Gose v. Bd. of County Commissioners of The County of Mckinley

Decision Date20 April 2011
Docket NumberNo. CIV 10–0424 JB/RHS.,CIV 10–0424 JB/RHS.
Citation778 F.Supp.2d 1191
PartiesCharity GOSE, Plaintiff,v.BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF McKINLEY and Unknown Persons 1–100, Defendants.
CourtU.S. District Court — District of New Mexico

778 F.Supp.2d 1191

Charity GOSE, Plaintiff,
v.
BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF McKINLEY and Unknown Persons 1–100, Defendants.

No. CIV 10–0424 JB/RHS.

United States District Court, D. New Mexico.

April 20, 2011.


[778 F.Supp.2d 1194]

William G. Stripp, Ramah, NM, for the Plaintiff.William D. Slease, Jonlyn M. Martinez, Slease & Martinez, P.A., Albuquerque, NM, for Defendant Board of County Commissioners of the County of McKinley.

MEMORANDUM OPINION AND ORDER
JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on the Defendant's Motion for Summary Judgment, filed January 20, 2011 (Doc. 21)(“Motion”). The Court held a hearing on April 15, 2011. The primary issues are: (i) whether the Court should dismiss the unknown defendants from the action; (ii) whether there is a genuine issue of material fact on Plaintiff Charity Gose's 42 U.S.C. § 1983 claim; and (iii) whether there is a genuine issue of material fact on Gose's New Mexico Tort Claims Act, NMSA 1978, §§ 41–4–1 through 41–4–30 (“NMTCA”), claim. The Court will dismiss without prejudice the unnamed Defendants from the action, because Gose has not offered a description of the unnamed Defendants that is sufficient to identify them for service of process and inclusion in the case. The Court will grant summary judgment on Gose's § 1983 claim, because there is no evidence that one of the correctional officers at McKinley County Adult Detention Center (“MCADC”) intentionally failed to file a return of service for Gose's bench warrant, and, furthermore, there is no evidence that a policy was the moving force behind the constitutional deprivation or that the municipality's failure to train or supervise was the result of deliberate indifference. Having disposed of Gose's federal claims, the Court remands her remaining state-law claims to the Eleventh Judicial District Court, McKinley County, State of New Mexico.

[778 F.Supp.2d 1195]

FACTUAL BACKGROUND

In its motion for summary judgment, Defendant Board of County Commissioners of the County of McKinley (“McKinley County”) set forth a statement of material facts. In her response, Gose disputed four of McKinley County's asserted facts, stating that the allegations were inaccurate. Several days later, Gose filed her affidavit in opposition to McKinley County's motion. In McKinley County's reply, it argues that the Court should not consider Gose's affidavit, because it is a sham affidavit.

The United States Court of Appeals for Tenth Circuit has stated that “[t]here is authority for the proposition that in determining whether a material issue of fact exists, an affidavit may not be disregarded because it conflicts with the affiant's prior sworn statements.” Franks v. Nimmo, 796 F.2d 1230, 1237 (10th Cir.1986) (citing 10A C. Wright, A. Miller & M. Kane, Federal Practice & Procedure § 2738, at 473–74 (2d ed.1983); 6 J. Moore & J. Wicker, Moore's Federal Practice ¶ 56.22[1], at 56–1325 to 56–1326 (1985 ed.)). There are situations, however, where courts “disregard a contrary affidavit when they conclude that it constitutes an attempt to create a sham fact issue.” Franks v. Nimmo, 796 F.2d at 1237 (citing Foster v. Arcata Assocs., Inc., 772 F.2d 1453, 1462 (9th Cir.1985); Biechele v. Cedar Point, Inc., 747 F.2d 209, 215 (6th Cir.1984); Van T. Junkins & Assocs., Inc. v. U.S. Indus., Inc., 736 F.2d 656, 657–58 (11th Cir.1984); Camfield Tires, Inc. v. Michelin Tire Corp., 719 F.2d 1361, 1364 (8th Cir.1983); Perma Research & Dev. Co. v. Singer Co., 410 F.2d 572, 578 (2d Cir.1969)). The policy underlying these decisions is the “conclusion that the utility of summary judgment as a procedure for screening out sham fact issues would be greatly undermined if a party could create an issue of fact merely by submitting an affidavit contradicting his own prior testimony.” Franks v. Nimmo, 796 F.2d at 1237 (citation omitted).

To determine whether a contradicting affidavit seeks to create a sham fact issue, [the Tenth Circuit] ha[s] looked to three factors: whether: “(1) the affiant was cross-examined during his earlier testimony; (2) the affiant had access to the pertinent evidence at the time of his earlier testimony or whether the affidavit was based on newly discovered evidence; and (3) the earlier testimony reflects confusion which the affidavit attempts to explain.”

Ralston v. Smith & Nephew Richards, Inc., 275 F.3d 965, 973 (10th Cir.2001) (citing Rios v. Bigler, 67 F.3d 1543, 1551 (10th Cir.1995)). In Ralston v. Smith & Nephew Richards, Inc., the Tenth Circuit found that the district court did not abuse its discretion in excluding later contradictory declarations in rendering its summary judgment ruling. See 275 F.3d at 973. The Tenth Circuit noted that there was no question that the declarant was cross-examined in his deposition, “that he had access to the pertinent evidence at the time of his deposition,” and “that there was nothing in the earlier deposition testimony reflecting any level of confusion or uncertainty concerning” the declarant's testimony “requiring clarification or explanation.” 275 F.3d at 973.

The Court will consider Gose's affidavit in ruling on McKinley County's motion for summary judgment. Although Gose was cross-examined during her deposition, and had access to the pertinent evidence at the time of her deposition, Gose's affidavit explains that, during her deposition, she was confused. Gose states:

At my deposition on January 20, 2011, Ms. Jonlyn Martinez, Attorney at Law, asked me questions about my arrest. I was confused about the difference between different kinds of law enforcement officers. I thought I was arrested

[778 F.Supp.2d 1196]

by a Gallup Police officer, but I was wrong.

After my deposition, I read the allegations of Lieutenant Kamaal Ashley of the McKinley County Adult Detention Center in her Affidavit attached to the motion for summary judgment. What she said did not seem right to me, so I spoke to my attorney William Stripp and then began searching for records. I found a Report of Violation (Probation) that was written by my probation officer Sean Gifford on September 27, 2007. Reading the report helped me remember what happened.

Plaintiff Charity Gose's Affidavit in Opposition to Defendant's Motion for Summary Judgment ¶¶ 3–4, at 1–2 (dated February 10, 2011), filed February 13, 2011 (Doc. 23). Unlike Ralston v. Smith & Nephew Richards, Inc., where the Tenth Circuit found that the district court did not abuse its discretion in excluding later contradictory declarations in ruling on a motion for summary judgment when the declarant was cross-examined during his deposition, had the pertinent evidence at the time of his deposition, and when there was nothing reflecting confusion during the deposition, Gose has explained that she was confused during her deposition, and that only upon reading Ashley's affidavit did she search for records and discover the information that she includes in her affidavit. This statement is not one where Gose is attempting to “create an issue of fact merely by submitting an affidavit contradicting h[er] own prior testimony.” Franks v. Nimmo, 796 F.2d at 1237 (citation omitted). Instead, Gose represents that the depiction of events in her affidavit is the accurate depiction of what happened and that her previous depiction is not accurate. See Transcript of Hearing at 15:7–8 (taken April 15, 2011)(Stripp)( “And so that's basically the fact pattern that at this point in time I believe is accurate.”)(“Tr.”).1 At the hearing, Gose's counsel stated that, during Gose's deposition, several questions came up, because some of her testimony did not make sense. See Tr. at 12:11–13 (Stripp)(“When Ms. Martinez took Ms. Gose's deposition, several questions came up in my mind about her testimony and what she [was] saying, because it didn't make sense to me.”). After Gose's deposition, Gose's counsel “talked to her” and “was trying to clarify exactly what happened.” Tr. at 12:15–16 (Stripp). McKinley County's counsel stated that the Court should treat Gose's affidavit as a sham affidavit, because McKinley County was not aware of the new depiction of events in discovery, and because these issues arose only after McKinley County filed its motion for summary judgment. See Tr. at 20:4–10, 20:16–24 (Martinez). Although McKinley County was not aware of this new depiction of events until Gose filed her response, Gose's counsel first became aware of Gose's confusion during her deposition, and Gose did not begin searching for records which would refresh her memory as to the events until she read Ashley's affidavit. Finding and reading the Report of Violation helped Gose remember the events. Despite the timing of Gose's affidavit, the Court cannot properly find that it is a sham affidavit, because the affidavit is based on “newly discovered evidence”—evidence which Gose discovered only after reading Ashley's affidavit, which was attached to McKinley County's motion for summary judgment—and because Gose's testimony during her deposition reflected confusion about the events, see Tr. at 12:11–13 (Stripp)(“When Ms. Martinez took Ms. Gose's deposition, several questions

[778 F.Supp.2d 1197]

came up in my mind about her testimony and what she [was] saying, because it didn't make sense to me.”); id. at 14:23–15:1 (“Ms. Gose is not very sophisticated about legal things. I mean she believed that this Christina Gordon was her probation officer when in fact she's an employee of a private nonprofit.”). Gose is not trying to create an issue of fact by creating a conflict with her prior testimony; rather, she is abandoning altogether her prior testimony. While there is unfairness to McKinley County in the way that Gose has dealt with McKinley County at her deposition and now in her response on summary judgment, the Court remains, after all, a truth seeking body. If her testimony at the deposition neither makes sense nor is her testimony, there is no reason to consider it....

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  • Reid v. Pautler
    • United States
    • U.S. District Court — District of New Mexico
    • 31 Julio 2014
    ...that there is not a procedural due-process violation, then Valdez v. City and County of Denver and Gose v. Board of County Commissioners, 778 F.Supp.2d 1191 (D.N.M.2011) (Browning, J.), dictates that there are no Fourth Amendment violations. See Tr. at 66:8–18 (James). The Defendants also c......
  • Gutierrez v. Geofreddo
    • United States
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    ...must provide an adequate description sufficient to identify the unnamed defendants." Gose v. Bd. of Cty. Comm'rs of Cty. of McKinley, 778 F. Supp. 2d 1191, 1205 (D.N.M. 2011)(Browning, J.). Here, the Complaint does not adequately "describe the person" that P. Gutierrez claims injured her. F......
  • Begay v. United States
    • United States
    • U.S. District Court — District of New Mexico
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    ...by name, it is difficult to hold anybody liable. Further, John Does do not count. See Gose v. Bd. of Cnty. Com'rs of Cnty. of McKinley, 778 F.Supp.2d 1191, 1204–06 (D.N.M.2011) (Browning, J.). Here, by contrast, there is one entity that can and is being sued—the United States—and it makes l......
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    • United States
    • U.S. District Court — District of New Mexico
    • 31 Julio 2014
    ...that there is not a procedural due-process violation, then Valdez v. City and County of Denver and Gose v. Board of County Commissioners, 778 F.Supp.2d 1191 (D.N.M.2011) (Browning, J.), dictates that there are no Fourth Amendment violations. SeeTr. at 66:8–18 (James). The Defendants also co......
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