Scull v. St. of New Mexico

• Citation: 236 F.3d 588
• Decision Date: 22 December 2000
• Docket Number: Nos. 99-2215,99-2216,s. 99-2215
• Parties: (10th Cir. 2000) NANCY SCULL, as Personal Representative of LITTLE ROCK REED, also known as Timothy Reed, Plaintiff-Appellant, v. STATE OF NEW MEXICO; COUNTY OF BERNALILLO; MICHAEL SISNEROS, individually and in his capacity as Director of the Bernalillo County Detention Center; CITY OF ALBUQUERQUE; ROBERT SCHWARTZ, Individually and in his Capacity as District Attorney of Bernalillo County; TOM UDALL, Attorney General State of New Mexico, Individually and in his Capacity as Attorney General; DOES I THROUGH X, Defendants, and ANTHONY TUPLER, individually and in his Capacity as Assistant Attorney General State of New Mexico; KATHRYN MARQUEZ; PHILLIP CHEVES; KATHY SILVA; ALLAN RACKSTRAW, Defendants - Appellees. NANCY SCULL, as Personal Representative of LITTLE ROCK REED, also known as Timothy Reed, Plaintiff-Appellant, v. STATE OF NEW MEXICO; COUNTY OF BERNALILLO; ROBERT SCHWARTZ, Individually and in his Capacity as District Attorney of Bernalillo County; TOM UDALL, Attorney General State of New Mexico, Individually and in his Capacity as Attorney General; ANTHONY TUPLER, Individually and in his Capacity as Assistant Attorney General State of New Mexico; DOES I THROUGH X, Defendants, and MICHAEL SISNEROS, Individually and in his capacity as Director of the Bernalillo County Detention Center; CITY OF ALBUQUERQUE; JOE GUTIERREZ; DAVID SHERMAN, Defendants - Appellees
• Court: U.S. Court of Appeals — Tenth Circuit

Page 588

236 F.3d 588 (10th Cir. 2000)

NANCY SCULL, as Personal Representative of LITTLE ROCK REED, also known as Timothy Reed, Plaintiff-Appellant, v. STATE OF NEW MEXICO; COUNTY OF BERNALILLO; MICHAEL SISNEROS, individually and in his capacity as Director of the Bernalillo County Detention Center; CITY OF ALBUQUERQUE; ROBERT SCHWARTZ, Individually and in his Capacity as District Attorney of Bernalillo County; TOM UDALL, Attorney General State of New Mexico, Individually and in his Capacity as Attorney General; DOES I THROUGH X, Defendants, and ANTHONY TUPLER, individually and in his Capacity as Assistant Attorney General State of New Mexico; KATHRYN MARQUEZ; PHILLIP CHEVES; KATHY SILVA; ALLAN RACKSTRAW, Defendants - Appellees.

NANCY SCULL, as Personal Representative of LITTLE ROCK REED, also known as Timothy Reed, Plaintiff-Appellant, v. STATE OF NEW MEXICO; COUNTY OF BERNALILLO; ROBERT SCHWARTZ, Individually and in his Capacity as District Attorney of Bernalillo County; TOM UDALL, Attorney General State of New Mexico, Individually and in his Capacity as Attorney General; ANTHONY TUPLER, Individually and in his Capacity as Assistant Attorney General State of New Mexico; DOES I THROUGH X, Defendants, and MICHAEL SISNEROS, Individually and in his capacity as Director of the Bernalillo County Detention Center; CITY OF ALBUQUERQUE; JOE GUTIERREZ; DAVID SHERMAN, Defendants - Appellees.

Nos. 99-2215, 99-2216

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

December 22, 2000

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO. (D.C. NO. CIV-98-128-LFG/RLP)

[Copyrighted Material Omitted] Submitted on the briefs:^* Steven Douglas Looney, Crider, Bingham & Hurst, P.C., Albuquerque, New Mexico, for the Plaintiff-Appellant.

Joan M. Waters, Attorney at Law, Albuquerque, New Mexico, and Jeffery L. Baker, Baker Law Firm, Albuquerque, New Mexico,for the Defendants-Appellees.

Before SEYMOUR, Chief Judge, EBEL, and HENRY, Circuit Judges.

HENRY, Circuit Judge.

Appellant Timothy "Little Rock" Reed, now deceased and personally represented by Nancy Scull, brought suit against the State of New Mexico, the County of Bernalillo, the City of Albuquerque, and various state and local officials pursuant to 42 U.S.C. 1983, 1985, and 1986 and the New Mexico Tort Claims Act. The essence of Mr. Reed's claims is that the Appellees unlawfully detained him for thirty days without initiating extradition proceedings. During the proceedings below, the district court held that the Appellees were entitled to summary judgment. We affirm the grant of summary judgment, concluding that the Appellees were immune from the 1983 claims and that Mr. Reed failed to establish a genuine issue of material fact with respect to his tort claims.

I. PROCEDURE

On January 30, 1998, Mr. Reed filed a complaint, alleging unlawful detention against the following defendants: the State of New Mexico; the County of Bernalillo; the City of Albuquerque; Tom Udall, the Attorney General of New Mexico; Anthony Tupler, an Assistant Attorney General of New Mexico; Robert Schwartz, the District Attorney for Bernalillo County; and Michael Sisneros, the Director of the Bernalillo County Detention Center ("BCDC").

Approximately a year later, the City of Albuquerque and Mr. Sisneros filed a joint motion for summary judgment; Mr. Udall, Mr. Tupler, and Mr. Schwartz did the same. In his response, Mr. Reed stipulated to the dismissal of the City of Albuquerque. See Aplt's Br. at 3 (No. 99-2216). He also stipulated to the dismissal of Mr. Udall and Mr. Schwartz. See Aplt's Br. at 3 (No. 99-2215). Bernalillo County had been dismissed several months earlier.

On February 16, 1999, Mr. Reed filed a motion to amend the complaint, seeking to join as defendants Alan Rackstraw, Deputy District Attorney for Bernalillo County; Katherine Marquez, Extradition Coordinator for the Bernalillo County District Attorney's office; Kathy Silva, assistant to Ms. Marquez; Joe Gutierrez, a major at BCDC; and David Sherman, a BCDC caseworker. In the alternative, Mr. Reed sought to consolidate the case already filed against these defendants.

On June 1, 1999, the district court granted Mr. Reed's motion to amend. The next day, it issued an order granting summary judgment to Mr. Tupler, Mr. Rackstraw, Mr. Cheves, Ms. Marquez, and Ms. Silva (collectively "Prosecutor Appellees"). With respect to the 1983 claims, the district court found that the Prosecutor Appellees' actions were protected by absolute immunity or, in the alternative, qualified immunity. With respect to the 1985 and 1986 claims, the district court determined that they had been withdrawn by Mr. Reed. Finally, with respect to the various state tort claims, the district court concluded that there had been no waiver of immunity under the New Mexico Tort Claims Act and that the waiver for law enforcement did not apply.

In a separate order, also issued on June 2, 1999, the district court granted summary judgment to Mr. Sisneros, Mr. Gutierrez, and Mr. Sherman (collectively "BCDC Appellees"). With respect to the 1983 claims, the district court found that the BCDC Appellees were not liable because they had not acted unlawfully. With respect to the 1985 and 1986 claims, the district court determined that they had been withdrawn by Mr. Reed and that, in any event, Mr. Reed had not demonstrated membership in a protected class. Finally, with respect to the claim of false imprisonment under the New Mexico Tort Claims Act, the district court concluded that Mr. Reed could not establish that the BCDC Appellees knew they had no lawful authority to confine or restrain him.

On August 13, 1999, the district court clarified that Mr. Reed had voluntarily withdrawn his claims against the State of New Mexico. See Aplt's App. vol. III, doc. 19, at 000665 (district court order, filed Aug. 13, 1999).

II. BACKGROUND

For ten years, Mr. Reed was incarcerated in Ohio on one charge of theft of drugs and two charges of aggravated robbery. In May 1992, he was released on parole. As a condition of parole, Mr. Reed signed a waiver of extradition which provided, in part, the following:

[S]hould I leave the State of Ohio without such written permission, I will be considered to be a fugitive from justice as that term is defined in the Uniform Extradition Act and should I be found in another state, I hereby waive extradition and do hereby waive all of my rights to demand the issuance and service of a warrant of extradition and to apply for writ of habeas corpus and waive the issuance and service of all extradition proceedings and I will voluntarily return to the state of Ohio.

Aplt's App. vol. I, doc. 6, at 000213 (waiver of extradition).

A year later, Mr. Reed's parole officer told him to report to the parole office in Ohio to be arrested. (Mr. Reed had been charged with "terroristic threatening" in violation of Kentucky law.) See Reed v. State ex rel. Ortiz, 947 P.2d 86, 91 (N.M. 1997) [hereinafter Ortiz II], rev'd, 524 U.S. 151 (1998). Mr. Reed, however, did not appear at the appointed time. "Claiming he was forced to choose between violating parole and being beaten or killed at Lucasville [the Ohio correctional facility], he fled Ohio" and eventually ended up in Taos, New Mexico. Id. at 93. Ohio's Adult Parole Authority subsequently issued a state warrant for Reed's arrest. See Aplt's App. vol. II, doc. 8, at 000326 (state warrant).

On October 26, 1994, Mr. Reed was arrested in Taos as a fugitive from justice pursuant to a warrant issued on behalf of the governor of Ohio by the governor of New Mexico. After Mr. Reed's arrest, a fugitive complaint was filed by the Taos County District Attorney, and extradition proceedings were thereby initiated: Mr. Reed was arraigned in state court and given leave to file a petition for a writ of habeas corpus. See Ortiz II, 947 P.2d at 94. Mr. Reed did file a petition and, several months later, state Judge Peggy Nelson granted it. Judge Nelson held that Mr. Reed was not a fugitive because he had left Ohio "under duress and under a reasonable fear for his safety and his life"; she thus ordered that he be released from custody. Reed v. Ortiz, No. 94-1 CR, 1995 WL 118952, at *7 (N.M. Dist. Ct. Jan. 20, 1995) [hereinafter Ortiz I], rev'd, 524 U.S. 151 (1998).

The state later appealed Judge Nelson's order. Assistant Attorney General Anthony Tupler represented the state on appeal, and Sue Herrmann represented Mr. Reed. While the Taos County case was on appeal, Mr. Reed was involved in a minor car accident in Albuquerque, New Mexico. When the police arrived at the scene, they learned via a National Crime Information Center ("NCIC") "hit" that he had an outstanding warrant in Ohio for an alleged parole violation. Unbeknownst to the police, the outstanding warrant was the same as that at issue in the Taos County appeal. Mr. Reed was arrested and taken to the BCDC.

Mr. Reed was incarcerated in the BCDC from November 17 to December 16, 1996, for a total of thirty days. Upon first being detained, Mr. Reed was allowed one phone call. He called an attorney, Richard Weiner, who promptly came to the jail. Mr. Weiner brought with him a copy of Judge Nelson's order, which he showed to several BCDC employees. Notably, Judge Nelson's ordered specified that Mr. Reed be released from the Taos County Adult Detention Center ("TCADC"), not the BCDC. See Ortiz I, 1995 WL 118952, at *8 ("It is therefore ordered . . . [t]hat petitioner be released immediately from the Taos County [Adult] Detention Center.").

Soon after Mr. Reed was taken to the BCDC, Katherine Marquez learned of Mr. Reed's detention. Ms. Marquez is the Extradition Coordinator for the Bernalillo County District Attorney's office. As Extradition Coordinator, she is largely responsible for the initiation of extradition proceedings. Kathy Silva is her part-time assistant, and Assistant District Attorney Phillip Cheves her immediate supervisor. "Following usual...