Sollars v. City of Albuquerque

• Decision Date: 05 June 1992
• Docket Number: No. CIV 91-858 JC.,CIV 91-858 JC.
• Citation: 794 F. Supp. 360
• Parties: Thomas E. SOLLARS, Jr., as Personal Representative of the Estate of John Raymond Sollars, Deceased; Autumn-Ray Sollars, a minor Through her next friend and parent, Marla Tracy; Amy Sollars and Lisa Sollars, minors Through their next friend and parent, Terry Sollars Bell; Michael Tracy and Steven Tracy, minors Through their next friend and parent, Marla Tracy; Julia Tracy; and Marla Tracy for herself, Plaintiffs, v. CITY OF ALBUQUERQUE; Bob Stover, Individually and in his capacity as Chief of Police; John Does 1-8, Supervisors at the Albuquerque Police Department; Michael Fox, Individually and in his official capacity as a police officer with APD; Martin Porath, Individually and in his official capacity as a police officer with APD; Thomas Marten, Individually and in his official capacity as a police officer with APD; Joe Romero, Individually and in his official capacity as a police officer with APD; and John Doe Officers 9-14, Defendants.
• Court: U.S. District Court — District of New Mexico

794 F. Supp. 360

Thomas E. SOLLARS, Jr., as Personal Representative of the Estate of John Raymond Sollars, Deceased; Autumn-Ray Sollars, a minor Through her next friend and parent, Marla Tracy; Amy Sollars and Lisa Sollars, minors Through their next friend and parent, Terry Sollars Bell; Michael Tracy and Steven Tracy, minors Through their next friend and parent, Marla Tracy; Julia Tracy; and Marla Tracy for herself, Plaintiffs, v. CITY OF ALBUQUERQUE; Bob Stover, Individually and in his capacity as Chief of Police; John Does 1-8, Supervisors at the Albuquerque Police Department; Michael Fox, Individually and in his official capacity as a police officer with APD; Martin Porath, Individually and in his official capacity as a police officer with APD; Thomas Marten, Individually and in his official capacity as a police officer with APD; Joe Romero, Individually and in his official capacity as a police officer with APD; and John Doe Officers 9-14, Defendants.

No. CIV 91-858 JC.

United States District Court, D. New Mexico.

June 5, 1992.

Brad D. Hall, Taylor, Gaddy, Rakes & Hall, Albuquerque, N.M., for plaintiffs.

Jeffrey L. Baker, Baker & Associates, Albuquerque, N.M., for defendants.

MEMORANDUM OPINION

JOHN E. CONWAY, District Judge.

THIS MATTER came on for consideration of the Defendants' three pending Motions to Dismiss, all filed on September 25, 1991. The Court has reviewed the motions, the memoranda submitted by the parties and the relevant authorities. The Court finds that the motions are well-taken in part and will be granted in part.

When reviewing a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure, the Court "must accept as true the plaintiff's well-pleaded factual allegations and all reasonable inferences must be indulged in favor of the plaintiff." Shaw v. Valdez, 819 F.2d 965, 968 (10th Cir.1987). A motion to dismiss will be granted only if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Shoultz v. Monfort of Colorado Co., Inc., 754 F.2d 318, 321 (10th Cir.1985).

The Complaint alleges that while responding to a domestic dispute call, Albuquerque Police Department officers used excessive force resulting in the death of John Sollars. Plaintiff Thomas Sollars has sued the Defendant City and its officers in his capacity as personal representative of his late brother's estate. The estate alleges violation of John Sollars' constitutional rights and seeks damages under 42 U.S.C. § 1983 in Counts I-V. The estate also alleges wrongful death liability under the Torts Claim Act, N.M.Stat.Ann. § 41-4-12 in Counts VI and VII.

The remaining plaintiffs allege in Count V that the officers violated their constitutional rights by "interfering with their familial relationship" to the deceased. Plaintiff Marla Tracy co-habitated with the deceased for approximately eight years and bore his child, plaintiff Autumn-Ray Sollars, in 1986. Plaintiffs Amy and Lisa Sollars are John Sollars' children by a previous marriage and were not present during the incident. Plaintiffs Michael, Steven and Julia Tracy are Marla Tracy's children by a previous marriage who lived with the couple and had developed a "step-dad" type of relationship with the deceased.

The "step-children", biological daughter Autumn-Ray and plaintiff Marla Tracy allegedly were present and witnessed the death of John Sollars. In addition to the federal claim asserted in Count V, they seek "bystander recovery" for emotional distress under New Mexico common law from the officers who shot Sollars in Count VII and from officers who were allegedly negligent in supervision and training in Count VIII.

I. First Motion to Dismiss

Plaintiffs agree that punitive damages are unavailable in this case against the Defendant City of Albuquerque. Therefore, the First Motion to Dismiss the claim for punitive damages claimed in Count IV(b) of the Complaint will be granted.

II. Second Motion to Dismiss

Defendants contend that the Plaintiff Thomas Sollars as personal representative of John Sollars' estate lacks standing to bring the Section 1983 claims. The Defendants acknowledge that the Tenth Circuit in Berry v. Muskogee, 900 F.2d 1489 (1990), refused to borrow the Oklahoma survivorship and wrongful death statutes to determine whether a Section 1983 claim could be maintained after the death of the victim and what remedies would be available. Rather, the Tenth Circuit "fashioned" as a federal remedy "a survival action, brought by the estate of the deceased victim, in accord with § 1983's express statement that the liability is `to the party injured.'" Berry, 900 F.2d at 1506-07.

The Defendants insist that the Berry decision "is in clear contradiction with the dictates of the United States Supreme Court." Defendants' Reply Brief at 7. But the Tenth Circuit in Berry considered Robertson v. Wegmann, 436 U.S. 584, 98 S.Ct. 1991, 56 L.Ed.2d 554 (1978), the supposedly conflicting ruling of the Supreme Court. Berry, 900 F.2d at 1503. Despite Defendants' arguments to the contrary, this court is obligated to follow the current law of this circuit as annunciated in Berry. Thus, the personal representative has standing to bring John Sollars' Section 1983 claim and the Second Motion to Dismiss for lack of standing will be denied.

III. Third Motion to Dismiss

A. Federal Claims for Interference with Familial Relationships

Defendants' Third Motion to Dismiss first addresses the Count V constitutional claims for interference with familial relationship brought by the plaintiff girlfriend and her children. Defendants contend that they have no such claim because these plaintiffs, with the exception of Sollars' biological daughter Autumn-Ray, are not related by blood or marriage to the deceased.

This Court need not address the standing issue raised by Defendants, however. As Plaintiffs note in their response, the Tenth Circuit requires that, to state a claim for interference with familial relationships, the defendant must have intended to violate the rights of the family survivor. See Trujillo v. Board of County Commissioners, 768 F.2d 1186 (10th Cir.1985). Intent to violate the rights of the victim are not transferrable to establish intent to deprive surviving family members of their personal constitutional rights. Id. at 1189.

The Complaint alleges only deliberate indifference to the familial rights of John Sollars and those with whom he resided. Plaintiffs assert that they bring this claim in good faith seeking to extend or modify the law to permit a deliberate indifference showing to suffice. Until such time as the circuit adopts the plaintiff's position, however, the allegations of Count V fail to state a claim upon which relief can be granted. Therefore, dismissal of Count V is appropriate.

B. State Claims for Negligence (Counts VII and VIII)

Defendants contend that this Court lacks jurisdiction to determine anything other than the personal representative's claims for relief. Yet, the recently enacted Judicial Improvements Act of 1990 provides that this Court

shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution.

28 U.S.C. § 1367(a). Because this new law redefines the contours of "pendent" and "ancillary" jurisdiction, the cases cited by Defendants prohibiting jurisdiction over "pendent parties" are inapplicable. I agree with Plaintiffs that the bystander recovery and the negligent supervision and training claims are sufficiently established areas of New Mexico law such that this Court will not decline to the exercise "supplemental" jurisdiction Congress has conferred. See 28 U.S.C. § 1367(c). Likewise, these state claims will not substantially predominate over the federal claims of John Sollars.

The New Mexico Supreme Court in Ramirez v. Armstrong, 100 N.M. 538, 673 P.2d 822 (1983), relied heavily on California's rationale in Dillon v. Legg, 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912 (1968) in its adoption of the tort of negligent infliction of emotional distress to a bystander. See Ramirez at 540-41, 673 P.2d 822. Relying on the experience of the courts in dealing with the Dillon approach, the Ramirez opinion adopted four standards for "assuring the possibility of recovery by deserving claimants, while at the same time placing constraints on liability of defendants":

1. There must be a marital or intimate familiar relationship between the victim and the plaintiff, limited to husband and wife, parent and child, grandparent and grandchild, brother and sister and to those persons who occupy a legitimate position in loco parentis;

2. The shock to the plaintiff must be severe, and result from a direct emotional impact upon the plaintiff caused by the contemporaneous sensory perception of the accident ...;

3. There must be some physical manifestation of, or physical injury to the plaintiff resulting from the emotional injury;

4. The accident must result in physical injury or death to the victim.

Ramirez at 541-42, 673 P.2d 822.

When it re-examined the bystander tort in Folz v. State, 110 N.M. 457, 797 P.2d 246 (1990), the Supreme Court eliminated the requirement that the plaintiff experience a physical manifestation from the emotional injury. Id. at 470-71, 797 P.2d 246. The court further restated the threshold requirements to conform to the less restrictive Dillon standards: (1) the plaintiff and the victim enjoyed a marital or intimate family relationship, (2) the plaintiff suffered severe shock from the contemporaneous sensory perception of the accident and (3) the accident caused physical injury or death to the victim. Folz at 471, 797 P.2d 246.

At issue on this Third Motion to Dismiss is whether the plaintiffs in Count VII satisfy the first requirement for maintaining a...