Hernandez v. Parker, A-1-CA-38635

Docket NºA-1-CA-38635
Citation2022 NMCA 023
Case DateFebruary 01, 2022
CourtCourt of Appeals of New Mexico


ELSA HERNANDEZ, as Personal Representative of the Wrongful Death Claim of Irisema Hernandez, Deceased, Plaintiff-Appellant,


No. A-1-CA-38635

Court of Appeals of New Mexico

February 1, 2022

Released for Publication May 10, 2022


Eric D. Dixon Portales, NM for Appellant

Macke Law & Policy, LLC Daniel J. Macke Albuquerque, NM for Appellees



{¶1}In this appeal, we are asked to consider whether collateral estoppel precludes state court litigation arising under the New Mexico Tort Claims Act, NMSA 1978, §§ 41-4-1 to -27 (1976,


as amended through 2020) (TCA), when a federal district court has dismissed 42 U.S.C. § 1983 claims because the facts did not establish that a law enforcement officer used excessive force to effectuate an arrest in violation of the Fourth Amendment to the United States Constitution. Concluding it does not, we reverse.


{¶2} According to the complaint filed in the state district court, law enforcement officers observed Irisema Hernandez's car, a white Lincoln, in a motel parking lot. Incorrectly believing that Irisema was violating her conditions of release by staying at the motel, Defendant Sheriff Malin Parker used his unmarked vehicle to block the Lincoln and prevent it from leaving. Sheriff Parker, wearing a black hoodie, and another officer, who was in uniform, approached the Lincoln with guns drawn. With Irisema in the passenger seat, another individual (Driver) pulled the Lincoln out of the parking lot, striking Sheriff Parker in the process. Sheriff Parker returned to his unmarked vehicle and pursued for five minutes, at speeds between 80 and 90 miles per hour, in the rain, and on two-lane rural roads. Ultimately, Irisema's vehicle was forced off the road, possibly by contact from Sheriff Parker's vehicle, and hit a tree. Irisema died from injuries caused by the collision.

{¶3} Plaintiff, as the personal representative of Irisema's wrongful death Estate, brought an action in the United States District Court for the District of New Mexico (federal court) against Sheriff Parker, the Roosevelt County Board of County Commissioners, and the Roosevelt County Sheriff's Department (collectively, Defendants). Plaintiff alleged deprivations of Irisema's rights under the Fourth and Fourteenth Amendments through § 1983, as well as causes of action under the TCA. Sheriff Parker asserted qualified immunity as a defense to Plaintiff's § 1983 claims. The federal court granted Sheriff Parker's motion, dismissed Plaintiff's federal claims against all Defendants, and declined to exercise supplemental jurisdiction over Plaintiff's state law claims.

{¶4} Shortly thereafter, Plaintiff filed a complaint in the state district court against the same Defendants and alleged claims for negligence and aggravated assault and battery under the TCA. Defendants moved to dismiss the TCA claims and argued that because the federal court had already determined that Sheriff Parker acted reasonably, Plaintiff was precluded from litigating the TCA claims. The district court agreed, determined that the issues decided by the federal court and raised in state court were "identical," and applied collateral estoppel to grant Defendants' motion to dismiss. Plaintiff appeals.


{¶5} We generally review the application of collateral estoppel for abuse of discretion, unless the facts are not in dispute, in which case we review the issue de novo. Bank of N.Y. v. Romero, 2016-NMCA-091, ¶ 23, 382 P.3d 991. Both parties suggest we review this matter as a motion to dismiss-accepting all well-pleaded facts as true and deciding


questions of law de novo. The district court, however, considered facts outside the state pleadings to decide whether to apply collateral estoppel-specifically, the parties' federal court arguments, discovery, and the issues decided by the federal court. We therefore consider the district court's order as a grant of summary judgment and "construe all reasonable inferences in favor of the nonmoving party and will uphold a grant of summary judgment where there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law." See Tunis v. Country Club Estate Homeowners Ass'n, Inc., 2014-NMCA-025, ¶ 17, 318 P.3d 713 (internal quotation marks and citation omitted) (reviewing a claim preclusion issue raised in a motion to dismiss as a motion for summary judgment). "Whether the elements of claim preclusion are satisfied is a legal question, which we review de novo." Id. ¶ 20 (internal quotation marks and citation omitted).

{¶6} Thus, we review the district court's grant of summary judgment, which was based on the application of collateral estoppel, de novo.


{¶7} Defendants maintain that Plaintiff's TCA claims against Sheriff Parker are estopped by the federal court's determination that Sheriff Parker's actions were "objectively reasonable" in the context of a federal constitutional claim. Specifically, Defendant observes that the federal court decided the "issue of objective reasonableness" and argues that the TCA claims are barred by collateral estoppel because the same standard of "objective reasonableness" must apply to Plaintiff's TCA claims. We conclude that under these circumstances, collateral estoppel does not apply to preclude Plaintiff's TCA claims.

{¶8} Collateral estoppel, also called issue preclusion, "prevents a party from re-litigating ultimate facts or issues actually and necessarily decided in a prior suit." Romero, 2016-NMCA-091, ¶ 23 (internal quotation marks and citation omitted). The party "invoking collateral estoppel has the burden to introduce sufficient evidence for the court to [determine] whether the doctrine is applicable." Reeves v. Wimberly, 1988-NMCA-038, ¶ 15, 107 N.M. 231, 755 P.2d 75. In order for collateral estoppel to apply, four elements must be met:

(1) the party to be estopped was a party to the prior proceeding, (2) the cause of action in the case presently before the court is different from the cause of action in the prior adjudication, (3) the issue was actually litigated in the prior adjudication, and (4) the issue was necessarily determined in the prior litigation

Romero, 2016-NMCA-091, ¶ 23 (internal quotation marks and citation omitted). Once the movant "has produced sufficient evidence to meet all four elements, the district court must determine whether the party to be estopped had a full and fair opportunity to litigate the issue in the prior litigation." Tunis, 2014-NMCA-025, ¶ 24 (internal quotation marks and citation omitted).


{¶9} To review the district court's collateral estoppel determination, we must first examine the legal framework for Plaintiff's federal and TCA claims.

I. The Federal and TCA Claims

{¶10} In federal court, Plaintiff brought federal constitutional claims and state tort claims. Plaintiff's federal claims invoked § 1983, which provides a "federal remedy for damages arising out of a constitutional violation by a person acting under color of state law." Wells v. Cnty. of Valencia, 1982-NMSC-048, ¶ 6, 98 N.M. 3, 644 P.2d 517. Defendants' invocation of qualified immunity shifted the "heavy burden" to Plaintiff to establish that (1) the facts demonstrated a violation of a constitutional right, and (2) the right at issue was clearly established at the time of the violation. Carabajal v. City of Cheyenne, 847 F.3d 1203, 1208 (10th Cir. 2017). Only if a plaintiff meets this burden is the defendant required to establish the absence of disputed material facts. See Clark v. Edmunds, 513 F.3d 1219, 1222 (10th Cir. 2008).

{¶11} "Determining whether the force used to effect a particular seizure is reasonable under the Fourth Amendment requires a careful balancing of the nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing governmental interests at stake." Graham v. Connor, 490 U.S. 386, 396 (1989) (internal quotation marks and citation omitted). The court determines whether the officer's use of force was reasonable after assessing the "non-exclusive factors arising from the police-citizen encounter[,]" which are set forth in Graham. Cavanaugh v. Woods Cross City, 718 F.3d 1244, 1255 (10th Cir. 2013). Those factors, considered objectively from the officer's perspective, include the severity of the suspected crime, the threat the suspect poses to safety, and whether the suspect is actively resisting or fleeing. See Donahue v. Wihongi, 948 F.3d 1177, 1187, 1196 (10th Cir. 2020). Based on these principles, the federal court reviewed the evidence objectively, from Sheriff Parker's perspective: Driver had battered Sheriff Parker with the Lincoln, fled the scene, did not stop despite the danger, and put the public at risk. Based on this view of the evidence, the federal court concluded Sheriff Parker "was reasonable to end the pursuit and the danger it posed by bumping the back of the [Lincoln]" and that Irisema's "rights under the Fourth Amendment were not violated."

{¶12} In state court, Plaintiff brought claims arising under the TCA for negligence and assault and battery.[1] "Generally, the [TCA] provides governmental entities and public employees acting in their official capacities with immunity from tort suits unless the [TCA] sets out a specific waiver of that immunity." Weinstein v. City of Santa Fe ex rel. Santa Fe Police Dep't, 1996-NMSC-021, ¶ 6, 121 N.M. 646, 916 P.2d 1313. In the district court and on appeal, Plaintiff maintains that the TCA waives immunity for the


negligent operation of a motor vehicle, Section 41-4-5 and, in relevant part, for ...

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