White v. City of Albuquerque

• Decision Date: 29 September 2014
• Docket Number: Civ. No. 12-0988 MV/KBM
• Parties: JASON R. WHITE, Plaintiff, v. CITY OF ALBUQUERQUE, ALBUQUERQUE POLICE OFFICER J. McRAE, in his official and individual capacity; ROBERT METZGER (sic), J. RICHARDS, John Doe, Defendants.
• Court: U.S. District Court — District of New Mexico

JASON R. WHITE, Plaintiff,
v.
CITY OF ALBUQUERQUE,
ALBUQUERQUE POLICE OFFICER J. McRAE, in
his official and individual capacity; ROBERT METZGER (sic), J. RICHARDS,
John Doe, Defendants.

Civ. No. 12-0988 MV/KBM

UNITED STATES DISTRICT COURT DISTRICT OF NEW MEXICO

September 29, 2014

MEMORANDUM OPINION AND ORDER

THIS MATTER comes before the Court on City Defendants Jeremy McRae and Joshua Richards' Motion for Summary Judgment Requesting Dismissal of Plaintiff's Complaint, and Memorandum in Support ("McRae and Richards' Motion for Summary Judgment"), filed December 13, 2013 [Doc. 60], Defendant Robert Metzgar's Motion for Summary Judgment Based on Qualified Immunity and Supporting Memorandum ("Metzgar's Motion for Summary Judgment"), filed December 13, 2013 [Doc. 64], and Defendant Jeremy McRae and Defendant City of Albuquerque's Motion for Summary Judgment Requesting Dismissal of Count V of Plaintiff's Complaint—Supervisory and Municipal Liability ("Supervisory and Municipal Liability Motion for Summary Judgment"), filed December 13, 2013 [Doc. 61]. The Court, having considered the motions, briefs, and relevant law, and being otherwise fully informed, finds that McRae and Richards' Motion for Summary Judgment is well taken in part and will be granted in part, Metzgar's Motion for Summary Judgment is well taken in part and will be granted in part,

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and the Supervisory and Municipal Liability Motion for Summary Judgment is well taken in part and will be granted in part.

BACKGROUND

I. Procedural Background.

On September 20, 2012, Plaintiff Jason R. White filed an unverified complaint asserting claims pursuant to 42 U.S.C. Section 1983 against Defendants arising out of his on September 23, 2009, investigative detention and subsequent arrest for the crimes of assault on a peace officer, resisting arrest, and disorderly conduct. Plaintiff alleges that Defendants McRae, Richards, and Metzgar in their individual capacities violated Plaintiff's Fourth Amendment constitutional rights to be free from unlawful investigative detention and arrest, his Fourth Amendment constitutional right to be free from excessive force, his Fourth and Fourteenth Amendment rights to be free from malicious prosecution, and his First Amendment right to be free from arrest in retaliation for recording and photographing the police. Plaintiff further asserts supervisory claims against Defendant McRae as well as municipal liability claims against Defendant City of Albuquerque premised on the alleged constitutional violations committed by the individual defendants.

On December 13, 2013, Defendants filed McRae and Richards' Motion for Summary Judgment, Metzgar's Motion for Summary Judgment, and the Supervisory and Municipal Motion for Summary Judgment. In their motion, McRae and Richards seek dismissal with prejudice of all of Plaintiff's individual capacity claims against them on the ground that qualified immunity shields them from the Section 1983 claim for unlawful detention because, to the extent the encounter was not voluntary, Defendants had reasonable suspicion to investigate Plaintiff and probable cause to arrest him, and because the constitutional right allegedly infringed was not

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clearly established. In addition, McRae and Richards argue that they are entitled to qualified immunity from the Section 1983 malicious prosecution claim because they had probable cause to support the arrest and the original action did not terminate in Plaintiff's favor, and because the constitutional right allegedly infringed was not clearly established. McRae and Richards also contend that they are shielded by qualified immunity against the Section 1983 claim for retaliatory arrest because First Amendment expression is subject to reasonable time, manner, and place restrictions and because the alleged First Amendment right was not clearly established. Finally, McRae and Richards argue that they are entitled to qualified immunity against the Section 1983 claim for excessive force because Plaintiff's injuries were de minimis and the force they used was objectively reasonable under the circumstances, and because the right allegedly infringed was not clearly established.

In Metzgar's Motion for Summary Judgment, Metzgar argues that the Court should dismiss all of Plaintiffs' individual capacity claims against him with prejudice on the ground that he is entitled to qualified immunity from the Section 1983 claim for unlawful detention because it was Defendant McRae, and not Metzgar, who initially placed Plaintiff in handcuffs during the investigative detention, and because McRae's actions of detaining and handcuffing Plaintiff were reasonable. Metzgar next argues that he is entitled to qualified immunity from the unlawful arrest claim because the facts demonstrate that Metzgar had probable cause to arrest Plaintiff. Metzgar also contends that he is entitled to qualified immunity from the malicious prosecution claim because Plaintiff has not alleged facts indicating that Metzgar lacked probable cause to conduct the original arrest. Metzgar further argues that he is entitled to qualified immunity from the

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retaliatory arrest claim¹ because Plaintiff has not alleged facts which demonstrate that he was arrested without probable cause and because the facts do not establish that Metzgar's actions were substantially motivated as a response to Plaintiff's exercise of his First Amendment rights. Metzgar last maintains that he is entitled to qualified immunity from the excessive force claim because the force he used was reasonable under the circumstances.

In their Supervisory and Municipal Liability Motion for Summary Judgment, Defendants McRae and the City of Albuquerque seek dismissal with prejudice of Plaintiff's supervisory and municipal liability claims against them. Specifically, McRae asks the Court to dismiss the supervisory claims against him in his individual capacity on the ground that he is shielded by qualified immunity because no underlying constitutional violation occurred. The City of Albuquerque asks the Court to dismiss the municipal liability claims against it on the ground that no underlying constitutional violation occurred and on the ground that, even if it had, Plaintiff has failed to produce evidence indicating that a municipal policy or custom that was the moving force behind the violation or that the City acted with deliberate indifference.

On December 30, 2013, Plaintiff filed a response entitled, "Plaintiff Jason White's Response to Defendant Robert Metzger, Jeremy McRae, Joshua Richards, Eric Martinez, John

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Doe, Chief Ray Schultz Motion for Summary Judgment Requesting Dismissal Of Plaintiff's Claims on Qualified Immunity." [Doc. 67]. The Court construes the response liberally and assumes that the response, which indicates in its title that it opposes Defendants' request for dismissal on qualified immunity grounds, serves as a response to the two motions brought solely on qualified immunity grounds—namely, McRae and Richards' Motion for Summary Judgment and Metzgar's Motion for Summary Judgment—and to the Supervisory and Municipal Liability Motion for Summary Judgment to the extent that motion seeks dismissal of the supervisory claims against McRae on the ground that he is shielded by qualified immunity. Plaintiff does not attach to his response an affidavit or sworn declaration containing his description of the events leading up to and following his arrest or otherwise refuting the facts set forth by Defendants. Rather, Plaintiff makes many assertions of fact in the body of his response, none of which are under oath, in attempt to demonstrate that the facts identified by Defendants are in dispute. In addition to filing his initial response to the motions, Plaintiff filed three additional responses opposing the qualified immunity motions for summary judgment. [Docs. 68, 78, 89].

II. Factual Background.²

On September 23, 2009, the manager of the Lotus nightclub, which is located in downtown Albuquerque, New Mexico, flagged down Defendant McRae, a supervisory officer holding the position of commander at the Albuquerque Police Department. [Doc. 60 at 1]. The manager directed McRae's attention to a black, Mercedes Benz sedan parked on a public street in front of the nightclub, in which a male, later identified as Plaintiff, had been sitting for 45 minutes in the

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driver's seat "staring" at "underage" girls. [Id. at 2; Doc. 60-6]. McRae attests that the manager was concerned because the Lotus nightclub was hosting an event for individuals eighteen years and older and he thought that Plaintiff was suspicious and may have been waiting to pick up an "unsuspecting" female patron. [Doc. 60; Doc. 60-1 at 2, 9].

Plaintiff denies, in an unsworn statement in the body of his initial response to the motions for summary judgment, that he was staring at anyone outside of the night club. Plaintiff states that "[t]here were many people standing outside male and female," and that he "was paying little to no attention to the crowd." [Doc. 67 at 8].

Defendant McRae attests that as he approached Plaintiff's vehicle, he noticed that it had a temporary tag with an expiration date in November 2009, which McRae noted was more than 30 days from the date on which he encountered Plaintiff. [Doc. 60 at 2]. McRae asserts that, based upon his experience, it...