Hernandez v. City of El Paso

• Decision Date: 09 July 2009
• Docket Number: No. EP-08-CV-222-PRM.,EP-08-CV-222-PRM.
• Citation: 662 F.Supp.2d 596
• Parties: Alejandro HERNANDEZ, Plaintiff/Counter-Defendant, v. The CITY OF EL PASO; Jesus Terrones, in his individual and official capacity; Guillermo Martinez, in his individual and official capacity; Arturo Ruiz, Jr., in his individual and official capacity; Sal Dominguez, in his individual and official capacity; Antonio Tabullo, in his individual and official capacity; Joe Zimmerly, in his individual and official capacity; and Pedro Ocegueda, in his individual and official capacity, Defendants/Counter-Plaintiffs.
• Court: U.S. District Court — Western District of Texas

662 F.Supp.2d 596

Alejandro HERNANDEZ, Plaintiff/Counter-Defendant, v. The CITY OF EL PASO; Jesus Terrones, in his individual and official capacity; Guillermo Martinez, in his individual and official capacity; Arturo Ruiz, Jr., in his individual and official capacity; Sal Dominguez, in his individual and official capacity; Antonio Tabullo, in his individual and official capacity; Joe Zimmerly, in his individual and official capacity; and Pedro Ocegueda, in his individual and official capacity, Defendants/Counter-Plaintiffs.

No. EP-08-CV-222-PRM.

United States District Court, W.D. Texas, El Paso Division.

July 9, 2009.

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Arthur Loevy, Jon Loevy, Loevy & Loevy, Chicago, IL, James Allen Martinez, Law Office of James Martinez, El Paso, TX, Kevin T. Glasheen, Kristopher Edwin Moore, Glasheen Valles & Dehoys, LLP Lubbock, TX, for Plaintiffs/Counter-Defendants.

Duane A. Baker, Attorney at Law, Jennifer F. Callan, El Paso City Attorney's Office, El Paso, TX, for Defendants/Counter-Plaintiffs.

MEMORANDUM OPINION GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT; DENYING AS MOOT PLAINTIFF'S MOTION TO STRIKE CERTAIN OPINIONS OF THE AFFIDAVIT OF DEFENDANTS' EXPERT WITNESS ROBERT TAYLOR; AND DENYING AS MOOT DEFENDANTS' MOTION TO STRIKE AFFIDAVIT AND TO EXCLUDE PLAINTIFF'S EXPERT WITNESS TROY WILKE

PHILIP R. MARTINEZ, District Judge.

On this day, the Court considered Defendants Jesus Terrones, Guillermo Martinez, Arturo Ruiz, Jr., Sal Dominguez, Antonio Tabullo, Joe Zimmerly, and Pedro Ocegueda's (collectively, "Defendants") "Motion for Summary Judgment," filed on September 4, 2008; Defendants' "Appendix of Material in Support of Defendants' Motion for Summary Judgment," filed on September 4, 2008; Plaintiff Alejandro Hernandez's ("Plaintiff) "Response in Opposition to Defendants' Motion for Summary Judgment," filed on November 25, 2008;¹ Plaintiff's "Brief in Support of Plaintiff's Response in Opposition to Defendants Jesus Terrones, Guillermo Martinez, Arturo Ruiz, Jr., Antonio Tabullo, Joe Zimmerly, and Pedro Ocegueda's Motion for Summary Judgment," filed on November 25, 2008; Plaintiffs "Appendix to Plaintiffs Response to Defendants' Motion for Summary Judgment," filed on November 25, 2008; Defendants' "Reply to Plaintiffs [sic] Response in Opposition to Defendants [sic] Motion for Summary Judgment," filed on December 8, 2008; Plaintiffs "Motion to Strike Certain Opinions of the Affidavit of Defendant's Expert Witness Robert Taylor," filed on December 19, 2008; Defendants' "Response to Plaintiffs [sic] Motion to Strike Certain Opinions of Defendants [sic] Expert Witness Robert Taylor," filed on December 29, 2008; Defendants' "Motion to Strike Affidavit and to Exclude Plaintiffs [sic] Expert Witness Troy Wilke," filed on December 5, 2008; Plaintiffs "Response in Opposition to Defendant Officers' Motion to Strike Affidavit and Exclude Plaintiffs Witness Troy Wilkie [sic]," filed on December 19, 2008; Defendants' "Reply to Plaintiffs [sic] Response in Opposition to Defendants [sic] Motion to Strike Affidavit and Exclude Plaintiffs [sic] Expert Witness Troy Wilke," filed on December 29, 2008, in the above-captioned cause. After due consideration, the Court is of the opinion that Defendants' motion for summary judgment should be granted in part and denied in part.

I. INTRODUCTION

On October 19, 1994, Alejandro Hernandez ("Plaintiff) was wrongfully convicted in the 168th District Court of El Paso, Texas for murdering Robert Cobb ("Cobb") and sentenced to ninety-nine years in prison.² PL's Second Am. Compl ¶¶ 17, 58-60; App. to Pl.'s Resp. to Defs.' Mot. for Summ. J. 47. On June 21, 2006, after serving nearly thirteen years in prison, Pl.'s Second Am. Compl. ¶¶ 2, 16, the Texas Court of Criminal Appeals overturned Plaintiffs conviction and remanded the cause to the 168th District Court, Ex Parte Hernandez, No. AP-75,445, 2006 WL 1687713 (Tex.Crim.App. June 21, 2006) (per curiam). On September 18, 2006, the 168th District Court, with the cooperation of the El Paso District Attorney's Office, dismissed the charges against Plaintiff. Pl.'s Second Am. Compl. ¶ 59; App. in Support of Defs.' Mot. for Summ. J. Q-S. Following the dismissal of his charges, on June 20, 2008, Plaintiff filed suit against the City of El Paso and several police officers under 42 U.S.C. §§ 1983 and 1985(3), as well as under the Fourteenth Amendment to the U.S. Constitution, for violations of his civil rights resulting from his wrongful arrest, prosecution,³ and conviction. Pl.'s Second Am. Compl. ¶¶ 63-78. Aside from these federal claims,⁴ Defs.' Mot. for Summ. J. ¶ 2, Plaintiff additionally brings state law claims for intentional infliction of emotional distress, malicious prosecution, and civil conspiracy.⁵ Pl.'s Second Am. Compl. ¶¶ 79-85.

II. FACTUAL AND PROCEDURAL BACKGROUND

On May 11, 1994, the El Paso Police Department discovered the lifeless body of Robert Cobb, a homeless Vietnam veteran, lying beside his broken-down car near the north desert area of El Paso, Texas. Pl.'s Second Am. Compl. ¶¶ 19-21. At approximately 2:30 a.m. on the night of Cobb's death, Dee "Baby" Stewart ("Stewart") was in his apartment—located near the scene of Cobb's murder—when he received an unexpected visit from his neighbor, Brandon Hamilton ("Hamilton"). Id. ¶ 24; App. to Pl.'s Resp. to Defs.' Mot. for Summ. J. 4, 14. During Hamilton's visit, Stewart noticed that "Hamilton was breathing hard, his shoes were covered in mud, and he carried a small pocket knife." Pl.'s Resp. to Defs.' Mot. for Summ. J. 1; accord Pl.'s Second Am. Comp. ¶ 24. Aside from these observations, Stewart additionally noticed that Hamilton's hands and pocket knife were covered in blood. Pl.'s Resp. to Defs.' Mot. for Summ. J. 1; App. to Pl.'s Resp. to Defs.' Mot. for Summ. J. 4, 14. Upon his arrival, Hamilton allegedly told Stewart that he "wasn't going to believe it, but [he] just killed somebody!" Pl.'s Second Am. Compl. ¶ 24; App. to Pl.'s Resp. to Defs.' Mot. for Summ. J. 4, 14. Hamilton then proceeded to narrate the intricate details of Cobb's murder as he washed the blood off his hands and knife in Stewart's kitchen sink. Pl.'s Second Am. Compl. ¶¶ 25, 27; Pl.'s Resp. to Defs.' Mot. for Summ. J. 2.

Allegedly, Hamilton told Stewart that, on the evening of May 10, 1994, he approached an old Pontiac Trans Am where Cobb was sleeping. Pl.'s Second Am. Compl. ¶ 25; App. to Pl.'s Resp. to Defs.' Mot. for Summ. J. 14. While Cobb slept inside the vehicle, Hamilton attempted to discretely enter the vehicle through the passenger's side, eventually awakening Cobb. App. to Pl.'s Resp. to Defs.' Mot. for Summ. J. 14. After Cobb awoke, both men spoke briefly, and Hamilton entered the vehicle through the passenger's side. Pl.'s Second Am. Compl. ¶¶ 25-26. Following a short conversation, Hamilton asked Cobb to step outside the vehicle so they could "look at the stars." App. to Pl.'s Resp. to Defs.' Mot. for Summ. J. 14. While they were standing next to the vehicle, Hamilton stabbed Cobb on the shoulder close to the neck with a two-inch pocket knife. Id. Despite Cobb's supplications, Hamilton stabbed him twenty-nine times in his upper chest, neck, and back. Id. at 30; Pl.'s Second Am. Compl. ¶ 21. Realizing that Cobb was still breathing, Hamilton obtained a steel anti-theft device from the trunk of Cobb's vehicle. App. to Pl.'s Resp. to Defs.' Mot. for Summ. J. 34. Thereafter, Hamilton rolled Cobb's body over and crushed his face with the steel device, bludgeoning him to death. Pl.'s Second Am. Compl. ¶¶ 25-26. After killing Cobb, Hamilton stole a few electronic items from Cobb's vehicle and eventually fled the scene. Id. ¶ 26. Uncertain that Hamilton was telling the truth, Stewart did not contact the police that night. App. to Pl.'s Resp. to Defs.' Mot. for Summ. J. 4, 14, 46.

The next morning, on May 11, the El Paso Police Department discovered Cobb's murdered body. Pl.'s Second Am. Compl. ¶¶ 19-21. Shortly after the police arrived at the crime scene, El Paso Police Sergeant Pedro Ocegueda ("Sergeant Ocegueda") named Detective Jesus Terrones ("Detective Terrones") as the case agent in Cobb's homicide.⁶ Terrones Dep. 131:9-15; Pl.'s Second Am. Compl. ¶ 28. Thereafter, in an attempt to gather evidence, Detective Terrones and Detective Sal Dominguez ("Detective Dominguez") visited Garcia's Automotive, a business located near the crime scene. Terrones Dep. 125:12-15. After briefly speaking to Garcia, the two detectives went to Ed's Classic Upholstery Shop located in the same shopping center. Pl.'s Second Am. Compl. ¶ 31. There, Detective Terrones interviewed Stacy Leon, the owner's wife. Terrones Dep. 126:9-15. During the interview, Leon mentioned that Augustin Fabio Carreon ("Carreon"), Garcia's stepson from the neighboring business, was involved in gangs and was responsible for the graffiti on the back walls of the shopping center. Terrones Dep. 125:12-20; App. to Pl.'s Resp. to Defs.' Mot. for Summ. J. 18. Based on this information, Detective Terrones examined the graffiti on the back walls. App. to Pl.'s Resp. to Defs.' Mot. for Summ. J. 18.

Following his inspection of the graffiti, Detective Terrones was able to discern the alias "Gopy," which he believed to be gang-related. Pl.'s Second Am. Compl. ¶¶ 30-32. Detective Terrones thereafter "contacted the El Paso gang unit to see if `Gopy' was a moniker for a known gang member." Id. ¶ 30. By the time Detective Terrones left the shopping center, he "received information that `Gory,' not `Gopy,' was an alias for Robert Reyes Hernandez" ("Hernandez"). Id. ¶ 32. After searching through the El Paso Police Department's records management system, Terrones Dep. 183:16-184:2, Detective Terrones realized that police had previously arrested Hernandez and Plaintiff "for [attempting to] shoplift[ ] a pair of jeans at a Mervyn's Department Store" some time before Cobb's...