Roybal-Mack v. New Mexico Department of Public Safety et al

Filing 40

MEMORANDUM OPINION AND ORDER by District Judge William P. Johnson. THEREFORE, IT IS ORDERED that Plaintiff's MOTION to Amend Complaint 27 is hereby DENIED, and Plaintiff's request that the Court reconsider its previous rulings in its dismissal of Plaintiff's state law claims (Doc. 18) is also DENIED. (kg)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
______________________

ANTONIA ROYBAL-MACK,
as Personal Representative of the
Wrongful Death Estate of
KORI LYNN WOODS,
Plaintiff,
vs.

No. 17-CV-552-WJ-KK

NEW MEXICO DEPARTMENT OF
PUBLIC SAFETY, OFFICER
MARK QUINTANA and OFFICER
DIEGO MENDOZA, individually
and in their official capacities, and
JOHN and JANE DOES #1-10,
Defendants.

MEMORANDUM OPINION AND ORDER
DENYING PLAINTIFF’S MOTION TO AMEND COMPLAINT
THIS MATTER comes before the Court upon Plaintiff’s Motion to Amend Complaint,
filed September 6, 2017 (Doc. 27). Having reviewed the parties’ briefs and applicable law, the
Court finds that Plaintiff’s motion is not well-taken and, therefore, is denied.
BACKGROUND
Plaintiff’s claims arise from the Defendant Officer’s high-speed pursuit of a vehicle
operated by Kyle Mawhorter (“Mawhorter”), in which Kori Lynn Woods was a passenger and
which resulted in a single-vehicle collision killing Ms. Woods.

The facts in the Complaint are summed up in the Joint Status Report (Doc. 13). They
bear repeating for purposes of context. In November 2016 near Clovis, New Mexico, State
Police Officer Quintana initiated a traffic stop for speeding on a vehicle operated by Mawhorter
in which Ms. Woods was riding as a passenger. Officer Quintana activated his patrol unit’s
emergency equipment directing Mawhorter to stop the vehicle on the shoulder of the highway.
Mawhorter failed to stop and Officer Quintana pursued Mawhorter (at speeds, according to
Defendants, close to 100 m.p.h.) along US 70 traveling northbound. Officer Mendoza of the New
Mexico State Police was also patrolling that stretch of the highway and was dispatched to assist
Officer Quintana. Both police cruisers were using their overhead emergency lights and sirens,
and recorded the chase on their dash-cam videos. Defendants’ version of events is that at one
point Mawhorter deliberately crossed into the southbound lanes of US 70 and began traveling
northbound at speeds of 90-100 mph against oncoming traffic, causing the southbound vehicles
to swerve in order to avoid being hit. The officers therefore decided to continue their pursuit of
the vehicle for public safety reasons.
About five minutes into the pursuit, Officer Mendoza attempted a Pursuit Intervention
Technique (“PIT”) maneuver on Mawhorter’s vehicle. The first PIT maneuver was unsuccessful,
but the second one brought Mawhorter’s vehicle to a stop. However, after stopping, Mawhorter
reversed his car and began traveling northbound on US 70 again. According to Plaintiff’s
version, Officer Mendoza advised dispatch at this time that there was a female passenger (Ms.
Woods) in Mawhorter’s vehicle. Officer Quintana attempted a third unsuccessful PIT maneuver
when Mawhorter began traveling west on Brady Avenue in Clovis, N.M. The pursuit continued
12 miles on US 70 northbound until Mawhorter lost control of his vehicle crashing into a metal
fence at the intersection of W. Brady Ave. and S. Hull St. in Clovis. Mawhorter fled the vehicle

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on foot but was eventually found in a field and ultimately pled guilty to various felony charges
stemming from the accident. Ms. Woods was pronounced dead at the scene.
On March 31, 2017, Plaintiff as the personal representative of Ms. Woods’ estate, filed a
five-count complaint in the Second Judicial District Court in Bernalillo County, asserting the
following civil rights and state law tort claims:
Count I – Civil rights violations under §1983 (Fourth and Fourteenth Amendments);1
Count II – Violations of the New Mexico Tort Claims Act, NMSA 1978 §41-4-12 and
under the New Mexico Law Enforcement Safe Pursuit Act, NMSA 1978, §29-20-1;
Count III – Negligent hiring, Training, Supervision and Retention;
Count IV – Respondeat Superior; and
Count V – Breach of duty under the New Mexico Wrongful Death Act, NMSA 1978,
§41-2-1 et seq.
Defendants removed the case to federal court on May 15, 2017 and filed a motion
seeking dismissal of the state claims asserted in Counts II, III, IV and V, contending that
Counts II, III, IV and V of the Complaint were redundant and attempted in various ways to state
a claim for negligence resulting in the wrongful death of the decedent pursuant to NMSA §41-412 of the New Mexico Tort Claims Act (“Tort Claims Act”).
The Court granted Defendant’s motion, finding that Plaintiffs’ claims asserted under §414-12 of the Tort Claims Act were premised on negligent conduct, which is insufficient for a
waiver of immunity under the Tort Claims Act. With respect to the torts enumerated in §41-412, allegations of negligence are appropriate only to the extent that a law enforcement officer’s
negligence is alleged to have caused a third party (such as Mawhorter in this case) to commit one
of the specified intentional torts. Doc. 18 at 6-7. The Court noted that the allegations in the

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Defendant has filed a motion for summary judgment as to Count I (Doc. 19), which is pending for ruling by the
Court.

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complaint were framed in terms of negligence and did not assert any of those enumerated torts in
§41-4-12. Doc. 18 at 6.
In responding to Defendants’ motion to dismiss, Plaintiff had sought the Court’s
permission to amend the complaint in the event the Court favored Defendants’ arguments.
However, the Court concluded that such amendment would be futile because even assuming the
facts to be true, they did not plausibly lend themselves to acts of assault, battery or false
imprisonment by Mawhorter because those torts require intentional acts. Doc. 18 at 7. All of
Plaintiff’s state law claims were dismissed in the Court’s Memorandum Opinion and Order. Id.
at 16.
DISCUSSION
Plaintiff’s motion is self-styled as a motion to amend, although Plaintiff also expressly
includes a request that the Court modify its previous rulings on her state law claims. Since
Plaintiffs’ principal objective is to seek a modification of the Court’s previous Memorandum
Opinion and Order (Doc. 18), and amendment would be futile without modification of those
rulings, the Court will first address motion to revise or reconsider.
I.

Whether the Court’s Previous Findings Should be Modified
Plaintiff asks that the Court revise its conclusion that an amended complaint on these

claims would be futile, which would require the Court to modify its previous rulings.
Rule 54(b) of the Federal Rules of Civil Procedure grants a district court the discretion to
revise interlocutory orders at any time prior to entry of a final judgment. See Riggs v. Scrivner,
Inc., 927 F.2d 1146, 1148 (10th Cir. 1991). When evaluating whether to reconsider an
interlocutory order pursuant to Rule 54(b), courts apply the same legal standard as used for a
motion to alter or amend a judgment under Rule 59(e). See Tomlinson v. Combined Underwriters

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Life Ins. Co., 684 F. Supp. 2d 1296, 1299 (N.D. Okla. 2010); Sump v. Fingerhut, Inc., 208
F.R.D. 324, 326-27 (D. Kan. 2002).
Under Rule 59(e), a motion to reconsider is warranted in the event of: (1) an intervening
change in controlling law; (2) new evidence previously unavailable; or (3) the need to correct
clear error or prevent manifest injustice. Servants of the Paraclete v. Does, 204 F.3d 1005, 1012
(10th Cir. 2000). A motion to reconsider is also “appropriate where the court has
misapprehended the facts, a party's position, or the controlling law.” Id.
The primary change in the proposed amended complaint, attached as Exhibit A to the
motion, is the addition of the word “intentional” to several of the paragraphs in order to describe
Mawhorter’s conduct with regard to his allegedly reckless driving. See, e.g., ¶¶ 27, 29, 30 & 56.
As mentioned in the Court’s previously filed opinion, the assault and battery statutes require
intentional acts, not negligence. An assault under New Mexico law requires an act, threat, or
menacing conduct which causes the plaintiff to reasonably believe she is in danger of receiving
an immediate battery. See N.M.S.A. § 30-3-1; see also State v. Ortega, 113 N.M. 437 (N.M. Ct.
App. 1992). A battery under New Mexico law requires an unlawful, harmful, intentional, or
offensive touching of another. Id.; see also Chavez v. Thomas & Betts Corp., 396 F.3d 1088
(10th Cir. 2005). The intent required to commit battery extends only to the physical touching at
issue and not to the resulting harm. Milliron v. County of San Juan, 384 P.3d 1089, 1095
(N.M.App., 2016). Similarly, false imprisonment also requires an intentional act. See NMSA
§30-4-3.
A.

Application of California First Bank Case is Not Appropriate

In the Memorandum Opinion and Order dismissing Plaintiff’s state claims, the Court
cited to California First Bank et al. v. State of New Mexico et al., which imputed the requisite

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intent to commit battery to drunk drivers, 111 N.M. 64 (1990), but this Court declined to extend
the analysis in California First Bank to this case. Some further discussion of California First
Bank may be worthwhile in order to clarify the Court’s ruling.
In California First Bank, the New Mexico Supreme Court addressed the waiver of
immunity under the Tort Claims Act in a situation where officers had failed to take reasonable
steps to pursue an individual despite knowing and observing that the individual was driving
while intoxicated and posed a threat to the safety of others. Under the facts of that case, Gallup
police officers at the time followed a policy promulgated by the City of Gallup and McKinley
County (“city” and “county”) not to interfere with drinking activity inside “Indian Bars.”
Officers were instructed not to enter these bars, and not to apprehend or arrest persons driving
while under the influence of alcohol. In that case, officers observed Harrison Shorty (“Shorty”)
leaving Eddie’s Bar and saw him fire several gun shots outside the bar, but they failed to
apprehend him. Not long after the shooting incident, Shorty left the bar and drove north on U.S.
Road 666, crossed the center line of the highway in his truck, and collided with a vehicle driven
by Laurence McKeen who was on vacation with his wife and daughters. Mr. McKeen, his wife
and one of the daughters were killed and the second daughter was seriously injured.
What drove the New Mexico Supreme Court’s analysis and reasoning in California First
Bank case was the policy of non-enforcement regarding liquor control and drunk driving laws.
The New Mexico Court of Appeals had held that the county could be vicariously liable under
respondeat superior if it could be proven that the county had immediate supervisory authority
over the officers, and if the officers’ negligence caused a battery. 111 N.M. at 67. However, the
Supreme Court’s holding in California First Bank turned on finding a waiver of immunity in the
Tort Claims Act, §41-4-12 under New Mexico law based on a state statute, NMSA 1978, §29-1-

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1, which imposes a duty on law enforcement officers to investigate all violations of criminal
laws. Id. at 74. Thus, the court did not need to reach the issue of whether injury caused by an
intoxicated person could be considered a battery. Nevertheless, in a lengthy footnote, the
Supreme Court suggested that the allegations concerning the traffic accident in that case “do not
necessarily constitute a battery” and found that the question would be for a jury to decide. 111
N.M. at 74, n.6 (“We believe Shorty’s intoxication would be material to a jury determination of
whether a battery was committed in this case.”). The court noted that while the plaintiff had to
show that Shorty “intended to cause contact,” the term “intent” also denotes that the actor
believes that the consequences are substantially certain to result from the action taken.” The
court went further to state that the decision to operate a motor vehicle on a public highway while
intoxicated “constituted an intent to engage in unlawful conduct that invades the protected
interests of others, and this intent provides sufficient grounds to treat the conduct as an
intentional tort.”2
Plaintiff insists that the reasoning in the California First Bank case should be applied
here, comparing Mawhorter, a fleeing felon with Shorty, the intoxicated patron in the California
First Bank case, and argues that both drivers “intended” to drive and intended to do so in a way
that was “substantially certain” to harm others.
This Court’s initial ruling still holds, and for the same reasons.

The language in

California First Bank’s footnote 6 focused solely on intent and battery in the particular context
of intoxicated drivers—that is, how an intoxicated individual’s “conscious decision to drive”
should be examined in relation to the required “intent” in a battery claim. 111 N.M. at 74 & n.6
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The Court reads this language to mean that the jury would need to determine whether the intoxicated individual in
fact made the decision to operate the motor vehicle in the first place. Otherwise, it is difficult to reconcile the
language in the footnote relegating the matter to a jury while at the same time finding that the conduct constitutes an
intentional tort.

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(“ . . . evidence of the intoxicated driver's lack of subjective appreciation of the magnitude or
nature of the risk created is not controlling . . . .). As the Court noted in its previous opinion, the
New Mexico Court of Appeals was reluctant to extend the exception in California First Bank to
a case where the person who was intoxicated was the pedestrian who was struck by a car, and not
the driver. Milliron v. Cty of San Jan, 2016-NMCA-096, 384 P.3d 1089, 1095. There, the court
stated that it was “unwilling” to draw the conclusion that injury to the passing intoxicated
motorist was a “substantially certain outcome” of the driver, who was sober.
In another New Mexico case involving a drunk driver, Blea v. City of Espanola, police
officers and the City of Espanola were sued when an intoxicated motorist was detained but
released by the officers. 1994-NMCA-008, §15, 117 N.M. 217. The driver was obviously
extremely intoxicated and impaired, but the officers who stopped him allowed him to continue
driving on. The driver consumed more alcohol after the stop and subsequently struck the
decedent’s car at high speed.

The court of appeals found that plaintiffs’ allegations of

intoxication and driving were sufficient to require the court to follow the “dicta” in footnote 6 in
the California First Bank case.
Here, it is not disputed that Mawhorter was not driving under the influence of any
substance at the time he was evading the police, yet Plaintiff urges the Court to find that
Mawhorter’s reckless driving forms the basis for allegations of assault, battery and false
imprisonment.

Plaintiff points to Mawhorter’s deposition statements that Ms. Woods was

“freaking out,” had a panic attack” and wanted Mawhorter to stop the car.3 Mawhorter stated
3

Both parties refer to Mawhorter’s deposition statements, attached to Plaintiff’s Response to Defendants’ Motion
for Summary Judgment as to Count I Based on Qualified Immunity (Doc. 19), Ex. D, which is pending before the
Court. Specific references to these deposition excerpts can be found in the briefs. In this motion, Plaintiff seeks
reconsideration of the Court’s rulings on Defendants’ Motion to Dismiss, and so facts that are taken from exhibits to
a summary judgment motion are not actually appropriate here. However, the Court considers these facts because
both parties cite to Mawhorter’s deposition, and also because including these statements demonstrates the futility of
allowing Plaintiff to amend the complaint.

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that the car was “going way too fast” to stop. However, Defendants cite to other portions of the
deposition, noting that Mawhorter decided to flee rather than comply with the officers’ attempts
to pull him over because he knew the truck was stolen “and I didn’t want to go to jail.” See Doc.
35 at 9. Mawhorter “kept saying it’ll be okay” when Ms. Woods wanted him to stop the car.
Mawhorter also said that Ms. Woods had been smoking marijuana while they drove and that her
marijuana stash was in the truck glovebox. Id. Mawhorter himself was going through heroin
withdrawal while he was driving the car and it is undisputed that he was not under the influence
of any substance at the time. Id. at 8. It is therefore clear, based on the allegations in the
complaint as well as statements made in his deposition, that Mawhorter’s overriding intention
was to avoid apprehension by the officers, and not to commit a battery on Ms. Woods.
California First Bank carved out a potential exception to the intent requirement for a
battery claim where the defendant was driving while intoxicated, but it did not alter the definitive
law regarding the elements of a battery claim: a plaintiff must still show there was an intent to
harm, even where the harm is considered to be “substantially certain.” The Court finds no legal
or factual basis to go beyond the factual context of California First Bank and extend the
reasoning in footnote 6 to this case. There is no basis for reading California First Bank to
suggest that the New Mexico Supreme Court announced a new flexibility for the intent
requirement in a battery claim that would apply to all fact scenarios in the future. Doing so
would allow an exception to become the rule for virtually anyone who was driving recklessly,
even if they were not intoxicated and whether or not they were fleeing from police officers.
Defendants also point out that extending California First Bank to this case could pose a dilemma
for police officers who have a duty to investigate crimes (which could lead to a police chase), but
who could also be reluctant to continue a pursuit where they would face liability if the driver

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injured someone as a result of the chase. At the same time, if the officers abandon the chase
after a driver who later turns out to be intoxicated, the officers would face liability for not
stopping him. This truly presents a “catch-22” situationThe objective of the New Mexico
Supreme Court in footnote 6 of California First Bank was to foreclose the ability of drunk
drivers to circumvent the “intent” requirement, and the court made it clear that merely the
decision to get behind the wheel of a vehicle while intoxicated could be enough to satisfy that
requirement. In other words, drunk drivers would no longer get a “pass” on the “intent” element
for a battery claim. Since there is no allegation or evidence that Mawhorter was impaired, there
is no reason to extend California First Bank to this case. However, the Supreme Court also
relied on black-letter law defining “intent” as used in a battery claim, as stated in the
Restatement (Second) of Torts, §8A (1965). Plaintiff focuses on that language to argue that the
proposed amended complaint sufficiently alleges an enumerated tort in §41-4-12, because
Mawhorter intended to drive in a manner that was “substantially certain” to harm others:
The word “intent” is used . . . to denote that the actor desires to cause
consequences of his act, or that he believes that the consequences are substantially
certain to result from it.
Restatement (Second) of Torts, §8(A) (1965). The comments further define what “substantial
certainty” is, and explains when conduct is no longer be considered “substantial certainty:
All consequences which the actor desires to bring about are intended, as the word
is used in this Restatement. Intent is not, however, limited to consequences which
are desired. If the actor knows that the consequences are certain, or substantially
certain, to result from his act, and still goes ahead, he is treated by the law as if he
had in fact desired to produce the result. As the probability that the
consequences will follow decreases, and becomes less than substantial
certainty, the actor's conduct loses the character of intent, and becomes mere
recklessness. As the probability decreases further, and amounts only to a risk that
the result will follow, it becomes ordinary negligence,

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Restatement (Second) of Torts § 8A (1965) (cmt.b) (emphasis added). In other words,
recklessness is not “substantial certainty” and by extension, it is not “intent.” As mentioned
previously, the proposed amended complaint adds the word “intentionally” to several of the
allegations, ostensibly for the purpose of turning Mawhorter’s conduct into an intentional tort,
for example:
During the pursuit, Mawhorter intentionally drove erratically and in a
hazardous fashion, driving well above the speed limit and driving northbound in
the southbound lane of traffic.
Doc. 27-1, ¶29 (emphasis added). Mawhorter cannot “intentionally” drive “recklessly” because
both kinds of conduct are mutually exclusive under the applicable law in that they cannot both
occur at the same time. Mawhorter intended to flee the officers chasing him, but he drove
recklessly in order to accomplish this. Thus, the proposed amended complaint cannot be read to
state plausible claims of assault, battery and false imprisonment—all of which are intentional
torts. See Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009) (“Iqbal”) (to survive a motion to dismiss,
a complaint must state a claim to relief that is plausible on its face).
For all of these reasons, the Court denies Plaintiff’s motion to reconsider. The allegations
underlying the facts in this case do not meet the elements of assault, battery or false
imprisonment. Also, the Court cannot square the reasoning of the California First Bank case
with this case and so the exception concerning the intent requirement for battery will not be
extended to this case.
B.

Certification to State Court is Not Warranted

Plaintiff requests that the Court certify the issue of whether California First Bank applies
here to the New Mexico Supreme Court.

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Whether to certify a question of state law to the state supreme court is within the
discretion of the federal court. Lehman Brothers v. Schein, 416 U.S. 386, 391 (1974); Holler v.
United States, 724 F.2d 104, 105 06 (10th Cir.1983).

Certification is particularly appropriate

where the legal question at issue is novel and the applicable state law is unsettled. Id. However,
certification is not to be routinely invoked whenever a federal court is presented with an
unsettled question of state law.

Armijo v. Ex Cam, Inc., 843 F.2d 406 (10th Cir. 1988).

Certification is not to be “routinely invoked whenever a federal court is presented with an
unsettled question of state law.” Armijo, 843 F.2d at 407. The United States Supreme Court and
Tenth Circuit Court of Appeals have instructed that:
In the absence of some recognized public policy or defined principle guiding the
exercise of the jurisdiction conferred, which would in exceptional cases warrant
its non-exercise, it has from the first been deemed to be the duty of the federal
courts, if their jurisdiction is properly invoked, to decide questions of state law
whenever necessary to the rendition of a judgment.
Copier By & Through Lindsey v. Smith & Wesson Corp., 138 F.3d 833, 838 (10th Cir. 1998)
(citing Meredith v. City of Winter Haven, 320 U.S. 228, 234(1943)). Thus, it is within this
Court’s authority to decide questions of state law, and the Court does not consider the issues in
this case to rise to the level of “exceptional” issues justifying certification to the New Mexico
Supreme Court.

Accordingly, Plaintiff’s request to certify this issue to the New Mexico

Supreme Court is denied.
II.

Whether Amendment is Proper
Under Fed.R.Civ.P. 15(a)(2), the decision about whether to provide a party leave to

amend pleadings “is within the discretion of the trial court.” Minter v. Prime Equip. Co., 451
F.3d 1196, 1204 (10th Cir. 2006) (quotations and citation omitted). Although leave to amend is
generally freely granted, it will not be permitted where the proposed amendment will be futile, or

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where the request is untimely and unduly prejudicial to the opposing part. Castleglen, Inc., et al.
v. R.T.C., 984 F.2d 1571 (10th Cir. 1993); see Hom v. Squire, 81 F.3d 969, 973 (10th Cir. 1996).
Futility might warrant denial of leave to amend if the amended complaint would be subject to
dismissal. Mountain View Pharmacy v. Abbott Lab., 630 F.2d 1383, 1389 (10th Cir.1980);
Steinert v. The Winn Group, Inc., 190 F.R.D. 680, 682 (D.Kan.,2000).
As mentioned above, Plaintiff’s request to amend the complaint is dependent on the
Court’s modification of its prior rulings regarding Plaintiff’s state law claims under the Tort
Claims Act. This is not a proper foundation for a motion to amend. See Torre v. Federated
Mutual Ins. Co., 862 F.Supp. 299, 300-01 (D.Kan. 1994) (citation omitted), aff’d 124 F.3d 218
(10th Cir. 1997) (A motion to alter or amend may not be used as a vehicle for the losing party to
rehash arguments previously considered and rejected by the district court.).

In the foregoing

discussion, the Court concluded that Plaintiff has not presented any reason to modify its previous
rulings regarding Plaintiff’s state law claims. Adding the word “intentional” to the allegations in
the complaint to describe Mawhorter’s driving does not change the required elements for assault,
battery or false imprisonment with regard to Mawhorter’s conduct toward Ms. Woods, nor does
it persuade the Court that California First Bank should apply here. Therefore, Plaintiff’s Motion
to Amend the Complaint is denied.
CONCLUSION
In sum, the Court finds and concludes that Plaintiff has not presented any legal or factual
basis to modify its previous rulings which resulted in a dismissal of Plaintiff’s state law claims
brought under the Tort Claims Act. There has been no change in the controlling law, no new
evidence that was previously unavailable, and no clear error committed by the Court.

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The Court also finds and concludes that the reasoning of the California First Bank should
not be applied or extended to the facts and issues in this case and that there is no reason to certify
this question to the state supreme court.
Finally, the Court finds and concludes that Plaintiff’s request to amend the complaint is
denied because of futility: even with the amendments, Plaintiff cannot state claims of assault,
battery or false imprisonment under the controlling law.
THEREFORE, IT IS ORDERED that Plaintiff’s Motion to Amend Complaint (Doc.
27) is hereby DENIED, and Plaintiff’s request that the Court reconsider its previous rulings in its
dismissal of Plaintiff’s state law claims (Doc. 18) is also DENIED.

________________________________
UNITED STATES DISTRICT JUDGE

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