Gorence & Oliveros, P.C. v. Chavez (In re Chavez)

• Decision Date: 24 January 2020
• Docket Number: Case No.: 18-12710-j7,Adv. Proceeding No.: 19-01003-j
• Citation: Gorence & Oliveros, P.C. v. Chavez (In re Chavez), 614 B.R. 874 (Bankr. N.M. 2020)
• Parties: IN RE: David Robert CHAVEZ, Jr. and Ernestina Sandoval Chavez, Debtors. Gorence & Oliveros, P.C., TMP Legal, LLC, Adam Griego, and Elijah Haukereid, Plaintiffs v. David Robert Chavez, Jr. Defendant.
• Court: U.S. Bankruptcy Court — District of New Mexico

614 B.R. 874

IN RE: David Robert CHAVEZ, Jr. and Ernestina Sandoval Chavez, Debtors.

Gorence & Oliveros, P.C., TMP Legal, LLC, Adam Griego, and Elijah Haukereid, Plaintiffs

v.David Robert Chavez, Jr.Defendant.

Case No.: 18-12710-j7

Adv. Proceeding No.: 19-01003-j

United States Bankruptcy Court, D. New Mexico.

Signed January 24, 2020

Robert J. Gorence, Louren Oliveros, Gorence & Oliveros, P.C., Albuquerque, NM, for Plaintiff.

Michael K. Daniels, Albuquerque, NM, for Defendant.

MEMORANDUM OPINION ON PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT

Robert H. Jacobvitz, United States Bankruptcy Judge

THIS MATTER is before the Court on Plaintiffs' Motion for Summary Judgment("Summary Judgment Motion").SeeDocketNo. 9.Defendant/Debtor David Robert Chavez, Jr., filed a response to the Summary Judgment Motion("Response"), and Plaintiffs replied ("Reply").SeeDocketNos. 15, 16.

Defendant, together with his spouse, filed a voluntary petition for relief under Chapter 7 in October 2018.SeeBankruptcy CaseNo. 18-12710-j7.In January 2019, Plaintiffs filed an adversary proceeding seeking a determination that a civil judgment against Defendant entered in federal district court is non-dischargeable.DocketNo. 1.In the Summary Judgment Motion, Plaintiffs argue that the judgment is non-dischargeable as a matter of law under 11 U.S.C. § 523(a)(6) because the facts not in genuine dispute establish that Adam Griego and Elijah Haukereid were injured by Defendant's willful and malicious conduct.DocketNo. 9.Defendant argues that genuine disputes of material fact preclude summary judgment.DocketNo. 15.After consideration of the arguments and evidence presented by the parties, the Court grants in part and denies in part Plaintiffs' Summary Judgment Motion for the reasons set forth below.

I.Summary Judgment Standards

Summary judgment will be granted when the movant demonstrates that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law.SeeFed.R.Civ.P. 56(a), made applicable to adversary proceedings by Rule 7056, Fed.R.Bankr.P."[A]party seeking summary judgment always bears the initial responsibility of informing the ... court of the basis for its motion, and ... [must] demonstrate the absence of a genuine issue of material fact."Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265(1986).In considering a motion for summary judgment, the Court must "examine the factual record and reasonable inferences therefrom in the light most favorable to the party opposing summary judgment."Wolf v. Prudential Ins. Co. of America , 50 F.3d 793, 796(10th Cir.1995)(quoting Applied Genetics Int'l, Inc. v. First Affiliated Securities, Inc. , 912 F.2d 1238, 1241(10th Cir.1990) )."[A]party opposing a properly supported motion for summary judgment may not rest upon mere allegation or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial" through affidavits or other supporting evidence.Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202(1986).Furthermore, New Mexico Local BankruptcyRule 7056–1(c) provides that the party opposing summary judgment must: 1) list the material facts as to which the party contends a genuine fact exists; 2) "refer with particularity to those portions of the record upon which the opposing party relies;" and 3) "state the number of the movant's fact that is disputed."NMLBR 7056–1(c).Properly supported material facts set forth in the movant's motion are "deemed admitted unless specifically controverted" by the party opposing summary judgment.NMLBR 7056–1(c).

II.Facts Not Subject to Genuine Dispute¹

After review of the statements in the Plea Agreement,² the affidavits and testimony presented by Plaintiffs, and Defendant's affidavit and attachments thereto, as well as the Summary Judgment Motion, Response, and Reply, the Court finds that the following facts are not in genuine dispute.³

A.The Encounter with Griego

1.On May 24, 2016, there were eight people camping at the Juan Tomas campsite in the mountains east of Albuquerque.DocketNo. 9-1, JaramilloAff., ¶ 8;Summary Judgment MotionSUF ¶ 1;Response, pg. 2.

2.Defendant, a United States Forest Service ("USFS") Officer, was dispatched to the campsite based on reports that a group of people had started a fire in an area closed due to fire danger.Defendant's Affidavit ("Def's Aff."), ¶ 4;Reply, pg. 4.Another USFS officer, David Olsen("Olsen"), was also dispatched to the Juan Tomas campsite.Id.

3.When he arrived, Defendant approached Griego.DocketNo. 9-3, Griego Testimony, 68:4-10;Summary Judgment Motion Statement of Undisputed Facts ("SUF")¶ 2;Def'sAff. ¶ 8.Defendant instructed Griego to turn around and place his hands behind his back, and Griego complied with those instructions.Docket No. 9-4, Plea Agreement, p. 3;DocketNo. 9-3, Griego Testimony, 68:9-10.Summary Judgment MotionSUF ¶ 5;Def'sAff. ¶¶ 8, 12.

4.At no time during the encounter did Griego pose a threat to Defendant; Griego was compliant with Defendant's instructions throughout the encounter.Docket No. 9-4, Plea Agreement, p. 3.

5.After placing Griego in handcuffs without incident, Defendant slammed Griego's face onto the hood of his USFS vehicle two times.Defendant used unreasonable force in detaining Griego.Docket No. 9-4, Plea Agreement, p. 3.

6.While he slammed Griego onto the hood, Defendant knew it was wrong, but he acted anyway, and he did so in his capacity as a law enforcement officer.Docket No. 9-4, Plea Agreement, p. 3.

7.Defendant detained Griego in the back seat of his police vehicle in handcuffs for approximately two to three hours.DocketNo. 9-3, Griego Testimony, 81:12-17;Ex. 14 ¶ 15.Summary Judgment MotionSUF ¶ 9;Def'sAff. ¶ 12;Response, pg. 2.During that time, Defendant's trained police dog was in the vehicle as well.DocketNo. 9-3, Griego Testimony, 78:6-79:9.Summary Judgment MotionSUF ¶ 9;Def'sAff. ¶¶ 22-23.

B.The Encounter with Haukereid

8.After placing Griego in handcuffs, Defendant saw that Haukereid was recording him on a cell phone.DocketNo. 9-Ex. 6, Haukereid Cell Phone Video;Summary Judgment MotionSUF ¶ 15;Def'sAff. ¶ 10.

9.Defendant approached Haukereid and requested Haukereid's identification. DocketNo. 9-Ex. 6, Haukereid Cell Phone Video;Summary Judgment MotionSUF ¶ 16;Def'sAff. ¶ 14.

10.When Haukereid did not immediately comply, Defendant deployed the police dog and ordered Haukereid to get on the ground.Summary Judgment MotionSUF ¶ 17;Def'sAff. ¶ 14.

11.Defendant handcuffed Haukereid.Officer Olsen then detained Haukereid in Officer Olsen's vehicle for approximately two hours.Summary Judgment MotionSUF ¶ 20;Def'sAff. ¶ 15.

12.Haukereid testified that it was "super uncomfortable" in the vehicle and that he"was losing feeling in [his] shoulders and [his] arms."DocketNo. 9-3, Haukereid Testimony, 26:3-8;Summary Judgment MotionSUF ¶ 38; Response, pg 2.

13.As a result of the incident, Haukereid has a fear of dogs that prevents him from being around dogs.Summary Judgment MotionSUF ¶ 39;Response, pg. 2; Docket 9-3, 40:5-16.

C.Civil and Criminal Proceedings Arising from the Encounters with Griego and Haukereid

14.In December 2016, Defendant was charged with violation of 18 U.S.C. § 242(2018), which prohibits "willfully subject[ing] any person ... to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States" while acting under "color of any law, statute, ordinance, regulation, or custom."SeeDocketNos. 9-4, 9-11;United States v. Chavez , 15-cr-4362 LF(D.N.M.).

15.Defendant entered into a plea agreement (the "Plea Agreement") in which he admitted to willfully violating 18 U.S.C. § 242.SeeSummary Judgment MotionSUF ¶¶ 40-42; Response;DocketNo. 9-4.

16.In the Plea Agreement, Defendant stated as follows:

On May 26, 2014, I was working in my capacity as a law enforcement officer with the United States Forest Service.While on duty that day, I learned via radio dispatch that trespassers had driven onto land administered by the USFS that was marked as prohibiting motor vehicles.I approached the area in my USFS vehicle and was advised by USFS firefighters that two young men in a silver pick-up truck had driven on the land despite posted signs as well as instructions from the firefighters that vehicles were not permitted in the area.I drove my USFS vehicle in the direction that the trespassers had driven and approached a group of people near three vehicles, one of which was a silver pick-up truck.After exiting my vehicle, one of the young males in the group, later identified as [Griego], approached my vehicle, and I asked if he had just driven the silver pick-up truck to the campsite.[Griego] responded that he had driven the silver pick-up.I instructed [Griego] to turn around and place his hands behind his back, and he complied with these instructions.After placing [Griego] in handcuffs without incident, I slammed [Griego]'s face onto the hood of my USFS vehicle two times.While I slammed [Griego] onto the hood, I knew it was wrong but I acted anyway, and I did so in my capacity as a law enforcement officer.[Griego] was handcuffed and compliant, and he did not pose a threat at any time.By slamming [Griego]'s head onto the hood of my vehicle in this manner, I willfully deprived him of his right under the United States Constitution to be free from unreasonable search and seizure-specifically, the right to be free from the use of unreasonable force by a law enforcement officer.DocketNo. 9-4.⁴

17.Defendant also "specifically admit[ted] the ... facts [in the Plea Agreement] and declare[d] under penalty of perjury that all of th[o]ese facts are true and correct[.]"DocketNo. 9-4, pg. 3.

18.Defendant was sentenced to one year of probation with three months of home detention with

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