April 01, 2010 – Michael Dickson v. City of Clovis, Clovis Police Department, and Officer Joshua Parkin, individually and in his official capacity, No. 29,111

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:

Filing Date: _Apnil 1, 2010
NO. 29,111

MICHAEL DICKSON,
Plaintiff-A ppellant,
V.

CITY OF CLOVIS, CLOVIS POLICE
DEPARTMENT, and OFFICER JOSHUA PARKIN,
individually and in his official capacity,

Defendants-A ppellees.

APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY
David P. Reeh, Jr., District J udge

Daniel R. Lindsey, P.C.
Daniel R. Lindsey
Clovis, NM

for Appellant

Beall & Biehler
Catherine D. Anowe
Gregory L. Biehler
Albuquerque, NM

for Appellees

OPINION
WECHSLER, Judge.
{1} 	Plaintiff Michael Dickson brought civil rights actions against Defendants
Officer Joshua Parkin, City of Clovis, and Clovis Police Department after Defendant
Parkin arrested Plaintiff for felon in possession of a firearm based on dispatch
information that Plaintiff was a felon and despite Plaintiff’s statement and proffered
document asserting that he had received a deferred adjudication in Texas. The district
court denied Plaintiff’s motion for summary judgment and granted Defendants’
motion, determining that Defendant Parkin was entitled to qualified immunity and that
there was no evidence that the City of Clovis had any policy or custom regarding
arrest that violated civil rights. On Plaintiff’s appeal, we affirm.
BACKGROUND
{2} 	On May 15, 2007, Defendant Parkin stopped Plaintiff for failing to dim his fog
lights while driving. Defendant Parkin cited Plaintiff for violating a city ordinance
regarding the fog lights and for driving without insurance. While talking to Plaintiff,
Defendant Parkin noticed a handgun in Plaintiff’s car. 	Defendant Parkin called
dispatch and requested a criminal history and was informed that Plaintiff was a
convicted felon. Defendant Parkin so informed Plaintiff, and Plaintiff responded that
he was not a convicted felon, producing an order from Texas (the Texas order) that

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stated that Plaintiff had a deferred conviction. 	Upon examining the document,
Defendant Parkin did not find anything that indicated that the conviction about which
dispatch had informed Defendant Parkin was deferred or that the document was
authentic. Therefore, believing Plaintiff to be a convicted felon, Defendant Parkin
arrested Plaintiff on a charge of felon in possession of a firearm.
{3} 	As a result of a preliminary hearing and a separate hearing on Plaintiff’s motion
to suppress, Plaintiff’s charges and citations were dismissed. On December 3, 2007,
Plaintiff filed this civil case against Defendants, claiming that Defendant Parkin’s
actions and the Clovis Police Department’s inadequate training resulted in negligence,
malicious prosecution, assault and battery, wrongful arrest, false imprisonment, and
a violation of 42 U.S.C. § 1983 (2006). Plaintiff then filed a motion for summary
judgment, to which Defendants responded and filed a cross-motion for summary
judgment. On September 8, 2008, the district court issued a decision letter, followed
by an order on October 6, 2008, denying Plaintiff’s motion and granting Defendants’
cross-motion for summary judgment. The district court denied Plaintiff’s motion for
summary judgment because it found that a material question of fact exists as to
whether Plaintiff was a felon on the night of his arrest. It granted Defendant Parkin
qualified immunity, determining that “there was no apparent violation of a clearly
established constitutional right” because it was reasonable for Defendant Parkin to

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have been uncertain as to whether a Texas deferred adjudication would be treated the
same as a New Mexico deferred sentence. Since Defendant Parkin was entitled to
qualified immunity, the district court granted him summary judgment as a matter of
law. 	Finally, the district court granted summary judgment to Defendant City of
Clovis, finding no evidence of any policy or custom that allowed or encouraged
officers to arrest a citizen in violation of his or her rights. Plaintiff appeals.
DEFENDANT 	PARKIN: 	QUALIFIED 	IMMUNITY 	AND 	SUMMARY
JUDGMENT
{4} 	We initially address Plaintiff’s argument that the district court erred because it
denied his motion for summary judgment due to its finding that a question of fact
exists as to whether Plaintiff was a felon at the time he was arrested, yet
simultaneously granted Defendant Parkin summary judgment on the basis of the
existence of the same essential question of fact. Plaintiff has misconstrued the district
court’s findings. The district court did deny Plaintiff’s motion for summary judgment
because there was a question of material fact as to Plaintiff’s status as a felon on the
night of the arrest. Plaintiff’s apparent confusion arises because, although the district
court did rely on this same fact in its qualified immunity analysis, it did not grant
Defendant Parkin summary judgment because of that fact but, rather, granted
Defendant Parkin qualified immunity, which entitled him to summary judgment as a

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matter of law. Cf. Garcia-Montoya v. State Treasurer’s Office, 2001-NMSC-003, ¶ 6,
130 N.M. 25, 16 P.3d 1084 (referencing qualified immunity as an affirmative defense
entitling the immune party to summary judgment). 	We thus turn to Plaintiff’s
argument that no question of fact exists as to whether Plaintiff was a felon at the time
of his arrest and that, therefore, the district court should have granted his motion for
summary judgment and denied Defendant Parkin’s motion.
{5} 	“Summary judgment is proper if there are no genuine issues of material fact and
the movant is entitled to judgment as a matter of law. 	The non-moving party is
entitled to all reasonable inferences in support of its claim that an issue of material fact
exists.” Sanders v. Montoya, 1999-NMCA-079, ¶ 2, 127 N.M. 465, 982 P.2d 1064
(internal quotation marks and citation omitted). 	In this case, both parties filed for
summary judgment. For purposes of our analysis, we accept the reasonable inferences
supporting Plaintiff’s claim—specifically, that Defendant Parkin informed Plaintiff
that Plaintiff was a felon in possession of a firearm and that Plaintiff responded by
stating that he was not a convicted felon and by producing the Texas order showing
the deferred adjudication. However, even accepting Plaintiff’s statement of these facts
as true, we are not persuaded that Defendant Parkin is liable under Section 1983.
{6} 	We review the applicability of Section 1983 immunity de novo. Starko, Inc.
v. Gallegos, 2006-NMCA-085, ¶ 11, 140 N.M. 136, 140 P.3d 1085. Section 1983

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provides a cause of action against a state official who deprives another of his or her
federal rights. Starko, Inc., 2006-NMCA-085, ¶ 10. However, state employees acting
within the scope of their employment are entitled to immunity from suit under Section
1983. 	Starko, Inc., 2006-NMCA-085, ¶ 11. 	The only way to overcome the
presumption of immunity is to show that the official should have known that his or her
conduct violated the law. 	Kennedy v. Dexter Consol. Sch., 2000-NMSC-025, ¶ 10,
129 N.M. 436, 10 P.3d 115. In determining whether the official should have known
that his or her conduct was unlawful, we evaluate “(1) whether [the d]efendant’s
alleged conduct violated a constitutional or statutory right, and (2) whether the right
was clearly established at the time of the alleged conduct.” 	Id.; see also Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982) (holding that challenged conduct is unlawful if
it “violate[s] clearly established [federal] statutory or constitutional rights of which
a reasonable person would have known”).
{7} 	In this case, therefore, we must determine (1) whether Defendant Parkin’s arrest
of Plaintiff for being a felon in possession of a firearm violated Plaintiff’s right against
being arrested without probable cause under the Fourth Amendment to the United
States Constitution and (2) whether that right was clearly established at the time of the
arrest. As has been well established in New Mexico, arrest without probable cause is
indeed a violation of the Fourth Amendment protection against illegal search and

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seizure. See State v. Bricker, 2006-NMCA-052, ¶ 21, 139 N.M. 513, 134 P.3d 800.
Further, there is no doubt that such a right was clearly established at the time
Defendant Parkin arrested Plaintiff. See id. As a result, the determinative issue before
us is whether Defendant Parkin had probable cause.
{8} 	“Whether probable cause exists is a mixed question of law and fact.” State v.
Granillo-Macias, 2008-NMCA-021, ¶ 7, 143 N.M. 455, 176 P.3d 1187 (filed 2007)
(internal quotation marks and citation omitted), cert. denied, 2008-NMCERT-002, 143
N.M. 665, 180 P.3d 672. Since the facts in this case are not in dispute, we review the
district court’s legal conclusions de novo. See id. “An officer has probable cause to
arrest when the facts and circumstances within the officer’s knowledge are sufficient
to warrant the officer to believe that an offense has been or is being committed.” Id.
¶ 9.
{9} 	Plaintiff does not dispute that Defendant Parkin observed a firearm in Plaintiff’s
car, that Plaintiff confirmed ownership of the gun, or that Defendant Parkin then
requested a criminal history from dispatch. 	Plaintiff also does not dispute that
dispatch informed Defendant Parkin that Plaintiff was a felon or that Defendant Parkin
approached Plaintiff with this information. Plaintiff instead argues that when Plaintiff
responded that he was not a felon because he had received a deferred adjudication and
proffered a copy of the Texas order as proof of the deferred adjudication, Defendant

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Parkin should have investigated the matter further. Plaintiff additionally argues that
Defendant Parkin was not entitled to summary judgment because New Mexico case
law clearly establishes that out-of-state deferred adjudications are treated as New
Mexico deferred sentences and that a person who has received a deferred sentence in
New Mexico is not a “felon” for purposes of the felon in possession of a firearm
statute.
{10} 	Assuming without deciding that Plaintiff’s assertions of the law regarding the
impact of deferred adjudications on the statute are true, a question of material fact
nonetheless remains as to whether it was clear if Plaintiff was a felon in possession
of a firearm at the time of his arrest. This question of fact remains not because the
area of law presents uncertainty, as the district court found, but rather because of the
evidence in the record. See State v. Garcia, 2009-NMSC-046, ¶ 12, 147 N.M. 134,
217 P.3d 1032 (reiterating that we affirm if the district court was “right-for-any-
reason”). 	Specifically, the Texas order that Plaintiff showed to Defendant Parkin
when claiming that he had a deferred adjudication does not indicate the charge to
which the order pertained, whether the charge was for a felony, or, most importantly,
whether the order pertained to the same charge as the felony identified by dispatch.
It does clearly indicate that a case was dismissed without any adjudication of guilt and
that Defendant was discharged from further supervision.

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{11} 	Plaintiff argues that when presented with this evidence, Defendant Parkin
should have investigated further because the evidence would have negated probable
cause and because officers may not ignore available evidence or undisputed facts that
a reasonable officer would consider. 	However, Plaintiff provides no evidence or
authority to show that a reasonable officer would not have made an arrest until the
officer could further investigate an out-of-state order containing no added clarity or
relevant information. 	As such, we assume no such authority exists. 	See In re
Adoption of Doe, 100 N.M. 764, 765, 676 P.2d 1329, 1330 (1984) (holding that
arguments in briefs must be supported by cited authority and that, when they are not,
we assume counsel was unable to find supporting authority). Moreover, the Texas
order does not actually dispute the information that dispatch provided Defendant
Parkin since the order did not contain sufficient information to appear relevant at the
time of the arrest.
{12} 	We note that Plaintiff does not argue in his brief in chief that Defendant Parkin
is subject to Section 1983 liability because he stopped Plaintiff without reasonable
suspicion, thereby unlawfully detaining Plaintiff in violation of Plaintiff’s clearly
established Fourth Amendment rights. Therefore, we do not address this argument.
See Cain v. Champion Window Co. of Albuquerque, LLC, 2007-NMCA-085, ¶ 31, 142
N.M. 209, 164 P.3d 90 (holding that the plaintiffs abandoned their arguments when

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they failed to include them in their brief in chief).
{13} 	The district court did not err in granting Defendant Parkin qualified immunity
because Defendant Parkin reasonably believed that he had probable cause to arrest
Plaintiff. As a result, the district court correctly granted Defendant Parkin summary
judgment as a matter of law. Similarly, the district court did not err in concluding that
a question of material fact exists as to Plaintiff’s felony status at the time of arrest,
thereby denying Plaintiff’s motion for summary judgment.
CITY OF CLOVIS: SUMMARY JUDGMENT
{14} 	Plaintiff next contends that the district court erred in granting Defendant City
of Clovis’ motion for summary judgment on the basis of a lack of evidence of
municipal liability. Specifically, Plaintiff argues that the municipality had customs
and policies of inadequate police training and is, therefore, liable under Section 1983.
Because Defendant Parkin is entitled to qualified immunity, there is no basis for
municipal liability.
{15} 	Section 1983 liability cannot be based upon the doctrine of respondeat superior.
Gallegos v. State, 107 N.M. 349, 353, 758 P.2d 299, 303 (Ct. App. 1987), limitation
of holding on other grounds recognized by Callaway v. N.M. Dep’t of Corr., 117 N.M.
637, 642, 875 P.2d 393, 398 (Ct. App. 1994). 	Instead, Plaintiff needed to show
“direct personal involvement by [D]efendants in the violation of [P]laintiff’s rights.”

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Id. To show supervisory liability under Section 1983, Plaintiff needed to establish (1)
that there was “a deprivation of [P]laintiff’s constitutional rights by an employee
under the control of [Defendants]”; (2) that the deprivation rises “to the level of
deliberate indifference, or result[s] from reckless disregard of [P]laintiff’s rights”; and
(3) that Defendants had notice of the harm. Gallegos, 107 N.M. at 353, 758 P.2d at
303 (citations omitted). Additionally, there must be an affirmative link between the
deprivation to Plaintiff and the actions or inactions of Defendants—specifically, that
Defendants had notice of the risk of harm and failed to implement a policy to correct
the conduct. See id. at 353-54, 758 P.2d at 303-04.
{16} 	Plaintiff fails on the first point. As established above, when Defendant Parkin
arrested Plaintiff for felon in possession of a firearm, he did not deprive Plaintiff of
his constitutional right because the question of Plaintiff’s felony status at the time of
the arrest was uncertain and, as a result, Defendant Parkin reasonably believed that he
had probable cause. The district court did not err in granting summary judgment to
Defendant City of Clovis on the grounds that no evidence exists for municipal
liability.
REMAINING TORT ACTIONS
{17} 	Plaintiff finally argues that the district court erred in dismissing his remaining

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causes of action for negligence, false imprisonment, malicious prosecution, assault
and battery, and wrongful arrest. 	Plaintiff first claims that Deputy Parkin was
negligent because he did not take the time to check the validity of Plaintiff’s felony
conviction after he was presented with the Texas order.
{18} 	NMSA 1978, Section 41-4-4(A) (2001) grants public employees immunity from
tort actions except for those waived by the Religious Freedom Restoration Act and by
NMSA 1978, Sections 41-4-5 to -12 (1976, as amended through 2007). Section 41-4-
12 states that Section 41-4-4 immunity
does not apply to liability for personal injury, bodily injury, wrongful
death 	or 	property 	damage 	resulting 	from 	assault, 	battery, 	false
imprisonment, false arrest, malicious prosecution, abuse of process, libel,
slander, 	defamation 	of 	character, 	violation 	of 	property 	rights 	or
deprivation of any rights, privileges or immunities secured by the
constitution and laws of the United States or New Mexico when caused
by law enforcement officers while acting within the scope of their duties.
A plaintiff must specifically allege one of the enumerated torts listed in the statute to
overcome an officer’s immunity under Section 41-4-4. 	See Lessen v. City of
Albuquerque, 2008-NMCA-085, ¶ 35, 144 N.M. 314, 187 P.3d 179 (stating that
Section 41-4-12 immunity “applies when negligence is alleged only if the negligence
caused an enumerated tort or violation of rights”), cert. denied, 2008-NMCERT-005,
144 N.M. 331, 187 P.3d 677. The Legislature did not leave room in the list for other
acts of negligence. Indeed, if the Legislature had intended to include other acts or the

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tort of simple negligence, it could have done so. See City of Roswell v. Smith, 2006-
NMCA-040, ¶ 12, 139 N.M. 381, 133 P.3d 271 (noting that the Legislature could have
included language in a statute if it had so desired).
{19} 	Moreover, it is well established in New Mexico that Section 41-4-12 immunity
is not waived in an action for negligence standing alone. Lessen, 2008-NMCA-085,
¶ 35. As stated in Lessen, “no case has held that simple negligence in the performance
of a law enforcement officer’s duty amounts to commission of one of the torts listed
in [Section 41-4-12].” Id. ¶ 38 (alteration in original) (internal quotation marks and
citation omitted). Although Plaintiff does recite Section 41-4-12 and lists the torts
contained therein, he does not specify an enumerated tort in his negligence claim.
{20} 	Additionally, allegations of negligence based on one of the torts specified in
Section 41-4-12 are appropriate only when a law enforcement officer’s negligence
allegedly caused a third party to commit one of the enumerated intentional acts.
Lessen, 2008-NMCA-085, ¶ 39. Plaintiff makes no assertion that Defendant Parkin’s
alleged negligence caused a third party to commit any intentional tort. The district
court did not err in dismissing Plaintiff’s cause of action for negligence.
{21} 	The 	remainder 	of 	Plaintiff’s 	claims—false 	imprisonment, 	malicious
prosecution, assault and battery, and wrongful arrest—are each specified torts listed
in Section 41-4-12 and, as such, could subject Defendant Parkin to civil liability.

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However, Plaintiff’s claims for false imprisonment, false arrest, and malicious
prosecution presuppose that Defendant Parkin did not have probable cause to arrest
Plaintiff for felon in possession of a firearm. 	See Santillo v. N.M. Dep’t of Pub.
Safety, 2007-NMCA-159, ¶ 12, 143 N.M. 84, 173 P.3d 6. 	Plaintiff’s assault and
battery claim also presupposes a lack of probable cause because Plaintiff argues that
Defendant Parkin “arguably” committed assault and battery on Plaintiff because he
had no valid reason to arrest Plaintiff, the arrest caused Plaintiff harm, and, therefore,
“his conduct was offensive.” As established above, Defendant Parkin had probable
cause to make the arrest. Plaintiff’s claims were properly dismissed.
CONCLUSION
{22} 	We affirm the district court’s grant of Defendants’ motion for summary
judgment and dismissal of Plaintiff’s motion for summary judgment and remaining
causes of action.
{23} 	IT IS SO ORDERED.
_______________________________
JAMES J. WECHSLER, Judge

WE CONCUR:

RODERICK T. KENNEDY, J udge

LINDA M. VANZI, Judge

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