Malone v. Bd. of Cnty. Comm'rs for the Cnty. of Dona Ana

• Decision Date: 27 August 2016
• Docket Number: No. CIV 15-0876 JB/GBW,CIV 15-0876 JB/GBW
• Parties: MATTHEW MALONE, individually, and as Personal Representative of Michael Malone, deceased, Plaintiff, v. BOARD OF COUNTY COMMISSIONERS FOR THE COUNTY OF DONA ANA, in their official capacities, CHASE THOUVENALL, in his official capacity; THE CITY OF LAS CRUCES; and JOHN DOE(S), unknown Las Cruces Police Department officers, in their individual and official capacities, Defendants.
• Court: U.S. District Court — District of New Mexico

MATTHEW MALONE, individually,
and as Personal Representative of Michael Malone, deceased, Plaintiff,
v.
BOARD OF COUNTY COMMISSIONERS FOR
THE COUNTY OF DONA ANA, in their official
capacities, CHASE THOUVENALL, in his official
capacity; THE CITY OF LAS CRUCES; and JOHN
DOE(S), unknown Las Cruces Police Department
officers, in their individual and official capacities, Defendants.

No. CIV 15-0876 JB/GBW

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

August 27, 2016

MEMORANDUM OPINION AND ORDER

THIS MATTER comes before the Court on: (i) Defendants' Motion and Supporting Memorandum for Qualified Immunity and Summary Judgment, filed January 5, 2016 (Doc. 25)("MSJ"); (ii) the Motion and Memorandum for Summary Judgment Based on Qualified Immunity, filed February 16, 2016 (Doc. 34)("Original City Motion"); and (iii) the Amended Motion and Memorandum for Summary Judgment Based on Qualified Immunity, filed February 18, 2016 (Doc. 37)("City's Motion").¹ Defendant Board of County Commissioners for the County of Dona Ana County, and Defendant Chase Thouvenall (collectively, "the County

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Defendants"), submit the MSJ, and request that the Court grant qualified immunity and summary judgment under rule 56 of the Federal Rules of Civil Procedure on their behalf. The Court held a hearing on the MSJ and the City's Motion on May 9, 2016. The primary issues are: (i) whether Thouvenall is entitled to qualified immunity on Count II to the extent that it asserts an excessive claim under the Fourth Amendment to the Constitution of the United States of America pursuant to 42 U.S.C. § 1983; (ii) whether Plaintiff Matthew Malone's municipal liability claims under Count IV of the Complaint for Wrongful Death, filed September 30, 2015 (Doc. 1-2)("Complaint") fail, because it is undisputed that Thouvenell's actions were reasonable, and no policy or practice exists that would cause Dona Ana County to be liable under a municipal liability claim; (iii) whether the County Defendants are entitled to summary judgment on Count I to the extent that it asserts claims under the New Mexico Wrongful Death Act, N.M. Stat. Ann. §§ 41-2-1 to -4; (iv) whether Thouvenall is entitled to summary judgment on Counts I and II -- which assert claims under the New Mexico Wrongful Death Act and/or state common law, and under Article II, § 10 of the New Mexico Constitution -- because his use of force was privileged; (v) whether Dona Ana County is entitled to summary judgment to the extent that M. Malone asserts a claim for vicarious liability or respondeat superior against it in Counts I and II; and (vi) whether the Court should dismiss the City of Las Cruces and the John Doe(s), unknown Las Cruces Police Department ("LCPD") officers, in their individual and official capacities, as parties to this lawsuit. The Court will grant in part and deny in part the MSJ. First, the Court will deny the request that the Court grant summary judgment in Thouvenell's favor on M. Malone's excessive force claim brought under the Fourth Amendment in Count II. While the Court concludes that there are not genuine issues of material fact, it cannot conclude that, on the

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undisputed facts and drawing all inferences in M. Malone's favor, Thouvenell was justified in using deadly force. Second, the Court will grant the MSJ in Dona Ana County's favor on Count IV, and dismiss Count IV with respect to Dona Ana County. Third, the Court will deny the County Defendants' request that the Court dismiss Count I to the extent that it asserts claims under the New Mexico Wrongful Death Act. Fourth, the Court will deny the MSJ on Count I and II to the extent that they are asserted against Thouvenell, because the New Mexico Legislature in the NMTCA has waived Thouvenell's immunity for M. Malone's state law claims brought under the New Mexico Wrongful Death Act and/or state common law, and under Article II, § 10 of the New Mexico Constitution, and the Court cannot conclude on the undisputed facts that, as a matter of law, Thouvenell did not use excessive force. Fifth, the Court will deny the MSJ to the extent that M. Malone asserts a claim for vicarious liability or respondeat superior against Dona Ana County under state law in Counts I and II. Finally, the Court will dismiss the City of Las Cruces and the John Doe(s) as parties to this lawsuit without prejudice.

FACTUAL BACKGROUND

"On July 28, 2015, Dona Ana County[, New Mexico] Sheriff's Office ('DASO') Detective Pierce Wilber[²] was assigned a case alleging that on July 24, 2015, Michael Malone ('Malone') assaulted his spouse Crystal Malone ('Crystal')." MSJ ¶ 1, at 4 (setting forth this fact)(bracketed material added). See Response in Opposition to Motion for Qualified Immunity and Summary Judgment ¶ 1, at 3-4, filed January 29, 2016 (Doc. 31)("Response")(not disputing

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this fact).³ "Subsequent to receiving the assignment, Wilber met with Crystal the morning of July 29, 2015." MSJ ¶ 2, at 4 (setting forth this fact). See Response ¶ 1, at 3-4 (not disputing this fact). "During Crystal's interview, she informed Wilber that on July 24, 2015, she returned home and her husband Malone -- a convicted felon -- began physically assaulting her by choking and punching her in the face."⁴ MSJ ¶ 3, at 4 (setting forth this fact). See Response ¶ 1, at 3-4 (not disputing this fact).

Crystal also stated that shortly after the assault, she went to the bathroom and was followed by Malone. He then placed the barrel of a black revolver to the back of the head[⁵] while pulling the trigger. Fortunately, the weapon did not fire and

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Crystal, fearing that Malone was going to kill her, grabbed a knife to protect herself and walked out of the home.[⁶]

MSJ ¶ 4, at 4 (setting forth this fact). See Response ¶ 1, at 3-4 (not disputing this fact). "Malone gave chase, following her and continuing to point the revolver at her and pull the trigger. Crystal was eventually able to go to a neighbor's house where she made an initial call to report the incident."⁷ MSJ ¶ 5, at 4 (setting forth this fact). See Response ¶ 1, at 3-4 (not disputing this fact).

"During the interview with Crystal, Wilber was also informed that after the initial incident, Malone later called Crystal threatening suicide. His threat included the sound of Malone rotating the cylinder on the revolver and then pulling the trigger resulting in a gun shot."⁸ MSJ ¶ 6, at 4 (setting forth this fact). See Response ¶ 1, at 3-4 (not disputing this fact). "After this interview Wilber conducted a background check of Malone and determined he was a felon." MSJ ¶ 7, at 5 (setting forth this fact). See Response ¶ 1, at 3-4 (not disputing this fact). "Based on this information provided to Wilber by Crystal, Wilber filed a criminal complaint against Malone for aggravated assault with a deadly weapon on a household member, possession

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of a firearm by a felon, and battery against a household member." MSJ ¶ 8, at 5 (setting forth this fact). See Response ¶ 1, at 3-4 (not disputing this fact). "Additionally, Wilber obtained an arrest warrant for Malone." MSJ ¶ 9, at 5 (setting forth this fact). See Response ¶ 1, at 3-4 (not disputing this fact).

"Because Malone was a convicted felon and used a firearm to assault his spouse, Wilber approached Sergeant Joshua Bryant ('Bryant') of DASO's Special Response Team ('SRT') to determine if the SRT could assist in executing the arrest warrant." MSJ ¶ 10, at 5 (setting forth this fact). See Response ¶ 2, at 4 (not disputing this fact). The DASO's SRT Operations Manual ("SRT Operations Manual") defines SRT members as only those with expert training in tactical operations. See Response ¶ 17, at 7-8 (setting forth this fact).⁹

Based on the Dona Ana County Sherriff's Office Standard Operating Procedures, the SRT can be used to assist in the service and execution of arrest or search

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warrants under hazardous circumstances. Such circumstances include where there is reason to believe that a suspect is armed and may use weapons against law enforcement officers or where the suspect's background reveals a propensity toward violence.

MSJ ¶ 11, at 5 (setting forth this fact). See Response ¶ 2, at 4 (not disputing this fact). "The SRT must have authorization from the Sheriff or his designee before deployment." Response ¶ 18, at 8 (setting forth this fact).¹⁰ During tactical situations, "[t]he SRT or assisting patrol units must establish inner and outer perimeters." Response ¶ 19, at 8 (setting forth this fact).¹¹ "The goal of the SRT in assisting with high risk warrants is to use the least amount of force necessary under the circumstances." Response ¶ 20, at 8 (setting forth this fact).¹² Pursuant to the SRT Operations Manual, "[p]rior to any surveillance operations, 'the proposed tactical operation shall be described in an Operational Order submitted to the SRT Commander for approval and recommendation to the Sheriff or designee.[']" Response ¶ 21, at 8 (setting forth this fact).¹³ "During surveillance, deputies are required to report in on a routine basis to be certain their location is known by other officers." Response ¶ 22, at 8 (setting forth this fact).¹⁴ "Prior to any

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stakeout, a tactical briefing should be held to discuss fields of fire and contingency plans for apprehension. An events Log reflecting all information pertinent to the surveillance should be kept." Response ¶ 23, at 8 (setting forth this fact).¹⁵

In this case, "[a] warrant service risk assessment was conducted by Bryant and it was determined that a small SRT unit would be used to serve the warrant on Malone." MSJ ¶ 12, at 5 (setting forth this fact). See Response ¶ 2, at 4 (not disputing this fact).

Bryant then began to [put together] an operational plan to execute the warrant while simultaneously assembling an SRT group made up of Bryant and DASO Deputies Chase Thouvenell ("Thouvenell"), Alfred Sanchez ("Sanchez"), Eric Avilucea ("Avilucea"), Mark Rodriguez ("Rodriguez"), Adrian Gonzales

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