Hodge v. Bartram

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

KARINA HODGE,

Plaintiff,

vs. No. 1:20-cv-01212-WJ-JHR

JEFFREY BARTRAM, MANUEL

GONZALES III in his individual capacity,

BOARD OF COUNTY COMMISSIONERS

FOR THE COUNTY OF BERNALILLO,

Defendants.

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND

DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

ON THE BASIS OF QUALIFIED IMMUNITY

THIS MATTER comes before the Court upon Defendants Jeffrey Bartram, Manuel

Gonzales III, and the Board of County Commissioners for the County of Bernalillo’s (collectively,

the “Defendants”) Motion for Summary Judgment on the Basis of Qualified Immunity. Plaintiff

Karina Hodge (“Ms. Hodge”) responded, and this matter is now ripe for ruling. See Doc. 36

(Response); Doc. 46 (Reply); and Doc. 48 (Notice of Briefing Complete). The Court finds that

the Motion is well-taken in its request for dismissal of Claims I (unlawful seizure), III (First

Amendment), IV (false/arrest imprisonment), V (First Amendment and Fourth Amendment

unlawful seizure), and VI (false arrest/imprisonment) and, therefore, it is GRANTED IN PART.

The Court finds that the Motion is not well-taken in its request for dismissal of Claims II (excessive

force), IV (battery), V (Fourth Amendment excessive force), and VI (battery) and, therefore, it is

DENIED IN PART.

BACKGROUND

I. Undisputed Material Facts1

Just after midnight on October 20, 2018, Ms. Hodge left a restaurant located in a shopping

center at Spain Road and Eubank Boulevard in Albuquerque, New Mexico. DMF ¶ 6. As she was

leaving the shopping center’s parking lot, Ms. Hodge turned northbound on Eubank. PSF ¶ 79P.

The Parties dispute whether Ms. Hodge failed to stop at a posted stop sign before making her turn,

but it is undisputed that Bernalillo County Sheriff’s Office (“BCSO”) Deputy Jeffrey Bartram

(“Deputy Bartram”) began following Ms. Hodge as she continued driving north on Eubank. DMF

¶ 7, PSF ¶ 79Q. That night, Deputy Bartram was working as patrol for the Field Services Division

of BCSO and was assigned to the DUI unit. DMF ¶ 1. Deputy Bartram was wearing his uniform

which consisted of green pants and a tan shirt with a badge and two shoulder patches indicating

his status as a BCSO officer. Id. ¶¶ 2–3. Deputy Bartram was driving a black Ford Explorer with

decals on either side reading “Sheriff’s Department.” Id. ¶ 4.2 The vehicle was also equipped with

red and blue emergency lights integrated into the windshield and front bumper. DMF ¶ 5, PSF ¶

5a.

As Deputy Bartram followed Ms. Hodge, she allegedly crossed a yellow line on the left

side of the road. Whether any traffic infractions occurred that night is vigorously disputed. The

parties do agree that, at this point, Deputy Bartram engaged his emergency lights and initiated a

traffic stop. DMF ¶ 9. Ms. Hodge pulled over into a parking lot, and Deputy Bartram approached

her vehicle on the passenger side. Id. 10–11, PSF ¶ 79R. Deputy Bartram stated, “Hello, how are

1 These facts are taken from the Parties’ briefs and are supported by evidence in the record as stated by the

Parties. The Court cites to the Defendants’ Undisputed Material Facts (“DMF”) and Plaintiff’s Statement of Material

Facts (“PSF”). References to the supporting exhibits are omitted in this section.

2 The type of decals affixed to Deputy Bartram’s vehicle are known as “ghost graphics.” PSF ¶ 4a. These

decals are similar to holographic images and are most visible during the day. Id. At night, the decals are visible only

when light is shined on them. Id.

you? Do you have a driver’s license on you?” DMF ¶ 12. Ms. Hodge answered by stating, “Yes,

and are you asking or demanding for it?” Id. ¶ 14. Deputy Bartram responded, “Yes, may I see it

please?” Id. ¶ 16. Ms. Hodge stated, “You are? You do know it’s illegal to demand something?

Why did you stop me?” Id. ¶ 17. Deputy Bartram asked again, “May I see your driver’s license

please?” Id. ¶ 18. Ms. Hodge asked again, “Why did you stop me?” Id. ¶ 19. Deputy Bartram then

stated to Ms. Hodge, “When you pulled onto Eubank, you didn’t come to a complete stop and then

as you were driving on Eubank. . . you failed to maintain your lane of traffic.” Id. ¶ 20. Plaintiff

responded by stating “You’re lying.” Id. ¶ 21. Deputy Bartram again asked for Plaintiff’s driver’s

license, and instead of complying with his request, she stated “No you can’t, and I’m calling 911.”

Id. ¶¶ 24–23. Defendants do not contest Ms. Hodge’s assertion that she felt uncomfortable being

alone with Deputy Bartram. PSF ¶ 23b.

At this point, Deputy Bartram called for backup. DMF ¶ 24. He then walked around to the

driver’s side of Ms. Hodge’s vehicle and attempted to ask her several questions. Id. ¶25–26. Ms.

Hodge did not answer Deputy Bartram’s questions, but claims that this was due to fact that she

was calling 911 to report Deputy Bartram’s behavior to a dispatcher. Deputy Bartram asked Ms.

Hodge twice more to provide her driver’s license and then stated, “I am demanding that you give

me your ID.” Id. ¶¶ 27–28. Ms. Hodge responded, “That is an unlawful order.” Id. ¶ 29. Deputy

Bartram retorted, “No, it’s a lawful order ma’am” and explained to Ms. Hodge, “My name is

Deputy Bartram, I work with the Bernalillo County Sheriff’s Office.” Id. ¶¶ 30–31. Ms. Hodge

does not dispute the Deputy Bartram made these statements, but she argues that she was unable to

hear them because she was distracted by her ongoing conversation with the 911 dispatcher. Deputy

Bartram once again requested Ms. Hodge’s driver’s license, but she ignored this request and

continued to speak into her cell phone. Id. ¶¶ 32–33.

Deputy Bartram decided to remove Ms. Hodge from her vehicle because he was concerned

that she was impaired by alcohol.3 Id. ¶¶ 36–37. Deputy Bartram stated, “This is the Bernalillo

County Sheriff’s Department, ma’am” and again asked to see Ms. Hodge’s driver’s license. Id. ¶

39. Deputy Bartram then opened Ms. Hodge’s door as she continued to speak with the 911

dispatcher on her cell phone, telling the dispatcher that an officer was being hostile and had just

opened her car door. Id. ¶¶ 40–41, PSF ¶¶ 41a–41b. Deputy Bartram instructed Ms. Hodge to “step

out of the vehicle.” DMF ¶ 42. Ms. Hodge made no movement to step out of the vehicle and

remained on her cell phone. Id. ¶ 43. Deputy Bartram again asked Ms. Hodge, still on her cell

phone, to step out of the vehicle and again stated he worked for BCSO. Id. ¶ 44. Deputy Bartram

then stated, “I am demanding you give me your driver’s license. . . this is a lawful order.” Id. ¶¶

45–46. Deputy Bartram gave Ms. Hodge six additional commands to exit her vehicle. Id. ¶ 47. He

then attempted to look in the vehicle to determine whether there were any weapons near Ms. Hodge

and to ascertain where her keys were located. Id. ¶ 49. Deputy Bartram leaned into the vehicle and

grabbed Ms. Hodge’s wrists. Id. ¶¶ 50–51. In response to this, Ms. Hodge stated, “You better stop

it buddy.” Id. ¶ 52. She immediately leaned away from Deputy Bartram and pulled her arms away.

Id. ¶ 53. Deputy Bartram again asked Ms. Hodge to step out of the vehicle. Id. ¶ 54. Ms. Hodge

has testified that she was afraid to leave her vehicle. PSF ¶ 54a. Deputy Bartram again informed

Ms. Hodge that he was giving her a lawful order. DMF ¶ 55. Ms. Hodge responded by stating to

Deputy Bartram that his actions were illegal. PSF ¶ 55a.

Deputy Bartram holstered his flashlight and attempted to remove Ms. Hodge from the

vehicle. DMF ¶ 56. Ms. Hodge pulled away from Deputy Bartram, who continued to ask Ms.

3 It is undisputed that, just prior to this encounter, Ms. Hodge had been at the Barley Room where she consumed

approximately one and a half servings of beer over the course of several hours. PSF ¶ 79D–79N. However, other

details of the traffic stop, specifically Ms. Hodge slurring her words or having bloodshot eyes, are highly disputed.

Hodge to step out of the vehicle. Id. ¶ 57–58. Ms. Hodge restrained herself to prevent Deputy

Bartram from taking her out of the vehicle. Id. ¶ 59. Deputy Bartram was able to remove Ms.

Hodge from the vehicle and she ultimately ended up on the ground. Id. ¶ 60 Once on the ground,

Ms. Hodge curled up with her knees towards her chest and she kept “squirming” around to get into

a different position while on the ground. Id. ¶ 61. Ms. Hodge was still attempting to communicate

with the 911 dispatcher at this point. PSF ¶ 61b.

Deputy Bartram was able to gain control of Ms. Hodge’s left hand, but her right hand was

underneath her body. DMF ¶ 64. While Deputy Bartram was attempting to gain control of Ms.

Hodge’s right hand, Deputy Bartram spun Ms. Hodge around on her side and she landed with her

right arm under her body. Id. ¶ 65–66. Deputy Bartram sat on top of Ms. Hodge to push her legs

straight so he could handcuff her. Id. ¶ 67. He used a pain compliance hold to push Ms. Hodge’s

hands together to place her in handcuffs. Id. ¶ 69. Ms. Hodge sustained injury and lacerations to

her right knee and elbow. PSF ¶ 79AA. She also sustained injuries to her neck and shoulders. Id.

¶ 79BB.

At the time of the traffic stop, Ms. Hodge was 59 years old and 5’1” in height, weighing

approximately 120 pounds; in other words, her stature and weight was significantly less than the

stature and weight of Deputy Bartram. Id. ¶ 79A–79C. One minute and twenty-one seconds passed

between when Deputy Bartram made his first contact with Ms. Hodge and when he first asked her

to step out of the vehicle. Then fifty-six seconds passed between when Deputy Bartram first asked

Ms. Hodge to step out of the vehicle and when he began to pull Ms. Hodge out of the vehicle.

Thus, the entire encounter, from the first contact to Deputy Bartram placing Ms. Hodge in

handcuffs, lasted three minutes and forty-six seconds. Id. ¶ 79DD–79FF.

As a result of this encounter, Ms. Hodge was charged with: aggravated DUI; failure to

maintain lane; failure to stop from a private drive; concealing ID; and resisting, evading, and

obstructing an officer. DMF ¶ 71. During the proceedings in her criminal case, Ms. Hodge filed a

Motion to Suppress for Lack of Reasonable Suspicion and Probable Cause, which argued that

Deputy Bartram did not have reasonable suspicion to stop her vehicle and did not have probable

cause to arrest her. Id. ¶ 72–74; see also Doc. 36 at 19 & Doc. 46 at 9. On May 20, 2019, the

Bernalillo County Metropolitan Court held a hearing on Ms. Hodge’s motion to suppress. Id. ¶ 75.

Ms. Hodge was represented by counsel. Id. ¶ 76. At the conclusion of the hearing, the Metropolitan

Court found there was both reasonable suspicion to support the traffic stop as well as probable

cause to support Ms. Hodge’s arrest. Id. ¶ 77. The case proceeded to trial, where a jury acquitted

Ms. Hodges of the traffic and DUI charges. PSF ¶ 78a. The jury entered a guilty verdict on the

concealing identity charge and could not reach a verdict on the resisting charge. Id. ¶ 78b. After

trial, serious errors in the jury instructions were discovered, and the court granted Ms. Hodge’s

Motion for a New Trial. Id. 78c. On June 9, 2020, the District Attorney’s Office dismissed the case

and, consequently, Ms. Hodge has no convictions from this criminal case. Id. ¶ 78d. Moreover,

due to the favorable turn of events, Ms. Hodge did not have an opportunity to appeal her case,

which likely would have involved review of the adverse decision on her reasonable suspicion and

probable cause motion. Id. ¶ 78e.4

II. Procedural Background

Ms. Hodge filed the subject lawsuit in state court on October 20, 2020, with her Complaint

for Damages for Injuries, Civil Rights Violations, and New Mexico Tort Claims Violations. Doc.

1-1. In Count I, Ms. Hodge alleges Deputy Bartram illegally seized her in violation of her Fourth

4 Defendants assert that PSF ¶ 78e is a legal conclusion. Doc. 46 at 12.

Amendment rights. Id. ¶¶ 56–62. In Count II, Ms. Hodge alleges Deputy Bartram used excessive

force in violation of her Fourth Amendment rights. Id. ¶¶ 63–69. In Count III, Ms. Hodge alleges

Deputy Bartram’s action against her were motivated by her exercise of her right to “petition the

government for redress of her grievances” in violation of her First Amendment rights. Id. ¶¶ 70–

76. Count IV states a claim for negligent supervision against Sheriff Manuel Gonzales pursuant to

the New Mexico Tort Claims Act (“NMTCA”). Id. ¶¶ 77–87. Count V states a claim for municipal

liability under Section 1983 against Bernalillo County. Id. ¶¶ 88–94. Finally, Count VI states a

claim against Deputy Bartram and Bernalillo County for battery and false arrest under the

NMTCA. Id. ¶¶ 95–105.

LEGAL STANDARD

I. Relevant Law on Summary Judgment

Federal Rule of Civil Procedure 56(c) requires that summary judgment be rendered “where

no genuine issue of material facts exists, and the moving party is entitled to judgment as a matter

of law.” Hackworth v. Progressive Cas. Ins. Co., 468 F.3d 722, 725 (10th Cir. 2006). The moving

party bears the initial burden of “show[ing] that there is an absence of evidence to support the

nonmoving party’s case.” Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir.

1991) (internal quotation and marks omitted). Once this burden has been met, “the burden shifts

to the nonmoving party to show that there is a genuine issue of material fact.” Id. The Court will

“examine the factual record and draw reasonable inferences therefrom in the light most favorable

to the nonmoving party.” Brammer-Hoelter v. Twin Peaks Charter Acad., 602 F.3d 1175, 1184

(10th Cir. 2010) (quoting Clinger v. N.M. Highlands Univ. Bd. of Regents, 215 F.3d 1162, 1165

(10th Cir. 2000)). Its function at this stage is “not . . . to weigh the evidence and determine the

truth of the matter, but to determine whether there is a genuine issue for trial.” Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 243 (1986).

II. Relevant Law on Qualified Immunity5

Qualified immunity shields state officials from liability “insofar as their conduct does not

violate clearly established statutory or constitutional rights of which a reasonable person would

have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); see also Brown v. Montoya, 662

F.3d 1152, 1162 (10th Cir. 2011) (“[Q]ualified immunity is an immunity from suit rather than a

mere defense to liability.”) (internal citation omitted). The doctrine “prevents undue interference

with public affairs by cutting short baseless litigation against government actors.” Mecham v.

Frazier, 500 F.3d 1200, 1203 (10th Cir. 2007). Qualified immunity “balances two important

interests—the need to hold public officials accountable when they exercise power irresponsibly

and the need to shield officials from harassment, distraction, and liability when they perform their

duties reasonably.” Pearson v. Callahan, 555 U.S. 223, 231 (2009). The doctrine “‘gives ample

room for mistaken judgments’ by protecting ‘all but the plainly incompetent or those who

knowingly violate the law.’” Hunter v. Bryant, 502 U.S. 224, 229 (1991) (quoting Malley v. Briggs,

475 U.S. 335, 343 (1986)).

“After a defendant asserts a qualified immunity defense, the burden shifts to the plaintiff.”

Holland ex rel. Overdorff v. Harrington, 268 F.3d 1179, 1185 (10th Cir. 2001). Accordingly, the

plaintiff must meet the following two-part burden: “the first inquiry must be whether a

constitutional right would have been violated on the facts alleged; second, assuming the violation

is established, the question whether the right was clearly established must be considered . . . .”

Saucier v. Katz, 533 U.S. 194, 200 (2001). The Saucier procedure is no longer mandatory, and

5 Earlier this year, New Mexico passed the New Mexico Civil Rights Act, which prohibits state actors from

enjoying the defense of qualified immunity on claims involving the deprivation of any rights, privileges or immunities

secured by the bill of rights of the New Mexico Constitution. See N.M.S.A. § 41-4A-4. This statute applies only to

allegations of violations of the state constitution and does not affect any claims brought pursuant to Section 1983 or

otherwise alleging violations of the federal constitution.

courts may address either prong of the Sauicer test first. Pearson, 555 U.S. at 236. If the plaintiff

fails to satisfy either part of the heavy two-part burden, the Court must find that the defendant is

protected by qualified immunity. See Gross v. Pirtle, 245 F.3d 1151, 1156 (10th Cir. 2001).

DISCUSSION

I. The Court concludes that the doctrine of collateral estoppel is applicable to this

case, and consequently it finds that Deputy Bartram’s arrest of Ms. Hodge was

supported by probable cause.

Collateral estoppel is used to “bar the relitigation of ultimate facts or issues actually and

necessarily decided in the prior suit by a valid and final judgment,” and to prevent repeated

litigation of the same issues under “the guise of different causes of action.” Reeves v. Wimberly,

1988-NMCA-038, ¶ 6. The preclusive effect in federal court of a state judgment is governed by

the state’s preclusion rules. Valley View Angus Ranch, Inc. v. Duke Energy Field Servs., Inc., 497

F.3d 1096, 1100 (10th Cir. 2007). In New Mexico, there are four elements the moving party must

establish to demonstrate that the doctrine applies: “(1) the parties are the same or in privity with

the parties in the original action; (2) the subject matter or cause of action in the two suits are

different; (3) the ultimate facts or issues were actually litigated; and (4) the issue was necessarily

determined.” Reeves, 1988-NMCA-038, ¶ 8; Shovelin v. Cent. New Mexico Elec. Co-op., Inc.,

1993-NMSC-015, ¶ 10. In civil cases, New Mexico courts have “eliminated the traditional rule

that the parties must be the same or in privity if the doctrine of collateral estoppel is to apply.”

State v. Arevalo, 2002-NMCA-062, 132 N.M. 306, 309 (citation omitted).

The movant bears the burden of establishing a prima facie showing. Reeves,

1988-NMCA-038, ¶ 15. “Once a prima facie showing is made, the burden shifts to the party

opposing collateral estoppel to show that the party was not afforded a full and fair opportunity to

litigate the issue in the prior proceeding.” Larsen v. Farmington Mun. Sch., 2010-NMCA-094, ¶ 9

(citation omitted). Collateral estoppel should be applied only where the trial judge determines that

its application would not be fundamentally unfair. Reeves, 1988-NMCA-038, ¶ 14.

Here, Ms. Hodge was a party to State v. Hodge, T4-DW-2018-2156. See Doc. 22-3

(criminal complaint). Ms. Hodge was represented by the same two attorneys who represent her in

the instant case. Having reviewed the Motion to Suppress for Lack of Reasonable Suspicion and

Probable Cause filed in the state criminal matter, the Court notes that this pleading contains

arguments substantially similar to those proffered by Ms. Hodge in the instant matter. Compare

Doc. 36 (Response), with Doc. 22-4 (Motion to Suppress). On May 20, 2019, the Honorable

Christine E. Rodriguez of the Bernalillo County Metropolitan Court held a hearing on the Motion,

at which Judge Rodriguez heard further oral arguments and the testimony of Deputy Bartram. See

Doc. 22-5 (transcript of motion hearing). The state court ultimately found that reasonable suspicion

existed for Deputy Bartram’s stop of Ms. Hodges and that, based on the events that transpired,

Deputy Bartram had probable cause to make an arrest. Id. at 3.

Ms. Hodge’s sole argument against this Court’s finding of collateral estoppel is her lack of

ability to appeal this adverse finding due to her acquittal and dismissal of her remaining criminal

charges. The Response brief acknowledges there is no New Mexico case law on this topic, and it

argues that New Mexico courts would likely find that collateral estoppel could not be applied

absent an ability to appeal. Ms. Hodge largely relies on State v. Arevalo, 2002-NMCA-062 to

support her assertion. However, as Defendants point out, Arevalo involves an entirely different

issue; it does not address whether an appeal is a necessary prerequisite to applying collateral

estoppel. The Reply brief alerts the Court to a decision out of this District, Vigil v. Tweed, No. CV

18-829 SCY/JFR, 2020 WL 3250702 (D.N.M. June 16, 2020), cert. denied, No. CV 18-829

SCY/JFR, 2020 WL 4674163 (D.N.M. Aug. 12, 2020), and appeal dismissed, No. 20-2100, 2020

WL 8081935 (10th Cir. Aug. 27, 2020). The Vigil court noted that:

[U]nlike Colorado, New Mexico has indicated that the opportunity to appeal is not

dispositive in the “full and fair” calculus. In Shovelin v. Central New Mexico

Electric Co-op, Inc., the defendant argued that, because the other party had the

opportunity to appeal the adverse decision, the court should be “particularly

inclined” to apply collateral estoppel. 1993-NMSC-015, ¶ 18 n.5, 115 N.M. 293,

301 n.5. The court agreed that “whether a party availed himself of the opportunity

to appeal an administrative decision is an important factor to consider when

determining whether collateral estoppel is applicable,” but disagreed with the

premise that it was “particularly” important: instead, “this is merely one factor

that we must consider in the calculus of whether a party had the full and fair

opportunity to litigate.” Id. Similarly, in Rex, Inc. v. Manufactured Housing

Committee of the State of New Mexico, Manufactured Housing Division, the court

found that arbitration proceedings should, in general, have preclusive effect. 1995-

NMSC-023, ¶¶ 12-14, 119 N.M. 500, 504-05. In that case, the court found that the

parties had a full and fair opportunity to litigate” during arbitration, but noted

resolution of this issue may be context dependent. Id. ¶¶ 14, 29. The court did not

address the right to appeal as being a factor but, in general, the right to appeal an

arbitration is even more limited than the conditional right granted in § 39-3-3. See

K.R. Swerdfeger Constr. v. UNM Bd. of Regents, 2006-NMCA-117, ¶ 13, 140 N.M.

374, 378, 142 P.3d 962, 966 (“there are strict limitations on judicial review of

arbitration awards”). Therefore, while lack of a meaningful opportunity to appeal

is a factor in New Mexico, it is not a dispositive factor. Thus, the Court finds that

New Mexico has rejected Plaintiff’s position that the lack of an appeal right

conclusively means collateral estoppel is unfair.

Id. at *13 (emphasis added). The Court adopts the reasoning of its sister-court in Vigil and makes

the same finding: New Mexico has rejected Ms. Hodge’s argument that the lack of an appeal right

precludes application of the collateral estoppel doctrine. This is in contrast to Dixon v. Richer, 922

F.2d 1456 (10th Cir. 1991), a case cited to by Plaintiff that deals with Colorado’s preclusion rules.

Further, the record shows that Ms. Hodge had a full and fair opportunity to litigate the issue of

whether Deputy Bartram had reasonable suspicion and probable cause. Ms. Hodge was represented

by counsel, who filed a motion containing arguments substantially similar to those presently before

the Court. Compare Doc. 22-4 (Motion to Suppress), with Doc. 36 (Response). The Metropolitan

Court addressed Ms. Hodge’s arguments at the May 20, 2019 hearing. See Doc. 22-5 (transcript

of motion hearing). Finally, Ms. Hodge does not allege that any unfairness or deprivation of justice

occurred in her state case. Under these circumstances, the Court concludes that the state court’s

determination that Deputy Bartram had reasonable suspicion and probable cause bars Ms. Hodge

from rearguing these issues in the instant case. Accordingly, this Court finds that Deputy Bartram’s

arrest of Ms. Hodge was supported by probable cause.

II. Federal Constitutional Claims Against Deputy Bartram

A. Deputy Bartram is entitled to qualified immunity on Ms. Hodge’s First Amendment

Claim.

Ms. Hodge’s First Amendment Claim rests on two separate factual bases: her arrest and

Deputy Bartram’s use of force against her. Generally, a plaintiff must establish three elements in

a claim based upon First Amendment retaliation: (1) that [she] was engaged in constitutionally

protected activity; (2) that the defendant[’s] actions caused [her] to suffer an injury that would chill

a person of ordinary firmness from continuing to engage in that activity; and (3) that the

defendant[’s] adverse action was substantially motivated as a response to [her] exercise of

constitutionally protected conduct. Hinkle v. Beckham Cty. Bd. of Cty. Comm’rs, 962 F.3d 1204,

1226 (10th Cir. 2020) (quoting Worrell v. Henry, 219 F.3d 1197, 1212 (10th Cir. 2000)). Ms.

Hodge argues that Deputy Bartram’s arrest and use of force was retaliation against her exercising

her First Amendment right to question and criticize Deputy Bartram’s conduct and express her

concerns and grievances to a 911 dispatcher.

In addressing the retaliatory arrest claim, the Court notes that [“i]n addition to the three

Worrell elements, a First Amendment retaliation claim based on a false arrest requires a separate

“threshold showing”—generally, a plaintiff must show a false arrest. Hinkle, 962 F.3d at 1227

(citing Nieves v. Bartlett, 139 S. Ct. 1715, 1728 (2019)). In Nieves, the United States Supreme

Court held “[t]he presence of probable cause should generally defeat a First Amendment retaliatory

arrest claim.”6 139 S. Ct. at 1726. Accordingly, the United States Supreme Court and the Tenth

Circuit have both routinely held the presence of probable cause defeats a First Amendment

retaliatory arrest claim. See id. at 1728 (“Because there was probable cause to arrest [the plaintiff],

his retaliatory arrest claim fails as a matter of law.”); Fenn v. City of Truth or Consequences, 983

F.3d 1143, 1149 (10th Cir. 2020) (“The presence of probable cause, therefore, is a bar to a First

Amendment retaliation claim, and Fenn has not shown a lack of probable cause here.”); Hinkle,

962 F.3d at 1227 (“We have already concluded that Deputy Estep had probable cause to arrest

Hinkle. So, under Nieves, Hinkle’s retaliatory-arrest claim must fail.”). Here, the Court has already

found that Deputy Bartram had probable cause to arrest Ms. Hodge, and the Response brief offers

no authority to rebut the Motion’s demonstration that an arrest supported by probable cause

generally cannot violate the arrestee’s First Amendment rights. Consequently, under these

circumstances, Deputy Bartram did not violate Ms. Hodge’s First Amendment rights by arresting

her.

Ms. Hodge’s claim of retaliatory use of force necessitates a more in-depth examination of

the Worrell elements. Upon review of the record, the Court finds that Ms. Hodge has failed to

establish the first element because she was not engaged in a constitutionally protected activity.

Plaintiff’s counsel alerts the Court to cases in which individuals were prosecuted for their

verbal objections and challenges to law enforcement officers. See City of Houston, Tex. v. Hill,

482 U.S. 451 (1987) (applying First Amendment overbreadth analysis and invalidating municipal

6 The Nieves Court also acknowledged that a narrow qualification is warranted for circumstances where

officers have probable cause to make arrests, but typically exercise their discretion not to do so (the Court uses

jaywalking as an example). Nieves, 139 S. Ct. at 1727. The Court further concluded that the no-probable-cause

requirement should not apply when a plaintiff presents objective evidence that she was arrested when otherwise

similarly situated individuals not engaged in the same sort of protected speech had not been. Id. In the instant case,

the record shows that Ms. Hodge’s arrest does not fall into either category.

ordinance that allowed man to be prosecuted for shouting “why don’t you pick on somebody your

own size” at police officer); United States v. McKinney, 9 Fed. Appx. 887 (10th Cir. 2001) (finding

that a woman’s refusal to identify herself and her instances that the officer should “go f* * *

[him]self” did not amount to fighting words criminalized by the Kansas penal code) (alteration in

original). Here, the Court is not dealing with an instance of speech criminalization. Rather, the

record reveals that Deputy Bartram made a lawful stop of Ms. Hodge’s vehicle. Deputy Bartram

was wearing a BCSO uniform and identified himself as being an officer with BCSO. During the

course of the stop, Deputy Bartram instructed Ms. Hodge to show him her driver’s license, to

which she responded, “You do know it’s illegal to demand something.” Ms. Hodge then asked

Deputy Bartram for an explanation for why he stopped her vehicle, to which Deputy Bartram

responded, “When you pulled onto Eubank, you didn’t come to a complete stop and then as you

were driving on Eubank. . . you failed to maintain your lane of traffic.” At this point, Ms. Hodge

accuses Deputy Bartram of lying (here, the Court notes the state court’s finding that Deputy

Bartram had reasonable suspicion supporting the stop). Deputy Bartram again asked for Ms.

Hodge’s driver’s license, and instead of complying with his request, she stated “No you can’t and

I’m calling 911.” She then proceeded to speak on the phone with a 911 dispatcher, telling the

dispatcher “there’s an officer that is being hostile with me.” Doc. 36-6. Ms. Hodge told the

dispatcher that Deputy Bartram was forcing her to open her door. Id. She then asked the dispatcher,

“do you hear him, or should I videotape him?” (referring to Deputy Bartram). Id. Ms. Hodge

finished the call by informing the dispatcher, “he’s flashing his bright light in my eyes” before the

call unexpectedly terminated. Id. Instead of directing her attention to Deputy Bartram and the

ongoing, lawful traffic stop, Ms. Hodge again called 911. Ms. Hodge’s second call was made at

the same time Deputy Hodge was pulling her out of the vehicle. On the recording of the second

call, Ms. Hodge tells the 911 dispatcher, “there’s an officer getting violent with me” and “he’s

hurting my arm.” When viewed in a vacuum, the 911 calls could very well indicate that Ms. Hodge

was engaging in a constitutionally protected activity such as objecting to law enforcement conduct

or petitioning the government. However, the evidence in this case shows the Court the whole

picture. Specifically, the video and audio recordings reveal a situation in which Ms. Hodge uses

her verbal conduct to hinder a lawful traffic stop. Thus, the Court concludes that no reasonable

juror could find that Ms. Hodge was engaged in constitutionally protected activity with regards to

her verbal complaints to Deputy Bartram and the 911 dispatchers. Had Ms. Hodge simply

complied with Deputy Bartram’s lawful request to see her driver’s license, this lawsuit may have

been averted. Accordingly, Ms. Hodge’s First Amendment claim fails because there was no

constitutional violation.

B. Deputy Bartram is entitled to qualified immunity on Ms. Hodge’s Fourth Amendment

Illegal Seizure Claim.

“A police officer violates an arrestee’s clearly established Fourth Amendment right to be

free of unreasonable seizure if the officer makes a warrantless arrest without probable cause.”

Olsen v. Layton Hills Mall, 312 F.3d 1304, 1312 (10th Cir. 2002). Ms. Hodge does not challenge

or otherwise respond to the Defendants’ assertion that her Fourth Amendment illegal seizure claim

cannot survive absent probable cause. Given the Court’s prior finding of probable cause for Ms.

Hodge’s arrest, the Court further finds that no constitutional violation occurred and Deputy

Bartram is, thus, entitled to qualified immunity on this claim.

C. Deputy Bartram is not entitled to qualified immunity on Ms. Hodge’s Fourth Amendment

Excessive Force Claim.

The United States Supreme Court has instructed that claims that law enforcement officers

have used excessive force—deadly or not—in the course of an arrest, investigatory stop, or other

“seizure” of a free citizen should be analyzed under the Fourth Amendment and its objective

reasonableness standard. Graham v. Connor, 490 U.S. 386, 388 (1989). Specifically, the question

the Court considers in excessive force cases is “whether the officers’ actions are ‘objectively

reasonable’ in light of the facts and circumstances confronting them, without regard to their

underlying intent or motivation.” Graham, 490 U.S. at 397. Reasonableness is evaluated under a

totality of the circumstances approach, which requires that the Court consider and balance the

following factors: “the severity of the crime at issue, whether the suspect poses an immediate threat

to the safety of the officers or others, and whether he is actively resisting arrest or attempting to

evade arrest by flight.” Id. at 396. The Court analyzes the question of reasonableness from the

perspective “of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.”

Plumhoff v. Rickard, 572 U.S. 765, 775 (2014). Thus, the Court allows “for the fact that police

officers are often forced to make split-second judgments—in circumstances that are tense,

uncertain, and rapidly evolving—about the amount of force that is necessary in a particular

situation.” Id.

The Defendants ask the Court to consider Mecham v. Frazier, 500 F.3d 1200 (10th Cir.

2007), which they claim is sufficiently analogous to the facts presented in this case. In Mecham, a

defendant officer pulled the plaintiff over for going five miles over the speed limit and not wearing

a seatbelt. Id. at 1202. The plaintiff provided the officer with an expired driver’s license. During

the traffic stop, the plaintiff received a call on her cell phone, which she answered. Id. The officer

told the plaintiff to put her cell phone down so that he could explain her citation, but she ignored

the officer and continued talking. Id. Accordingly, the officer explained to the plaintiff that she

could not drive with an expired license and that her car would be towed. Id. The tow truck arrived

fifteen minutes later, at which point the officer ordered the plaintiff to get out of her car. Id. at

1203. After she failed to comply, the officer stated that if she did not voluntarily step out of the

vehicle, he would have to physically remove her. Id. When she again refused, the officer sprayed

the plaintiff in the face with pepper spray, opened her driver’s side door, and physically removed

her from the car. Id. He, along with other officers who had arrived at the scene, pulled the plaintiff

to the ground and handcuffed her. Id.

In Carabajal v. City of Cheyanne, Wyo., 847 F.3d 1203 (10th Cir. 2017), a case in which

an officer was granted qualified immunity after he physically removed an injured driver from a

vehicle where the driver had been non-compliant with the officer’s commands, the Tenth Circuit

cited to Mecham’s finding that it was a “foregone conclusion” that arresting a non-compliant driver

would require force. Id. at 1212. Defendants further cite to other excessive force claims from the

Tenth Circuit in which courts found that officers using physical force to control non-compliant

individuals suspected of minor, non-violent crimes was objectively reasonable. See Simpson v.

Kansas, 593 F. App’x 790 (10th Cir. 2014) (officer removed woman from vehicle, “firmly”

guiding her to the ground and placing his knee on her back after she became non-cooperative

during a traffic stop for a seat belt violation); Yadon v. Hilton, 516 F. App’x 694 (10th Cir. 2013)

(physical force was appropriate when a misdemeanor suspect became non-compliant); Valencia v.

De Luca, No. 13 CV 930 JAP/WPL, 2014 WL 11430951 (D.N.M. Aug. 26, 2014), aff’d, 612 F.

App’x 512 (10th Cir. 2015) (physically removing an individual from a car on a traffic stop was

appropriate “even though the arrest occurred in a parking lot not on a busy highway shoulder”).

Plaintiff’s Response brief convincingly distinguishes these cases. It notes that in Mecham

force was used only after a nearly hour-long traffic stop and after repeated instructions to exit the

vehicle or face arrest. Under these circumstances, the Mecham plaintiff’s claim that she doubted

the officer’s identity and motives was deemed implausible because she had ample time and

evidence, including the arrival of a tow truck and additional officers and marked squad cars, to

conclude that this was a legitimate traffic stop. In contrast, Deputy Bartram resorted to a substantial

use of physical force within minutes of stopping Ms. Hodge. The undisputed facts show that

Deputy Bartram called for backup before he pulled Ms. Hodge from the vehicle but failed to wait

for the additional officer(s) to arrive at the scene. Nothing in the record indicates that Ms. Hodge

conducted herself in a manner that would warrant Deputy Bartram forcefully removing her from

the vehicle before his requested backup arrived. Additionally, Ms. Hodge was not warned that she

would be placed under arrest, distinguishing this case from Mecham and Simpson, and she did not

attempt to drive off or otherwise flee the scene, in contrast to the situations presented by Carabajal

and Yandon. The Valencia case is also appreciably distinguished because Mr. Valencia grabbed

the steering wheel and struggled with the two officers for two minutes after an already lengthy

traffic stop. 612 Fed.Appx. at 515. The Court also notes that the district court and appellate

opinions’ descriptions of the incident do not indicate that Mr. Valencia was ever pulled to the

ground. In fact, it is very clear that Mr. Valencia, unlike Ms. Hodge, failed to provide evidence of

the nature or extent of any injuries resulting from the force used against him. Id. at 519 n.7.

With these cases and distinguishing factors in mind, the Court will now turn to examining

the Graham factors as they apply to the instant case. As for the first factor, severity of the crimes

at issue, the Court is unable to weigh this factor in favor of either party at this stage. Ms. Hodge

was suspected of having committed traffic violations and being under the influence of alcohol. The

Court notes the seriousness of driving under the influence and the dangers generated by this

offense. However, despite the seriousness of these accusations, the Court is unable to make a

finding that Defendants have conclusively established that Ms. Hodge showed definite signs of

intoxication during the stop. The Response brief provides evidence, in the form of photographs

taken at the scene, that Ms. Hodge did not present watery bloodshot eyes, as claimed by Deputy

Bartram. See Doc. 36-3. The Court notes that the fact that Ms. Hodge’s voice always sounds

slurred, compare Doc. 22 Exs. B & E, with Doc. 22 Ex. C, does not create an actual dispute as to

whether her voice sounded slurred on the night in question. Finally, the charges ultimately brought

against Ms. Hodge were all misdemeanors.

The second and most important Graham factor, whether the suspect poses an immediate

threat to the safety of the officers or others, weighs in favor of Ms. Hodge because the evidence

clearly shows that she did not pose an immediate threat to the safety of Deputy Bartram or others.

See Pauly v. White, 874 F.3d 1197, 1216 (10th Cir. 2017) (“The second Graham factor . . . is

undoubtedly the most important and fact intensive factor in determining the objective

reasonableness of an officer's use of force.”). The traffic stop occurred in a nearly empty parking

lot. Deputy Bartram had turned off Ms. Hodge’s vehicle and taken her keys. He also checked the

vehicle for weapons and found none. While uncooperative and, at times, very uncivil, there is no

indication that Ms. Hodge ever attempted to flee or made gestures, movements, or statements

indicating that she would be a source of immediate danger.

Finally, the third factor also weighs in Ms. Hodge’s favor. As mentioned above, Ms.

Hodge did not attempt to flee during this encounter. Moreover, Ms. Hodge’s actions in holding the

steering wheel and leaning back from Deputy Bartram’s grip were extremely brief, a far cry from

the two-minute struggle that occurred in Valencia. Overall, the record shows Ms. Hodge merely

being defiant and obstructing the traffic stop in a manner that, looking at the evidence in the light

most favorable to Ms. Hodge, would not justify the level of force Deputy Bartram ultimately used.

See McGarry v. Bd. of County Commissioners for County of Lincoln, 294 F.Supp.3d 1170, 1197

(D.N.M. 2018) (“A throw down for mere defiance would be inappropriate but forcing the suspect

to the ground would be appropriate if that suspect struggled physically against the officer.”).

With two out of three of the Graham factors conclusively weighing in favor of Ms. Hodge,

the Court concludes that a reasonable juror could find that Deputy Bartram used excessive force

in violation of Ms. Hodge’s Fourth Amendment rights. See Casey v. City of Fed. Heights, 509 F.3d

1278, 1285 (10th Cir. 2007) (holding that “force is least justified against nonviolent

misdemeanants who do not flee or actively resist arrest”). Now the Court must determine whether

Ms. Hodge has met her burden of showing clearly established law on this point.

The Response brief cites to Tenth Circuit cases to support Ms. Hodge’s argument that the

law clearly establishes that using disproportionate physical force is not necessary when the offense

is minor, the suspect does not pose a threat to the officer’s safety, and the suspect does not attempt

to flee. See Davis v. Clifford, 825 F.3d 1131, 1137 (10th Cir. 2016) (finding that the law was

clearly established that “the use of disproportionate force to arrest an individual who has not

committed a serious crime and who poses no threat to herself or others constitutes excessive

force[]”); see also Buck v. City of Albuquerque, 549 F.3d 1269, 1291 (10th Cir. 2008). In essence,

Ms. Hodge’s argument is that in instances where the use of force was found to be unjustified under

the Graham reasonableness test the use of force automatically violate clearly established law. See

Morris v. Noe, 672 F.3d 1185, 1197–98 (10th Cir. 2012) (holding that officer was not entitled to

qualified immunity because law was clearly established that the force used against Morris was

unjustified because two Graham factors weighed in Morris’ favor); Fogarty v. Gallegos, 523 F.3d

1147, 1162 (10th Cir. 2008) (“Considering that under Fogarty’s version of events each of the

Graham factors lines up in his favor, this case is not so close that our precedents would fail to

portend the constitutional unreasonableness of defendants' alleged actions.”); Casey, 509 F.3d at

1285 (10th Cir. 2007) (holding that the law was clearly established such that a reasonable officer

would understand that using extreme physical force like tackling and beating without warning on

a peaceful individual would violate that individual’s constitutional rights because “Graham

establishes that force is least justified against nonviolent misdemeanants who do not flee or

actively resist arrest”).

In their Reply brief, Defendants call into question the continuing validity of these cases by

pointing to United States Supreme Court decisions that seem to explicitly reject Ms. Hodge’s

attempt to rely on the Graham factors for her argument that the law was clearly established. In

White v. Pauly, the Supreme Court, sitting in review of a Tenth Circuit decision, stated that “we

have held that Garner and Graham do not by themselves create clearly established law outside

‘an obvious case.’” 137 S. Ct. 548, 552 (2017) (internal citation omitted) (emphasis added). In

Brosseau v. Haugen, the Court held that Garner and Graham, which are “cast at a high level of

generality,” did not clearly establish that the officer's decision was unreasonable. 543 U.S. 194,

199 (2004) (per curiam). Defendants raise a good point, but their Supreme Court decisions are not

as unequivocal in position as the Reply brief argues. The White opinion states:

Qualified immunity attaches when an official's conduct “‘does not violate clearly

established statutory or constitutional rights of which a reasonable person would

have known.’” Mullenix v. Luna, 577 U.S., at –––– – ––––, 136 S.Ct., at 308. While

this Court's case law “‘do[es] not require a case directly on point’” for a right to

be clearly established, “‘existing precedent must have placed the statutory or

constitutional question beyond debate.’” Id., at ––––, 136 S.Ct., at 308. In other

words, immunity protects “‘all but the plainly incompetent or those who knowingly

violate the law.’” Ibid.

137 S. Ct. at 551 (emphasis added). As noted above, the White opinion holds that the Graham

factors do not generate clearly established law “outside ‘an obvious case”’ Id. at 552 (quoting

Brosseau, 543 U.S. at 199). Clearly, the door has been left open for certain cases to still warrant

denial of qualified immunity based on Graham. In fact, White presented “a unique set of facts and

circumstances” that convinced the Court that it was “not a case where it is obvious that there was

a violation of clearly established law under Garner and Graham.” Id.

The underlying facts and circumstances of the instant case lead the Court to conclude that

Ms. Hodge’s claim presents an “obvious case” of excessive force in violation of the Fourth

Amendment as established under Graham. Here, Deputy Bartram resorted to the use of substantial

physical force within minutes of stopping Ms. Hodge. He did not wait for his requested backup

and there is no indication that Ms. Hodge posed a threat or flight risk. Stated another way, the

undisputed facts in this case demonstrate a “run-of-the-mill Fourth Amendment violation”

contemplated by, but not present in, the White case. See White, 137 S.Ct. at 552. Accordingly, Ms.

Hodge has met her burden for making a particularized showing that the law was clearly established

at the time of Deputy Bartram’s violation. Accordingly, the Court denies Deputy Bartram’s

assertion that he is entitled to qualified immunity on this claim.

III. Municipal Liability § 1983 Claim

Ms. Hodge asserts a claim against Bernalillo County for municipal liability based upon

Deputy Bartram’s conduct. The core of a municipal liability claim is that “a municipal policy or

custom was the moving force behind the constitutional deprivation that occurred.” Estate of Larsen

ex rel. Sturdivan v. Murr, 511 F.3d 1255, 1264 (10th Cir. 2008). “A challenged practice may be

deemed an official policy or custom for § 1983 municipal liability purposes if it is a formally-

promulgated policy, a well-settled custom or practice, a final decision by a municipal policymaker,

or deliberately indifferent training and supervision.” Schneider v. City of Grand Junction Police

Dep’t, 717 F.3d 760, 770 (10th Cir. 2013). Ms. Hodge has asserted disputed facts in this case that

could subject the County to liability based on its training and supervision of Deputy Bartram as

well as its written and de facto policies on use of force. See Doc. 36 at 23–25.

Defendants’ sole defense consists of an assertion that there is no underlying constitutional

violation. See Doc. 22 at 27–28. The Court has ruled that the Fourth Amendment excessive force

claim, and the underlying constitutional violation, is an issue that must go to the jury. Accordingly,

Ms. Hodge’s municipal liability claim based on Deputy Bartram’s use of excessive force will also

go to the jury.

IV. NMTCA Claims Against Deputy Bartram7

A. Ms. Hodge cannot assert a viable NMTCA Wrongful Arrest Claim because Deputy

Bartram had probable cause.

As the New Mexico Court of Appeals stated in Rodriguez v. Smith, “it was proper for the

district court to apply collateral estoppel to preclude the litigation of Plaintiff’s false arrest and

false imprisonment claims, since those claims can be defeated by a probable cause determination

in Defendant’s favor, and since the probable cause issue was actually litigated and necessarily

determined in the prior proceeding.” No. A-1-CA-36749, 2019 WL 4419979, at *6 (N.M. Ct. App.

Aug. 15, 2019) (unpublished). New Mexico courts have repeatedly held that probable cause is fatal

to false arrest and false imprisonment claims. See Dickson v. City of Clovis, 2010-NMCA-058, ¶

21 (noting the plaintiff’s false arrest and false imprisonment claims were properly dismissed based

upon a finding of probable cause); Benavidez v. Shutiva, 2015-NMCA-065, ¶ 12 (“Probable cause

to arrest for a single charge will suffice to immunize Defendants from Plaintiff’s wrongful arrest

claims.”); Santillo v. N.M. Dep’t of Pub. Safety, 2007–NMCA–159, ¶ 12 (“An officer who has

probable cause to arrest a person cannot be held liable for false arrest or imprisonment, since

probable cause provides him with the necessary authority to carry out the arrest.”). Defendants

7 The Complaint alleges that Deputy Bartram “engaged in acts and omissions which resulted in the commission

of the torts of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander,

defamation of character, violation of property rights, or deprivations of rights, privileges, or immunities secured by

the constitution and laws of the United States and New Mexico.” Doc. 1-1 ¶ 99 (citing N.M.S.A § 41-4-12). For the

purposes of ruling on Defendants’ motion for summary judgment the issue is narrowed to examining the torts of false

arrest/imprisonment and battery. See Doc. 22 at 28–30.

have met their burden of proving probable cause, and, accordingly, Ms. Hodge’s false arrest and

false imprisonment tort claims against Deputy Bartram must be dismissed.

B. Ms. Hodge’s NMTCA Battery Claim against Deputy Bartram will proceed forward.

In New Mexico, law enforcement officers are permitted a privilege to use force, and will

not be civilly liable, as long as the officer acts with a reasonable belief that the amount of force

used is necessary under the circumstances. See Beldsoe v. Garcia, 742 F.2d 1237, 1240 (10th Cir.

1984) (citing Restatement (Second) of Torts § 132)); see also Mead v. O’Connor, 1959-NMSC-

077, ¶4. The standard is substantially the same as that found in Graham—the Court is to apply an

objective reasonableness test, using the perspective of an officer at the scene, with the

understanding that officers must often make split-second decisions in difficult situations about

what force is necessary. See State v. Mantelli, 2002-NMCA-033, ¶¶ 28-29, 131 N.M. 692; see also

Alaniz v. Funk, 69 N.M. 164, 168, 364 P.2d 1033, 1035–36 (1961) (applying, in excessive force

case brought against a police officer, an objective reasonableness test that is similar to the test in

Graham v. Connor). Defendants argue that, because Deputy Bartram used an objectively

reasonable amount of force, he cannot be held liable for battery under the NMTCA.

Of course, Defendants’ argument fails in light of the Court’s ruling, under the parallel

federal standard, that the issue of whether Deputy Bartram used reasonable force must be left to a

jury. Accordingly, the battery claim against Deputy Bartram will proceed.

V. NMTCA Supervisory Claims

A. The NMTCA Supervisory Claims based on wrongful arrest fail as a matter of law.

“[W]hen subordinate officers have committed one of certain specified torts, the Tort

Claims Act does not provide immunity to supervisory law enforcement officers whose negligent

training or supervision of the subordinates was a proximate cause of the tort.” McDermitt v. Corr.

Corp. of Am., 1991-NMCA-034, ¶ 1. However, New Mexico courts “emphasize[] that the

negligence complained of must cause a specified tort []; immunity is not waived for negligence

standing alone.” Caillouette v. Hercules, Inc., 1992-NMCA-008, ¶18. Stated another way,

supervisory liability for an officer’s conduct must be based on the officer actually committing a

specific tort. The Court’s finding that Deputy Bartram did not falsely arrest or imprison Ms. Hodge

precludes any supervisory claim based on these allegations from proceeding.

B. The NMTCA Supervisory Claims based on battery will proceed forward.

In contrast, the jury will decide whether Deputy Bartram battered Ms. Hodge. Accordingly,

the supervisory claims based on this conduct will likewise proceed.

CONCLUSION

Therefore, for the reasons stated in this Memorandum Opinion and Order, the Court

hereby GRANTS IN PART and DENIES IN PART Defendants’ Motion for Summary Judgment

based on Qualified Immunity. The following claims are dismissed:

• First Cause of Action: Claim against Defendant Bartram under 42 U.S.C. § 1983

(Unlawful Seizure) and

• Third Cause of Action: Claim against Defendant Bartram under 42 U.S.C. § 1983 (First

Amendment Violations).

Furthermore, Ms. Hodge’s Fourth Cause of Action fails as a matter of law to the extent it

is based upon allegations of false arrest/imprisonment; her Fifth Cause of Action fails as a matter

of law to the extent it is based upon allegations related to First Amendment or Fourth Amendment

unlawful seizure violations; and her Sixth Cause of Action fails as a matter of law to the extent it

is based upon allegations of false arrest/imprisonment.

Finally, as for the remaining claims not dismissed by the Court, they survive Defendant’s

Motion for Summary Judgement based on Qualified Immunity and shall proceed to trial by jury.

IT IS SO ORDERED.

WILLIAM P. JOHNS

CHIEF UNITED STATES DISTRICT JUDGE

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