Commercial Litigation and Arbitration

Inherent Power Sanctions: 10th Cir. Holds It Violates Discovery Stay to Take Consensual Interview of 1 Defendant under Oath As Part of Settlement to Use Against Others on SJ — Deposition-Like Transcript (Improper) vs. Affidavit (OK) — Transcript Out

Marin v. King, 2018 U.S. App. LEXIS 100 (10th Cir. Jan. 3, 2018):


This case arises out of the execution of three search warrants on a New Mexico ranch owned by Plaintiffs Mario and Reyes Marin.1 The warrants were obtained and executed as part of an investigation of an alleged cockfighting operation on Plaintiffs' ranch. Members of the New Mexico Attorney General's Animal Cruelty Task Force (Task Force) actively contributed to the procurement and execution of the search warrants. In the process of executing the [*2]  search warrants, New Mexico law enforcement officials seized and destroyed hundreds of Plaintiffs' hens, roosters, baby chickens, and eggs. But New Mexico never charged Plaintiffs with any crimes.

Plaintiffs filed this 42 U.S.C. § 1983 lawsuit against former New Mexico Attorney General Gary King, former New Mexico Assistant Attorney General Steven Suttle, New Mexico State Police Detective Max Salas, San Juan County Deputy Sheriff Bryce Current, San Juan County, and two private citizen volunteers serving on the Task Force—Heather Ferguson Greenhood ("Ms. Ferguson") and Dr. Patricia Feeser Norris ("Dr. Norris"). Plaintiffs claimed that Ms. Ferguson and Dr. Norris violated their Fourth, Fifth, and Fourteenth Amendment rights, and that Mr. King and Mr. Suttle were liable under a theory of supervisory liability.2 The remaining Defendants moved for summary judgment based on qualified immunity and the district court granted each motion. Plaintiffs appeal. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.


In this section, we begin with a brief overview of the facts underlying this dispute. We then provide the procedural history giving rise to this appeal.

A. Factual History

1. The Task Force

In 2007, then-Attorney General Gary King organized [*3]  the Task Force as a "policy group" to "engage in lobbying and other efforts aimed at the generation of new animal cruelty laws" and to "facilitate information sharing between state and local law enforcement agencies regarding the implementation of new and existing animal cruelty laws." App. at 416. The Task Force was also intended to support the enforcement of animal fighting laws. But it was not designed to "have any independent authority to conduct any law enforcement activities." Id. at 417.

The Task Force was an ad hoc group for sharing information that consisted of individuals who were interested, or had an expertise, in animal cruelty laws. The Task Force met periodically and representatives of several local law enforcement authorities attended the meetings at various times. The Task Force included employees of the Attorney General's Office, local law enforcement officials, and private citizens, such as Ms. Ferguson and Dr. Norris. While the Task Force had no formal membership, titles, or appointment process, Mr. King was known as the Task Force's "chair," Mr. Suttle was known as its "head," Ms. Ferguson was known as its "coordinator," and Dr. Norris was its forensic veterinarian. Ms. Ferguson and [*4]  Dr. Norris were unpaid citizen volunteers. Neither was an employee of the Attorney General's Office or received any law enforcement training as a prerequisite to, or as part of, her service on the Task Force. At all relevant times, Ms. Ferguson was an employee of a non-profit entity called Animal Protection for New Mexico.

While Mr. King avers that there was no "policy under which the Task Force would conduct raids related to enforcement of animal cruelty laws," id. at 417, it is undisputed that, in 2008 and 2009, Ms. Ferguson and Dr. Norris accompanied law enforcement officials, from various local entities, during the execution of search warrants on private property. In some instances, officials seized and euthanized animals that appeared to be involved in illegal dogfighting or cockfighting. Although neither Mr. King nor Mr. Suttle personally attended the raids, Ms. Ferguson kept them both apprised of the Task Force's involvement in the raids.

2. The Searches of Plaintiffs' Ranch

On April 29, 2009, Mr. Salas sought a warrant to search Plaintiffs' New Mexico ranch. In his Affidavit for Search Warrant, Mr. Salas averred that, a few days prior, Mr. Current asked him to serve as the lead investigator [*5]  on a possible cockfighting operation at Plaintiffs' ranch. According to Mr. Salas, Mr. Current stated his office learned about the cockfighting operation through a confidential informant (CI). Mr. Current then confirmed elements of the CI's report during a helicopter ride over Plaintiffs' ranch. Mr. Salas's affidavit also indicated he met with another detective who had learned from a second CI that cockfighting events were occurring at Plaintiffs' ranch. The detective informed Mr. Salas that the second CI provided information about two other cockfighting operations in New Mexico, and that "[Ms.] Ferguson with the Attorney General's Office Animal Cruelty Task Force . . . said the information the [second] CI gave had been verified." Id. at 684. Based on Mr. Salas's affidavit, a magistrate judge issued a search warrant (the First Warrant) the same day Mr. Salas requested it.

Mr. Salas, Mr. Current, and other law enforcement officials executed the First Warrant on Plaintiffs' ranch. Ms. Ferguson and Dr. Norris accompanied Mr. Salas and his officers. While executing the warrant, officials found evidence of cockfighting and animal cruelty. Mr. Salas observed that all the roosters were either on leashes [*6]  or housed in fifty-five gallon plastic drums. He also saw a Hogan-type structure,3 which he believed was used as a cockfighting arena. Mr. Salas and the other officials seized numerous items believed to be used for cockfighting.4 Dr. Norris assisted in the search by examining over one-hundred birds believed to be trained and used for cockfighting. Dr. Norris opined that sixteen of the birds were in "poor condition," so Mr. Salas seized them. Id. at 894.

When Mario arrived at the ranch, Mr. Salas introduced himself as "the lead investigator" and stated he was there to "serve a search warrant in connection with roosters on the property." Id. at 776. Mario later explained the roosters would kill each other if they were not penned, as that is what they had been bred to do. Mario also told Mr. Salas that he and his father "reminisce about old times and throw on the knives and fight the chickens sometimes." Id. at 894. During the ensuing conversation, it became apparent to Mr. Salas that Plaintiffs injected their birds with antibiotics and kept no records of which birds had been treated and which birds had not. Mr. Salas also noted that Plaintiffs did not state whether the medicines in their possession were prescribed by [*7]  a licensed veterinarian.

During the search, Ms. Ferguson rode in a helicopter over the ranch to better observe the property. Mario avers in his affidavit that Mr. Current told him Ms. Ferguson wanted Plaintiffs to sign over all the roosters on the ranch to state custody. Mr. Current explained to Mario that Ms. Ferguson was with the Attorney General's Office and in charge of the search. Mr. Current and Mr. Salas then told Plaintiffs the roosters were to be put down. When Plaintiffs refused to relinquish the birds, Mr. Current and Mr. Salas informed Plaintiffs that they would be charged $6 a day per bird if the birds had to be taken into custody rather than destroyed. This would have required Plaintiffs to pay thousands of dollars per day. Mr. Current and Mr. Salas "made clear that [Ms.] Ferguson was the person who had given them this information." Id. at 778. After speaking with Ms. Ferguson by telephone, Mr. Current informed Plaintiffs they could face felony charges if they did not give permission to euthanize the birds. Plaintiffs did not acquiesce to the destruction of all the birds at that time. But upon learning Dr. Norris had identified sixteen birds in poor condition and that Mr. Salas [*8]  was going to seize them, Reyes signed a form consenting to the removal and destruction of those sixteen birds.

On May 1, 2009, Mr. Salas sought another search warrant for Plaintiffs' ranch. Mr. Salas's supporting affidavit stated that he had a discussion with Ms. Ferguson on April 30, during which she indicated that the remaining roosters and hens at the ranch needed to be euthanized "due to the contamination by the steroids found at the location which, according to the Federal Drug Administration (FDA) and United States Department of Agriculture (USDA), are illegal to administer to poultry." Id. at 690. Mr. Salas further reported that Ms. Ferguson explained the steroids "could potentially enter the food supply chain [and] contaminate other poultry populations in the state." Id. And Mr. Salas averred that Ms. Ferguson claimed she was coordinating with the USDA so its veterinarians could test and assess the seized poultry. Mr. Salas also spoke to Dr. Norris, who stated that TA 333, DSP and AMP-2500, the medications seized from Plaintiffs' ranch during execution of the First Warrant, are long-and short-term steroids, respectively. According to Mr. Salas's affidavit, Dr. Norris also said that possession [*9]  of those steroids is a felony under federal guidelines, the FDA has very strict regulations on what medications can be used in food-producing animals, the medications found are not allowed in poultry, and it is a violation of federal and state regulations to medicate a bird with a controlled substance. The magistrate issued the warrant that day (the Second Warrant).

On the day the magistrate issued the Second Warrant, Mr. Salas and other law enforcement officials appeared at Plaintiffs' property to execute the Second Warrant. Ms. Ferguson again was present. A state police officer introduced Mario to Ms. Ferguson, who identified herself as the Task Force's coordinator. Ms. Ferguson informed Mario that the law enforcement officials had returned for the birds, and that there would be a charge of $3 a day per bird if they had to be taken into custody instead of being destroyed. Ms. Ferguson also told Plaintiffs that the Attorney General's Office was working on legislation to increase the severity of charges available for game fowl fighting and that those laws, if passed, would apply retroactively to Plaintiffs. And she told the Plaintiffs that federal and state charges would be filed for [*10]  the steroids found on the property. Ms. Ferguson and Mr. Salas further advised that judges would be more lenient on the Plaintiffs if they cooperated with law enforcement.

Reyes then signed the paperwork transferring custody of the birds to the state. At that point, Ms. Ferguson instructed law enforcement officials to count the birds on the property. In all, they counted 668 birds. Ms. Ferguson told Mr. Salas that the birds should remain at the property until May 4, 2009, when the USDA would report to the ranch and euthanize the birds.

But, on May 2, 2009, Ms. Ferguson informed Mr. Salas that the USDA would not euthanize the birds. So on May 4, 2009, Mr. Salas drafted a third Affidavit for Search Warrant. The third Affidavit for Search Warrant restated the facts averred in the second Affidavit for Search Warrant and sought authority to seize all fighting cocks, gamefowl, roosters, and hens that were illegally injected with medications, as well as any poultry, including eggs and baby chickens, that had been contaminated by the "illegal use of prescribed medications and the illegal use of anabolic steroids." Id. at 692-95. A magistrate issued a warrant that day (the Third Warrant).

Later that day, Mr. [*11]  Salas and other officials returned to Plaintiffs' ranch to execute the Third Warrant. Ms. Ferguson again attended. Mr. Salas advised Plaintiffs he was there to destroy the birds. Reyes again signed paperwork turning custody of the birds over to the state. Law enforcement officials then seized 435 hens and roosters, 285 baby chickens, and 200 eggs. Animal Control destroyed them all. No arrests were made, nor were any citations issued.

B. Procedural History

On April 27, 2012, Plaintiffs initiated this § 1983 lawsuit, claiming that two aspects of the raids violated their federal constitutional rights. First, Plaintiffs alleged that Ms. Ferguson and Dr. Norris violated their Fourth and Fourteenth Amendment rights to be free from unreasonable searches and seizures because the Second and Third Warrants were based upon knowingly false statements that Ms. Ferguson and Dr. Norris provided to Mr. Salas. Second, Plaintiffs contended that Ms. Ferguson and Dr. Norris violated their Fifth and Fourteenth Amendment rights not to be deprived of property without due process of law when Ms. Ferguson coerced them, through false statements, into consenting to the destruction of their roosters, hens, baby chickens, and eggs. Plaintiffs maintained that Mr. King [*12]  and Mr. Suttle are responsible for the constitutional violations committed by Ms. Ferguson and Dr. Norris under a theory of supervisory liability.

On June 29, 2012, Mr. Suttle moved for summary judgment based on qualified immunity. After stressing that the Task Force did not have any authority to conduct searches, and that Mr. Suttle thus had no authority to command its members to do so, the district court concluded that "there existed no supervisory relationship between [Mr.] Suttle and [Ms.] Ferguson sufficient to hold [Mr.] Suttle liable for any of [Ms.] Ferguson's alleged constitutional violations." Id. at 362. The court then ruled that even if Mr. Suttle was Ms. Ferguson's supervisor, Mr. Suttle is still entitled to qualified immunity because "the law was not sufficiently established to put a reasonable official in [Mr.] Suttle's position on notice that his behavior violated Plaintiffs' rights." Id.5

On May 9, 2013, Mr. King moved for summary judgment on qualified immunity grounds. Mr. King simultaneously moved to stay discovery pending the resolution of his motion for summary judgment. On May 28, 2013, pursuant to Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009), and Jiron v. City of Lakewood, 392 F.3d 410 (10th Cir. 2004), the Magistrate Judge granted Mr. King's motion to stay "all discovery" [*13]  pending the resolution of his motion for summary judgment. The Magistrate Judge explained, "[s]hould Plaintiffs believe that further discovery is necessary to allow them to respond to the motion for summary judgment, they are privileged to file a [Rule] 56(d) affidavit." App. at 493.

On July 12, 2013, Ms. Ferguson and Dr. Norris moved for summary judgment, advancing a qualified immunity defense. Although Ms. Ferguson and Dr. Norris did not join Mr. King's motion to stay discovery, counsel for the parties agreed that the Magistrate Judge would continue the existing stay of discovery and apply it as to the claims against Ms. Ferguson and Dr. Norris because Ms. Ferguson and Dr. Norris also asserted a qualified immunity defense. With the stay pending, Plaintiffs moved to depose Mr. Salas and Mr. Current, but the Magistrate Judge denied the motion.

Subsequent to the denial of their motion to depose Mr. Salas and Mr. Current, Plaintiffs reached a settlement agreement with Mr. Current and San Juan County. As part of the settlement agreement, Mr. Current agreed to be interviewed by Plaintiffs' counsel about Ms. Ferguson's and Dr. Norris's actions at Plaintiffs' ranch. The interview occurred on January 17, 2014, [*14]  before a court reporter and while Mr. Current was under oath. Only Plaintiffs' counsel was present at the interview. On January 22, 2014, the district court, pursuant to the parties' stipulation, dismissed the claims against Mr. Current and San Juan County with prejudice.

On January 31, 2014, Plaintiffs moved to supplement the record on the pending motions for summary judgment with the transcript of Mr. Current's interview. Plaintiffs argued that the transcript is similar to an affidavit and therefore does not violate the orders staying discovery and denying Plaintiffs' Rule 56(d) request to depose Mr. Current. Ms. Ferguson and Dr. Norris responded by moving to strike the transcript from the record.6

On October 29, 2015, the district court denied the motion to supplement the record and granted the motion to strike the transcript. First, the court addressed the motion to supplement, noting that the Tenth Circuit addressed a similar issue in Martinez v. Carson, 697 F.3d 1252 (10th Cir. 2012). The court then ruled that, as in Martinez, the interview was deposition-like and thus in violation of the Magistrate Judge's orders staying discovery and denying Plaintiffs' request to depose Mr. Current. The court next granted Ms. Ferguson and Dr. Norris's [*15]  motion to strike the transcript from the record as a sanction for violating the spirit, if not the letter, of the Magistrate Judge's orders. Although Ms. Ferguson and Dr. Norris requested relief under Fed. R. Civ. P. 12(f) and 37(b)(2)(A), the district court exercised its inherent powers to impose sanctions in response to abusive litigation practices.

Having stricken the transcript of Mr. Current's interview, the district court, in separate orders, addressed Mr. King's motion for summary judgment and Ms. Ferguson's and Dr. Norris's motion for summary judgment. As to Mr. King, the district court concluded that Mr. King was not Ms. Ferguson's supervisor. The court then explained that a "reasonable jury could not find that [Mr.] King promulgated, created, or implemented a policy that harmed Plaintiffs." Id. at 1109. Nor could a reasonable jury "find a causal connection between [Mr.] King's actions and [Ms.] Ferguson's allegedly untruthful statements," which formed the basis for Plaintiffs' constitutional claims. Id. at 1109-10. And because "[Mr.] King neither directed the raid on Plaintiffs' ranch nor knew or suspected that [Ms.] Ferguson would give false statements in connection with the raid," the court also concluded that "a reasonable jury [*16]  could not find that [Mr.] King had the requisite recklessness, gross negligence, or deliberate indifference necessary to support a supervisory liability claim." Id. at 1110. Finally, the court ruled that [Mr.] King was entitled to qualified immunity because "it is unclear . . . that a reasonable official in [Mr.] King's position as chairman of an advisory task force would understand that what he was doing violated Plaintiffs' Fourth Amendment and due process rights." Id. at 1112.

As to Ms. Ferguson's and Dr. Norris's joint motion for summary judgment, the district court concluded that they were entitled to qualified immunity on both of Plaintiffs' claims. First, the court ruled that Plaintiffs' Fourth and Fourteenth Amendment claims failed on the clearly established prong of the qualified immunity analysis because

a reasonable Task Force member would not be on fair notice or understand that providing information, whether false or otherwise, to a law enforcement official, who has a duty to investigate relevant information prior to obtaining and executing a search warrant, would result in an unlawful search warrant and, thus, violate a plaintiff's constitutional rights.

Id. at 1120. Second, the court determined Ms. Ferguson did not violate Plaintiffs' Fifth and Fourteenth Amendment rights [*17]  because no reasonable jury could find that Ms. Ferguson made knowingly false statements to Reyes in order to coerce him into consenting to the destruction of the roosters, hens, baby chickens, and eggs.


On appeal, Plaintiffs maintain the district court erred in granting summary judgment to Defendants on qualified immunity grounds. They also contend the district court abused its discretion when it struck the transcript of an interview with Mr. Current from the record because Plaintiffs conducted the interview and submitted the transcript while discovery was stayed. We address Plaintiffs' challenge to the district court's striking of the transcript of Mr. Current's interview first because the inclusion or exclusion of the transcript impacts the facts from which we may draw reasonable inferences for purposes of our qualified immunity analysis.

A. The Discovery Sanction

Plaintiffs argue the district court abused its discretion when it struck the transcript of an interview with Mr. Current as a sanction for violating the discovery stay in place at the time of the interview. We conclude the district court was within its discretion to strike the transcript. We first provide the [*18]  standard of review and then provide our analysis.

1. Standard of Review

HN1[] "We review a district court's order of discovery sanctions for abuse of discretion." Martinez v. Carson, 697 F.3d 1252, 1256 (10th Cir. 2012). "A district court abuses its discretion when it commits an error of law or makes clearly erroneous factual findings." Planned Parenthood of Kan. & Mid-Mo. v. Moser, 747 F.3d 814, 822 (10th Cir. 2014).

2. Analysis

All parties agree that HN2[] a district court may stay discovery pending the resolution of a motion for summary judgment based on qualified immunity. See Stonecipher v. Valles, 759 F.3d 1134, 1148 (10th Cir. 2014) ("[B]ecause qualified immunity protects against the burdens of discovery as well as trial, a district court may stay discovery upon the filing of a dispositive motion based on qualified immunity."). Nonetheless, Plaintiffs contend the district court here exceeded its discretion in doing so. We disagree and conclude that Martinez, 697 F.3d 1252, controls our analysis.

In Martinez, plaintiffs brought a § 1983 lawsuit against two New Mexico Department of Corrections employees and several other Rio Rancho police officers. 697 F.3d at 1254. Following Iqbal, the magistrate judge stayed all discovery pending the resolution of defendants' motion for summary judgment based on qualified immunity. Id. at 1256. The magistrate judge, however, invited plaintiffs to file a Rule 56(f) (now Rule 56(d)) motion if they believed that some discovery was necessary [*19]  in order to respond to the pending motion for summary judgment. Id. Plaintiffs accepted the invitation and filed a Rule 56(f) motion to depose some defendants. Id. The very next day, before receiving a response to the Rule 56(f) motion, plaintiffs conducted consensual interviews of the Rio Rancho defendants. Id. at 1256-57. Plaintiffs did not notify the magistrate judge or the other defendants of the interviews. Id. at 1257. The interviews proceeded like depositions, with the Rio Rancho defendants being asked extensive questions under oath by plaintiffs' counsel. Id.

Three days after the interviews occurred, the magistrate judge—who was unaware of the interviews—granted in part plaintiffs' Rule 56(f) motion to allow them to conduct limited depositions of defendants. Id. Having already conducted deposition-like interviews with the Rio Rancho defendants, plaintiffs had the recordings of the interviews transcribed by a court reporter. Id. They then used that transcript in their response to defendants' motion for summary judgment. Id. Defendants moved to strike the transcript, arguing that plaintiffs conducted these deposition-like interviews in violation of the stay order. Id. at 1254. The district court concluded that the interviews violated the discovery [*20]  stay, "if not technically, then in spirit." Id. at 1257. The court stated that while plaintiffs could have prepared a traditional affidavit from the contents of the recorded statement, the recorded interviews possessed characteristics of a discovery proceeding. Id. The court also explained that "[c]ounsel did not simply conduct voluntary interviews of the Rio Rancho defendants for investigatory or settlement purposes." Id. Instead, "counsel conducted a deposition-like proceeding with these defendants, using exhibits and asking extensive questions to obtain evidence against the other defendants whose counsel was not noticed to be present." Id. Thus, the court struck the transcript, ordered the parties to proceed with the Rule 56(f) deposition with plaintiffs bearing the costs, and denied without prejudice the pending motions that included citations to the stricken transcript. Id. at 1254, 1257.

On appeal, we concluded that "the district court did not abuse its discretion in holding that plaintiffs violated the magistrate judge's stay order." Id. at 1257. First, "[t]he magistrate judge's stay order clearly stayed 'all discovery.'" Id. Second, with the pending stay of all discovery, it was not overly burdensome to expect plaintiffs to wait less than [*21]  a week to take the depositions, depositions that the magistrate judge ultimately granted leave to conduct. Id. And third, plaintiffs "did not simply exercise their First Amendment right to participate in settlement discussions." Id. "Rather, they obtained deposition-like evidence they then attempted to use precisely like a deposition in their summary judgment pleadings." Id.

Here, we similarly conclude the district court did not abuse its discretion when it struck the transcript of Mr. Current's consensual interview. Plaintiffs conducted the interview with Mr. Current despite the Magistrate Judge's orders clearly staying "all discovery" and denying Plaintiffs' Rule 56(d) motion to depose him. The interview was conducted under oath and was deposition-like, with Plaintiffs' counsel asking Mr. Current extensive questions about the searches. Plaintiffs conducted the interview to obtain evidence against the other Defendants—whose counsel were not present—and to rebut the facts asserted in Defendants' pending motions for summary judgment. The transcript also does not at all resemble a traditional affidavit. Thus, the district court did not abuse its discretion when it concluded that Plaintiffs violated the spirit, [*22]  if not the letter, of the Magistrate Judge's orders staying discovery and denying Plaintiff's Rule 56(d) motion to depose Mr. Current. The court was within its discretion to strike the transcript.

Plaintiffs contend counsel was unaware of Martinez at the time they agreed to dismiss their claims against Mr. Current in exchange for a sworn statement. Even if counsel's unawareness of a controlling decision were somehow an excuse to violate a court's orders—which it is not—we decided Martinez in October 2012, well before Plaintiffs began negotiating with Mr. Current in late 2013. Plaintiffs interviewed Mr. Current on January 17, 2014. On January 22, 2014, the district court filed an order dismissing Mr. Current as a party.

Plaintiffs next insist that "Martinez was wrongly decided because taking witness interviews, in whatever format counsel elects, is not an activity that falls within the rules of discovery." Appellant's Br. at 54. According to Plaintiffs, Martinez effectively suppresses the truth by preventing plaintiffs from being able to rebut facts asserted by defendants in their motions for summary judgment that are based on qualified immunity. But the district court was bound by Martinez. And [*23]  so are we. HN3[] Under the doctrine of stare decisis, we are bound by the decision of another panel absent en banc reconsideration, a superseding contrary Supreme Court decision, or authorization of all currently active judges on the court. Jones v. Okla. City Pub. Sch., 617 F.3d 1273, 1278 (10th Cir. 2010) (citing United States v. Edward J., 224 F.3d 1216, 1220 (10th Cir. 2000)). None of these circumstances are present.

Also, Martinez does not in all cases prevent plaintiffs from obtaining additional discovery when faced with a motion for summary judgment based on qualified immunity. As the Magistrate Judge here noted, Plaintiffs were free to file a Rule 56(d) motion if they believed further discovery was necessary to respond to the pending motions. Sure, Plaintiffs filed a Rule 56(d) motion. And the Magistrate Judge denied it. But had Plaintiffs met their burden under Ben Ezra, Weinstein & Co. v. America Online Inc., 206 F.3d 980 (10th Cir. 2000), Plaintiffs would have been permitted to depose Mr. Current (and Mr. Salas). See App. at 819 (denying Plaintiffs Rule 56(d) motion because they "have not met the Ben Ezra standard by articulating precisely how additional discovery will lead to a genuine issue of material fact" (internal quotation marks omitted)). Alternatively, Plaintiffs maintain this case is distinguishable from Martinez in that while the magistrate judge in Martinez eventually allowed plaintiffs to depose defendants, the [*24]  Magistrate Judge here explicitly refused to allow the deposition of Mr. Current. Plaintiffs therefore insist the result is the suppression of Mr. Current's testimony. While that may be true, any refusal by the Magistrate Judge to allow the deposition is the product of Plaintiffs' failure to meet their Rule 56(d) burden under Ben Ezra. Further, a sanction is more appropriate here than it was in Martinez because Plaintiffs violated not only one—but two—of the Magistrate Judge's orders and because Plaintiffs' counsel's conduct ran contrary to this court's controlling decision in Martinez.

Finally, Plaintiffs contend "agreeing to a dismissal in return for a statement under oath did not have the effect of imposing litigation and discovery obligations on [Mr.] Current, but had the effect of releasing him from them." Appellant's Br. at 55; see also Reply Br. at 24 ("In this case, Plaintiffs' counsel interviewed [Mr.] Current, a witness that was, at the time, not a party to the proceeding and who voluntarily submitted to the interview."). But when Plaintiffs interviewed Mr. Current, he was still a party in this case: Plaintiffs interviewed Mr. Current on January 17, 2014, but the district court did not [*25]  dismiss the claims against him until January 22, 2014. And, in any event, HN4[] the deposition of a non-party still falls within the purview of the rules governing discovery. See Fed. R. Civ. P. 30(a)(1) ("A party may, by oral questions, depose any person, including a party . . . ." (emphasis added)); Fed. R. Civ. P. 30(b)(1) ("A party who wants to depose a person by oral questions must give reasonable written notice to every other party." (emphasis added)); see also Fed. R. Civ. P. 45(a)(1)(B) and (c)(1) (providing for subpoena of non-party for purpose of taking deposition).

We conclude that this case is not meaningfully distinguishable from Martinez, and that the district court did not abuse its discretion in striking the transcript of Mr. Current's interview.



We AFFIRM the district court's decision to strike the transcript of Mr. Current's interview. We also AFFIRM the district court's grant of summary judgment to Ms. Ferguson, Dr. Norris, Mr. King, and Mr. Suttle on qualified [*47]  immunity grounds.

Entered for the Court


This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

Reyes Marin is Mario Marin's father. For the sake of clarity, we refer to Reyes Marin as "Reyes" and to Mario Marin as "Mario."

During the course of proceedings below, Plaintiffs settled their claims against Mr. Current, San Juan County, and Mr. Salas; thus Mr. Current, San Juan County, and Mr. Salas are not parties to this appeal.

A Hogan structure is "a conical, hexagonal, or octagonal dwelling characteristic of the Navaho Indian made with a door traditionally facing east and constructed of logs and sticks covered with mud, sods, or adobe or sometimes of stones." Webster's Third New International Dictionary 1076 (2002).

The items seized included "7 leather straps believed to be used for fighting game cocks," "4 wrapped bindles of used twine believed to be used to tie sharp instruments on game cocks," "1 maroon ledger believed to be used for documenting gambling sessions," "4 leather sparring cockfighting gloves," and "7 unused multipurpose blades." App. at. 689.

On April 8, 2013, Plaintiffs moved the court to reconsider its ruling on Mr. Suttle's motion for summary judgment. In their motion, Plaintiffs relied on newly-discovered emails between Mr. Suttle, Mr. King, Ms. Ferguson, other members of the Task Force, and the Attorney General's Office. These emails were obtained through an Inspection of Public Records Act request served on the Attorney General's Office by an individual who is not a party to this case. The court denied the motion for reconsideration, concluding that the newly-discovered evidence was either similar in nature to evidence already in the record or not probative on the issues dispositive to resolution of Mr. Suttle's motion for summary judgment.

Ms. Ferguson and Dr. Norris also requested an award of attorney's fees and costs, which the district court denied. This ruling is not challenged on appeal.

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