Gonzales v. Bernalillo County Sheriff Department et al
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION recommending grant of 23 Defendants' Motion for Summary Judgment and Supporting Memorandum Brief, denial of 14 Plaintiff's Motion to Reinstate Default Judgment, denial of 15 Plain tiff's Motion to Remand, and denial of 29 Plaintiff's Motion for Summary Judgment. by Magistrate Judge Gregory B. Wormuth. Objections to R&R due by 4/18/2017. Add 3 days to the deadline if service is by mailing it to the person's last known address (or means described in Fed. R. Civ. P. 5(b)(2)(D) and (F)); if service is by electronic means, no additional days are added. (Fed. R. Civ. P. 6(d); Fed. R. Crim. P. 45(c).) (km)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
Civ. No. 16‐1045 MCA/GBW
BERNALILLO COUNTY SHERIFF’S
DEPARTMENT and J. GARCIA,
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
This matter comes before the Court on the parties’ competing Motions for
Summary Judgment (docs. 23, 29). Having reviewed the Martinez Report (doc. 22) and
all other pertinent briefing (docs. 14, 15, 27, 28), I recommend the Court GRANT
Defendants’ Motion for Summary Judgment (doc. 23). I further recommend the Court
DENY Plaintiff’s Motion to Reinstate Default Judgment (doc. 14), Motion to Remand
(doc. 15), and Motion for Summary Judgment (doc. 29).
Plaintiff initiated this action due to the circumstances surrounding his arrest,
which took place on January 6, 2015. Doc. 1‐1 at 2; doc. 22 at 1. Plaintiff was arrested
following a search of his home that was conducted pursuant to a search warrant by the
Bernalillo County Sheriff’s Office. Doc. 22 at 2.
Plaintiff, a pro se inmate, filed suit in the Second Judicial District Court of New
Mexico on October 28, 2015. Doc. 1‐1. Plaintiff’s Complaint states that it is a tort suit
brought pursuant to the New Mexico Tort Claims Act (NMTCA). Id. at 1. Plaintiff also
alleges constitutional violations arising under the Fourth, Fifth, and Fourteenth
Amendments as a result of the search of his home. Id. at 2.
Following a complicated procedural history in state court, discussed in‐depth
below, Defendants removed this action on September 21, 2016. See doc. 1. Because
Plaintiff is a pro se inmate, Defendants filed a Martinez Report in lieu of formal
discovery on December 9, 2016. Doc. 22. Concurrently therewith, Defendants filed a
motion seeking summary judgment, arguing that: (1) Plaintiff’s federal claims against
Defendant Detective J. Garcia in his individual capacity should be dismissed on the
basis of qualified immunity; (2) Plaintiff’s federal claims against Defendant Bernalillo
County Sheriff’s Department should be dismissed because Plaintiff failed to plead facts
showing Defendants violated his constitutional rights; and (3) Plaintiff’s state claim
against Defendant Garcia should be dismissed because Plaintiff failed to comply with
the NMTCA’s notice requirements. See generally doc. 23.
PLAINTIFF’S RECONSIDERATION AND REMAND MOTIONS
Plaintiff initially filed his Complaint in the Second Judicial District Court of New
Mexico. See docs. 1‐1, 7‐1. On June 30, 2016, that state court granted Plaintiff’s Motion
for Default Judgment following Defendants’ failure to file any responsive pleading to
Plaintiff’s Complaint or to appear at a hearing in the matter. See doc. 7‐1 at 31‐33. The
court then set aside the default judgment upon motion by Defendants on September 2,
2016. Id. at 58‐60. Because Plaintiff’s Complaint asserted numerous constitutional
claims, Defendants removed the action to this Court on September 21, 2016. See doc. 1.
Since removal, Plaintiff has made numerous filings averring that the default judgment
should not have been set aside by the state court below. See docs. 14, 15, 27, 28, 29.
Specifically, on October 27, 2016, Plaintiff filed both a Motion to Remand (doc. 15) and a
motion asking the Court to deny Defendants’ motion to set aside the default judgment,
which was already granted by the state court (doc. 14). Plaintiff reiterates the arguments
underlying these motions in later filings (docs. 27, 28, 29).
Under the Rooker‐Feldman doctrine, a federal court—other than the Supreme
Court—has no jurisdiction to review any final judgment of a state court. See District of
Columbia Court of Appeals v. Feldman, 460 U.S. 462, 476, 486 (1983); Rooker v. Fidelity Trust
Co., 263 U.S. 413, 415‐16 (1923). Essentially, the doctrine bars “cases brought by state‐
court losers complaining of injuries caused by state‐court judgments rendered before
the district court proceedings commenced and inviting district court review and
rejection of those judgments.” Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280,
284 (2005). However, “the Rooker‐Feldman doctrine is confined to cases brought after the
state proceedings have ended.” Mann v. Boatright, 477 F.3d 1140, 1146 (10th Cir. 2007)
(internal quotations omitted). Thus, the doctrine does not apply in the present matter,
as the state court proceedings had only just begun when this matter was removed. Doc.
1‐1. See Jenkins v. MTGLQ Investors, 218 F. App’x 719, 724 (10th Cir. 2007) (unpublished)
(“[T]he Rooker‐Feldman doctrine has no application to a properly removed case
where . . . there is no attack on a separate and final state court judgment.”); see also
Persley v. Lee, 794 F. Supp. 2d 728, 732 (E.D. Ky. 2011) (finding the Rooker‐Feldman
doctrine inapplicable under identical procedural circumstances because there was no
final state court judgment). Federalism concerns are thus not implicated by Plaintiff’s
request that this Court reinstate the entry of default that was made and subsequently
set aside by the state court.
“When a case is removed from state court, the federal court takes the case in its
current posture and treats previously entered orders as its own.” Sawyer v. USAA Ins.
Co., 839 F. Supp. 2d 1189, 1215 (D.N.M. Mar. 8, 2012). Therefore, the state court’s order
setting aside default judgment (doc. 7‐1 at 58‐59) should be treated as the Court’s own.
That order does not adjudicate all of the claims in the case and is thus an interlocutory
order, which “is subject to revision at any time before the entry of [final] judgment.”
Raytheon Constructors, Inc. v. Asarco, Inc., 368 F.3d 1214, 1217 (10th Cir. 2003) (quoting
Fed. R. Civ. P. 54(b)). As Defendants correctly note in their briefing, the Federal Rules
of Civil Procedure do not recognize a motion for reconsideration of interlocutory
orders. Doc. 19 at 2; see Hawkins v. Evans, 64 F.3d 543, 546 (10th Cir. 1995) (explaining
that courts should construe a motion for reconsideration as either a motion to alter or
amend the judgment under Rule 59(e) or a motion seeking relief from the judgment
under Rule 60(b), which apply only to orders of final judgment). However, the Court
has discretion to revise its interlocutory orders, untethered by the constraints governing
Rules 59(e) and 60(b). Trujillo v. Bd. of Educ. of Albuquerque Pub. Schs., 212 F. App’x 760,
765 (10th Cir. 2007) (unpublished) (citing Price v. Philpot, 420 F.3d 1158, 1167 n.9 (10th
Cir. 2005)); see also Wagoner v. Wagoner, 938 F.2d 1120, 1122 n.1 (10th Cir. 1991) (noting
that a motion for reconsideration filed prior to final judgment “was nothing more than
an interlocutory motion invoking the district court’s general discretionary authority to
review and revise interlocutory rulings prior to entry of final judgment”). I will
therefore address whether the Court should revise the interlocutory order setting aside
In New Mexico, two different standards govern the setting aside of an entry of
default, depending on whether a final default judgment has been entered. See DeFillippo
v. Neil, 51 P.3d 1183, 1185‐86 (N.M. Ct. App. 2002); N.M.R.A., Rule 1‐055(C); N.M.R.A.,
Rule 1‐060(B). In the order at issue, the state court judge correctly applied Rule 1‐055(C)
of the New Mexico Rules of Civil Procedure, which sets forth a “good cause” standard
for setting aside an entry of default prior to entry of judgment by default. Doc. 7‐1 at 39‐
44, 58‐59; see also N.M.R.A., Rule 1‐055(C). The court’s order set aside the entry of
default because “New Mexico public policy clearly favors determination on the merits”
and “Defendants demonstrate the existence of a valid defense, or defenses, to the
Complaint.” Doc. 7‐1 at 58. Even under the more stringent Rule 1‐060 standard, these
reasons suffice to justify setting aside the entry of default. See Sunwest Bank of
Albuquerque v. Rodriguez, 770 P.2d 533, 535 (N.M. 1989) (“[B]ecause default judgments
are disfavored and causes generally should be tried on their merits, we have counseled
trial courts to be liberal in determining the existence of grounds that satisfy Rule
60(B)”). Moreover, the order noted that Defendants had established the existence of a
valid defense, a necessary showing before relief from default judgment will be granted.
Rodriguez v. Conant, 737 P.2d 527, 530 (N.M. 1987). Courts “should be liberal in
determining what is a meritorious defense and whether there are grounds for setting
aside a default judgment.” Id. Therefore, I recommend the Court decline to revise the
previous order setting aside entry of default and deny Plaintiff’s Motion for
Reconsideration (doc. 14).
As for Plaintiff’s Motion to Remand (doc. 15), Plaintiff missed the
thirty‐day deadline to file such a motion following Defendants’ notice of
removal. See 28 U.S.C. § 1447(c). I recommend that the Court deny his
motion on that basis. Alternatively, I recommend the Court deny the
motion its merits. Plaintiff offers no basis for remand other than
Defendants’ failure to appear at the June 29, 2016 state court hearing or to
file any responsive pleadings to Plaintiff’s Complaint in state court. See
generally doc. 15. These are the same reasons the state court initially
granted default judgment, which it later set aside for good cause shown.
See doc. 7‐1 at 31‐32, 58‐59. As set forth above, good cause supported the
state court’s decision to set aside the default judgment. In any event, the
Defendants’ alleged failings in state court provide no basis on which to
grant Plaintiff’s Motion to Remand. DEFENDANTS’ MOTION FOR SUMMARY
A. Standard of Review
Under Federal Rule of Civil Procedure 56(a), this Court must “grant summary
judgment if the movant shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). The
movant bears the initial burden of “show[ing] ‘that there is an absence of evidence to
support the nonmoving party’s case.’” Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d
887, 891 (10th Cir. 1991) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)). Once
the movant meets this burden, the non‐moving party is required to designate specific
facts showing that “there are . . . genuine factual issues that properly can be resolved
only by a finder of fact because they may reasonably be resolved in favor of either
party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); Celotex, 477 U.S. at 324.
However, summary judgment motions based upon the defense of qualified
immunity are reviewed differently from other summary judgment motions, because
qualified immunity is “designed to protect public officials from spending inordinate
time and money defending erroneous suits at trial.” Clark v. Edmunds, 513 F.3d 1219,
1222 (10th Cir. 2008). Therefore, when a public official is entitled to qualified immunity,
the entitlement relieves the official from bearing any of the burdens of litigation,
including discovery. Ashcroft v. Iqbal, 556 U.S. 662, 672 (2009). The Supreme Court “has
directed the lower federal courts to apply qualified immunity broadly, to protect from
civil liability for damages all officers except ‘the plainly incompetent or those who
knowingly violate the law,’” in order to avoid unduly inhibiting officers in performing
their official duties. Wilson v. City of Lafayette, 510 F. App’x 775, 780 (10th Cir. 2013)
(unpublished) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986), and Medina v. Cram,
252 F.3d 1124, 1127 (10th Cir. 2001)). The qualified immunity standard allows
government officials “ample room for mistaken judgments,” shielding them from
liability for reasonable error. Applewhite v. U.S. Air Force, 995 F.2d 997, 1000 (10th Cir.
1993) (quoting Hunter v. Bryant, 502 U.S. 224, 229 (1991)). Thus, qualified immunity is
“applicable unless the official’s conduct violated a clearly established constitutional
right.” Pearson v. Callahan, 555 U.S. 223, 232 (2009).
When a defendant moves for qualified immunity on an excessive force claim, the
burden shifts to the plaintiff to show (1) “that the force used was impermissible (a
constitutional violation)[,]” and (2) “that objectively reasonable officers could not have
thought the force constitutionally permissible (violates clearly established law).” Cortez
v. McCauley, 478 F.3d 1108, 1128 (10th Cir. 2007); see also Medina, 252 F.3d at 1128. This
is a “strict two‐part test” that must be met before the defendant asserting qualified
immunity again “bear[s] the traditional burden of the movant for summary judgment—
showing that there are no genuine issues of material fact and that he or she is entitled to
judgment as a matter of law.” Clark, 513 F.3d at 1222. The Court may address the two
prongs of the test in any order. Pearson, 555 U.S. at 236.
Determining whether the allegedly violated right was “clearly established”
depends on whether “the contours of the right [were] sufficiently clear that a reasonable
official would understand that what he is doing violates that right.” Anderson v.
Creighton, 483 U.S. 635, 640 (1987). “Ordinarily, in order for the law to be clearly
established, there must be a Supreme Court or Tenth Circuit decision on point, or the
clearly established weight of authority from other courts must have found the law to be
as the plaintiff maintains.” Clark v. Wilson, 625 F.3d 686, 690 (10th Cir. 2010) (quotation
omitted). While the plaintiff need not locate “a case directly on point,” nevertheless
“existing precedent must have placed the statutory or constitutional question beyond
debate.” Ashcroft v. al‐Kidd, 563 U.S. 731, 741 (2011).
Whether the motion for summary judgment is based on qualified immunity or
not, the Court decides the motion on the basis of the facts as construed in the light most
favorable to the non‐moving party. Consequently, it must keep in mind three
principles. First, the Court’s role is not to weigh the evidence, but to assess the
threshold issue of whether a genuine issue exists as to material facts requiring a trial.
See Liberty Lobby, 477 U.S. at 249. “An issue is ‘genuine’ if there is sufficient evidence on
each side so that a rational trier of fact could resolve the issue either way. An issue of
fact is ‘material’ if under the substantive law it is essential to the proper disposition of
the claim.” Thom v. Bristol Myers Squibb Co., 353 F.3d 848, 851 (10th Cir. 2003) (internal
citation omitted). Second, the Court must resolve all reasonable inferences and doubts
in favor of the non‐moving party, and construe all evidence in the light most favorable
to the non‐moving party. See Tolan v. Cotton, 134 S. Ct. 1861, 1866 (2014); see also Riggins
v. Goodman, 572 F.3d 1101, 1107 (10th Cir. 2009) (noting that courts generally “accept the
facts as the plaintiff alleges them” when considering whether a plaintiff has overcome
defendant’s assertion of qualified immunity at the summary judgment stage).
However, “a plaintiff’s version of the facts must find support in the record” at the
summary judgment stage. Thomson v. Salt Lake Cty., 584 F.3d 1304, 1312 (10th Cir. 2009).
Third, the court cannot decide any issues of credibility. See Liberty Lobby, 477 U.S. at
255. “[T]o survive the . . . motion, [the non‐movant] need only present evidence from
which a jury might return a verdict in his favor.” Id. at 257.
The Court is required to liberally construe the filings of a pro se plaintiff and to
hold them to a less stringent standard than formal pleadings drafted by lawyers. Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). Such a requirement entails the
responsibility of a court to read the pleadings to state a valid claim on which a pro se
plaintiff could prevail if such a reading is reasonable, “despite the plaintiff’s failure to
cite proper legal authority, his confusion of various legal theories, his poor syntax and
sentence construction, or his unfamiliarity with pleading requirements.” Id. However,
the Court does not assume the role of advocate for a pro se plaintiff. Id. Accordingly,
the Court “will not supply additional factual allegations to round out a plaintiff’s
complaint or construct a legal theory on a plaintiff’s behalf.” Whitney v. State of N.M.,
113 F.3d 1170, 1173‐74 (10th Cir. 1997) (quotations and citations omitted).
B. Undisputed Facts
The Local Rules regarding Summary Judgment procedures require that a non‐
moving party’s response to a Motion for Summary Judgment must contain:
. . . a concise statement of the material facts cited by the movant as to
which the non‐movant contends a genuine issue does exist. Each fact in
dispute must be numbered, must refer with particularity to those portions
of the record upon which the non‐movant relies, and must state the
number of the movant’s fact that is disputed. All material facts set forth in
the Memorandum will be deemed undisputed unless specifically
controverted. The Response may set forth additional facts other than
those which respond to the Memorandum which the non‐movant
contends are material to the resolution of the motion. Each additional fact
must be lettered and must refer with particularity to those portions of the
record upon which the non‐movant relies.
D.N.M.LR‐Civ. 56.1(b). Plaintiff did not file a response to Defendants’ summary
judgment motion, but Plaintiff’s own Motion for Summary Judgment contains a list of
undisputed material facts and directly disputes some of the facts included in
Defendants’ motion. See generally doc. 29. Construing Plaintiff’s pro se filings liberally,
the Court has ruled that it will treat his summary judgment motion as a response to
Defendants’ summary judgment motion. See doc. 32. The recitation below therefore
omits facts specifically controverted by Plaintiff in his motion insofar as he has pointed
to particular portions of the record to support his opposition. The undersigned
considers all other material facts enumerated in Defendants’ Motion for Summary
Judgment to be undisputed. See doc. 23 at 1‐3.
1. Plaintiff was arrested for the offenses of trafficking of a controlled
substance and felon in possession of a firearm on January 6, 2015, at
Plaintiff’s residence in Albuquerque, New Mexico. Doc. 22‐1 at 1, 6‐9.
2. Plaintiff’s arrest resulted from a narcotics investigation conducted by
Defendant Detective Garcia, which was initiated approximately four
weeks prior to the arrest when a confidential source informed Defendant
Garcia that Plaintiff sold narcotics. Doc. 22‐1 at 6; doc. 23 at 2.
3. During his investigation, Defendant Garcia personally observed Plaintiff
engaging in activity consistent with trafficking in controlled substances on
several occasions, including activity occurring at his residence. See doc. 22‐
1 at 6‐9.
4. Defendant Garcia facilitated a purchase of methamphetamine by the
confidential source from Plaintiff, and personally witnessed what
appeared to be a hand‐to‐hand narcotics transaction between them. Id. at
5. The substance that the confidential source purchased from Plaintiff field‐
tested positive as methamphetamine. Id.
6. Defendant Garcia submitted an affidavit for a warrant to search Plaintiff’s
residence to Judge Brett R. Lovelace of the Second Judicial District Court
on December 31, 2014, and the warrant was approved on the same date.
Docs. 22‐2, 22‐3.
7. Defendant Garcia and other personnel of Defendant Bernalillo County
Sheriff’s Department executed the search warrant at Plaintiff’s home on
January 6, 2015. Doc. 22‐1 at 8.
8. For safety reasons, the officers executing the search warrant disabled
Plaintiff’s home surveillance camera prior to approaching the residence.
Doc. 22‐4 at 1.
9. Defendant Bernalillo County Sheriff’s Department personnel executing
the warrant knocked and announced themselves as law enforcement
officers and requested entry to the residence, but Plaintiff did not answer
the door. Doc. 22‐1 at 8.
10. Unable to gain consensual entry, the officers forced entry into the home,
where they found Plaintiff locked inside his bedroom. Id.
11. The officers seized various items from Plaintiff’s home in the course of
executing the search warrant, including methamphetamine, heroin, digital
scales, plastic bags consistent with narcotics sales, an ammunition clip
loaded with eight .380 rounds, a .380 handgun, and a ballistic vest. Doc.
22‐5; doc. 23 at 3.
12. Plaintiff was thereafter arrested on charges of trafficking and distribution
of a controlled substance and being a felon in possession of a firearm, and
he was transported to the Sheriff’s Office for booking. Doc. 22‐1 at 1, 8.
13. Palmela Ortiz‐Reed, a paralegal employed by the County of Bernalillo,
signed a sworn affidavit that there is no record in the Tort Claims Notice
database for the County of Bernalillo of any Notice of Tort Claim filed by
Plaintiff regarding the NMTCA claim in his Complaint. Doc. 22‐7.
Plaintiff claims the search warrant for his home was “unconstitutionally obtained
and executed” because it was obtained without exigent circumstances, and that his
Fourth, Fifth, and Fourteenth Amendment rights were violated in the process of the
search. Doc. 1‐1 at 2. Plaintiff further alleges that Defendant Garcia “perjured himself
on affidavits for the search warrant,” and that the affidavit did not meet the probable
cause standard due to its reliance on occurrences that “appeared” to be narcotics
transactions, the credibility of a “known drug addict,” and “double [hear]say.” Doc. 29
Plaintiff also seeks damages under the NMTCA due to the fact that the
surveillance camera and three doors to his home were broken, and several items of
personal property were stolen as a result of the house having been left unsecured for
several hours after the arrest took place. Doc. 1‐1 at 2. In response to an affidavit
produced by Defendants showing that Plaintiff failed to file a Notice of Tort Claim as
required by the NMTCA, Plaintiff alleges that the government official who prepared
and signed that affidavit is lying under oath. Doc. 29 at 2. Defendants argue that they
are entitled to summary judgment because Plaintiff has failed to state any cognizable
constitutional claim and failed to file the requisite notice for his state law NMTCA
claim. For the reasons explained below, I recommend that the Court grant Defendants’
Motion for Summary Judgment and dismiss Plaintiff’s claims with prejudice.
Defendant Garcia is entitled to summary judgment on the basis of
Defendant Garcia has moved for summary judgment on the basis of qualified
immunity. Doc. 23 at 4‐10. Once an individual defendant such as Defendant Garcia
asserts qualified immunity, the burden shifts to the plaintiff to produce sufficient
evidence to establish two prongs: that the defendant’s alleged conduct violated the law,
and that the law violated was clearly established when the violation occurred. See
Pueblo Neighborhood Health Ctrs., Inc., v. Losavio, 847 F.2d 642, 645‐46 (10th Cir. 1988).
Plaintiff here has made no effort to cite to clearly established law showing that the
alleged conduct of Defendant Garcia violated his Fourth, Fifth, or Fourteenth
Amendment rights. See generally docs. 29, 30. Instead, Plaintiff cites to the New Mexico
state laws governing the offenses of perjury and conspiracy and to the Federal Rule of
Evidence governing hearsay.1 Doc. 29 at 2‐3.
Plaintiff attempts to meet his burden on his Fourth Amendment claim by citing
to law governing the contours of the Fourth Amendment right against unreasonable
searches and seizures. See id. at 6, 10 (citing to South Dakota v. Opperman, 428 U.S. 364,
388 n.6 (1976) (Marshall, J., dissenting); Mapp v. Ohio, 367 U.S. 643 (1961); and quoting
without citing Camara v. Mun. Court of City and Cty. of S.F., 387 U.S. 523, 528 (1967)).
However, none of the jurisprudence on which Plaintiff relies pertains to the facts
In his response, Plaintiff also raises the issue of ineffective assistance of counsel for the first time, and
alludes to a litany of other possible procedural defects tainting his state court conviction. See doc. 29 at 7‐
9, 11 (noting a prosecutor’s duty to ensure a fair trial, mentioning the Sixth Amendment rights to counsel
and to be read Miranda rights, arguing the state court trial judge had a conflict of interest requiring
recusal because he signed the search warrant, and discussing the rules governing § 2254 and § 2255
proceedings). All such claims are properly suited to a § 2254 motion attacking his state sentence, rather
than a § 1983 suit seeking damages from the state actors responsible for the alleged constitutional
violations leading up to his arrest. See Preiser v. Rodriguez, 411 U.S. 475, 487‐90 (1973). If the Court were
to construe Plaintiff’s newly introduced allegations as a claim that his conviction should be vacated due
to ineffective assistance of counsel or other procedural defects, Plaintiff’s claims would be barred
altogether by the rule of Heck v. Humphrey, 512 U.S. 477 (1994). The Heck rule requires that “where
success in a prisoner’s § 1983 damages action would implicitly question the validity of conviction or
duration of sentence, the litigant must first achieve favorable termination of available state . . . habeas
opportunities to challenge the underlying conviction or sentence.” Muhammad v. Close, 540 U.S. 749, 750
(2004) (per curiam). Upon review of Plaintiff’s Complaint, however, it appears that Plaintiff seeks
damages rather than the overturning of his conviction from the Court, and that his claims are thus
properly construed as arising under § 1983. See doc 1‐1 at 3 (Plaintiff’s prayer for relief seeks revocation of
“law enforcement certifications” and a “disciplinary report” filed against Defendant Garcia, and
$25,000.00 from the municipal Defendant); see also United States v. Nelson, 465 F.3d 1145, 1149 (10th Cir.
2006) (“It is the relief sought . . . that determines whether the pleading is a § 2255 motion”); Holly v.
Gotcher, 427 F. App’x 634, 635‐36 (10th Cir. 2011) (unpublished) (characterizing a plaintiff’s motion as
arising under § 1983 where the plaintiff sought damages rather than asking to have his sentence vacated).
Therefore, I recommend that the Court characterize Plaintiff’s claims as arising under § 1983 and
disregard his superfluous references to ineffective assistance of counsel and other procedural defects first
mentioned in his response to Defendants’ summary judgment motion.
underlying his case. For instance, the facts of Opperman involve the warrantless search
of an automobile, and the portion to which he cites is not only from the dissenting
opinion but also pertains to the permissible limits of such a search, disallowing closer
examination of the contents of closed containers or personal papers. See 428 U.S. at 388
n.6 (Marshall, J., dissenting); id. at 380 n.7.
Plaintiff’s citation to Mapp is likewise unavailing, as Plaintiff merely cites to that
case’s quotation of the text of the Fourth Amendment itself. See doc. 29 at 6; 367 U.S.
643, 646 n.4 (1961). Such a mere conclusory allegation that Defendant Garcia’s conduct
violated the clearly established law of the Fourth Amendment is at an impermissibly
broad level of generality and does not satisfy Plaintiff’s burden. See Anderson v.
Creighton, 483 U.S. 635, 638‐39 (1987); Ashcroft, 563 U.S. at 742 (“We have repeatedly told
courts . . . not to define clearly established law at a high level of generality.”). The
directive not to interpret “clearly established law” at a high level of generality is also
fatal to Plaintiff’s reliance on the language from Camara that “[t]he basic purpose of [the
Fourth] Amendment, as recognized in countless decisions of this Court, is to safeguard
the privacy and security of individuals against arbitrary invasions by governmental
officials.” 387 U.S. at 528. These citations to broad constitutional principles, without
reference to the facts of any particular case, do not suffice to meet Plaintiff’s burden to
show that it is “beyond debate” that Defendant Garcia’s actions violated any of
Plaintiff’s constitutional rights. Ashcroft, 563 U.S. at 741. “Unless such a showing is
made, the defendant prevails.” Pueblo, 847 F.2d at 646.
Plaintiff’s claims involve (i) the dismantling of a surveillance camera pursuant to
the execution of a warrant; (ii) the damaging of doors during the execution of a search
warrant where Plaintiff locked himself in a bedroom rather than answer the door; and
(iii) the damage and theft of property allegedly due to the officers leaving the house
unsecured upon Plaintiff’s arrest. Plaintiff cites to no cases clearly establishing that any
of these circumstances amount to a constitutional violation, as is required to overcome
Defendant Garcia’s qualified immunity defense. See White v. Pauly, 137 S. Ct. 548, 552
(2017) (explaining that law is not “clearly established” except where actions taken under
“similar circumstances” were held to be unconstitutional in a specific case with
precedential value). Therefore, as Plaintiff has failed to meet the “heavy two‐part
burden” of overcoming Defendant Garcia’s qualified immunity defense, I recommend
that the Court dismiss the claims against Defendant Garcia on the basis of qualified
immunity. See Medina v. Cram, 252 F.3d 1124, 1128 (10th Cir. 2001).
Defendant Bernalillo County Sheriff’s Department is entitled to
summary judgment because no constitutional violation has been
Municipalities cannot be held liable for the acts of their employees under 42
U.S.C. § 1983 on the basis of a respondeat superior theory of liability. Monell v. Dep’t of
Soc. Servs., 436 U.S. 658, 694 (1978); see also Bryson v. City of Okla. City, 627 F.3d 784, 788
(10th Cir. 2010). Instead, “[a] plaintiff suing a municipality under section 1983 for the
acts of one of its employees must prove: (1) that a municipal employee committed a
constitutional violation; and (2) that a municipal policy or custom was the moving force
behind the constitutional violation.” Myers v. Okla. Cty. Bd. of Cty. Comm’rs, 151 F.3d
1313, 1316 (10th Cir. 1998). In order to meet this burden, a plaintiff must first “identify a
government’s policy or custom that caused the injury.” Schneider v. City of Grand
Junction Police Dep’t, 717 F.3d 760, 769 (10th Cir. 2013) (internal citation omitted). The
plaintiff is then required to show “that the policy was enacted or maintained with
deliberate indifference to an almost inevitable constitutional injury.” Id. The Tenth
Circuit has distilled these requirements into three specific elements: “(1) official policy
or custom[;] (2) causation[;] and (3) state of mind.” Id.
“[U]nlike various government officials, municipalities do not enjoy immunity
from suit—either absolute or qualified—under § 1983.” Leatherman v. Tarrant Cty.
Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 166 (1993). It is true that “a
municipality may not be held liable where there was no underlying constitutional
violation by any of its officers.” Green v. Post, 574 F.3d 1294 (10th Cir. 2009) (quoting
Graves v. Thomas, 450 F.3d 1215, 1218 (10th Cir. 2006)). However, it is possible for an
officer to escape liability on the basis of qualified immunity and for the officer’s
employing municipality to nevertheless be liable for a constitutional violation. See Bass
v. Pottawatomie Cty. Pub. Safety Ctr., 425 F. App’x 713, 717‐18 (10th Cir. 2011); Boyd v.
Montezuma Cty. Sheriffʹs Office, No. 15‐CV‐00101‐MEH, 2015 WL 2329061, at *1 (D. Colo.
May 13, 2015); Starkey ex rel. A.B. v. Boulder Cty. Soc. Servs., 569 F.3d 1244, 1263 n.4 (10th
Cir. 2009) (“We recognize that judgment in favor of the individual Defendants in their
personal capacities would not necessarily bar a claim against [the municipal employer]
(or the individual defendants in their official capacities).”). Therefore, I will now
address whether Plaintiff has made a sufficient factual showing to create a genuine
issue of material fact as to whether employees of the municipal Defendant committed
any constitutional violations in this case, as required to establish municipal liability
under § 1983. See Myers, 151 F.3d at 1316 (10th Cir. 1998).2
a. Plaintiff’s Fourteenth Amendment claim
In his Complaint, Plaintiff avers that the search warrant underlying the search of
his residence was “unconstitutionally obtained and executed . . . . My 4th[,] 5th[,] and
14th Amendment [rights] were violated.” Doc. 1‐1 at 2. In his response to Defendants’
Motion for Summary Judgment, Plaintiff includes further detail as to the source of his
Fourteenth Amendment claim, referring to “[t]he ‘Fourth Amendment,’ made
applicable to the states through the ‘Fourteenth Amendment.’” Doc. 29 at 6. Plaintiff
thus may have cited to the Fourteenth Amendment merely to emphasize to the Court
As noted above, establishing municipal liability requires proof of both a constitutional violation and a
policy/custom which was the moving force behind the violation. The summary judgment record contains
no evidence of such a policy/custom. See generally docs. 1‐1, 22, 23, 28, 29. However, because Defendants
did not make that argument and, in the context of a non‐qualified immunity summary judgment motion,
the burden is on the municipal Defendant to demonstrate the absence of a material fact, the undersigned
does not rely on this apparent deficiency.
that the protections of the Fourth Amendment have been incorporated against the
states, and not as an independent constitutional claim under the Fourteenth
Construing his filings liberally, Plaintiff may be attempting to state a claim under
the Due Process clause of the Fourteenth Amendment, which protects against
governmental deprivations of “life, liberty, or property” without due process of law.
U.S. CONST. amend. XIV; see Baker v. McCollan, 443 U.S. 137, 145 (1979). For example, as
discussed above, Plaintiff quotes the language of Camara explaining that the purpose of
the Fourth Amendment “is to safeguard the privacy and security of individuals against
arbitrary invasions by governmental officials.” 387 U.S. at 528. The arbitrary
deprivation of an individual’s property right also implicates the “substantive
component of the Due Process clause of the Fourteenth Amendment.” Clark v. City of
Draper, 168 F.3d 1185, 1190 (10th Cir. 1999). However, where a particular Amendment
“‘provides an explicit textual source of constitutional protection’ against a particular
sort of government behavior, ‘that Amendment, not the more generalized notion of
substantive due process, must be the guide for analyzing’ such a claim.” Albright v.
Oliver, 510 U.S. 266, 273 (1994) (quoting Graham v. Connor, 490 U.S. 386, 395 (1989)). See
doc. 23 at 10.
Insofar as Plaintiff is relying on the procedural due process guarantee of the
Fourteenth Amendment to argue that the property damage that occurred during the
lawful search was unconstitutional, such a claim is also properly characterized as
arising under the Fourth Amendment rather than the Fourteenth. See Gerstein v. Pugh,
420 U.S. 103, 125 n.27 (“The Fourth Amendment was tailored explicitly for the criminal
justice system, and its balance between individual and public interests always has been
thought to define the ‘process that is due’ for seizures of . . . property in criminal
cases”); cf. United States v. James Daniel Good Real Prop., 510 U.S. 43, 49‐52 (1993).
Thus, Plaintiff states no independent Fourteenth Amendment claim, and,
following Albright and Graham, it is therefore proper to address the alleged
unconstitutional conduct through the lens of the relevant Fourth Amendment
b. Plaintiff’s Fourth Amendment claim
Plaintiff alleges that Defendant Garcia “executed a search warrant that was
obtained without exigent circumstances[,] which violates [his] civil rights.” Doc. 1‐1 at
2. However, the existence of exigent circumstances is not a requirement for obtaining a
search warrant. In fact, exigent circumstances are required only for certain warrantless
searches. See, e.g., Kirk v. Louisiana, 536 U.S. 635, 638 (2002). Rather, a warrant may
issue upon a showing of probable cause that contraband or evidence is located in the
particular place to be searched. U.S. CONST. amend. IV (“no Warrant shall issue, but
upon probable cause, supported by Oath or affirmation, and particularly describing the
place to be searched, and the persons or things to be seized”); see also United States v.
Ventresca, 380 U.S. 102, 107 (1965); Illinois v. Gates, 462 U.S. 213, 230 (1983).
Probable cause is defined as “a reasonable ground for belief of guilt . . . [which]
means less than evidence which would justify condemnation or conviction[.]” Brinegar
v. United States, 338 U.S. 160, 175 (1949) (internal quotations and citations omitted).
“Probable cause exists where ‘the facts and circumstances within [the officers’]
knowledge and of which they had 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.” Id. at 175‐76 (quoting Carroll v. United States, 267 U.S. 132, 162
(1925)) (internal quotations and alterations omitted). Whether such probable cause
exists must be determined by considering the totality of the circumstances. Gates, 462
U.S. at 238. Moreover, an affidavit for a search warrant may be based on hearsay, “so
long as a substantial basis for crediting the hearsay is presented.” Id. at 241‐42 (quoting
Jones v. United States, 362 U.S. 257, 269 (1960), overruled on other grounds by United States
v. Salvucci, 448 U.S. 83, 85 (1980)).
Here, the search of Plaintiff’s home was executed pursuant to a search warrant
issued by a Second Judicial District Court Judge upon review of the affidavit submitted
by Defendant Garcia. See doc. 22‐3. Because a search warrant “provides the detached
scrutiny of a neutral magistrate,” the Supreme Court has “expressed a strong preference
for warrants and declared that in a doubtful or marginal case a search under a warrant
may be sustainable where without one it would fall.” United States v. Leon, 468 U.S. 897,
913‐14 (internal quotations omitted). This preference “is most appropriately effectuated
by according great deference to a magistrate’s determination” that the affidavit
supporting the warrant establishes probable cause. Id. at 914 (internal quotations
omitted). Such deference to a magistrate’s finding of probable cause “is not
boundless[,]” however, and “does not preclude inquiry into the knowing or reckless
falsity of the affidavit on which [the] determination [that probable cause exists] was
based.” Id. (citing Franks v. Delaware, 438 U.S. 154, 165 (1978)).
Plaintiff alleges that Defendant Garcia committed perjury in his affidavit for the
search warrant. See doc. 29 at 2. Such an allegation, if true, might constitute a violation
of Plaintiff’s Fourth Amendment right to be free of unreasonable searches and seizures.
See Snell v. Tunnell, 920 F.2d 673, 598 (10th Cir. 1990). The Tenth Circuit has explained
that the Fourth Amendment’s “prohibition against unreasonable searches and seizures
is implicated” where (1) a plaintiff shows “that the allegations [contained in an affidavit
underlying a warrant] were fabricated” and (2) the defendant officers who included
these falsehoods in an affidavit “knew that such allegations were untrue[,]” but
nevertheless “engaged in a deliberate course of conduct, complete with false
information, designed to gain entry into” the place to be searched. Id.
However, a review of the factual basis of Plaintiff’s allegation that Defendant
Garcia intentionally fabricated information to obtain the search warrant reveals that
Plaintiff’s claim has no merit. In his response to Defendants’ summary judgment
motion, Plaintiff attached a heavily annotated copy of the affidavit in question
indicating which aspects he contends are baseless. See doc. 29 at 20‐23. Plaintiff objects
that: (1) Defendant Garcia stated that he had “reason to believe” rather than “proof”
that there may be narcotics and other items related to narcotics trafficking on the
premises to be searched; (2) Defendant Garcia stated that he observed “what appeared
to be a hand to hand narcotics transaction;” (3) the affidavit in its entirety was “based
on ‘appeared’ and on the credibility of a known drug addict . . . [which is] double
[hear]say” and is “not probable cause nor exigent circumstances;” (4) the affidavit is
“not specific what is to be searched nor seized;” (5) the affidavit contained a
contradiction in that it stated that the confidential source had “firsthand knowledge”
that Plaintiff was trafficking narcotics out of his residence, but later stated that the
source informed Defendant Garcia that Plaintiff “resides somewhere in Westgate;” and
(6) the affidavit states that Plaintiff “has a lengthy criminal arrest history in Bernalillo
County for various offenses including trafficking narcotics[,]” which Plaintiff contends
These allegations are clearly insufficient to show the “deliberate falsehood or
reckless disregard for truth, [which is] needed to challenge the presumed validity of an
affidavit supporting a search warrant[.]” Snell, 920 F.2d at 698 (citing Franks, 438 U.S. at
171). As discussed above, “reason to believe” that evidence of narcotics trafficking
would be found in Plaintiff’s residence is all that is required to meet the probable cause
standard—absolute proof is not. Brinegar, 338 U.S. at 175‐76. So, too, is hearsay an
acceptable source to establish probable cause for a search warrant, so long as there is a
“substantial basis” to credit the hearsay. Gates, 462 U.S. at 241‐42. It is undisputed that
Defendant Garcia personally witnessed a hand‐to‐hand transaction occur between the
confidential source and Plaintiff, and that the substance purchased by the confidential
source during that interaction field‐tested positive for methamphetamine. See doc. 22‐1
at 6. It is also undisputed that Defendant Garcia personally observed several other
hand‐to‐hand transactions occurring between Plaintiff and other parties, as well as
significant vehicle traffic at Plaintiff’s home over the course of two weeks by visitors
who usually stayed for three to five minutes at a time, which, based on Defendant
Garcia’s experience and training, was indicative of narcotics sales. See id. at 6‐9. Thus,
the hearsay to which Plaintiff objects was corroborated by substantial evidence, and the
judge had good reason to credit it. The undisputed facts in this case establish that there
was in fact probable cause to issue the search warrant.
Additionally, the alleged contradiction identified by Plaintiff does not necessarily
constitute a contradiction at all, as it is possible for a person to witness the trafficking of
narcotics out of a person’s residence without recalling the specific address of the
residence. Moreover, Plaintiff furnishes no factual basis for the claim that Defendant
Garcia’s assertion in the affidavit that Plaintiff has been arrested in the past for various
offenses, including trafficking narcotics, is untrue. See generally docs. 1‐1, 29. Even
assuming arguendo that the statement regarding Plaintiff’s criminal history is false, there
“remains sufficient content in the warrant affidavit to support a finding of probable
cause,” which would render any search executed pursuant to the warrant lawful.
Franks, 438 U.S. at 171‐72. Moreover, these potential contradictions or incorrect
statements do not rise to the level of a “deliberate falsehood” required to challenge the
presumption of validity with respect to the affidavit supporting a search warrant. See
Snell, 920 F.2d at 698; Franks, 438 U.S. at 171. Additionally, it is beyond reasonable
dispute that the affidavit is sufficiently specific as to the items to be searched or seized.
See doc. 22‐2 at 1‐2.3
Finally, Plaintiff alleges in his Complaint that (1) his property was destroyed
during the search and (2) other property was stolen from his residence following the
search due to the home being left unsecured and unoccupied following Plaintiff’s arrest
The list of such items reads as follows: “Meth and other controlled substances, in any form, in an
unknown quantity, including but not limited to Meth; paraphernalia used for the packaging, distribution,
weighing, smoking, cooking, possession, use and/or sale of Meth and other controlled substances.
Records, which reflect the identities of persons found at the above‐described premises, in the possession
of the above Meth and/or other controlled substances. United States currency, and/or any firearms,
weapons, and/or other protective devices used of intended for use in the trafficking, sale, possession
and/or manufacturing of any controlled substance and records which reflect the purchase of any of the
above listed items or as they pertain to the above listed items, including, but not limited to: Receipts,
invoices, work orders, and purchase orders.” Doc. 22‐2 at 1. The descriptions of the residence and vehicle
to be searched for such items are similarly specific, including such details as the type of roof, the color
and type of building materials of various parts of the home, the direction in which the doors and
windows face, that the physical address is marked in black above the front door, and the color, make,
model, year, license plate number, and VIN of the vehicle. See id.
and a house key being left outside on the hood of a vehicle. Doc. 1‐1 at 2. Specifically,
Plaintiff alleges that his security cameras were removed and three doors and two
television sets were broken during the search, and that a stereo system and jewelry
were stolen from the residence after the search. Id.; doc. 29 at 3. “Excessive or
unnecessary destruction of property in the course of a search may violate the Fourth
Amendment, even though the entry itself is lawful[.]” United States v. Ramirez, 523 U.S.
65, 71 (1998). However, property damage caused during the execution of a valid search
warrant is not per se unreasonable, as “officers executing search warrants on occasion
must damage property in order to perform their duty.” Dalia v. United States, 441 U.S.
238, 257 (1979). The Court should apply the “general touchstone of reasonableness
which governs Fourth Amendment analysis” in analyzing the “method of execution of
the warrant.” Ramirez, 523 U.S. at 71. Applying that reasonableness standard is a fact‐
specific inquiry “requir[ing] careful attention to the facts and circumstances of each
particular case.” Graham, 490 U.S. at 396.
Here, the officers executing the search warrant disabled a surveillance camera
before approaching the front door, and then knocked and announced themselves prior
to initiating forced entry. Doc. 22‐1 at 8; doc. 22‐4 at 1. Once inside, the officers found
that Plaintiff had locked himself inside his bedroom. See id. The officers then detained
Plaintiff while they searched his home in accordance with the warrant, recovering
methamphetamines, heroin, a firearm, and other items contemplated by the warrant.
Plaintiff was then arrested. See doc. 22‐1 at 8; doc. 22‐5. “The knock‐and announce rule
gives individuals the opportunity to comply with the law and to avoid the destruction
of property occasioned by a forcible entry.” Hudson v. Michigan, 547 U.S. 586, 594 (2006)
(internal quotations omitted). “[W]here the officers knock and announce their
presence, and forcibly enter after a reasonable suspicion of exigency ha[s] ripened,
their entry satisfie[s] . . . the Fourth Amendment, even without refusal of admittance.”
United States v. Banks, 540 U.S. 31, 43 (2003). The Tenth Circuit has explained that “a
constructive refusal occurs, giving police the right to enter by force, where the
occupants do not admit the officers within a reasonable period of time.” United States v.
Gallegos, 314 F.3d 456, 459 (10th Cir. 2002) (internal quotations omitted). The amount of
time that is considered reasonable to wait before forcing entry “depends on the
particular facts and circumstances of each case.” United States v. Jenkins, 175 F.3d 1208,
1213 (10th Cir. 1999). Relevant facts to consider include whether exigent circumstances
exist, which may justify a relatively short waiting period, and whether the warrant is
executed in the middle of the day, which also reduces the reasonable amount of time
officers are required to wait. See id. at 1214, 1215.
There are no facts in the record regarding the precise amount of time the officers
waited before initiating forced entry, nor does Plaintiff aver that the officers waited for
an insufficient amount of time. See generally docs. 1‐1, 29. Therefore, Plaintiff has not
pointed to any evidence creating a genuine dispute of material fact as to the
reasonableness of the officers’ forced entry, and the damage to the locked doors of the
home thus cannot be said to constitute “[e]xcessive or unnecessary destruction of
property” rising to the level of a Fourth Amendment violation. See Ramirez, 523 U.S. at
Moreover, removal of the surveillance cameras was necessary to ensure officer
safety in executing the search warrant, as allowing Plaintiff the ability to anticipate and
view the officers’ movements could place them in serious danger of ambush. See, e.g.,
Maryland v. Buie, 494 U.S. 325, 333 (1990) (explaining that “[t]he risk of danger in the
context of an arrest in the home is as great as, if not greater than, it is in an on‐the‐street
or roadside investigatory encounter” and that “[a]n ambush in a confined setting of
unknown configuration is more to be feared than it is in open, more familiar
surroundings.”). It was therefore reasonable for the officers to attempt to neutralize
“the disadvantage of being on [their] adversary’s turf” by disabling the surveillance
cameras before approaching the residence. Id.
In addition, Plaintiff does not assert that the officers personally stole his jewelry
and stereo system, but rather that they left the front door of the home unsecured and
left a key to the unoccupied house outside. See doc. 1‐1 at 2. However, “if the property
damage results from mere negligence, no constitutional violation is demonstrated.”
Caviness v. Johnson, 614 F. Supp. 2d 1246, 1251 (W.D. Okla. 2008) (citing Bergquist v. Cty.
of Cochise, 806 F.2d 1364, 1369 (9th Cir. 1986)). While the officers may have been
negligent to leave the home open to intrusion by third parties, such negligence does not
demonstrate a violation of the Constitution.
It is unclear whether the televisions were broken by the officers or discovered
broken following the search. See doc. 1‐1 at 2. Viewing the facts in the light most
favorable to Plaintiff, and assuming arguendo that the officers broke the televisions,
damage that occurs incidental to a search is not a constitutional violation. Lemmons v.
Waters, 2014 WL 5419237, at *5 (N.D. Okla. Oct. 23, 2014) (citing Ramirez, 523 U.S. at 71).
In Lemmons, the court granted summary judgment to the defendants where the plaintiff
claimed that the officers executing a search warrant in his home “stomped and
destroyed his home security system, cameras, monitor, and continuous feed recording
equipment . . . . [and] antique jewelry, diamonds, gold, and cash, totaling
approximately $250,000 in value, were stolen by [the defendants] during their
‘rampage.’” Id. The court explained that “[d]espite [the plaintiff’s] characterization of
[the defendants’] search as a ‘rampage,’ he offers nothing but his conclusory allegations
to support his claim that the search violated his constitutional rights” and failed to
“demonstrate, or even allege, that [the defendants] acted with malice.” Id. at *6.
Similar to the facts in Lemmons, the officers here were searching for drugs, drug
paraphernalia, currency, weapons, and any records containing evidence of Plaintiff’s
narcotics trafficking, computerized or otherwise. See doc. 22‐2 at 1. And similar to the
plaintiff in Lemmons, Plaintiff has furnished no evidence supporting the claim that the
search conducted was unnecessarily thorough to fulfill its purpose, as the scope of the
search warrant was broad and extended to the entire home and any vehicles on the
property. See id; see also Lemmons, 2014 WL 5419237, at *6. “[A] warrant to seize items
‘also provides authority to open closets, chests, drawers, and containers’ in which those
items might be found.” Id. (quoting United States v. Ross, 456 U.S. 798, 820‐21 (1982)). It
is possible that the televisions were broken as a result of forced entry into Plaintiff’s
bedroom, or otherwise removed from the walls to search for compartments or safes
where the items listed in the warrant could be hidden. Even viewing the facts in the
light most favorable to Plaintiff, he has simply made no allegations that the officers
caused anything other than property damage that was merely incidental to a reasonable
and lawful search, which is permissible under the Fourth Amendment.
Plaintiff’s assertions do not create a genuine issue of material fact as to whether
Defendant Garcia or the other officers employed by the municipal Defendant violated
Plaintiff’s Fourth Amendment rights. See Liberty Lobby, 477 U.S. at 249‐50 (“If the
evidence is merely colorable, or is not significantly probative, summary judgment may
be granted.”) (citations omitted). I therefore recommend that the Court find that no
reasonable jury could find a violation of the Fourth Amendment under the facts alleged.
c. Plaintiff’s Fifth Amendment claim
The factual basis offered by Plaintiff to support his Fifth Amendment claim is
sparse. See generally docs. 1‐1, 29. Defendants state that Plaintiff appears to be invoking
the protection of the takings clause, due to the seizure of various items from the
residence, the disabling of the security camera, and the damage caused by the forced
entry. See doc. 23 at 9‐10. However, as discussed above, these allegations go to the
reasonableness of the search and are therefore properly analyzed under the Fourth
To the extent Plaintiff is relying on the Due Process clause of the Fifth
Amendment, that clause applies only to the actions of federal officials, as opposed to
state officials. See Dusenberry v. United States, 534 U.S. 161, 167 (2002) (“The Due Process
Clause of the Fifth Amendment prohibits the United States, as the Due Process Clause
of the Fourteenth Amendment prohibits the States, from depriving any person of
property without ‘due process of law.’”); see also S.F. Arts & Athletics, Inc. v. U.S.
Olympic Comm., 483 U.S. 522, 542 n. 21 (1987); Greene v. Impson, 530 F. App’x 777, 779 n.3
(10th Cir. 2013). It is thus inapplicable to the facts of this case.
Plaintiff has failed to establish any constitutional violation in this case.
Therefore, I recommend that the Court find Defendant Bernalillo County Sheriff’s
Department is entitled to summary judgment due to Plaintiff’s failure to establish
sufficient evidence from which a reasonable jury might find that his constitutional
rights were violated. See Liberty Lobby, 477 U.S. at 248‐49.
Plaintiff’s state law claims under the NMTCA should be dismissed
due to non‐compliance with the Act’s notice requirement.
The NMTCA waives immunity from tort liability for law enforcement officers
accused of committing certain personal torts while acting within the scope of their
duties. N.M.S.A. § 41‐4‐12. However, in order to seek damages under the NMTCA, a
plaintiff is required to “cause to be presented to . . . the county clerk of a county for
claims against the county . . . within ninety days after an occurrence giving rise to [the
NMTCA] claim[,] . . . a written notice stating the time, place and circumstances of the
loss or injury.” N.M.S.A. § 41‐4‐16(A). If a plaintiff fails to provide such notice, “[n]o
suit or action for which immunity has been waived under the [NMTCA] shall be
maintained and no court shall have jurisdiction to consider” such a claim, unless the
governmental defendant had actual notice of the occurrence giving rise to the action. Id.
Here, Palmela Ortiz‐Reed, a paralegal employed by the County of Bernalillo, has
signed a sworn affidavit stating that no such notice was filed by Plaintiff. Doc. 22‐7. In
response, Plaintiff accuses Ms. Ortiz‐Reed of “falsifying [an] affidavit under oath.”
Doc. 29 at 2. This dispute, however, is better characterized as a misunderstanding than
as a genuine dispute of material fact. Plaintiff appears to have conflated the requisite
“Notice of Tort Claim” referred to in Ms. Ortiz‐Reed’s affidavit with Defendants’ notice,
by way of receipt of the complaint and summons, of the present lawsuit when it was
first filed in state court. See doc. 29 at 2, 12, 13, 29.
In asking the state court to overturn the entry of default, Defendants submitted
affidavits in state court swearing that they were not served with a summons or
complaint, which explains why they failed to file a response. See doc. 7‐1 at 45‐48.
Andrea Gonzales, an administrative officer employed by the Sheriff’s Office, swore an
affidavit to that effect on behalf of Defendant Bernalillo County Sheriff’s Office. See id.
at 47‐48. Plaintiff attached Ms. Gonzales’s affidavit to his response to Defendants’
summary judgment motion, and wrote “[perjury] under oath” in reference to the
statement that the Sheriff’s Office had no record of receiving the summons and
complaint. Doc. 29 at 13. Plaintiff likewise marked the statement in Ms. Ortiz‐Reed’s
affidavit that there was no record in the Tort Claims Notice database of his tort claims
in this case as “[perjury] under oath.” See id. at 29. Additionally, Plaintiff’s response to
Defendants’ summary judgment motion cites to the New Mexico law governing the
offense of conspiracy, and immediately thereafter argues that “two . . . government
officials which work for [Defendant] Bernalillo County Sheriff’s Office, Andrea
Gonzales . . . and . . . Palmela Ortiz‐Reed, paralegal . . . are falsifying affidavits under
oath.” Id. at 2.
Taken together, Plaintiff’s allegations that Ms. Ortiz‐Reed and Ms. Gonzales are
both employees of the Bernalillo County Sheriff’s Office and that they committed
conspiracy indicate Plaintiff’s misunderstanding as to Ms. Ortiz‐Reed’s identity4 and
the facts contained in her affidavit. Further supporting this conclusion is Plaintiff’s
continuing focus in all of his filings on the decision below to set aside the entry of
default that was entered in his favor, a result that was based in part on Defendants’
claim that they never received the complaint and summons. See docs. 14, 15, 27, 28, 29.
While Plaintiff accuses both Ms. Ortiz‐Reed and Ms. Gonzales of wrongdoing, none of
his allegations demonstrate that he filed the requisite Notice of Tort Claim in order for
his claim under the NMTCA to proceed.
Plaintiff has failed to furnish any factual basis, beyond mere conclusory
allegations, to support the claim that he filed the requisite Notice of Tort Claim within
ninety days of the underlying occurrence. Therefore, I recommend that the Court
dismiss his claim under the NMTCA, because the Court has no jurisdiction to consider
such a claim absent the requisite notice. See N.M.S.A. § 41‐4‐16.
For the foregoing reasons, I recommend that the Court DENY Plaintiff’s Motion
for Reconsideration (doc. 14) and Motion to Remand (doc. 15). I also recommend that
Plaintiff’s Motion for Summary Judgment (doc. 29) be DENIED as a stand‐alone motion
as it has been construed as a Response to Defendants’ Motion for Summary Judgment.
See doc. 32. I further recommend that the Court find that: (1) Plaintiff’s federal claims
As noted, Ms. Ortiz‐Reed does not work for the Sheriff’s Office, but rather works for the County of
against Defendant Garcia in his individual capacity are barred by qualified immunity;
(2) Plaintiff’s federal claims against Defendant Bernalillo County Sheriff’s Department
should be dismissed because Plaintiff failed to establish a constitutional violation; and
(3) Plaintiff’s state law claims under the New Mexico Tort Claims Act should be
dismissed due to Plaintiff’s failure to comply with the Act’s notice requirement.
Therefore, I recommend that the Court GRANT Defendants’ Motion for Summary
Judgment (doc. 23) and DISMISS Plaintiffs’ claims with prejudice.
GREGORY B. WORMUTH
United States Magistrate Judge
THE PARTIES ARE FURTHER NOTIFIED THAT WITHIN 14 DAYS OF SERVICE of
a copy of these Proposed Findings and Recommended Disposition they may file written
objections with the Clerk of the District Court pursuant to 28 U.S.C. § 636(b)(1). A party must
file any objections with the Clerk of the District Court within the fourteen‐day period if that
party wants to have appellate review of the proposed findings and recommended
disposition. If no objections are filed, no appellate review will be allowed.
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