Niemyjski v. City of Albuquerque

• Decision Date: 22 February 2005
• Docket Number: No. CIV. 03-1377 JBLFG.,CIV. 03-1377 JBLFG.
• Citation: 379 F.Supp.2d 1221
• Parties: Tadeusz NIEMYJSKI, Plaintiff, v. CITY OF ALBUQUERQUE and County of Bernalillo d/b/a Bernalillo County Detention Center and John Does 1 through 4, Defendants.
• Court: U.S. District Court — District of New Mexico

379 F.Supp.2d 1221

Tadeusz NIEMYJSKI, Plaintiff, v. CITY OF ALBUQUERQUE and County of Bernalillo d/b/a Bernalillo County Detention Center and John Does 1 through 4, Defendants.

No. CIV. 03-1377 JBLFG.

United States District Court, D. New Mexico.

February 22, 2005.

Tadeusz Niemyjski, Albuquerque, NM, Plaintiff pro se.

Patrick D Allen, Matthew L. Connelly, Yenson, Lynn, Allen & Wosick, PC, Albuquerque, NM, for Defendant City of Albuquerque.

MEMORANDUM OPINION AND ORDER

BROWNING, District Judge.

THIS MATTER comes before the Court on the Defendant City of Albuquerque's Motion for Summary Judgment and Memorandum of Law in Support, filed November 30, 2004 (Doc. 27). The Court held hearings on this motion on January 7, January 18, and February 17, 2005. The pro se Plaintiff, Tadeusz Niemyjski, did not file a response to the motion. Niemyjski did not appear in person or telephonically for the January 7th and February 17th hearings. Although Niemyjski appeared in person for the January 18th hearing, he was not prepared to present oral argument on the Defendant City of Albuquerque's ("the City") motion for summary judgment. The Court later sent out a notice stating that, if it deemed argument on his motion helpful or necessary, that argument would take place at the February 17th pre-trial conference. Niemyjski still did not file any response to the City's motion. Consistent with the Court's ruling at the February 17th hearing on this motion, and for the reasons given at the time of the hearing, the Court will grant summary judgment on all federal claims. Having dismissed all claims on which the Court has original jurisdiction, the Court declines to exercise supplemental jurisdiction over the remaining state claims under 28 U.S.C. § 1367(c) and remands all remaining claims — all of which sound in state law — to state court.

FACTUAL BACKGROUND

The City, only for purposes of this motion for summary judgment, admits the following facts.

On October 11, 2001, Niemyjski failed to appear at the Bernalillo County Metropolitan Court for a hearing in case TR 62710/01 regarding a citation. See Deposition of Tadeusz Niemyjski at 51:7-21 (taken October 20, 2004) (hereinafter "Niemyjski Depo."). The Honorable Victoria J. Grant, Bernalillo County Metropolitan Judge, issued a warrant for Niemyjski's arrest because of his failure to appear, which included a $350 cash or surety bond. See Bernalillo County Metropolitan Court Bench Warrant, at 1.¹ On the morning of November 5, 2001, Niemyjski appeared at the Bernalillo County Metropolitan Court. See Complaint ¶ 9, at 2, filed in the Second Judicial District, Bernalillo County, New Mexico, CV 2003 07555, on November 4, 2003; Niemyjski Depo. at 51:25 — 52:1. According to Niemyjski, he could not remember on which date a hearing² was scheduled and had gone to the Metropolitan Court that day to inquire. See Niemyjski Depo. at 52:13-15. Niemyjski testified that, while at the clerk's window, he was arrested on the warrant. See id. at 52:5-10; id. at 112:9-18.³ It is not clear whether the possibility of paying the bond was discussed at the time of the arrest, see id. at 54:18 — 55:11, but Niemyjski testified that he did not have $350 — the requisite bond amount — on him, see id. at 55:14-24.

Niemyjski was placed in a holding cell at the Bernalillo County Detention Center ("BCDC"). See Complaint ¶ 12, at 3. According to Niemyjski's testimony, he asked the guards if he could make a telephone call, which the guards denied. See Niemyjski Depo. at 60:23-24. Because the guards did not permit him to make a telephone call, Niemyjski "protest[ed]" by refusing to have his photograph taken. Id. at 60:19 — 61:20. Because of this resistance, the jail guards used force to position him to take his photograph. See id. at 60:15 — 62:1. The guards placed handcuffs on Niemyjski. See id. at 113:14-16.

The guards then returned Niemyjski to his cell, see id. at 62:2-16, and, according to Niemyjski, "thr[e]w" or "push[ed]" him into the holding cell, id. at 67:5. When Niemyjski was taken back to his cell, he and the guards struggled when they attempted to cuff his legs, and Niemyjski fell on his side. See id. at 63:7-17; id. at 64:5 — 65:12.⁴

At some point after being returned to the holding cell, Niemyjski and the guards traded racially based insults. See id. at 67:12-13. According to Niemyjski, he told the guards: "Come one all Mexicans. We don't need clearance or whatever, so don't play games with me or playing with them. Come on. Apply for job[.] You don't have to worry about clearance." Id. at 67:14-17;⁵ id. at 70:1-13. Niemyjski also testified that he called the guards "South Valley trash," in addition to other "all kinds of comments." Id. at 68:15-16; id. at 70:3-6. In exchange, the jail guards called Niemyjski a "fucking Russian." Id. at 70:6-7.⁶

Niemyjski was later taken from the cell to be moved to an area upstairs, but instead of taking the elevator, the guards made Niemyjski walk up the stairs. See Complaint ¶¶ 19-20, at 18; Niemyjski Depo. at 71:1-7. Niemyjski remained in handcuffs as well as leg cuffs. See Niemyjski Depo. at 113:8-10. The guards told Niemyjski to be quiet. See id. at 113:4-7. Niemyjski alleges that, while being taken up the stairs by three or four guards, he "fell down." Complaint ¶ 19, at 3; Niemyjski Depo. at 71:10. It is not clear from the record whether Niemyjski tripped, or if the guards "knocked [his] legs out from underneath [him]." Niemyjski Depo. at 71:17;id. at 84:3. Niemyjski testified that then

all the [guards] were punching, hitting me on my side. Anyway, I went down, and they started hitting, punching, kicking my knees and choking, and all different things, and then I knew I was fighting for my life because my neck went down to the floor, practically, and it was stretched, and they were pulling my hair back. Anyway, it was using hands around ears and just all over the face, blocking my blood circulation and so on. Just ....⁷

Id. at 71:18-25. Niemyjski's fall on the stairs resulted in an injury to his ribs. See id. at 84:1-24.

Niemyjski telephoned a friend around 9:00 p.m. to arrange for bail. See id. at 85:2-13. BCDC released Niemyjski less than twenty-four hours after being arrested on the warrant. See id. at 87:2-7; id. at 112:19-23.

Niemyjski went straight from the jail — between approximately 2 a.m. and 4 a.m. — to the University of New Mexico Hospital. See id. at 87:11-15. According to Niemyjski, he suffered "[m]ultiple bruise[s] and fractures," but Niemyjski also testified that the Doctor's report was "confusing." Id. at 15-16. The Court, however, has not been provided with a copy of the medical report from that evening documenting the injuries that Niemyjski suffered.

Niemyjski went to a doctor in January, 2004, and told the doctor that the purpose of the visit was an evaluation in preparation for this litigation. See id. at 96:7 — 97:15. According to Niemyjski's deposition, the doctor concluded that any pain experience by Niemyjski was because of his work in construction, which involved heavy lifting, and was not a result of the alleged incident in the jail. See id. at 98:17 — 99:24.⁸ Niemyjski, however, testified that he did not agree with the doctor's medical opinion, because he only started to experience pain "just months after th[e] incident in the jail." Id. at 97:16-22.

According to Michael Sisneros, Deputy Director of the Metropolitan Detention Center, the "BCDC maintained a policy, in effect throughout the year 2001, limiting the use of physical force for the security and control of inmates." Affidavit of Michael Sisneros ¶ 4, at 1 (executed January 10, 2005) (hereinafter "Sisneros Aff."). The BCDC Security and Control (Physical Force) Policy statement is as follows:

The use of physical force shall be restricted to instances of justifiable defense, protection of others, protection of property and prevention of escapes, and only when it is statutory authority. Physical force or use of restraints are never used as punishment. A written report is prepared following all uses of force and restraints and is submitted to the Director.

BCDC Policy 8.7.0 at 1 (dated Jan. 1989, revised Dec. 2000)("Policy 8.7.0"). The Policy approves the use of varying levels of force ranging from "Step 1" ("Officer Presence") to "Step 6" ("Deadly Force"). Id. at 2. "Step 3" force is "Control and Restraint," which includes the use of handcuffs. Id.

In the "Physical Handling or Touching" section, the Policy states that "[t]he technique of taking inmates down to the floor should be avoided[;] this technique usually results in more injuries to inmates and staff." Id. ¶ D(1), at 3. This section also states that "[p]hysical handling is justified to subdue unruly inmates.... It may be used to move inmates who fail to obey lawful orders, and to protect property." Id. ¶ D(5), at 3. "As with any type of force, [however,] the amount of force used in physical handling shall be as much as is reasonable and necessary to stop the action. PHYSICAL HANDLING STOPS WHEN THE RESISTANCE STOPS." Id. (quotation omitted). The Policy also states that the use of choke-holds and headlocks is "strictly prohibited." Id. ¶ E, at 3.

The Policy requires an officer to submit a written report — including "supplemental information of the incident" — to his or her supervisor "[i]n any situation where physical force is used." Id. ¶ H(1), at 1 (emphasis added). See id. ¶ B, at 1 ("A written report must be submitted to the Major on all incidents where the use of force is required. This report shall be prepared by the officer who employed force and shall be completed no later than the conclusion of his assigned shift."); Sisneros Aff. ¶ 6, at 1 ("All use of physical force by BCDC staff members required the submission of reports by all staff involved for review by supervisory personnel."); Policy 3.1.22 ¶ E(3), at 3 ("A supervisor will be notified before any use of force unless the circumstances do...