Seidel et al v. Crayton et al

Filing 68

MEMORANDUM OPINION AND ORDER by District Judge Martha Vazquez GRANTING IN PART 26 First MOTION for Summary Judgment and for Qualified Immunity. IT IS THEREFORE ORDERED that Defendants' First Motion for Summary Judgment, Doc. 26 , filed April 17, 2016, is GRANTED IN PART. The Court declines to exercise supplement jurisdiction over Plaintiffs' state law claims. (gr)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
WALTER RAY SEIDEL, Jr., MD and
BRENDA LE SEIDEL,
Plaintiffs,
vs.

No. CIV 15-00925-MV/CG

CORY CRAYTON, PETE KASSETAS, and
JOHN DOES 1-40,
Defendants.
MEMORANDUM OPINION AND ORDER GRANTING IN PART
DEFENDANTS’ FIRST MOTION FOR SUMMARY JUDGMENT
THIS MATTER comes before the Court on Defendants Cory Crayton, Pete Kassetas,
and John Does 1-40’s First Motion for Summary Judgment, Doc. 26, filed April 13, 2016. The
Court, having considered the Motion, briefs, relevant law and being otherwise fully informed,
will GRANT IN PART Defendants’ Motion.
BACKGROUND
On September 10, 2013, Officer Cory Crayton of the New Mexico State Police
(“NMSP”), in his marked patrol car, using his rear-facing radar, “clocked” Plaintiffs’ SUV at 69
miles per hour in an area with a 55 miles per hour speed limit. Affidavit of Cory Crayton, Doc.
26-1 at ¶ 3. At approximately 7:25 a.m., Officer Crayton initiated a traffic stop of the SUV. Id. at
¶¶ 4-6; COBAN Recording of Traffic Stop, Doc. 28 at 1:02-1:35.
Officer Crayton approached the passenger side of the vehicle, tapped on the window, and
waited. Id.; Doc. 28 at 1:43-1:51. Officer Crayton opened the passenger door and introduced
himself. Doc. 26-1 at ¶ 11; Doc. 28 at 1:50-1:54. According to Plaintiffs, as Officer Crayton
opened the passenger’s door, Mrs. Seidel was holding the door and trying to roll down the
window. Doc. 32-1 at ¶ 5; Affidavit of Brenda Lee Seidel, Doc. 32-2 at ¶ 3. Mrs. Seidel claims

she was “partially pulled” with the door and said, “don’t open the door,” after which Officer
Crayton “struck [her] with his left hand.” Doc. 32-1 at ¶ 6; Doc. 32-2 at ¶¶ 4, 5.
Defendants instead assert that the COBAN1 recording of the incident “shows that Officer
Crayton had both of his arms outside of the plaintiffs’ vehicle when he was at the passenger-side
door: Crayton used his right hand to try to open the door, while his left hand was on the vehicle
itself.” Doc. 26 at ¶ 6. Defendants claim that Officer Crayton’s arms remained outside the
vehicle for the duration of the period the passenger door was open. Id. at .8.
The COBAN recording of the incident shows that Officer Crayton approached the SUV,
tapped on the window, waited for several seconds, and then placed his left hand or arm on the
vehicle and used his right to open the passenger side door. Doc. 28 at 1:35-1:51. Before and
while opening the door several buttons along Officer Crayton’s left sleeve were visible to the
camera; however, the exact placement of his left hand and arm was obscured by the SUV. Id.
Mrs. Seidel protested, and Officer Crayton’s arm moved such that the previously visible buttons
became obscured by the vehicle, suggesting his left arm may have moved toward Mrs. Seidel. Id.
at 1:51-1:54.
During the brief moment that the door was open, Officer Crayton looked across the front
seat and recognized the driver as Dr. Seidel. Doc. 26-1 at ¶ 12. Officer Crayton stated, “[i]n that
split-second, Mr. Seidel looked right at me and in one sudden motion reached over and down
towards his right hip as he quickly exited the vehicle. I could see a pistol in a holster on Mr.
Seidel’s right side. Given Mr. Seidel’s sudden motion towards his gun and the manner in which
he got out of the SUV to confront me, I believed Mr. Seidel intended to use his weapon and
perceived him as a threat.” Doc. 26-1 at ¶ 13. Dr. Seidel exited his vehicle. Doc. 32-1 at ¶ 12.
Officer Crayton “fled from [Seidel’s] vehicle, pulled his gun out, pointed it at [Dr. Seidel], and

1

“COBAN” refers to the brand of camera placed on Officer Crayton’s dashboard which captured the incident.

2

made statements that led [Dr. Seidel] to believe that [Officer Crayton] was accusing [Dr. Seidel]
of holding a firearm in [his] hand.” Id. at ¶ 7.
After Dr. Seidel exited his car, Officer Crayton ordered him to put his gun down; Seidel
pointed his finger at Officer Crayton. Doc. 26-1 at ¶ 17; Doc. 28 at 1:54-1:57. Officer Crayton
again ordered Dr. Seidel to put his gun down and told Dr. Seidel that he was under arrest;
however, Dr. Seidel did not comply and reentered his vehicle. Doc. 28 at 1:57-2:02. Officer
Crayton called for backup and ordered Dr. Seidel to get out of the vehicle with his hands in the
air; however, Dr. Seidel sat inside his vehicle with his left leg out and left foot on the ground.
Doc. 28 at 1:57-2:13. Over the next few minutes, while Dr. Seidel sat inside of his vehicle,
Officer Crayton repeatedly told Dr. Seidel to exit the vehicle, to put his gun down, and that he
was under arrest. Doc. 28 at 2:13-4:20; Walter Seidel’s Responses to Defendant Pete Kassetas’
First Set of Requests for Admissions, Doc. 26-2 at Request No. 7, 11. Dr. Seidel did not comply.
Doc. 28 at 4:20-5:52. Officer Crayton again ordered Dr. Seidel to exit his vehicle without his gun
and get on the ground. Id. at 5:52-6:01. Dr. Seidel did not comply; instead, he said something to
Officer Crayton and pointed at him. Id. at 5:56-6:02. For several more minutes, Dr. Seidel sat in
his vehicle and did not obey Officer Crayton’s prior orders. Id. at 6:03-10:01. While sitting in his
car, Dr. Seidel called 911 for help in dealing with Officer Crayton. Amended Complaint for
Violation of Civil Rights, Doc. 60 at ¶ 11.
Additional police units began to arrive at approximately 7:34 a.m. Doc. 28 at 9:55-11:25;
Affidavit of Steve Minner, Doc. 26-4 at ¶¶ 3-7. Dr. Seidel continued to disobey Officer Crayton’s
orders to get out of the car. Doc. 28 at 10:01-10:06. After other officers arrived, Dr. Seidel exited
the vehicle, put his hands up, and addressed the officers while remaining close to his car. Id. at
11:40-12:01. Officer Crayton repeatedly ordered Dr. Seidel to get on the ground but Dr. Seidel

3

refused to comply. Id. After several seconds, Dr. Seidel lowered his hands, pointed at something
to the right of the camera, and reentered his vehicle. Id. at 11:57-12:01.
Ruidoso Police Officer Dale Harrison then approached Dr. Seidel’s vehicle. Doc. 26-1 at
¶¶ 21-22; Doc. 28 at 12:26-12:30; Doc. 49-1 at ¶ 11; Doc. 26-4 at ¶ 10. The two spoke for
several minutes. Doc. 28 at 12:30-16:43. Dr. Seidel then got out of his vehicle, shut the driver’s
side door, and moved with Officer Harrison in the direction of the camera and the other officers.
Id. at 16:43-16:57. Officer Crayton then ordered Dr. Seidel to put his hands on the police car. Id.
at 16:57-17:00. Dr. Seidel said “No,” and crossed his arms across his chest. Id.; Doc. 26-1 at ¶
24; Doc. 26-2 at Request No. 1. Officer Crayton then “attempted to arrest and handcuff Walter
Seidel—Seidel resisted by pulling away from Crayton and folding his arms.”2 Doc. 26 at ¶ 20;
Doc. 26-1 at ¶ 24; Doc. 28 at 17:00-17:02.
“Walter Seidel grabbed onto the edge of the patrol car’s hood and continued to resist as
Officer Crayton tried to handcuff him. Crayton had to pry Seidel’s fingers off the hood, and
another officer helped Crayton secure Seidel in handcuffs. Crayton can be heard ordering Seidel
to ‘Give me your left hand.’ Seidel did not voluntarily submit to being handcuffed.”3 Doc. 26 at ¶
21 (citations to the record omitted); see Doc. 26-1 at ¶ 25; Doc. 26-2 at Request No. 5; Doc. 26-4
at ¶ 12; Doc. 28 at 17:06-17:08. Dr. Seidel was eventually handcuffed and arrested. Doc. 28 at
17:25-17:35. Mrs. Seidel was allowed to leave with the SUV. Doc. 26-1 at ¶ 26.
After the arrest, Dr. Seidel was booked into the Lincoln County Detention Facility for
Speeding, Assault on a Peace Officer, Resisting an Officer, and Unlawful Use of 911. Booking

2

Plaintiffs admit to these facts in their Response to Defendants’ First Motion for Summary Judgment. Doc. 32 at ¶
20.
3

 Plaintiffs admit to these facts in their Response to Defendants’ First Motion for Summary Judgment. Doc. 32 at ¶
21.

4

Report, Doc. 26-5 at 1. Officer Crayton filed a criminal complaint against Dr. Seidel for these
offenses on September 20, 2013. Criminal Complaint, Doc. 26-6 at 1. Officer Crayton prepared a
Probable Cause Statement and discussed the criminal charges with Assistant District Attorney
(“ADA”) Elizabeth Williams from the Twelfth Judicial District Attorney’s Office, who approved
the charges.4 Doc. 26-1 at ¶ 27; see also Doc. 26-6 at 2. On May 11, 2015 the District Attorney’s
Office filed an Amended Complaint against Dr. Seidel dropping the Assault and Unlawful Use
of 911 Charges but retaining the Speeding and the Resisting, Evading or Obstructing an Officer
Charges. Doc. 26-7 at 1-2.
On August 19, 2015, Dr. Seidel entered into a Plea and Disposition Agreement with the
State of New Mexico, wherein he pleaded no contest to the Speeding charge and the remaining
charges were dismissed. Plea and Disposition Agreement, Doc. 26-8 at 1-2. On September 16,
2015, the Twelfth Judicial District Court for the State of New Mexico adjudicated Dr. Seidel
guilty of Speeding. Judgment and Sentence, Doc. 26-9 at 1-3.
Neither Dr. Seidel nor Mrs. Seidel sought or received any medical treatment as a result of
the incident on September 10, 2013. Walter Seidel’s Responses to Cory Crayton’s First Set of
Requests for Admissions, Doc. 26-10 at Request No. 1; Brenda Seidel’s Responses to Cory
Crayton’s First Set of Requests for Admissions, Doc. 26-11 at Request No. 1. Dr. Seidel did not
seek any psychological or mental health treatment as a result of the incident and does not
contend that he suffered physical, bodily, or psychological injury, or any other medical damages
in this lawsuit as a result of the incident. Doc. 26-10 at Request No. 2; Walter Seidel’s

4

Plaintiffs argue that “any statements made by Ms. Williams are hearsay and inadmissible.” Doc. 32 at ¶ 23.
However, ADA Williams’ approval of the charges was a non-hearsay verbal act because the rule against hearsay
does not apply to “verbal acts in which the statement itself affects the legal rights of the parties or is a circumstance
bearing on conduct affecting their rights.” Fed. R. Evid. 801 Advisory Committee’s note to 1972 proposed rule,
subdivision (c) (internal quotation marks omitted); see id. (“If the significance of an offered statement lies solely in
the fact that it was made, no issue is raised as to the truth of anything asserted, and the statement is not hearsay.”).

5

Supplemental Responses to Cory Crayton’s First Set of Interrogatories, Doc. 26-12 at
Interrogatory No. 22.
Plaintiffs bring suit with six counts against Defendants. Count I is a claim of Battery
asserted against Officer Crayton under the New Mexico Tort Claims Act. Amended Complaint
for Violation of Civil Rights, Doc. 60 at 5-6. Count II is a claim of Malicious Prosecution
asserted by Dr. Seidel against Officer Crayton under the New Mexico Tort Claims Act. Id. at 6.
Count III is an excessive force claim under Article II, Section 10 of the Constitution of the State
of New Mexico asserted against Officer Crayton under the New Mexico Tort Claims Act. Id. at
6-7. Count IV is a claim of Negligence asserted against Chief Kassetas and Does for failing to
supervise, train, and control Officer Crayton. Id. at 7. Count V is a claim of a violation of the
Fourth Amendment to the United States Constitution right to be free from excessive force and to
be free from arrest and prosecution for crimes without probable cause asserted against Officer
Crayton under 42 U.S.C. § 1983. Id. at 7-8. Count VI is a claim of Failure to Train, Supervise,
and Control asserted against Chief Kassetas and Does under 42 U.S.C. § 1983. Id. at 8-9.
DISCUSSION
Defendants seek summary judgment on the basis of qualified immunity for all claims.
The Court will grant the motion in part by granting Summary Judgment for Defendants on
Plaintiffs’ federal law claims and will decline to exercise supplemental jurisdiction over
Plaintiffs’ state law claims.
I.

Qualified Immunity
When a defendant invokes the protection of qualified immunity the plaintiff bears the

“heavy two-part burden” of establishing that “the defendant’s actions violated a [federal]
constitutional or statutory right” and that the right in question “was clearly established at the time

6

of the defendant’s unlawful conduct.” Medina v. Cram, 252 F.3d 1124, 1128 (10th Cir. 2001)
(internal quotation marks omitted). The Court may elect “which of the two prongs of the
qualified immunity analysis should be addressed first in light of the circumstances in the
particular case.” Pearson v. Callahan, 555 U.S. 223, 236 (2009). If the plaintiff meets his burden
under this framework, the Court then proceeds with its ordinary summary judgment analysis and
the burden reverts to the defendant to demonstrate that no genuine dispute of material fact exists
that would defeat its claim for qualified immunity. See, e.g., Woodward v. City of Worland, 977
F.2d 1392, 1396-97 (10th Cir. 1992) (citations omitted).
II.

Unlawful Arrest
A.

Legal Standard

The qualified immunity analysis for unlawful arrest consists of two prongs: (1) whether
the officers had probable cause to arrest the § 1983 plaintiff, and (2) if probable cause is lacking,
the court determines whether the § 1983 plaintiff’s rights were clearly established by asking
whether the officers “arguably had probable cause.” Kaufman v. Higgs, 697 F.3d. 1297, 1300
(10th Cir. 2012). Where arrest itself is undisputed and there was no warrant, a violation of the
Fourth Amendment occurs if the arrest is not supported by probable cause. See Fogarty v.
Gallegos, 523 F.3d 1147, 1156 (10th Cir. 2008).
The first prong, whether the officer had probable cause, is assessed “under an objective
standard of reasonableness.” Quinn v. Young, 780 F.3d 998, 1006 (10th Cir. 2015). The Court
asks “whether ‘the facts and circumstances within the officers’ knowledge, and of which they
have reasonably trustworthy information, are sufficient in themselves to warrant a man of
reasonable caution in the belief that an offense has been or is being committed.’” Fogarty, 523
F.3d at 1156 (quoting United States v. Edwards, 242 F.3d 928, 933. (10th Cir. 2001)). The

7

“officer’s subjective reason for arrest is irrelevant, and it does not matter whether the arrestee
was later charged with a crime.” Id. Under Tenth Circuit precedent, “[p]robable cause exists if
facts and circumstances within the arresting officer's knowledge and of which he or she has
reasonably trustworthy information are sufficient to lead a prudent person to believe that the
arrestee has committed or is committing an offense.” Romero v. Fay, 45 F.3d 1472, 1476 (10th
Cir. 1995).
Under the second prong of qualified immunity, a § 1983 plaintiff bears the burden of
showing the law was clearly established by showing that “it would have been clear to a
reasonable officer that probable cause was lacking under the circumstances.” Kaufman, 697 F.3d
at 1300 (quoting Koch v. City of Del City, 690 F.3d 1228, 1241 (10th Cir. 2011)). If there was
“arguable probable cause” for the arrest, the defendant is entitled to qualified immunity. Id.
(citing Cortez v. McCauly, 478 F.3d 1108, 1121 (10th Cir. 2007) (en banc)).
B.

Probable Cause to Arrest Dr. Seidel

Officer Crayton arrested Dr. Seidel for (1) Speeding, (2) Assault on a Peace Officer, (3)
Resisting an Officer, and (4) Unlawful Use of 911. Doc. 32 at 9.
Officer Crayton had probable cause to arrest Dr. Seidel for speeding. The parties do not
dispute that Officer Crayton observed Dr. Seidel violating the law by speeding. Doc. 26 at ¶ 1;
Doc. 32 at ¶ 1. However, Plaintiffs argue that under New Mexico law, “speeding is not an
arrestable offense.” Doc. 32 at 9. They cite the following language from the New Mexico
Statutes Annotated 66-8-123:
whenever a person is arrested for any violation of the Motor Vehicle Code or
other law relating to motor vehicles punishable as a misdemeanor, the arresting
officer, using the uniform traffic citation in paper or electronic form, shall
complete the information section and prepare a notice to appear in court,
specifying the time and place to appear, have the arrested person sign the

8

agreement to appear as specified, give a copy of the citation to the arrested person
and release the person from custody.
N.M. Stat. Ann. § 66-8-123.
Officer Crayton did not violate the Constitution, specifically the Fourth Amendment, by
arresting Dr. Seidel on speeding charges. See Atwater v. City of Lago Vista, 532 U.S. 318, 354
(2001) (“If an officer has probable cause to believe that an individual has committed even a very
minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest
the offender.”); Virginia v. Moore, 553 U.S. 164, 167, 176 (2008) (finding no violation of the
Fourth Amendment where Virginia officers arrested a man for driving on a suspended license, an
offense which under state law should ordinarily lead to a summons and not an arrest); Perea v.
Baca, 817 F.3d 1198, 1203 (10th Cir. 2016) (noting that where “officers saw [the plaintiff]
violate Albuquerque traffic ordinances by pedaling through a stop sign” officers had authority to
effect an arrest).
Plaintiffs also argue that Officer Crayton did not have probable cause to arrest Dr. Seidel
for resisting arrest. Under subsection D of New Mexico Statutes Annotated § 30-22-1,
“[r]esisting, evading or obstructing an officer consists of … resisting or abusing any judge,
magistrate or peace officer in the lawful discharge of his duties.”
Plaintiffs assert that Officer Crayton was no longer in the “lawful discharge of his duties”
after striking Mrs. Seidel. Doc. 32 at 9. Plaintiffs argue that because Officer Crayton “knew he
was no longer in the lawful discharge of his duties” he could not have believed that Dr. Seidel
was committing the offense of Resisting, Evading or Obstructing an Officer under § 30-22-1 and
therefore did not have probable cause to arrest Dr. Seidel for the resisting crime. Id. at 8.
Plaintiffs do not cite to any authority to support their claim that Officer Crayton was no
longer in the lawful discharge of his duties. The New Mexico Supreme Court defined the
9

element of lawful discharge of duties by stating, “a police officer is engaged in the performance
of his official duties if, ‘(h)e is simply acting within the scope of what the agent is employed to
do. The test is whether the agent is acting within that compass or is engaging in a personal frolic
of his own.’” State v. Doe, 583 P.2d 464, 467 (N.M. 1978); cf. State v. Frazier. 537 P.2d 711,
713 (Ct. App. N.M. 1975) (“The police officer was not in the lawful discharge of his duties in
stopping and restraining the defendant for identification” and lacked probable cause for an
arrest).
The Court finds that Officer Crayton never stopped acting in the lawful discharge of his
duties. Furthermore, Dr. Seidel’s resistance is clear from the COBAN recording and Plaintiffs
admit that Dr. Seidel resisted by refusing to comply, by verbally resisting, and by physically
resisting. Doc 28 at 1:57 to 4:20, 5:52 to 6:03, 11:40 to 12:00, 16:57 to 17:08; Doc. 32 at ¶¶ 14,
20, 21.
Whether Officer Crayton had probable cause to arrest Dr. Seidel for Assault on a Peace
Officer or Unlawful Use of 911 is less clear. However, for the purposes of an unlawful arrest
claim, “[t]hat an officer may not have subjectively believed probable cause existed to arrest a
suspect for a certain crime does not preclude the Government from justifying the suspect's arrest
based on any crime an officer could objectively and reasonably have believed the suspect
committed.” Culver v. Armstrong, 832 F.3d 1213, 1218 (10th Cir. 2016). Officer Crayton
objectively and reasonably believed that Dr. Seidel committed the offenses of speeding and
resisting arrest. Therefore, Officer Crayton had probable cause to arrest Dr. Seidel. The
Defendant, Officer Crayton, is entitled to qualified immunity and summary judgment shall be
granted on this claim.

10

III.

Malicious Prosecution5
A.

Legal Standard

“[T]he relevant constitutional underpinning for a claim of malicious prosecution under §
1983 must be the Fourth Amendment’s right to be free from unreasonable seizures.” Margheim
v. Buljko, 855 F.3d 1077, 1085 (10th Cir. 2017) (quoting Becker v. Kroll, 494 F.3d 904, 914
(10th Cir. 2007)). Malicious prosecution claims under § 1983 include the following elements: (1)
the defendant caused the plaintiff’s continued confinement or prosecution; (2) the original action
terminated in favor of the plaintiff; (3) no probable cause supported the original arrest, continued
confinement, or prosecution; (4) the defendant acted with malice; (5) the plaintiff sustained
damages. Wilkins v. DeReyes, 528 F.3d 790, 799 (10th Cir. 2008).
B.

Plaintiffs Cannot Establish the Favorable Termination Element.

The Tenth Circuit has stated that, “to qualify as favorable, the termination of the original
criminal proceeding ‘must in some way indicate the innocence of the accused.” Margheim, 855
F.3d at 1086 (quoting Cordova v. City of Albuquerque, 816 F.3d 645, 651 (10th Cir. 2016)). To
determine whether a dismissal indicates innocence, the Court “look[s] to the stated reasons for
the dismissal as well as to the circumstances surrounding it” to determine “whether the failure to
proceed implies a lack of reasonable grounds for the prosecution.” Wilkins, 528 F.3d at 803
(finding that dismissal of charges by a filing of nolle proseques constitutes a favorable
termination where the “dismissals were not entered due to any compromise or plea for mercy…
[r]ather, they were the result of a judgment by the prosecutor that the case could not be proven

5

 The Original and Amended Complaint both state the malicious prosecution claim in Count II as a claim under the
New Mexico Tort Claims Act. See Docs. 1 at 10; 60 at 6. However, Defendants in their First Motion for Summary
Judgement refer to Plaintiffs’ malicious prosecution claim under § 1983, Doc. 26 at 12, and in response Plaintiffs
agree with the elements of the claim as stated in Defendants’ Motion, Doc. 32 at 10. In light of this ambiguity, in
addition to declining to exercise supplemental jurisdiction over Plaintiffs’ state law claims, infra at IV, the Court
explains here why it would grant summary judgment on Plaintiffs’ malicious prosecution claim under § 1983.

11

beyond a reasonable doubt”); Cordova, 816 F.3d at 650-51 (finding that dismissal based on New
Mexico’s Speedy Trial Act is not a favorable termination even though the dismissal worked in
favor of the plaintiff). Notably, “abandonment of the proceedings is ordinarily insufficient to
constitute a favorable termination if ‘the prosecution is abandoned pursuant to an agreement of
compromise with the accused’” Id. at 802-03 (quoting Restatement (Second) of Torts § 659(c)
(1977)). Moreover, the “plaintiff has the burden of proving a favorable termination.” Id. at 803
(citations omitted).
Plaintiffs argue only that “the original action terminated in Plaintiff’s favor. All of the
arrestable charges were dismissed against Dr. Seidel.” Doc. 32 at 10. The mere fact that the
charges were dismissed does not indicate Dr. Seidel’s innocence and is insufficient to satisfy the
favorable termination requirement. Plaintiffs have not alleged any facts, provided any evidence,
or made any legal arguments to explain why these dismissals should be considered a favorable
termination outside of the above quoted language. Plaintiffs have failed to satisfy their burden of
showing that the original charges resulted in a favorable termination. The Defendant, Officer
Crayton, is entitled to qualified immunity and summary judgment on this claim.
IV.

Excessive Force
A.

Legal Standard

“Excessive force claims are governed by the Fourth Amendment’s ‘objective
reasonableness’ standard.” Morris, 672 F.3d 1185, 1195 (10th Cir. 2012). Under this standard,
the Court balances (1) “the nature and quality of the intrusion on the individual’s Fourth
Amendment interests” against “the countervailing governmental interests at stake.” Graham v.
Connor, 490 U.S. 386, 396 (1989). “[T]he question is whether the officers’ actions are
‘objectively reasonable’ in light of the facts and circumstances confronting them, without regard

12

to their underlying intent or motivation.” Id. at 397. In determining whether the use of force is
reasonable in a particular situation, the Court considers factors including (1) the severity of the
crime at issue; (2) whether the subject poses an immediate threat to the safety of the officers or
others, and (3) whether he is actively resisting arrest or attempting to flee. See id. at 396. The
Court judges the reasonableness of a particular use of force “from the perspective of a reasonable
officer on the scene, rather than with the 20/20 vision of hindsight.” Id. at 396. Accordingly,
“[t]he calculus of reasonableness must embody allowance for the fact that police officers are
often forced to make split-second judgments… about the amount of force that is necessary in a
particular situation.” Id. at 396-97. “If an officer reasonably, but mistakenly, believed that a
suspect was likely to fight back, for instance, the officer would be justified in using more force
than in fact was needed.” Saucier v. Katz, 533 U.S. 194, 205, (2001) limited in part on other
grounds by Pearson v. Callahan, 555 U.S. 223 (2009).
B.

Excessive Force on Mrs. Seidel

In regards to the claim of excessive force used against Mrs. Seidel, Plaintiffs bear the
burden of proof to overcome Defendants’ assertion of qualified immunity. As discussed above,
Plaintiffs must establish both that Officer Crayton violated a constitutional right and that the
right was clearly established at the time of the challenged conduct. See Morris v. Noe, 672 F.3d
1185, 1191 (10th Cir. 2015).
In the first prong, whether Officer Crayton violated Mrs. Seidel’s constitutional rights,
the Court asks whether “the facts taken in the light most favorable to the party asserting the
injury show the officer’s conduct violated a federal right” without resolving genuine disputes of
fact in favor of the party seeking summary judgment. Tolan v. Cotton, 134 S. Ct. 1861, 1865-66
(2014).

13

There is a genuine dispute of fact as to whether Officer Crayton “struck [Mrs. Seidel]
with his left hand.” Doc. 32-2 at ¶ 5. Defendants primarily argue that the COBAN recording of
the incident “blatantly contradicts” the testimony presented by the Plaintiffs. Doc. 26 at 8.
However, the recording of the incident is not clear enough to meet the “blatant contradiction”
standard set forth in Scott v. Harris. 550 U.S. 372, 380 (2007). Under Scott, where the “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.” Id. In Scott, the Court reasoned that a video
recording of a car chase “so utterly discredited” the respondent’s version of events such that “no
reasonable jury could believe him” as to whether the respondent was driving in such a way as to
endanger human life. Id. However, in York v. City of Las Cruces, the Tenth Circuit found that the
District Court properly withheld qualified immunity and summary judgment in a § 1983
excessive force claim where “only part of the incident” was captured on an audiotape and parts
of the tape were unintelligible. 523 F.3d 1205, 1210-11 (10th Cir. 2008).
Here, the video does not clearly show whether Officer Crayton applied any force to Mrs.
Seidel. Doc 28 at 1:50 to 1:54. The placement of the camera and the location of the Plaintiffs’
SUV obscure the positions of Officer Crayton’s hands and arms and Mrs. Seidel’s body. Id.
Therefore, Plaintiffs’ version of facts as set forth in their affidavits is not “blatantly contradicted
by the record.” Scott, 550 U.S. at 380. Taking the facts “in the light most favorable” to the
Plaintiffs, Mrs. Seidel grabbed her door, tried to roll down her window, and was pulled with the
door as Officer Crayton opened it. Tolan, 134 S. Ct. at 1865; Doc 32-2 at ¶ 5. Officer Crayton
“struck [Mrs. Seidel] with his left hand.” Doc. 32-2 at ¶ 5. Plaintiffs argue that the existence of
this factual dispute precludes the grant of summary judgment; however, they must still satisfy

14

both steps of the qualified immunity analysis to defeat Defendants’ assertion of qualified
immunity. Morris, F.3d at 1191. In other words, even assuming the contact occurred, to succeed
on their excessive force claim the Plaintiffs must show both a violation of the Fourth
Amendment under the “objective reasonableness” standard and that a reasonable officer would
understand that his conduct was unlawful in this situation. Id. at 1195, 1996.
Based on the amount of force that Officer Crayton used and the circumstances
surrounding the incident, Plaintiffs have failed to establish that Officer Crayton violated the
Fourth Amendment. At most, Plaintiffs allege that Officer Crayton “put his forearm onto and
across Mrs. Seidel’s chest and pushed her back into her seat.” Doc. 60 at ¶ 8. Plaintiffs suggest
that under the factors set forth in Graham, there was a violation of the Fourth Amendment
because “there was no crime at issue with Mrs. Seidel, no threat posed by her, and no
resistance.” See 490 U.S. at 396; Doc. 32 at 7. However, at the time Officer Crayton allegedly
applied force to Mrs. Seidel, he was conducting a traffic stop for an admitted speeding violation;
traffic stops are inherently dangerous to police officers; and the words “don’t open the door” as
well as her attempts to close the door constitute at least some degree of resistance. See United
States v. Holt, 264 F.3d 1215, 1223 (10th Cir. 2001) (en banc) (“The terrifying truth is that
officers face a very real risk of being assaulted with a dangerous weapon each time they stop a
vehicle.”) overruling on other grounds recognized in United States v. Stewart, 473 F.3d 1265
(10th Cir. 2007). In light of these undisputed facts, it was not objectively unreasonable for
Officer Crayton to push Mrs. Seidel back into her seat. Thus, Officer Crayton did not violate
Mrs. Seidel’s Fourth Amendment rights.
Under the “clearly established” prong of qualified immunity, “[t]he question of whether a
right is clearly established must be answered ‘in light of the specific context of the case, not as a

15

broad general proposition.’ That is, the question is not whether the general right to be free from
excessive force is clearly established, but whether [plaintiff] had a clearly established right under
the facts of this case.” Id. at 1196. The burden is on the Plaintiffs to “convince the court” that the
law is clearly established and the “[p]laintiff’s failure to do so… does not raise a jury question,
but rather calls for entry of judgment in favor of the defendants.” Lutz v. Weld Cty. Sch. Dist. No.
6, 784 F.2d 340, 343 (10th Cir. 1986).
“[C]learly established law” should not be defined “at a high level of generality.” White v.
Pauly, 137 S. Ct. 548, 552 (2017) (citing Aschroft v. al-Kidd, 563 U.S. 731, 742 (2011)). “While
this Court's case law do[es] not require a case directly on point for a right to be clearly
established, existing precedent must have placed the statutory or constitutional question beyond
debate. In other words, immunity protects all but the plainly incompetent or those who
knowingly violate the law.” Id. at 551 (2017) (citations omitted).
Plaintiffs argue that “the right to be free from excessive force during the course of an
arrest is clearly established” by citing to the following cases: Graham, 490 U.S. 386; Robles v.
Shultz, 2010 WL 1441287, at *2, 14 (D.N.M. Mar. 15, 2010) (plaintiffs showed violation of a
clearly established right where officers allegedly held plaintiff at gunpoint and beat him despite
“following their orders to the letter”); Butler v. City of Norman, 992 F.2d 1053, 1054-55 (10th
Cir. 1993) (plaintiffs showed violation of a clearly established right where plaintiff hit a dog
while driving and, after arriving on the scene, three police officers “rushed him, tackled him,
threw him face first into the bed of the pickup… handcuffed his hands behind his back and beat
him with flashlights… [and] kneed [him] in the groin”); Frohmader v. Wayne, 958 F.2d 1024,
1026 (10th Cir. 1992) (“[plaintiff] must show that [defendant’s] actions constituted an excessive
use of force under our former substantive due process standard” in an excessive force claim on

16

facts which occurred pre-Graham but decided post-Graham); and Austin v. Hamilton, 945 F.2d
1155, 1157-58 (10th Cir. 1991) (Plaintiffs established violation of a clearly established right
where “[p]laintiff’s affidavits reflect a twelve-hour episode of unnecessary physical violence and
inhumane treatment, ending in their release without charge by defendants… after a small amount
of Marijuana was found in their vehicle”) abrogated on other grounds by Johnson v. Jones, 515
U.S. 304, 309 (1997); Doc. 32 at 6. None of these cases addresses whether a reasonable officer
should understand that it would be unlawful to “push” a passenger “back into her seat” after
opening the passenger door during a routine traffic stop. Doc. 60 at ¶ 8. Plaintiffs have not cited,
and the Court has not found, any clearly established law which Officer Crayton violated in this
case. Plaintiffs therefore have failed to establish the second prong of the qualified immunity
analysis.
Finally, even if Plaintiffs had alleged facts sufficient to find Officer Crayton’s actions
unreasonable under the standard set forth in Graham, Plaintiffs have not satisfied their burden of
proof because “a claim of excessive force requires some actual injury that is not de minimis, be it
physical or emotional.” Cortez v. McCauley, 478 F.3d 1108, 1129 (10th Cir. 2007). Plaintiffs
here have provided evidence that Officer Crayton “pushed” Mrs. Seidel and that she “gasped.”
Doc. 32-2 at ¶ 5. Mrs. Seidel admitted that she did not seek medical care for physical injuries and
beyond claiming “emotional distress” in the complaint, there is no evidence in the record to
support the claim of emotional distress. See Sisneros v. Fisher, 685 F. Supp. 2d 1188, 1219
(D.N.M. 2010) (Browning, J.) (holding that plaintiff failed to meet his burden of proving a
violation of Fourth and Fourteenth Amendment Rights in a claim of excessive force where the
plaintiff “does not testify to any ill-effects resulting from his encounter such as social stigma,

17

nightmares, a need for therapy, or even a new-found distrust of or discomfort around police
officers”). Plaintiffs have not provided evidence of actual injury or even de minimis injury.
For all the reasons above, the Court concludes that Plaintiffs have not met their burden of
establishing that Officer Crayton used excessive force against Mrs. Seidel. The Defendant,
Officer Crayton, is entitled to qualified immunity on this issue and summary judgment shall be
granted on this claim.
C.

Excessive Force on Dr. Seidel

In considering the excessive force claim by Dr. Seidel against Officer Crayton, the Court
must determine whether the force Officer Crayton used to arrest Dr. Seidel exceeded “the force
reasonably necessary to effect a lawful arrest or detention under the circumstances of the case.”
Cortez, 478 F.3d at 1126.
Plaintiffs argue that Officer Crayton arrested Dr. Seidel without probable cause and
therefore: (1) pointing a firearm at Dr. Seidel, (2) wrestling him, and (3) handcuffing him was
objectively unreasonable and constituted excessive force. Doc. 32 at 5.
First, the Court considers whether Officer Crayton acted unreasonably by pointing his
firearm at Dr. Seidel. “[T]he right to arrest an individual carries with it the right to use some
physical coercion to effect the arrest. Thompson v. City of Lawrence, Kan., 58 F.3d 1511, 1516
(10th Cir. 1995) (citing Graham, 490 U.S. at 397). Further, it is “not unreasonable for officers to
carry weapons … or take control of a potentially dangerous situation.” Id. Although pointing a
firearm at a suspect “inescapably involves the immediate threat of deadly force” such a show of
force may be permissible when it is “predicated on at least a perceived risk of injury or danger to
the officers or others based on what the officers know at the time.” Holland ex rel. Overdorff v.
Harrington, 268 F.3d 1179, 1192 (10th Cir. 2001). However, “[w]here a person has submitted to

18

the officers' show of force without resistance, and where an officer has no reasonable cause to
believe that person poses a danger to the officer or to others,” the officer may be using excessive
and unreasonable force by continuing to aim a loaded weapon at the person, “in contrast to
simply holding the weapon in a fashion ready for immediate use.” Id.
Officer Crayton did not act unreasonably by pointing a gun at Dr. Seidel. Officer Crayton
recognized Dr. Seidel and saw “a pistol in a holster” on Dr. Seidel’s right side in the “splitsecond” the [passenger] door was open.” Doc. 26-1 at ¶¶ 12, 13. Dr. Seidel opened his door,
stepped outside of his vehicle, and took several steps towards Officer Crayton’s car while
pointing his finger at Officer Crayton. Doc. 28 at 1:53-1:58. Officer Crayton moved away from
the SUV, withdrew his firearm, pointed it at Dr. Seidel, and ordered Dr. Seidel to put his gun
down. Doc. 28 at 1:53-2:00. Officer Crayton continued to order Dr. Seidel to put his gun down
and Dr. Seidel stated, “I don’t have a gun.” Id. 1:56-1:58. As Dr. Seidel turned around to reenter
his vehicle, Officer Crayton stated, “You are under arrest.” Id. at 1:58-2:00. The Graham
standard of excessive force “embod[ies] allowance for the fact that police officers are often
forced to make split-second judgments… about the amount of force that is necessary in a
particular situation” and based on the circumstances of this case, the Court finds that Officer
Crayton’s acted reasonably by making the split-second decision to aim his firearm at Dr. Seidel.
490 U.S. at 396-97.
Second, the Court will consider whether Officer Crayton acted reasonably by “wrestling”
Dr. Seidel. Doc. 32 at 10. “If the plaintiff [in an excessive force claim] can prove that the officers
used greater force than would have been reasonably necessary to effect a lawful arrest, he is
entitled to damages resulting from that excessive force.” Cortez v. McCauley, 478 F.3d 1108,
1127 (10th Cir. 2007). “If an officer reasonably, but mistakenly, believed that a suspect was

19

likely to fight back,… the officer would be justified in using more force than in fact was
needed.” Saucier, 533 U.S. at 205.
The first Graham factor, “the severity of the crime at issue,” weighs slightly in favor of
Officer Crayton because there was probable cause to arrest Dr. Seidel for resisting arrest, a
misdemeanor offense under NMSA § 30-22-1. 490 U.S. at 396; See Clark v. Bowcutt, 675 F.
App'x 799 (10th Cir. 2017) (unpublished) (the first Graham factor weighed in favor of the
officer, although without great force, where the offense was a class C misdemeanor); but see
Koch v. City of Del City, 660 F.3d 1228, 1246–47 (10th Cir. 2011) (noting that the first Graham
factor weighed in favor of the plaintiff when “[t]he crime for which she was arrested,
obstruction, is only a misdemeanor”).
The second factor, “whether the subject poses an immediate threat to the safety of the
officers or others,” weighs in favor of Plaintiffs because Dr. Seidel no longer wore his weapon
on his hip and Officer Harrison appeared to have control over the scene. 490 U.S. at 396; See
Doc. 28 at 16:44-16:59.
The third Graham factor, “whether [the suspect] is actively resisting arrest or attempting
to flee” weighs in favor of Officer Crayton because, during the course of the incident, Dr. Seidel
repeatedly refused to comply with Officer Crayton’s verbal commands, and after finally exiting
his car and moving with Officer Harrison towards the police cars, he did not comply with Officer
Crayton’s order to put his hands on the police car. Doc 28 at 1:59 to 12:00, 16:57 to 17:00.
Instead of complying, Dr. Seidel said “No” and crossed his arms across his chest. Id. Dr. Seidel
physically resisted arrest “by pulling away from Crayton and folding his arms” when Officer
Crayton tried to handcuff Dr. Seidel. Id. at 17:00 to 17:02. Considering Dr. Seidel’s physical
resistance the Court concludes that Officer Crayton’s use of force to wrestle Dr. Seidel was not

20

greater than “reasonably necessary to effect a lawful arrest.” Cortez, 478 F.3d at 1127; see also
Perea v. Baca, 817 F.3d 1198, 1203 (10th Cir. 2016) (“the relevant inquiry is whether the taser
use was reasonable and proportionate given Perea’s resistance.”); Youbyoung Park v. Gaitain,
2017 WL 782280, at *12 (10th Cir. Mar. 1, 2017) (unpublished) (“Graham’s third factor heavily
favors Defendants, strongly militating in favor of a determination that Defendants’ use of force
was reasonable” where Plaintiff “fought back ‘forcefully’ by tensing his arms, bracing his legs,
and attempting to pull away from the officers”).
Third, the Court will consider Officer Crayton’s use of force in handcuffing Dr. Seidel.
“In some circumstances, unduly tight handcuffing can constitute excessive force where a
plaintiff alleges some actual injury from the handcuffing and alleges that an officer ignored
plaintiff’s timely complaints (or was otherwise made aware) that the handcuffs were too tight.”
Cortez, 478 F.3d at 1129. However, “a claim of excessive force requires some actual injury that
is not de minimis, be it physical or emotional.” For example, in Cortez v. McCauley, the “only
evidence in the record is [plaintiff’s] affidavit that the handcuffs left red marks that were visible
for days afterward.” Id. This sort of injury was insufficient, as a matter of law, to support an
excessive force claim “if the use of handcuffs is otherwise justified.” Id. The Court concludes
that the use of handcuffs was justified for the same reasons that Officer Crayton was justified in
wrestling Dr. Seidel.
Further, Plaintiffs have not provided any evidence whatsoever to support their claim that
Dr. Seidel suffered injury at the hands of Officer Crayton. In fact, they admit that Dr. Seidel
“does not contend that he suffered any medical damages, physical/bodily injury or psychological
injury as a result of the incident.” Doc. 26 at ¶ 25; Doc. 32 at ¶ 25. Thus, Plaintiffs have failed to
establish that Officer Crayton violated Dr. Seidel’s right to be free from the use of excessive

21

force. Defendants are entitled to qualified immunity on this issue, and summary judgment shall
be granted.
V.

Failure to Train and Supervise
A.

Legal Standard

“Supervisory status alone does not create § 1983 liability.” Gallagher v. Shelton, 587
F.3d 1063, 1069 (10th Cir. 2009) (citing Duffield v. Jackson, 545 F.3d 1234, 1239 (10th Cir.
2008). The Tenth Circuit requires “an affirmative link… between the constitutional deprivation
and either the supervisor’s personal participation, … exercise of control or direction, or …
failure to supervise” to impose supervisory liability under 42 U.S.C. § 1983. Id. (quoting Green
v. Branson, 108 F.3d 1296, 1302. (10th Cir. 1997)). A plaintiff may succeed in supervisory
liability claim under § 1983 if they show that “(1) the defendant promulgated, created,
implemented or possessed responsibility for the continued operation of a policy that (2) caused
the complained of constitutional harm, and (3) acted with the state of mind required to establish
the alleged constitutional deprivation.” Dodds v. Richardson, 614 F.3d 1185, 1199 (10th Cir.
2010).
In the specific context of a failure to train claim under 42 U.S.C. § 1983, the parties agree
that the Plaintiffs must show the following:
1) an underlying violation of [Plaintiffs’] constitution rights; 2) that the
supervisor-defendant's personal involvement caused the misconduct complained
of; and 3) that the supervisor-defendant acted with the state of mind or intent
required to establish he committed a constitutional violation; specifically, at
minimum, establish a deliberate and intentional act on the part of the defendant to
violate the plaintiff's legal rights.
Kemp v. Lawyer, 846 F. Supp. 2d 1170, 1175 (D. Colo. 2012) (citing Dodds, 614 F.3d at 1209;
Myers v. Koopman, 2011 WL 650328 (D. Colo. 2011)); see also Doc. 26 at 16-17; Doc. 32 at 11.

22

B.

Supervisory Liability of Chief Kassetas

Once again facing qualified immunity, Plaintiffs bear the burden of satisfying a “strict
two-part test.” McBeth v. Himes, 598 F.3d 708, 716 (10th Cir. 2010) (quoting Bowling v. Rector,
584 F.3d 956, 964 (10th Cir. 2009)). “The plaintiff must establish (1) that the defendant violated
a constitutional or statutory right, and (2) that the right was clearly established at the time of the
defendant’s conduct.” Id.; Graves v. Thomas, 450 F.3d 1215, 1225 (10th Cir. 2006) (upholding
grant of summary judgment on claim of supervisory liability where plaintiffs failed to show an
underlying constitutional violation).
Plaintiffs have not established an underlying constitutional violation to survive summary
judgment on their claim of supervisory liability based on Chief Kassetas’ Failure to Train,
Supervise and Control. See Kemp, 846 F. Supp. 2d at 1175. Here, the Court first found that
Plaintiffs did not provide sufficient evidence to show a constitutional violation in their Excessive
Force claims. Second, Plaintiffs failed to establish that Officer Crayton violated the Fourth
Amendment by arresting Dr. Seidel because Officer Crayton had probable cause to arrest Dr.
Seidel. Third, Plaintiffs did not establish a constitutional violation in their malicious prosecution
claim because Officer Crayton had probable cause and Plaintiffs’ failed to show favorable
termination of the charges.
Chief Kassetas is entitled to qualified immunity because Plaintiffs have failed to establish
an underlying constitutional violation by Officer Crayton. Summary judgment shall be granted
on this claim.
VI.

State Law Claims
Plaintiffs have asserted state law claims of Battery, Malicious Prosecution, Unreasonable

Seizure, Excessive Force, and Negligence against Defendants. See Doc. 60 at ¶¶ 19-35. The

23

Court, having granted summary judgment on all of Plaintiff’s federal law claims, declines to
exercise supplemental jurisdiction over Plaintiff’s state law claims. See Nielander v. Bd. Of Cnty.
Comm’rs, 482 F.3d 1155, 1172 (10th Cir. 2009) (“Under 28 U.S.C. § 1367(c), a district court
may decline to exercise supplemental jurisdiction if . . . the district court has dismissed all claims
over which it has original jurisdiction”).
IT IS THEREFORE ORDERED that Defendants’ First Motion for Summary
Judgment, Doc. 26, filed April 17, 2016, is GRANTED IN PART. The Court declines to
exercise supplement jurisdiction over Plaintiffs’ state law claims.
Dated this 19th day of October, 2017.

__________________________________________
MARTHA VÁZQUEZ
UNITED STATES DISTRICT JUDGE

24