Gutierrez v. Cobos

• Decision Date: 15 November 2016
• Docket Number: No. 15-2161,15-2161
• Citation: 841 F.3d 895
• Parties: Anna Gutierrez ; Patsy Flores, Plaintiffs–Appellants, v. Luna County Sheriff Raymond Cobos, in his individual and official capacity; Luna County Sheriff Deputy Gabriel Maynes; Deputy Mike Eby; Deputy Trini Garcia; Deputy Jose Ojeda; Deputy Israel Saenz, Jr., in their individual and official capacities; Luna County Central Dispatch Director Mirna Grado and Dispatch Employee Luhuana Villalba, in their individual and official capacities; Luna County Manager John Sutherland, in his individual and official capacity, Defendants–Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

841 F.3d 895

Anna Gutierrez ; Patsy Flores, Plaintiffs–Appellants,

v.Luna County Sheriff Raymond Cobos, in his individual and official capacity; Luna County Sheriff Deputy Gabriel Maynes; Deputy Mike Eby; Deputy Trini Garcia; Deputy Jose Ojeda; Deputy Israel Saenz, Jr., in their individual and official capacities; Luna County Central Dispatch Director Mirna Grado and Dispatch Employee Luhuana Villalba, in their individual and official capacities; Luna County Manager John Sutherland, in his individual and official capacity, Defendants–Appellees.

No. 15-2161

United States Court of Appeals, Tenth Circuit.

Filed November 15, 2016

Rosanne Camunez, Camunez Law Firm, PC, Las Cruces, New Mexico, appearing for Appellants.

Blaine T. Mynatt, Holt Mynatt Martinez P.C., Las Cruces, New Mexico (Casey B. Fitch and Benjamin J. Young, Holt Mynatt Martinez P.C., Las Cruces, New Mexico; and Carolyn A. Wolf, Montgomery & Andrews P.A., Santa Fe, New Mexico, with him on the brief), appearing for Appellees.

Before HARTZ, HOLMES, and MATHESON, Circuit Judges.

MATHESON

, Circuit Judge.

Anna Gutierrez and her mother, Patsy Flores, (“Plaintiffs”) appeal the district court's grant of summary judgment based on qualified immunity to Luna County New Mexico Sheriff's Deputy Gabriel Maynes on three of their claims brought under 42 U.S.C. § 1983

: (1) excessive use of force, (2) unlawful entry, and (3) unlawful seizure. When Deputy Maynes asserted the qualified immunity defense, Plaintiffs needed to show (1) a violation of (2) clearly established federal law. The district court concluded they failed to do so. Indeed, on their excessive force claim, they did not even try. In this appeal, we conclude as to all three claims that Plaintiffs failed to carry their burden as to clearly established law and do not address the first element of the qualified immunity analysis. Plaintiffs also appeal the district court's denial of their motion for additional discovery under Federal Rule of Civil Procedure 56(d). Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

I. BACKGROUND

A. Factual History¹

On the night of July 4, 2009, Luna County Sheriff's Deputy Gabriel Maynes tried to pull over Anna Gutierrez after she ran a stop sign. Ms. Gutierrez drove on—speeding slightly—until she reached an apartment complex several blocks away.

Ms. Gutierrez parked, exited her truck, and ran toward an apartment. Deputy Maynes exited his car, and, without warning, fired his taser. One of the darts struck Ms. Gutierrez in the back. She reached the apartment door and pounded on it in an effort to get inside. Deputy Maynes caught up and began hitting, kicking, and tasing Ms. Gutierrez. Ms. Gutierrez did not passively submit. Aplt. App., Vol. 5 at 72–74.

Patsy Flores, Ms. Gutierrez's mother, opened the apartment door. Deputy Maynes pushed Ms. Gutierrez inside and continued to hit and tase her. Ms. Flores pleaded for Deputy Maynes to leave her daughter alone. Deputy Maynes tased Ms. Flores on her leg and threatened to arrest her.

Additional officers arrived at the apartment in response to Deputy Maynes's dispatch call. Deputy Maynes eventually handcuffed Ms. Gutierrez and escorted her out of the apartment to a police car. During the encounter, Deputy Maynes tased Ms. Gutierrez nine or ten times.

Later that night at a hospital, a doctor surgically removed the taser dart from Ms. Gutierrez's back and cleared her for transport to jail. Ms. Gutierrez sustained additional injuries, including two fractured ribs

.

The State of New Mexico charged Ms. Gutierrez with several offenses, but the charges were later dismissed.

B. Procedural History

Ms. Gutierrez and Ms. Flores sued Deputy Maynes and other state officials (“Defendants”) in New Mexico state court. Defendants removed this case to federal court in September 2012. Plaintiffs filed an amended complaint, which alleged seven counts against nine state officials in both their individual and official capacities. The district court dismissed the official-capacity claims against all Defendants and dismissed many of the individual-capacity claims. Only three claims against Deputy Maynes in his individual capacity remain at issue.

In two separate motions, Deputy Maynes moved for summary judgment based on qualified immunity. First, he moved for summary judgment on Count III, Plaintiffs' excessive force claim. Before the court resolved the first motion, Deputy Maynes moved for summary judgment on Counts I and II, Plaintiffs' illegal entry and illegal seizure claims.

After they responded to Deputy Maynes's first motion but before they responded to his second, Plaintiffs moved under Federal Rule of Civil Procedure 56(d)

for additional discovery.

The district court denied Plaintiffs' Rule 56(d)

motion. In the same order, the court granted Deputy Maynes's first motion for summary judgment on the excessive force claims because Plaintiffs had failed to address the dispositive qualified immunity issue.

Although Plaintiffs argued against qualified immunity in their response to the second motion, the district court again granted summary judgment. It determined Plaintiffs, on their claims of unlawful entry into the apartment and unlawful seizure of Ms. Flores, had failed to show either a constitutional violation or a violation of clearly established law.

The district court entered judgment for Defendants, and Plaintiffs filed a timely notice of appeal. See Fed. R. App. P. 4(a)(1)(A)

.

II. DISCUSSION

A. Legal Background

1. Section 1983 and Qualified Immunity

Section 1983 of Title 42

provides that a person acting under color of state law who “subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured.” 42 U.S.C. § 1983.

“Individual defendants named in a § 1983

action may raise a defense of qualified immunity, which shields public officials ... from damages actions unless their conduct was unreasonable in light of clearly established law.” Estate of Booker v. Gomez , 745 F.3d 405, 411 (10th Cir. 2014) (ellipsis in original) (quotations and citation omitted). “Put simply, qualified immunity protects ‘all but the plainly incompetent or those who knowingly violate the law.’ ” Mullenix v. Luna , ––– U.S. ––––, 136 S.Ct. 305, 308, 193 L.Ed.2d 255 (2015) (per curiam) (quoting Malley v. Briggs , 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986)

). “This exacting standard ‘gives government officials breathing room to make reasonable but mistaken judgments....' ” City & Cty. of San Francisco v. Sheehan , –––U.S. ––––, 135 S.Ct. 1765, 1774, 191 L.Ed.2d 856 (2015) (quoting Ashcroft v. al

–

Kidd , 563 U.S. 731, 744, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011) ).

Once an individual defendant asserts qualified immunity, “the plaintiff carries a two-part burden to show: (1) that the defendant's actions violated a federal constitutional or statutory right, and, if so, (2) that the right was clearly established at the time of the defendant's unlawful conduct.” Estate of Booker , 745 F.3d at 411

(quotations omitted).

We may resolve a case on the second prong alone if the plaintiff fails to show a right was clearly established. See Pearson v. Callahan , 555 U.S. 223, 236, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009)

; Lynch v. Barrett , 703 F.3d 1153, 1159 (10th Cir. 2013) (“[W]e are permitted to exercise our sound discretion in deciding whether to bypass the first question and proceed directly to the second.” (quoting Pearson , 555 U.S. at 236–43, 129 S.Ct. 808 )).

“In this circuit, to show that a right is clearly established, the plaintiff must point to a Supreme Court or Tenth Circuit decision on point, or the clearly established weight of authority from other courts must have found the law to be as the plaintiff maintains.” Callahan v. Unified Gov't of Wyandotte Cty. , 806 F.3d 1022, 1027 (10th Cir. 2015)

(quotations omitted). A plaintiff need not show “the very act in question previously was held unlawful in order to establish an absence of qualified immunity.” Weigel v. Broad , 544 F.3d 1143, 1153 (10th Cir. 2008) (quotations omitted). But “[a]n officer ‘cannot be said to have violated a clearly established right unless the right's contours were sufficiently definite that any reasonable official in [his] shoes would have understood that he was violating it,’ meaning that ‘existing precedent ... placed the statutory or constitutional question beyond debate.’ ” Sheehan , 135 S.Ct. at 1774 (alterations and ellipsis in original) (citation omitted) (quoting al–Kidd , 563 U.S. at 741, 131 S.Ct. 2074 ).

2. Standard of Review

We review summary judgment de novo, applying the same legal standard as the district court. Schaffer v. Salt Lake City Corp. , 814 F.3d 1151, 1155 (10th Cir. 2016)

. A “court shall 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). “When applying this standard, we view the evidence and draw reasonable inferences therefrom in the light most favorable to the nonmoving party.” Ribeau v. Katt , 681 F.3d 1190, 1194 (10th Cir. 2012) (quotations omitted).

When a defendant moves for summary judgment based on qualified immunity, a plaintiff must show a violation of clearly established law because, “[u]nlike most affirmative defenses,” the plaintiff “bear[s] the ultimate burden of persuasion” to overcome qualified immunity. Estate of Booker , 745 F.3d at 411

; see

Roska ex rel. Roska v. Sneddon , 437 F.3d 964, 971 (10th Cir. 2006) (“When a defendant raises a claim of qualified immunity, the burden shifts to the plaintiff to show the defendant is not entitled to immunity.”).

“Thus, at summary judgment, we must grant qualified immunity unless the plaintiff can show (1) a reasonable jury could find facts supporting a violation of a constitutional right, which (2) was clearly established at the time of the...