Apodaca v. State

• Decision Date: 13 February 2014
• Docket Number: No. CIV 13–0113 JB/SMV.,CIV 13–0113 JB/SMV.
• Citation: 998 F.Supp.2d 1160
• Parties: Victor APODACA, Plaintiff, v. State of NEW MEXICO ADULT PROBATION AND PAROLE, Wesley Hatley and Susan Pautler, et al., in their individual and Official Capacity, Curry County Detention Center, Warden Gerry Billy, Capt. Sandoval, Capt. Lucero, Doctor Timothy Hillis and Nurse Nancy Lueras, et al., in their individual and Official Capacity, NMSPD, New Mexico State Police, New Mexico Adult Probation and Parole, NMAPP, Defendants.
• Court: U.S. District Court — District of New Mexico

998 F.Supp.2d 1160

Victor APODACA, Plaintiff,

v.State of NEW MEXICO ADULT PROBATION AND PAROLE, Wesley Hatley and Susan Pautler, et al., in their individual and Official Capacity, Curry County Detention Center, Warden Gerry Billy, Capt. Sandoval, Capt. Lucero, Doctor Timothy Hillis and Nurse Nancy Lueras, et al., in their individual and Official Capacity, NMSPD, New Mexico State Police, New Mexico Adult Probation and Parole, NMAPP, Defendants.

No. CIV 13–0113 JB/SMV.

United States District Court,

D. New Mexico.

Feb. 13, 2014.

Victor Apodaca, Las Cruces, NM, pro se.

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court, under 28 U.S.C. § 1915(e)(2) and rule 12(b)(6) of the Federal Rules of Civil Procedure, on: (i) the Complaint, filed February 4, 2013 (Doc. 1); (ii) the Civil Rights Complaint, filed February 8, 2013 (Doc. 3); and (iii) the Prisoner's Civil Rights Complaint, filed May 13, 2013 (Doc. 9)(together the “Complaint”). PlaintiffVictor Apodaca is incarcerated, appears pro se, and filed an Application to Proceed in District Court Without Prepaying Fees or Costs on June 24, 2013 (Doc. 13). The filing fee for this civil rights Complaint is $350.00. Under § 1915(b)(1) and (2), Apodaca must pay the full amount of the filing fee in installments. Based on the information in Apodaca's filings, the Court will grant him leave to proceed in forma pauperis and will waive the initial partial payment pursuant to § 1915(b)(1). Also before the Court are Apodaca's Second Motion for Extension of Time, filed May 13, 2013 (Doc. 8) (“Motion for Extension of Time”), Motion for Jury Demand, filed June 24, 2013 (Doc. 11), and Motion for Jury Demand, filed July 5, 2013 (Doc. 16)(together “Motion for Jury Demand”). The Court will deny the Motion for Extension of Time as moot, and will construe the Motion for Jury Demand as Apodaca's jury demand, pursuant to rule 38 of the Federal Rules of Civil Procedure. The Court will also dismiss certain of Apodaca's claims.

The Court has the discretion to dismiss an in forma pauperis complaint sua sponte under § 1915(e)(2) “at any time if the action ... is frivolous or malicious; [or] fails to state a claim upon which relief may be granted.” The Court also may dismiss a complaint sua sponte under rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim if “it is ‘patently obvious' that the plaintiff could not prevail on the facts alleged, and allowing him an opportunity to amend his complaint would be futile.” Hall v. Bellmon, 935 F.2d 1106, 1109 (10th Cir.1991) (quoting McKinney v. Oklahoma Dep't of Human Services, 925 F.2d 363, 365 (10th Cir.1991)). A plaintiff must allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). In reviewing Apodaca's pro se Complaint, the Court applies the same legal standards applicable to pleadings that counsel drafts, but liberally construes the allegations. See Northington v. Jackson, 973 F.2d 1518, 1520–21 (10th Cir.1992).

The original Complaint alleges that Defendants Wesley Hatley and Susan Pautler conducted a home visit as part of Apodaca's probation. Apodaca was not the owner of the residence where he was staying. Without gaining the owner's permission, Hatley and Pautler entered the residence. Hatley then arrested Apodaca and injured him by use of excessive force. In his First Supplemental Complaint, Apodaca names additional Defendants who allegedly denied him necessary medical treatment during his subsequent confinement at the Curry County Detention Center (“CCDC”) in Clovis, New Mexico. CCDC staff sent him to a medical facility for further examination of his injuries. Staff at the medical facility informed CCDC staff that Apodaca required surgery. The Defendants have not provided the surgery. In his Second Supplemental Complaint, Apodaca alleges a second incident of illegal search and seizure, but does not identify a responsible party. He asserts his claims under the Fourth, Eighth, and Fourteenth Amendments to the Constitution of the United States of America,¹ for which he seeks damages and injunctive relief.

RELEVANT LAW REGARDING FOURTH AMENDMENT SEARCHES

The Fourth Amendment to the Constitution of the United States of America protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV. It also commands that “no Warrants 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.” U.S. Const. amend. IV. In determining whether a Fourth Amendment violation has occurred, courts must “assur[e] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.” United States v. Jones, ––– U.S. ––––, 132 S.Ct. 945, 950, 181 L.Ed.2d 911 (2012) (Scalia, J.)(alteration in original) (quoting Kyllo v. United States, 533 U.S. 27, 31, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001) (Scalia, J.)).

“Not all searches require a warrant. The hallmark of the Fourth Amendment is reasonableness.” United States v. Harmon, 785 F.Supp.2d 1146, 1157 (D.N.M.2011) (Browning, J.). See United States v. McHugh, 639 F.3d 1250, 1260 (10th Cir.2011) (“[T]he ultimate touchstone of the Fourth Amendment is ‘reasonableness.’ ”) (quoting Brigham City, Utah v. Stuart, 547 U.S. 398, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006)). “In the criminal context, reasonableness usually requires a showing of probable cause.” Herrera v. Santa Fe Pub. Sch., 792 F.Supp.2d 1174, 1184 (D.N.M.2011) (Browning, J.) (quoting Bd. of Educ. of Indep. Sch. Dist. No. 92 of Pottawatomie Cnty. v. Earls, 536 U.S. 822, 828, 122 S.Ct. 2559, 153 L.Ed.2d 735 (2002)). The Supreme Court of the United States has stated in the law enforcement context that “searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions.” Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (footnotes omitted).

1. United States v. Jones.

The defendant in United States v. Jones was suspected of drug trafficking, and a joint Federal Bureau of Investigation and District of Columbia Metropolitan Police Department task force obtained a warrant authorizing installation in Washington, D.C., within ten days, of a Global Positioning System device to the defendant's car. See 132 S.Ct. at 948. On the eleventh day, task force agents attached the GPS device to the bottom of the defendant's car while the car was in Maryland. The agents then used the GPS device to track the defendant's movements over the next twenty-eight days, replacing the battery once, and collecting over two-thousand pages of data sent from the device. See 132 S.Ct. at 948.

The Honorable Antonin G. Scalia, Associate Justice of the Supreme Court, writing for the majority, in which Chief Justice Roberts and Justices Kennedy, Thomas, and Sotomayor joined, held that “the Government's installation of a GPS device on a target's vehicle, and its use of that device to monitor the vehicle's movements, constitutes a ‘search.’ ” 132 S.Ct. at 949. JusticeScalia reasoned that the plaintiff United States of America's conduct was a Fourth Amendment search, because the government trespassed on a constitutionally protected area. See 132 S.Ct. at 949 (“The Fourth Amendment provides ... that ‘[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.’ It is beyond dispute that a vehicle is an ‘effect’ as that term is used in the Amendment.”). Such a physical intrusion, Justice Scalia opined, would have come within the Framers' intended definition of a “search”: “It is important to be clear about what occurred in this case: The Government physically occupied private property for the purpose of obtaining information. We have no doubt that such a physical intrusion would have been considered a ‘search’ within the meaning of the Fourth Amendment when it was adopted.” 132 S.Ct. at 949. Justice Scalia reconciled the Supreme Court's conclusion that attaching a GPS device to track a jeep in plain view was a Fourth Amendment search with New York v. Class, 475 U.S. 106, 106 S.Ct. 960, 89 L.Ed.2d 81 (1986), in which the Supreme Court concluded that a visual examination of the outside of a vehicle while in plain view does not constitute a search, by noting that “[i]n Class itself we suggested that this [physical invasion] would make a difference, for we concluded that an officer's momentary reaching into the interior of a vehicle did constitute a search.” 132 S.Ct. at 952.

Justice Scalia reasoned that the Fourth Amendment's text supports taking a property law based approach to determine whether there is a search, but did not shy away from the fact that, in recent history, the Supreme Court had deviated from this approach:

The text of the Fourth Amendment reflects its close connection to property, since otherwise it would have referred simply to “the right of the people to be secure against unreasonable searches and seizures”; the phrase “in their persons, houses, papers, and effects” would have been superfluous.

Consistent with this understanding, our Fourth Amendment jurisprudence was tied to common-law trespass, at least until the latter half of the 20th century. Kyllo v. United States, 533 U.S. [at] 31, 121 S.Ct. 2038.... Our later cases, of course, have deviated from that exclusively property-based approach .... [and] have applied the analysis of Justice Harlan's concurrence in [ Katz v. United States ], which said that a violation occurs when government officers violate a person's “reasonable...