Apodaca v. State of New Mexico Adult Probation and Parole et al

Filing 104

PROPOSED FINDINGS AND RECOMMENDED DISPOSITION by Magistrate Judge Stephan M. Vidmar to GRANT 100 Joint Motion to Approve Settlement. The parties have waived the objections period. (sg)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
VICTOR APODACA,
Plaintiff,
v.

No. 13-cv-0113 JB/SMV

STATE OF NEW MEXICO ADULT
PROBATION AND PAROLE, et al.,
Defendants.1
MAGISTRATE JUDGE’S
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
THIS MATTER is before me on the parties’ Joint Motion to Approve Settlement
[Doc. 100], filed on February 7, 2018.

The Honorable James O. Browning, United States

District Judge, has referred this case to me for analysis and a recommended disposition.
[Doc. 5]. The Court-appointed guardian ad litem, Gabrielle Valdez, submitted her report on
March 9, 2018, recommending approval of the settlement agreement. [Doc. 102]. On March 15,
2018, I held a hearing on the motion. Having considered the motion, the guardian ad litem’s
report, the representations made during the fairness hearing, the record, and the relevant law, and
being otherwise fully advised in the premises, I find the proposed settlement to be fair,
reasonable, and in Plaintiff’s best interest. I recommend that the motion be GRANTED.

1

In a Memorandum Opinion and Order dated February 13, 2014, this Court dismissed all claims against Defendants
New Mexico State Police, State of New Mexico Adult Probation and Parole, Gerry Billy, FNU Sandoval,
FNU Lucero, FNU Wagner, FNU Boone, FNU Padilla, and Curry County Detention Center. [Doc. 22] at 46. Later,
on April 6, 2015, the Court dismissed all claims against Defendants Wesley Hatley and Susan Pautler. [Doc. 65].
At this time, the only remaining Defendants are Timothy Hillis and Nancy Lueras.

Background
Plaintiff, proceeding pro se, sued various Defendants pursuant to 28 U.S.C. § 1983,
alleging claims under the Fourth, Eighth, and Fourteenth Amendments and seeking damages and
injunctive relief. [Docs. 1, 3, 9]. He alleges that officers entered the residence where he was
staying and injured him by use of excessive force. He further alleges that, once detained at the
Curry County Detention Center, he was denied necessary medical treatment. Namely, jail
officials sent him to a medical facility for examination of his injuries. A magnetic resonance
image showed a completely torn anterior cruciate ligament and a “complete tear of the medial
meniscus posterior horn.” Plaintiff was referred to an orthopedist for a surgical evaluation.
However, Plaintiff never saw an orthopedist or any other specialist, and he was never evaluated
for surgery. Instead, Plaintiff was treated with ibuprofen, an elastic knee brace, a wheelchair,
and a recommended exercise regimen. He repeatedly requested to be seen by a specialist for a
surgical evaluation. Plaintiff alleges that the denial of necessary medical care has left him
permanently disabled. See [Doc. 68] at 2–4; [Doc. 102] at 4–7.
Most of Plaintiff’s claims were dismissed; only his Eighth Amendment claims against
Defendants Hillis and Lueras survived summary judgment.2

The undersigned conducted a

settlement conference, but the parties did not reach a settlement agreement. See [Doc. 85].
Eventually, Plaintiff obtained counsel, see [Doc. 88], and the parties continued settlement

2

On February 13, 2014, Judge Browning dismissed all of Plaintiff’s claims except those arising under the
Fourth Amendment against Defendants Hatley and Pautler, and those arising under the Eighth Amendment against
Defendants Hillis and Lueras. [Doc. 22]. Subsequently, I recommended granting summary judgment to Defendants
Hatley and Pautler [Doc. 59] and denying it as to Defendants Hillis and Lueras [Doc. 68]. Judge Browning adopted
these recommendations. [Docs. 65, 73]. Therefore, Plaintiff’s only surviving claims are his Eighth Amendment
claims against Defendants Hillis and Lueras.

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negotiations. On August 4, 2017, Plaintiff, through counsel, moved for the appointment of
Ms. Valdez as guardian ad litem to represent Plaintiff’s interests. [Doc. 98]. The request was
precipitated by separate state criminal proceedings in Texas,3 where Plaintiff’s mental
competence had been placed at issue. Id. at 1. A court-ordered evaluation in those proceedings
“revealed that the Plaintiff may not be competent[] and may not have the capacity to execute
legal documents,” i.e., enter into a binding settlement agreement.4 Id. Therefore, Plaintiff
requested appointment of a guardian ad litem to represent his interests pursuant to Fed. R.
Civ. P. 17(c)(2). Defendants did not oppose the request. Id. at 2. Judge Browning granted the
motion and appointed Ms. Valdez as guardian ad litem on August 11, 2017. [Doc. 99].
Having reached a final agreement, the parties filed the instant motion for approval of the
settlement on February 7, 2018. [Doc. 100]. The parties agreed to settle the case for $15,000,
with the total amount (minus $312 in costs) going to Plaintiff.5 [Doc. 102] at 14–15. The money
will be deposited into his prisoner account. Id. at 15.
Legal Standard
The Court reviews proposed settlement agreements involving minor children and
incompetent persons to determine whether the settlement is fair and in that person’s best interest.
See Garrick v. Weaver, 888 F.2d 687, 693 (10th Cir. 1989) (Courts have a “general duty . . . to
protect the interests of [minors and incompetent persons] in cases before the court.”); Shelton v.
3

In the time since Plaintiff initiated the instant case, he was released from detention. See [Doc. 102] at 6.
Subsequently, he was arrested on separate criminal charges in Texas. See [Doc. 98]; [Doc. 102] at 6, 13–14.
4
At the March 15, 2018 fairness hearing, Plaintiff’s counsel clarified that the trial judge in Plaintiff’s criminal
proceedings ultimately rejected the incompetency defense. Plaintiff was convicted and is currently incarcerated in
Texas.
5
Plaintiff’s counsel does not request attorney’s fees. See [Doc. 102] at 14. He specified the total costs ($312) at the
fairness hearing.

3

Sloan, 1999-NMCA-048, ¶ 41, 127 N.M. 92 (citing NMSA 1978, § 38-4-16) (noting that
New Mexico law “requir[es] judicial approval of settlements on behalf of ‘incapacitated
persons’”); Garcia v. Middle Rio Grande Conservancy Dist., 1983-NMCA-047, ¶ 28, 99 N.M.
802, overruled on other grounds by Montoya v. AKAL Sec., Inc., 1992-NMSC-056, 114 N.M.
354 (“The general rule is that a next friend or guardian ad litem acting for a minor may negotiate
a settlement, but such compromise is not binding on the [minor] in the absence of judicial
approval.”).
In determining whether the proposed settlement is fair, reasonable, and in the minor or
incompetent person’s best interest, the Court considers the following factors:
(1) whether the proposed settlement was fairly and honestly
negotiated;
(2) whether serious questions of law and fact exist, placing the
ultimate outcome of the litigation in doubt;
(3) whether the value of an immediate recovery outweighs the
mere possibility of future relief after protracted and expensive
litigation; and
(4) the judgment of the parties that the settlement is fair and
reasonable.
Jones v. Nuclear Pharmacy, Inc., 741 F.2d 322, 324 (10th Cir. 1984) (discussing the factors for
determining whether a class action settlement is “fair, reasonable[,] and adequate”).
Analysis
I have reviewed the record, including the report and recommendations of the guardian ad
litem. I heard from Plaintiff’s counsel and the guardian ad litem at the March 15, 2018 fairness

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hearing. On consideration of the foregoing, and as stated on the record at the March 15, 2018
fairness hearing, I make the following findings:
(1) the proposed settlement was fairly and honestly negotiated;
(2) serious questions of law and fact exist, placing the ultimate
outcome of the litigation in doubt;
(3) the value of an immediate recovery outweighs the mere
possibility of future relief after protracted and expensive litigation;
and
(4) the parties believe the settlement is fair and reasonable.
Accordingly, I agree with the guardian ad litem’s assessment that the settlement of Plaintiff’s
claims is fair, reasonable, and in his best interest. I recommend that the settlement be approved.6
At the March 15, 2018 hearing, the parties waived the 14-day objections period set forth
in 28 U.S.C. § 636(b)(1). By March 26, 2018, counsel must submit a proposed Order Granting
Joint Motion to Approve Settlement and Order of Dismissal with Prejudice. Counsel shall
submit the proposed order(s) in a format compatible with Microsoft Word to Judge Browning at
[e-mail].

6

The Court has never explicitly determined whether Plaintiff is in fact incompetent, such that judicial approval of
the settlement is necessarily required. And I make no such determination herein. As described supra, the issue
arose because Plaintiff’s competency was called into question in separate state criminal proceedings in Texas, and
counsel expressed concern that Plaintiff may not be competent to enter a binding settlement agreement in this case.
The parties requested that the Court appoint a guardian ad litem, and the Court did so. Resolution of the question of
Plaintiff’s competency is not necessary here, as I find that, in any event, the settlement agreement is fair, reasonable,
and in Plaintiff’s best interest.

5

Conclusion
IT IS THEREFORE RECOMMENDED that the parties’ Joint Motion to Approve
Settlement [Doc. 100] be GRANTED and the settlement be APPROVED.

____________________________
STEPHAN M. VIDMAR
United States Magistrate Judge

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