O'Brien v. Mitchell

• Decision Date: 21 July 2012
• Docket Number: No. CIV 11–0409 JB/WDS.,CIV 11–0409 JB/WDS.
• Citation: 883 F.Supp.2d 1055
• Parties: Dennis O'BRIEN and Board of County Commissioners of the County of Santa Fe, Plaintiffs, v. David E. MITCHELL, Personal Representative of the Estate of Walter Mitchell, Defendant.
• Court: U.S. District Court — District of New Mexico

883 F.Supp.2d 1055

Dennis O'BRIEN and Board of County Commissioners of the County of Santa Fe, Plaintiffs,

v.David E. MITCHELL, Personal Representative of the Estate of Walter Mitchell, Defendant.

No. CIV 11–0409 JB/WDS.

United States District Court, D. New Mexico.

July 21, 2012.

Michael Dickman Santa Fe, NM, for Plaintiffs.

Santiago E. Juarez, Albuquerque, NM, for Defendant.

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on the Plaintiffs' Motion for Summary Judgment, filed April 13, 2012 (Doc. 27)(“MSJ”). The Court held a hearing on May 18, 2012. The primary issues are: (i) whether Walter Mitchell committed perjury in the damages trial in Mitchell v. City of Santa Fe, No. CIV 05–1155 (D.N.M.), held on December 10, 2007; and (ii) whether, because W. Mitchell thereby committed a “fraud on the court,” the Court should vacate the judgment in that case. The Court concludes that Plaintiffs Dennis O'Brien and Board of County Commissioners of the County of Santa Fe have not established that W. Mitchell had an intent to deceive or that he committed perjury. The Court further concludes that the Plaintiffs have not established that W. Mitchell and his attorney, Dennis W. Montoya, engaged in a deliberate plan or scheme to defraud the Court, and that the Plaintiffs have failed to establish that the Court should vacate the judgment in Mitchell v. City of Santa Fe, No. CIV 05–1155. Because a genuine issue of material fact exists whether W. Mitchell had an intent to deceive or committed perjury, the Court will deny the MSJ.

FACTUAL BACKGROUND

The record in Mitchell v. City of Santa Fe, affidavits, and exhibits demonstrate that the following facts are undisputed.

1. The November 4, 2002, Indictment in the Criminal Case Underlying the Civil Action in Mitchell v. City of Santa Fe.

On November 4, 2002, W. Mitchell, after voluntarily consuming an excessive dose of medication that apparently caused him to become psychotic and/or hypomanic, attacked his neighbor's dogs with a sword in Santa Fe, New Mexico and almost struck a young neighbor—Mayre Perez—with his sword. See State v. Mitchell, No. D–101–CR–2002–01027, Findings of Fact and Conclusions of Law ¶ ¶ 1–15, at 1–3 (dated April 22, 2004), filed April 13, 2012, (Doc. 27–1)(“State Findings of Fact”); MSJ ¶ 1, at 6 (setting forth this fact).¹ M. Perez, believing that W. Mitchell might strike her, called her parents, who in turn called 911. See State Findings of Fact and Conclusions of Law ¶¶ 16–17, at 3; MSJ ¶ 1, at 6 (setting forth this fact); Response in Opposition to O'Brien and Santa Fe County's Motion for Summary Judgment on Their “Independent Action in Equity to Obtain Relief from a Judgment” at 11–12, filed May 3, 2012 (Doc. 32)(“Response”)(not disputing this fact). Sergeant Dennis O'Brien, ² Deputy Sheriff Rafael Rodriguez, Deputy Sheriff Fred Borman, and Deputy Sheriff Billy Smith, employees of the Santa Fe County Sheriff's Department, were dispatched to the scene. See State v. Mitchell, No. D–101–CR–2002–01027, Statement of Probable Cause at 3–4 (dated November 4, 2002), filed April 13, 2012 (Doc. 27–2)(“Statement of Probable Cause”); MSJ ¶ 2, at 6 (setting forth this fact); Response at 11–12 (not disputing this fact). When the four Sheriff's deputies arrived, M. Perez' father, Filberto Perez, was holding W. Mitchell at bay with a piece of pipe. See Statement of Probable Cause at 6. O'Brien was the lead deputy. See State Findings of Fact ¶ 19, at 3; MSJ ¶ 3, at 7 (setting forth this fact); Response at 11–12 (not disputing this fact).

Upon their arrival, the deputies instructed W. Mitchell to put down the sword; rather than obey their command, W. Mitchell removed the sword from the scabbard and held it in a threatening manner. See State Findings of Fact ¶¶ 20–21, at 3; MSJ ¶ 4, at 7 (setting forth this fact); Response at 11–12 (not disputing this fact). The deputies continued to instruct W. Mitchell to put down the sword, but he refused to comply and twice advanced on O'Brien while holding the sword in a threatening position. See State Findings of Fact ¶¶ 22–23, at 3; MSJ ¶ 4, at 7 (setting forth this fact); Response at 11–12 (not disputing this fact). On both of those occasions, O'Brien felt threatened and believed that W. Mitchell intended to attack him with the sword. See State Findings of Fact ¶ 25, at 3; MSJ ¶ 4, at 7 (setting forth this fact); Response at 11–12 (not disputing this fact). When W. Mitchell advanced more quickly on O'Brien a third time, O'Brien backed up until he had retreated into a parked vehicle. See State Findings of Fact ¶¶ 26–29, at 3–4; MSJ ¶ 4, at 7 (setting forth this fact); Response at 11–12 (not disputing this fact). During the incident, W. Mitchell made statements about the apocalypse and said “I hate cops.” Statement of Probable Cause at 4; MSJ ¶ 5, at 7 (setting forth this fact); Response at 11–12 (not disputing this fact). When W. Mitchell made his final advance on O'Brien, he held the sword with the blade facing out and with a look of rage in his eyes. See Statement of Probable Cause at 4; MSJ ¶ 5, at 7 (setting forth this fact); Response at 11–12 (not disputing this fact). After retreating as far as possible, O'Brien shot W. Mitchell three times. See State Findings of Fact ¶¶ 29–32, at 4; MSJ ¶ 4, at 7 (setting forth this fact); Response at 11–12 (not disputing this fact). The deputies then arrested W. Mitchell. See Statement of Probable Cause at 4–5; MSJ ¶ 4, at 7 (setting forth this fact); Response at 11–12 (not disputing this fact). Seven eyewitnesses observed W. Mitchell advancing on O'Brien with the sword, O'Brien's retreat until he reached the parked car, and the discharge of O'Brien's firearm. See Statement of Probable Cause at 3–7; MSJ ¶ 6, at 7–8 (setting forth this fact); Response at 11–12 (not disputing this fact).

2. W. Mitchell's Trial and Conviction in State Court Based on the November 4, 2002 Incident.

On November 15, 2002, a grand jury of Santa Fe County, New Mexico indicted W. Mitchell on two felony charges: (i) aggravated assault upon a peace officer; and (ii) aggravated assault with a deadly weapon. See State v. Mitchell, No. D–101–CR–2002–01027, Grand Jury Indictment (dated November 15, 2002), filed April 13, 2012 (Doc. 27–3); MSJ ¶ 7, at 8 (setting forth this fact); Response at 12 (not disputing this fact). Following a bench trial, from March 16 to March 18, 2004, at which two defense attorneys—Mark Donatelli and John Day—represented W. Mitchell, he was “convicted beyond a reasonable doubt of both of the felony charges, and was found guilty but mentally ill.” State v. Mitchell, No. D–101–CR–2002–01027, Judgment, Partially Suspended Sentence at 1–2 (dated June 15, 2004), filed April 13, 2012 (Doc. 27–4)(“State Criminal Judgment”);State Findings of Fact ¶ 8, at 2; MSJ ¶ 8, at 8 (setting forth this fact); Response at 12 (not disputing this fact). Mr. Donatelli is a principal in the law firm of Rothstein, Donatelli, Hughes, Dahlstrom, Schoenburg & Bienenu, LLP. See Affidavit of Mark H. Donatelli ¶¶ 3–4, at 1 (executed December 29, 2011), filed April 13, 2012 (Doc. 27–10); MSJ ¶¶ 13–14, at 9–10 (setting forth this fact); Response at 13 (not disputing this fact). W. Mitchell subsequently waived his right to appeal those convictions. See State v. Mitchell, No. D–101–CR–2002–01027, Defendant's Waiver of Appeal (dated July 20, 2004), filed April 13, 2004 (Doc. 27–5); MSJ ¶ 9, at 8 (setting forth this fact); Response at 12 (not disputing this fact). The State Findings of Fact state that O'Brien is a deputy with the Santa Fe Sheriff's Department, and not a city police officer, and that all responding officer's were deputies with the Santa Fe Sheriff's Department. See State Findings of Fact ¶¶ 18–20, 22, at 3; MSJ ¶ 10, at 8 (setting forth this fact); Response at 12 (not disputing this fact).

On May 7, 2004, the Honorable Stephen Pfeffer, First Judicial District Court Judge, County of Santa Fe, State of New Mexico, held a sentencing hearing. See State v. Mitchell, No. D–101–CR2002–01027, Sentencing Hearing (Partial Transcript) (dated May 7, 2004), filed April 13, 2012 (Doc. 27–9) (“State Hearing Transcript”); MSJ ¶ 11, at 8 (setting forth this fact); Response at 12–13 (not disputing this fact).³ At the state sentencing hearing, W. Mitchell addressed the Court, and made the following statements regarding the events surrounding his conviction:

Mitchell: I suppose I should first address the issue of whether or not I feel remorse. There is no doubt in my mind that I started the ball rolling that morning. I believe a person is responsible for their own actions, that it's possible to stay out of trouble. I very obviously failed to do so. The extent of my regret is very difficult to express. I, this has been a shattering experience and if you have heard my prayers in the last several months you'd know my remorse. I feel bad about the whole thing. I've never been so ashamed in my life. I don't know what to say, your Honor.

* * * *

Court: How do you feel about the trauma to which you subjected Officer O'Brien?

Mitchell: That was a horrible thing to do. The sheer madness of the act, if anybody had attacked me with a sword, it's totally over the top, what I did, what I apparently did. The—I don't want to hurt anybody, your Honor, and the notion of attacking four armed police officers with a sword is perfectly insane. I think about the definition and the staggering quality of the offense, given that if I'd been shot dead that would have been all good and fair.

* * * *

* * * * Mitchell: I'm sorry I put him through the trauma.

* * * *

Mitchell: Please accept my sincere apologies. I didn't mean to traumatize you. I didn't, I surely had no conscious intent of killing you or hurt anyone.

State Hearing Transcript at 2–4; MSJ ¶ 11, at 9 (setting forth this fact); Response at 12–13 (not disputing this fact). At the conclusion of the state sentencing hearing, Judge Pfeffer...