Date: 11-17-2014

Case Style: Domingo Gomez v. Benjamin Martin

Case Number: 14-2004

Judge: Carlos F. Lucero

Court: United States Court of Appeals for the Tenth Circuit on appeal from the District of New Mexico (Bernalillo County)

Plaintiff's Attorney: Matt Garcia and Zach Ives

Defendant's Attorney: Blaine Mynatt and Bradley A. Springer

Description: Domingo Gomez appeals the district court’s grant of summary judgment in favor
of Benjamin Martin based on qualified immunity and its denial of Mr. Gomez’s Rule
56(d) request to depose Martin. Exercising jurisdiction under 28 U.S.C. § 1291, we
affirm.
I
On September 26, 2008, Mr. Gomez’s then-wife, Myrna Gomez, and her mother,
Bellia Armendariz, contacted the Doña Ana County Sheriff’s Office to report that Mr.
Gomez attempted to poison them. They described falling ill on several occasions after
drinking wine offered by Mr. Gomez or taking a vitamin that appeared discolored. Both
Ms. Gomez and Armendariz were hospitalized at least once after an alleged poisoning
incident. The Sheriff’s Office assigned Martin to investigate the case.
Martin reviewed an October 2, 2008 safe-house interview with the Gomez
family’s two minor children. One, AG, reported overhearing a telephone conversation in
which Mr. Gomez discussed poisoning Ms. Gomez, and seeing Mr. Gomez place a small
brown pill into a drink he gave to Ms. Gomez. During the same interview, AG made
several statements that potentially undermine his credibility. AG claimed that one of Mr.
Gomez’s friends attempted to lure Ms. Gomez to a fortune teller in Juarez where she was
to be murdered.
Martin interviewed Ms. Gomez, who repeated her claims of poisoning and alleged
two additional poisoning incidents. She stated that after consuming poisoned wine or
vitamins, she suffered respiratory failure, paralysis, and nausea. Ms. Gomez also
mentioned that her hair products were discolored. She provided Martin with a bottle of
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wine, probiotic vitamins, and hair product to be tested for evidence of poison. When
Martin interviewed Ms. Gomez and Armendariz again several months later, they repeated
their claims of poisoning.
In April 2009, a private lab found the pesticide carbofuran in the wine Ms. Gomez
gave Martin. Martin learned that carbofuran is highly toxic and potentially fatal to
humans if ingested, and that it can cause a myriad of symptoms. Martin discovered that
Mr. Gomez had access to carbofuran at his workplace. In May 2010, the Food and Drug
Administration informed Martin that it found carbofuran in both the wine bottle and
vitamins it tested.
Martin also reviewed the medical records from Ms. Gomez’s and Armendariz’s
hospital visits. Those records neither affirmatively listed poisoning as the cause of either
woman’s illness nor categorically ruled out poisoning.
With the district attorney’s support, Martin submitted a criminal complaint against
Mr. Gomez on July 27, 2010, alleging that he had attempted to murder Armendariz or
Ms. Gomez on five occasions. Mr. Gomez was then arrested and charged with five
counts of attempted murder. When Martin submitted an affidavit in support of the arrest,
he listed several symptoms of carbofuran poisoning and stated that “[a]ll or most of these
symptoms were described by Ms. Armendariz and Ms. Gomez as the exact same
symptoms they had felt.”
Almost two years later, Deputy District Attorney Jeanne Quintero filed a nolle
prosequi on the basis of insufficient evidence. The case against Mr. Gomez was
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dismissed without prejudice. The nolle prosequi noted that Ms. Gomez and
Armendariz’s medical reports were “not indicative specifically of poisoning;” that there
were significant evidence chain problems; that prosecutors learned Ms. Gomez had
access to carbofuran; and that Mr. Gomez passed a polygraph examination. It also stated
that Ms. Gomez failed to stay in contact with the District Attorney, missing meetings and
infrequently returning phone calls.
Mr. Gomez sued Martin under 42 U.S.C. § 1983, alleging malicious prosecution in
violation of his Fourth and Fourteenth Amendment rights, and false arrest and
imprisonment in violation of his Fourth Amendment rights.1 During discovery, Mr.
Gomez attempted to depose Martin, but the deposition was stayed on May 6, 2013, by
agreement of the parties. On June 12, 2013, Martin moved for summary judgment on the
basis of qualified immunity. Mr. Gomez responded with a Federal Rule of Civil
Procedure 56(d) motion for leave to depose Martin in order to properly defend against the
summary judgment motion.
The district court granted summary judgment in favor of Martin. It also denied
Mr. Gomez’s Rule 56(d) motion, concluding that Mr. Gomez had already received
sufficient discovery and that further discovery would be fruitless. Mr. Gomez timely
appealed.
1 Mr. Gomez also sued Ms. Gomez and Armendariz for torts stemming from the
same investigation and prosecution. Because Ms. Gomez and Armendariz failed to
respond to Mr. Gomez’s complaint, defaults were entered against them.
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II
“[W]e review the award of summary judgment based on qualified immunity de
novo.” Trask v. Franco, 446 F.3d 1036, 1043 (10th Cir. 2006). We view the facts in the
light most favorable to Mr. Gomez, the nonmoving party. Tolan v. Cotton, 134 S. Ct.
1861, 1863 (2014) (per curiam).
To overcome a qualified immunity defense at the summary judgment stage, a
plaintiff must first prove that “the defendant violated a constitutional right.” Lundstrom
v. Romero, 616 F.3d 1108, 1118 (10th Cir. 2010). “[A]n arrestee’s constitutional rights
[a]re violated if the arresting officer act[s] in the absence of probable cause that the
person had committed a crime.” Kaufman v. Higgs, 697 F.3d 1297, 1300 (10th Cir.
2012). To prove false arrest, false imprisonment, and malicious prosecution, a plaintiff
“must establish that his arrest and detention were without probable cause.” Kerns v.
Bader, 663 F.3d 1173, 1187 (10th Cir. 2011); see also Taylor v. Meacham, 82 F.3d 1556,
1561-62 (10th Cir. 1996) (holding that arrest warrants must be supported by probable
cause to comply with the Fourth Amendment in malicious prosecution cases). Probable
cause is a “common-sensical standard” that is “not reducible to precise definition or
quantification.” Florida v. Harris, 133 S. Ct. 1050, 1055 (2013) (quotations omitted).
Nor does it “require the suspect’s guilt to be more likely true than false.” Stonecipher v.
Valles, 759 F.3d 1134, 1141 (10th Cir. 2014) (quotations omitted). To establish probable
cause, an officer must demonstrate “a substantial probability that a crime has been
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committed and that a specific individual committed the crime.” Wolford v. Lasater, 78
F.3d 484, 489 (10th Cir. 1996).
Rather than challenge the facial validity of the arrest warrant, Mr. Gomez argues
that Martin omitted several material facts in his affidavit that, if they had been included,
would have vitiated probable cause. See United States v. Kennedy, 131 F.3d 1371, 1377
(10th Cir. 1997) (noting that courts may consider whether an affiant makes material
omissions that would alter a probable cause determination).
Mr. Gomez specifically alleges four categories of omissions: (1) Ms. Gomez’s
and Armendariz’s hospital records do not mention poisoning and other illnesses could
have caused their symptoms; (2) Ms. Gomez appeared disinterested in pursuing her claim
against Mr. Gomez; (3) evidence chain issues; and (4) AG was not a credible witness.
We must reject Mr. Gomez’s claims that the hospital records would have vitiated
probable cause. Although medical professionals failed to explicitly diagnose Ms. Gomez
or Armendariz with poisoning and Ms. Gomez and Armendariz were ultimately
diagnosed with other illnesses, this information does not negate probable cause. The
medical professionals had no reason to suspect that either woman had been poisoned.
And they never definitively ruled out carbofuran poisoning as the cause of the women’s
symptoms. Ms. Gomez and Armendariz did suffer from many of the symptoms of
carbofuran poisoning as evinced in their medical records, and they reported even more
symptoms of carbofuran poisoning to Martin. He reasonably relied on these reports in
his probable cause determination. It is true that the alleged victims did not suffer from all
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of the possible symptoms of carbofuran poisoning, and suffered from symptoms that
were not indicative of such poisoning. But as the Supreme Court held long ago, probable
cause determination “is a practical, nontechnical conception.” Brinegar v. United States,
338 U.S. 160, 176 (1949). Probable cause is not vitiated simply because the medical
evidence is inconclusive. Further, as the district court concluded, the affidavit was not
misleading as the judge reviewing the affidavit could simply compare the list of
carbofuran poisoning symptoms to those suffered by the alleged victims.
Mr. Gomez argues that several of Ms. Gomez’s actions reflect a broader pattern of
indifference to his prosecution. Quintero described as a “problem” the fact that Ms.
Gomez “does not stay in contact.” She also noted that, during Ms. Gomez’s original
interaction with the Sheriff’s office, after being asked to wait, Ms. Gomez left in order to
go to a manicure appointment. And Ms. Gomez also did not report the alleged
poisonings for several months. Nevertheless, we cannot agree with Mr. Gomez that if
these facts had been included in Martin’s affidavit, they would have materially affected
the probable cause analysis. “[T]he skepticism and careful scrutiny usually found in
cases involving informants . . . is appropriately relaxed if the informant is an identified
victim or ordinary citizen witness.” Easton v. City of Boulder, 776 F.2d 1441, 1449
(10th Cir. 1985). Martin has offered reasonable explanations for his continued belief in
Ms. Gomez’s credibility. Moreover, Ms. Gomez’s statements were independently
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corroborated by the medical records, the carbofuran testing, and AG’s statements.2
Mr. Gomez also argues that the affidavit’s omission of evidence chain issues as to
the items that tested positive for carbofuran vitiates probable cause. Specifically, the
affidavit does not include the facts that Ms. Gomez had access to carbofuran or that the
laboratories were unable to determine when the carbofuran was placed in the wine and
vitamins. Although these issues reduced the probative value of the evidence, a probable
cause determination is less demanding than “standards such as proof beyond a reasonable
doubt or by a preponderance of the evidence.” Harris, 133 S. Ct. at 1055. The presence
of a deadly pesticide in items intended for human consumption was sufficient for Martin
to reasonably conclude that there was “a substantial probability that a crime has been
committed.” Wolford, 78 F.3d at 489.
Finally, for the first time on appeal, Mr. Gomez argues that Martin’s affidavit
omitted AG’s statements that would have undermined his testimony if included. Because
Mr. Gomez failed to present this argument to the district court, it is forfeited. United
States v. Abdenbi, 361 F.3d 1282, 1289 (10th Cir. 2004).3
2 Nor would a lack of independent corroboration have made Martin’s probable
cause determination per se unreasonable. See United States v. Patane, 304 F.3d 1013,
1016 (10th Cir. 2002) (rejecting “any suggestion that victims of domestic violence are
unreliable witnesses whose testimony cannot establish probable cause absent independent
corroboration”), rev’d on other grounds, 542 U.S. 630 (2004).
3 We note, however, that probable cause would still exist even if the allegedly
material omissions had been included in the affidavit. AG’s more implausible statements
Continued . . .
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None of the alleged omissions, even considered in aggregate, would have vitiated
probable cause if they had been included in Martin’s affidavit. See United States v.
Jurado-Vallejo, 380 F.3d 1235, 1239 (10th Cir. 2004) (noting that totality of
circumstances test does not require conclusive proof of any factor to establish probable
cause). Because Mr. Gomez fails to show that Martin violated his constitutional rights,
there is no need for us to proceed further on the qualified immunity question. See
Saucier v. Katz, 533 U.S. 194, 201 (2001) (observing that if the plaintiff fails to show
that a constitutional right “would have been violated were the allegations established,
there is no necessity for further inquiries concerning qualified immunity”).
III
We review the district court denial of Mr. Gomez’s Rule 56(d) motion for abuse of
discretion. World Publ’g Co. v. U.S. Dep’t of Justice, 672 F.3d 825, 832 (10th Cir.
2012). Under Rule 56(d), nonmoving parties who need additional discovery to respond
to a motion for summary judgment may present an affidavit identifying “the probable
facts not available and what steps have been taken to obtain these facts.” Trask v.
Franco, 446 F.3d 1036, 1042 (10th Cir. 2006). This burden is somewhat elevated in
qualified immunity cases because officials have “a right, not merely to avoid standing
trial, but also to avoid the burdens of such pretrial matters as discovery.” Medina v.
do not undermine the “solid core” of his account about the alleged poisoning. See
Easton, 776 F.2d at 1450.
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Cram, 252 F.3d 1124, 1127 (10th Cir. 2001) (quotations omitted). Although an assertion
of qualified immunity heightens the Rule 56(d) burden, “limited discovery may
sometimes be necessary before the district court can resolve a motion for summary
judgment based on qualified immunity.” Crawford-El v. Britton, 523 U.S. 574, 593 n.14
(1998).
Mr. Gomez sought to depose Martin to learn more about the medical and scientific
evidence available to him and his assessment of the alleged victims’ credibility. The
district court denied the motion, concluding that there had already been significant
discovery on both issues, including discovery of Martin’s entire investigative file,
rendering further discovery unnecessary and cumulative. This was not an abuse of
discretion. On appeal, Mr. Gomez claims that the additional discovery might have helped
prove that Martin knew Ms. Gomez also had access to carbofuran, that carbofuran would
have caused more acute symptoms, and that Martin lacked expertise in poisoning and
failed to consult an expert. We are skeptical that these facts, even if established, would
vitiate probable cause. And in any event, Mr. Gomez fails to articulate why such facts
would have been discovered by deposing Martin and why he was not able to ask these
questions in the allowed interrogatories and requests for production.

Outcome: For the foregoing reasons, the judgment of the district court is AFFIRMED.

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Defendant's Experts:

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