plaintiff’s
constitutional rights and stated that guidance on the particular constitutional issue would be more
appropriate in a case not involving qualified immunity: “Neither do we doubt that the scope of
the Constitution’s protection for a patient’s hospital records can be adequately decided in future
cases where the qualified immunity overlay isn’t in play (e.g., through motions to suppress
wrongly seized records or claims for injunctive or declaratory relief).” 663 F.3d at 1187 n.5. On
remand, the Court stated:
While the Court must faithfully follow the Tenth Circuit’s decisions and opinions,
the Court is troubled by this statement and the recent trend of the Supreme Court’s
hesitancy in § 1983 actions to address constitutional violations. A Reconstruction
Congress, after the Civil War, passed § 1983 to provide a civil remedy for
constitutional violations. See Mitchum v. Foster, 407 U.S. 225, 238-39 (1972). In
Mitchum v. Foster, the Supreme Court explained:
Section 1983 was originally § 1 of the Civil Rights Act of
1871 . . . and was enacted for the express purpose of “enforc(ing)
the Provisions of the Fourteenth Amendment.” The predecessor of
§ 1983 was thus an important part of the basic alteration in our
federal system wrought in the Reconstruction era through federal
legislation and constitutional amendment.
407 U.S. at 238-39. Congress did not say it would remedy only violations of
“clearly established” law, but that:
[e]very person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or the District
- 44 -
of Columbia, subjects, or causes to be subjected, any citizen of the
United States or other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured in an action
at law, suit in equity, or other proper proceeding for redress, except
that in any action brought against a judicial officer for an act or
omission taken in such officer’s judicial capacity, injunctive relief
shall not be granted unless a declaratory decree was violated or
declaratory relief was unavailable.
42 U.S.C. § 1983. The Supreme Court established the qualified immunity defense
in Pierson v. Ray, 386 U.S. 547 (1967), and held that officials were not liable for
constitutional violations where they reasonably believed that their conduct was
constitutional. See E. Clarke, Safford Unified Sch. Dist. No. 1 v. Redding: Why
Qualified Immunity is a Poor Fit in Fourth Amendment School Search Cases, 24
B.Y.U. J. Pub. L. 313, 329 (2010). The Supreme Court first introduced the “clearly
established” prong in reference to an officer’s good faith and held that a
compensatory award would only be appropriate if an officer “acted with such an
impermissible motivation or with such disregard of the [individual’s] clearly
established constitutional rights that his action cannot reasonably be characterized
as being in good faith.” Wood v. Strickland, 420 U.S. 308, 322 (1975). In Harlow
v. Fitzgerald, when the Supreme Court moved to an objective test, the clearly
established prong became a part of the qualified immunity test. See 457 U.S. at
818 (“We therefore hold that government officials performing discretionary
functions generally are shielded from liability for civil damages insofar as their
conduct does not violate clearly established statutory or constitutional rights.”). It
seems ironic that the federal courts would restrict a congressionally mandated
remedy for constitutional violations -- presumably the rights of innocent people - and discourage case law development on the civil side -- and restrict case law
development to motions to suppress, which reward only the guilty and is a judicially
created, rather than legislatively created, remedy. Commentators have noted that,
“[o]ver the past three decades, the Supreme Court has drastically limited the
availability of remedies for constitutional violations in” exclusionary rule litigation
in a criminal case, habeas corpus challenges, and civil litigation under § 1983. J.
Marceau, The Fourth Amendment at a Three-Way Stop, 62 Ala. L. Rev. 687, 687
(2011). Some commentators have also encouraged the courts to drop the
suppression remedy and the legislature to provide more -- not less -- civil remedies
for constitutional violations. See Christopher Slobogin, Why Liberals Should
Chuck the Exclusionary Rule, 1999 U. Ill. L. Rev. 363, 390-91 (1999)(“Behavioral
theory suggests that the exclusionary rule is not very effective in scaring police into
behaving. . . . These theories also suggest that a judicially administered damages
regime . . . would fare significantly better at changing behavior at an officer
level.”); Hon. Malcolm R. Wilkey, Constitutional Alternatives to the Exclusionary
- 45 -
think carefully before expending ‘scarce judicial resources’ to resolve difficult and novel questions
of constitutional or statutory interpretation that will ‘have no effect on the outcome of the case.’”
Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011)(quoting Pearson v. Callahan, 555 U.S. at 236-37).25
See Camreta v. Greene, 563 U.S. at 707 (“In general, courts should think hard, and then think hard
again, before turning small cases into large ones.”). The Tenth Circuit will remand a case to the
district court for further consideration when the district court has given only cursory treatment to
Rule, 23 S. Tex. L.J. 531, 539 (1982)(criticizing the exclusionary rule and
recommending alternatives). In Hudson v. Michigan, 547 U.S. 586 (2006), the
Supreme Court noted that civil remedies were a viable alternative to a motion to
suppress when it held that the exclusionary rule was inapplicable to cases in which
police officers violate the Fourth Amendment when they fail to knock and
announce their presence before entering. See 547 U.S. at 596-97. Rather than being
a poor or discouraged means of developing constitutional law, § 1983 seems the
better and preferable alternative to a motion to suppress. It is interesting that the
current Supreme Court and Tenth Circuit appear more willing to suppress evidence
and let criminal defendants go free, than have police pay damages for violations of
innocent citizens’ civil rights. It is odd that the Supreme Court has not adopted a
clearly established prong for suppression claims; it seems strange to punish society
for police violating unclear law in criminal cases, but protect municipalities from
damages in § 1983 cases.
Kerns v. Bd. of Comm’rs, 888 F. Supp. 2d 1176, 1224 n.36 (D.N.M. 2012)(Browning, J.),
abrogated on other grounds as recognized by Ysasi v. Brown, No. 13-0183 2014 WL 936835, at
*9 n.24 (D.N.M. Feb. 28, 2014)(Browning, J.). See Richard E. Myers, Fourth Amendment Small
Claims Court, 10 Ohio St. J. Crim. L. 571, 590-97 (2013)(arguing that municipalities should
establish small-claims courts to adjudicate police officers’ Fourth Amendment violations and
award monetary judgments).
25
Appellate courts may fail to appreciate how difficult it is to do a clearly established prong
review first without looking -- closely or superficially -- at whether there is a constitutional right
and whether there is a violation. It is difficult to stop and review the facts, rights, and alleged
violations in other cases to determine the clearly established prong without first looking at the
facts, rights, and alleged violations on the merits in the case before the Court, and determining the
universe of comparable cases. Pearson v. Callahan sounds like a good idea in theory, but it does
not work well in practice. The clearly established prong is a comparison between the case before
the Court and previous cases, and Pearson v. Callahan suggests that the Court can compare before
the Court fully understands what it is comparing. Saucier v. Katz worked better in practice.
- 46 -
qualified immunity’s clearly established prong. See Kerns v. Bader, 663 F.3d at 1182. See also
Pueblo of Pojoaque v. New Mexico, 214 F. Supp. 3d at 1082-83.
2.
Clearly Established Rights.
To determine whether a right was clearly established, a court must consider whether the
right was sufficiently clear that a reasonable government employee would understand that what he
or she did violated a right. See Casey v. W. Las Vegas Indep. Sch. Dist., 473 F.3d 1323, 1327
(10th Cir. 2007). “A clearly established right is generally defined as a right so thoroughly
developed and consistently recognized under the law of the jurisdiction as to be ‘indisputable’ and
‘unquestioned.’”
Lobozzo v. Colo. Dep’t of Corr., 429 F. App’x 707, 710 (10th Cir.
2011)(unpublished)(quoting Zweibon v. Mitchell, 720 F.2d 162, 172-73 (D.C. Cir. 1983)).
“Ordinarily, in order for the law to be clearly established, there must be a Supreme Court
or Tenth Circuit decision on point, or the clearly established weight of authority from other courts
must have found the law to be as the plaintiff maintains.” Currier v. Doran, 242 F.3d at 923. “In
determining whether the right was ‘clearly established,’ the court assesses the objective legal
reasonableness of the action at the time of the alleged violation and asks whether ‘the contours of
the right [were] sufficiently clear that a reasonable official would understand that what he is doing
violates that right.’” Holland ex rel. Overdorff v. Harrington, 268 F.3d at 1186 (alteration in
original)(quoting Saucier v. Katz, 533 U.S. at 202). A court should inquire “whether the law put
officials on fair notice that the described conduct was unconstitutional” rather than engage in “a
scavenger hunt for cases with precisely the same facts.” Pierce v. Gilchrist, 359 F.3d 1279, 1298
(10th Cir. 2004).
The Supreme Court has clarified that qualified immunity’s clearly established prong is a
very high burden for the plaintiff: “A Government official’s conduct violates clearly established
- 47 -
law when, at the time of the challenged conduct, the contours of a right are sufficiently clear that
every reasonable official would have understood that what he is doing violates that right.”
Ashcroft v. al-Kidd, 563 U.S. at 741. “In other words, ‘existing precedent must have placed the
statutory or constitutional question beyond debate.’” Reichle v. Howards, 132 S. Ct. at 2093
(quoting Ashcroft v. al-Kidd, 563 U.S. at 741). “The operation of this standard, however, depends
substantially upon the level of generality at which the relevant ‘legal rule’ is to be identified.”
Anderson v. Creighton, 483 U.S. at 639.
“The general proposition, for example, that an
unreasonable search or seizure violates the Fourth Amendment is of little help in determining
whether the violative nature of particular conduct is clearly established.” Ashcroft v. al-Kidd, 563
U.S. at 742. The level of generality at which the legal rule is defined is important, because
qualified immunity shields officers who have “reasonable, but mistaken beliefs” as to the
application of law to facts and operates to protect officers from the sometimes “hazy border[s]” of
the law. Saucier v. Katz, 533 U.S. at 205.
“[A] case on point isn’t required if the impropriety of the defendant’s conduct is clear from
existing case law,” but the law is not clearly established where “a distinction might make a
constitutional difference.” Kerns v. Bader, 663 F.3d at 1188. In Kerns v. Bader, dealing with the
search of a home, the Tenth Circuit explained that the relevant question “wasn’t whether we all
have some general privacy interest in our home,” but “whether it was beyond debate in 2005 that
the officers’ entry and search lacked legal justification.” 663 F.3d at 1183. Furthermore, “general
statements of the law are not inherently incapable of giving fair and clear warning.” Hope v.
Pelzer, 536 U.S. 730, 741 (2002).
Although the Tenth Circuit has recognized a sliding scale for qualified immunity’s clearly
established inquiry, see Casey v. City of Fed. Heights, 509 F.3d 1278, 1284 (10th Cir. 2007)(“We
- 48 -
have therefore adopted a sliding scale to determine when law is clearly established.”), the Tenth
Circuit may have since walked back its holding that a sliding-scale is the appropriate analysis, see
Aldaba v. Pickens, 844 F.3d 870, 876 (10th Cir. 2016)(“Aldaba II”). In Aldaba II, the Tenth
Circuit reconsidered its ruling from Aldaba v. Pickens, 777 F.3d 1148 (10th Cir. 2015)(“Aldaba
I”), that officers were entitled to qualified immunity after the Supreme Court vacated its decision
in light of Mullenix v. Luna, 136 S. Ct. 305 (2015)(per curiam). In concluding that they had
previously erred in Aldaba I, the Tenth Circuit determined:
We erred . . . by relying on excessive-force cases markedly different from this one.
Although we cited Graham v. Connor, 490 U.S. 386 (1989) to lead off our clearlyestablished-law discussion, we did not just repeat its general rule and conclude that
the officers’ conduct had violated it. Instead, we turned to our circuit’s slidingscale approach measuring degrees of egregiousness in affirming the denial of
qualified immunity. We also relied on several cases resolving excessive-force
claims. But none of those cases remotely involved a situation as here.
Aldaba II, 844 F.3d at 876. The Tenth Circuit further noted that its sliding-scale approach may
have fallen out of favor, because the sliding-scale test relies, in part, on Hope v. Pelzer, 536 U.S.
at 739-41, and the Supreme Court’s most recent qualified immunity decisions do not invoke that
case. See Aldaba II, 844 F.3d at 874 n.1. The Tenth Circuit explained:
To show clearly established law, the Hope Court did not require earlier cases with
“fundamentally similar” facts, noting that “officials can still be on notice that their
conduct violates established law even in novel factual circumstances.” Id. at 741[].
This calls to mind our sliding-scale approach measuring the egregiousness of
conduct. See Morris v. Noe, 672 F.3d 1185, 1196 (10th Cir. 2012). But the Supreme
Court has vacated our opinion here and remanded for us to reconsider our opinion
in view of Mullenix, which reversed the Fifth Circuit after finding that the cases it
relied on were “simply too factually distinct to speak clearly to the specific
circumstances here.” 136 S. Ct. at 312. We also note that the majority opinion in
Mullenix does not cite Hope v. Pelzer, 536 U.S. 730, [] (2002). As can happen over
time, the Supreme Court might be emphasizing different portions of its earlier
decisions.
- 49 -
Aldaba II, 844 F.3d at 874 n.1. Since Aldaba II, the Supreme Court has reversed, per curiam,
another Tenth Circuit qualified immunity decision. See White v. Pauly, 137 S. Ct. at 551. In
concluding that police officers were entitled to qualified immunity, the Supreme Court
emphasized: “As this Court explained decades ago, the clearly established law must be
‘particularized’ to the facts of the case.” White v. Pauly, 137 S. Ct. at 552 (quoting Anderson v.
Creighton, 483 U.S. at 640). With that principle in mind, the Supreme Court explained that the
Tenth Circuit “panel majority misunderstood the ‘clearly established’ analysis: It failed to identify
a case where an officer acting under similar circumstances as Officer White was held to have
violated the Fourth Amendment.” White v. Pauly, 137 S. Ct. at 552. See District of Columbia v.
Wesby, 138 S. Ct. at 591 (“Tellingly, neither the panel majority nor the partygoers have identified
a single precedent -- much less a controlling case or robust consensus of cases -- finding a Fourth
Amendment violation under similar circumstances.”). Although the Supreme Court noted that “we
have held that [Tennessee v.] Garner[, 471 U.S. 1 (1985)] and Graham do not by themselves create
clearly established law outside ‘an obvious case,’” it concluded “[t]his is not a case where it is
obvious that there was a violation of clearly established law under Garner and Graham.” White
v. Pauly, 137 S. Ct. at 552 (quoting Brosseau v. Haugen, 543 U.S. 194, 199 (2004)). 26
26
If a district court in New Mexico is trying -- as it does diligently and faithfully -- to
receive and read the unwritten signs of its superior courts, it would appear that the Supreme Court
has signaled through its per curiam qualified immunity reversals that a nigh identical case must
exist for the law to be clearly established. As former Tenth Circuit judge, and now Stanford law
school professor, Michael McConnell, has noted, much of what lower courts do is read the implicit,
unwritten signs that the superior courts send them through their opinions. See Michael W.
McConnell, Address at the Oliver Seth American Inn of Court: How Does the Supreme Court
Communicate Its Intentions to the Lower Courts: Holdings, Hints and Missed Signals (Dec. 17,
2014). Although still stating that there might be an obvious case under Graham v. Connor that
would make the law clearly established without a Supreme Court or Circuit Court case on point,
see White v. Pauly, 137 S. Ct. at 552, the Supreme Court has sent unwritten signals to the lower
- 50 -
courts that a factually identical or a highly similar factual case is required for the law to be clearly
established, and the Tenth Circuit is now sending those unwritten signals to the district courts, see
Malone v. Bd. of Cty. Comm’rs for Cty. of Dona Ana, 2017 WL 3951706, at *3 (10th Cir. Sept.
8, 2017)(unpublished)(reversing the Court’s judgment that the case should proceed where a
deceased plaintiff was backing away from the police when shot and was not raising his gun,
because “the parties do not cite, nor could we find, any Supreme Court or Tenth Circuit case that
is sufficiently close factually to the circumstances presented here to establish clearly the Fourth
Amendment law that applies”).
Factually identical or highly similar factual cases are not, however, the way the real world
works. Cases differ. Many cases have so many facts that are unlikely to ever occur again in a
significantly similar way. See York v. City of Las Cruces, 523 F.3d 1205, 1212 (10th Cir.
2008)(“However, [the clearly established prong] does not mean that there must be a published case
involving identical facts; otherwise we would be required to find qualified immunity wherever we
have a new fact pattern.”). Nevertheless, the Supreme Court has crafted its recent qualified
immunity jurisprudence to effectively eliminate § 1983 claims by requiring an indistinguishable
case and by encouraging courts to go straight to the clearly established prong. See Saenz v.
Lovington Mun. Sch. Dist., 105 F. Supp. 3d 1271, 1297 n.4 (D.N.M. 2015)(Browning, J.).
The Supreme Court’s obsession with the clearly established prong assumes that police
officers are reading Supreme Court and Tenth Circuit opinions routinely in their spare time,
carefully comparing the facts in these qualified immunity cases with the circumstances they
confront in their day to day police work. It is hard enough for the federal judiciary to do what the
Supreme Court wants on a full time basis.
The Court thus disagrees with that approach. The most conservative, principled decision
is to minimize the expansion of the judicially created clearly established prong, so that it does not
eclipse the congressionally enacted § 1983 remedy. As the Cato Institute noted in a recent amicus
brief, “qualified immunity has increasingly diverged from the statutory and historical framework
on which it is supposed to be based.” Brief of the Cato Institute as Amicus Curiae Supporting
Petitioners at 2, Pauly v. White, 138 S.Ct. 2650 (No. 17-1078)(“Cato Brief”)(available at
https://www.supremecourt.govDocketPDF/17/17-078/37345/20180302120715934_Pauly%20v.
%20White%20Cato%20amicus%20brief.pdf). “The text of 42 U.S.C. § 1983 . . . makes no
mention of immunity, and the common law of 1871 did not include any across-the-board defense
for all public officials.” Cato Brief at 2. “With limited exceptions, the baseline assumption at the
founding and throughout the nineteenth century was that public officials were strictly liable for
unconstitutional misconduct. Judges and scholars alike have thus increasingly arrived at the
conclusion that the contemporary doctrine of qualified immunity is unmoored from any lawful
justification.” Cato Brief at 2. See generally William Baude, Is Qualified Immunity Unlawful?,
106 Cal. L. Rev. 45 (2018)(arguing that the Supreme Court’s justifications for qualified immunity
are incorrect). Further, as the Honorable Clarence Thomas, Associate Justice of the United States
Supreme Court, has argued, because the Supreme Court’s qualified immunity analysis “is no
longer grounded in the common-law backdrop against which Congress enacted [§ 1983], we are
no longer engaged in interpret [ing] the intent of Congress in enacting the Act.” Ziglar v. Abbasi,
137 S. Ct. 1843, 1871 (2017)(Thomas, J., concurring)(internal quotation marks omitted “Our
qualified immunity precedents instead represent precisely the sort of freewheeling policy choice[s]
- 51 -
LAW REGARDING MONELL CLAIMS
42 U.S.C. § 1983 provides:
Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory or the District of Columbia, subjects, or
causes to be subjected, any citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the party injured in an action
at law. . . .
The Supreme Court has recognized that “municipalities and other bodies of local government are
‘persons’ within the meaning of this statute.” St. Louis v. Praprotnik, 485 U.S. at, 121. The
Supreme Court has articulated “when a decision on a single occasion may be enough to establish
an unconstitutional municipal policy.” St. Louis v. Praprotnik, 485 U.S. at 123 (citation omitted).
First, a majority of the Court agreed that municipalities may be held liable under
§ 1983 only for acts for which the municipality itself is actually responsible, that
is, acts which the municipality has officially sanctioned or ordered. Second, only
those municipal officials who have final policymaking authority may by their
actions subject the government to § 1983 liability. Third, whether a particular
official has final policymaking authority is a question of state law. Fourth, the
challenged action must have been taken pursuant to a policy adopted by the official
that we have previously disclaimed the power to make.” Ziglar v. Abbasi, 137 S. Ct. at 1871
(Thomas, J., concurring)(internal quotation marks omitted The judiciary should be true to § 1983
as Congress wrote it.
Moreover, in a day when police shootings and excessive force cases are in the news, there
should be a remedy when there is a constitutional violation, and jury trials are the most democratic
expression of what police action is reasonable and what action is excessive. If the citizens of New
Mexico decide that the defendants were deliberately indifferent, the verdict should stand, not be
set aside because the parties could not find an indistinguishable Tenth Circuit or Supreme Court
decision. Finally, to always decide the clearly established prong first and then to always say that
the law is not clearly established could be stunting the development of constitutional law. See
Aaron L. Nielson & Christopher J. Walker, The New Qualified Immunity, 89 S. Cal. L. Rev. 1, 6
(2015). And while the Tenth Circuit -- with the exception of now-Justice Gorsuch, see Shannon
M. Grammel, Justice Gorsuch on Qualified Immunity, 69 Stan. L. Rev. Online 163 (2017) -- seems
to be in agreement with the Court, see, e.g., Casey, 509 F.3d at 1286, the per curiam reversals
appear to have the Tenth Circuit stepping lightly around qualified immunity’s clearly established
prong, see Aldaba II, 844 F.3d at 874; Malone v. Bd. of Cty. Comm’rs for Cty. of Dona Ana, 2017
WL 3951706, at *3; Brown v. City of Colorado Springs, 2017 WL 4511355, at *8, and willing to
reverse district court decisions.
- 52 -
or officials responsible under state law for making policy in that area of the city’s
business.
St. Louis v. Praprotnik, 485 U.S. at 123 (citations and internal quotations omitted). The Tenth
Circuit has explained that there are two elements that a plaintiff must show when “suing a county
under section 1983 for the actions of one of its officers”: (i) “a municipal employee committed a
constitutional violation”; and (ii) “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)(citing Monell, 436 U.S. at 694); Hinton v. City of Elwood, 997 F.2d at 782 (citing City
of Los Angeles v. Heller, 475 U.S. 796, 799 (1986); Apodaca v. Rio Arriba Cty. Sheriff’s Dep’t,
905 F.2d 1445, 1447-48 (10th Cir. 1990); Watson v. City of Kansas City, 857 F.2d 690, 697 (10th
Cir. 1988)). Those elements apply when the plaintiff alleges that the acts of a final policymaker
are the policy of the municipality.
The defendants do not deny that Sheriff Sharp, as the supervising law enforcement
officer, was a final policymaker with respect to the decision to enter the apartment.
Thus, there is no dispute in this case that the County, through Sheriff Sharp, was
the ‘moving force’ behind the decision to enter the apartment. If that decision -- the
decision to enter the apartment -- resulted in a constitutional violation, the County
would be liable.
Myers v. Okla. Cty. Bd. of Cty. Comm’rs, 151 F.3d at 1319 (citation omitted).
LAW REGARDING SUBSTANTIVE DUE PROCESS
The Fourteenth Amendment’s Due Process Clause provides that “no State shall . . . deprive
any person of life, liberty, or property without due process of law.” U.S. Const. amend. XIV, § 1.
In general, state actors may be held liable under § 1983 only for their own affirmative acts that
violate a plaintiff’s due-process rights and not for third parties’ acts. See Robbins v. Oklahoma,
519 F.3d at 1251 (citing DeShaney v. Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189, 197
(1989)). “[N]othing in the language of the Due Process Clause itself requires the State to protect
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the life, liberty and property of its citizens against invasion by private actors.” DeShaney v.
Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. at 195. The Due Process Clause is not a guarantee
of a minimal level of safety and security. See DeShaney v. Winnebago Cty. Dep’t of Soc. Servs.,
489 U.S. at 195.
1.
Exceptions to the General Rule.
There are, however, two exceptions to this general rule. The first exception -- the specialrelationship doctrine -- arises when the state has a custodial relationship with the victim, which
triggers an affirmative duty to provide protection to that individual. See Christiansen v. City of
Tulsa, 332 F.3d 1270, 1280 (10th Cir. 2003); Graham v. Indep. Sch. Dist. No. 1-89, 22 F.3d 991,
994-95 (10th Cir. 1994). The second exception -- the danger-creation theory -- provides that a
state may also be liable for an individual’s safety “only when ‘a state actor affirmatively acts to
create, or increases a plaintiff’s vulnerability to, or danger from private violence.’” Robbins v.
Oklahoma, 519 F.3d at 1251 (quoting Currier v. Doran, 242 F.3d at 923). “If either the specialrelationship or danger-creation exception applies, the conduct of the state actor must go beyond
negligence to the point of ‘shocking the conscience.’” Glover v. Gartman, 899 F. Supp. 2d 1115,
1135 (D.N.M. 2012)(Browning, J.)(citing Johnson ex rel. Estate of Cano v. Holmes, 455 F.3d
1133, 1142 (10th Cir. 2006)(“The shocks the conscience standard applies to both types of suits.”)).
2.
Special-Relationship Exception.
The first exception to the general principle that a state’s negligent failure to protect an
individual cannot trigger liability under the due process clause is the special-relationship doctrine.
A plaintiff must show that he or she was involuntarily committed to state custody to establish a
duty to protect under the special-relationship doctrine. See Liebson v. N.M. Corr. Dep’t, 73 F.3d
274, 276 (10th Cir. 1996). “A special relationship exists when the state assumes control over an
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individual sufficient to trigger an affirmative duty to provide protection to that individual (e.g.
when the individual is a prisoner or involuntarily committed mental patient).” Uhlrig v. Harder,
64 F.3d 567, 572 (10th Cir. 1995).
3.
Danger-Creation Exception.
The Due Process Clause protects against “deliberately wrongful government decisions
rather than merely negligent government conduct.” Uhlrig v. Harder, 64 F.3d at 573. The dangercreation exception to this rule applies only when “a state actor affirmatively acts to create, or
increases a plaintiff’s vulnerability to, or danger from private violence.” Currier v. Doran, 242
F.3d at 923. See Estate of B.I.C. v. Gillen, 702 F.3d 1182, 1187 (10th Cir. 2012)(“[S]tate officials
can be liable for the acts of private parties where those officials created the very danger that caused
the harm.”). Under a danger-creation theory, there is no § 1983 liability absent “an intent to harm”
or “an intent to place a person unreasonably at risk of harm.” Uhlrig v. Harder, 64 F.3d at 573. A
plaintiff must show “sufficient[] ‘affirmative conduct on the part of the state in placing the plaintiff
in danger.’” Estate of B.I.C. v. Gillen, 702 F.3d at 1187 (quoting Gray v. Univ. Colo. Hosp. Auth.,
672 F.3d 909, 916 (10th Cir. 2012)). To state a prima facie case, the plaintiff must show that his
or her danger-creation claim for due process violations meets a six-part test: (i) the state and
individual actors must have created the danger or increased plaintiff’s vulnerability to the danger
in some way; (ii) the plaintiff must be a member of a limited and specifically definable group; (iii)
the defendant’s conduct must put the plaintiff at substantial risk of serious, immediate, and
proximate harm; (iv) the risk must be obvious and known; and (v) the defendant must have acted
recklessly in conscious disregard of that risk. See Pena v. Greffet, 922 F. Supp. 2d 1187, 1227
(D.N.M. 2013)(Browning, J.)(citing Rost ex rel. K.C. v. Steamboat Springs RE-2 Sch. Dist., 511
F.3d 1114, 1126 (10th Cir. 2008)).
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In determining whether the danger-creation exception applies, the Tenth Circuit has
focused on the deliberateness of the conduct in relation to the caused harm. See Christiansen v.
City of Tulsa, 332 F.3d at 1281. The defendant must recognize the unreasonableness of the risk
of the conduct and act “with an intent to place a person unreasonably at risk.” Medina v. City &
Cty. of Denver, 960 F.2d at 1496. The intent to place a person unreasonably at risk is present
where the defendant “is aware of a known or obvious risk” creating a high probability that serious
harm will follow, and the defendant nonetheless proceeds with a “conscious and unreasonable
disregard of the consequences.” Medina v. City & Cty. of Denver, 960 F.2d at 1496 (citations
omitted).
4.
What Shocks the Conscience.
A government actor’s official conduct intended to injure in a way that cannot reasonably
be justified by any government interest most likely shocks the conscience. See Cty. of Sacramento
v. Lewis, 523 U.S. 833, 849 (1998)(“[C]onduct intended to injure in some way unjustifiable by
any government interest is the sort of official action most likely to rise to the conscience-shocking
level.”). “[A] plaintiff must do more than show that the government actor intentionally or
recklessly caused injury to the plaintiff by abusing or misusing government power.” Camuglia v.
City of Albuquerque, 448 F.3d 1214, 1222 (10th Cir. 2006)(internal quotation marks
omitted)(quoting Moore v. Guthrie, 438 F.3d 1036, 1040 (10th Cir. 2006)). “The plaintiff must
demonstrate a degree of outrageousness and a magnitude of potential or actual harm that is truly
conscience shocking.” Camuglia v. City of Albuquerque, 448 F.3d at 1222-23 (internal quotation
marks omitted)(quoting Uhlrig v. Harder, 64 F.3d at 574).
Establishing these limits advances “three basic principles highlighted by the
Supreme Court in evaluating substantive due process claims: (1) the need for
restraint in defining their scope; (2) the concern that § 1983 not replace state tort
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law; and (3) the need for deference to local policymaking bodies in making
decisions impacting upon public safety.”
Camuglia v. City of Albuquerque, 448 F.3d at 1223 (quoting Uhlrig v. Harder, 64 F.3d at 574).
“Whether the conduct shocks the conscience is an objective test, based on the
circumstances, rather than a subjective test based on the government actor’s knowledge.” Pena v.
Greffet, 922 F. Supp. 2d at 1227 (citing James v. Chavez, 830 F. Supp. 2d 1208, 1276 (D.N.M.
2011)(Browning, J.)(concluding that the use of deadly force did not shock the conscience even if
the suspect did not have an intent to harm the officer, because the officer “had sufficient facts
before him to conclude that there was a threat of serious physical harm” and the “courts must
evaluate a [government actor’s] conduct objectively”), aff’d, 511 F. App’x 742 (10th Cir. 2013)).
In Martinez v. Uphoff, 265 F.3d 1130 (10th Cir. 2001), the widow of a corrections officer
sued the director, deputy director, warden, and deputy wardens of the department of corrections,
alleging that the defendants deliberately failed to ensure proper training and supervision of
penitentiary personnel, failed to provide safe and adequate staffing, and failed to take corrective
action to protect her husband, all of which resulted in him being killed during the escape of three
inmates. See 265 F.3d at 1132. The district court concluded that the plaintiff failed to state a
§ 1983 claim for violation of the Due Process Clause under a danger-creation theory, because the
defendants’ actions were “not of such a magnitude that the Court is able to conclude they shock
the conscience.” 265 F.3d at 1134. The Tenth Circuit agreed with the district court’s conclusion,
stating: “[U]nder the circumstances of this case, inaction in the face of known dangers or risks is
not enough to satisfy the danger-creation theory’s conscience shocking standard.” 265 F.3d at
1135.
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In Schaefer v. Las Cruces Public School District, 716 F. Supp. 2d 1052 (D.N.M.
2010)(Browning, J.), the plaintiffs alleged that the defendants -- the school district, superintendent,
principal, and vice principal of a middle school -- violated the plaintiffs’ substantive due process
rights when they did not take sufficient action to prevent a student at the school from “racking” 27
the plaintiffs’ son. 716 F. Supp. 2d at 1072-73. The Court concluded that the defendants’ conduct
did not shock the conscience. See 716 F. Supp. 2d at 1074-75. The Court explained:
Assuming the absolute worst from the Schaefers’ alleged facts, the Defendants
were aware of three instances of an unknown eighth-grade student racking various
sixth-grade students within the span of a month, and failed to implement policies
to improve hallway monitoring and stop this conduct from occurring in time to
prevent [the plaintiffs’ son] from falling victim to the same fate. Further, the
Defendants indicated to the sixth graders that it had policies in place to punish
individuals that assaulted other students but did not, in fact, have such policies.
While such behavior may be worthy of remedy under tort law, and perhaps
worthy of punishment in the form of punitive damages, the Court’s conscience is
not shocked . . . .
Any number of actions by the Defendants might have remedied the
problem, but the Court’s conscience is not shocked by the Defendants’ failure to
consider or implement such a policy. Even if the Defendants knew that students
frequently -- more than three times per month -- attacked other students in the halls
and declined to implement safety measures to minimize that conduct, the Court is
not convinced that it would rise to the level of shocking the conscience.
716 F. Supp. 2d at 1074-75.
LAW REGARDING UNLAWFUL ARREST
“A police officer violates an arrestee’s clearly established Fourth Amendment right to be
free of unreasonable seizure if the officer makes a warrantless arrest without probable cause.”
Olsen v. Layton Hills Mall, 312 F.3d 1304, 1312 (10th Cir. 2002)(citing Tennessee v. Garner, 471
27
The parties in Schaefer v. Las Cruces Public School District defined being “racked” as
being “kicked and/or punched in the testicles.” 716 F. Supp. 2d at 1059 n.2 (citations
omitted)(internal quotation marks omitted).
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U.S. at 7). “The law . . . is unambiguous: a government official must have probable cause to arrest
an individual.” Cortez v. McCauley, 478 F.3d 1108, 1117 (10th Cir. 2007)(citing Tennessee v.
Garner, 471 U.S. at 7). See Michigan v. DeFillippo, 443 U.S. 31, 36 (1979)(“[T]he Constitution
permits an officer to arrest a suspect without a warrant if there is probable cause to believe that the
suspect has committed or is committing an offense.”). “Probable cause exists if facts and
circumstances within the arresting officer’s knowledge and of which he or she had reasonably
trustworthy information are sufficient to lead a prudent person to believe that the arrestee has
committed or is committing an offense.” Keylon v. City of Albuquerque, 535 F.3d 1210, 1216
(10th Cir. 2008)(quoting Romero v. Fay, 45 F.3d at 1476). The Supreme Court has stated that the
existence of probable cause for an arrest depends on whether, based on historical facts leading up
to the arrest, an objectively reasonable police officer would find probable cause:
The principal components of a determination of reasonable suspicion or probable
cause will be the events which occurred leading up to the stop or search, and then
the decision whether these historical facts, viewed from the standpoint of an
objectively reasonable police officer, amount to reasonable suspicion or to probable
cause. The first part of the analysis involves only a determination of historical facts,
but the second is a mixed question of law and fact: “[T]he historical facts are
admitted or established, the rule of law is undisputed, and the issue is whether the
facts satisfy the [relevant] statutory [or constitutional] standard, or to put it another
way, whether the rule of law as applied to the established facts is or is not violated.”
Ornelas v. United States, 517 U.S. 690, 696-97 (1996)(alterations in original)(quoting PullmanStandard v. Swint, 456 U.S. 273, 289 n.19 (1982)).
The Tenth Circuit has explained that a plaintiff alleging that the “government has
unconstitutionally imprisoned him has at least two potential constitutional claims: ‘The initial
seizure is governed by the Fourth Amendment, but at some point after arrest, and certainly by the
time of trial, constitutional analysis shifts to the Due Process Clause.’” Mondragon v. Thompson,
519 F.3d 1078, 1082 (10th Cir. 2008)(quoting Pierce v. Gilchrist, 359 F.3d at 1285-86). If the
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plaintiff was imprisoned without legal process, his Fourth Amendment claim 28 is analogous to
false arrest or false imprisonment; if he was imprisoned “pursuant to legal but wrongful process,
he has a claim under the procedural component of the Fourteenth Amendment’s Due Process
Clause analogous to a tort claim for malicious prosecution.” Mondragon v. Thompson, 519 F.3d
at 1082. More recently, the Tenth Circuit has explained that the Fourteenth Amendment claim
analogous to a malicious prosecution claim would not be available if an adequate state remedy
exists, but a plaintiff may have the option of bringing a Fourth Amendment claim using a similar
malicious prosecution theory. See Myers v. Koopman, 738 F.3d 1190, 1192 (10th Cir. 2013). In
Myers v. Koopman, the plaintiff alleged that a detective fabricated facts to create the illusion of
probable cause and, as a result, the plaintiff spent three days in custody. See 738 F.3d at 1192.
The plaintiff brought a claim under § 1983 for malicious prosecution, alleging that the detective
violated his Fourth and Fourteenth Amendment rights. See 738 F.3d at 1192. The plaintiff brought
the Fourteenth Amendment malicious prosecution claim based on the detective’s conduct in
“conjur[ing] up facts to create the illusion of probable cause for an arrest warrant and subsequent
prosecution.” 738 F.3d at 1193. The Tenth Circuit explained that “[t]he Fourteenth Amendment
protects individuals against deprivations of liberty without due process of law. If a state actor’s
harmful conduct is unauthorized and thus could not be anticipated pre-deprivation, then an
adequate post-deprivation remedy -- such as a state tort claim -- will satisfy due process
28
The Tenth Circuit clarified that, because the Fourteenth Amendment incorporates the
Fourth Amendment’s protections against the states, a Fourth Amendment claim against state actors
is also a Fourteenth Amendment claim. See Mondragon v. Thompson, 519 F.3d at 1082 n.3. The
Court will likewise “avoid this terminology here to reduce confusion,” opting instead to refer to
the Fourth Amendment in reference to the right to be free from unlawful seizures, and the
Fourteenth Amendment in reference to the right to due process. Mondragon v. Thompson, 519
F.3d at 1082 n.3.
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requirements.” 738 F.3d at 1193 (citations omitted). Because a malicious prosecution claim under
Colorado law was available, the Tenth Circuit affirmed the district court’s dismissal: “The
existence of the state remedy flattens the Fourteenth Amendment peg on which [the plaintiff] now
tries to hang his § 1983 malicious-prosecution claim.” 738 F.3d at 1193. The plaintiff also brought
a malicious prosecution claim under the Fourth Amendment; the district court analogized the claim
to a false imprisonment claim, but the Tenth Circuit said that the plaintiff was correct in casting
his claim as malicious prosecution, “because he was seized after the institution of legal process.”
738 F.3d at 1194. The Tenth Circuit described the difference between a § 1983 claim for false
imprisonment and malicious prosecution under the Fourth Amendment:
What separates the two claims? -- the institution of legal process. Unreasonable
seizures imposed without legal process precipitate Fourth Amendment false
imprisonment claims. See Wallace[ v. Kato], 549 U.S. [384,] 389 [(2007)]
(concluding that false imprisonment was the proper analogy where defendants did
not have a warrant for the plaintiff’s arrest and thus detention occurred without
legal process). Unreasonable seizures imposed with legal process precipitate
Fourth Amendment malicious-prosecution claims. See Heck[ v. Humphrey], 512
U.S. [477,] 484 [(1994)](where detention occurs with legal process the “commonlaw cause of action for malicious prosecution provides the closest analogy”). Like
rain and snow, the claims emanate from the same source, but under different
conditions.
Myers v. Koopman, 738 F.3d at 1194 (footnote omitted). The Tenth Circuit explained that the
plaintiff was “arrested pursuant to a validly issued -- if not validly supported -- arrest warrant” and
that the plaintiff’s suit “challenges the probable-cause determination that generated the legal
process.” 738 F.3d at 1195.
LAW REGARDING THE NMTCA
The New Mexico Legislature enacted the NMTCA, because it recognized “the inherent
unfair and inequitable results which occur in the strict application of the doctrine of sovereign
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immunity.”
N.M. Stat. Ann. § 41-4-2A.
The New Mexico Legislature, however, also is
recognized
that while a private party may readily be held liable for his torts within the chosen
ambit of his activity, the area within which the government has the power to act for
the public good is almost without limit, and therefore government should not have
the duty to do everything that might be done.
N.M. Stat. Ann. § 41-4-2A. As a result, it was “declared to be the public policy of New Mexico
that governmental entities and public employees shall only be liable within the limitations of the
Tort Claims Act and in accordance with the principles established in that act.” N.M. Stat. Ann.
§ 41-4-2A. The NMTCA is also “based upon the traditional tort concepts of duty and the
reasonably prudent person’s standard of care in the performance of that duty.” N.M. Stat. Ann.
§ 41-4-2C.
1.
Section 41-4-4(A).
The NMTCA’s § 41-4-4(A), which grants immunity and authorizes exceptions thereto,
states:
A governmental entity and any public employee while acting within the scope of
duty are granted immunity from liability for any tort except as waived by the New
Mexico Religious Freedom Restoration Act [N.M. Stat. Ann. §§ 28-22-1 to 28-225] and by Sections 41-4-5 through 41-4-12 NMSA 1978. Waiver of this immunity
shall be limited to and governed by the provisions of Sections 41-4-13 through 414-25 NMSA 1978, but the waiver of immunity provided in those sections does not
waive immunity granted pursuant to the Governmental Immunity Act.
N.M. Stat. Ann. § 41-4-2A. Accordingly, a plaintiff may not sue a New Mexico governmental
entity or its employees or agents, unless the plaintiff’s cause of action fits within one of the
exceptions that the NMTCA grants for governmental entities and public employees. See N.M.
Stat. Ann. §§ 41-4-5 through 41-4-12. See also Begay v. State, 1985-NMCA-117, ¶ 10, 723 P.2d
252, 255 (“Consent to be sued may not be implied, but must come within one of the exceptions to
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immunity under the Tort Claims Act.”), rev’d on other grounds by Smialek v. Begay, 1986NMSC-049, ¶ 10, 721 P.2d 1306 (1986). A plaintiff also may not sue a governmental entity or its
employees for a damage claim arising out of violations of rights under the New Mexico
Constitution unless the NMTCA contains a waiver of immunity. See Barreras v. N.M. Corr. Dep’t,
2003-NMCA-027, ¶ 24, 62 P.3d 770, 776 (“In the absence of affirmative legislation, the courts of
this state have consistently declined to permit individuals to bring private lawsuits to enforce rights
guaranteed by the New Mexico Constitution, based on the absence of an express waiver of
immunity under the Tort Claims Act.”); Chavez v. City of Albuquerque, 1998-NMCA-004, ¶ 11,
952 P.2d 474, 477 (noting that a plaintiff cannot seek damages for violations of rights under the
New Mexico Constitution against a city, its employees, or its agents unless the NMTCA waives
immunity); Rubio v. Carlsbad Mun. Sch. Dist., 1987-NMCA-127 ¶¶ 11-12, 744 P.2d 919, 922
(holding that no waiver of immunity exists for damages arising out of alleged educational
malpractice claim against a school board); Begay v. State, 1985-NMCA-117, ¶ 14, 723 P.2d at
257 (concluding that no waiver exists in the NMTCA for suit under Article II, § 11 of the New
Mexico Constitution). Accordingly, if no specific NMTCA waiver can be identified, a plaintiff’s
complaint against the governmental entity or its employees must be dismissed. See Begay v. State,
1985-NMCA-117, ¶ 14, 723 P.2d at 255. Further, the NMTCA is the
exclusive remedy against a governmental entity or public employee for any tort for
which immunity has been waived under the Tort Claims Act and no other claim,
civil action or proceeding for damages, by reason of the same occurrence, may be
brought against a governmental entity or against the public employee or his estate
whose act or omission gave rise to the suit or claim.
N.M. Stat. Ann. § 41-4-17(A). A plaintiff thus “may not sue a New Mexico governmental entity,
or its employees or agents, unless the plaintiff’s cause of action fits within one of the exceptions
to immunity that the NMTCA grants.” Pueblo of Pojoaque v. New Mexico, 214 F. Supp. 3d 1028,
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1087 (D.N.M. 2016)(Browning, J.), aff’d 863 F.3d 1226, 1228 (10th Cir. 2017). “A plaintiff also
may not sue a governmental entity or its employees for a . . . damages claim arising out of
violations of rights under the New Mexico Constitution unless the NMTCA contains a waiver of
immunity.” Pueblo of Pojoaque v. New Mexico, 214 F. Supp. 3d at 1087. “Thus, if no specific
waiver can be found in the NMTCA, a plaintiff’s complaint [for damages] against the
governmental entity or its employees must be dismissed.” Salazar v. City of Albuquerque, 2013
WL 5554185 at *24 (D.N.M. Aug. 20, 2013)(Browning, J.)(citing Begay v. State, 1985-NMCA117, ¶ 10, 723 P.2d at 255).
2.
Section 41-4-6.
N.M. Stat. Ann. § 41-4-6 exempts from immunity “liability for damages resulting from
bodily injury, wrongful death or property damage caused by the negligence of public employees
while acting within the scope of their duties in the operation or maintenance of any building, public
park, machinery, equipment or furnishings.” N.M. Stat. Ann. § 41-4-6. This exception balances
the principle that “government should not have the duty to do everything that might be done” with
the desire “to compensate those injured by the negligence of public employees and to impose duties
of reasonable care.” Cobos v. Doña Ana Cty. Hous. Auth., 1998-NMSC-049, ¶ 6, 970 P.2d 1143,
1145 (citations and internal quotations omitted). To resolve the tension between these two goals,
§ 41-4-6 “grant[s] governmental entities and employees a general immunity from tort liability,
[and] waives that immunity in certain defined circumstances.” Cobos v. Doña Ana Cty. Hous.
Auth., 1998-NMSC-049, ¶ 6, 970 P.2d at 1145 (alterations added). The Supreme Court of New
Mexico has explained that, “[w]hile 41-4-6 may appropriately be termed a ‘premises liability’
statute, the liability envisioned by that section is not limited to claims caused by injuries occurring
on or off certain ‘premises,’ as the words ‘machinery’ and ‘equipment’ reveal.” Cobos v. Doña
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Ana County Hous. Auth., 1998-NMSC-049, ¶ 9, 970 P.2d at 1146 (alteration added). Section 414-6 “contemplate[s] waiver of immunity where due to the alleged negligence of public employees
an injury arises from an unsafe, dangerous, or defective condition on property owned and operated
by the government.” Bober v. N.M. State Fair, 1991-NMSC-031, ¶ 27, 808 P.2d 614, 623
(alterations original)(internal quotation marks and citation omitted). New Mexico courts have
concluded that § 41-4-6’s waiver of immunity does not extend to negligent supervision, see
Pemberton v. Cordova, 1987-NMCA-020, ¶ 5, 734 P.2d 254, 256, negligent design, see Rivera v.
King, 1988-NMCA-093, ¶¶ 30-35, 765 P.2d 1187, 1194, negligent inspection, see Martinez v.
Kaune, 1987-NMCA-131, ¶ 9, 745 P.2d 714, 716-17, or negligent classification of a prison inmate,
see Archibeque v. Moya, 1993-NMSC-079, ¶¶ 11-14, 866 P.2d at 348.
In the prison context, the Supreme Court of New Mexico has held that “[t]he ‘operation’
and ‘maintenance’ of the penitentiary premises, as these terms are used in 41-4-6, does not include
the security, custody, and classification of inmates . . . . Section 41-4-6 does not waive immunity
when public employees negligently perform such administrative functions.” Archibeque v. Moya,
1993-NMSC-079, ¶ 8, 866 P.2d at 347 (alterations added)(citations omitted). In Archibeque v.
Moya, Chris Archibeque, an inmate at the Central New Mexico Correction Facility, was
transferred to the New Mexico State Penitentiary in Santa Fe, New Mexico. See 1993-NMSC079, ¶ 2, 866 P.2d at 346. Before being released into general population, a prison intake officer,
Moya-Martinez, met with Archibeque to discuss whether he had any known enemies within the
prison’s general population. See 1993-NMSC-079, ¶ 2, 866 P.2d at 346. Archibeque informed
Moya-Martinez that another inmate, Gallegos, was one of his enemies, and Moya-Martinez,
without checking an available list of current inmates, informed Archibeque that Gallegos was no
longer at the prison. See 1993-NMSC-079, ¶ 2, 866 P.2d at 346. He was released into general
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population, and Gallegos assaulted him that night. See 1993-NMSC-079, ¶ 2, 866 P.2d at 346.
Archibeque sued Moya-Martinez, other corrections officers, and the New Mexico Corrections
Department in federal court for violations under 42 U.S.C. § 1983 and under the NMTCA. See
1993-NMSC-079, ¶ 3, 866 P.2d at 346. The district court interpreted § 41-4-6 narrowly, and held
that the statute did not waive immunity for negligent security and custody of inmates at the
penitentiary. See 1993-NMSC-079, ¶ 4, 866 P.2d at 346. Thereafter, Archibeque’s § 1983 claims
were resolved in favor of Moya-Martinez and the other corrections employees. See 1993-NMSC079, ¶ 4, 866 P.2d at 346.
The federal district court denied Archibeque’s motion for
reconsideration. See 1993-NMSC-079, ¶ 4, 866 P.2d at 346. Archibeque appealed, and the Tenth
Circuit certified a question to the Supreme Court of New Mexico:
Does [NMSA 1978, Section 41-4-6] of the New Mexico Tort Claims Act, [NMSA
1978, Sections 41-4-1 to -29], provide immunity from tort liability to an employee
of the state penitentiary whose alleged negligence in releasing a prisoner into the
general prison population, which included known enemies of the prisoner, resulted
in the prisoner being beaten and injured by one of his enemies?
1993-NMSC-079, ¶ 1, 866 P.2d at 345-46 (alterations in original). Archibeque argued that Moya–
Martinez was participating in the operation of the penitentiary when she classified Archibeque as
an inmate who could safely be released into the general prison population, and he argued that
Moya-Martinez’ alleged negligence in misclassifying him and releasing him into the general
population constituted negligent operation of the penitentiary, thereby waiving immunity under
§ 41-4-6. See 1993-NMSC-079, ¶ 5, 866 P.2d at 346-47. The Supreme Court of New Mexico
concluded that § 41-4-6 did not waive Moya-Martinez’ immunity, stating that “[t]he ‘operation’
and ‘maintenance’ of the penitentiary premises, as these terms are used in Section 41-4-6, does not
include the security, custody, and classification of inmates.” 1993-NMSC-079, ¶ 6, 866 P.2d at
347 (alteration added). The Supreme Court of New Mexico reasoned that Moya-Martinez was not
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operating and maintaining the prison’s physical premises when she negligently classified
Archibeque. See 1993-NMSC-079, ¶ 8, 866 P.2d at 347. Rather, the Supreme Court of New
Mexico explained that
[Moya-Martinez] was performing an administrative function associated with the
operation of the corrections system. Section 41-4-6 does not waive immunity when
public employees negligently perform such administrative functions. To read
Section 41-4-6 as waiving immunity for negligent performance of administrative
functions would be contrary to the plain language and intended purpose of the
statute.
1993-NMSC-079, ¶ 8, 866 P.2d at 347 (alteration added)(citation omitted). The Supreme Court
of New Mexico further explained:
While Moya-Martinez’s misclassification of Archibeque put him at risk, the
negligence did not create an unsafe condition on the prison premises as to the
general prison population. Reading Section 41-4-6 to waive immunity every time
a public employee’s negligence creates a risk of harm for a single individual would
subvert the purpose of the Tort Claims Act, which recognizes that government,
acting for the public good, “should not have the duty to do everything that might
be done,” and limits government liability accordingly.
1993-NMSC-079, ¶ 8, 866 P.2d at 348 (citation omitted)(quoting N.M. Stat. § 41-4-2(A)).
According to the Supreme Court of New Mexico, to permit a waiver of immunity under § 41-4-6
whenever injury results from a negligently performed administrative task “would undermine the
purpose of the Tort Claims Act by subjecting the State to liability for virtually any mistake made
during the administration of corrections facilities that results in injury to an inmate.” 1993-NMSC079, ¶ 14, 866 P.2d at 349. The Supreme Court of New Mexico noted that, “[w]hile a segment of
the population at risk might justify waiver of immunity under Section 41-4-6, a situation in which
a single inmate is put at risk is not comparable.” 1993-NMSC-079, ¶ 14, n.3, 866 P.2d at 349 n.3.
The Honorable Richard Ransom, then-Chief Justice of the Supreme Court of New Mexico, in his
concurring opinion, noted:
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I concur because there was no showing that the general prison population reflected
anything but the reasonable and expected risks of prison life. The classification of
Archibeque did not change the condition of the premises. I see Archibeque’s
injuries as having been proximately caused by a discrete administrative decision.
As an alternative to releasing Archibeque into the general population, he could have
been placed in administrative segregation, a form of protective custody. The risk
arose not from a condition of the premises (as with the wild dogs in Castillo [v.
County of Santa Fe, 1988-NMSC-037, 755 P.2d 48,] or, arguably, the inadequate
health care facilities in Silva [v. State, 1987-NMSC-107, 745 P.2d 380]); it arose
from the classification itself.
Archibeque v. Moya, 1993-NMSC-079, ¶ 17, 866 P.2d at 350 (Ransom, C.J., concurring).
In Callaway v. New Mexico Department of Corrections, 1994-NMCA-049, ¶ 19, 875 P.2d
393, 398, the Court of Appeals of New Mexico concluded that the plaintiff had “stated a claim
sufficient to waive immunity under Section 41-4-6,” because the New Mexico Corrections
Department “knew or should have known that roaming gang members with a known propensity
for violence had access to potential weapons in the recreation area, that such gang members created
a dangerous condition on the premises of the penitentiary, and that the danger to other inmates was
foreseeable.” 1994-NMCA-049, ¶ 19, 875 P.2d at 399. The Court of Appeals of New Mexico
additionally noted, in “support for [its] holding[,]” that the “inmate assailant was unusually
dangerous and the prison authorities had knowledge of the danger posed by the inmate.” 1994NMCA-049, ¶ 19, 875 P.2d at 399 (alterations added). See Lymon v. Aramark Corp., 728 F. Supp.
2d at 1251-56, aff’d, 499 F. App’x 771 (10th Cir. 2012); C.H. v. Los Lunas Sch. Bd. of Educ., 852
F. Supp. 2d 1344, 1358-59 (D.N.M. 2012)(Browning, J.)(holding that allegations of negligence
against the Defendants fell within the § 41-4-6 waiver, in part, because the Plaintiff “adequately
allege[d] that the Defendants knew or should have known of the dangerous condition”).
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3.
Section 41-4-16.
Section 41-4-16 provides:
A. 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, the superintendent of the school district for claims against the
school district, the County clerk of a county for claims against the County, 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.
B. No suit or action for which immunity has been waived under the Tort Claims
Act shall be maintained and no court shall have jurisdiction to consider any suit
or action against the state or any local public body unless notice has been given
as required by this section, or unless the governmental entity had actual notice
of the occurrence. The time for giving notice does not include the time, not
exceeding ninety days, during which the injured person is incapacitated from
giving the notice by reason of injury.
N.M. Stat. Ann. § 41-4-16(A)-(B). “[D]efendants have the burden of proving that the notice
requirement was not met.” Dutton v. McKinley Cty. Bd. of Comm’rs, 1991-NMCA-130, ¶ 7, 822
P.2d 1134, 1135. “[T]he law is now 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.’” Dutton v. McKinley Cty. Bd. of Comm’rs, 1991-NMCA130, ¶ 9, 822 P.2d at 1136 (quoting Frappier v. Mergler, 1988-NMCA-021, ¶ 11, 752 P.2d 253,
256). Mere awareness that an accident involving a state employee is insufficient to put a
governmental entity on notice under § 41-4-16(A). See Powell v. N.M. State Highway & Transp.
Dep’t, 1994-NMCA-035, ¶ 15, 872 P.2d 388, 392 (stating that “where virtually every employee
was aware of occurrence, but not of likelihood of litigation, such knowledge held insufficient to
comply with notice requirement of section 41-4-16” and “where both mayor and chief of police
were aware of occurrence, but not that litigation might result, or that the plaintiff considered
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accident to be fault of the defendants, actual notice held not provided” (citing Dutton v. McKinley
Cty. Bd. of Comm’rs, 1991-NMCA-130, ¶ 9, 822 P.2d at 1136; Frappier v. Mergler, 1988-NMCA021, ¶¶ 15-16, 752 P.2d at 256-57).
Nor does actual notice under Section 41-4-16(B) require that the notice of a claim
indicate that a lawsuit will in fact be filed against the state, but rather, that the state
must be given notice of a likelihood that litigation may ensue, in order to reasonably
alert the state to the necessity of investigating the merits of the potential claim.
Callaway v. N.M. Dep’t of Corr., 1994-NMCA-049, ¶ 6, 875 P.2d at 396. The Court has noted
that “[p]roper notice under the NMTCA appears to be jurisdictional.” Todd v. Montoya, 877 F.
Supp. 2d 1048, 1102 n.60 (D.N.M. 2012)(Browning, J.). See Coffey v. United States, 2011 WL
2729068, at *6 (D.N.M. July 7, 2011)(Browning, J.)(“Because the notice provisions of the
NMTCA are jurisdictional . . . New Mexico courts have narrowly construed whether actual notice
of the likelihood of litigation has been given to the proper entity.”).
LAW REGARDING SUPPLEMENTAL JURISDICTION
It is a fundamental precept of American law that the federal courts are “courts of limited
jurisdiction.” Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 552 (2005). Federal
courts “possess only that power authorized by Constitution and statute.” Kokkonen v. Guardian
Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). Among the powers that Congress has bestowed
upon the courts is the power to hear controversies arising under federal law -- federal-question
jurisdiction -- and controversies arising between citizens of different states -- diversity
jurisdiction. See 28 U.S.C. §§ 1331-32. Section 1367 additionally grants the federal courts power
to hear claims over which the court lacks original jurisdiction, if those claims are part of the same
constitutional case as claims over which the court has original jurisdiction. See 28 U.S.C.
§ 1367(a).
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1.
Congressional Authority to Exercise Supplemental Jurisdiction.
Although a statutory basis is necessary for federal courts to exercise jurisdiction over a
controversy, “it is well established -- in certain classes of cases -- that, once a court has original
jurisdiction over some claims in the action, it may exercise supplemental jurisdiction over
additional claims that are part of the same case or controversy.” Exxon Mobil Corp. v. Allapattah
Servs., Inc., 545 U.S. at 552. The Supreme Court of the United States has long subscribed to the
concept of supplemental jurisdiction recognized in two common-law doctrines, pendent
jurisdiction and ancillary jurisdiction; section 1367’s passage codified those jurisdictional forms,
and also allowed courts to hear cases under pendent-party jurisdiction, which the Supreme Court
had previously disallowed in Finley v. United States, 490 U.S. 545 (1989). Federal courts may
exercise pendent jurisdiction over state law claims when “state and federal claims . . . derive from
a common nucleus of operative fact.” United Mine Workers v. Gibbs, 383 U.S. 715, 725 (1966).
Supplemental jurisdiction gives federal courts the flexibility to hear a cause of action after the
introduction of third parties, whose insertion into the litigation does not have the support of any
independent grounds for federal jurisdiction, when those parties share a common interest in the
outcome of the litigation and are logical participants in it. See Owen Equip. & Erection Co. v.
Kroger, 437 U.S. 365, 375 n.18 (1978).
In 1988, the Honorable William H. Rehnquist, then-Chief Justice of the Supreme Court,
created the Federal Courts Study Committee to analyze the federal court system and to recommend
reforms. See James v. Chavez,2011 WL 6013547, at *5 (D.N.M. Nov. 21, 2011)(Browning, J.).
In response to the Committee’s findings regarding pendent, ancillary, and pendent-party
jurisdiction, Congress codified the doctrines when it passed the Judicial Improvements Act of
1990:
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[I]n any civil action of which the district courts have original jurisdiction, the
district courts shall have supplemental jurisdiction over all other claims that are so
related to claims in the action within such original jurisdiction that they form part
of the same case or controversy under Article III of the United States Constitution.
Such supplemental jurisdiction shall include claims that involve the joinder or
intervention of additional parties.
28 U.S.C. § 1367(a). In enacting 28 U.S.C. § 1367, Congress conferred upon federal courts
“supplemental forms of jurisdiction . . . [that] enable them to take full advantage of the rules on
claim and party joinder to deal economically -- in single rather than multiple litigation -- with
matters arising from the same transaction or occurrence.” Report of the Federal Courts Study
Committee, Part II.2.B.2.b. (April 2, 1990), reprinted in 22 Conn. L. Rev. 733, 787 (1990).
2.
The District Courts’ Discretion to Exercise Supplemental Jurisdiction.
The Tenth Circuit has followed the Supreme Court’s lead in classifying supplemental
jurisdiction not as a litigant’s right, but as a matter of judicial discretion. See Estate of Harshman
v. Jackson Hole Mountain Resort Corp., 379 F.3d 1161, 1165 (10th Cir. 2004)(citing City of Chi.
v. Int’l Coll. of Surgeons, 522 U.S. 156, 173 (1997)). In circumstances where the supplemental
jurisdiction statute may support supplemental jurisdiction, the district court retains discretion to
decline to exercise that jurisdiction. The traditional analysis, based on the Supreme Court’s
opinion in United Mine Workers v. Gibbs, compelled courts to consider “judicial economy,
convenience and fairness to litigants” when deciding whether to exercise supplemental
jurisdiction. 383 U.S. at 726.
Similarly, Congress’ supplemental jurisdiction statute enumerates four factors that the
court should consider:
(1)
the claim raises a novel or complex issue of State law,
(2)
the claim substantially predominates over the claim or claims over which
the district court has original jurisdiction,
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(3)
the district court has dismissed all claims over which it has original
jurisdiction, or
(4)
in exceptional circumstances, there are other compelling reasons for
declining jurisdiction.
28 U.S.C. § 1367(c). In applying these factors, district courts should seek to exercise supplemental
jurisdiction in an effort to “vindicate values of economy, convenience, fairness, and comity.”
Estate of Harshman v. Jackson Hole Mountain Resort Corp., 379 F.3d at 1164. Numerous courts
have acknowledged that 28 U.S.C. § 1367(c) necessarily changes the district courts’ supplemental
jurisdiction discretion analysis and that, unless one of the conditions of 28 U.S.C. § 1367(c) exists,
courts are not free to decline jurisdiction. See Itar-Tass Russian News Agency v. Russian Kurier,
Inc., 140 F.3d 442, 447 (2d Cir. 1998)(“[S]ection 1367 has indeed altered Gibbs’ discretionary
analysis.”); McLaurin v. Prater, 30 F.3d 982, 985 (8th Cir. 1994)(“The statute plainly allows the
district court to reject jurisdiction over supplemental claims only in the four instances described
therein.”); Exec. Software N. Am. v. U.S. Dist. Ct., 24 F.3d 1545, 1557 (9th Cir. 1994)(“By
codifying preexisting applications of Gibbs in subsections (c)(1)-(3), however, it is clear that
Congress intended the exercise of discretion to be triggered by the court’s identification of a factual
predicate that corresponds to one of the section 1367(c) categories.”), overruled on other grounds
by Cal. Dep’t of Water Res. v. Powerex Corp., 533 F.3d 1087 (9th Cir. 2008); Palmer v. Hosp.
Auth., 22 F.3d 1559, 1569 (11th Cir. 1994)(“[S]upplemental jurisdiction must be exercised in the
absence of any of the four factors of section 1367(c). . . .”); Bonadeo v. Lujan, 2009 WL 1324119,
at *9 (D.N.M. Apr. 30, 2009)(Browning, J.)(“28 U.S.C. § 1367(c) changed the district courts’
supplemental jurisdiction discretion analysis to prohibit courts from declining jurisdiction unless
one of the conditions of 28 U.S.C. § 1367(c) exists.”). At least one other district court in the Tenth
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Circuit besides this Court has reached the same conclusion. See Gudenkauf v. Stauffer Commc’ns,
Inc., 896 F. Supp. 1082, 1084 (D. Kan. 1995)(Crow, J.)(“[A]ny exercise of discretion declining
jurisdiction over pendent claims or parties cannot occur until ‘triggered’ by the existence of one
of the four conditions enumerated.”).
The Tenth Circuit has held that district courts should presume to decline jurisdiction over
state claims when federal claims no longer remain: “When all federal claims have been dismissed,
the court may, and usually should, decline to exercise jurisdiction over any remaining state
claims.” Koch v. City of Del City, 660 F.3d 1228, 1248 (10th Cir. 2011)(quoting Smith v. City of
Enid ex rel. Enid City Comm’n, 149 F.3d 1151, 1156 (10th Cir. 1998)). That conclusion is
consistent with the Supreme Court’s statement that
[n]eedless decisions of state law should be avoided both as a matter of comity and
to promote justice between the parties, by procuring for them a surer-footed reading
of applicable law. Certainly, if the federal claims are dismissed before trial, even
though not insubstantial in a jurisdictional sense, the state claims should be
dismissed as well.
United Mine Workers of Amer. v. Gibbs, 383 U.S. at 726 (footnote omitted).
The Tenth Circuit has recognized that a district court does not abuse its discretion when it
declines
to
exercise
supplemental
jurisdiction
over
a
claim
“under
28
U.S.C.
§ 1367(c)(3) . . . where it has dismissed all claims over which it has original jurisdiction.” Muller
v. Culbertson, 408 F. App’x 194, 197 (10th Cir. 2011)(unpublished). 29 The Court has previously
29
Muller v. Culbertson is an unpublished Tenth Circuit opinion, but the Court can rely on
an unpublished Tenth Circuit opinion to the extent its reasoned analysis is persuasive in the case
before it. See 10th Cir. R. 32.1(A), 28 U.S.C. (“Unpublished opinions are not precedential, but
may be cited for their persuasive value.”). The Tenth Circuit has stated: “In this circuit,
unpublished orders are not binding precedent, . . . and . . . citation to unpublished opinions is not
favored. . . . However, if an unpublished opinion . . . has persuasive value with respect to a
material issue in a case and would assist the court in its disposition, we allow a citation to that
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stated that a district court should usually decline to exercise supplemental jurisdiction when 28
U.S.C. § 1367(c) applies. See Armijo v. New Mexico,2009 WL 3672828, at *4 (D.N.M. Sept. 30,
2009)(Browning, J.)(“The Supreme Court and the Tenth Circuit have not only acknowledged such
a result, they have encouraged it.”). The Court has consistently declined to exercise supplemental
jurisdiction when it dismisses all of a case’s federal claims with prejudice. See, e.g., McGarry v.
Bd. of Cty. Commissioners for Cty. of Lincoln, 294 F. Supp. 3d 1170, 1206 (D.N.M.
2018)(Browning, J.)(“The only remaining claim before the Court is McGarry’s NMTCA
claim. . . . The Court declines to exercise supplemental jurisdiction over that claim.”); Parrish v.
Roosevelt Cty. Board of Cty. Comm’rs, 2017 WL 6759103, at *20 (D.N.M. Dec. 31,
2017)(Browning, J.)(“The Court declines to exercise supplemental jurisdiction over Parrish’s
remaining state-law breach-of-contract claim.”); Martinez v. Guadalupe Cty., 200 F. Supp. 3d
1216, 1265 (D.N.M. 2016)(Browning, J). The Court has also, however, declined to dismiss statelaw claims when it dismisses a party’s federal claims without prejudice. See Young v. City of
Albuquerque, 77 F. Supp. 3d 1154, 1189 (D.N.M. 2014)(Browning, J.)(“[T]he Court would
normally remand those [state law] claims to state court. To give the Plaintiffs an opportunity to
amend the Complaint to add federal claims against Dear and any other individuals, however, the
Court will not remand the state-law claims to state court at this point.”).
1.
Whether an Issue is Novel.
Under 28 U.S.C. § 1367(c)(1), a district court “may decline to exercise supplemental
jurisdiction over a claim” if “the claim raises a novel or complex issue of state law.” 28
decision.” United States v. Austin, 426 F.3d 1266, 1274 (10th Cir. 2005). The Court concludes
that Muller v. Culbertson, Mountain States Media, LLC v. Adams Cty., Nard v. City of Okla. City,
Douglas v. Norton, and Wallin v. Dycus have persuasive value with respect to a material issue,
and will assist the Court in its preparation of this Memorandum Opinion and Order.
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U.S.C. § 1367(c)(1). What makes a state law issue novel is unclear from binding Tenth Circuit
caselaw. See, e.g., Roe v. Cheyenne Mountain Conference Resort, Inc., 124 F.3d 1221, 1236-37
(10th Cir. 1997)(not distinguishing between “novel” and “complex” and dismissing a state law
claim on § 1367(c)(1) grounds and because no federal law claims remained); Anglemyer v.
Hamilton Cty. Hosp., 58 F.3d 533, 541 (10th Cir. 1995)(dismissing a state law claim as novel and
complex, merely because a plaintiff alleged a violation of the Kansas Risk Management Act, Kan.
Stat. Ann. §§ 65-4921 to 4940). 30 A discernible test for novelty is also not apparent from studying
Professors Charles Alan Wright and Arthur Miller’s Federal Practice and Procedure. See generally
13D Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 3567.3, at 417421 nn. 60-61 (3d. ed. 2008)(collecting cases). The only general rule that Professors Wright and
Miller recognize for the novelty test is that, “[a]s a general matter, common law contract and tort
claims do not present novel or complex questions of state law.” 13D Wright & Miller, supra
§ 3567.3, at 417 n.60. See, e.g., Blakely v. United States, 276 F.3d 853 (6th Cir. 2002)(“This case
does not present complex or novel issues of state law. It involves a fraud claim.”). But cf. Wallin
v. Dycus, 224 F. App’x 734, 740 (10th Cir. 2007)(unpublished), as amended nunc pro tunc (March
5, 2008)(affirming a district court for dismissing a state law claim as novel, because it required the
30
The Tenth Circuit concluded that the issue was novel and complex without elaborating a
test, writing:
However, we do not have to decide whether the court insufficiently took the extent
of the pretrial proceedings into consideration because there is an independent
reason for dismissing Ms. Anglemyer’s pendent state claims. In her complaint
(Count III), she alleged the hospital violated the Kansas Risk Management Act. We
believe the Kansas courts are the appropriate forum to decide this novel and
complex issue of state law.
Anglemyer v. Hamilton Cty. Hosp., 58 F.3d 533, 541 (10th Cir. 1995).
- 76 -
court to determine whether Colorado law recognized that a jailer owed a duty of care to protect a
prisoner’s health in tort). Otherwise, they acknowledge a hodgepodge of different factors that
federal courts have found operative when considering whether a claim is novel. See 13D Wright
& Miller, supra, § 3567.3, at 417 n.60 (citing Dream Palace v. Cty. of Maricopa, 384 F.3d 990,
1022 (9th Cir. 2004)(determining a state issue was novel, because it concerned “issues of the
balance of power between state and local authorities in Arizona”); Arpin v. Santa Clara Valley
Transp. Agency, 261 F.3d 912, 927 (9th Cir. 2001)(concluding novelty existed, because it raised
“an issue of first impression as to how [a state law] provision is to be applied”); Doe v. Sundquist,
106 F.3d 702, 708 (6th Cir. 1997)(concluding an issue was novel, because it involved
interpretation of the state constitution and a new state statute); Wilson v. PFS, LLC, 493
F. Supp. 2d 1122, 1126 (S.D. Cal. 2007)(Hayes, J.)(determining an issue novel or complex,
because there is conflicting state law interpretations of the law); Kadetsky v. Egg Harbor Twp. Bd.
of Educ., 164 F. Supp. 2d 425, 437 (D.N.J. 2001)(Orlofsky, J.)(concluding an issue novel, because
it turned on “application of a recent change in New Jersey state law”); Rockey v. Courtesy Motors,
Inc., 199 F.R.D. 578, 596 (W.D. Mich. 2001)(Scoville, M.J.)(concluding an issue is novel, because
“there is not a single published state-court opinion on point”)). See also 13D Wright & Miller,
supra, § 3567.3, at 416 (“Occasionally, a court appears to decline supplemental jurisdiction simply
because the supplemental claim involves questions of state law.”). Some courts, however, have
bucked one or more of these factors. See e.g., Schwarm v. Craighead, 233 F.R.D. 655, 659 (E.D.
Cal. 2006)(Shubb, J.)(exercising supplemental jurisdiction, even though California courts had not
yet interpreted the statute at issue, because “the court here faces a single unexceptional question
of statutory interpretation”); Hunter by Conyer v. Estate of Baecher, 905 F. Supp. 341, 343 (E.D.
Va. 1995)(Clarke, J.)(“It is true that state caselaw concerning the [Virginia Residential Landlord
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and Tenant Act, Va. Code Ann. §§ 55-248.2 to 248.50] generally and in the lead paint context
specifically is sparse. Nevertheless, the lack of caselaw does not make the VRLTA unintelligible
to this Court.”). Perhaps recognizing that what is novel is unfixed, Wright and Miller note that
“each case is decided on its own facts.” 13D Wright & Miller, supra, § 3567.3, at 417-18. See id.
at 400 n.27 (citing Karen Nelson Moore, The Supplemental Jurisdiction Statute: An Important but
Controversial Supplement to Federal Jurisdiction, 41 Emory L.J. 31, 62-63 (1992)(“In particular,
it may be relatively easy for a district judge to conclude that a novel or complex issue of State law
is involved and to exercise essentially unreviewable discretion to dismiss such a claim.”)).
This uncertainty does no good for litigants. Cf. Teague v. Lane, 489 U.S. 288, 332
(1989)(Brennan, J., dissenting)(noting that “predictability in the law” permits “litigants and
potential litigants” to act with knowledge, and with assurance that “they will not be treated unfairly
as a result of frequent or unanticipated changes in the law”). A judicial decision whether a claim
is novel should not be like reading a fresh novel every time. The Court, accordingly, deems it
prudent to outline a test for 28 U.S.C. § 1367(c)(1)’s novelty requirement. 31
31
28 U.S.C. § 1367(c)(1)’s novelty and complexity requirements are separate tests -- that
is, “novel or complex” is disjunctive, so it should not be read as “novel and complex.” 28
U.S.C. § 1367(c)(1). See Ameritox, Ltd. v. Millennium Labs., Inc., 803 F.3d 518, 536 n.27 (11th
Cir. 2015). The United States Court of Appeals for the Eleventh Circuit has written:
Additionally, § 1367(c)(1) grants district courts the discretion to decline to
exercise supplemental jurisdiction if the claim raises a novel or complex issue of
State law. Thus, even if the claims were not complex -- and they are complex -- the
claims’ novelty would be sufficient to vest the District Court with discretion.
Ameritox, Ltd. v. Millennium Labs., Inc., 803 F.3d at 536 n.27. That conclusion is also supported
by the plain meaning of both words. “Novel,” as explored below, generally means new or perhaps
notably new. See infra, 36-37. Complex on the other hand, typically means complicated, involved,
intricate, or not easily analyzed.
See Complex, Oxford English Dictionary,
https://www.oed.com/view/Entry/37672?rskey=5VQ3ic&result=2&isAdvanced=false#eid (last
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28 U.S.C. § 1367(c)(1) is rooted in the seminal United Mine Workers of Am. v. Gibbs, 383
U.S. 715 (1966)(“Gibbs”). In that case, the Supreme Court created a two-part test for what was
then known as pendent jurisdiction. See Gibbs, 383 U.S. at 725. The test’s first consideration
turned on constitutional concerns -- the federal court’s subject matter jurisdiction over the state
claim. See Gibbs, 383 U.S. at 725. To satisfy that constitutional requirement, the Supreme Court
determined that “the state and federal claims must derive from a common nucleus of operative
fact.” See Gibbs, 383 U.S. at 725. The test’s second-part turned on more pedestrian but
nonetheless crucial practical concerns. See 383 U.S. at 726. The “justification” in exercising
jurisdiction “lies in considerations of judicial economy, convenience and fairness to litigants.” 383
U.S. at 726. Thus, “[n]eedless decisions of state law should be avoided both as a matter of comity
and to promote justice between the parties by procuring for them a surer-footed reading of
applicable law.” Gibbs, 383 U.S. at 726 (citing Strachman v. Palmer, 177 F.2d 427, 437 (1st Cir.
1949)(Macgruder, C.J., concurring)(“Federal courts should not be overeager to hold on to the
determination of issues that might be more appropriately left to settlement in state court
litigation.”)).
The Supreme Court’s thought is that state courts either are more adept at
adjudicating state law matters or as a matter of respecting our federal system, state sovereigns
-- where possible, convenient, and just -- should decide state law matters. See Gibbs, 383 U.S. at
726.
visited April 17, 2019)(defining complex as “consisting of parts or elements not simply coordinated, but some of them involved in various degrees of subordination; complicated, involved,
intricate; not easily analysed or disentangled”). Something can easily be new without being
complicated. With these divergent meanings, it is unlikely that Congress meant for those words
to be read together to form one test.
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28 U.S.C. § 1367 supersedes Gibbs, at least in part. See Wright & Miller, supra, § 3567.3,
at 400 (“These statutory factors do not completely mesh with the examples provided in Gibbs.”).
See also Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. at 546. The underlying practical
considerations animating Gibbs, however, appear to remain intact. See Estate of Harshman v.
Jackson Hole Mountain Resort Corp., 379 F.3d at 1164 (“Seeking to vindicate values of economy,
convenience, fairness, and comity underlying the judicially-created doctrine of pendent
jurisdiction, Congress granted statutory authority to district courts to hear claims that form part of
the same case or controversy.”). The Court proceeds, accordingly, with those considerations of
economy, convenience, fairness, and comity in mind.
Black’s Law dictionary does not define “novel.” See Black’s Law Dictionary 1169 (9th
ed. 2009). It is more a colloquial word than a legal word. “Novel” means new. See Pacific
Operators
Offshore,
LLP
v.
Valladolid,
565
U.S.
207,
223
(2012)(Scalia,
J.,
dissenting)(“Substantial nexus is novel legalese with no established meaning in the present
context.”); School Dist. of Abington Twp. v. Schempp, 374 U.S. 203, 304 (1963)(“The principles
which we reaffirm and apply today can hardly be thought novel or radical. They are, in truth, as
old as the Republic itself.”). In this context, however, the Court concludes that novel cannot mean
only new, because such a meaning would make supplemental jurisdiction completely discretionary
and § 1367(c) plain language does allow that expansive meaning. See 28 U.S.C. § 1367(c). Every
case is new in some way; there are always new parties with new facts, and thus the legal analysis
-- how the law applies to those facts -- is also new for every case. See McGarry v. Bd. of Cty.
Commissioners for Cty. of Lincoln, 294 F. Supp. 3d 1170, 1188 n.13 (D.N.M. 2018)(Browning,
J.)(“Cases differ. Many cases, such as this one, have so many facts that are unlikely to ever occur
again in a significantly similar way.”). Thus, if newness, alone, is the test, the Court would always
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or almost always have discretion to decline supplemental jurisdiction, which cannot be the test.
See Moore, supra, at 62-63.
The word “novel” does not just mean “new,” however. See Novel, Oxford English
Dictionary,
http://www.oed.com/view/Entry/128758?rskey=g8PS24&result=2&isAdvanced=
false#eid (last visited April 17, 2019)(defining “novel” as “interestingly new or unusual”) ; Novel,
Merriam-Webster, https://www.merriam-webster.com/dictionary/novel?src=search-dict-hed (last
visited April 17, 2019)(defining novel as “original or striking especially in conception or style”) .
Novel, accordingly, is not necessarily just new, but new and noteworthy. Some of the cases
construing novel have attuned to that noteworthy component. See Dream Palace v. Cty. of
Maricopa, 384 F.3d at 1022 (determining a state issue was novel, because it concerned “issues of
the balance of power between state and local authorities in Arizona”); Doe v. Sundquist, 106 F.3d
at 708 (concluding an issue was novel, because it involved interpretation of the state constitution).
As the state’s controlling document, interpreting a state constitution, especially on a matter that a
state court had not yet considered, would matter a great deal to that sovereign. Similarly,
adjudicating a new issue which upsets the balance of power between the state and local authorities
would be of great importance to that state. In contrast, a regular tort claim, albeit with new issues,
might be of less concern to the state, especially if the litigants are private actors. To be sure, a
district court’s ruling is binding only on the parties and can be only persuasive authority in
subsequent cases. That does not mean, however, that state courts would not want to decide the
issue first. A first reasoned decision in an area of law can act as a powerful anchor to a position
or a legal rule, requiring litigants opposed to that position to overcome it -- both in court and in
settlement negotiations.
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With those thoughts in mind, the Court concludes that a state law issue is novel when it is:
(i) new; and (ii) concerns a notable state matter. This test is subject to a bit of a sliding scale. If a
case merely has new facts, but the Court is equipped with settled caselaw, the Court is unlikely to
determine that there is a novel issue even if it involves a high-stakes state matter. For example, if
the Court is confronted with a state constitutional issue that involves fairly original facts, the Court
will not deem the issue novel if the Supreme Court of New Mexico has interpreted the state
constitutional provision at issue. The Court is also unlikely to conclude an issue is novel, merely
because there are no state court cases interpreting a relevant statute. While such a scenario might
be sufficiently new under the first prong of the Court’s test, any given state statute does not
necessarily concern a sufficiently notable state matter. If, for example, statutory interpretation
would require the court only to determine the rights or duties between private parties, such as when
the Court is interpreting a statute like the Uniform Commercial Code, the Court is less likely to
find the issue a notable state matter. If, on the other hand, the outcome of the Court’s statutory
interpretation would greatly affect the balance of power between state and local authorities, the
Court is more likely to determine that a matter is notable.
The Court deems that this test is appropriate, as it not only accounts for 28 U.S.C.
§ 1367(c)(1)’s meaning of novel, but also respects the federalism and comity considerations
articulated in Gibbs. See 383 U.S. at 726 (“Needless decisions of state law should be avoided both
as a matter of comity and to promote justice between the parties by procuring for them a surerfooted reading of applicable law.”). The state sovereign would be less concerned with a federal
court deciding a state issue that has limited impact on a state law’s application or meaning, but
would be more concerned if the federal court’s determination skews the state’s jurisprudence on a
significant state issue for years to come. Those considerations are especially significant when the
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issue is currently being litigated in state courts. See Rhines v. Weber, 544 U.S. 269, 274
(2005)(defining comity as the principle that “one court should defer action on causes properly
within its jurisdiction until the courts of another sovereignty with concurrent powers, and already
cognizant of the litigations, have had an opportunity to pass on the matter”).
The Court,
accordingly, adopts for the forgoing test.
ANALYSIS
The Court denies the Rule 56(d) Motion, because the motion does not request specific
discovery that is necessary to defend against the MSJ. The Court grants the MSJ’s requests with
respect to Ganley’s Fourth and Fourteenth Amendment claims, because the undisputed facts and
the material disputed facts weighed in Ganley’s favor do not amount to any constitutional
violations. Although the Defendants do not move for the Court to enter summary judgment on
Ganley’s Monell claim, the Court must dismiss that claim as well, because supervisory or
municipal liability requires that an individual actor violate a constitutional right, and the facts do
not indicate that Jojola violated Ganley’s constitutional rights. With all federal claims dismissed,
the Court declines to exercise supplemental jurisdiction over the remaining state claims. The Court
therefore remands the state claims to state court.
I.
THE COURT GRANTS THE MSJ, BECAUSE JOJOLA DID NOT VIOLATE
GANLEY’S CONSTITUTIONAL RIGHTS.
When a defendant asserts qualified immunity, the plaintiff must demonstrate: (i) that the
defendant’s actions violated his or her constitutional or statutory rights; and (ii) that the right was
clearly established at the time of the alleged misconduct. See Riggins v. Goodman, 572 F.3d at
1107. See Romero v. Fay, 45 F.3d at 1475 (stating that, when considering a qualified immunity
claim on a motion for summary judgment, district courts must first determine whether the
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“‘plaintiff has sufficiently asserted the violation of a constitutional right at all’” (quoting Martinez
v. Mafchir, 35 F.3d 1486, 1490 (10th Cir.1994)). Although the clearly established prong is often
the legal bulwark against which § 1983 claims break, based on the undisputed facts and the
material disputed facts considered in the light most favorable to Ganley, Ganley has not
demonstrated that the Defendants violated his constitutional rights.
A.
GANLEY DOES NOT DEMONSTRATE THAT JOJOLA VIOLATED HIS
CONSTITUTIONAL RIGHT AGAINST FALSE ARREST.
In the Complaint, Ganley asserts § 1983 claims for wrongful arrest. See Complaint at 7.
To the extent that Ganley argues that Jojola included false statements and omitted exculpatory
information in the Warrant Aff., those allegations do not amount to a constitutional violation.
Inaccurate information included in an arrest warrant affidavit does not violate the Constitution if
the warrant -- stripped of such inaccurate information -- nevertheless establishes probable cause.
Ganley alleges that Jojola made false or misleading statements in the Warrant
Aff. -- namely, that Jojola indicated that he confirmed that Ganley was the man who cashed the
check by comparing Ganley’s photograph to the surveillance video images and by analyzing the
fingerprint found on the check. See Rule 56(b) Motion at 6. Ganley also insists that Jojola should
have mentioned in the Warrant Aff. that an investigator previously indicated in a report that
“Ganley was a potential victim of identity theft.” MSJ Response at 8. According to Ganley,
probable cause for his arrested would not have existed without those misleading statements and
omissions. See MSJ Response at 8.
When a defendant asserts that an arrest warrant affidavit includes false statements and
omits exculpatory ones, courts undertake the following exercise:
Where false statements are alleged to have been included in an arrest warrant
affidavit or grand jury testimony, “probable cause is determined by setting aside
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the false information and reviewing the remaining” truthful facts. Wolford v.
Lasater, 78 F.3d 484, 489 (10th Cir.1996). Similarly, where true information has
been allegedly and unlawfully omitted from an affidavit or grand jury proceeding,
the existence of probable cause is determined “by examining the affidavit [or
proceedings] as if the omitted information had been included and inquiring if the
affidavit [or proceedings] would still have given rise to probable cause.” Id.
(internal quotation omitted).
Kerns v. Bader, 663 F.3d at 1188 (emphasis in original). The Warrant Aff. so amended would
present a judge with the following assertions:
•
According to Specht, people have been using stolen or forged Postal service keys
to steal businesses’ outgoing checks from mailboxes. These people alter the stolen
checks so that they list a different name as the payee.
•
According to Torbett, a man purporting to be Ganley cashed a stolen check on
September 4, 2015, that had been altered to list Ganley as the payee.
•
Burt investigated the stolen and cashed checks. In his report, he states that stolen
checks have been altered to list different names as payees -- Nikita Sosa, Jennifer
Aragon, Mary Chavez, and Ganley -- and it is “unknown if they are offenders or
victim[s] of identity theft.”
•
Torbett gave affiant Jojola the Ganley check. The check has a signature on the
back; forensics found a fingerprint on the front. The fingerprint has not been
analyzed. The signature has not been analyzed.
•
Torbett gave Jojola photographs from a surveillance video showing a white male
with short brown hair cashing the Ganley check.
•
Torbett also gave Jojola a driver’s license number that the bank teller wrote down
when cashing the Ganley check.
•
Jojola searched MVD records for the driver’s license number. The driver’s license
number belonged to John Ganley.
•
Ganley’s MVD photograph shows the face of a white male with short brown hair.
In Jojola’s opinion, based on this photograph, Ganley is the man in the surveillance
video cashing the check.
•
The person who wrote the check said that she did not know Ganley and that he did
not have permission to cash the check.
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An arrest warrant affidavit does not need to establish that a suspect is guilty beyond a
reasonable doubt or that a “suspect’s guilt [is] ‘more likely true than false.’” Kerns v. Bader, 663
F.3d at 1188 (quoting Texas v. Brown, 460 U.S. 730, 742 (1983)). Rather, a warrant affidavit
must only “establish something ‘more than a bare suspicion.’” Puller v. Baca, 781 F.3d 1190,
1200 (10th Cir. 2015)(quoting United States v. Ludwig, 641 F.3d 1243, 1252 (10th Cir. 2011)).
The “relevant question is whether a ‘substantial probability’ existed that the suspected committed
the crime.” Kerns v. Bader, 663 F.3d at 1188 (quoting Taylor v. Meacham, 82 F.3d 1556, 1562
(10th Cir. 1996)). An arrest warrant affidavit asserting the above facts establishes probable cause,
because it establishes something more than a bare suspicion that Ganley committed the crime. To
be sure, the asserted evidence is consistent with someone resembling and purporting to be Ganley
committing the check fraud crime. That possibility does not foreclose the other option -- Jojola’s
interpretation -- that Ganley wrote the check out in his name and provided his own driver’s license
number in the process. Reasonable minds may disagree about which scenario is more likely, but
such argument lies beyond a probable cause inquiry. See Kerns v. Bader, 663 F.3d at 1188.
Because the above facts establish a substantial probability that Ganley committed the crime, there
is no need for discovery to prove the truth or falsity of Jojola’s statements regarding the verification
and analysis of Ganley’s identity and fingerprint. 32
32
At the hearing, the Court asked whether the probable cause determination would require
a jury to compare the photographs or whether the Court could do it as a matter of law. See Tr. at
3:17-4:6 (Court). Ganley argued that the photographs should go to a jury. See Tr. at 22:6-8 (Ray).
The Court concludes that the photographs do not present a question of fact that a jury must resolve.
For one, whether Ganley, in his MVD photograph, looked so similar to the man in the surveillance
video that there is probable cause for Ganley’s arrest is a question that the Court may soundly
consider when deciding whether an arrest warrant affidavit establishes probable cause when cured
of its misleading facts. See Kerns v. Bader, 663 F.3d at 1188 (“Where false statements are alleged
to have been included in an arrest warrant affidavit . . . . ‘probable cause is determined by setting
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To the extent that Ganley alleges that Jojola violated his constitutional rights by not
sufficiently investigating evidence before submitting the Warrant Aff. that would have exonerated
Ganley, that allegation falls short of a constitutional violation. Once an officer establishes
probable cause, he or she is “not required to continue to investigate for exculpatory evidence before
arresting a suspect.” Cortez v. McCauley, 478 F.3d at 1121 n. 18. Romero v. Fay shows that a
law enforcement officer’s failure to pursue certain leads negates probable cause only when the
aside the false information and reviewing the remaining’ truthful facts.” (quoting Wolford v.
Lasater, 78 F.3d at 489)). As the Court concluded above, if the affidavit for Ganley’s arrest warrant
request explained precisely what Jojola did -- compared two photographs -- and stated Jojola’s
opinion based on that comparison -- that Jojola concluded that Ganley was the man in the
surveillance video committing the crime, there would be probable cause for Ganley’s arrest. Even
if Jojola submitted the Warrant Aff. with both photographs attached for the Magistrate Judge’s
consideration, the Court concludes that there would be probable cause.
Ganley contends that the men in the two photographs are too different for anyone to
plausibly mistake them as the same person. See MSJ Response at 23. He explains: “The two
individuals have different hair lines, different facial shapes and features, different build and statute
(Mr. Ganley is much larger), different eye color, and different body types. Th[ey] share the same
race (Caucasian) and short hair, but almost nothing else.” MSJ Response at 23. Although Ganley’s
MVD photograph shows only his face, Ganley notes that the MVD information listing Ganley’s
height as 6’2” and his 212 pounds, see Complaint ¶ 17, at 4, and argues that the “MVD records
describ[es] Plaintiff in a way that contradicts the photographic evidence of the check forgery
suspect,” see Complaint ¶ 37, 8. Ganley also notes that Ganley was thirty-nine years old at the
time of the crime but the man in the surveillance photograph “was, at the time, approximately 29
years old.” MSJ Response ¶ 13, at 5.
The Court recognizes those differences, but is not convinced that they are so distinct or
obvious that they negate probable cause. Were the two men of different races, or one was elderly
and the other a teenager, the Court could conclude that a judge laying eyes on the photographs
would not find probable cause. Here, however, the photographs show two white men with short
brown hair of approximately similar age who do look similar. The differences in height and weight
are not meaningful, because it is unclear how tall the man in the surveillance video is, and, although
one might guess that he weighs less than 212 pounds, a person’s weight can change. The
differences in hair lines and facial features are not so distinct that they jump out; the Court would
not even be sure how to describe those differences. MVD’s records indicate that Ganley has blue
eyes, but, try as it might, the Court cannot, from the surveillance video footage, venture a guess as
to the other man’s eye color. As to the age difference, the Court is certainly not surprised that the
man in the surveillance photograph is perhaps as much as a decade younger than Ganley, but that
age difference is not so visually obvious that a judge would deny probable cause.
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evidence upon which the officer relied was not reasonably trustworthy. See Romero v. Fay, 45
F.3d at 1476 (stating that a plaintiff’s burden, in a false arrest claim, is to show that “the statements
supplied by [two witnesses] did not constitute reasonably trustworthy information sufficient to
lead a prudent police officer to conclude” that the plaintiff committed the murder). Although
Jojola could have pursued leads that might have exonerated Romero, the information upon which
he relied was reasonably trustworthy.
A closer look at Romero v. Fay demonstrates how this analysis unfolds. In Romero v. Fay,
police arrested the plaintiff, Paul Romero, for murdering an acquaintance, David Douglas. See 45
F.3d at 1474. Two witnesses had apparently implicated Romero for the Douglas murder. See 45
F.3d at 1474. Thereafter, Romero gave the arresting officer, Damon Fay, the names of three people
who could confirm that Romero was in bed asleep when Douglas was killed; he also gave Fay the
names of people who saw a man named David Benavidez try to start a fight with Douglas just a
few hours before Douglas was killed. See 45 F.3d at 1474. Fay refused to interview Romero’s
alibi witnesses or the witnesses to the Benavidez and Douglas conflict. See 45 F.3d at 1474. A
few weeks later, Fay and two witnesses testified before a grand jury about the Douglas murder,
and the grand jury indicted Romero. See 45 F.3d at 1474. Romero spent three months in jail
before prosecutors dropped the charges and released him. See 45 F.3d at 1474. Romero filed a
§ 1983 lawsuit, contending that Fay and other members of the Albuquerque Police Department
violated his federal constitutional rights by: (1) arresting Plaintiff without probable
cause pursuant to an unreasonable pre-arrest investigation; (2) conducting an
unreasonable post-arrest investigation; (3) insufficiently staffing the Violent
Crimes Unit of the Albuquerque Police Department; (4) falsely imprisoning
Plaintiff; and (5) maliciously prosecuting Plaintiff in violation of New Mexico law.
45 F.3d at 1474. The defendants moved for summary judgment, which the district court denied,
determining that the defendants were not entitled to qualified immunity. See 45 F.3d at 1474.
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On appeal, the Tenth Circuit reversed the district court’s decision. First, the Tenth Circuit
determined that qualified immunity protected the defendants against Romero’s wrongful arrest
claim. See Romero v. Fay, 45 F.3d at 1476. The Tenth Circuit reasoned that Fay had probable
cause to arrest Romero, because he interviewed two witnesses who implicated Romero, and
Romero did not show that those witnesses’ accounts were not reasonably trustworthy. See 45 F.3d
at 1476. The Tenth Circuit rejected Romero’s argument that clearly established law compelled
Fay to interview the witnesses which Romero tried to give to Fay and that, had Fay done those
interviews, those witnesses would have provided information that would have negated probable
cause. See 45 F.3d at 1476. According to the Tenth Circuit, Fay’s “failure to investigate Plaintiff’s
alleged alibi witnesses did not negate the probable cause for the warrantless arrest in the absence
of a showing that [his] initial probable cause determination was itself unreasonable.” 45 F.3d at
1477-78. The Tenth Circuit contrasted Romero’s case with Clipper v. Takoma Park, 876 F.2d 17
(4th Cir. 1989)(“Clipper”). In Clipper, the United States Court of Appeals for the Fourth Circuit
upheld a jury verdict, ruling
that the jury could have concluded that the police officer acted unreasonably and
therefore arrested the plaintiff without probable cause because he failed to view the
bank surveillance film of the robbery, ignored a witnessing officer’s comment that
he did not think the plaintiff was the robber, and failed to interview the plaintiff’s
alleged alibi witnesses. Id. at 19–20. The Fourth Circuit noted, however, that the
defendant officer’s failure to interview the plaintiff’s alibi witnesses did not, by
itself, render the arrest wrongful. “We would not suggest that [defendant’s] failure
to investigate the leads that [plaintiff] provided was, in itself, sufficient to negate
probable cause.” Id. at 20. Instead, the court concluded that the cumulative effect
of the officer’s unreasonable conduct during the investigation rendered “a sufficient
evidentiary base to sustain the verdict upon post-trial motions and on appeal.” Id.
Romero v. Fay, 45 F.3d at 1477 (quoting Clipper, 876 F.2d at 19-20). The Tenth Circuit stated:
Significantly, the plaintiff in Clipper established facts showing that the defendant
officer acted unreasonably at the time of the arrest by ignoring information in his
knowledge -- the witnessing officer’s statement that he did not think the plaintiff
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committed the crime -- and failed to examine fundamental evidence -- the bank
surveillance film. Thus, the plaintiff in Clipper demonstrated that the facts and
circumstances known to the defendant officer did not constitute reasonably
trustworthy information sufficient to lead a prudent officer to believe that the
plaintiff had committed the bank robbery
Romero v. Fay, 45 F.3d at 1477. The Tenth Circuit distinguished Romero’s case from Clipper by
noting that Romero did not allege that Fay “failed to investigate fundamental evidence at the crime
scene” nor did Romero argue that Fay “acted unreasonably” based on the witnesses’ statements to
Fay implicating Romero. Romero v. Fay, 45 F.3d at 1477. The Tenth Circuit concluded that, once
Fay determined, “based on the facts and information known to him that probable cause existed to
arrest Plaintiff for the murder of David Douglas, his failure to question Plaintiff’s alibi witnesses
prior to the arrest did not negate probable cause.” 45 F.3d at 1478.
Ganley argues that this case is more like Clipper than it is like Romero v. Fay, for two
reasons. See MSJ Response at 14-15. First, Ganley argues that, like the officer in Clipper, Jojola
“ignored statements from another investigator that it was not clear if Mr. Ganley was the victim of
identity theft.” MSJ Response at 15. See Clipper, 876 F.2d at 19 (“Officer Wortman, the officer
on the scene of the robbery, told him that although Clipper looked like the robber, he was not sure
that Clipper was the man.”). Second, Ganley asserts that, like the officer in Clipper, Jojola “failed
to properly compare surveillance footage in the form of various high quality still shots of the check
cashing incident -- something the Tenth Circuit characterized as ‘fundamental evidence.’” MSJ
Response at 15 (quoting Romero v. Fay, 45 F.3d at 1472). See Clipper, 876 F.2d at 19 (“It is not
clear whether anyone in the Takoma Park Police Department had obtained copies of the bank
surveillance photographs prior to Clipper’s arrest or while he was incarcerated.”). Ganley argues
that this case is different than Romero v. Fay in important ways, such as that no eye witnesses
implicated Ganley. See MSJ Response at 15.
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These arguments are unavailing. First, the evidence that the detective ignored in Clipper
weighed more towards exoneration than the evidence in this case. In Clipper, a law enforcement
officer who got a first-hand look at the bank robber stated that, “although Clipper looked like the
robber, he was not sure that Clipper was the man.” 876 F.2d at 19. In this case, an investigator
stated in a report that it was not yet known whether Ganley was the perpetrator or victim. See Burt
Report at 1 (dated September 21, 2015), filed June 18, 2018 (Doc. 47-1). Second, in Clipper, the
plaintiff insisted that the investigator could have eliminated him as a suspect if he had looked at
the bank surveillance footage, and there was no evidence that the investigating officer looked at
footage. See 876 F.2d at 19. The Fourth Circuit characterized the surveillance footage as
“fundamental evidence,” suggesting that not considering fundamental evidence that would have
exonerated the arrestee may violate the arrestee’s constitutional rights. See 876 F.2d at 19.
Although surveillance footage of a crime may be “fundamental evidence,” Ganley does not allege
that Jojola never looked at it; rather, he recognizes that Jojola examined the surveillance footage
stills but argues that Jojola “failed to properly compare [the] surveillance footage” with Ganley’s
MVD photograph. MSJ Response at 15 (emphasis added). Although Jojola reached the wrong
conclusion, he did what the Fourth Circuit, in Clipper, expected law enforcement officers to do - consult the fundamental evidence. See, e.g., MSJ ¶¶ 9, at 3; Jojola Aff. ¶ 9, at 2 (searching MVD
records for the driver’s license number); MSJ ¶ 12, at 3; Jojola Aff. ¶ 12, at 2 (comparing
surveillance photographs to Ganley’s MVD photograph); MSJ ¶ 16, at 4; Warrant Aff. at 1; Jojola
Aff. ¶ 16 at 2 (speaking with the check’s owner).
Second, Ganley has not presented facts indicating that Jojola acted on evidence that was
unreasonably trustworthy. To be sure, Ganley is correct that the Tenth Circuit determined that the
detective in Romero v. Fay relied on reasonably trustworthy evidence when he relied on two
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witnesses’ statements implicating Romero in the murder, see Romero v. Fay, 45 F.3d at 1478,
whereas no witnesses implicated Ganley in this case. Jojola nonetheless relied on other evidence
that the Court concludes was reasonably trustworthy. Jojola looked at the check, which was made
out to Ganley; the driver’s license number, which belonged to Ganley; and the surveillance
footage, which he compared to Ganley’s MVD photograph. No one contends that the evidence
was fraudulent or in some way untrustworthy; Jojola was right to consider that evidence, although
he was wrong in his conclusions.
In sum, that Jojola did not take extra steps before submitting the Warrant Aff. does not
change the Court’s false arrest analysis. Although the courts and public may hope for maximum
diligence from detectives, Romero v. Fay indicates that a law enforcement officer need not turn
over every rock to avoid a constitutional violation -- as easy as those rocks might be to overturn.
See Romero v. Fay, 45 F.3d at 1477-78 (stating that the Fourth Amendment’s probable cause
standard “requires officers to reasonably interview witnesses readily available at the scene,
investigate basic evidence, or otherwise inquire if a crime has been committed at all before
invoking the power of warrantless arrest and detention”). Thus, the law enforcement officer need
only rely on reasonably trustworthy evidence.
B.
GANLEY DOES NOT DEMONSTRATE THAT JOJOLA VIOLATED HIS
CONSTITUTIONAL RIGHT AGAINST FALSE IMPRISONMENT OR
THAT THE CONSTITUTION AFFORDS GANLEY A RIGHT TO A
REASONABLE POST-ARREST INVESTIGATION.
To the extent that Ganley alleges that the Defendants violated his constitutional rights by
falsely imprisoning him or conducting an unreasonable post-arrest investigation, Ganley again
does not allege facts that establish a constitutional violation. To succeed on those theories, Ganley
would have to show that Jojola’s failure to find exculpatory evidence was because of his deliberate
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or reckless actions. See Romero v. Fay, 45 F.3d at 1478. 33 The Court cannot soundly read Jojola’s
investigative choices as anything more than negligent. In Romero v. Fay, the Tenth Circuit
indicates that plaintiffs who allege reckless or deliberate actions face a high bar:
With the benefit of hindsight, it may have been fruitful for Defendants to investigate
Plaintiff’s alibi witnesses, or to attempt to contact individuals who witnessed David
Benavidez threaten David Douglas. The essence of Plaintiff’s argument, however,
is that the police assumed a duty to conduct a post-arrest investigation which they
performed poorly. Although Defendants may not have conducted their post-arrest
investigation as efficiently as possible, their conduct as alleged by Plaintiff simply
does not exceed negligence. Plaintiff has therefore failed to assert a constitutional
violation at all.
Romero v. Fay, 45 F.3d at 1479. Thus, even when an officer is aware that certain witnesses may
provide exculpatory information, failure to interview such witnesses is, at worst, negligent. By
contrast, Jojola’s actions are not nearly as egregious as the officer’s actions in Romero v. Fay,
because nothing Jojola knew suggested that pursuing certain leads would uncover exculpatory
evidence. For example, Jojola would have known that analyzing the fingerprint could produce
33
In Romero v. Fay, the Tenth Circuit determines that Romero did not allege conduct
amounting to a constitutional violation for unreasonable post-arrest investigation. See 45 F.3d at
1478. The Tenth Circuit states that, to show a Fourteenth Amendment violation for unreasonable
post-arrest investigation, Romero needed to prove that the defendants acted with “deliberate or
reckless intent.” 45 F.3d at 1478. According to the Tenth Circuit, “it may have been fruitful for
Defendants to investigate Plaintiff’s alibi witnesses, or to attempt to contact individuals who
witnessed David Benavidez threaten David Douglas,” but not following those leads “simply does
not exceed negligence.” 45 F.3d at 1479.
The Tenth Circuit also determines that the district court erred in denying qualified
immunity for Romero’s false imprisonment claim. See 45 F.3d at 1480. The Tenth Circuit states
that a successful false imprisonment claim requires showing that a government official violated
the plaintiff’s Fourteenth Amended rights by “act[ing] with deliberate or reckless intent to falsely
imprison the plaintiff.” Romero v. Fay, 45 F.3d at 1480. The Tenth Circuit concludes that the
defendants did not violate Romero’s Fourteenth Amendment rights against false imprisonment
when they failed to investigate potentially exculpatory witnesses after Romero’s arrest, because
the defendants acted negligently, and not deliberately or recklessly. See Romero v. Fay, 45 F.3d
at 1480.
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additional information, but there was nothing about the fingerprint indicating that analyzing it
would eliminate Ganley as a suspect.
Ganley cites several United States Courts of Appeals opinions which conclude that
investigators violated a person’s due process rights by recklessly or deliberately failing to
investigate exculpatory leads. 34 See MSJ Response at 12-13. Ganley offers these cases as support
for his assertion that Jojola violated a clearly established constitutional right. Each case, however,
requires plaintiffs to articulate how law enforcement acted recklessly or deliberately, and Ganley
does not surpass this high bar. In Wilson v. Lawrence County., 260 F.3d 946 (8th Cir. 2001), for
example, the United States Court of Appeals for the Eighth Circuit affirmed a district court’s denial
of qualified immunity, concluding that an investigator’s failure to follow leads could be reckless
or intentional if the investigator coerced the plaintiff’s confession instead of investigating other
leads. See 260 F.3d at 955.
In Sanders v. English, 950 F.2d 1152 (5th Cir. 1992), a man riding a bicycle robbed a
Louisiana resident at gunpoint. See 950 F.2d at 1154 (“This is the case of the bicycle bandit.”).
Pursuant to a warrant, a police lieutenant arrested Floyd Sanders for the crime. See 950 F.2d at
1154. The next day, a witness to the robbery -- one who helped a police sketch artist draft a
34
These cases generally deal with post-arrest investigations or actions, but the Court
suspects that the due process theory behind wrongful imprisonment claims is not limited to the
post-arrest timeframe. The Court imagines that a law enforcement officer can act recklessly or
intentionally to avoid discovering exculpatory evidence before arresting someone, yet nevertheless
gather enough evidence for probable cause. For example, the United States Court of Appeals for
the Eighth Circuit has held that “intentionally or recklessly failing to investigate other leads or
manufacturing false evidence may shock the conscience” and violate substantive due process
under the Fourteenth Amendment. Livers v. Schenck, 700 F.3d 340, 351 (8th Cir. 2012).
According to the Eighth Circuit, examples of reckless investigation include coercing a confession,
purposefully ignoring contrary evidence, and “systemic pressure to implicate [a suspect] in the
face of evidence to the contrary.” Livers v. Schenck, 700 F.3d at 351.
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depiction of the bicycle bandit -- told the lieutenant that Sanders was not the man he saw. See 950
F.2d at 1156.
The lieutenant also showed other presumed bicycle-bandit victims Sanders’
photograph, but none of these victims identified Sanders as the criminal. See 950 F.2d at 1156. A
few days after the arrest, three people visited the lieutenant at his home and told him that they were
with Sanders doing work out-of-town when the crime occurred. See 950 F.2d at 1156. One of
these men provided the lieutenant with evidence that Sanders received compensation for the work
he performed out-of-town on the morning in question. See 950 F.2d at 1156-57. The lieutenant
did nothing with this evidence. See 950 F.2d at 1157. Sanders, meanwhile, was unable to pay a
$50,000.00 bond and remained incarcerated until the bond amount was lowered fifty days later.
See 950 F.2d at 1158. The United States Court of Appeals for the Fifth Circuit stated that Sanders
“has come forward with evidence which, if credited by the fact-finder, would establish that the
defendant knowingly and willfully ignored substantial exculpatory evidence,” and that the
lieutenant “deliberately looked the other way in the face of exonerative evidence indicating that
he had arrested the wrong man.” 950 F.2d at 1162. The Fifth Circuit concluded that the
lieutenant’s “deliberate failure to disclose this undeniably credible and patently exculpatory
evidence to the prosecuting attorney’s office plainly exposes him to liability under § 1983.”
Sanders v. English, 950 F.2d at 1162.
In Cannon v. Macon County, 1 F.3d 1558 (11th Cir. 1993), a sheriff’s deputy arrested the
plaintiff, Mary R. Parrott, after mistaking her for another woman wanted by Kentucky authorities,
Mary E. Mann, who also went by the alias Mary E. Parrott. See 1 F.3d at 1560. The deputy took
the plaintiff to county jail, where a jail official completed the arrest report. See 1 F.3d at 1560.
The arrest report form asked for the arrestee’s birthdate and physical characteristics, and the jail
official, Robin Collins, entered Mann’s information in place of Parrott’s. See 1 F.3d at 1560.
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Collins had a copy of Mann’s fugitive report, which stated that Mann was born in 1951 and was
five-feet-five inches tall with brown eyes. See 1 F.3d at 1560. Collins also had Parrott’s driver’s
license, which listed her birth year as 1963 and described her as five-foot-one inches tall with blue
eyes. See 1 F.3d at 1560. Collins also signed and submitted to a judge a warrant affidavit stating
that he believed that Parrott was Mann. See 1 F.3d at 1560. Parrott spent several days in jail
before extradition to Kentucky, where authorities realized that she was not Mann and thereafter
released her. See 1 F.3d at 1560. Parrott subsequently brought a § 1983 claim, and a jury returned
a verdict in her favor and against Collins; however, the trial judge granted Collins’ motion for
judgment notwithstanding the verdict. See 1 F.3d at 1561. The United States Court of Appeals for
the Eleventh Circuit reversed the trial court’s decision, concluding that substantial evidence
supported the jury’s determination that Collins acted with deliberate indifference. See 1 F.3d at
1563.
These cases each indicate that a law enforcement officer acts recklessly or deliberately only
when the officer ignores obviously exculpatory evidence -- not evidence that may prove
exculpatory. 35 In this case, there are several ways that Jojola could have eliminated Ganley as a
35
These decisions appear to follow the “beyond any reasonable doubt” test established by
the Court of Appeals for the First Circuit in Thompson v. Olsen. In Thompson v. Olsen, the First
Circuit held that “following a legal warrantless arrest based on probable cause, an affirmative duty
to release arises only if the arresting officer ascertains beyond a reasonable doubt that the suspicion
(probable cause) which forms the basis for the privilege to arrest is unfounded.” 798 F.2d 552,
556 (1st Cir.1986). The Tenth Circuit has expressly declined to adopt the “Thompson standard.”
Panagoulakos v. Yazzie, 741 F.3d 1126, 1130 (10th Cir. 2013)(“We cited Thompson v. Olsen in
Romero v. Fay . . . but we did not adopt its test.”). If anything, the Tenth Circuit’s caselaw
regarding facts that could compel an affirmative duty to release is narrower than these Courts of
Appeals, because, after Romero v. Fey, an officer does not act recklessly or deliberately even when
the officer does not interview people whom the officer knows may possess exculpatory evidence.
See Romero v. Fey, 45 F.3d at 1479.
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suspect: had Jojola analyzed the fingerprint, he could have received a match with someone other
than Ganley; had he met with Ganley in person, he could have seen that Ganley did not have tattoos
on his arms; and had he obtained Ganley’s signature, he could have compared it to the signature
on the check. The Court cannot soundly say, however, that following those investigative paths, or
any others, would have led to Ganley’s exoneration.
Ganley suggests that Burt’s statement that it was unknown whether Ganley was the
perpetrator or a victim is evidence of Ganley’s innocence. See, e.g., MSJ Reply at 3 (“Jojola was
already on alert . . . that the names added as payees to the altered checks in question, including the
name of John Ganley, may have belonged to victims of identity theft.”). In the Court’s view, the
most sensible interpretation of the Burt Report is that, at one point in the investigation, a law
enforcement officer could not eliminate the possibility that Ganley did not commit a crime. Burt’s
statement is proof that he did not at that time have cause to eliminate Ganley as a suspect; it is not
proof of Ganley’s innocence. In contrast, the law enforcement officer in Wilson v. Lawrence
County manufactured incriminating evidence by coercing a confession. See 260 F.3d at 955. The
lieutenant in Sanders v. English ignored input and exonerating evidence from multiple people, all
of which told him that he had arrested the wrong person. See 950 F.2d at 1156-57. The jail official
in Cannon v. Macon County answered the arrest report’s request for the arrestee’s physical
characteristics by consulting the fugitive report used to make the arrest, rather than observing the
arrested woman or consulting her driver’s license. See 1 F.3d at 1560-61. Unlike the obviously
exculpatory evidence in these cases, the potentially exonerating evidence in the case before the
Court indicates that Jojola’s decisions not to further analyze the fingerprint and not to give greater
credence to the Burt Report were in no way worse than negligent.
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At the hearing, the Court questioned whether Jojola might have violated the Constitution
if, after submitting the Warrant Aff. but prior to the meeting on October 19, 2016, he realized he
had mistakenly identified Ganley but failed to act on this realization. See Tr. at 46:5-18 (Court).
The Defendants indicated that Jojola “had an idea” that Ganley was innocent before October 19,
year, because Jojola looked at Ganley’s booking sheet and saw that it did not list Ganley as having
any tattoos, while the man in the surveillance video had tattoos on his arms. Tr. at 40:3-16 (Nixon).
Ganley does not know when Jojola looked at the booking sheet, dated May 25, 2016. See MSJ
Response ¶ 13, at 5 (“It is not clear when Defendant saw the booking sheet, but statements made
by his attorney suggest it was before the case was dismissed.”); Offender Booking Sheet at 1, filed
June 18, 2018 (Doc. 47-3). Ganley asserts that “the point in time when Defendant recognized his
error, if not from the very beginning, is something that is material to this case and Plaintiff has not
had the opportunity to explore it in discovery because of the stay.” MSJ Response ¶ 16, at 5. For
this reason, the Court considered denying the MSJ with respect to Ganley’s due process claims
and permitting Ganley to pursue discovery regarding when Jojola first looked at the booking sheet;
however, an order on those grounds would be inappropriate. The booking sheet shows that Ganley
entered the MDC on May 25, 2016. See Complaint ¶ 26, at 6; Offender Booking Sheet at 1. He
left the MDC between six to eight hours later. See Complaint ¶ 29, at 6. After posting bond,
Ganley was never again in custody. See Tr. at 40:17-21 (Court, Nixon). Any false imprisonment
theory based on Jojola’s booking sheet epiphany fails for the basic reason that Ganley spent no
time in custody after Jojola looked at the booking sheet. 36 See Wallace v. Kato, 549 U.S. 384, 389
36
Ganley does not assert Fourth Amendment malicious prosecution claims in his
Complaint, but he mentions malicious prosecution in his Response. See MSJ Response at 2
(“Plaintiff admits that he has sued Defendant Jojola . . . for . . . the malicious prosecution and false
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(2007)(“[F]alse imprisonment consists of detention without legal process.”). Whatever liability
Jojola’s potential inaction may have created, it does not result in federal constitutional liability. 37
arrest and imprisonment.”). To the extent that Ganley asserts a Fourth Amendment malicious
prosecution claim, that theory also fails for the same reason that his false imprisonment theory
fails: a Fourth Amendment malicious prosecution violation requires seizure or detention of the
plaintiff, and the undisputed facts demonstrate that Ganley was neither seized nor detained by the
time that Jojola could have reviewed Ganley’s booking sheet. See Myers v. Koopman, 738 F.3d
1190, 1194 (10th Cir. 2013)(“Unreasonable seizures imposed with legal process precipitate Fourth
Amendment malicious-prosecution claims.”).
Although Ganley is foreclosed from bringing a malicious prosecution claim, his claim that
Jojola deliberately fabricated evidence or intentionally failed to investigate exculpatory evidence
is potentially actionable under a substantive due process theory. See Roska ex rel. Roska v.
Peterson, 328 F.3d 1230, 1243 (10th Cir. 2003)(stating that substantive due process analysis is
appropriate in cases that involve excessive force where Fourth Amendment does not apply because
no “seizure” has occurred). To succeed under the amorphous substantive due process standard,
however, Ganley would need to allege extreme behavior that “shocks the conscience.” See Becker
v. Kroll, 494 F.3d 904, 918-19 (10th Cir. 2007)(“The conduct alleged must do more than show
that the government actor intentionally or recklessly caused injury to the plaintiff by abusing or
misusing government power . . . . [It] must demonstrate a degree of outrageousness and a
magnitude of potential or actual harm that is truly conscience shocking.”). Jojola’s actions, even
when viewed in the light most favorable to Ganley, do not begin to approach the high hurdle for
truly conscience-shocking conduct. See, e.g., Holland v. Harrington, 268 F.3d 1179 (10th Cir.
2001)(finding substantive due process violation where police held children at gunpoint for
extensive period of time after control of home had been secured); Dubbs v. Head Start, Inc., 336
F.3d 1194 (10th Cir. 2003)(recognizing parental claim for substantive due process violation where
government did not seek consent before performing blood tests and genital exams on minor
children).
37
It is unclear from the record whether Ganley is also asserting that Jolola violated his
procedural due process rights by failing to disclose the identification error to the prosecution,
which presumably would have compelled timelier dismissal of Ganley’s charges. Under what
constitutional theory such a claim would lie is far from certain given that Ganley was neither
detained nor convicted, although several Courts of Appeals have found that police obligations with
respect to potentially exculpatory evidence implicate prosecutors’ disclosure duties as the Supreme
Court established in Brady v. Maryland. See, e.g., Brady v. Dill, 187 F.3d 104, 114 (1st Cir.
1999)(“The police satisfy their obligations under Brady when they turn over exculpatory evidence
to the prosecutors.”); Walker v. City of New York 974 F.2d 293, 299 (2d Cir. 1992)(“[A] police
officer sometimes may be liable if he fails to apprise the prosecutor or a judicial officer of known
exculpatory information.”); Jean v. Collins, 221 F.3d 656, 659 (4th Cir. 2000)(“The question
before us now is whether there was an additional constitutional violation in this case -- a due
process violation by Officers Collins and Shingleton for withholding [potentially exculpatory
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information] from the prosecutor.”); Jones v. City of Chicago, 856 F.2d 985, 995 (7th Cir.
1988)(“Brady v. Maryland does not require the police to keep written records of all their
investigatory activities; but attempts to circumvent the rule of that case by retaining records in
clandestine files deliberately concealed from prosecutors . . . cannot be tolerated.”).
Although the Tenth Circuit has not explored the reach of Brady v. Maryland in the context
of a § 1983 action against police officers alleged to have withheld potentially exculpatory evidence
from the prosecution, the Fourth Circuit addressed this issue in Jean v. Collins. See Jean v. Collins,
221 F.3d at 656. In Jean v. Collins, six circuit judges, sitting en banc, declined to find police
officers liable absent a showing of bad faith, because “the prosecutor bears the responsibility for
implementing procedures designed to ensure that police officers turn over all evidence to him.”
221 F.3d at 661. Under the same analysis, even assuming that Jojola acknowledged his error in
time to affect the proceedings against Ganley, Ganley cannot assert a claim on these grounds absent
a showing that Jojola deliberately withheld this realization from the prosecution, which Ganley
has not alleged here.
Further support for a “bad faith” liability requirement is seen in Arizona v. Youngblood¸
488 U.S. 51 (1988), a case with analogous concerns over the disposition of potentially exculpatory
evidence. In Arizona v. Youngblood, the Supreme Court refused to find that police officers
violated the Due Process Clause in the absence of evidence that the officers acted in bad faith. See
488 U.S. at 58. Arizona v. Youngblood involved police who failed to refrigerate clothing that
contained semen stains and to perform tests on other semen samples. 488 U.S. at 53-55. The
defendant argued that properly preserved evidence might well have shown that he was innocent of
any sexual assault. The Arizona v. Youngblood Court held, however, that “unless a criminal
defendant can show bad faith on the part of the police, failure to preserve potentially useful
evidence does not constitute a denial of due process of law.” 488 U.S. at 58, 109.
Although Arizona v. Youngblood dealt with the failure to preserve evidence, its principles
are applicable to the facts as alleged by Ganley. Here, as in Arizona v. Youngblood, the prosecutor
failed to receive exculpatory evidence from the police, and here, as in Arizona v. Youngblood, the
police officer’s actions were alleged to constitute a due process violation. The Arizona v.
Youngblood Court stressed its “unwillingness” to read the Due Process Clause to impose “on the
police an undifferentiated and absolute duty to retain . . . material that might be of conceivable
evidentiary significance.” 488 U.S. at 58.
The Court approves of a “bad faith” requirement for police officer liability and notes
several obvious drawbacks to imposing the kind of sweeping disclosure duty on police that Ganley
suggests would have avoided the alleged due process violation resulting from Jojola’s
nondisclosure. For example, because prosecutors enjoy absolute immunity in the exercise of their
prosecutorial functions, which include the disposition of Brady material, such a duty would widen
the legal gulf between prosecutors and police to an extent that would turn police officers into
scapegoats for every item of exculpatory evidence discovered post-arrest. To confer on
prosecutors absolute immunity while denying such immunity to police would increase § 1983
claims against all officers, even those who exercise their ministerial functions with great concern
for the rights of the accused.
Moreover, the fact that the law has already placed on prosecutors ultimate responsibility
for the disclosure of exculpatory evidence indicates that police knowledge is imputed to the
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Moreover, even if Ganley was in custody after Jojola realized his mistake, and Jojola failed
to act on this realization, Ganley has not shown that such inaction violates a clearly-established
constitutional right. See Currier v. Doran, 242 F.3d at 923 (“Ordinarily, in order for the law to be
clearly established, there must be a Supreme Court or Tenth Circuit decision on point, or the clearly
established weight of authority from other courts must have found the law to be as the plaintiff
maintains.”). The plaintiff bears the burden of showing that the law is clearly established. See
Kerns v. Bader, 663 F.3d at 1180. The Court has observed that “the Supreme Court has sent out
unwritten signals to the lower courts that [a] factually identical or a highly similar factual case is
required for the law to be clearly established, and the Tenth Circuit is now sending those unwritten
signals to the district courts.” 38 Nelson v. City of Albuquerque, 283 F. Supp. 3d 1048, 1107 n.44
prosecution for purposes of the prosecutors’ Brady duties. See Kyles v. Whitley, 514 U.S. 419,
437-38 (1995)(“Kyles”)(“[T]he prosecution, which alone can know what is undisclosed, must be
assigned the consequent responsibility to gauge the likely net effect of all [exculpatory]
evidence.”); Giglio v. United States, 405 U.S. 150, 154 (1972)(“Giglio”)(“[W]hether the
nondisclosure was a result of negligence or design, it is the responsibility of the prosecutor.”).
Thus, the prosecutor bears the responsibility for implementing procedures designed to ensure that
police officers turn over relevant evidence. To hold otherwise -- that officers are responsible under
§ 1983 for the types of communication failures that Kyles and Giglio charge the prosecution with
preventing -- would encourage unproductive exercises in finger-pointing and ultimately drive the
federal courts deep into the processes of state administrative offices, a breach of federalism
principles for which the Due Process Clause provides no authorization.
38
The Court further notes that the Supreme Court’s qualified immunity jurisprudence
“effectively eliminate[s] § 1983 claims by requiring an indistinguishable case and by encouraging
courts to go straight to the clearly established prong.” Nelson v. City of Albuquerque, 283 F. Supp.
3d 1048, 1107 n.44 (D.N.M. 2017). Such de facto rigidity has led Professor Karen Blum of Suffolk
University Law School to conclude that the Supreme Court’s approach to qualified immunity has
(1) stifled the development of constitutional standards while creating a confusing
and divisive debate about what constitutes “clearly established” law; (2) imposed
substantial burdens and costs on the litigation of civil rights claims by encouraging
multiple and often frivolous or meritless interlocutory appeals; and (3) resulted in
judges displacing jurors as fact finders.
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(D.N.M. 2017)(Browning, J.). See White v. Pauly, 137 S. Ct. at 552 (“As this Court explained
decades ago, the clearly established law must be ‘particularized’ to the facts of the case.”). Ganley
does not carry his heavy burden in showing that the contours of the right at issue were sufficiently
clear that reasonable officers in Jojola’s shoes would have known they were violating that right.
Ganley further struggles because no Tenth Circuit or Supreme Court case clearly
establishes a constitutional right to a reasonable post-arrest investigation. 39 The closest the Tenth
Karen M. Blum, Qualified Immunity: Time to Change the Message, 93 Notre Dame L. Rev. 1887,
1891 (2018)(citing Nelson v. City of Albuquerque, 283 F. Supp. 3d at 1107 n.44). Professor Blum
is not alone. The Honorable Robert W. Pratt, senior United States District Judge for the United
States District Court for the Southern District of Iowa, sitting by designation, has likewise noted
that “because every individual case will present at least nominal factual distinctions[,] . . . [i]f
precisely identical facts were required, qualified immunity would in fact be absolute immunity for
government officials.” Easley v. City of Riverside, 890 F.3d 851, 851 (9th Cir. 2018)(Pratt, J.,
dissenting)(emphasis in original). Moreover, the Honorable Jack B. Weinstein, senior United
States District Judge for the United States District Court for the Eastern District of New York, has
also criticized the doctrine on the same grounds, and, in Thompson v. Clark, No. 14-CV-7349,
2018 WL 3128975 (E.D.N.Y. June 11, 2018), Judge Weinstein devotes significant discussion to
highlighting concerns he and others have regarding the Supreme Court’s qualified immunity
jurisprudence. See Thompson v. Clark, No. 14-CV-7349, 2018 WL 3128975, at *6 (E.D.N.Y.
June 26, 2018)(Weinstein, J.)(“The Court's expansion of immunity, specifically in excessive force
cases, is particularly troubling.”). Although the Court agrees that such criticism is warranted, and
would, if the Court were writing on a clean slate, minimize the expansion of the judicially created
clearly established prong so that it does not eclipse the congressionally enacted § 1983 remedy, as
a district court, the Court is bound to apply faithfully and honestly controlling Supreme Court and
Tenth Circuit precedent, and it will do so here.
39
The purported right to a reasonable post-arrest investigation, as alleged in Romero v. Fay,
is essentially a post-arrest duty of law enforcement to continue to pursue investigative leads when
presented with potentially exculpatory information. See Romero v. Fay, 45 F.3d at 1479 (“The
essence of Plaintiff's argument . . . is that the police assumed a duty to conduct a post-arrest
investigation[,] which they performed poorly.”). Presumably, thorough post-arrest investigation
would uncover actual exculpatory evidence, which would then compel the release of the arrestee.
See Romero v. Fay, 45 F.3d at 1480 n.4 (“Plaintiff alternately styles the alleged constitutional right
as the right to a ‘reasonable’, ‘adequate’, or ‘sufficient’ post-arrest investigation.”). According to
this theory, the failure to conduct a post-arrest investigation is violative of an innocent arrestee’s
Fourteenth Amendment liberty interests. See Romero v. Fay, 45 F.3d at 1479 (“Plaintiff claims
that Defendants violated his constitutional right to a reasonable post-arrest investigation by failing
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Circuit comes to addressing this issue is in Romero v. Fay, where the Tenth Circuit explained that,
“to succeed on [a] claim of an unreasonable post-arrest investigation in violation of his Fourteenth
Amendment rights, Plaintiff must assert facts that, at a minimum, demonstrate Defendants acted
with deliberate or reckless intent.” Romero v. Fay, 45 F.3d at 1478. Later Tenth Circuit cases,
however, have tempered that statement, clarifying that false imprisonment claims in general
require a plaintiff to show that the government official acted recklessly or deliberately, but that it
“is not clear that individuals have a constitutional right to a reasonable post-arrest investigation.” 40
to contact his alibi witnesses.”). Such a theory is inapplicable to Ganley, however, because he was
not detained and because he has not alleged facts which indicate that Jojola’s failure to investigate
further was anything more than negligent, which is a level of culpability that falls short of the
Tenth Circuit’s threshold requirement for an unreasonable post-arrest investigation claim. See
Romero v. Fay, 45 F.3d at 1478 (“[T]o succeed on [a] claim of an unreasonable post-arrest
investigation in violation of his Fourteenth Amendment rights, Plaintiff must assert facts that, at a
minimum, demonstrate Defendants acted with deliberate or reckless intent.”). A survey of both
Tenth Circuit and out-of-circuit caselaw indicates that no federal jurisdiction has recognized a per
se right to a post-arrest investigation. Again, the facts in this case -- Jojola’s decisions not to
further analyze the fingerprint and not to give greater credence to the Burt Report -- do not indicate
that Jojola acted in any way worse than negligent.
40
The Court concludes that there is good cause not to extend the Fourteenth Amendment
in such a fashion, principally because an absolute right to a reasonable post-arrest investigation
would place a significant -- and heretofore nonexistent -- burden on law enforcement. As the Court
of Appeals for the Sixth Circuit articulated in Peet v. City of Detroit, 502 F.3d 557 (6th Cir. 2007),
a right to a post-arrest investigation
would give investigators the responsibility to reevaluate probable cause constantly
with every additional witness interview and scrap of evidence collected. Moreover,
as investigations progress, the strength of evidence against a suspect may frequently
change. Some released suspects would be rearrested when further inculpatory
evidence emerged and showed that probable cause existed after all. And in lengthy,
close cases these suspects might be re-released, and then re-rearrested, and so on.
Peet v. City of Detroit, 502 F.3d at 565. Absent a showing that investigating officers deliberately
ignored exonerating evidence, discussed supra at nn.37-38 and infra at n.40, the procedural
safeguards of probable cause and a speedy trial are the constitutional protections against wrongful
arrest. See Baker v. McCollan, 443 U.S. 137, 145-46 (1979)(“Given the requirements that arrest
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Barham
v.
Town
of
Greybull
Wyoming,
483
F.
App’x
506,
509
(10th
Cir.
2012)(McKay, J.)(unpublished)(citing Romero v. Fay, 45 F.3d at 1478). “To the extent there is
such a right,” the Tenth Circuit continued, “it must be based on ‘facts that, at a minimum,
demonstrate Defendants acted with deliberate or reckless intent.’” Barham v. Town of Greybull
Wyo., 483 F. App’x at 509 (quoting Romero v. Fay, 45 F.3d at 1478). Given the paucity of Tenth
Circuit cases identifying clearly-established post-arrest due process rights, the Court cannot say
be made only on probable cause and that one detained be accorded a speedy trial, we do not think
a sheriff executing an arrest warrant is required by the Constitution to investigate independently
every claim of innocence.”). In Handy v. City of Sheridan, the Tenth Circuit affirmed this
approach when it stated that
[s]ome time ago the Supreme Court explained the division of constitutional
functions among law enforcement, magistrates, and judges when an arrest is made
pursuant to a warrant, and its discussion lends little support to the notion of law
enforcement’s duty to investigate for additional, potentially exculpatory
information when existing evidence is found by a judicial officer to establish
probable cause.
636 F. App’x 728, 739 (10th Cir. 2016)(unpublished). See also Brady v. Dill, 187 F.3d 104, 110
(1st Cir. 1999)(noting that Baker v. McCollan declined to impose on custodial officers a postarrest duty to investigate claims of innocence.). Though a given law enforcement officer may have
a moral obligation to pursue potentially exculpatory information, the Constitution does not impose
an affirmative duty to continue an investigation past a finding of probable cause. See Peet v. City
of Detroit, 502 F.3d at 565 (holding that there is no constitutional obligation to release a suspect
from custody the moment police become aware of exculpatory evidence). Brady v. Dill, 187 F.3d
104, 110 (1st Cir. 1999)(“[The plaintiff’s] major premise -- that the police must unilaterally release
a person detained pursuant to a facially valid warrant directing his arrest if they conclude that he
is innocent -- is too much of a stretch.”). Notably, these cases are factually distinct from those
where the officer is aware or should be aware of obviously exculpatory evidence and deliberately
or recklessly fails to secure the release a detained arrestee, discussed above and infra at n.40.
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soundly that a law enforcement officer violates the Constitution by failing to act the moment the
officer receives exonerating information. 41
41
As discussed above, several Courts of Appeals outside the Tenth Circuit have recognized
a constitutional violation when law enforcement officers deliberately disregard evidence that
would exonerate a detainee. For example, the United States Court of Appeals for the Sixth Circuit
determined that two sheriff’s deputies may have violated an inmate’s Fourteenth Amendment due
process rights by ignoring obvious exculpatory evidence:
Gray was imprisoned for 41 days. It is conceded that he is not the person named in
the warrant pursuant to which he was incarcerated. There is no dispute that Fuerst
and Ussery were in possession of a photograph that bore virtually no resemblance
to Gray, as well as a physical description detailing certain permanent scars that Gray
did not have. . . . Absent sufficient proof to the contrary . . . the trier of fact could
find that the failure by Fuerst and Ussery to ascertain that they were holding the
wrong person violated Gray’s due-process rights.
Gray v. Cuyahoga Cty. Sheriff’s Dep’t, 150 F.3d 579, 582-83 (6th Cir. 1998). More recently the
Sixth Circuit declared that a plaintiff “had a clearly established constitutional right to be free from
continued detention after officers should have known that he was not the person named in the
warrant.” Seales v. City of Detroit, Mich., 724 F. App’x 356, 366 (6th Cir. 2018). The Second
Circuit reached a similar conclusion in Russo v. City of Bridgeport:
[W]e hold that . . . Russo [was constitutionally protected] from a sustained
detention stemming directly from the law enforcement officials’ refusal to
investigate available exculpatory evidence. The Bridgeport police officers retained
sole custody of the videotape evidence -- and stored it in an improper manner -- for
a full 68 days after Russo alerted them that examining the pictures of the perpetrator
for tattoos could exonerate Russo. They did this after intentionally misstating that
the robber had tattoos.
479 F.3d 196, 208 (2d Cir. 2007)(Calabresi, J.)(“Russo had a clearly-established constitutional
right to be free from prolonged detention caused by law enforcement officials’ mishandling or
suppression of exculpatory evidence in a manner which “shocks the conscience.”) These Courts
of Appeals recognize a clearly-established constitutional right against continued imprisonment
when investigating officers ignore exonerating evidence. The Court would be inclined to
recognize the same right here if the facts indicated that Ganley was detained when Jojola realized
his error, that Jojola knew or should have known that Ganley was detained, and that Jojola
deliberately or recklessly failed to act on information that could have secured Ganley’s release.
But these are not the facts before the Court. Here, Ganley was not detained, and the Constitution
does not recognize a right to be free from criminal charges or investigation; Jojola’s mere
negligence does not shock the conscience.
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II.
THE COURT DENIES THE RULE 56(d) MOTION, BECAUSE THE REQUESTED
DISCOVERY IS NOT NECESSARY TO DEFENDANT AGAINST THE MSJ.
In the Rule 56(d) Motion, Ganley argues that he needs discovery to adequately defend
against the MSJ. See Rule 56(d) Motion at 1-2. Specifically, Ganley wants to depose Jojola,
Torbett, and Burt about their investigation into the Ganley Checks. See Rule 56(d) Motion at 1-2.
According to Ganley, it is not fair for the Court to consider Jojola’s sworn statements in the Jojola
Aff. without giving Ganley the chance to “test” those statements by questioning Jojola and the
other investigators about what Jojola knew and when. Rule 56(d) Motion at 10. Furthermore,
Ganley contends that, based on his information and belief, Jojola did not tell the whole truth about
what investigators told him about the investigation. See Rule 56(d) Motion at 10-11. The Court
denies the Rule 56(d) Motion. Ganley’s § 1983 claims and his state tort claims survive the MSJ
only if Ganley shows that there was no probable cause for arresting Ganley. Ganley does not
identify the specific probable facts that he anticipates discovering in these depositions, so the Court
cannot soundly say that the requested discovery is necessary for Ganley to defend against the MSJ.
Starting with Ganley’s § 1983 claim, Ganley argues that Jojola violated Ganley’s Fourth
Amendment rights by knowingly or recklessly including false statements and/or omitting critical
information in the Warrant Aff. See Complaint, ¶ , at 11-12. Ganley also contends that Jojola was
“objectively unreasonable” when he “chose not to complete his investigation on the grounds that
he did not have time.” Complaint ¶ 40, at 8.
The Defendants, in their MSJ, contend that Ganley’s Fourth Amendment claim fails,
because Jojola is protected by qualified immunity. See MSJ at 1-2. Specifically, the Defendants
argue that Jojola did not include false statements in the Warrant Aff. or omit information that, if
included in the Warrant Aff., would have vitiated probable cause. See MSJ at 11-15. The
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Defendants add that, even after curing the Warrant Aff. of its alleged problems, the affidavit would
still establish probable cause. See MSJ at 13, 15. The Defendants also argue that Jojola’s
investigation was sufficient to not violate the Fourth Amendment. See MSJ at 16-17.
To determine whether Ganley’s requested discovery is necessary to defend against the
MSJ, the Court must first identify what Ganley needs to do to defeat the MSJ. Qualified immunity
does not protect Jojola if there was probable cause for Ganley’s arrest. Ganley can establish that
there was no probable cause by showing that Jojola made false statements and material omissions
in the Warrant Aff., and that an affidavit with those problems cured does not establish probable
cause. See Puller v. Baca, 781 F.3d 1190, 1197 (10th Cir. 2015). Relatedly, he could also show
that Jojola’s own probable cause determination, based on what he learned in the investigation, was
unreasonable. See Romero v. Fay, 45 F.3d at 1477-78. Ganley will also need to demonstrate that
Jojola’s constitutional violation was clearly established.
Ganley’s requested discovery is not necessary to defend against the MSJ. The Defendants
disagree that Jojola made false statements, but further discovery is not necessary to resolve this
issue, because removing or clarifying the alleged false or misleading statements and inserting the
ostensibly exculpatory information, would not vitiate probable cause for Ganley’s arrest.
Removing the Warrant Aff.’s linguistically problematic reference to “verifying” that Ganley was
the man in the surveillance video, clarifying Jojola’s progress -- or lack thereof -- investigating the
check’s fingerprint, and mentioning that another investigator remarked that it was not clear
whether Ganley was the perpetrator or a victim, nonetheless lays out a fact pattern establishing
probable cause for Ganley’s arrest. The Warrant Aff. so amended asserts that someone stole
checks from mailboxes, altered them to list different payees, and then cashed those checks. See
Warrant Aff. at 1. It establishes that someone cashed a check that had been altered to list Ganley
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as the payee and that the bank teller wrote down a license number that belonged to Ganley. See
Warrant Aff. at 1. It states that, at one point in the investigation, an investigator was not sure
whether four people -- including Ganley -- whose names had been fraudulently listed as stolen
checks’ payees were offenders or victims of the criminal schemes. See Burt Report at 1. It states
that Jojola compared Ganley’s MVD photograph with surveillance footage of a man cashing a
check and that Jojola concluded that Ganley was the man in the surveillance footage. MSJ ¶ 13,
at 5; Jojola Aff. ¶ 13, at 2. It states that the check’s true owner did not know Ganley and did not
give Ganley permission to cash the check. See Warrant Aff. at 1. It states that the check has a
fingerprint and a signature on it, but that neither the fingerprint nor the signature had been analyzed
to see if they match Ganley’s fingerprint and signature. See MSJ Response ¶ 8, at 4; Warrant Aff.
at 1. Such a warrant affidavit establishes “something ‘more than a bare suspicion,’” Puller v. Baca,
781 F.3d at 1200, that Ganley cashed the check, and that there is a “substantial probability,” Taylor
v. Meacham, 82 F.3d at 1562, that Ganley committed the crime. See supra § I, at 88-90.
Consequently, Ganley has not demonstrated that he was arrested without probable cause.
Ganley also contends more generally that he believes Jojola lied about his investigation’s
timeline and what other investigators told him. See Affidavit of Nicole W. Moss Requesting
Limited Discovery to Respond to Motion for Qualified Immunity ¶ 22, at 5 (dated January 18,
2018), filed January 18, 2018 (Doc. 35-1)(“Moss Aff.”). To the extent that Ganley argues that
Jojola made false statements or deliberate omissions besides the ones he specifically identified,
the Court cannot undergo the above exercise amending the warrant affidavit and testing the
amended version for probable cause. Instead, the Court must consider whether Ganley’s requested
discovery could uncover proof of other misleading statements or omissions which might vitiate
probable cause. Ganley wants to depose Jojola about his investigation. See Moss Aff. ¶ 22, at 5.
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Nicole W. Moss states that Ganley alleges that Jojola made false statements in the arrest warrant,
and those statements’ truth depends on what Jojola knew and did at the time he issued the Warrant
Aff. See Moss Aff. ¶ 22, at 6. Ms. Moss also states that Ganley “is informed and believes that”
the Jojola Aff. contains false statements regarding the investigation’s timeline and what other
investigators told him. Moss Aff. ¶ 22, at 6. Ms. Moss states that Ganley wants to “test[]” Jojola’s
assertions in a deposition and question Jojola about his statements in the October 19, 2016, “during
which Defendant Jojola made statements that will tend to establish genuine issues of material fact
about the manner in which he concluded his investigation.” Moss Aff. ¶ 22, at 6-7. In other words,
Ganley argues that, to respond to the MSJ, he must depose Ganley about his investigation: (i) to
illuminate whether Jojola’s statements in the Warrant Aff. are false, as Ganley alleges they are;
(ii) to determine whether other Warrant Aff. statements are false; and (iii) to question Jojola about
his statements at the October 19, 2016 meeting, because those questions may establish genuine
issues of material fact relating to the investigation.
Ganley need not depose Jojola about his investigation to determine the truth or falsity of
the Warrant Aff. statements which Ganley contends are false. As the Court demonstrated above,
there is still probable cause even after removing those allegedly false statements and including
what Ganley contends should be included.
If Jojola lied about other things -- e.g., what the postal inspectors told him -- then
correcting those falsities could change whether there is probable cause. Ganley does not explain
about what Jojola may be lying, and the Court cannot see how their statements might change
whether there is probable cause. Even disregarding what the postal inspectors told him, there is
still a stolen check altered to list Ganley as the payee, the surveillance footage, the driver’s license
number belonging to Ganley, the MVD photograph, and Jojola’s opinion that Ganley’s MVD
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photograph shows the same guy as in the surveillance footage. That evidence alone is enough to
establish a substantial probability that Ganley was the culprit. Although the Court recognizes the
difficulty in taking one side’s affidavit at face value at this stage, Ganley’s assertion -- that Ganley
“is informed and believes that there are statements in the [Jojola Aff.] that are not true, particularly
regarding the timeline of the investigation and what the other law investigative personnel told
him” -- is too general to support granting a rule 56(d) motion. A rule 56(d) motion must identify
not only the discovery, but the “probable facts” in that discovery that the movant needs. Price ex
rel. Price v. W. Res., Inc., 232 F.3d at 783. See Burke v. Utah Transit Auth. & Local 382, 462
F.3d at 1264 (“While the appellants’ affidavit briefly lists the additional discovery they believe
necessary, it fails to do so with any specificity, and with any hint of what facts such discovery is
expected to unearth.” (citing Price ex rel. Price v. W. Res., Inc., 232 F.3d at 783)). Saying that
Ganley “is informed and believes” that Jojola lied in describing his conversations with other
investigators does not identify the probable facts that a deposition may reveal, because it does not
indicate about what Ganley suspects Jojola lied. Ganley’s third request -- to question Jojola about
his statements at the October 19, 2016, meeting -- suffers from the same problem, in that Ganley
does not explain what comments specifically he imagines “will tend to establish genuine issues of
material fact relating to the investigation” nor explain how those comments are necessary to help
Ganley defend against the MSJ. Moss Aff. ¶ 22, at 6.
Ganley also wants to depose Torbett and Burt about what they told Jojola about the
investigation. See Moss Aff. ¶ 22, at 7. Ganley asserts that he “is informed and believes that
Defendant is representing or misstating what those individuals told him and what information and
documents they gave him.” Moss Aff. ¶ 22, at 7-8. Again, Ganley identifies the discovery -- the
deposition -- but not the specific probable facts that the depositions may reveal nor how those facts
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will help Ganley defeat the MSJ. It is possible that depositions could reveal evidence that, if
disclosed in the Warrant Aff., would vitiate probable cause, but Ganley does not state or even hint
what that evidence might be. See Lewis v. Ft. Collins, 903 F.2d at 758 (“Rule 56[(d)] is not a
license for a fishing expedition . . . .”).
Ganley also wants to depose Jojola regarding his training and experience investigating
identity theft and check fraud and whether he has faced complaints, discipline, or lawsuits relating
to his work on such investigations. See Moss Aff. ¶ 22, at 7. Ganley asserts that he “is informed
and believes that Defendant Jojola has a habit of issuing warrants for the wrong suspect and that
he conducts unreasonably poor investigations and makes misleading statements in his warrant
affidavits to obtain warrants.” Moss Aff. ¶ 22, at 7. Ganley explains that, if these habits are true,
“then it strengthens Plaintiff’s assertions of municipal liability because the City has potentially
allowed or adopted a custom or practice of conduct that leads to civil rights violations.” Moss Aff.
¶ 22, at 7. The Court will not grant the Rule 56(d) Motion for this purpose, for the reason that the
Defendants do not move for summary judgment on Ganley’s municipal liability claim. See MSJ
at 25 (asking the Court to dismiss the Complaint’s Counts I and II); Complaint ¶¶ 55-57, at 11
(asserting “supervisory and municipal liability claims” as Count III). Consequently, deposing
Jojola about his training and experience is not necessary to defend against the MSJ.
The analysis is different for Ganley’s tort claims, because qualified immunity is a creature
of federal law -- and therefore does not apply to state tort claims. See Todd v. Montoya, 877 F.
Supp. 2d 1048, 1103 (D.N.M. 2012)(Browning, J.)(“[Q]ualified immunity does not apply to
Todd’s claims under the NMTCA.” (citing Romero v. Sanchez, 1995-NMSC-028, ¶ 25, 895 P.2d
212, 218)). In the end, however, the question boils down to whether Jojola had probable cause to
submit the Warrant Aff., because, under New Mexico law, “[a]n officer who has probable cause
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to arrest a person cannot be held liable for false arrest or imprisonment, since probable cause
provides him with the necessary authority to carry out the arrest.” Santillo v. N.M. Dep’t of Pub.
Safety, 2007-NMCA-159, ¶ 12, 173 P.3d 6, 10 (citing State v. Johnson, 1996-NMSC-075, ¶ 16,
122 N.M. 696, 930 P.2d 1148). A New Mexico court,
may issue a warrant for arrest upon an indictment or a sworn written statement of
the facts showing probable cause for issuance of a warrant. The showing of
probable cause shall be based upon substantial evidence, which may be hearsay in
whole or in part, provided there is a substantial basis for believing the source of the
hearsay to be credible and for believing that there is a factual basis for the
information furnished.
N.M. R. Crim. P. 5-208(D). New Mexico’s probable cause requirement is rooted in Article II,
§ 10 of the New Mexico Constitution (requiring a “written showing of probable cause, supported
by oath or affirmation” for any search and seizure warrants). See N.M. R. Crim. P. 5-208
committee commentary. Probable cause in New Mexico “‘means a reasonable ground for belief
of guilt,’” and “‘exists where the facts and circumstances within the knowledge of the officers,
based on reasonably trustworthy information, is sufficient to warrant a man of reasonable caution
to believe that an offense has been or is being committed.’” State v. Snedeker, 1982-NMSC-085,
¶ 21, 657 P.2d 613, 617 (quoting State v. James, 1978-NMCA-046, ¶ 13, 579 P.2d 1257, 1261,
overruled on other grounds by State v. Cervantes, 1979-NMCA-029, ¶ 24, 593 P.2d 478, 484).
The Supreme Court of New Mexico has stated that, to establish probable cause, “(1) only a
probability of criminal conduct need be shown; (2) there need be less vigorous proof than the rules
of evidence require to determine guilt of an offense; (3) common sense should control; (4) great
deference should be shown by courts to a magistrate’s determination of probable cause.” State v.
Snedeker, 1982-NMSC-085, ¶ 22, 657 P.2d 613, 617 (quoting State v. Bowers, 1974-NMCA-135,
¶ 6, 529 P.2d 300, 302).
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Thus the question is whether Ganley’s discovery requests -- i.e., deposing Jojola, Torbett,
and Burt -- would help Ganley show that Jojola lacked probable cause. In the qualified immunity
analysis, the Court need look only to whether the affidavit -- cured of its misleading statements or
omissions -- establishes probable cause; here, the question is whether Jojola had probable cause to
seek Ganley’s arrest. It is possible that those depositions could reveal information that, if included
in the Warrant Aff., would vitiate probable cause. As the Court ruled above, however, Ganley
states that he has information and believes that Jojola lied about what investigators told him, but
Ganley does not identify or hint the probable facts that a deposition may reveal, because he does
not indicate what he suspects Jojola lied about. See Lewis v. Ft. Collins, 903 F.2d at 758 (“Rule
56[(d)] is not a license for a fishing expedition . . . .”).
III.
THE COURT DISMISSES GANLEY’S SUPERVISORY AND MUNICIPAL
LIABILITY CLAIM.
In his Complaint, Ganley asserts “supervisory and municipal liability claims,” alleging that
Jojola’s “actions constituted a custom, practice, and policy of deliberate indifference to the rights
of Plaintiff and other citizens which affirmatively and proximately caused Plaintiff’s injuries.”
Complaint ¶ 56, at 11. The Defendants do not move for summary judgment on the municipal
liability claim. See MSJ at 25 (asking the Court to dismiss the Complaint’s Counts I and II);
Complaint ¶¶ 55-57, at 11 (asserting “supervisory and municipal liability claims” as Count III).
Nonetheless, the Court’s determinations on Ganley’s Fourth and Fourteenth Amendment
claims compels the Court to dismiss Ganley’s supervisory and municipality claim as well. When
“suing a county under section 1983 for the actions of one of its officers,” a plaintiff in the Tenth
Circuit must show that: (i) “a municipal employee committed a constitutional violation”; and (ii)
“a municipal policy or custom was the moving force behind the constitutional deprivation.” Myers
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v. Oklahoma County Bd. of County Comm’rs, 151 F.3d at 1318 (citing Monell, 436 U.S. at 694).
The Court concludes, supra § II, that Jojola did not violate Ganley’s constitutional rights.
Consequently, because Ganley cannot get past step one on his supervisory and municipality claim,
the Court must dismiss it.
IV.
THE COURT REMANDS GANLEY’S STATE CLAIMS.
In his Complaint, Ganley asserts two counts based on federal claims: (i) that Jojola violated
his Fourth and Fourteenth Amendment rights, see Complaint at ¶¶ 36-44, 7-9; and (ii) that the City
of Albuquerque deprived Ganley of his Fourth, Fifth, and Fourteenth Amendment rights, see
Complaint ¶¶ 55-57, at 11, because Jojola’s “actions constituted a custom, practice, and policy of
deliberate indifference” to constitutional rights, see Complaint ¶ 56, at 11. Ganley also asserts one
count based on state tort claims. See Complaint ¶ 47, at 9-10. The Court concludes that Jojola did
not violate Ganley’s constitutional rights. See supra § II. Consequently, the Court rules in favor
of the Defendants and dismisses both federal claims. See supra §§ II, III. Only the state claims
remain; they present no federal question, see 28 U.S.C. § 1331, and there is no contention that the
parties are diverse or that the amount in controversy exceeds $75,000.00, see 28 U.S.C. § 1332;
Response at 23 (Ganley asking that, if the Court dismisses his federal claims, to remand the state
claims); Tr. at 12:2-8 (Nixon)(stating that the Defendants would not object to the Court remanding
Ganley’s state claims if the Court dismisses his federal claims). The Tenth Circuit has indicated a
strong preference for the district courts to decline to exercise supplemental jurisdiction over state
claims after federal claims are gone. See Smith v. City of Enid By & Through Enid City Comm’n,
149 F.3d 1151, 1156 (10th Cir. 1998)(“When all federal claims have been dismissed, the court
may, and usually should, decline to exercise jurisdiction over any remaining state claims.” (citing
28 U.S.C. § 1367(c)(3); Ball v. Renner, 54 F.3d 664, 669 (10th Cir.1995)). Consequently, the
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Court declines to exercise jurisdiction over Ganley’s state claims, and will remand them to the
County of Bernalillo, Second Judicial District Court, State of New Mexico.
IT IS ORDERED that: (i) Defendants Eric Jojola and City of Albuquerque’s Motion for
Summary Judgment on Qualified Immunity and Other Grounds, filed December 21, 2017
(Doc. 32), is granted; (ii) the requests in Plaintiff John Ganley’s Motion for a Continuance of the
Motion for Summary Judgment to Permit Discovery Pursuant to Rule 56(d) and Affidavit, filed
January 1, 2018 (Doc. 35), are denied; (iii) Counts I and III in Ganley’s First Amended Complaint
for Damages for Violation of Civil Rights and Tort Claims, filed August 8, 2017 (Doc. 22), are
dismissed with prejudice; and (iv) Ganley’s remaining state claims are remanded to the County of
Bernalillo, Second Judicial District Court, State of New Mexico.
_______________________________
UNITED STATES DISTRICT JUDGE
Counsel:
Nicole Moss
The Law Office of Nicole W. Moss
Albuquerque, New Mexico
--and-Marshall J. Ray
Law Offices of Marshall J. Ray LLC
Albuquerque, New Mexico
Attorneys for the Plaintiff
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Jessica Lynn Nixon
Office of the City Attorney
Albuquerque, New Mexico
Attorney for the Defendants
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