Date: 08-10-2017

Case Style:

Case Number: 16-2187

Judge: Scott M. Matheson

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

Plaintiff's Attorney: Derek Garcia and Rachel Al-Yasi

Defendant's Attorney: Robert Doughty and William Wayne Wirkus for Tony Fetty

James Lyle for City of Bayard, e taL.

Jonlyn Martinez for Board of County Commissioners of Grant County, et al.

Description: Plaintiff Michael “Miguel” Gutierrez brought seven claims under federal and
state law against various individuals and entities in connection with his brother’s
death, which officials deemed a suicide. The district court dismissed the claims in a
series of orders and ultimately entered judgment in favor of defendants. We exercise
jurisdiction under 28 U.S.C. § 1291 and affirm.
I. Background
The following account is based on the allegations in the complaint, which we
accept as true and view in the light most favorable to Plaintiff for the purpose of this
appeal. See Casanova v. Ulibarri, 595 F.3d 1120, 1124 (10th Cir. 2010). Plaintiff’s
brother, Max Joe Gutierrez (Decedent), was married to Defendant Jamie Gutierrez
(Wife), who was having an extramarital affair with Defendant Sam Rodriguez, a
Bayard police officer. On the night of June 19, 2010, Decedent and Wife were
having a domestic dispute in their home. Defendant Rodriguez and another officer,
Defendant Willy Kerin, were located in another room in the home when a single
shotgun blast to the head killed Decedent. Wife was the only eyewitness. She
initially suggested the shooting was an accident but later said it was a suicide.
Defendant Rodriguez was initially in charge of the investigation, and
according to the complaint, he “shielded [Wife] from any scrutiny or unbiased and
un-conflicted, or otherwise critical and adverse questioning in the hours and days
after the incident.” Aplt. App. at 14, ¶ 20. About an hour after the shooting,
Defendants Raymond Tavison and Michael Leftault, deputies from Defendant Grant
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County Sheriff’s Department, arrived, and Defendant Rodriguez turned the
investigation over to them.
At some point on the night of the incident, Plaintiff also arrived on the scene.
He “confronted Defendant officers outside his brother’s home on the night of the
incident, accusing them of murder and otherwise suspecting their complicity in the
death of his brother.” Id. at 21, ¶ 76. Defendant Leftault arrested Plaintiff for
disorderly conduct, but that charge was ultimately dismissed.
Later that night, family members were allowed into the home, where they
found cell phones belonging to Wife and Decedent. The search history on Wife’s
phone revealed Google searches such as “how+to+cover+up+a+suicde,”
“how+to+clean+up+a+crime+sceen,”
“maximum+sent+for+second+degree+murder+in+NM,” and
“how+to+poisen+with+out+a+trace.” Id. at 17, ¶ 48.
II. Complaint
Plaintiff filed the complaint on June 19, 2014, four years after the incident.
The primary allegation is that the investigation into Decedent’s death was inadequate
due to Wife’s romantic involvement with Defendant Rodriguez, resulting in damages
to Plaintiff, Decedent, and Decedent’s estate.
Claim 1 is for “Denial of Access to Courts and Denial of Fundamental Due
Process Through Spoliation and Manipulation of Evidence.” Id. at 18. In this claim,
Plaintiff alleges that defendants failed “to conduct a reasonable, impartial, and
thorough investigation” and engaged in “intentional manipulation of the scene.” Id.
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at 19, ¶¶ 60, 62. As a result, Plaintiff was denied “adequate answers to important
questions surrounding the true factual cause of [Decedent’s] death,” and he is entitled
to compensatory and punitive damages. Id. at 20, ¶¶ 63, 64.
Claim 2 is for “Conspiracy to Commit Homicide” and “Excessive Lethal
Force.” Id. at 20. Here, Plaintiff alleges that Wife and Defendant Rodriguez
conspired to commit homicide and “denied the Plaintiffs their rights to be free from
excessive lethal force” by planning to kill and killing Decedent. Id. at 21, ¶ 72.
Claim 3 is for “Retaliation for Protesting Unlawful Police Actions.” Id. at 21.
Bringing this claim on his own behalf, Plaintiff alleges that his arrest and prosecution
for disorderly conduct violated his First Amendment rights.
Claims 4 through 6 are state-law claims for battery and wrongful death.
Plaintiff alleges that Wife intentionally shot Decedent or caused the gun to fire by
kicking it. He alleges that Defendant Rodriguez “concealed knowledge and
awareness of [Wife’s] intention to and actual planning and staging of a domestic
incident with her husband, and commission of a homicide, proximately causing the
death of [Decedent].” Id. at 22, ¶ 86. He alleges in the alternative that “through
spoliation of evidence” and by concealing the affair between Wife and Defendant
Rodriguez, “law enforcement Defendants proximately caused the suicide.” Id. at 23,
¶ 92.
Claim 7 is for negligent hiring, retention, and training. Plaintiff seeks to hold
the entity defendants liable for “negligently hiring, retaining, supervising, and
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training Defendant . . . Rodriguez, and all other individual law enforcement officers
involved in the incident and subsequent investigation.” Id. at 25, ¶ 104.
III. Procedural History
Defendants Grant County, Grant County Sheriff’s Department, Tavison, and
Leftault (collectively, “County Defendants”) filed a motion to dismiss, which the
district court granted. With respect to Claim 1, the court determined that the
individual County Defendants were entitled to qualified immunity because the
allegations did not establish Plaintiff’s “right to court access was sufficiently clear
such that reasonable officers in Tavison and Leftault’s position would have
understood that they were violating Plaintiff’s rights by the manner in which they
investigated Decedent’s death.” Id. at 153. And the court determined the entity
County Defendants could not be held liable because Plaintiff had not identified any
policies or customs that caused the allegedly inadequate investigation. With respect
to Claims 2, 4, 5, 6, and 7, the court determined that the allegations in the complaint
did not implicate County Defendants, in large part because “County employees
became involved only after the shooting occurred,” id. at 158. Finally, the court
concluded that Claim 3 was barred by the three-year statute of limitations for
personal injury actions. See N.M. Stat. Ann. § 37-1-8.
Though the complaint purports to be brought by Plaintiff both individually and
as personal representative for Decedent’s estate, Plaintiff’s application in state court
to be appointed personal representative was denied, causing the district court to
dismiss the federal claims brought on behalf of the estate for lack of a real party in
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interest. The court denied Plaintiff’s motion to be appointed personal representative
of Decedent and dismissed the state-law claim for wrongful death, stating that
Plaintiff had “not shown that he and his counsel are capable of adequately
representing the statutory beneficiaries,” Aplt. App. at 331. The court noted that
Plaintiff knew early on about the alleged affair and the Google searches, yet he did
not file his complaint until four years after Decedent’s death, thereby “needlessly
building a fatal statute of limitations problem into the wrongful death claim.” Id. at
330. It also faulted Plaintiff for failing “to timely seek appointment as the personal
representative of [Decedent’s] estate,” id. at 331 n.2, and for filing a complaint which
shows that he “does not understand basic principles of municipal liability,” id. at 155.
Defendants Rodriguez, Kerin, and the City of Bayard (collectively, “Bayard
Defendants”) filed a motion to dismiss that they resubmitted as a motion for
summary judgment. The district court sua sponte issued an order to show cause why
Plaintiff’s remaining claims should not be dismissed, explaining that each one
suffered from at least one fatal flaw. Pertinent to this appeal, the court stated with
respect to Claim 1 that the individual Bayard Defendants were entitled to qualified
immunity and that there were no allegations plausibly suggesting that the City of
Bayard acted with deliberate indifference. It stated with respect to Claim 2 that the
allegations were insufficient to support a claim under 42 U.S.C. §§ 1985 and 1986.
And it stated that Claim 3 was time-barred. Plaintiff filed a response, which the court
found unpersuasive, and it then dismissed the claims against the Bayard Defendants.
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IV. Appeal
Plaintiff makes four arguments in the opening brief, none of which address the
district court’s reasons for dismissing his claims. “Issues not raised in the opening
brief are deemed abandoned or waived.” Riser v. QEP Energy, 776 F.3d 1191, 1201
(10th Cir. 2015) (alteration and internal quotation marks omitted). As a result, we
discern no basis for reversing the district court’s judgment.
First, Plaintiff argues the district court improperly applied the statute of
limitations to his denial-of-access-to-court claims made in Claim 1. But the district
court dismissed Claim 1 based on qualified immunity and failure to adequately plead
a plausible claim for relief—not because it was time-barred.
Second, he argues the district court improperly denied his motion to be
appointed personal representative of Decedent for the wrongful-death claim. But
Plaintiff does not contest the court’s determination that he had “not shown that he
and his counsel are capable of adequately representing the statutory beneficiaries,”
Aplt. App. at 331, which is why the motion was denied.
Third, Plaintiff argues the district court should have applied a six-year statute
of limitations to his §§ 1985 and 1986 claims brought in Claim 2. But the district
court dismissed Claim 2 for failure to state a claim—not because it was time-barred.
Fourth, Plaintiff argues the district court should have applied equitable tolling
“given the unique nature of the underlying claims and facts in dispute in the instant
case.” Opening Br. at 10. But only Claim 3—premised on Plaintiff’s arrest and
prosecution for disorderly conduct—was dismissed as time-barred, and Plaintiff
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makes no argument as to why equitable tolling should apply based on the factual
allegations on which this claim rests. In response to County Defendants’ motion to
dismiss, Plaintiff argued in the district court that equitable tolling should apply based
on the doctrine of fraudulent concealment. But “[a] plaintiff alleging fraudulent
concealment carries the burden to establish all facts necessary to prove it.” Estate of
Brice v. Toyota Motor Corp., 2016-NMSC-018, ¶ 10, 373 P.3d 977. As the district
court noted, the allegations do not demonstrate that there was any concealment with
respect to Claim 3, and Plaintiff knew about the allegedly wrongful retaliatory act
when he was charged with disorderly conduct in the magistrate court in June 2010.
Plaintiff has failed to show he is entitled to equitable tolling on this claim.

Outcome: The judgment is affirmed.

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Defendant's Experts:

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