Garcia v. Escalante ( 2014 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT February 6, 2014
Elisabeth A. Shumaker
Clerk of Court
DAVID GARCIA,
Plaintiff-Appellant,
v. No. 13-2093
(D.C. No. 1:12-CV-00265-LFG-KBM)
BERNALILLO COUNTY SERGEANT (D. N.M.)
ESCALANTE; BERNALILLO
COUNTY SHERIFF’S OFFICER,
R. GARCIA,
Defendants-Appellees.
ORDER AND JUDGMENT*
Before HARTZ, McKAY, and BACHARACH, Circuit Judges.
Plaintiff David Garcia appeals the district court’s order granting summary
judgment to Bernalillo County Sheriff’s Officer R. Garcia and his supervisor,
Sergeant Escalante, on Plaintiff’s civil-rights claims under 42 U.S.C. § 1983.
Plaintiff asserted claims that his Fourth Amendment rights were violated by an
*
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. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
unreasonable arrest and by his prosecution without probable cause, and that his First
Amendment rights were violated when he was arrested in retaliation for protected
speech. The magistrate judge, sitting by consent of the parties, see 28 U.S.C.
§ 636(c), granted Defendants’ motion for summary judgment, ruling that, based
on the undisputed facts, Defendants were entitled to qualified immunity on all claims
because there had been no constitutional violation. We have jurisdiction under
28 U.S.C. § 1291. We hold that there is a genuine dispute of material fact regarding
whether Defendants had probable cause to arrest and charge Plaintiff, and therefore
reverse on the Fourth Amendment claims. We affirm on the First Amendment
claims, however, because Plaintiff presented no evidence of a retaliatory motive.
BACKGROUND
In March 2009, Plaintiff entered a New Mexico state courthouse with a metal
vial attached to his key chain. Officer Garcia, working security, opened the vial and
found a number of pills, including hydrocodone pills. The parties do not dispute that
hydrocodone is a controlled substance, or that Plaintiff’s mother, who was with
Plaintiff, left the courthouse with another officer, Officer McCauley, and returned
with prescription records. The parties do dispute, however, whether any of the
prescriptions was for hydrocodone. Officer Garcia arrested Plaintiff for possessing a
controlled substance without a valid prescription, see N.M. Stat. Ann. § 30-31-23(A)
(“It is unlawful for a person intentionally to possess a controlled substance unless the
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substance was obtained pursuant to a valid prescription . . . .”), and later filed a
criminal complaint. The charge was eventually dismissed.
Plaintiff’s complaint alleged that Officer Garcia lacked probable cause to
arrest him because at the time of his arrest he and his mother provided Officer Garcia
with a valid prescription for the hydrocodone. Defendants moved for summary
judgment based on Officer Garcia’s affidavit stating that Plaintiff did not have a valid
prescription for hydrocodone with him at the time of his arrest. In response, Plaintiff
relied upon his deposition testimony and documents showing that he had filled
hydrocodone prescriptions on three occasions before his arrest (in October 2007,
January 2008, and February 2008) and twice after his arrest (in April and September
2009). We quote the relevant deposition testimony. When asked if he had provided
the January 2008 prescription to Officer Garcia, Plaintiff answered:
This exact label? Or – I have a label that I did provide that looks very
similar. I did not provide a bottle. I did provide a label, a label that had
this exact same information on it. Maybe not the exact date, but, you
know, the date proves – actually, it must have been – well, no, it wasn’t
from this date. And it was from this date; and then even after this
incident, I was still prescribed hydrocodone.
R. Doc. 41-5 at 5. Later in the deposition he was shown Exhibit M (which consisted
of six prescriptions, none for hydrocodone, that had been tagged into evidence at his
arrest) and was asked about the absence of a hydrocodone prescription:
Q. . . . After you got arrested, your mom left the courthouse to go
obtain a copy of your prescriptions. Is that correct?
A. Followed by Officer McCauley, correct.
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Q. Okay. And she provided, then, some documentation to law
enforcement about your prescriptions, the pills that were contained in
the vial.
A. She brought back – yes, she did, in fact, bring back this information,
what you’re presenting in Exhibit M.
Q. Okay.
A. But it’s not complete.
Q. You’re saying she brought back an additional prescription that’s not
contained in Exhibit M?
A. Let me – Let me go ahead and go through them. My attorney did.
Okay. Correct. Hydrocodone was provided.
Q. So you’re saying a prescription for hydrocodone was provided.
A. That is correct.
***
A. . . . Well, I’m telling you that hydrocodone was, in fact, provided.
Q. You’re saying a prescription for hydrocodone was provided.
A. Correct.
R. Doc. 41-5 at 6 (emphasis added).
The magistrate judge ruled that Plaintiff failed to submit any admissible
evidence that he or his mother provided a valid prescription for hydrocodone to
Officer Garcia. He concluded that it was “undisputed” that Officer Garcia
“discovered that [Plaintiff] possessed a controlled substance without a valid
prescription for the medication,” and therefore he had probable cause to arrest
Plaintiff. R. Doc. 63 at 15. He also ruled that Plaintiff had presented no evidence
that his arrest was in retaliation for his exercise of First Amendment rights.
Accordingly, the magistrate judge granted summary judgment to Defendants.
Plaintiff filed a Motion to Alter or Amend a Judgment under Fed. R. Civ. P. 59(e),
but it was denied.
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ANALYSIS
“Qualified immunity shields government officials from liability for civil
damages insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.” See Romero
v. Story, 672 F.3d 880, 882 (10th Cir. 2012) (internal quotation marks omitted).
“When a [§ 1983] defendant asserts qualified immunity at summary judgment, the
burden shifts to the plaintiff to show that: (1) the defendant violated a constitutional
right and (2) the constitutional right was clearly established.” Courtney v. Okla.
ex. rel, Dep’t of Pub. Safety, 722 F.3d 1216, 1222 (10th Cir. 2013) (internal quotation
marks omitted). The magistrate judge based his summary judgment on Plaintiff’s
failure to make the first showing, so he did not need to address whether the
applicable law was clearly established. We review the magistrate judge’s grant of
summary judgment de novo. See id.
“[A]n officer may make a warrantless arrest if there is probable cause to
believe a criminal offense has been or is being committed.” Id. at 1225. “Whether
probable cause exists depends upon the reasonable conclusion to be drawn from the
facts known to the arresting officer at the time of the arrest.” Id. (internal quotation
marks omitted). On appeal Plaintiff contends that he presented evidence sufficient to
create a genuine issue of material fact on whether the prescriptions provided to
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Officer Garcia included one for hydrocodone, and thus whether there was probable
cause to arrest him.1
It is unclear why the magistrate judge decided that Plaintiff had presented no
admissible evidence that his mother had provided the officers a hydrocodone
prescription. The magistrate judge wrote: “There is no affidavit statement from
Plaintiff’s motion in support of [his] assertions, and a party may not rely on hearsay.”
R. Doc. 63 at 8. But Plaintiff’s deposition testimony was not hearsay. It was based
on his personal knowledge, just as much as Officer Garcia’s contrary affidavit was
based on his personal knowledge of what Plaintiff’s mother showed the officers.
There is no reason to believe that Plaintiff could not see the documents provided by
1
In contravention of Fed. R. App. P. 30(a)(1)(B) and (C), and 10th Cir. R.
30.1(A)(1) and 10.3(D)(2), Plaintiff’s Appendix fails to include any of the orders
being appealed or many of the briefs filed in the district court related to the issues he
raises on appeal, including his response to the motion for summary judgment,
Defendants’ reply thereto, Defendants’ motion for bill of costs, or Plaintiff’s
response thereto. Further, in contravention of Fed. R. App. P. 30(d), Plaintiff’s
Appendix failed to present the record in the Appendix chronologically. As examples,
the transcript of Plaintiff’s deposition found in the Record at Doc. 41-5, was placed
in the Appendix between R. Docs. 37 and 38, see Aplt. App. at 95-106, and R. Doc.
41 was placed in the Appendix before Doc. 39, see Aplt. App. at 114, 134. Finally,
the end of the Appendix is not numbered consecutively. See Aplt. App. at 224-38.
Counsel for Defendants supplemented the record, and we accessed other
missing pleadings through the district court’s docket. But we admonish counsel for
Plaintiff that “[i]t is not this court’s burden to hunt down the pertinent materials.
Rather, it is Plaintiff’s responsibility as the appellant to provide us with a proper
record on appeal.” Rios v. Bigler, 67 F.3d 1543, 1553 (10th Cir. 1995). “Our
procedural rules should not be considered empty gestures, as we have repeatedly
enforced them.” Burnett v. Sw. Bell Tel., L.P., 555 F.3d 906, 910 (10th Cir. 2009)
(brackets and internal quotation marks omitted).
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his mother to the officers. A sworn statement from his mother was not required. At
summary judgment, “evidence of the non-movant is to be believed, and all justifiable
inferences are to be drawn in his favor.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986). Corroboration is unnecessary. Further, “if ‘reasonable persons
could differ as to whether the witness had an adequate opportunity to observe, the
witness’s testimony is admissible.” Strong v. Valdez Fine Foods, 724 F.3d 1042,
1045 (9th Cir. 2013) (quoting 1 McCormick on Evidence § 10 (Kenneth S. Broun,
ed., 7th ed. rev. 2013)).
Defendants argue that even if Plaintiff’s mother had given Officer Garcia the
January or February 2008 prescriptions for hydrocodone, they would not have been
valid prescriptions. Defendants rely on 21 U.S.C. § 829(b), which states that
prescriptions for a controlled drug such as hydrocodone “may not be filled or refilled
more than six months after the date thereof.” But Plaintiff was not trying to fill a
prescription. He was simply showing that his drugs had been obtained with a
prescription. The statute cited by Defendants does not require the patient to consume
all the medication within six months of the prescription date. In our view, Plaintiff
submitted sufficient evidence to support his claim that his arrest was without
probable cause.
On the other hand, the magistrate judge correctly ruled that Plaintiff failed to
produce evidence that his arrest was in retaliation for exercising his First Amendment
rights. He asserts in his pleadings that the officers were retaliating against him
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because he had said that he had come to the courthouse to file a lawsuit against other
law-enforcement officers. But the deposition testimony on which he relies says only
that he told the officers that he had come to file a lawsuit — with no mention of
whom he was suing.
Plaintiff’s motion to proceed in forma pauperis is granted. Defendants’
motion for sanctions and Plaintiff’s motion to expand and modify the record are
denied. We affirm the judgment below on Plaintiff’s First Amendment claims but
reverse and remand for further proceedings on his Fourth Amendment claims. The
district court may reconsider whether to grant further discovery.
Entered for the Court
Harris L Hartz
Circuit Judge
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