O'Farrell v. Bd. of Comm'rs for the Cnty. of Bernalillo

• Decision Date: 23 April 2020
• Docket Number: No. CIV 17-1052 JB\JFR,CIV 17-1052 JB\JFR
• Citation: 455 F.Supp.3d 1172
• Parties: Lily O'FARRELL, Plaintiff, v. The BOARD OF COMMISSIONERS FOR the COUNTY OF BERNALILLO; LaDonna Day, individually; Kassandra Garcia, individually; City of Albuquerque; John Does 1-10; and Jane Does 1-10, Defendants.
• Court: U.S. District Court — District of New Mexico

455 F.Supp.3d 1172

Lily O'FARRELL, Plaintiff,

v.The BOARD OF COMMISSIONERS FOR the COUNTY OF BERNALILLO; LaDonna Day, individually; Kassandra Garcia, individually; City of Albuquerque; John Does 1-10; and Jane Does 1-10, Defendants.

No. CIV 17-1052 JB\JFR

United States District Court, D. New Mexico.

Filed April 23, 2020

Robert Gorence, Louren M. Oliveros, Amye Gayle Green, Gorence & Oliveros, P.C., Albuquerque, New Mexico, Attorneys for the Plaintiff.

Luis E. Robles, Taylor Sauer Rahn, Douglas E. Gardner, Robles, Rael & Anaya, P.C., Albuquerque, New Mexico, Attorneys for Defendants Bernalillo County, LaDonna Day, and Kassandra Garcia.

Esteban A. Aguilar, Jr., City Attorney for the City of Albuquerque, Kristin J. Dalton, Assistant City Attorney, City of Albuquerque Attorney's Office, Albuquerque, New Mexico, Attorneys for Defendant City of Albuquerque.

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, UNITED STATES DISTRICT JUDGE

THIS MATTER comes before the Court on: (i) County Defendants’ Motion for Summary Judgment Based on Qualified Immunity; Dismissal of Counts I-V of Plaintiff's Complaint, filed March 1, 2019 (Doc. 45)("MSJ"); and (ii) Defendants Board of Commissioners for the County of Bernalillo's, LaDonna Day's, and Kassandra Garcia's ("County Defendants") Opposed Motion to Stay Discovery Based on Qualified Immunity and to Vacate Existing Discovery Deadlines, filed March 1, 2019 (Doc. 46)("Motion to Stay"). The Court held a hearing on May 8, 2019. See Clerk's Minutes at 1, filed May 8, 2019 (Doc. 67). The primary issue are: (i) whether Defendant LaDonna Day is entitled to qualified immunity where she used a Taser on a non-resisting criminal detainee without warning; (ii) whether it was clearly established that Plaintiff Lily O'Farrell was entitled to greater medical care than she received after she was shot with the Taser; (iii) whether Defendant Board of County Commissioners for the County of Bernalillo is excused from municipal liability; (iv) whether O'Farrell's assault and battery claims fall under the New Mexico Tort Claims Act, N.M. Stat. Ann. §§ 41-4-1 to -30; and (v) whether Bernalillo County faces supervisory liability. The Court concludes that: (i) Day is not entitled to qualified immunity, because using a Taser against a compliant, non-resisting detainee violated clearly established law; (ii) O'Farrell was not entitled to greater medical care under clearly established law; (iii) Bernalillo County faces municipal liability; (iv) O'Farrell has pled common law assault and battery claims; and (v) the Court will not dismiss O'Farrell's claim for vicarious liability against Bernalillo County, because the facts, when viewed in the light most favorable to O'Farrell, suggest that Day committed a tort.

FACTUAL BACKGROUND

On September 29, 2015, O'Farrell was booked into Bernalillo County Metropolitan Detention Center ("MDC"), in Albuquerque, New Mexico. See MSJ ¶ 1, at 3 (asserting this fact)(citing Deposition of Lily O'Farrell at 55:11-19 (taken January 7, 2019), filed March 29, 2019 (Doc. 45-1)("O'Farrell Depo.")); O'Farrell Depo. at 55:20-23 (stating that O'Farrell was booked on September 29, 2015).¹ During the booking process, O'Farrell told the processing officers that she was coming down off of heroin. See MSJ ¶ 3, at 3 (asserting this fact)(citing O'Farrell Depo. at 53:5-8; 124:13-16); Response ¶ 3, at 4 (stating that she does not dispute this fact). Officers placed her on drug watch and put her into segregation on the dayroom floor for observation and to detox from heroin. See MSJ ¶ 3, at 3 (asserting this fact)(citing O'Farrell Depo. at 53:5-8; 124:13-16); Response ¶ 3, at 4 (stating that she does not dispute this fact). O'Farrell was under the influence of drugs. See MSJ ¶ 3, at 3 (asserting this fact)(citing O'Farrell Depo. at 53:5-8; 124:13-16); Response ¶ 3, at 4 (stating that she does not dispute this fact).

Soon after she was placed in segregation, MDC officers observed O'Farrell army crawling on the floor to the cell of another inmate, Maria Gutierrez See MSJ ¶ 4, at 3 (asserting this fact)(citing Deposition of LaDonna Day at 69:15-71:7 (taken July 23, 2018)), filed March 1, 2019 (Doc. 45-2)("Day Depo.").² A supervisor told Day that other corrections officers saw Gutierrez pass something to O'Farrell once she arrived at the cell. See MSJ ¶ 4, at 3 ("Once Ms. O'Farrell arrived at the other inmate's cell, she passed something to Ms. O'Farrell.")(citing Day Depo. at 69:15-71:7); Response ¶ 4, at 4-5.³ O'Farrell then began crawling back to her bed, where a corrections officer intercepted her and told her to put her hands on the wall while he called his supervisor. See MSJ ¶ 4, at 3 (asserting this fact)(citing Day Depo. at 69:15-71:7); Response ¶ 4, at 4-5.⁴

Day's supervisor authorized body scans and strip searches for O'Farrell and Maria Gutierrez. See MSJ ¶ 4, at 3 (asserting this fact)(citing Day Depo. at 69:15-71:7); Response ¶ 4, at 4-5.⁵ Day was asked to help with these strip searches. See MSJ ¶ 5, at 3 (asserting this fact)(citing Day Depo. at 70:19-71:7); Response ¶ 5, at 5 (stating that she does not dispute this fact). During the strip search, Gutierrez told Day that she had swallowed some heroin and given the rest she had to O'Farrell. See MSJ ¶ 6, at 3 (asserting this fact)(citing Day Depo. at 71:21-72:6; 73:12-74:3); id. ¶ 42, at 9 (asserting this fact)(citing Day Depo. at 73:12-74:3).^{6 7}

As O'Farrell's strip search began, Day instructed her about the commands Day would provide and what Day expected her to do; Day then had O'Farrell remove one article of clothing at a time. See MSJ ¶ 43, at 9 (asserting this fact)(citing Day Depo. at 98:16-99:14); Response ¶ 28, at 13 (stating that O'Farrell does not dispute this fact). O'Farrell took off her clothes, coughed, squatted, bent, spread her buttocks, and lifted her feet. See MSJ ¶ 16, at 5 (asserting this fact)(citing O'Farrell Depo. at 59:11-60:7).⁸ Shortly before Day Tasered O'Farrell, O'Farrell placed her hands back on the wall. See MSJ ¶ 16, at 5 (asserting this fact)(citing O'Farrell Depo. at 59:11-60:7). O'Farrell told Day that she did not want to continue with the strip search any more. MSJ ¶ 16, at 5 (asserting this fact)(citing O'Farrell Depo. at 59:11-60:7).⁹ O'Farrell asked Day how many times she would have to cough

, squat, and bend, and Day replied: "As many as I like." Response ¶ 8, at 6 (asserting this fact)(citing O'Farrell Depo. at 143:5-22).¹⁰ Before O'Farrell could respond, Day shoved her against the wall, causing the right side of O'Farrell's face to strike the wall. See Response ¶ 8, at 6 (asserting this fact)(citing O'Farrell Depo. at 144:5-145:25).¹¹ Day did not have out or brandish the Taser before firing it at O'Farrell, and she fired it at O'Farrell without warning. See MSJ ¶ 17, at 5 (asserting this fact)(citing O'Farrell Depo. at 170:3-12); Response ¶ 10, at 9 (stating that she does not dispute this fact).¹² Day said nothing to O'Farrell after Tasering her for the first time, but less than a minute later, she Tasered O'Farrell in the back a second time. See Response ¶ 8, at 7 (asserting this fact)(citing O'Farrell Depo. at 148:19-21; id. at 149:19-150:3).¹³

Day then told O'Farrell that she could dress. See MSJ ¶ 19, at 5 (asserting this fact)(citing O'Farrell Depo. at 61:7-62:1); Response ¶ 8, at 7 ("Day then told Ms. O'Farrell to get dressed." (citing O'Farrell Depo. at 61:12-13)).¹⁴ While getting dressed, O'Farrell reached for her sports bra, which was nowhere near Day; Day told O'Farrell that she could not have the bra, because she was going to a dry cell. See MSJ ¶ 19, at 5-6 (asserting this fact)(citing O'Farrell Depo. at 61:7-62:1); Response ¶ 8, at 7.¹⁵ O'Farrell then reached for the bra anyway, and Day Tasered her. See MSJ ¶ 19, at 6 (asserting this fact)(citing O'Farrell Depo. at 61:7-62:1).¹⁶ After this third Taser use, Day fell to the ground and began to convulse. See Response ¶ 8, at 7-8 (asserting this fact)(citing O'Farrell Depo. at 61:22-62:5; id. at 81:10-82:1).¹⁷ While O'Farrell was on the ground, Day shot the Taser at O'Farrell again; the Taser prong struck O'Farrell in the palm but did not embed. See MSJ ¶ 20, at 6 (asserting this fact)(citing O'Farrell Depo. at 62:3-63:7; id. at 64:11-66:23). ¹⁸

O'Farrell was still involuntarily convulsing when she was handcuffed. See Response ¶ 8, at 8 (asserting this fact)(citing O'Farrell Depo. at 80:2-11; id. at 80:22-23).¹⁹ After the Tasering, Day took O'Farrell to a nurse to receive medical treatment. See MSJ ¶ 53, at 11 (asserting this fact)(citing Day Depo. at 148:4-150:1; Medical Clearance Form at 1, filed March 1, 2019 (Doc. 45-3)).²⁰

Day's Taser is a model X2, which has two cartridges that can shoot prongs up to twenty-five feet; after two shots, a user must reload the Taser. See MSJ ¶ 32, at 8 (asserting this fact)(citing Taser Log at 2); Response ¶ 22, at 12 (stating that she does not dispute this fact). Day's Taser could also be used in "drive-stun mode," where a user holds the Taser against the body and does not need to reload between electric shocks. MSJ ¶ 32, at 8 (asserting this fact)(citing Taser Log at 2); Response ¶ 22, at 12 (stating that she does not dispute this fact). Day's Taser was armed at 22:38:13 on September 29, 2015. See MSJ ¶ 33, at 8 (asserting this fact)(citing Affidavit of LaDonna Day at 2, filed March 1, 2019 (Doc. 45-4)("Taser Log")); Response ¶ 22, at 12 (stating that she does not dispute this fact). Thirty-two seconds after the Taser was armed, Day fired a prong and deployed a five-second tasering. See MSJ ¶ 34, at 8 (asserting this fact)(citing Taser Log at 2).²¹ Sixteen seconds later, Day fired the Taser for a second time in "drive-stun mode" for one second. MSJ ¶ 35, at 8 (asserting this fact)(citing Taser Log at 2); Response ¶ 23, at 12 (stating that she does not dispute this fact). Day used the Taser a third time twenty-two seconds later in "drive-stun mode." MSJ ¶ 36, at 8 (asserting this fact)(citing ...