Garcia-Esparza v. City of Aztec et al

Filing 36

MEMORANDUM OPINION AND ORDER by District Judge Martha Vazquez re 4 Complaint. IT IS ORDERED that pursuant to 28 U.S.C. 1915(a), Count 1 (illegal search) is DISMISSED with prejudice; and Count 2 (excessive force) and Count 3 (deliberate indifference) are DISMISSED WITHOUT PREJUDICE. IT IS FURTHER ORDERED that Plaintiff may file an amended complaint, which amends Counts 2 and 3, within seventy-five (75) days of service of this order. (gr)

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

ANGEL GARCIA-ESPARZA,
Plaintiff,
vs.

No. 18-cv-078 MV/SMV

CITY OF AZTEC, et al,
Defendants.

MEMORANDUM OPINION AND ORDER
Before the Court is Plaintiff’s Pro Se Civil Rights Complaint (Doc. 4). Plaintiff is
incarcerated and appears pro se. He contends that police officers violated the Fourth Amendment
during his arrest and that prison officials were deliberately indifferent to his medical needs. Having
reviewed the matter under 28 U.S.C. § 1915, the Court will dismiss the Complaint but grant leave
to amend.
I. Background1
Plaintiff’s claims stem from his arrest on December 23, 2017. (Doc. 4 at 2). He was at the
residence of his romantic partner, Brittany Cotter, when Officers Atencio, Anderson, and Gonzales
arrived. Id. The officers asked to search the residence, but Brittany Cotter refused. Id. Eventually
her estranged husband (Tyler Cotter) arrived, and the officers followed Tyler into the house. Id.
At the time, Plaintiff was locked in the bathroom. Id. Tyler Cotter began yelling and hitting the
bathroom door. Id. Either he or the officers broke down the door, and one officer applied a taser

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The background facts are taken from Plaintiff’s complaint (Doc. 4). For the limited purpose of this ruling,
the Court assumes Plaintiff’s allegations are true.

to Plaintiff’s neck. Id. at 3. Officer Atencio then held a taser to Plaintiff’s leg, which caused him
to see flashing lights. Id. at 3, 6. The officers arrested Plaintiff and charged him with, inter alia,
aggravated battery on a peace officer. Id. at 6. The officers allege Plaintiff bit their hands during
the arrest, but Plaintiff contends that any biting was inadvertent. Id.
Following his arrest, Plaintiff was transferred to San Juan County Detention Center
(SJCDC). (Doc. 4 at 3). Nurses Desirae and Teresa removed the taser darts from his neck. Id. at
4. Plaintiff asked to see a doctor, as his hands were purple and he could hardly stay awake, but the
medical staff stated that his vital signs were fine. Id. SJCDC placed Plaintiff on suicide watch for
the first few nights in jail. Id. He initially had fluid coming out of his left ear and forehead, and it
took him about a week to return to normal. Id.
Plaintiff appears to allege that his bond was excessive and that he should not have been
arrested for an immigration offense. (Doc. 4 at 5). He also alleges that he never intended to hurt
any police officers or resist arrest. Id. at 5. Construed liberally, the Complaint raises constitutional
claims for: (Count 1) illegal search and seizure; (Count 2) excessive force; and (Count 3) deliberate
indifference to medical needs. Id. at 8. Plaintiff seeks $5 million in damages from Officers
Atencio, Anderson, and Gonzales, Nurses Desirae and Teresa, and various supervisors and wardens
at SJCDC.
II. Standard of Review
The Court has discretion to dismiss an in forma pauperis complaint sua sponte under §
1915(e)(2) “at any time if … the action … is frivolous or malicious; [or] fails to state a claim on
which relief may be granted.” 28 U.S.C. § 1915(e)(2). The Court may also dismiss a complaint
sua sponte under Rule 12(b)(6) of the Federal Rules of Civil Procedure if “it is patently obvious

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that the plaintiff could not prevail on the facts alleged, and allowing [plaintiff] an opportunity to
amend [the] complaint would be futile.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)
(quotations omitted). The plaintiff must frame a complaint that contains “sufficient factual matter,
accepted as true, to ‘state a claim for relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim
has facial plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Id.
Because Plaintiff is pro se, his “pleadings are to be construed liberally and held to a less
stringent standard than formal pleadings drafted by lawyers.” Hall, 935 F.2d at 1110. While pro
se pleadings are judged by the same legal standards that apply to represented litigants, the Court
can overlook the “failure to cite proper legal authority, … confusion of various legal theories, …
poor syntax and sentence construction, or … unfamiliarity with pleading requirements.” Id.
Further, pro se plaintiffs should ordinarily be given the opportunity to cure defects in the original
complaint, unless amendment would be futile. Id. at 1109.
III. Discussion
Plaintiff’s constitutional claims are asserted pursuant to 42 U.S.C. § 1983, the “remedial
vehicle for raising claims based on the violation of [federal] constitutional rights.” Brown v.
Buhman, 822 F.3d 1151, 1161 n.9 (10th Cir. 2016). “A cause of action under section 1983 requires
the deprivation of a civil right by a ‘person’ acting under color of state law.” McLaughlin v. Bd.
of Trustees, 215 F.3d 1168, 1172 (10th Cir. 2000). The plaintiff must allege that each government
official, through the official’s own individual actions, has personally violated the Constitution. See
Trask v. Franco, 446 F.3d 1036, 1046 (10th Cir. 1998). There must also be a connection between

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the official conduct and the constitutional violation. Fogarty v. Gallegos, 523 F.3d 1147, 1162
(10th Cir. 2008); Trask, 446 F.3d at 1046.
The Complaint primarily focuses on the officers’ illegal entry into Brittany Cotter’s
residence (Count 1) and the manner of arrest (Count 2). First, the illegal search argument set forth
in Count 1 fails as a matter of law. “Fourth Amendment rights are personal, and, therefore, a
defendant cannot claim a violation of his Fourth Amendment rights based only on the introduction
of evidence procured through an illegal search and seizure of a third person’s property or premises.”
United States v. Mosley, 743 F.3d 1317, 1322 (10th Cir. 2014) (quoting United States v. DeLuca,
269 F.3d 1128, 1131 (10th Cir. 2001)). Moreover, even if Plaintiff had standing to raise an illegal
search argument, a § 1983 action cannot be used to suppress evidence in a state criminal
proceeding, overturn any conviction, or prevent a party’s removal from the United States. See Heck
v. Humphrey, 512 U.S. 477 (1994) (federal courts must dismiss any § 1983 damages claim that, if
resolved in the plaintiff’s favor, would necessarily imply the invalidity of his state conviction); J.B.
ex rel. Hart v. Valdez, 186 F.3d 1280, 1291 (10th Cir.1999) (federal courts generally cannot
interfere with an ongoing state criminal proceeding). Consequently, Count 1 must be dismissed
with prejudice.
By contrast, Plaintiff’s excessive force claim set forth in Count 2 is potentially cognizable
under § 1983, as the claim focuses on the manner of arrest, rather than on the propriety of the state
criminal proceeding. “[T]he excessive force inquiry evaluates the force used in a given arrest or
detention against the force reasonably necessary to effect a lawful arrest or detention under the
circumstances of the case.” Cortez v. McCauley, 478 F.3d 1108, 1126 (10th Cir. 2007). Excessive
force cases involving the use of a taser are highly fact-specific. The Tenth Circuit has held that it

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was not excessive for officers to use an electrical stun-gun when a man was wrestling from the
ground and biting officers. See Hinton v. City of Elwood, 997 F.2d 774, 776-777 (10th Cir.1993).
However, the Circuit has found excessive force in cases where police used a taser immediately
when the plaintiff opened the door, see Cavanaugh v. Woods Cross City, 625 F.3d 625, 665 (10th
Cir. 2010), and where police had no “reason to believe that a lesser amount of force – or a verbal
command – could not exact compliance.” Casey v. City of Fed. Heights, 509 F.3d 1278, 1286 (10th
Cir. 2007).
Based on the instant Complaint, it is difficult to determine whether any defendant applied
excessive force. It is unclear what role, if any, Brittany Cotter’s estranged husband Tyler played
in the altercation, what position Plaintiff assumed when police and/or Tyler opened the bathroom
door, and whether Plaintiff wrestled with police in addition to biting them. More importantly, it is
not entirely clear which specific defendant(s) used the taser on Plaintiff. The Complaint names
three officers, but the narrative portion states: “[t]he officer fired the first taser.” (Doc. 4 at 3). For
these reasons, the Court will dismiss Count 2 but grant leave to file a more detailed complaint, as
set forth below.
In Count 3, Plaintiff alleges that prison officials were deliberately indifferent to his
medical needs when he arrived at SCJDC. In Estelle v. Gamble, the Supreme Court held that “[a]
prison official’s deliberate indifference to an inmate’s serious medical needs is a violation of the
Eighth Amendment’s prohibition against cruel and unusual punishment.” Mata v. Saiz, 427 F.3d
745, 751 (10th Cir. 2005) (citing Estelle v. Gamble, 429 U.S. 97, 104 (1976) (“[D]eliberate
indifference to serious medical needs of prisoners constitutes the unnecessary and wanton
infliction of pain proscribed by the Eighth Amendment.”)). Such deliberate indifference may be

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“manifested by prison doctors in their response to the prisoner’s needs or by prison guards in
intentionally denying or delaying access to medical care or intentionally interfering with the
treatment once prescribed.” Estelle, 429 U.S. at 104-05.
Under the Estelle deliberate indifference standard, the test for constitutional liability of
prison officials “involves both an objective and a subjective component.” Mata, 427 F.3d at 751
(quoting Sealock v. Colorado, 218 F.3d 1205, 1209 (10th Cir. 2000)). First, Plaintiff must show
“objective evidence that the deprivation at issue was in fact ‘sufficiently serious.’” Id. “A
medical need is sufficiently serious if it is one that has been diagnosed by a physician as
mandating treatment or one that is so obvious that even a lay person would easily recognize the
necessity for a doctor’s attention.” Sealock, 218 F.3d at 1209 (citation omitted).
If a plaintiff’s claim is based on a delay in medical care, the plaintiff also must show that
“the delay resulted in substantial harm.” Mata, 427 F.3d at 751 (citation omitted). “The
substantial harm requirement may be satisfied by lifelong handicap, permanent loss, or
considerable pain.” Id. (citation omitted). In Mata, the Tenth Circuit clarified that, in
determining whether the plaintiff has suffered substantial harm as a result of a delay in medical
care, there are two distinct types of “substantial harm” that the Court may consider. 427 F.3d at
753. First, the Court may consider “some intermediate harm,” such as the plaintiff’s experience
of prolonged or severe pain or suffering during the period when medical attention was withheld
or delayed. Id. Second, the Court may consider “the last untoward event to befall” the plaintiff,
such as the subsequent or long-term deleterious effect on the plaintiff’s health caused by the
prison’s dilatory response to his medical needs. Id. Regardless of which type of harm the
plaintiff seeks to establish, “the focus of the objective prong should be solely on whether the

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harm is sufficiently serious.” Id.
Once a plaintiff has met the objective prong of the deliberate indifference test by
demonstrating that his or her “medical need was objectively sufficiently serious and that
defendants’ delay in meeting that need caused [him] or her substantial harm,” the plaintiff next
must meet the subjective prong of the deliberate indifference test. Id. at 752. A plaintiff “may
satisfy the subjective component by showing that defendants’ delay in providing medical
treatment caused either unnecessary pain or a worsening of her condition.” Id. at 756. “Even a
brief delay may be unconstitutional.” Id.
“The subjective prong of the deliberate indifference test requires the plaintiff to present
evidence of the prison official’s culpable state of mind.” Id. at 751. Specifically, the subjective
component is met if the prison official “knows of and disregards an excessive risk to inmate
health or safety; the official must be both aware of facts from which the inference could be drawn
that a substantial risk of serious harm exists, and he must also draw the inference.” Farmer v.
Brennan, 511 U.S. 825, 837 (1994). Notably, “[d]eliberate indifference does not require a
finding of express intent to harm.” Mitchell v. Maynard, 80 F.3d 1433, 1442 (10th Cir. 1996).
Accordingly, a plaintiff “need not show that a prison official acted or failed to act believing that
harm actually would befall an inmate; it is enough that the official acted or failed to act despite
his knowledge of a substantial risk of serious harm.” Farmer, 511 U.S. at 842. In other words,
“[t]o show the requisite deliberate indifference,” a plaintiff “must establish that defendant(s)
knew he faced a substantial risk of harm and disregarded that risk, by failing to take reasonable
measures to abate it.” Kikumura v. Osagie, 461 F.3d 1269, 1293 (10th Cir.2006) (quoting
Farmer, 511 U.S. at 847).

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Assuming without deciding that Plaintiff’s allegations meet the objective prong of the
deliberate indifference test by sufficiently stating that his medical need was objectively sufficiently
serious and that defendants’ delay in meeting that need caused him substantial harm, there is no
indication from the Complaint that any defendant was subjectively indifferent to Plaintiff’s needs.
The Complaint alleges that fluid drained from Plaintiff’s ear and forehead following the arrest and
that he felt disoriented for about a week. However, Plaintiff has not demonstrated that, despite
Plaintiff’s stable vital signs, either Nurse Desirae or Nurse Teresa was aware of any serious medical
complications, or that any prison official knew about Plaintiff’s lingering symptoms.
In addition, most of the named SCJDC defendants are entities or supervisors. County
defendants, private corporations acting under the color of state law, and prison supervisors cannot
be held liable solely because they employ or oversee a tortfeasor. Such defendants can only be
liable if they promulgate an official policy that leads to the constitutional violation. See Starrett v.
Wadley, 876 F.2d 808, 818 (10th Cir. 1989) (holding that counties “are subject to liability [under §
1983] only for their official policies or customs”); Hinton, 997 F.2d at 782 (A private corporation
performing a government function can be held liable under § 1983 only where a plaintiff shows “1)
the existence of a...policy or custom, and 2) that there is a direct causal link between the policy or
custom and the injury alleged.”); Dodd v. Richardson, 614 F.3d 1185, 1195 (10th Cir. 2010)
(Wardens and other supervisors can face § 1983 liability based on the “promulgation, creation,
implementation, or utilization of a policy that caused a deprivation of plaintiff's rights”). Plaintiff
has not alleged that San Juan County or the various wardens acted pursuant to an official policy or
custom. For these reasons, the Court will dismiss Count 3 but grant leave to file a more detailed
complaint, as set forth below.

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Based on the foregoing, the Court concludes that Plaintiff’s Complaint fails to state a
cognizable constitutional claim. The Tenth Circuit counsels that “if it is at all possible that the
party against whom the dismissal is directed can correct the defect in the pleading or state a claim
for relief, the court should dismiss with leave to amend.” Reynoldson v. Shillinger, 907 F.2d 124,
126 (10th Cir. 1990). Plaintiff cannot correct the defects in Count 1, as he lacks standing to raise
an illegal search argument and this action cannot correct errors in his state criminal proceeding.
However, the Court will allow Plaintiff to file an amended complaint, which adds more detail to
Counts 2 and 3, within seventy-five (75) days of service of this Order. As to Count 2, Plaintiff
should add detail regarding what role, if any, Brittany Cotter’s estranged husband Tyler played in
the altercation, what position Plaintiff assumed when police and/or Tyler opened the bathroom
door, and whether Plaintiff wrestled with police in addition to biting them. Also, Plaintiff should
clarify which specific defendant(s) used the taser on Plaintiff, or otherwise used excessive force,
detailing what that force entailed. As to Count 3, Plaintiff should add detail demonstrating which
specific defendant(s) knew of, but disregarded, any serious medical complications or lingering
symptoms that he was experiencing, by failing to take reasonable measures to address them.
Finally, to the extent that Plaintiff seeks to pursue his claims against San Juan County or any
individual warden, he must include allegations that, if proven, would establish that those defendants
each acted pursuant to an official policy or custom.
If Plaintiff declines to timely file an amended complaint or files an amended complaint that
similarly fails to state a claim, the Court may dismiss the case without further notice.
IT IS ORDERED that pursuant to 28 U.S.C. § 1915(a), Count 1 (illegal search) is
DISMISSED with prejudice; and Count 2 (excessive force) and Count 3 (deliberate indifference)

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are DISMISSED WITHOUT PREJUDICE.
IT IS FURTHER ORDERED that Plaintiff may file an amended complaint, which
amends Counts 2 and 3, within seventy-five (75) days of service of this order.

_________________________________
HONORABLE MARTHA VÁZQUEZ
UNITED STATES DISTRICT JUDGE

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