Galindo v. Town of Silver City , 127 F. App'x 459 ( 2005 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
APR 5 2005
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
DIANA GALINDO; CHARLES
SCHRODER; JOANNA SCHRODER;
ELIZABETH ACOSTA; ORLANDO
GARCIA,
No. 03-2134
Plaintiffs-Appellants, (D.C. No. CIV-02-476-KBM/LCS)
(D. N.M.)
v.
TOWN OF SILVER CITY; JOHN
PAUL JONES, Silver City Mayor, and
his successor in interest, in their
official and individual capacities;
TOM BATES, Silver City Manager,
and his successor in interest, in their
official and individual capacities;
RALPH DOMINGUEZ, ELIZABETH
GARY, GARY CLAUSS, PETER
RUSSELL, Silver City Councilors, in
their official and individual capacities;
HENRY CHAVEZ, Silver City Police
Chief, in his official and individual
capacity; JOE ACOSTA, BOBBY
RUIZ, DANIEL BARDE, SAM
RODRIGUEZ, Silver City Police
Officers, in their official and
individual capacities; JOHN DOES
1-3,
Defendants-Appellees,
COUNTY OF GRANT; MANUEL
SERNA, HENRY TORRES, DAVID
CONWAY, Grant County
Commissioners, in their official and
individual capacities; STEVE REESE,
Grant County Sheriff, in his official
and individual capacity; REUBEN
PORTILLO, Grant County Sheriff's
Officer, in his official and individual
capacity,
Defendants.
ORDER AND JUDGMENT *
Before TACHA , Chief Judge, HENRY and O’BRIEN , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Plaintiffs filed an action pursuant to 42 U.S.C. § 1983 alleging defendants
violated their Fourth Amendment rights to reasonable searches and seizures. 1
The
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
1
Plaintiffs raised several other claims in the district court, but do not
continue to assert them on appeal.
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district court 2
granted summary judgment in favor of defendants. Plaintiffs argue
that the district court erred in doing so, because there are unresolved material
facts and because another magistrate judge had granted plaintiffs’ motion to
compel complete answers to discovery requests and had awarded sanctions for the
discovery abuses. Also, plaintiffs argue that the district court erred in denying
their motion to disqualify the attorney for defendant Town of Silver City. We
exercise jurisdiction under 28 U.S.C. § 1291, and we affirm.
BACKGROUND
The facts construed in the light most favorable to plaintiffs are as follows.
See Hope v. Pelzer , 536 U.S. 730, 733 n.1 (2002) (on review of summary
judgment, court reviews facts in light most favorable to nonmoving party).
Plaintiff Elizabeth Acosta, a minor, did not call her mother, Cynthia Acosta, for a
ride home from her job at McDonald’s on May 12, 2000 after her evening shift
ended. Mrs. Acosta became concerned, went to McDonald’s and learned that
Elizabeth had left with her boyfriend Michael Anderson. Mrs. Acosta drove by
the home of her sister, plaintiff Diana Galindo, and saw Michael’s truck parked in
front of the home, a home where Elizabeth had been forbidden to go because she
drank alcohol there. Mrs. Acosta stopped and knocked on the front door, but no
2
The parties consented to having the magistrate judge decide the case. See
28 U.S.C. § 636(c).
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one came to the door, even though she could hear people in the house. When she
returned to her own home, Mrs. Acosta telephoned the Galindo home, but no one
answered.
Mrs. Acosta called her husband, defendant Joe Acosta, Elizabeth’s
stepfather and a police officer for the Town of Silver City, and told him what she
knew. He proceeded to the Galindo home at 1:30 a.m. on May 13, when he got
off work. Mr. Acosta saw Michael’s truck there, but received no answer to his
knocks on the front door of the Galindo home. He, however, saw his niece,
plaintiff Joanna Schroeder, peeking out the window and heard scrambling,
laughing and giggling inside the house. Mr. Acosta went home and changed his
clothes.
He and Mrs. Acosta then returned to the Galindo home. Although he
remained in his vehicle, she knocked on the front door, but again she received no
response.
Meanwhile, Mr. Acosta called the police. Defendant Silver City police
officer Samuel Rodriguez responded. Mr. Acosta told Officer Rodriguez that he
believed Elizabeth was in the Galindo home with her boyfriend, that they
probably were drinking, that every time Elizabeth went to the Galindo home she
came home drunk, and that the occupants of the home did not open the door in
response to his and his wife’s knocking. He also told Officer Rodriguez that the
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home belonged to his sister-in-law. Officer Rodriguez contacted the Minors with
Alcohol Tactical Team, and then-Lieutenant Reuben Portillo, among others,
responded. Officer Rodriguez and Lt. Portillo knocked on the front door of the
Galindo home and announced themselves as law enforcement officers. After
receiving no response, they proceeded to the carport and to the back door of the
house. Lt. Portillo saw that the back patio door was partially opened. Also, he
saw one minor lying on the floor and another lying on the sofa. Lt. Portillo
repeatedly knocked on the patio door and yelled to get the minors’ attention.
Neither responded. Because the two law enforcement officers feared for the
minors’ safety and welfare, including alcohol poisoning, they entered the house.
One minor awakened, and indicated when asked that the homeowner was at the
other end of the house. As the law enforcement officials proceeded, they met
Michael, who denied that Elizabeth was there or that there had been any drinking.
Michael pointed out the bedroom where the homeowner could be found.
After Ms. Galindo, the homeowner, came out of the bedroom, she gave
Officer Rodriguez and Lt. Portillo permission to search for Elizabeth. Joanna
informed Ms. Galindo that Elizabeth was hiding in Ms. Galindo’s closet.
Ms. Galindo told the officers to get Elizabeth, which they did. Elizabeth was
intoxicated.
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Officer Rodriguez and Lt. Portillo took Elizabeth, Michael and his brother
to the Grant County Detention Center. These three minors were released to their
parents and no reports or charges were filed.
Thereafter, plaintiffs Elizabeth Acosta, Diana Galindo, Ms. Galindo’s
children Joanna and Charles Schroder, and Ms. Galindo’s then-boyfriend Orlando
Garcia filed their complaint alleging Fourth Amendment violations for the
warrantless entry of the home and its curtilage against two sets of defendants.
The first set consisted of the Town of Silver City; its mayor, John Paul Jones; its
city manager, Tom Bates; its four city councilors, Ralph Dominguez, Elizabeth
Gary, Gary Clauss, Peter Russell; its police chief, Henry Chavez; four city police
officers, Joe Acosta, Bobby Ruiz, Daniel Barde and Sam Rodriguez; and three
John Does (collectively the Silver City defendants). The second set of defendants
consisted of Grant County; its sheriff, Steve Reese; Lt. Reuben Portillo; and three
county commissioners, Manuel Serna, Henry Torres, and David Conway
(collectively the Grant County defendants). All persons were sued in their
individual and official capacities.
Each set of defendants moved for summary judgment. The district court
granted the motions, finding no Fourth Amendment violations. The district court
determined that Officer Rodriguez and Lt. Portillo were on the premises for the
legitimate purposes of ascertaining if Elizabeth was there and if there was teenage
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drinking occurring at the home. Because the officers received no response to
their knocks and they were on the premises for a legitimate purpose, the court
decided it was consistent for them to walk to the back of the house and enter the
curtilage to locate any occupants. The court also determined that exigent
circumstances justified the warrantless entry into the house:
At the time the officers went around the back of the Galindo home,
they were aware that Elizabeth had been missing for hours, and that
the Acostas had made several attempts over the course of several
hours to contact people inside the Galindo home. No one was
answering, but the Acostas had heard someone inside and the
windows were obstructed. Upon discovering the open patio door and
the kids who admittedly were not responding at all to the officers’
inquiries, they were justified in entering the premises to (1) ascertain
whether those juveniles were all right, and (2) to see whether
Elizabeth was there and in a similar seemingly-dangerous situation.
Jt. App., vol. III at 715. Nor did the district court find that the officers’ conduct
after they entered the home violated the Fourth Amendment. In addition to
finding no constitutional violation, the court also found no violation of any
clearly established rights. The court therefore held that the officers were entitled
to summary judgment on the basis of qualified immunity. Lastly, the court
decided that without a constitutional violation, there could be no municipal
liability.
Plaintiffs filed a motion to disqualify the Silver City defendants’ counsel
from representing both Mr. Acosta and the other Silver City defendants. After
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holding a hearing, the district court denied the motion, finding no obvious
conflict by the joint representation and no potential foreseeable conflict.
During the course of this appeal, Ms. Galindo, Charles, Joanna and
Elizabeth settled their appeal against the Grant County defendants. These parties
stipulated to dismiss the claims against the Grant County defendants, and this
court dismissed the appeal against these defendants. The appellate arguments of
these four plaintiffs therefore concern only the Silver City defendants.
Also on appeal, plaintiffs’ counsel withdrew from representing plaintiff
Orlando Garcia. Mr. Garcia has not filed a pro se or counseled brief on appeal.
We conclude he has abandoned this appeal, and we dismiss his appeal for failure
to prosecute. See 10th Cir. R. 42.1; see also United States ex rel. Jimenez v.
Health Net, Inc. , 400 F. 3d 853, 854-56 (10th Cir. 2005) (dismissing appeal sua
sponte for failure to prosecute because appellant disappeared and failed to meet
court deadlines). 3
DISCUSSION
I. SUMMARY JUDGMENT
We review a grant of summary judgment on the basis of
qualified immunity de novo . Summary judgment is appropriate if the
pleadings, depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there is no genuine
3
We refer to Ms. Galindo, Charles, Joanna and Elizabeth as plaintiffs
throughout the remainder of this order and judgment.
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issue of material fact and one party is entitled to judgment as a
matter of law. Fed. R. Civ. P. 56(c). We construe the record in the
light most favorable to the non-moving party.
Jiron v. City of Lakewood , 392 F.3d 410, 413-14 (10th Cir. 2004) (citation
omitted). There is a genuine issue of material fact if the nonmoving party
presents facts such that a reasonable jury could find in favor of the nonmoving
party. Simms. v. Okla. ex rel. Dep’t of Mental Health & Substance Abuse Servs. ,
165 F.3d 1321, 1326 (10th Cir. 1999). “If there is no genuine issue of material
fact in dispute, we determine whether the district court correctly applied the
substantive law.” Id.A. DISPUTED MATERIAL FACTS
Plaintiffs argue that although they disputed most, if not all, of the facts the
Silver City defendants used to support their motion for summary judgment, the
district court never considered the issues of disputed material facts that plaintiffs
set forth. According to plaintiffs, the undisputed material facts show that Officer
Rodriguez and the John Does deprived them of their right to be free from
unreasonable searches and seizures when these officers illegally entered the
curtilage and home of Ms. Galindo without a warrant, probable cause or the
existence of exigent circumstances. This, however, is a legal conclusion, which
necessarily does not show disputed material facts.
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Plaintiffs also indicate that they disputed fifteen of seventeen allegations
that were characterized as undisputed facts by the Grant County defendants.
Plaintiffs further contend they cannot respond to the other two allegedly
undisputed facts, because those defendants failed or refused to respond to
discovery. As indicated above, plaintiffs have settled all claims against the Grant
County defendants. To the extent that these allegedly undisputed facts could be
relevant to plaintiffs’ appeal against the Silver City defendants, plaintiffs do not
list on appeal what these undisputed facts are or specifically indicate in their
appellate brief what they believe the material facts actually are. Plaintiffs’
conclusory assertions are insufficient for us to consider the issue. Cf. Murrell v.
Shalala , 43 F.3d 1388, 1389 n.2 (10th Cir. 1994) (deciding that where appellant
failed to frame and develop issue, there was insufficient basis to invoke appellate
review). Thus, we conclude plaintiffs have not shown that there are disputed
material facts. In any event, upon our de novo review of the record, we conclude
that the district court did not ignore plaintiffs’ facts, but instead correctly
determined that the material facts were undisputed.
B. DISCOVERY REQUESTS
Plaintiffs argue that the district court erred in dismissing this action with
prejudice without considering another magistrate judge’s order granting plaintiffs’
motion to compel Sheriff Reese and Lt. Portillo to completely answer discovery
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requests and awarding plaintiffs sanctions against these two defendants and Grant
County. Plaintiffs have settled their claims against all Grant County defendants.
Thus, in light of the settlement, and plaintiffs’ failure to prove the argument is
still viable in light of the settlement, we conclude this argument is now moot. Cf.
Marc Dev., Inc. v. FDIC , 12 F.3d 948, 949 (10th Cir. 1993) (per curiam)
(concluding settlement of case rendered appeal moot).
C. DEFENDANTS’ ENTITLEMENT TO QUALIFIED IMMUNITY
Plaintiffs argue the district court erred in granting summary judgment to the
Silver City defendants on qualified immunity grounds. “To prevail on summary
judgment against a defendant who asserts a defense of qualified immunity, a
plaintiff must show that (1) the official violated a constitutional or statutory right;
and (2) the constitutional or statutory right was clearly established when the
alleged violation occurred.” Mimics, Inc. v. Village of Angel Fire , 394 F.3d 836,
841 (10th Cir. 2005) (quotation omitted). If the threshold constitutional-right
inquiry is not met, there is no need for further qualified immunity analysis.
Saucier v. Katz , 533 U.S. 194, 201 (2001).
We first consider whether the facts taken in the light most favorable to
plaintiffs show that the Silver City defendants’ conduct violated plaintiffs’ Fourth
Amendment rights. See Brosseau v. Haugen , 125 S. Ct. 596, 598 (2004) (per
curiam). “The Fourth Amendment prohibition against unreasonable search and
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seizure is implicated when there is some meaningful interference with an
individual’s possessory interests in . . . property.” Marcus v. McCollum , 394 F.3d
813, 818 (10th Cir. 2004) (quotation omitted). “It is well-established that a
warrantless search is presumptively unreasonable under the Fourth Amendment
and therefore invalid unless it falls within a specific exception to the warrant
requirement.” Mimics , 394 F.3d at 844 (quotation omitted).
Here, it is undisputed that defendants failed to obtain a warrant before
proceeding to the back of the Galindo home. Merely proceeding from the front to
the back of a house alone, however, did not establish an invasion of the curtilage
in violation of the Fourth Amendment. See United States v. Cavely , 318 F.3d
987, 994 n.1 (10th Cir. 2003) (“The mere fact that officers went to the front and
around towards the back of appellant’s house, standing alone, does not establish
an invasion of the curtilage.”). Getting no response to knocks on the front door
and knowing that there were people in the home, Officer Rodriguez reasonably
proceeded around to the back door, where he could reasonably carry out his
objectives of locating Elizabeth and of checking on underage drinking. As the
district court noted, even plaintiffs’ expert agreed that Officer Rodriguez
legitimately proceeded to the back of the house. Plaintiffs therefore have failed
to meet their burden of proving a legitimate expectation of privacy in the
curtilage that was violated by Officer Rodriguez. See id. at 993-94. Accordingly,
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we conclude that Officer Rodriguez’s proceeding to the back of the house resulted
in no constitutional violation.
It is also undisputed that Officer Rodriguez failed to obtain a warrant
before entering and searching the Galindo home. Officer Rodriguez’s actions are
presumptively unreasonable unless an exception to the warrant requirement
applies. See Roska ex rel. Roska v. Peterson , 328 F.3d 1230, 1240 (10th Cir.
2003).
Defendants argue that there was an exception to the warrant requirement
due to exigent circumstances. Exigent circumstances exist when (1) an officer
has reasonable grounds to believe there is an immediate need to protect the lives
of others; (2) the officer’s search is not motivated by an intent to arrest or seize
evidence; and (3) there is a reasonable basis to believe that an emergency exists at
the place to be searched. Id. ; see id. at 1250 n.24 (requiring immediate risk to
safety for exigent circumstances to exist). “In evaluating whether exigent
circumstances existed, we examine the circumstances as they would have
appeared to prudent, cautious, and trained officers.” Id. at 1240 (quotation
omitted); see also United States v. Anderson , 154 F.3d 1225, 1233 (10th Cir.
1998) (recognizing there is no absolute test for assessing whether exigent
circumstances exist because determination depends on unique facts of each case).
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The undisputed material facts in this case show that exigent circumstances
justified the warrantless entry into the Galindo home. Mr. Acosta had informed
Officer Rodriguez and Lt. Portillo that Elizabeth was in the home and underage
drinking was likely occurring, and the occupants of the home had ignored his and
Mrs. Acosta’s knocks on the front door. Also, these law enforcement officers
personally observed minors in the home, who could not be aroused by repeated
knocking on the patio door and yelling through the open door. Fearing for the
safety and welfare of these unresponsive minors, as well as for Elizabeth, due to
alcohol poisoning, the officers entered the home to check on the welfare of the
minors. Under these circumstances, where there was an “immediate threat of
death or severe physical harm,” id. at 1241, it was objectively reasonable for
Officer Rodriguez to have entered the Galindo home. Officer Rodriguez therefore
did not violate plaintiffs’ Fourth Amendment rights. 4
Because plaintiffs failed to allege facts to support a constitutional
violation, they did not meet their threshold burden for qualified immunity
analysis, and it is unnecessary for this court to consider if there was a clearly
established right. See Jiron , 392 F.3d at 419. The district court correctly held
that Officer Rodriguez was entitled to qualified immunity.
4
Plaintiffs do not continue to argue that Officer Rodriguez’s conduct after
entering the Galindo home violated the Fourth Amendment. Nonetheless, we
conclude that the district court correctly found no constitutional error.
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Because plaintiffs did not prove a constitutional violation by Officer
Rodriguez, a § 1983 action against the remaining Silver City defendants, apart
from Mr. Acosta, is precluded. See Jiron , 392 F.3d at 419 & n.8. Accordingly,
we conclude the district court correctly granted summary judgment to these Silver
City defendants.
Plaintiffs argue that if, as the Silver City defendants alleged, Mr. Acosta
was not acting under color of law, he would not be entitled to qualified immunity.
The record shows that at all relevant times Mr. Acosta was off-duty and a civilian
and a concerned parent, whose only actions were knocking on the Galindo door
and calling the police. Nothing in the record indicates Mr. Acosta was acting
under color of law. Granting summary judgment in favor of Mr. Acosta was
appropriate because a person must be acting under color of law to be held liable
under § 1983. See 42 U.S.C. § 1983 (providing federal cause of action against
person who deprives another of federal rights when acting under state law);
Parratt v. Taylor , 451 U.S. 527, 535 (1981) (requiring plaintiff seeking § 1983
relief to prove conduct complained of was committed by person acting under
color of state law and that conduct deprived person of constitutional right),
overruled on other grounds by Daniels v. Williams , 474 U.S. 327 (1986). We
may affirm the district court’s grant of summary judgment on any ground
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supported by the record. See Bolden v. PRC Inc. , 43 F.3d 545, 548 (10th Cir.
1994).
II. MOTION TO DISQUALIFY
Plaintiffs argue the district court erred in denying their motion to disqualify
the attorney representing Mr. Acosta and all other Town of Silver City
defendants. Plaintiffs maintain there is an inherent conflict of interest between a
city and a police officer when both are defendants in a § 1983 action and the
police officer is sued in his individual capacity. Also, plaintiffs point to the
Town of Silver City’s assertion that Mr. Acosta was not acting under color of
state law at the time of the search.
“We review a district court’s decision on a motion to disqualify counsel for
abuse of discretion.” Chavez v. New Mexico , 397 F.3d 826, 839 (10th Cir. 2005).
“Given the potential conflict between the defenses available to a government
official sued in his individual and official capacities, we have admonished that
separate representation for the official in his two capacities is a wise precaution.”
Johnson v. Bd. of County Comm’rs , 85 F.3d 489, 493 (10th Cir. 1996) (quotation
omitted). We, however, only require separate counsel if a potential conflict turns
into an actual conflict. Id.It is true that there was a potential conflict between the Town of Silver City
and Mr. Acosta. Yet the facts and circumstances of this case show that no actual
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conflict resulted due to the grant of summary judgment to all Silver City
defendants, and Mr. Acosta therefore received fair proceedings. See Dunton v.
County of Suffolk , 729 F.2d 903, 909 (2d Cir. 1984) (when counsel acts against
litigant’s interests due to conflict that litigant is unaware of, litigant does not
receive fair trial). We therefore conclude the district court did not abuse its
discretion in denying plaintiffs’ disqualification motion.
The judgment of the district court is AFFIRMED. We sua sponte DISMISS
Mr. Garcia’s appeal for failure to prosecute. The appeal against the Grant County
defendants is DISMISSED.
Entered for the Court
Deanell Reece Tacha
Chief Judge
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