Chavez v. City of Albuquerque, No. 03-2195.

• Decision Date: 29 March 2005
• Docket Number: No. 03-2195.
• Citation: 402 F.3d 1039
• Parties: Nestor CHAVEZ, Plaintiff-Appellant, v. CITY OF ALBUQUERQUE; Gerald Galvin, individually and in his official capacity as Chief of Police of the City of Albuquerque; Andrew Lehockey, individually and in his offical capacity as Police Officer of the Albuquerque Police Department, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

402 F.3d 1039

Nestor CHAVEZ, Plaintiff-Appellant, v. CITY OF ALBUQUERQUE; Gerald Galvin, individually and in his official capacity as Chief of Police of the City of Albuquerque; Andrew Lehockey, individually and in his offical capacity as Police Officer of the Albuquerque Police Department, Defendants-Appellees.

No. 03-2195.

United States Court of Appeals, Tenth Circuit.

March 29, 2005.

COPYRIGHT MATERIAL OMITTED

Dennis W. Montoya, Montoya Law, Inc., Albuquerque, NM, for Plaintiff-Appellant.

Luis E. Robles, Robles, Rael & Anaya, P.C., Albuquerque, NM, for Defendant-Appellee Andrew Lehockey (Kathryn Levy, Deputy City Attorney, for Defendant-Appellee City of Albuquerque, with him on the brief).

Before LUCERO and TYMKOVICH, Circuit Judges, and BLACKBURN, District Judge.^*

BLACKBURN, District Judge.

Plaintiff-Appellant Nestor Chávez contends that the district court erred in dismissing his jury verdict as a sanction for perjuring himself during discovery. Finding no error in that decision, or on any other basis urged on appeal, we affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

At 3:40 a.m., on the morning of February 16, 1998, officer Donald Piatt of the Albuquerque Police Department discovered Chávez parked alone in his car in a lot at Bullhead Park, which was closed at that hour. Chávez told Piatt he did not have a driver's license or other identification, but identified himself as "Jason Garcia" and said that his birthday was March 27, 1975. Consulting his on-board computer database, Piatt discovered a violent gang member alert for a "Lewis Garcia" whose date of birth matched the one Chávez had given. During this time, Piatt observed that Chávez was sweating heavily, although the night was cold, and appeared extremely nervous. Piatt called for backup.

When Officer Gary Barboa arrived, he and Piatt approached the car and ordered Chávez to step out. Rather than complying, Chávez locked the car door and attempted to start the car. Piatt broke out the driver's side window with his flashlight and sprayed Chávez with mace. Nevertheless, Chávez was able to start the car and drive off. During the ensuing chase, Chávez flattened three of the car's tires after unsuccessfully negotiating a turn, but continued on. While in pursuit, Piatt and Barboa broadcast a description of Chávez, his vehicle, and the direction he was headed over their police radio.

Among the officers who heard these dispatches was Defendant-Appellee Andrew Lehockey. After Chávez crashed his car through a chain-link fence and drove off across the Puerto Del Sol golf course, Lehockey was among the officers who responded to set up a perimeter. Chávez's car was discovered abandoned at a nearby intersection. A box of ammunition was found in the car. Eight rounds were missing from the box.

Meanwhile, a local resident called 911 to report that a man matching Chávez's description had just broken into her apartment near where the car had been abandoned. Soon thereafter, two officers spotted a man matching Chávez's description running south from the location of the break-in through an open field toward Gibson Boulevard. (Id., Vo1. 3 at 309 & Vol. 4 at 465-466.)

Hearing this information broadcast over the police radio, Lehockey began driving down Gibson Boulevard, where he spotted Chávez running in the eastbound lane of traffic. He stopped, exited his car with his police service dog, Bart, and gave a loud K-9 warning.¹ When Chávez did not stop, Lehockey released Bart, who bit Chávez on the left ankle. Chávez removed the dog from his leg as Lehockey approached him with his gun drawn and ordered him to put his hands in the air. Although Chávez complied, Lehockey directed Bart to bite him a second time. Bart maintained his hold on Chávez until he complied with directions to lay prone on the ground and was taken into custody.

Chávez subsequently sued Lehockey and the City of Albuquerque under 42 U.S.C. § 1983, claiming use of excessive force to effectuate his arrest. Throughout discovery, Chávez steadfastly maintained that he was not the suspect police had been chasing. Both in his sworn answers to interrogatories and in his sworn deposition testimony, Chávez insisted that he had simply been walking to a friend's house after an evening playing bingo when he had encountered Lehockey. Nevertheless, when Chávez testified at trial, he finally admitted on cross-examination that he, in fact, was the suspect police were seeking that morning.

The district court took Lehockey's motion for judgment as a matter of law under advisement and sent the case to the jury, which returned a verdict in favor of Chávez on his claim of excessive force and awarded him $1.00 in nominal damages. At the district court's urging, Lehockey subsequently submitted his Rule 50 motion in writing, arguing that the case should be dismissed as a sanction for Chávez's admitted perjury, or alternately, that Lehockey was entitled to qualified immunity. The district court granted the motion on the first basis. This appeal followed.

II. APPELLATE JURISDICTION

At oral argument, Chávez's counsel suggested that we may lack jurisdiction over the district court's sanctions order. Although we generally do not consider issues raised for the first time at oral argument, Durham v. Xerox Corp., 18 F.3d 836, 841 n. 4 (10th Cir.), cert. denied, 513 U.S. 819, 115 S.Ct. 80, 130 L.Ed.2d 33 (1994), we have a continuing obligation to assure ourselves that appellate jurisdiction exists, Qwest Communications International, Inc. v. F.C.C., 240 F.3d 886, 891 (10th Cir.2001). Nevertheless, we find that we have jurisdiction in this case.

In its order granting Lehockey's Rule 50 motion, the district court stated that

... I agree with Defendant that a new trial is not the appropriate remedy. However, should my Order dismissing this case be reversed on possible appeal, I find that Defendant would be entitled to a new trial, thereby allowing Defendant an opportunity to conduct a prepared cross-examination of Plaintiff and expert witnesses instead of being sand-bagged with Plaintiff's decision to start telling the truth in the middle of cross-examination.

(Aplt.App., Vol. 2 at 544.) This conditional ruling is fully contemplated by Rule 50(c)(1), which provides, in relevant part:

If the renewed motion for judgment as a matter of law is granted, the court shall also rule on the motion for a new trial, if any, by determining whether it should be granted if the judgment is thereafter vacated or reversed, and shall specify the grounds for granting or denying the motion for the new trial. If the motion for a new trial is thus conditionally granted, the order thereon does not affect the finality of the judgment.

Fed.R.Civ.P. 50(c)(1) (emphasis added). Accordingly, we have jurisdiction to consider this appeal.

III. LEGAL ANALYSIS

On appeal, Chávez maintains that the district court erred in three respects: (1) by granting Lehockey's motion to dismiss the case as a sanction for Chávez's perjurious testimony during discovery; (2) by excluding testimony of other excessive force claims against Lehockey; and (3) by granting the City of Albuquerque's motion for summary judgment on his municipal liability claims. We will review these arguments seriatim.

A. DISMISSAL AS A SANCTION FOR PERJURY

"It has long been understood that `[c]ertain implied powers must necessarily result to our Courts of justice from the nature of their institution,' powers `which cannot be dispensed with in a Court, because they are necessary to the exercise of all others.'" Chambers v. NASCO, Inc., 501 U.S. 32, 43, 111 S.Ct. 2123, 2132 115 L.Ed.2d 27 (1991) (quoting United States v. Hudson, 7 Cranch 32, 34, 3 L.Ed. 259 (1812)); see also Smith v. Northwest Financial Acceptance, Inc., 129 F.3d 1408, 1419 (10th Cir.1997). Among the multifarious manifestations of the courts' inherent powers is the authority to vacate a judgment when a fraud has been perpetrated on the court, Chambers, 501 U.S. at 44, 111 S.Ct. at 2132, such as when a party has perjured himself during the discovery process, Archibeque v. Atchison, Topeka, and Santa Fe Railway Co., 70 F.3d 1172, 1174 (10th Cir.1995). We review such a determination for abuse of discretion. Ashby v. McKenna, 331 F.3d 1148, 1149 (10th Cir.2003).

Although the district court has discretion to dismiss, it must be exercised with restraint. Because dismissal is such a harsh sanction, it is appropriate only in cases of "`willfulness, bad faith, or [some] fault of petitioner.'" Archibeque, 70 F.3d at 1174 (quoting National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 640, 96 S.Ct. 2778, 2779, 49 L.Ed.2d 747 (1976)). We have articulated a number of factors that may inform the district court's discretion in determining whether dismissal is an appropriate sanction:

(1) the degree of actual prejudice to the defendant; (2) the amount of interference with the judicial process; (3) the culpability of the litigant; (4) whether the court warned the party in advance that dismissal of the action would be a likely sanction for noncompliance; and (5) the efficacy of lesser sanctions.

Ehrenhaus v. Reynolds, 965 F.2d 916, 921 (10th Cir.1992) (internal citations and quotation marks omitted). This list is not exhaustive, nor are the factors necessarily equiponderant. See Archibeque, 70 F.3d at 1174; Ehrenhaus, 965 F.2d at 921. The district court cited and considered each of the Ehrenhaus factors in its Memorandum Opinion and Order of August 18, 2003.² We find its analysis persuasive, and Chávez's arguments on appeal do not convince us otherwise.

First, Chávez argues that Lehockey was not actually prejudiced by his perjury. Indeed, he posits that his fallacious testimony actually helped Lehockey's case by allowing him to impeach Chávez more effectively. Not only is this argument "somewhat cavalier," as characterized by the district court (Aplt.App., Vol 2 at 540), it utterly misses the point of the qualified immunity...