McGarry v. Bd. of Cnty. Commissioners for the Cnty. of Lincoln, No. CIV 16–0483 JB/GJF

CourtUnited States District Courts. 10th Circuit. District of New Mexico
Writing for the CourtJames O. Browning, United District Court Judge
Citation294 F.Supp.3d 1170
Parties Sean MCGARRY, Plaintiff, v. BOARD OF COUNTY COMMISSIONERS FOR the COUNTY OF LINCOLN, a political sub-division existing under the law of the State of New Mexico; Lincoln County Sheriff's Department; Mike Wood, individually and as an employee of Lincoln County Sheriff's Department; Jason Green, individually and as an employee of Lincoln County Sheriff's Department and David Hightower, individually and as an employee of Lincoln County Sheriff's Department, Defendants.
Docket NumberNo. CIV 16–0483 JB/GJF
Decision Date28 February 2018

294 F.Supp.3d 1170

Sean MCGARRY, Plaintiff,
v.
BOARD OF COUNTY COMMISSIONERS FOR the COUNTY OF LINCOLN, a political sub-division existing under the law of the State of New Mexico; Lincoln County Sheriff's Department; Mike Wood, individually and as an employee of Lincoln County Sheriff's Department; Jason Green, individually and as an employee of Lincoln County Sheriff's Department and David Hightower, individually and as an employee of Lincoln County Sheriff's Department, Defendants.

No. CIV 16–0483 JB/GJF

United States District Court, D. New Mexico.

Filed February 28, 2018


S. Doug Jones Witt, The Jones Witt Law Firm, Roswell, New Mexico, Attorney for the Plaintiff

Damian L. Martinez, Holt Mynatt Martinez P.C., Las Cruces, New Mexico, Attorneys for the Defendants

MEMORANDUM OPINION AND ORDER

James O. Browning, United District Court Judge

THIS MATTER comes before the Court on the Defendants' Motion and Supporting Memorandum for Qualified Immunity and Summary Judgment, filed March 15, 2017 (Doc. 45)("Motion"). The Court held a hearing on November 6, 2017. The primary issues are (i) whether Defendants Mike Wood, Jason Green, and David Hightower (collectively "Officers") are entitled to qualified immunity on Plaintiff Sean McGarry's claim that Wood used excessive force when he shoved McGarry against his kitchen counter to arrest him; (ii) whether the Officers maliciously prosecuted McGarry for resisting, evading, or obstructing a peace officer and for assaulting a peace officer; (iii) whether the Court should dismiss the respondeat superior count against Defendants Board of County Commissioners for the County of Lincoln and the Lincoln County Sheriff's Department; and (iv) whether the Court should dismiss the remaining state law claims. The Court concludes that: (i) Wood used excessive force, but he is entitled to qualified immunity, because the right was not clearly established; (ii) the Officers are entitled to qualified immunity on the malicious prosecution count, because the right was not clearly established; (iii) Lincoln County and Lincoln County's Sheriff's Department cannot be liable under respondeat superior for 42 U.S.C. § 1983 claims; and (iv) the Court declines to exercise supplemental jurisdiction over McGarry's remaining state law claim, so dismisses it. Accordingly, the Court grants the Motion for all federal claims and dismisses the state law claim without prejudice.

294 F.Supp.3d 1173

FACTUAL BACKGROUND

The Court draws its facts from the Defendants' statement of undisputed material facts. See Motion at 3–5. See also Plaintiff's Response and Supporting Memorandum to Defendant's Motion for Qualified Immunity and Summary Judgment at 1–3, filed April 24, 2017 (Doc. 52)("Response").1

On May 26, 2014, Officers Wood, Green, and Hightower responded to a report that McGarry and his girlfriend—Theresa Traci—got into a fight at McGarry's rural New Mexico home. See Motion ¶ 1, at 3 (asserting this fact)(citing Affidavit of Deputy Mike Wood ¶ 3, at 1 (executed March 14, 2017), filed March 15, 2017, (Doc. 45–1)("Wood Aff."); Lapel Video of Deputy Mike Wood at 0:00:00–0:20:47, (dated May 26, 2014), filed March 15, 2017 (Doc. 45–1)(Attachment 1)("Wood Video 1"). McGarry is a suspended police officer whom the Capitan New Mexico Police Department employed. See Motion ¶ 5, at 3 (asserting this fact)(citing Wood Aff. ¶ 7, at 1; Wood Video 1 at 0:05:03–11, 0:13:12–0:14:42).

When the Officers arrived at McGarry's home, Wood approached Traci, who was outside of the residence, while Green and Hightower ventured into the home to speak with McGarry. See Motion ¶¶ 2–3, at 3 (asserting this fact)(citing Wood Aff. ¶¶ 3–5, at 1; Wood Video 1 at 0:00:00–0:20:47). Traci told Wood that McGarry had choked her the previous night and that she had returned to McGarry's home to retrieve her belongings and her pet lizard. See Motion ¶¶ 4, 6, at 3 (asserting this fact)(citing Wood Aff. ¶¶ 6, 8, at 1–2; Wood Video 1 at 0:00:25–0:02:18, 0:03:20–45; Lapel Video of Deputy Mike Wood at 0:01:40–0:10:40, (dated May 26, 2014), filed March 15, 2017 (Doc. 45–1)(Attachment 2)("Wood Video 2") ). Traci also told Wood that she was afraid of McGarry. See Motion ¶ 6, at 3 (citing Wood Aff. ¶ 8, at 2; Wood Video 1 at 0:00:25–0:02:18, 0:03:20–45; Wood Video 2 at 0:01:40–0:10:40) ).

Approximately thirty minutes after the Officers arrived at the home, and while Wood was helping Traci work through some paperwork, McGarry exited his house while talking on the phone and told the person with whom he was speaking that Traci was lying and "playing the female card." Motion ¶ 8, at 4 (asserting this fact)(citing Wood Aff. ¶ 9, at 2; Wood Video 2 at 0:10:37–43). Wood, seeing that McGarry's conversation upset Traci, ordered McGarry to go back inside or face arrest. See Motion ¶ 9, at 4 (asserting this fact)(citing Wood Aff. ¶ 10, at 2; Wood Video 2 at 0:10:44–0:11:15). McGarry became agitated, but retreated into his home. See Motion ¶ 10, at 4 (asserting this fact)(citing Wood Aff. ¶ 11, at 2; Wood Video 2 at 0:10:44–0:11:15).

Green followed McGarry into the house and pleaded with McGarry, who was yelling,2 to be calm. See Lapel Video of Deputy

294 F.Supp.3d 1174

Jason Green at 35:20–43, (dated May 26, 2014), filed March 15, 2017 (Doc. 45–1)(Attachment 3)("Green Video"); Response at 1–3 (not disputing this fact).3 McGarry continued to yell and moved to enter another room, upon which Green said to him, "I can't have you walk in there. You've already advised me you have a gun in the house."4 Green Video at 35:44–47 (Green). See Motion at 3–5 (not disputing this fact). In response, McGarry yelled at Green: "You want the fucking gun?" Green Video at 35:47–48 (McGarry). See Motion at 3–5 (not disputing this fact); Response at 1–3 (not disputing this fact). McGarry moved to the kitchen, picked up a box underneath the kitchen counter and shouted: "It's right here.... It's in the fucking box, and you're pointing a gun at me.... Get the fuck out of my house!" Green Video at 35:49–36:04 (McGarry). See Motion at 3–5 (not disputing this fact); Response at 1–3 (not disputing this fact).5 During this exchange, Green had drawn his duty firearm, but holstered it seconds after seeing the box. See Green Video at 35:49–36:04; Lapel Video of Deputy David Hightower at 0:048:08–15, (dated May 26, 2014), filed March 15, 2017 (Doc. 45–1)(Attachment 4)("Hightower Video") ). See Motion at 3–5 (not disputing this fact); Response 1–3 (not disputing this fact). As McGarry yelled at Green to leave his house, McGarry alternated between pointing his finger at Green and at the door. See Green Video at 35:54–36:15.

Wood, who was still outside the home, heard screaming, so he ran inside See Motion ¶ 12, at 4 (asserting this fact)(citing Wood Aff. ¶ 13, at 2; Wood Video 2 at 0:11:40–53). Wood was afraid that Green and Hightower were in danger, because he knew McGarry had a gun. See Motion ¶ 12, at 4 (asserting this fact)(citing Wood Aff. ¶ 13, at 2; Wood Video 2 at 0:11:40–53). Wood had been told, however, that the gun was old and that there was no ammunition for it. See Wood Video at 13:10–21 (Traci). As Wood entered the kitchen, he saw McGarry standing a few feet from Green yelling and shaking his finger. See Motion ¶ 13, at 4 (citing Wood Aff. ¶ 14, at 2; Wood Video 2 at 0:11:53–0:13:19; Green Video at 0:35:57–0:37:25; Hightower Video at 0:048:20–0:50:00). Believing that McGarry was about to hit Green, Wood grabbed McGarry from behind in a bear hug, pushed McGarry against the kitchen counter, and, later, forced him to the ground. See Motion ¶ 15, at 4–5 (asserting this fact)(citing Wood Aff. ¶ 16, at 2; Wood Video 2 at 0:11:53–0:13:19; Green Video at 0:35:57–0:37:25; Hightower Video at

294 F.Supp.3d 1175

0:48:20–0:50:00); Response at 3 (not disputing this fact). When McGarry stopped struggling, Wood then handcuffed him. See Motion ¶ 15, at 4–5 (asserting this fact)(citing Wood Aff. ¶ 16, at 2; Wood Video 2 at 0:11:53–0:13:19; Green Video at 0:35:57–0:37:25; Hightower Video at 0:48:20–0:50:00); Response at 3 (not disputing this fact).

After arresting McGarry, Wood filed a Criminal Complaint against McGarry for assaulting a peace officer and resisting, evading, or obstructing an officer. See Criminal Complaint at 1, filed March 15, 2017 (Doc. 45–1)("Criminal Complaint"). On November 16, 2015, a jury acquitted McGarry on both counts. See Response at 3.

PROCEDURAL BACKGROUND

McGarry subsequently filed a Complaint for Civil Rights Violations, filed May 26, 2016, (Doc. 1)("Complaint"), which alleges an excessive force claim against Wood, a malicious prosecution claim against the Officers, a respondeat superior claim against Lincoln County and the Lincoln County Sheriff's Department for the Officers' acts, and a New Mexico Tort Claims Act ("NMTCA"), N.M. Stat. Ann. § 41–4–1 to 30, claim against the Officers. See Complaint ¶¶ 43–72, at 5–8.

1. The Motion.

On March 15, 2017, the Defendants filed the Motion. See Motion at 1. The Defendants argue, as an initial matter, that Green and Hightower are not liable under the NMTCA and for malicious prosecution, because there is no evidence that those officers caused the purported harm. Se...

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  • Sinfuego v. Curry Cnty. Bd. of Cnty. Commissioners, No. CR 15-0563 JB\GJF
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • December 27, 2018
    ...when it dismisses all of a case's federal claims with prejudice. See, e.g., McGarry v. Bd. of Cty. Comm'rs for Cty. of Lincoln, 294 F.Supp.3d 1170, 1206 (D.N.M. 2018) (Browning, J.)("The only remaining claim before the Court is McGarry's NMTCA claim....118 The Court declines to exercise sup......
  • Shook v. United States, MC 17-0024 JB
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • October 18, 2021
    ...“has dismissed the federal claims here at the motion to dismiss stage”); McGarry v. Bd. of Cty. Commissioners for Cty. of Lincoln, 294 F.Supp.3d 1170, 1206 (D.N.M. 2018)(Browning, J.)(“The only remaining claim before the Court is McGarry's NMTCA claim. . . . The Court declines to exercise s......
  • Manzanares v. Roosevelt Cnty. Adult Det. Ctr., No. CIV 16-0765 JB/KRS
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • August 30, 2018
    ...where ‘a distinction might make a constitutional difference.’ " McGarry v. Board of County Commissioners for County of Lincoln, 294 F.Supp.3d 1170, 1187 (D.N.M. 2018) (Browning, J.)(quoting Kerns v. Bader, 663 F.3d at 1188 ). As explained above, 331 F.Supp.3d 1306and in prior cases, the Cou......
  • Ganley v. Jojola, No. CIV 17-0432 JB\SMV
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • August 30, 2019
    ...all of a case's federal claims with prejudice. See, e.g., 402 F.Supp.3d 1079 McGarry v. Bd. of Cty. Commissioners for Cty. of Lincoln, 294 F. Supp. 3d 1170, 1206 (D.N.M. 2018) (Browning, J.)("The only remaining claim before the Court is McGarry's NMTCA claim.... The Court declines to exerci......
  • Request a trial to view additional results
18 cases
  • Sinfuego v. Curry Cnty. Bd. of Cnty. Commissioners, No. CR 15-0563 JB\GJF
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • December 27, 2018
    ...when it dismisses all of a case's federal claims with prejudice. See, e.g., McGarry v. Bd. of Cty. Comm'rs for Cty. of Lincoln, 294 F.Supp.3d 1170, 1206 (D.N.M. 2018) (Browning, J.)("The only remaining claim before the Court is McGarry's NMTCA claim....118 The Court declines to exercise sup......
  • Shook v. United States, MC 17-0024 JB
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • October 18, 2021
    ...“has dismissed the federal claims here at the motion to dismiss stage”); McGarry v. Bd. of Cty. Commissioners for Cty. of Lincoln, 294 F.Supp.3d 1170, 1206 (D.N.M. 2018)(Browning, J.)(“The only remaining claim before the Court is McGarry's NMTCA claim. . . . The Court declines to exercise s......
  • Manzanares v. Roosevelt Cnty. Adult Det. Ctr., No. CIV 16-0765 JB/KRS
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • August 30, 2018
    ...where ‘a distinction might make a constitutional difference.’ " McGarry v. Board of County Commissioners for County of Lincoln, 294 F.Supp.3d 1170, 1187 (D.N.M. 2018) (Browning, J.)(quoting Kerns v. Bader, 663 F.3d at 1188 ). As explained above, 331 F.Supp.3d 1306and in prior cases, the Cou......
  • Ganley v. Jojola, No. CIV 17-0432 JB\SMV
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • August 30, 2019
    ...all of a case's federal claims with prejudice. See, e.g., 402 F.Supp.3d 1079 McGarry v. Bd. of Cty. Commissioners for Cty. of Lincoln, 294 F. Supp. 3d 1170, 1206 (D.N.M. 2018) (Browning, J.)("The only remaining claim before the Court is McGarry's NMTCA claim.... The Court declines to exerci......
  • Request a trial to view additional results

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