Del Curto v. Lopez, Case No. 14 CV 561 JAP/SCY
| Decision Date | 30 April 2015 |
| Docket Number | Case No. 14 CV 561 JAP/SCY |
| Court | U.S. District Court — District of New Mexico |
| Parties | MARIO DEL CURTO, Plaintiff, v. RICHARD V. LOPEZ, II, in his individual and official capacities, GEORGE VAN WINKLE, Police Chief, in his individual and official capacities, and CITY OF SOCORRO, Defendants. |
Defendants Richard V. Lopez, II (Officer Lopez), Chief of Police George Van Winkle (Chief Van Winkle), and the City of Socorro (the City) seek partial summary judgment dismissing two of the claims brought by Plaintiff Mario Del Curto (Plaintiff). See DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT ON CIVIL RIGHTS CLAIMS AGAINST OFFICER LOPEZ ON THE BASIS OF QUALIFIED IMMUNITY, QUASI JUDICIAL IMMUNITY AND ABSOLUTE PROSECUTORIAL IMMUNITY (Doc. No. 22) (Motion). Plaintiff opposes the Motion. See PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT ON CIVIL RIGHTS CLAIMS AGAINST OFFICER LOPEZ ON THE BASIS OF QUALIFIED IMMUNITY, QUASI JUDICIAL IMMUNITY AND ABSOLUTE PROSECUTORIAL IMMUNITY (Doc. No. 40) (Response). Defendants filed a REPLY IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT ON CIVIL RIGHTS CLAIMS (Doc. No. 48) (Reply).
The Court will grant the Motion. Officer Lopez is entitled to qualified immunity from Plaintiff's Fourth Amendment claims in Count I and Count 9 of the COMPLAINT (Doc. No. 1).Officer Lopez had probable cause to arrest Plaintiff because Officer Lopez had credible information from which he reasonably believed Plaintiff had committed a crime. Even though Officer Lopez entered Plaintiff's home without a warrant, he had exigent circumstances allowing him to enter. However, even if there were insufficient exigent circumstances, a recent Tenth Circuit case has made the law in this area unclear. Officer Lopez is not entitled to quasi-judicial immunity from Plaintiff's Count I claim because Officer Lopez was investigating a reported crime and was not executing a court order when he entered Plaintiff's home. In addition, the Court will dismiss Plaintiff's Count 71 claim against Officer Lopez for defamation because Officer Lopez is entitled to absolute immunity for his testimony in Plaintiff's criminal proceeding.2
A court must grant summary judgment "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The movant must identify evidence of record that would entitle him to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The analysis is different when a defendant asserts qualified immunity on summary judgment regarding claims brought under 42 U.S.C. § 1983. Herrera v. City of Albuquerque, 589 F.3d 1064, 1070 (10th Cir. 2009). The burden of proof shifts to the plaintiff to show that: (1) the defendant violated a constitutional right, and (2) the constitutional right was clearly established at the time of defendant's conduct.Courtney v. Okla. ex rel. Dep't of Pub. Safety, 722 F.3d 1216, 1222 (10th Cir. 2013). If the plaintiff fails to satisfy either prong, the defendant is entitled to qualified immunity. Id.
To satisfy the first prong of the qualified immunity test, the plaintiff must do more than simply allege that the defendant has violated a constitutional right. The plaintiff must identify which clearly established right is at issue and point to specific acts by the defendant that violated the right. Albright v. Rodriguez, 51 F.3d 1531, 1535 (10th Cir. 1995). To satisfy the second prong of the test, the plaintiff must show "'the contours of the right [were] sufficiently clear that a reasonable official would understand that what he is doing violates that right.'" Holland ex rel. Overdorff v. Harrington, 268 F.3d 1179, 1186 (10th Cir. 2001). Only if the "plaintiff successfully carries his two-part burden," upon a consideration of the facts in the light most favorable to the plaintiff, does the "defendant bear[] the burden, as an ordinary movant for summary judgment, of showing no material issues of fact remain that would defeat the claim of qualified immunity." Walton v. Gomez, 745 F.3d 405, 412 (10th Cir. 2014).
Defendants have attached to their Motion a copy of the recording from a lapel camera worn by Officer Lopez during the encounter that led to the arrest of Plaintiff. (Mot. Ex. F.) In evaluating a motion for summary judgment in a §1983 case, courts are instructed to take the facts "in the light most favorable to the party asserting the injury." Scott v. Harris, 550 U.S. 372, 377 (2007). "[T]his usually means adopting . . . the plaintiff's version of the facts" unless the plaintiff's version "is so utterly discredited by the record that no reasonable jury could have believed him[.]" Id. at 378, 380. In Scott v. Harris, the plaintiff sued under § 1983 for injuries he sustained in a high speed police chase. The Supreme Court found that the lower courts erred in accepting the plaintiff's contention that he was not driving dangerously because a videorecording from a police vehicle depicted otherwise. Id. The Supreme Court held that the lower courts should have viewed the facts as shown in the video recording. Id. Hence, to the extent either Plaintiff's or Defendants' factual averments are contradicted by the events revealed by the video recording, the Court will rely on the video.
On January 15, 2013, Plaintiff drove to Mr. Leo Rosas' house, knocked on Mr. Rosas' front door, and when the door was opened, Plaintiff punched Mr. Rosas in the eye. See Criminal Complaint, State v. Mario Del Curto, M-52-MR-201300035 (Mot. Ex. A.) According to the police report, Plaintiff told Rosas that he was "the cause of [Plaintiff's] marriage falling apart . . . ." (Mot. Ex. B at 3.) Mr. Rosas reported that Plaintiff, (Id.)
On February 22, 2013, the Socorro Magistrate Court entered a Stipulated Continuance and Time Waiver (Stipulated Continuance Order). (Mot. Ex. C.) In the Stipulated Continuance Order, Plaintiff was ordered to have no contact with Mr. Rosas, Plaintiff was forbidden from possessing firearms or ammunition, Plaintiff was ordered to obey all laws, and Plaintiff was prohibited from possessing or consuming alcohol or illegal drugs. (Id.) Plaintiff had to "submit to a breath, blood or urine test upon the request of law enforcement or any officer of the court," and Plaintiff had to "report to the Socorro Magistrate Court as requested . . . to check on [his] progress[.]" (Id.) Upon successful completion of those terms for one year, the court would dismiss the criminal complaint against Plaintiff. (Id.)
Around 11:30 am on August 16, 2013, an individual, later identified as Mr. Max Torres, reported to Socorro police that Plaintiff left a threatening telephone message on Mr. Torres' telephone voicemail. In the message, Plaintiff stated that he had a gun and would kill Mr. Torres' son because Plaintiff believed Mr. Torres' son was having an affair with Plaintiff's wife. (Id.) Plaintiff claimed he was "loading the gun as he [spoke]." (Id.) At approximately 1:00 pm, Mr. Torres reported that Plaintiff left a second threatening message. (Reply Ex. A.)4
At approximately 12:30 pm, Officer Justin Gonzales was dispatched to Mr. Torres' house to investigate his initial complaint. (Mot. Ex. D.) While en route to Mr. Torres' home, Officer Gonzales noticed Mr. Torres driving in the direction of Plaintiff's house. (Id.) Officer Gonzales conducted a traffic stop of Mr. Torres' vehicle and radioed Officer Lopez to assist him in preventing Mr. Torres from going to Plaintiff's house. However, a few minutes later, Officer Gonzales cancelled the request stating he was able to get Mr. Torres "under control." (Id.) Officer Gonzales instructed Officer Lopez and Officer Valenzuela to go to Plaintiff's house to investigate the threat while Officer Gonzales stayed with Mr. Torres. (Id.) As instructed, Officer Lopez and Officer Valenzuela went to Plaintiff's residence. (Id.) Officer Lopez was aware of the conditions imposed on Plaintiff by the Stipulated Continuance Order. (Id.)
At approximately 1:10 pm, Officer Lopez and Officer Valenzuela arrived at Plaintiff's residence. (Mot. Ex. D; Mot. Ex. F DVD from lapel camera.) After Officer Lopez knocked on the front door several times, knocked on a side window, and repeatedly rang the doorbell, Plaintiff answered the door wearing a bath robe. (DVD 13:10:55-13:12:18.) Officer Lopez "immediately detected the strong odor of a[n] alcoholic beverage omitting [sic] from [Plaintiff's] person." (Mot. Ex. D.)5 Officer Lopez informed Plaintiff that he and Officer Valenzuela were investigating a complaint that Plaintiff left a threatening message on Mr. Torres' phone. (DVD 13:12:27-13:12:29.) While standing in the doorway, Plaintiff told the officers that he phoned Mr. Torres' mother6 the previous night to find out if she knew that her son was having an affair with Plaintiff's wife. But, Plaintiff denied threatening anyone, stepped back, and attempted to close the door. (DVD 13:12:29-13:12:55.) Officer Lopez approached the front door and said "we're talking to you . . . you're not going to shut the door . . ." (DVD 13:12:55-13:13:00.) While making these statements, Officer Lopez blocked the door to keep it open. (Compl. ¶ 21; DVD13:12:57-13:13:03.)7
While Officer Lopez held the door open, Plaintiff said "let me call Lee Des Champs," Plaintiff's lawyer. (DVD 13:13:02.) Officer Lopez responded ...
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