Eckert v. City of Deming, CIV 13-0727 JB/WPL

Decision Date31 October 2015
Docket NumberNo. CIV 13-0727 JB/WPL,CIV 13-0727 JB/WPL
CourtUnited States District Courts. 10th Circuit. District of New Mexico
PartiesDAVID ECKERT, Plaintiff, v. THE CITY OF DEMING, DEMING POLICE OFFICERS, BOBBY OROSCO, ROBERT CHAVEZ and OFFICER HERNANDEZ; HIDALGO COUNTY; HIDALGO COUNTY SHERIFF OFFICERS, DAVID ARREDONDO, ROBERT RODRIGUEZ, PATRICK GREEN, DEPUTY DISTRICT ATTORNEY DANIEL DOUGHERTY, GILA REGIONAL MEDICAL CENTER, ROBERT WILCOX, M.D., and OKAY ODOCHA, M.D., Defendants.

DAVID ECKERT, Plaintiff,
v.
THE CITY OF DEMING, DEMING POLICE OFFICERS,
BOBBY OROSCO, ROBERT CHAVEZ and OFFICER HERNANDEZ;
HIDALGO COUNTY; HIDALGO COUNTY SHERIFF OFFICERS,
DAVID ARREDONDO, ROBERT RODRIGUEZ, PATRICK GREEN,
DEPUTY DISTRICT ATTORNEY DANIEL DOUGHERTY,
GILA REGIONAL MEDICAL CENTER, ROBERT WILCOX, M.D.,
and OKAY ODOCHA, M.D., Defendants.

No. CIV 13-0727 JB/WPL

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

October 31, 2015


MEMORANDUM OPINION AND AMENDED ORDER1

THIS MATTER comes before the Court on: (i) Defendant Deputy District Attorney Daniel Dougherty's Motion to Dismiss on the Grounds of Immunity, filed December 11, 2013 (Doc. 41)("MTD"); and (ii) Plaintiff's Opposed Motion to Amend Complaint, filed January 30, 2015 (Doc. 75)("MTA"). The Court held hearings on August 29, 2014, and August 20, 2015.

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The primary issues are: (i) whether qualified immunity protects Defendant Daniel Dougherty from liability for his approval of the search warrant covering Plaintiff David Eckert's vehicle, person, and anal cavity on the suspicion that he was concealing drugs; and (ii) if qualified immunity protects Dougherty from liability, whether the Plaintiff's First Amended Complaint to Recover Damages for[]Deprivation of Civil Rights and Personal Injury, filed January 30, 2015 (Doc. 75-1)("Proposed Amended Complaint"), overcomes that immunity. The Court determines that Dougherty is entitled to qualified immunity because there is no evidence that he knew or should have known that his actions would result in a series of enemas or a colonoscopy. Eckert's Proposed Amended Complaint also does not adequately allege this knowledge. The Court will thus grant the MTD and dismiss the MTA with prejudice.

FACTUAL BACKGROUND

The Court takes its facts from the Complaint, as it must when ruling on a motion under rule 12(b)(6) of the Federal Rules of Civil Procedure. On January 2, 2013, Detective Robert Chavez of the Deming Police Department in Luna County, New Mexico stopped Eckert in a Wal-Mart parking lot for alleged failure to yield at a stop sign. See Complaint to Recover Damages for Deprivation of Civil Rights and Personal Injury ¶ 32, at 5, filed August 7, 2013 (Doc. 1)("Complaint"). Chavez asked Eckert to exit his vehicle and patted Eckert down "without reasonable suspicion that he was armed." Complaint ¶ 34, at 5. Chavez says that he noticed that Eckert's posture was "erect and he kept his legs together." Complaint ¶ 35, at 5. Although Chavez told Eckert that he was free to leave, he began to interrogate Eckert without probable cause. See Complaint ¶ 38, at 5. Chavez falsely states that Eckert gave his consent to a vehicle search. See Complaint ¶ 39, at 5. Other officers arrived with a narcotics canine, which alerted to the driver's seat of Eckert's vehicle. See Complaint ¶ 40, at 5. Two other officers then

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falsely informed Chavez that Eckert was known in neighboring Hidalgo County, New Mexico to "insert drugs into his anal cavity." Complaint ¶ 42, at 5. The officers handcuffed Eckert, took him to the Deming Police Department, and searched his vehicle. They did not find any drugs. See Complaint ¶¶ 42-46, at 5-6.

Chavez called Dougherty, a Deputy District Attorney for the Sixth Judicial District of New Mexico, which includes Luna County, Grant County, and Hidalgo County, at approximately 2:01 p.m. See Complaint ¶ 48, at 6. Chavez successfully sought permission to obtain a search warrant for Eckert's person, vehicle, and anal cavity. See Complaint ¶ 48, at 6. He then wrote an affidavit for a search warrant, which Dougherty approved. See Complaint ¶ 49, at 6. The affidavit stated that the search's scope was "to include but not limited to Eckert's anal cavity." Complaint ¶¶ 48-49, at 6. A state Magistrate Judge approved the request the same day. See Complaint ¶ 49, at 6. The resulting warrant did not specify any particular medical procedure. See Complaint ¶ 50, at 6. The warrant only covered searches conducted between the hours of 6:00 a.m. and 10:00 p.m. See Complaint ¶ 71, at 8.

Chavez then took Eckert to the "Deming Emergency Room"2 to execute the warrant. See Complaint ¶ 52, at 6. The attending physician at this emergency room, Dr. Adam Ash, refused to conduct an anal cavity search, because he believed it was unethical. See Complaint ¶ 53, at 7. Dougherty then authorized Chavez to take Eckert to Gila Regional Medical Center in Silver City, New Mexico. See Complaint ¶ 52, at 6. This hospital was located in neighboring Grant County, allegedly outside of the search warrant's valid scope. See Complaint ¶ 52, at 6.

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Physicians at Gila Regional Medical Center admitted Eckert on January 2, 2013 at 9:04 p.m. See Complaint ¶ 60, at 7. When the first abdominal X-ray came back negative for any foreign objects, one physician performed a digital rectal examination and felt "something soft," but said that it could have been stool. Complaint ¶¶ 63-68, at 7-8. The search warrant expired roughly one hour later that night.

After the search warrant expired, the same physician conducted a second digital rectal examination. See Complaint ¶ 74, at 8. When that examination did not produce any results, a surgeon ordered a series of three enemas3 without Eckert's consent. None of the enemas produced any foreign objects. See Complaint ¶¶ 77-87, at 8-9. The physicians then ordered a second X-ray, this time focused on the chest, which did not reveal any narcotics. See Complaint ¶¶ 90-92, at 9. The surgeon reacted to this result by scheduling a colonoscopy4 for 1:00 a.m. on January 3, 2013. See Complaint ¶ 94, at 9. Like every other examination, the colonoscopy did not discover any narcotics. See Complaint ¶ 97, at 10. Eckert alleges that police officers "harass[ed], mock[ed], and berate[d] Plaintiff by making derogatory remarks about Plaintiff and his compromised position," and "expos[ed] him to the public hallway during the intimate and humiliating searches." Complaint ¶¶ 104-105, at 10. The hospital later billed Eckert "for the

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'services' it provided at the request of law enforcement." Complaint ¶ 107, at 11. These bills amounted to thousands of dollars. See Complaint ¶ 108, at 11.

PROCEDURAL BACKGROUND

Eckert filed suit in the Court on August 7, 2013. See Complaint at 1. His Complaint targets one city, one county, one hospital, and nine individual defendants, including Dougherty. See Complaint ¶¶ 2-13, at 2-3. It alleges: (i) ten searches in violation of the Fourth Amendment to the Constitution of the United States of America; (ii) due process violations; (iii) negligence; (iv) lack of informed consent; (v) violation of the New Mexico Unfair Practices Act, N.M.S.A. 1978 §§ 57-12-1 to 57-12-26; (vi) battery; and (vii) false imprisonment. See Complaint ¶¶ 113-233, 11-28. Eckert seeks: (i) actual and compensatory damages; (ii) punitive damages; (iii) treble damages; (iv) injunctive relief "sufficient to protect Plaintiff and his family from the ongoing harassment and intimidation of Defendants;" (v) attorney's fees, litigation expenses, costs, and pre- and post-judgment interest as the law provides; and (vi) "such other and further relief as the Court deems just and proper." Complaint ¶¶ I-VI, at 29.

1. The MTD.

Dougherty filed the MTD on December 11, 2013. See MTD at 1. Dougherty argues: (i) that he is entitled to prosecutorial immunity, because he acted within the scope of his prosecutorial duties; and (ii) that he is entitled to qualified immunity, because he did not violate a clearly established constitutional right. See MTD at 4-6. Dougherty requests an order dismissing him from the suit with prejudice, attorney fees and costs, and "all other relief this Court deems just and proper." MTD at 10.

First, Dougherty argues that he is entitled to prosecutorial immunity. He contends that, as a prosecutor, he was acting in his employment's course and scope during all of the events that

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the Complaint describes. See MTD at 4. This fact, he argues, means that his decisions were "intimately associated with the judicial phase of the criminal process" and thus absolutely immune from 42 U.S.C. § 1983 suits. MTD at 4 (quoting Imbler v. Pachtman, 424 U.S. 409, 430 (1976)). Dismissal, he argues, will preclude "harassment by unfounded litigation" that could "cause a deflection of the prosecutor's energies from his public duties, and the possibility that he would shade his decisions instead of exercising the independence of judgment required by his public trust." MTD at 4 (quoting Imbler v. Pachtman, 424 U.S. at 423).

Second, Dougherty argues that qualified immunity protects him from Eckert's suit. He notes that qualified immunity "provides ample protection to all but the plainly incompetent or those who knowingly violate the law." MTD at 5 (citing Malley v. Briggs, 475 U.S. 335, 341 (1986)). He then argues that he did not violate any of Eckert's clearly established constitutional rights. He contends that there was probable cause for the search warrant, citing the district court judge's affirmative obligation to review the relevant facts, his approval of the warrant, and the deferential standard that reviewing courts apply to judge-approved warrants. See MTD at 7-8. These facts, he says, "cut[] off" any liability. MTD at 8.

He then attacks Eckert's theory that the search and seizure was unreasonable because Dougherty allowed the police officers to take Eckert to a second hospital to execute the warrant. See MTD at 9. He concedes that the second hospital was "in another county in the Sixth Judicial District, the judicial district in which the warrant was issued." MTD at 9. He states that the warrant was valid, however, even if the second hospital was outside the officers' jurisdiction. See MTD at 9. In United States v. Green, 178 F.3d 1099 (10th Cir. 1999)(Anderson, J.), the United States Court of Appeals for the Tenth Circuit held that the Fourth Amendment may be satisfied even if police officers act outside of their...

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