ABALOS V. BERNALILLO COUNTY DIST. ATT'Y'S OFFICE, 1987-NMCA-026, 105 N.M. 554, 734
P.2d 794 (Ct. App. 1987)
Ernestine Abalos, Plaintiff-Appellant,
vs.
The Bernalillo County District Attorney's Office, Steven
Schiff, Louis Mande, John Does 4 and 5,
Defendants-Appellees; Ernestine Abalos,
Plaintiff-Appellee,
v. Bernalillo County Detention Center, Mike Hanrahan and
The City of Albuquerque, Defendants-Appellants; Ernestine
Abalos, Plaintiff-Appellant, v. E. L. Hansen, The City of
Albuquerque, and John Doe 6, Defendants-Appellees
Nos. 9313, 9430, 9513 (Consolidated)
COURT OF APPEALS OF NEW MEXICO
1987-NMCA-026, 105 N.M. 554, 734 P.2d 794
APPEALS FROM THE DISTRICT COURT OF
BERNALILLO COUNTY, PHILIP R. ASHBY, District Judge.
Randi McGinn, Albuquerque, for
Plaintiff-Appellant and Plaintiff-Appellee, Ernestine Abalos.
Rebecca A. Houston, Paula Z. Hanson,
Keleher & McLeod, P.A., Albuquerque, for Defendants-Appellants Bernalillo
County Detention Center, M. Hanrahan and The City of Albuquerque.
Karen C. Kennedy, Butt, Thornton &
Baehr, P.C., Albuquerque, for Defendants-Appellees Bernalillo County District
Attorney's Office, S. Schiff, L. Mande and John Does 4 and 5.
John S. Thal, Timothy R. Van Valen,
Modrall, Sperling, Roehl, Harris & Sisk, P.A., Albuquerque, for
Defendants-Appellees E. L. Hansen and the City of Albuquerque.
{1} Plaintiff, Ernestine
Abalos, brought this action under the New Mexico Tort Claims Act, NMSA 1978,
Sections
41-4-1 to -29 (Repl.1986), claiming personal injuries and damages
resulting from her rape by John Moody following his allegedly negligent release
from jail. Plaintiff sued three groups of defendants whom we label and identify
as (1) the Detention Center defendants, including the Bernalillo County
Detention Center (BCDC), the City of Albuquerque (the City), as operator of
BCDC, Mike Hanrahan, its director, and John Does 1, 2 and 3, as employees of
BCDC; (2) the District Attorney defendants, including the Bernalillo County
District Attorney's Office, Steven Schiff, as District Attorney, Louis Mande,
Assistant District Attorney, and John Does 4 and 5, as employees of the
District Attorney's Office; and (3) the Albuquerque Police Department (APD) defendants,
including the City of Albuquerque, E.L. Hansen, as Chief of Police for the APD,
and John Doe 6, an employee of the APD.
{2} A review of the record
reveals that John Does 1, 2, 3 and 6 were not served with process and no
appearance was made on their behalf. Moreover, neither did the motions to
dismiss nor the respective orders thereon mention those defendants. Therefore,
John Does 1, 2, 3 and 6 are not before this court on appeal. As to John Does 4
and 5, an entry of appearance was made on their behalf and they are included in
the District Attorney defendants' answer and motion to dismiss. The order
granting their motion to dismiss also includes John Does 4 and 5. Therefore, we
include John Does 4 and 5 in this appeal.
{3} The trial court denied
the motion to dismiss filed by the Detention Center defendants, but granted
those defendants the right to apply for an interlocutory appeal under NMSA
1978, Section
39-3-4. The trial court granted the respective motions to dismiss
filed by the District Attorney defendants and the APD defendants. Plaintiff
appeals directly from these orders dismissing her complaint. We granted the
Detention Center defendant's interlocutory appeal and plaintiff's motion to
consolidate the three appeals. During the pendency of this appeal, plaintiff
and the APD defendants settled their differences, and an order was entered
dismissing the appeal in Cause No. 9513. The issue in the remaining appeals
involves the propriety of the trial court's ruling on the respective motions to
dismiss plaintiff's complaint.
{4} According to plaintiff's
complaint, John Moody, who would later plead guilty to the crime of criminal
sexual penetration of plaintiff, was arrested in Texas on December 27, 1983, on
a warrant issued by the State of New Mexico for armed robbery and aggravated
assault arising from an unrelated crime committed in Albuquerque in September
1983. Waiving extradition, Moody was returned to Albuquerque and booked into
the Bernalillo County Detention Center on $25,000 bond. At the time of his
arrest, Moody had a prior felony conviction for murder and theft, and a
separate felony conviction for kidnapping.
{5} Moody was arraigned in
metropolitan court on January 2, 1984. Plaintiff alleges that under NMSA 1978,
Metro. Rule 52(d) (Repl.1985),
1
the district attorney had ten days within which to obtain an indictment on
Moody "in order to keep him in custody." The grand jury returned an
indictment against Moody on January 12, 1984, with a suggested bond of $25,000.
The indictment was filed in district court and a bench warrant issued on
January 13, 1984.
{6} Whether the bench warrant
was delivered before or after Moody was released
{*557}
from custody is unclear. In any event, the pleadings recite, and none of
the parties seem to question, that he was released on the afternoon of January
13, 1984, pursuant to a metropolitan court order, and that within six weeks
after release he raped plaintiff.
{7} Plaintiff generally
claims breach of duty on the part of defendants in releasing Moody and in
failing to warn the public, including plaintiff, of his release. These appeals
require that we determine as to each defendant whether immunity was waived
under the Tort Claims Act.
The Tort Claims Act shields both governmental entities and
public employees from liability for torts except when immunity is specifically
waived in the Act. If a public employee, while acting in the scope of duty,
commits a tort falling within one of the waivers, the entity which employs him
is liable. See § 41-4-4(A) (Repl. Pamp.1982).
Wittkowski v. State, 103 N.M. 526, 529, 710 P.2d 93,
96 (Ct. App. 1985). As to all defendants, plaintiff relies on Section 41-4-12
as the basis for waiver of immunity. That section provides:
The immunity granted pursuant to Subsection A of Section
41-4-4* * * 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 law enforcement officer is defined in Section 41-4-3(D) as
any full-time salaried public employee of a governmental
entity whose principal duties under law are to hold in custody any person
accused of a criminal offense, to maintain public order or to make arrests for
crimes, or members of the national guard when called to active duty by the
governor[.]
{8} We now examine each group
of defendants, except for APD, to determine whether immunity from liability was
waived.
I. THE DETENTION CENTER DEFENDANTS
{9} These defendants filed
their motion to dismiss under SCRA 1986, Rule 1-012(B)(6) based on a failure to
state a claim. Although the deposition of Steven Schiff was before the court,
and the parties refer to it in their briefs, the parties agree that the
deposition has no bearing on the legal issue before this court and that the
Rule 1-012(B)(6) standard of review should apply. Accordingly, we must accept
all well pleaded facts as true, and resolve all doubts in favor of the
sufficiency of the complaint.
Wittkowski.
{10} From the matters before
us, including the parties' briefs and applicable statutes, it appears that BCDC
is a joint county-municipal facility operated by the City of Albuquerque under
NMSA 1978, Section
33-3-2 (Cum. Supp.1986). Without conceding waiver of
immunity for either, the Detention Center defendants urged, at oral argument,
that BCDC is not a separate governmental entity and that the proper
governmental entity, if any, is the City. They base this argument on the claim
that BCDC is a building and that the City operates the detention center housed
in that building as a department. Plaintiff does not disagree as long as one
governmental entity, responsible for holding in custody persons charged with a
criminal offense, remains a defendant in the lawsuit. Without deciding the
correctness of defendants' position, we accept, for the purposes of the case,
that the City is the proper governmental entity directly responsible for
operating the detention center.
{11} Defendants here concede,
for the purposes of their motion, that the City is a governmental entity and
that it employed Hanrahan and John Does 1, 2 and 3, identified as jailers. They
argue, however, that the City, like the corrections department in
{*558} Wittkowski, does not fit within
the definition of a law enforcement officer.
{12} Whether the City should
be named as a party defendant raises an issue that has caused confusion and
inconsistency in this court. We must now clarify two points of law: (1) whether
a governmental entity can be named party defendant; and (2) if the entity can
be sued, which entity should be named.
1. Governmental Entity as Named Defendant
{13} In two recent cases,
this court either held or implied that a governmental entity cannot be named as
a defendant. Without expressly so holding, in
Wittkowski, we stated:
The particular agency which was allegedly negligent is the
corrections department. Plaintiffs allege that the law enforcement officer
waiver applies to the corrections department. As quoted above, however, Section
41-4-3 defines law enforcement officers as "any full-time salaried public
employee of a governmental entity." The corrections department is a
governmental entity under the act. The statute is to be given effect as
written. Methola [v. County of Eddy, 95 N.M. 329, 622 P.2d 234 (1980].
The corrections department is not within the definition.
Id., 103 N.M. at 530, 710 P.2d at 97.
{14} In
Silva v. State,
Ct. App.No. 9267 (Filed December 14, 1986), we followed
Wittkowski and
held:
Plaintiffs contend that CCRD [Corrections and Criminal
Rehabilitation Department] is liable under Sections 41-4-6, -9, and -10. Each
of these sections waives immunity for negligence of "public
employees." A "public employee" is defined as an officer,
employee, or servant of a governmental entity. § 41-4-3(E). The corrections
department is a governmental entity under the Tort Claims Act, not an employee
of a governmental entity. See Wittkowski. Therefore, CCRD does not fall
within any of these sections, and the trial court properly dismissed the claims
against CCRD.
{15} We reasoned in each case
that the Tort Claims Act provides waivers of immunity for certain activities.
An examination of the Tort Claims Act, Sections 41-4-5 to -11, reveals that
each of those waivers speaks in terms of "the negligence of public
employees while acting within the scope of their duties." Section 41-4-12,
which provides a waiver for law enforcement officers and the one with which we
are concerned, refers to "law enforcement officers while acting within the
scope of their duties." the definition of "public employee"
includes law enforcement officers. § 41-4-3(E). Because a governmental entity
is not by definition a public employee or law enforcement officer, we decided
in those cases that an entity was immune from suit, despite the waivers.
{16} This reasoning was
incorrect and is contrary to other sections of the Tort Claims Act that
contemplate clearly that a governmental entity can be a named defendant and can
have judgment entered against it.
See, e.g., §§ 41-4-14, -15(A), -17(A)
and (B), -19(A) and (B) and -23(B)(5). Also, numerous New Mexico cases,
although not addressing the question, have included an action under the Tort
Claims Act naming various governmental entities.
See, e.g., Wells v. County
of Valencia,
98 N.M. 3,
644 P.2d 517 (1982);
Tompkins v. Carlsbad
Irrigation District,
96 N.M. 368,
630 P.2d 767 (Ct. App.1981);
Sugarman
v. City of Las Cruces,
95 N.M. 706,
625 P.2d 1223 (Ct. App.1980);
Garcia
v. Albuquerque Public Schools Board of Education,
95 N.M. 391,
622 P.2d 699
(Ct. App.1980);
O'Brien v. Middle Rio Grande Conservancy District,
94
N.M. 562,
613 P.2d 432 (Ct. App.1980).
{17} We erred in implying
that a governmental entity cannot be a named defendant, and to the extent that
Silva
and
Wittkowski state otherwise, they are hereby modified.
{18} An entity or agency can
only act through its employees. Without its employees, the entity is an empty
shell. Each
{*559} of the eight waivers
listed in Sections 41-4-5 to -12 identifies public employees; it follows that
one can sue the public employee and the agency or entity for whom the public
employee works. While the waivers all require negligence or conduct of public
employees while acting within the scope of their duties, one need not expressly
find liability in the Tort Claims Act against the governmental entity under the
doctrine of respondeat superior as plaintiff contends,
see Silva;
rather, the statute itself makes the entity liable. § 41-4-4(B), (C) and (D).
See
Gonzales v. State, 29 Cal. App.3d 585, 105 Cal. Rptr. 804 (1972).
{19} A governmental entity,
however, cannot be sued randomly. Certain criteria must be met before an entity
can be named as party defendant.
2. When an Entity Can be Sued
{20} Again, New Mexico's law
is confusing and inconsistent regarding which entity can be sued and when. One
line of cases suggests the city or county is a properly named defendant.
See,
e.g., Methola v. County of Eddy,
96 N.M. 274,
629 P.2d 350 (Ct. App.1981);
Doe
v. City of Albuquerque,
96 N.M. 433,
631 P.2d 728 (Ct. App.1981);
Miera
v. Waltemeyer,
95 N.M. 305,
621 P.2d 522 (Ct. App.1980). In a second line
of cases, the state is an improper party and only the particular agency that
caused the alleged harm is the party that can be named.
Silva; Wittkowski;
Begay v. State,
104 N.M. 483,
723 P.2d 252 (Ct. App.1985),
rev'd on
other grounds, Smialek v. Begay,
104 N.M. 375,
721 P.2d 1306 (1986).
{21} The reasoning behind
naming the particular entity rather than the state is that only the party
responsible for the alleged harm should be named.
Silva. Where there is
no indication that the state did anything wrong or had any responsibility for
the alleged harm suffered by plaintiffs, the state is properly dismissed.
Begay.
We agree with this approach. While
Silva, Wittkowski and
Begay
dismissed the state as being too remote an actor, we can logically extend the
same analysis to the city. To force the city or state to defend an action in
which it has little direct involvement would be unduly burdensome and
unnecessary. Only the particular agency involved should be named. In so
deciding, we do not intend to relieve unnamed entity from liability imposed by
Section 41-4-4.
{22} Here, the City is not a
remote actor; rather, according to its own admission, it is the particular
entity that operates the detention center and it would be the governmental
entity responsible for the alleged harm. Accordingly, BCDC, although perhaps
not a separate agency, should be dismissed from the lawsuit. Whether the City
can be sued as the particular entity responsible requires further analysis.
{23} To name a particular
entity in an action under the Tort Claims Act requires two things: (1) a
negligent public employee who meets one of the waiver exceptions under Sections
41-4-5 to -12; and (2) an entity that has immediate supervisory
responsibilities over the employee. If a public employee meets and exception to
immunity, then the particular entity that supervises the employee can be named
as a defendant in an action under the Tort Claims Act. If the city or state
directly supervises the employee, then the city or state can be named. We,
therefore, hold today that the waivers in Sections 41-4-5 to -12 contemplate
suing the immediate supervisory entity of the public employee involved.
{24} We apply this analysis
to the City. First, we must determine if John Does 1, 2 and 3 are public
employees who fall within a waiver under Sections 41-4-5 to -12. Plaintiff
includes within her pleading alleged violations while acting within the scope
of their duties by John Does 1, 2 and 3, as jailers. Plaintiff argues that
jailers have been held to be law enforcement officers,
Methola, and are
not immune from suit under Section 41-4-12. We agree.
{25} Before a law enforcement
officer (the jailers in this case) or the City can be found liable under the
Tort Claims Act, we must find that the employees breached some duty required by
law.
Schear v. Board of County Commissioners,
101 N.M. 671,
687 P.2d 728
(1984). Section
{*560} 41-4-3(D)
requires law enforcement officers to hold people in custody. Plaintiff's
complaint sets forth allegations of negligence which, if proved, are sufficient
to establish breach of a duty under Section 41-4-3(D). Since John Does 1, 2 and
3 are employees of the City, the trial court was correct in denying its motion
to dismiss.
{26} Having held that
plaintiff can sue the City, we must determine if Hanrahan, as Director of BCDC,
can also be sued. The determining factors is whether Hanrahan falls within the
definition of a law enforcement officer. The answer turns on that portion of
the definition which includes "any full-time salaried public employee* * *
whose principal duties under law are to hold in custody any person accused of a
criminal offense* * *." § 41-4-3(D).
{27} Defendants rely on
Anchondo
v. Corrections Department,
100 N.M. 108,
666 P.2d 1255 (1983). They liken
the director of the Detention Center to the warden of the state penitentiary
who was held, in that case, not to be a law enforcement officer under Section
41-4-3(D). The supreme court looked to what the individual actually did, his
duties and responsibilities. In
Anchondo, the supreme court found, after
reviewing the statutory duties of the secretary of corrections and the warden,
that their principal duties were administrative in nature and that they did not
deal directly with the daily custodial care of prison inmates.
{28} Plaintiff claims that
while the duties of the warden of the state penitentiary may not deal directly
with the daily custodial care of prison inmates, such is not the case of the
director of a county jail facility. She contends that the director of BCDC is
no different than a county sheriff, who manages jails and who has been held as
being a law enforcement officer while acting in that capacity.
Methola.
{29} While, from a strict
analysis of statutory provisions, we can see a parallel between the director of
the Detention Center and the warden of the state penitentiary, we can also see
a parallel between the director of BCDC (jail administrator) and a sheriff.
NMSA 1978, Sections
33-3-1 to -25 (Repl. Pamp.1983 & Cum. Supp.1986)
outline the duties of both sheriffs and jail administrators. In light of
Methola,
we hold as a matter of law that the director's duties are principally to hold
in custody persons accused of a criminal offense. Hanrahan, therefore, falls
within the definition of law enforcement officer. Plaintiff's complaint sets
forth allegations of negligence including, among other things, that Hanrahan
had a duty to formulate and implement procedures to prevent the mistaken
release of violent criminals. Such allegations, if proven, are sufficient to establish
breach of a duty under Section 41-4-3(D), and Hanrahan is properly included as
a defendant. We point out that no matter how many defendants plaintiff names,
she is limited to a maximum amount whether she succeeds against one or all
defendants on her claim. § 41-4-19(A).
{30} We affirm the denial of
summary judgment for Hanrahan and the City, but reverse as to BCDC.
II. THE DISTRICT ATTORNEY DEFENDANTS
{31} While these defendants,
as did the others, filed their motion to dismiss under Rule 1-012(B)(6), it
appears the deposition of Mr. Schiff was before the trial court. Therefore, the
standard of review under SCRA 1986, Rule 1-056 applies.
Transamerica
Insurance Co. v. Sydow,
97 N.M. 51,
636 P.2d 322 (Ct. App.1981).
{32} The question on appeal
is whether a genuine issue of material fact exists that the district attorney,
the assistant district attorney and John Does 4 and 5 acted as law enforcement
officers. Unlike the Detention Center defendants and the APD defendants, an
entry of appearance was made on behalf of John Does 4 and 5 and they were
included in the order of dismissal. Plaintiff identified these John Does as
employees of the district attorney. In this case, one of the employees was
responsible for processing the paper work so that the Detention Center
personnel would be notified of the indictment and warrant before
{*561} the expiration of the ten days and
another employee may have delivered the warrant to BCDC.
{33} Under the definition of
law enforcement officer, Section 41-4-3(D), the only portion relied on relates
to public employees whose principal duties under the law "are to hold in
custody any person accused of a criminal offense." Following the directive
of
Anchondo, we must look to what the person actually does, his duties
and responsibilities.
{34} From a review of the
material before us, including the deposition of Mr. Schiff, there is not the
slightest indication that any of these defendants have, as their principal duty
under the law, the responsibility to hold in custody any person accused of a
criminal offense.
See NMSA 1978, §
36-1-18 (Repl. Pamp.1984). In
applying the definition to these defendants, plaintiff seeks to make them law
enforcement officers on the basis that their alleged failure to timely process
the paperwork resulted in Moody's release from custody. An action or inaction
indirectly affecting the release of a prisoner does not rise to a
"principal dut[y]* * * to hold in custody" under law. Plaintiff has
not directed our attention to any provision in the law that requires the
district attorney, his assistants or personnel to hold prisoners in custody.
That is the statutory function of jails and detention centers. By definition,
then, these defendants are not law enforcement officers within the context of
the facts of the present case.
{35} Plaintiff argues that
Candelaria
v. Robinson,
93 N.M. 786,
606 P.2d 196 (Ct. App.1980), is overly broad in
holding that "[n]either Robinson [the district attorney] nor Singer
[assistant direct attorney] was a 'law enforcement officer' as that term is
defined in § 41-4-3(D), supra."
Id. at 790, 606 P.2d at 200. We
read this to mean neither was a law enforcement officer in the context of the
claim made, a defamation suit. Whether a district attorney or any of his
assistants could be law enforcement officers under other circumstances was not
decided in
Candelaria.
{36} Nor do we need to decide
that question here. Plaintiff refers us to federal cases decided under 42
U.S.C.A. Section 1983 (West 1981) where prosecutors may lose immunity while
performing various functions. We are not concerned with Section 1983 actions or
any function other than processing paperwork in the presentation of indictments
returned by the grand jury. In that role, the District Attorney defendants did
not act as law enforcement officers within the statutory definition.
{37} Plaintiff raises an
equal protection constitutional argument, contending that to allow immunity for
the District Attorney defendants who were "performing the identical
custodial task as BCDC and the APD liason [sic] [liaison]" would create an
arbitrary and unreasonable classification in violation of the United States and
New Mexico Constitutions. Since we have held that the District Attorney
defendants were
not performing identical custodial tasks as BCDC, we
need not answer plaintiff's equal protection argument. We have not held that
the Tort Claims Act universally excludes all district attorneys' we have only
held that the District Attorney defendants do not fall within the definition of
law enforcement officers as applied to the allegations and facts of the instant
case. We note, however, that a claim similar to plaintiff's claim has been
addressed and rejected in
Garcia v. Albuquerque Public Schools Board of
Education.
{38} We affirm the dismissal
of the District Attorney defendants. We answer the Detention Center defendants'
interlocutory appeal by holding that BCDC should be dismissed, but that the
City and Hanrahan fall within the law enforcement waiver of immunity under Section
41-4-12.
LORENZO F. GARCIA, Judge, HARVEY FRUMAN, Judge, concur.
1
Metro.R. 52(d) provides:
A preliminary examination shall be held within a reasonable
time but in any event no later than ten days following the initial appearance
if the defendant is in custody and no later than sixty days if he is not in
custody. Failure to comply with the time limits shall not affect the validity
of any indictment for the same criminal offense.