Dorato v. Smith

• Decision Date: 11 December 2015
• Docket Number: No. CIV 14–0365 JB/GBW,CIV 14–0365 JB/GBW
• Citation: 163 F.Supp.3d 837
• Parties: Veronica Dorato, as Personal Representative of the Wrongful Death Claim of Daniel Tillison, deceased, and Bruce Thompson, as guardian ad litem for D.T. and J.T., minor children; Maria Touchet, as guardian ad litem for I.M., a minor child; and Mary Jobe, Plaintiffs, v. Officer Martin Smith, in his official and individual capacities; John/Jane Doe Supervisor, in his/her official and individual capacities; Albuquerque Police Department; and City of Albuquerque, Defendants.
• Court: U.S. District Court — District of New Mexico

163 F.Supp.3d 837

Veronica Dorato, as Personal Representative of the Wrongful Death Claim of Daniel Tillison, deceased, and Bruce Thompson, as guardian ad litem for D.T. and J.T., minor children; Maria Touchet, as guardian ad litem for I.M., a minor child; and Mary Jobe, Plaintiffs,
v.
Officer Martin Smith, in his official and individual capacities; John/Jane Doe Supervisor, in his/her official and individual capacities; Albuquerque Police Department; and City of Albuquerque, Defendants.

No. CIV 14–0365 JB/GBW

United States District Court, D. New Mexico.

Filed December 11, 2015

163 F.Supp.3d 842

Frances Crockett Carpenter, Hans Peter Erickson, Frances Crockett, LLC, Albuquerque, New Mexico, Attorneys for the Plaintiffs

Jessica Hernandez, City Attorney, Stephanie M. Griffin, Assistant City Attorney, Albuquerque, New Mexico, Attorneys for the Defendants

Frederick Mowrer, Sanchez, Mowrer & Desiderio, P.C., Albuquerque, New Mexico, Attorney for the Albuquerque Police Officer's Association

MEMORANDUM OPINION AND AMENDED ORDER¹

James O. Browning, UNITED STATES DISTRICT JUDGE

THIS MATTER comes before the Court on: (i) the Plaintiffs' Motion to Strike Defendants' Affirmative Defenses and Officer Smith's Defense of Doctor Patient Privilege [Doc. 10], filed May 14, 2014 (Doc. 13)(“MTS”); (ii) Defendant Martin Smith's Motion for Protective Order, and Memorandum in Support, filed August 4, 2015 (Doc. 101)(“MPO”); (iii) the Plaintiffs' Opposed Second Motion to Compel Discovery, filed August 25, 2015 (Doc. 106)(“MCD”); and (iv) the Defendants' Motion, and Memorandum in Support, for the Court to Certify the Court's Order [Doc. 117] and Pending Memorandum Opinion for Interlocutory Appeal, filed October 12, 2015 (Doc. 121)(“MTC”). The Court held hearings on September 14, 2015, September 24, 2015, and November 16, 2015. The primary issues are: (i) whether the Court should strike any of the Defendants' affirmative defenses and responses, including their responses based on the physician-patient privilege; (ii) whether the Court should grant a protective order for Defendant Officer Martin Smith's psychological records, because they are allegedly irrelevant to Plaintiff Veronica Dorato's federal claim, privileged, or otherwise excluded from disclosure; (iii) whether the Court should compel the production of internal Albuquerque Police Department (“APD”) documents despite Smith's privacy rights and the self-critical analysis privilege; and(iv) whether the Court should certify its Order, filed October 2, 2015 (Doc. 117)(“MPO/MCD Order”), to the United States Court of Appeals for the Tenth Circuit, because its decisions on the parties' discovery dispute involve an allegedly controlling issue of law, and because an immediate appeal would allegedly materially advance the ultimate termination of the litigation. First,

163 F.Supp.3d 843

the Court will grant the MTS in part and deny it in part. The Court will deny Dorato's request to strike the Defendants' affirmative defenses, because it does not apply the heightened pleading standards in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), and Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), to affirmative defenses. The Court will grant Dorato's request that the Defendants revise their responses to paragraphs 12 and 13 of the Complaint. Federal privilege law applies to Dorato's federal claims, even though some evidence must be produced for the federal claims that would not need to be produced if there were only state claims, and the disclosed evidence may be used for both federal and state claims. The Defendants cannot rely on the non-existent federal physician-patient privilege in their responses.

Second, the Court concludes that, although there is a federal psychotherapist-patient privilege, Smith waived that privilege as to both records and examinations which he knew would be disclosed to others, and those documents generated at the direction of and for the benefit of the City of Albuquerque if it would see them. Any psychotherapy records within a third party's control must be disclosed to the Defendants' attorney, who must prepare a privilege log.² The Court thus grants the MPO to the extent that it covers privileged information and denies it to the extent that it covers non-privileged information. Finally, the Court concludes that its MPO/MCD Order did not decide a controlling legal issue, that there is no substantial ground for difference of opinion about the relevant issues, and that an immediate appeal would not materially advance this litigation's termination. It thus denies the Defendants' motion and declines to certify the matter to the Tenth Circuit.

FACTUAL BACKGROUND

The Court takes its facts from the First Amended Complaint for Civil Rights Violations, filed April 8, 2015 (Doc. 73)(“Amended Complaint”). The Amended Complaint contains facts that are common to all Counts, and gives two versions of events that Smith has provided to explain his actions. The Court will describe the facts that are common to all Counts, and then will describe Smith's two versions of events, as the Amended Complaint alleges them.

1. Facts Common to Both Versions.

Smith served as an Army Ranger in Afghanistan, where he was involved in multiple engagements “resulting in extended exposure, conflict, loss of life, and other horrors of war.” Amended Complaint ¶¶ 7–9, at 2. After returning to Albuquerque, Smith was diagnosed with Post Traumatic Stress Disorder (“PTSD”), and the Veterans Affairs Hospital gave him a one-hundred-percent disability rating “based on the severity of his PTSD.” Amended

163 F.Supp.3d 844

Complaint ¶¶ 9–10, at 2. The APD of the City of Albuquerque, New Mexico knew that Smith had received a one-hundred-percent disability rating when it re-hired³ him. See Amended Complaint ¶ 11, at 3. The APD also knew that Smith suffered from PTSD, and from symptoms that included flashbacks, blackouts, and waking-nightmares. See Amended Complaint ¶ 12, at 3. The APD nonetheless assigned Smith to the Southeastern quadrant of Albuquerque in an area that is commonly known as the “War Zone.” Amended Complaint ¶ 13, at 3. Smith told his fellow officers that he often suffered from PTSD symptoms, including flashbacks, while on the job as an APD officer. See Amended Complaint ¶ 14, at 3.

On March 19, 2012, at approximately 1:08 p.m. Smith responded to a call from dispatch concerning a black Sports Utility Vehicle (“SUV”) that was parked at an apartment complex at 8201 Marquette NE in Albuquerque. See Amended Complaint ¶ 15, at 3. An anonymous caller had informed the dispatcher that someone was possibly selling stolen items in the apartment complex's parking lot. See Amended Complaint ¶ 16, at 3. The dispatcher advised Smith that the National Crime Information Center (“NCIC”) database did not list the SUV's plates as stolen. See Amended Complaint ¶ 17, at 3.

At “approximately 1:13:55 pm,” Smith notified the dispatcher that he had arrived at 8201 Marquette Avenue NE. Amended Complaint ¶ 18, at 3. At 1:15:05 p.m., Smith called into dispatch “to ‘clear the air’ and [state] that he had made contact with the vehicle's occupant, Daniel Tillison.” Amended Complaint ¶ 18, at 3. Smith conducted a felony stop by parking his patrol car directly behind the SUV. See Amended Complaint ¶ 19, at 4. He approached the SUV's driver side window with his gun drawn and ordered Tillison to show his hands. See Amended Complaint ¶ 20, at 4. The SUV's driver side window was open, and Tillison was talking on a black cellular telephone during the entire encounter with Smith. See Amended Complaint ¶ 21, at 4. Tillison told Smith that he did not do anything wrong, and he raised his hands, while holding the cellular telephone in his right hand. See Amended Complaint ¶ 22, at 4. Smith then suffered a PTSD related episode and fatally shot Tillison. See Amended Complaint ¶ 23, at 4.

Between 1:16:09 p.m. and 1: 16:19 p.m., Smith called over his police radio “shots fired” and that the “subject tried running over me.” Amended Complaint ¶¶ 24–25, at 4. At 1:17:20 p.m., Smith told dispatch that Tillison appeared dead. See Amended Complaint ¶ 26, at 4. Officer George Trujillo arrived at the scene five seconds later. See Amended Complaint ¶ 27, at 4. At 1:17:38 p.m., Smith told the dispatcher that Tillison was the only person in the car, and that he was still in the car. See Amended Complaint ¶ 28, at 4. Other officers who arrived at the scene found that the SUV was in gear in reverse. See Amended Complaint ¶ 29, at 4. By 1:19:00 p.m., Tillison was gasping for air. See Amended Complaint ¶ 31, at 3. Tillison died at the scene. See Amended Complaint ¶ 32, at 5. APD confirmed that the stereo equipment in Tillison's SUV was not stolen. See Amended Complaint ¶ 33, at 5.

Smith later told his co-workers that he blacked out and had a PTSD moment when he shot Tillison. See Amended Complaint ¶ 81, at 11. Smith did not issue any warnings that he was going to shoot. See

163 F.Supp.3d 845

Amended Complaint ¶ 82, at 11. Tillison did not utter any fighting words or any words that would indicate to Smith that he was a theat. See Amended Complaint ¶ 86, at 11. An APD police training expert testified, in another case, that APD's training on use of deadly force is unreasonable. See Amended Complaint ¶ 90, at 11. Smith violated APD policy by firing his gun at the SUV and at Tillison. See Amended Complaint ¶ 95, at 13.

2. Version One.

Smith stated that, on March 19, 2012, he was performing his regular shift as a patrol officer. He was wearing a police uniform and driving a marked police car. See Amended Complaint ¶ 35, at 5. At approximately 1:08 p.m. on March 19, 2012, an APD dispatcher directed him to respond to a call at 8201 Marquette NE. See Amended Complaint ¶ 35, at 5. The anonymous caller had reported to the APD that someone was possibly selling stolen items in a parking lot and that the person's car was a...