Gabaldon v. New Mexico State Police

Appellate Case: 24-2104 Document: 32-1 Date Filed: 06/11/2025 Page: 1 FILED United States Court of Appeals PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS June 11, 2025

Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________

CRAIG GABALDON,

Plaintiff - Appellant,

v. No. 24-2104

NEW MEXICO STATE POLICE; KEVIN SMITH, in his individual capacity; KURTIS WARD, in his individual capacity,

Defendants - Appellees. _________________________________

Appeal from the United States District Court for the District of New Mexico (D.C. No. 1:23-CV-00035-JCH-SCY) _________________________________

A. Blair Dunn, Western Agriculture, Resource and Business Advocates, LLP, Albuquerque, New Mexico, for Plaintiff-Appellant.

Jessica L. Nixon, Robles, Rael & Anaya, P.C., Albuquerque, New Mexico, for Defendants-Appellees. _________________________________

Before TYMKOVICH, McHUGH, and CARSON, Circuit Judges. _________________________________

CARSON, Circuit Judge. _________________________________

The Federal Rules of Civil Procedure describe the discovery process.

Attorneys can obtain discoverable evidence through oral depositions. Here,  Appellate Case: 24-2104 Document: 32-1 Date Filed: 06/11/2025 Page: 2

Defendants’ counsel asked Plaintiff in a deposition if he committed multiple traffic

violations. He could not recall. Responding to summary judgment, however,

Plaintiff submitted an affidavit stating he remembered that he violated no traffic

laws. His sworn statement purported to establish material factual issues to preclude

summary judgment. The district court determined Plaintiff presented a sham

affidavit.

Parties generally may not maintain throughout the discovery period that they

cannot recall specific events and then remember them at summary judgment absent

newly discovered evidence. Allowing such a result would undermine the discovery

process. Plaintiff also appeals the district court’s grant of a spoliation motion and a

summary judgment motion. We exercise jurisdiction under 28 U.S.C. § 1291 and

affirm.

I.

Defendant New Mexico State Police Officer Kevin Smith patrolled

Albuquerque’s streets just after midnight. He parked his cruiser where Candelaria

and Carlisle streets intersect. While there, he observed Plaintiff Craig Gabaldon

merge improperly onto Candelaria. Plaintiff merged his motorcycle into wrong-way

traffic lanes before correcting himself. Defendant Smith clocked Plaintiff traveling

seventy-eight miles per hour in a thirty-five mile-per-hour zone. Plaintiff also failed

to use a turn signal.

Defendant Smith activated his lights and siren just before Plaintiff turned into

his driveway. Plaintiff pulled the motorcycle next to a truck. Plaintiff began walking

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toward his house. Defendant Smith asked Plaintiff to walk to the front of his unit.

Plaintiff ignored this request. He also refused to provide his name. Defendant Smith

smelled alcohol on Plaintiff and noticed his blood-shot watery eyes and slurred

speech.

Defendant Smith then arrested Plaintiff for drunk driving. He attempted to

grab Plaintiff’s arm but Plaintiff tensed up, pulled his arms into his chest, and

grabbed onto the truck. Defendant Smith noticed earlier that Plaintiff had what

looked like a knife on his left hip. So he used a leverage takedown to detain

Plaintiff.1 Once on the ground, Plaintiff secured his left arm rather than place it

behind his back. Defendant Smith realized then that Plaintiff had a loaded gun rather

than a knife.

Meanwhile, Defendant Officer Kurtis Ward heard about the situation over the

radio and decided to assist Defendant Smith. When Defendant Ward arrived,

Defendant Smith was still speaking with Plaintiff in the driveway. Defendant Ward

noticed that Plaintiff had tried to remove his leather motorcycle gear that indicated he

belonged to the Bandidos Motorcycle Club and place it in his truck. With Defendant

Ward’s assistance, Defendant Smith handcuffed Plaintiff’s arm behind his back.

Plaintiff filed this civil action in New Mexico state court, alleging First,

Fourth, Fifth, and Fourteenth Amendment constitutional violations as well as various

state-law claims. Plaintiff maintained during discovery that he believed Defendant

1 Plaintiff does not challenge Defendants’ use of force on appeal. 3  Appellate Case: 24-2104 Document: 32-1 Date Filed: 06/11/2025 Page: 4

Smith improperly stopped him because of his Bandidos Motorcycle Club jacket and

patches. Defendants sought to inspect them. Plaintiff, however, purportedly returned

the jacket and patches to the Bandido Motorcycle Club, testifying that they likely

burned the requested items. Defendants moved for sanctions for spoliation of

evidence. The district court granted the motion but stated it would craft an

appropriate sanction closer to trial.

Defendants moved for partial summary judgment on Plaintiff’s Fourth, Fifth,

and Fourteenth Amendment claims. Plaintiff withdrew his Fifth Amendment claim.

The district court granted summary judgment on the other claims because of qualified

immunity. It concluded that reasonable suspicion supported Defendant Smith’s

traffic stop and that he had probable cause to arrest Plaintiff for driving while

intoxicated. Finally, the district court concluded that Defendants’ use of force was

objectively reasonable based on the totality of the circumstances.2 Plaintiff appealed.

II.

Plaintiff raises three issues on appeal. First, he argues that the district court

erred in granting Defendants’ motion for sanctions for spoliation. Next, Plaintiff

contends the district court erred in striking Plaintiff’s affidavit disputing facts he

asserts were material to the summary judgment motions. Finally, Plaintiff posits the

district court erred in granting Defendants’ motions for summary judgment.

1.

2 Defendants also moved for partial summary judgment covering Plaintiff’s remaining claims, but they are not at issue in this appeal. 4  Appellate Case: 24-2104 Document: 32-1 Date Filed: 06/11/2025 Page: 5

The district court granted Defendants’ motion for sanctions for destroying

evidence—specifically, his Bandidos gear. Although the district court deferred

imposing sanctions until closer to trial, Plaintiff argues it imposed sanctions without

expressly saying so. Plaintiff contends the district court excluded evidence—his

affidavit submitted with his response to Defendants’ summary judgment motion—

that supported his claim Defendant Smith actually stopped him because of his

Bandidos gear. Plaintiff argues that the district court implied an adverse inference at

summary judgment to override the evidence and alleged retaliatory motive as the

actual cause for the stop. Plaintiff says that a person cannot discern from the video

that he crossed double yellow lines, sped, and changed lanes improperly.

We review the district court’s spoliation order and its decision to impose

sanctions—including exclusion of evidence—for abuse of discretion. Xyngular v.

Schenkel, 890 F.3d 868, 872 (10th Cir. 2018) (quoting LaFleur v. Teen Help, 342

F.3d 1145, 1149 (10th Cir. 2003)). And here, the district court did not abuse its

discretion.

Plaintiff does not appeal the district court’s spoliation order’s content. Rather,

he appeals the district court’s imposed sanction. We cannot say the district court

abused its discretion. The district court said that it would impose a sanction closer to

trial. But it never did. Now, Plaintiff argues that the district court excluded evidence

as a sanction. Nothing in the record supports Plaintiff’s argument that the district

court did so. Indeed, at oral argument, we asked Plaintiff if the district court used an

adverse inference against Plaintiff anywhere in its order. Plaintiff said “no” and that

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“It’s my [Plaintiff’s counsel’s] adverse inference towards Judge Herrera.” Plaintiff

then said the district court felt trapped to believe that the officer was right and

Plaintiff was wrong because he was a Bandidos member.

Despite Plaintiff’s hunch, nothing in the district court’s order, or anywhere

else in the record for that matter, suggests it disregarded the case’s facts to rule

against Plaintiff because of an unstated inference that he was affiliated with the

Bandidos. Plaintiff asserts that the district court overrode the evidence and allegation

of Defendant Smith’s retaliatory motive as the actual cause for the stop. But we do

not look to Defendant Smith’s subjective motives to judge the traffic stop’s

reasonableness. Rather, the “sole inquiry is whether this particular officer had

reasonable suspicion that this particular motorist violated ‘any one of the multitude

of applicable traffic and equipment regulations’ of the jurisdiction.” United States v.

Botero-Ospina, 71 F.3d 783, 787 (10th Cir. 1995) (quoting Delaware v. Prouse, 440

U.S. 648, 661 (1979)). Here, the officer witnessed Plaintiff cross the double yellow

lines, speed, and fail to signal. Thus, Defendant Smith had reasonable suspicion to

make the stop. The district court did not abuse its discretion.

2.

Next, Plaintiff asserts that the district court erred in striking his affidavit.

After Defendants moved for summary judgment, Plaintiff filed a response with an

affidavit that contradicted his deposition testimony. Plaintiff asserts that reviewing

Defendant Smith’s dash-cam footage for the first time refreshed his memory, and

now recalls that he committed no traffic violations. The district court observed that

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the footage did not show Plaintiff’s full turn onto Candelaria Road, exactly how fast

Plaintiff drove, or whether Plaintiff signaled. On appeal, Plaintiff employs a double

negative in response: “the video does not not support [his] recollection of the

events.”

A district court may not disregard an affidavit solely because it conflicts with

prior sworn statements. Law Co., Inc. v. Mohawk Const. & Supply Co., Inc., 577

F.3d 1164, 1169 (10th Cir. 2009) (quoting Franks v. Nimmo, 796 F.2d 1230, 1237

(10th Cir. 1986)). But a district court can disregard a contrary affidavit if it

constitutes an attempt to create a sham fact issue. Id. (quoting Franks, 796 F.2d at

1237). We employ a three-part test to determine whether an affidavit creates a sham

fact issue, considering whether “(1) the affiant was cross-examined during his earlier

testimony; (2) the affiant had access to the pertinent evidence at the time of his

earlier testimony or whether the affidavit was based on newly discovered evidence;

and (3) the earlier testimony reflects confusion which the affidavit attempts to

explain.” Id. (quoting Ralston v. Smith & Nephew Richards, Inc., 275 F.3d 965, 973

(10th Cir. 2001)). We review for abuse of discretion the district court’s decision to

exclude affidavits at the summary judgment stage. Id. (citing Mitchael v. Intracorp,

Inc., 179 F.3d 847, 854 (10th Cir. 1999)).

Here, Plaintiff’s previous testimony occurred during a deposition where

counsel cross-examined him. Defendants satisfy the first factor of the test.

As to the second prong, Plaintiff argues that he based his affidavit on new

evidence he did not review prior to his deposition. But Defendant Smith’s video was

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not new evidence. More than seven months prior to his deposition, Defendants

disclosed the video that Plaintiff says refreshed his memory at summary judgment.

Even assuming the evidence was new, Plaintiff still fails. In his deposition, Plaintiff

testified he did not remember making the right turn onto Candelaria or how fast he

drove. He further testified he quit drinking a month before the deposition. Yet in his

affidavit, he said that he did not cross into oncoming traffic, did not exceed the

posted speed limit, and did not commit any traffic violations making the right turn

onto Candelaria. He also said that he at least signaled with his hand. As to the

drinking, Plaintiff now states in his affidavit that he stopped consuming alcohol four

months prior to the incident. The video evidence shows no footage of Plaintiff’s turn

onto Candelaria. The video does not show Plaintiff’s speed. Nor does the video

show him signaling his turn. Prior to Plaintiff’s deposition, the only record evidence

explaining what happened that night came from Defendants. At his deposition,

Plaintiff did not dispute the critical facts in Defendant Smith’s report. And just

because the video does not show every detail in Defendant Smith’s report does not

mean that Defendant Smith did not see those events.

As to the third factor, the affidavit does not attempt to explain confusion at the

deposition. Plaintiff said then that he understood the questions counsel posed to him

and that he did not need to change or correct any testimony. Plaintiff does not assert

that he was confused at his deposition—only that he now remembers things that he

forgot. Confusion is not the same as forgetfulness.

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The district court did not abuse its discretion in excluding Plaintiff’s affidavit.

It properly analyzed the Franks factors. Put simply, a litigant cannot go into a

deposition, deny remembering key events, then submit an affidavit at summary

judgment stating that he reviewed evidence disclosed before his deposition and now

remembers material facts to create a genuine dispute. Such a result would undermine

the discovery process.

3.

Lastly, Plaintiff contends that the district court erred in granting Defendants’

motions for summary judgment because he “clearly disputed the probable cause that

Officer Smith manufactured to effectuate the stop.” “We review the district court’s

grant of summary judgment de novo, applying the same legal standard as the district

court.” BNSF Ry. Co. v. Hiett, 22 F.4th 1190, 1193 (10th Cir. 2022) (quoting US

Airways, Inc. v. O’Donnell, 627 F.3d 1318, 1324 (10th Cir. 2010)).

Officers need only have “reasonable suspicion—that is, a particularized and

objective basis for suspecting the particular person stopped of breaking the law” to

initiate a traffic stop. United States v. Gomez-Arzate, 981 F.3d 832, 838 (10th Cir.

2020) (citing Heien v. North Carolina, 574 U.S. 54, 60 (2014)). “Observed traffic

violations necessarily ‘afford the quantum of individualized suspicion necessary to

ensure that police discretion is sufficiently constrained.’” United States v. Winder,

557 F.3d 1129, 1135 (10th Cir. 2009) (quoting Whren v. United States, 517 U.S. 806,

817–18 (1996)).

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Here, the record evidence indicates that Plaintiff violated traffic laws.

Plaintiff agrees that no material factual issue exists for those violations without his

affidavit. Because the district court properly excluded the affidavit, the district court

correctly concluded that record evidence showed Plaintiff committed multiple traffic

violations and that Defendant Smith had an articulable reasonable suspicion to stop

Plaintiff.

AFFIRMED.

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