Sisneros v. Fisher

• Decision Date: 13 January 2010
• Docket Number: No. CIV 09-0213 JB/ACT.,CIV 09-0213 JB/ACT.
• Parties: Dennis SISNEROS, Plaintiff, v. Michael FISHER, in his individual capacity, and the County of Bernalillo, Defendants.
• Court: U.S. District Court — District of New Mexico

685 F.Supp.2d 1188

Dennis SISNEROS, Plaintiff,

v.Michael FISHER, in his individual capacity, and the County of Bernalillo, Defendants.

No. CIV 09-0213 JB/ACT.

United States District Court, D. New Mexico.

Decided: Jan. 13, 2010.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Robert R. Cooper, Ryan J. Villa, The Law Offices of Robert R. Cooper, Albuquerque, NM, for Plaintiff.

Deborah D. Wells, Kennedy, Moulton &amp Wells, P.C., Albuquerque, NM, for Defendants.

MEMORANDUM OPINION AND ORDER

JAMES 0. BROWNING, District

Judge.

THIS MATTER comes before the Court on the Defendants' Motion for Summary Judgment, filed November 12, 2009 (Doc 35). The Court held a hearing on December 31, 2009. The primary issues are: (i) whether Plaintiff Dennis Sisneros has shown that Defendant Michael Fisher violated his Fourth and Fourteenth Amendment rights by unlawfully seizing Sisneros and using excessive force; (ii) whether the rights that Sisneros accuses Mr. Fisher of violating were clearly established at the time of the alleged violation; and (iii) whether Sisneros has shown a genuine issue of fact to support his state-law claims. Because the Court determines that disputed facts make the difference between reasonable suspicion and a lack of reasonable suspicion, and that the facts for which Sisneros provides evidence support most of his causes of action, the Court denies Mr Fisher's and Defendant County of Bernalillo's motion for summary judgment in part. The Court grants the motion as to Sisneros's excessive-use-of-force claim under the United States Constitution because he has failed to provide evidence of an actual injury that is not de minimis.

FACTUAL BACKGROUND

The parties concede that there are undisputed material facts and that there are disputed facts. The issue is whether the disputed facts are material. The Court will, as it must, view the evidence in the light most favorable to the non-moving party. See Harman v. Pollock, 586 F.3d 1254, 1268 (10th Cir.2009) ("When applying a summary judgment standard, we view the evidence and draw reasonable inferences therefrom in the light most favorable to the nonmoving party.")(quoting Simms v. Okla. ex tel. Dep't of Mental Health & Substance Abuse Servs., 165 F.3d 1321, 1326 (10th Cir.l999))(alterations omitted).

1. Sisneros's Story.

According to his Complaint, Plaintiff Dennis Sisneros was visiting a friend in the Southeast Heights of Albuquerque New Mexico on June 17, 2007. See Complaint for Civil Rights Violations, Tort Claims and Damages ¶ 9, at 2, filed March 5, 2009 (Doc. l-2)("Complaint"). Sisneros was accompanied by his two young daughters and a friend, David Trujillo. See Complaint ¶ 10, at 2. At some point, Trujillo left the other three and proceeded to walk south on the west side of Juan Tabo Boulevard, toward Central Avenue. See id. ¶ 11, at 2. Sisneros, still on the east side of the street, thought Trujillo had walked off with his keys, so Sisneros began to jog to catch up to Trujillo, calling out to Trujillo as he crossed Juan Tabo. See id. ¶¶ 1214, at 2. When Sisneros reached the west side of Juan Tabo, where Trujillo was, he continued jogging to catch up. See id. ¶ 15, at 3. Before Sisneros reached Trujillo, however, he was approached by a man holding a gun, ordering him to get on the ground. See id. ¶ 16, at 3. Being unarmed and thinking that the armed man was robbing him, Sisneros complied and got on the ground. See id. ¶ 17, at 3. After identifying himself as a Bernalillo County Sheriff's Officer, Mr. Fisher allegedly pointed his gun at Sisneros's head, got on top of Sisneros, pinned his arms, and eventually handcuffed him. See id. ¶ 19-20, at 3.¹

2. Potential Witnesses.

On the evening of June 17, 2007, before 8:15 p.m., John Sanchez was traveling in his convertible automobile with the top down to the convenience store near his home to purchase soft drinks. See Deposition of John Sanchez at 6:13-9:15 (taken October 26, 2009), filed November 12, 2009 (Doc. 36-5)("Sanchez Depo."). As he pulled up to the store, he observed two males near the pay telephone at the store. See Sanchez Depo. at 6:13-9:15 (Doc. 365).² One male appeared to be trying to use the telephone. See id. (Doc. 36-5). The second male, who was shirtless and had tattoos, was yelling at the first individual and "yelling, screaming, going crazy." Id. (Doc. 36-5). Sanchez felt uncomfortable with the situation and left the parking lot of the convenience store without going into the store. See id. (Doc. 36-5).

Sanchez later identified the tattooed man who had been screaming at the other man in the convenience store parking lot as Sisneros. See Sanchez Depo. at 12:1521 (Doc. 36-5). Sisneros does not dispute that Sanchez testified that he believed Sisneros to be the same man whom he saw in the convenience store's parking lot screaming at another man on the pay telephone, but disputes that Sanchez correctly identified Sisneros as that same man. Sanchez testified that, when he pulled up to the store, a large Anglo man with his shirt off was yelling at a smaller Anglo man who was on the telephone. See Sanchez Depo. at 7:9-8:11 (Doc. 36-5); id. at 14:22-25 (Doc. 40-3); id. at 15:9-17 (Doc 40-3); id. at 16:6-11 (Doc. 40-3). Sanchez testified that the large Anglo man had tattoos on his chest. See id. at 15:18-16:9 (Doc. 40-3).

Also before the arrest of Sisneros, Tena Bloom had seen the two men and went to look over the wall of her property to see if they were going to have a fight. See Deposition of Tena Bloom at 33:8-21 (taken October 26, 2009), filed November 21 2009 (Doc. 36-6)("Bloom Depo."). Sisneros contests the implication that the people that Bloom saw were the same people that Sanchez saw. See Plaintiff's Response to Defendants' Motion for Summary Judgment ¶5, at 3, filed November 30, 2009 (Doc. 40). Sisneros points to numerous pieces of Bloom's testimony where it is clear that, although Bloom looked toward Sisneros and Trujillo to see if there was going to be a fight, what she saw and heard made it clear that there would not be a fight. See Bloom Depo. at 42:2^6:10 (Doc. 40-4)(testifying that, inter alia, the yelling was "like friend yelling," that she had not "seen them in a heated argument that would lead [her] to believe they were going to fight," and that "at no point... did [she] think they were going to be in a fight."). On the other hand, Ali Suleiman, an employee at the convenience store, testified by affidavit that Bloom told him that she had seen Sisneros arguing and fighting with another man before his arrest. See Affidavit of Suleiman ¶ 6, at 1 (dated October 26, 2009), filed November 12, 2009 (Doc. 36-7); Defendants' Brief ¶ 6, at 2.

3. Disputed Facts: Sisneros's Encounter With Mr. Fisher.

On June 17, 2007, at approximately 8:15 a.m., Mr. Fisher was off duty and returning home in his privately owned vehicle from celebrating Father's Day with his parents. See Supplemental Report of Deputy M. Fisher at 1 (dated June 17 2007), filed November 12, 2009 (Doc. 362)("Report"); Deposition of Michael Fisher at 10:10-11:13 (taken August 12, 2009), filed November 12, 2009 (Doc. 36-3)("Fisher Depo."); Deposition of Mia Fisher at 4:2-18 (taken August 21, 2009), filed November 12, 2009(Doc. 36^)("Mia Fisher Depo."). Mr. Fisher contends that he was riding in the passenger seat of his vehicle with his wife, Mia, driving. See Fisher Depo. at 10:14-11:13 (Doc. 36-3). Sisneros disputes that Mr. Fisher was riding in the passenger seat. See Deposition of Emily Espinosa at 25:1-6 (taken August 13, 2009), filed November 30, 2009 (Doc. 402)(testifying that she saw Fisher get out of the driver's side of his vehicle)("Espinosa Depo."); Sanchez Depo. at 10:23-11:1 (Doc. 36-5)(testifying that Fisher was on the driver's side). In any case, the Fishers' two young children were riding in the back seat. See Fisher Depo. at 10:1411:13.

As the Fishers' vehicle approached the intersection of Juan Tabo and Horseshoe Trail, Mr. Fisher saw a man in jeans and a black shirt—later identified as Trujillo— walking northbound on the west side of Juan Tabo. See Report at 1. At that time, another man—later identified as Sisneros—ran from the east side of Juan Tabo at Horseshoe Trail to the west side of the street, yelling to the man in the black shirt. See id. at 1; Fisher Depo. at 12:513:20 (Doc. 36-3); Mia Fisher Depo. at 4:19-5:15 (Doc. 3 6-4); id. at 26:4-27:9; Deposition of Dennis Sisneros at 41:1843:2 (taken August 14, 2009), filed November 12, 2009 (Doc. 36-10)("Sisneros Depo."). Sisneros had a pair of shoes or sandals in one hand, and a pair of sunglasses in the other. See Sisneros Depo. at 43:6-20 (Doc. 36-10). See also Bloom Depo. at 47:19-49:14 (Doc. 40-4) and Espinosa Depo. at 74:12-75:7 (Doc. 40-2)(testifying that they did not see anything in Sisneros's hands). The Fishers testified, however, that all Mr. Fisher could tell was that Sisneros held a "shiny metal object." See Fisher Depo. at 14:23-15:19 (Doc. 363); Mia Fisher Depo. at 9:16-10:1 (Doc. 36-4).

At that point, Mr. Fisher exited his vehicle and asked his wife to call 911. Mia Fisher drove the car to the conveniencestore parking lot and called 911 from her cellular telephone. See Fisher Depo. at 12:7-12 (Doc. 36-3); id. at 17:19-18:19 (Doc. 36-3); Mia Fisher Depo. at 4:19-5:19 (Doc. 36-4); Sanchez Depo. at 10:23-11:11 (Doc. 36-5); Espinosa Depo. at 34:6-7 (Doc. 36-8); id. at 62:13-63:15 (Doc. 36-8). Sanchez was sitting beside the Fishers' vehicle as it pulled up and Mr. Fisher exited. Mia Fisher told Sanchez that she was on her cellular telephone and had called the police. See Sanchez Depo. at 10:8-11:11 (Doc. 36-5). Later, Sanchez told Mr. Fisher that he had seen Sisneros and Trujillo arguing at the convenience store pay telephone, and that he had left because he did not feel comfortable going inside the store. See Mia Fisher Depo. at 14:5-23 (Doc. 36-4).³

It is at this...