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Abila v. Funk

United States District Court, D. New Mexico

December 14, 2016

GEORGE ABILA, Plaintiff,
v.
SHAWN FUNK; LEZLIE DUCKETT; KAY YOUNGMAN and TODD BANNISTER, Defendants.

          Jack Bennett Jacks Law Office of J.B. Jacks Albuquerque, New Mexico Matthew Coyte Coyte Law, P.C. Albuquerque, New Mexico Attorneys for the Plaintiff

          Luis E. Robles Lindsay Drennan Robles, Rael & Anaya, P.C. Albuquerque, New Mexico Attorneys for the Defendants

          MEMORANDUM OPINION AND ORDER

         THIS MATTER comes before the Court on the County Defendants'[1] Motion for Partial Summary Judgment No. III -- Dismissal of Plaintiff's Municipal Liability Claims, filed September 6, 2016 (Doc. 154)(“MSJ”). The Court held a hearing on October 25, 2016. The primary issue is whether municipal liability is available to the Plaintiff George Abila, as a matter of law, where the Defendants argue that the undisputed facts demonstrate that there is no evidence that Eddy County Detention Center -- by way of Defendant Shawn Funk, the warden at Eddy County Detention Center -- established an official policy, followed an unwritten custom, or knew of a pattern or practice which violated Plaintiff George Abila's rights when he was housed in a padded, suicide prevention cell. Because the Court determines that evidence exists suggesting that the padded cells at Eddy County Detention were in constant use and were being used for disciplinary purposes, in violation of written policy -- with that constant use of the padded cells embodying evidence of an unconstitutional practice -- the Court concludes that County Defendants are not entitled to judgment as a matter of law. Accordingly, the Court will deny the MSJ.

         FACTUAL BACKGROUND

         Abila was booked at Eddy County Detention in Carlsbad, New Mexico, on August 8, 2011, and housed in general population. See MSJ ¶ 1, at 1 (setting forth this fact); Plaintiff's Response to County Defendants' Motion for Partial Summary Judgment No. III -- Dismissal of Plaintiff's Municipal Liability Claims ¶¶ 1, at 2, filed October 11, 2016 (Doc. 181)(“Response”)(not disputing this fact). On October 24, 2011, Abila cut his arms with a razor blade in a suicide attempt and needed emergency medical treatment. See MSJ ¶ 2, at 2 (setting forth this fact); Response ¶ 2, at 2 (not disputing this fact). Abila was “eventually moved to a segregation cell and on December 24, 2011, he tried to take his own life again, this time by swallowing plastic and screws that he had removed from the door in his segregation cell.” MSJ ¶ 3, at 2 (setting forth this fact). See Response ¶ 3, at 2 (not disputing this fact). Abila was then placed “on suicide precautions in a padded cell.” MSJ ¶ 4, at 2 (setting forth this fact). See Response ¶ 4, at 2 (not disputing this fact).[2]

         Eddy County Detention “has written policies on the use of restraints, including therapeutic seclusion that specifically reference nationally accepted corrections standards.” MSJ ¶ 8, at 2-3 (setting forth this fact). See Response ¶ 8, at 3 (not disputing this fact). “The policy provides in part: [s]pecial treatment procedures of medical restraints and therapeutic seclusion shall be used with appropriate written clinical justification and in accordance with relevant laws and professional standards.” MSJ ¶ 9, at 3 (setting forth this fact). See Response ¶ 9, at 3 (not disputing this fact). Eddy County Detention “has written policies on the treatment of suicidal inmates that specifically reference nationally accepted corrections standards.” MSJ ¶ 10, at 3 (setting forth this fact). See Response ¶ 10, at 3 (not disputing this fact). That “policy provides in part [a] suicide prevention plan has been developed to protect the well being (sic) of the inmate's (sic) by utilizing proactive measures to decrease and/or prevent the opportunity for intentional self-injurious behavior which may result in bodily injury or death, ” and that “[t]he guidelines herein are not exhaustive and should serve only as a foundation on which the sound clinical judgment of the responsible mental health or medical professional is based.” MSJ ¶ 11, at 3 (setting forth this fact)(alterations in original). See Response ¶ 11, at 3 (not disputing this fact).

         Eddy County Detention also “has written policies on classification and separation of inmates that specifically reference nationally accepted corrections standards.” MSJ ¶ 12, at 3 (setting forth this fact). See Response ¶ 12, at 3 (not disputing this fact). “The policy provides in part [i]t shall be the policy of the Eddy County Detention Center to classify inmates in a way that not only ensures the public safety, but also provides for safe, human inmate treatment by housing like inmates together to the extent possible.” MSJ ¶ 13, at 3 (setting forth this fact). See Response ¶ 13, at 3 (not disputing this fact). In the nine years that correctional officer Narda Gallegos has been employed at Eddy County Detention, Abila “was the inmate with the longest stay in the padded cell.” Response ¶ 14, at 4 (setting forth this fact).[3] See Reply ¶ 14, at 2 (not disputing this fact).[4]

         PROCEDURAL BACKGROUND

         Abila brings this suit against Funk and Bannister for their alleged failure to provide him adequate confinement and medical care during his detention at Eddy County Detention. See Third Amended Complaint for the Recovery of Damages Caused by the Deprivation of Civil Rights and Tortious Conduct, filed March 17, 2016 (Doc. 102)(“Third Amended Complaint”). The Complaint first alleges, as Counts I and II, a violation of substantive due process, under the Constitution of the United States of America and the Constitution of the State of New Mexico, because of the inhumane conditions of Abila's confinement and because of inadequate medical care. See Third Amended Complaint ¶¶ 114-38, at 11-14. Count III then alleges a violation of procedural due process by Funk, and Count IV alleges that Funk, in his official capacity, [5]maintained a custom and policy of violating constitutional rights. See Third Amended Complaint ¶¶ 139-60, at 14-16. The “County Defendants” now move for summary judgment, by the MSJ, requesting that the Court grant judgment in their favor with respect to Count IV, alleging that Funk, in his official policy, maintained a custom and policy of violating constitutional rights. MSJ at 1-2. As grounds, the MSJ recaps Abila's allegations, which the Defendants included in their proffer of undisputed material facts, and which the Court details below.

         In Abila's Third Amended Complaint, “Abila alleges that Defendant Funk has, ” through his actions and orders to staff, “created a custom and policy of housing the mentally ill in segregation or solitary confinement.” MSJ ¶ 5, at 2 (setting forth this fact)(footnote omitted). See Response ¶ 5, at 3 (not disputing this fact)(setting forth the additional fact that Funk created the policy through “his actions and verbal orders to staff”); Reply ¶ 5, at 2 (not disputing the additional fact). Abila also alleges that Funk “uses solitary confinement, specifically the padded cell at his facility to punish inmates and that such a policy is facially unconstitutional.” MSJ ¶ 6, at 2 (setting forth this fact). See Response ¶ 6, at 3 (not disputing this fact). Abila has also alleged, however, that the Defendants violated their own existing written policies “in placing him in the padded cell, which he alleges was a violation of his rights.” MSJ ¶ 7, at 2 (setting forth this fact). See Response ¶ 7, at 2 (not disputing this fact)(clarifying that Abila alleges the policies were written); Reply ¶ 7, at 2 (not disputing the Response's clarification).

         1. The MSJ.

         The MSJ begins by arguing that “there is no evidence which shows that Eddy County Detention Center established an official policy, followed an unwritten custom, or knew of a pattern or practice which caused Defendants to violate George Abila's rights by placing him in a suicide prevention cell.” MSJ at 5. There is no evidence, the MSJ argues, because Abila “may not hold the County vicariously liable under Section 1983 for the alleged torts of Defendants Funk and Bannister solely on the basis of its employer-employee relationship[.] . . . Plaintiff must identify a municipal ‘policy' or a ‘custom' that caused the Plaintiff's alleged constitutional injury.” MSJ at 5 (citing Bd. of Cnty. Comm'rs of Bryan Cnty. v. Brown, 520 U.S. 397, 403 (1997); Pembaur v. Cincinatti, 465 U.S. 469, 479-81 (1986); Monell v. N.Y. City Dept. of Soc. Servs., 463 U.S. 658, 691 (1978)(“Monell”)). Further, according to the MSJ, “the disputed ‘policy' or ‘custom' must also be the cause and moving force behind the alleged deprivation of the Plaintiff's constitutional rights.” MSJ at 6 (citing Bd. of Cnty. Comm'rs of Bryan Cnty. v. Brown, 520 U.S. at 403). Accordingly, the MSJ argues:

In this case, ECDC's policy regarding the use of padded cells meets the applicable Fourteenth Amendment standards for the confinement of at-risk inmates. See Lopez v. LeMaster, 172 F.3d 756, 759 n.2 (10th Cir. 1999)(equating Eighth Amendment and Fourteenth Amendment standards for determination of conditions of confinement claims); Littlefield v. Deland, 641 F.2d 729, 731 (10th Cir. 1981)(Fourteenth Amendment analysis examines whether pretrial detainees are punished by restrictions or there is some alternative administrative purpose to restrictions). Moreover, there is no evidence which shows that ECDC has a “custom” of using padded cells to confine inmates in a manner that is unconstitutional, widespread, permanent, and well settled. Finally, there is no evidence which shows that ECDC's policies or customs were deliberately indifferent to George Abila's Fourteenth Amendment rights.

MSJ at 6.

         The MSJ then explains that the “policies” under which a municipality “may incur liability” fall into two categories: “one type of ‘policy' is characterized by formal rules and understandings which constitute fixed plans of action to be followed under similar circumstances consistently and over time, ” and “another type of ‘policy' exists when a municipality takes a course of action tailored to a specific situation and not intended to control decisions in later situations.” MSJ at 7. According to the County Defendants, only an “authorized decision maker” or official “whose edicts may fairly be said to represent official policy” can act to “give rise to municipal liability under § 1983.” MSJ at 7. Ultimately, as the MSJ provides, “the Supreme Court held that municipal liability under § 1983 attaches where -- and only where -- a deliberate choice to follow a course of action is made from among various alternatives by the official or officials responsible for establishing final policy with respect to the subject matter in question.” MSJ at 7 (citing Pembaur v. Cincinatti, 465 U.S. at 483)(internal quotations omitted).

         The MSJ also explains that Abila “may . . . sue Defendants for constitutional deprivations visited pursuant to governmental ‘custom' even though such a custom has not received formal approval through the body's official decision making channels.” MSJ at 8 (citing Monell, 463 U.S. at 690-91)(internal quotations omitted). Such custom, the MSJ argues, entails “a widespread practice that, although not authorized by written law or express municipal policy, is so permanent and well settled as to constitute a custom or usage with the force of law.” MSJ at 8 (citing City of St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988)). Accordingly, the MSJ provides that Abila must, to demonstrate a municipal custom, show “a pattern of similar incidents in which citizens were injured or endangered by intentional or negligent . . . misconduct and/or that serious incompetence or misbehavior was general or widespread throughout the . . . force.” MSJ at 8 (citing Fraire v. City of Arlington, 957 F.2d 1268, 1278 (5th Cir. 1992)).

         With respect to these standards, the MSJ then argues that Eddy County Detention's “policy regarding the use of padded cells meets the applicable fourteenth amendment conditions of confinement standards, ” because, “to determine whether a particular restriction imposed on a pretrial detainee comports with due process, a court must determine whether the restriction is punitive or reasonably related to a legitimate and nonpunitive governmental purpose.” MSJ at 8-9 (citing Bell v. Wolfish, 441 U.S. 520, 538-39 (1979)). Here, the MSJ argues, “ensuring security and order at the institution is a permissible nonpunitive objective, whether the facility houses pretrial detainees, convicted inmates, or both.” MSJ at 9 (citing Littlefield v. Deland, 641 F.2d 729, 731 (10th Cir. 1981)). The MSJ also indicates that Eddy County Detention's “written policies governing suicide prevention and restraint are based not only on prevailing American Correctional Association and National Commission on Correctional Health Care standards, which may impose an even higher threshold than a constitutional rubric, but they articulate a non-punitive objective for restraints on inmates.” MSJ at 9 (citing Bell v. Wolfish, 441 U.S. at 535). The MSJ ultimately maintains that Abila “agrees that the policies as written and adopted by ECDC are acceptable and consistent with the constitutional standards found in Bell . . . [and] thus Abila bears the heavier burden of showing an informal policy or custom of violating inmates' rights.” MSJ at 10.

         Turning, then, to its argument regarding informal policy or custom, the MSJ argues that “there is no evidence that shows that ECDC has a ‘custom' of using its restraints and maintaining conditions of confinement in a manner which is unconstitutional, ” nor that there is any “evidence that shows that City [sic] Defendants' policies or customs were deliberately indifferent to Plaintiff's Fourteenth Amendment right.” MSJ at 12. Essentially, the MSJ argues that “proof of a single incident is not sufficient to impose liability under Monell, ” and that the “Plaintiff has not established that any other inmate was subjected to the same conditions he complains of under similar circumstances or over a similar period of time. In fact, the testimony in this case is that Plaintiff's situation was unique.” MSJ at 11-12. According to County Defendants, here

there is no evidence to support the claim that County's action or inaction reflects a conscious choice that was deliberately indifferent to George Abila. In fact, the evidence of this case establishes that there were extensive policies addressing the use of restraints, the padded cell, and treatment of suicidal inmates. . . . [H]is own case is the only example he provides of allegedly indifferent behavior.

MSJ at 12-13. The MSJ thus requests summary judgment dismissing Abila's “municipal liability claim against County Defendants.” MSJ at 13.

         2. The Response.

         The Response begins by stating that “the law regarding supervisory liability in the context of a jail was recently summarized by this Court in August.” Response at 6 (citing Romero v. Bd. of Cnty. Comm'rs for Cnty. of Curry, 2016 WL 4483867 (D.N.M. 2016)(Browning, J.)). A salient point from that case, the Response contends, is that “supervisors are not liable unless there is an affirmative link . . . between the constitutional deprivation and either the supervisor's personal participation, . . . exercise of control or direction, or . . . failure to supervise.” Response at 7. The Response argues that, despite those limitations, “municipal culpability can be demonstrated with proof that a municipality's legislative body or authorized decision maker has intentionally deprived a plaintiff of a federally protected right, ” and “that the action taken or directed by the municipality or its authorized decision maker itself violates federal law will also determine that the municipal action was the moving force behind the injury of which plaintiff complains.” Response at 7.

         Accordingly, the Response argues that,

in the context of this case, the municipal liability claim can be perfected in two ways. Firstly, and most directly, Plaintiff can succeed by proving the final policy maker of ECDC, Warden Funk, deprived Plaintiff of a constitutional right. Plaintiff does not have to prove a pattern and practice of such violations, just a single decision by the warden himself.

Response at 7 (citing Simmons v. UINTAH Health Care Special Serv. Dist., 506 F.3d 1281, 1285 (10th Cir. 2007)). The Response argues that there is evidence of municipal liability because Abila has shown that,

Funk personally participated in the decision to place Mr. Abila in the padded cell and keep him there without the most basic things required for a human existence. . . . His personal decision to keep him in these appalling conditions is demonstrated by the response he wrote to Plaintiff's request to be let out of the padded cell.

         Response at 8. The Response then indicates Abila's incredulity at the MSJ's failure to extensively cover this theory of municipal liability, considering the County Defendants are more than aware of the “personal connection of the final policymaker to the constitutional violation.” Response at 8.

         The Response last addresses the “second way Plaintiff can reach governmental liability, ” which is “by demonstrating a custom or practice [that] was the moving force behind the constitutional violation in question.” Response at 9. The Response indicates that Abila does not dispute that Eddy County Detention has “drafted a set of policies designed to prevent the abuses seen in this case.” Response at 9. The Response argues, however, that when “Funk took over as head of the jail he allowed those policies to be disregarded, until eventually the jail lost its accreditation.” Response at 9. Thus, according to the Response,

it is the very fact that Funk knew of the correct standards and policies to employ, but willfully chose to disregard them, that make[s] up the backbone of Plaintiff's deliberate indifference claim. Rather than follow policies designed to prevent the abusive use of restraint and seclusion, Defendant Funk created a custom of disregarding written policy.

         Response at 9-10 (citing Simmons v. UINTAH Health Care Special Serv. Dist., 506 F.3d at 1283). The Response argues that, by disregarding that written policy, Funk has “demonstrated a sufficiently culpable state of mind; [sic] deliberate indifference.” Response at 10.

         To further demonstrate the custom, the Response maintains that

written discovery has revealed that the padded cells in the jail were constantly in use. Inmates have testified that they too were abused in the padded cells and that they saw other people suffering in them as well. Although Plaintiff agrees he was most likely subjected to the longest time period in the cell, that does not mean others were not treated inhumanely too.

         Response at 10. Indeed, the Response argues that “the custom of using these cells was so ingrained; one guard testified he wished there were more padded cells to use, as they were often full when he needed to put another inmate in one.” Response at 11. Further, the Response contends, “when looking at the relatively small size of the jail it becomes apparent the padded cells were being used excessively. It defies common sense to believe two or three people a day are suicidal, or are in such emotional crisis as to need this kind of intervention.” Response at 11.

         The Response concludes that “these facts, when viewed in the light most favorable to Plaintiff present enough evidence to support a practice of overuse and inhumane use of the padded cells.” Response at 11-12. The Response maintains that Abila “has demonstrated Warden Funk, the administrator and final policymaker, for the jail was personally involved in violating Plaintiff's constitutional rights. Funk's personal participation in the constitutional violation exposes the governmental entity to liability.” Response at 11. Further, the Response maintains that Abila “has demonstrated Warden Funk chose to ignore the written policies of the jail on a daily basis.” Response at 11-12. Abila states that “[e]vidence exists that the padded cells were in constant use and were being used for disciplinary purposes, in violation of policy, ” and “this constant abuse of the padded cell is evidence of an unconstitutional practice, again, exposing the government to liability.” Response at 11-12.

         3. The Reply.

         The Reply first takes issue with Abila's “argument that Defendant Funk is a final policymaker for the Eddy County Detention Center.” Reply at 4. The Reply asserts, in contrast, that it is the “clear intention of Eddy County not to vest final policy authority in the Eddy County Detention Center . . . jail administrator.” Reply at 5. The Reply references the “Resolution of the Board of County Commissioners, ” contained in the Eddy County Detention Policy Manual, which states that “the Board of County Commissioners requires the jail administrator to submit proposed rules and regulations that describe[] all facets of facility operations, maintenance, and administration which shall be effective upon being adopted by the board.” Reply at 5. Further, the Reply provides that, under New Mexico law, “[t]he common jails shall be under the control of the respective sheriffs, independent contractors or jail administrators hired by the board of county commissioners or other local public body or combination thereof, and the same shall be used as prisons in the respective counties.” Reply at 6 (citing NMSA 1978 § 33-3-1). Accordingly, the Reply argues that the Board of County Commissioners, and not the jail administrator, is the final policymaker for the jail, and thus Abila “is left with the option to show that some unwritten policy or custom was the driving force behind the alleged violation of his civil rights, something he has not done.” Reply at 7.

         In support of that contention, the Reply next argues that Abila “has presented no real evidence which shows that Eddy County Detention Center established an official policy, followed an unwritten custom, or knew of a pattern or practice which caused Defendants to violate George Abila's rights by placing him in a suicide prevention cell.” Reply at 7. The Reply then reiterates the arguments that the Defendants made in the MSJ, which, according to the Reply, establish that Abila has failed to provide evidence “of an intent to use the padded cell in a manner that is unconstitutional, widespread, permanent, and well settled, ” particularly because, according to the Reply, Abila “has not established that any other inmate was subjected to the same range of conditions he complains of under similar circumstances or over a similar period of time.” Reply at 9.

         4. The October 25, 2016, Hearing.

         The Court held a hearing on October 25, 2016. See Transcript of Hearing, taken October 25, 2016 (“Tr.”).[6] Oral argument did not stray from the briefing's content, with the County Defendants beginning their argument by explaining that “this motion is primarily based on the fact that plaintiff hasn't -- after all of the discovery that's been conducted and the depositions taken -- shown any evidence of an official policy or a custom of misusing the padded cells within the facility.” Tr. at 69:9-14 (Drennan). The County Defendants then turned to the first avenue of municipal liability that the Response raised -- “that a single decision by a final policymaker could be sufficient” -- and argued that Funk, as the Warden, “was never intended to be” the final policymaker, “nor was he the final policymaker in this case.” Tr. at 70:3-8 (Drennan). The Court pressed the County Defendants why Funk was not high enough in the chain of command to be a final policymaker, citing to the Court's previous caselaw holding that the Mayor of Albuquerque could constitute a final official. See Tr. at 70:9-14 (Court)(referring to Kelley v. City of Albuquerque, 375 F.Supp.2d 1183 (D.N.M. 2004)(Browning, J.), aff'd by, 542 F.3d 802 (2008)). The Defendants responded by reference to the argument they made in the Reply -- New Mexico state statute requires that “wardens . . . submit proposed rules and regulations to a board of county commissioners, ” and that, particularly in this case -- where the Eddy County Detention Policy Manual explicitly includes “language essentially stating that [the Board of County Commissioners] are the final policymakers” -- it is “abundantly clear” that Funk is not a final policymaker. Tr. at 70:15-71:2 (Drennan). The County Defendants then clarified why they were pressing this argument, and stated that it was pressing the argument because

the complaint made it seem abundantly clear . . . we were looking at . . . some kind of custom claim. . . . When we got the response to our briefing, it seemed that there might be an alternative argument, that Warden Funk should be viewed as a final policy maker, and that his sole decision in this case was enough. Tr. at 71:18:72:5 (Drennan). With respect to either of Abila's arguments, the County Defendants maintained that he has demonstrated neither avenue of municipal liability. See Tr. at 72:9-11

(Drennan).

         After the lunch break, the County Defendants reemphasized their argument that Funk was not the final policy maker and that, thus, the law foreclosed Abila from seeking municipal liability on the basis of his singular conduct. See Tr. at 73:22-75:1 (Drennan). Abila then took up argument, with the Court pressing him to explain how he had chosen Funk as the final policymaker in this case. See Tr. at 75:6-19 (Coyte, Court). Abila stated that the warden's status as the final policymaker has been “uncontroversial with any other case I've done, ” and that for him to have also joined the county commissioners would have been “duplicative, ” because, “when you get the final policymaker by law, by statute, the guy who runs the jail, the one who does the day-to-day operations, the ones who create the policies, ” that is sufficient. Tr. at 76:4-77:6 (Coyte). In sum, then, Abila argued that Funk was the final policymaker, and that

it makes sense, especially in our facts . . . where we have got a set of policies written by the former warden. The former warden's testimony says: I Dated this jail, and the policies were grossly inadequate . . . so [he] set about changing them to bring them into compliance . . . [t]hen the new warden took over and disregarded the policies.

Tr. at 77:7-25 (Coyte). Further, “the county commissioners have no ability to dictate the day-today operations, ” and “the actual individual act against Mr. Abila by the warden [is] all beyond the scope of the county commission, ” and thus Funk's “acts or edicts may fairly be said to be --represent official policy.” Tr. at 78:8-23 (Coyte). Abila then provided:

In your opinion in the Romero matter that you recently wrote . . . it says an affirmative link between the constitutional deprivation and either the supervisor's personal participation -- or his exercise of control or direction, or his failure to supervise. So there are three ways of doing it. The supervisor actually creates the violation, which we have that as well, given the fact that the padded cell was constantly used and for punitive purposes.

Tr. at 79:18-80:8 (Coyte). Abila argued that “two or three people were in the padded cell everyday . . . [t]here are not two or three suicidal people in that jail everyday. That makes no sense. One of the inmates described that he was put in there for punishment for fighting” Tr. at 80:9-14 (Coyte). Accordingly, Abila maintained:

[W]e have enough people in padded cells. We have people saying that they've been punished as a result of it, we have guards saying that they were trying to stop the use of the cell but were dissuaded or they couldn't make headway from the warden's custom. So we have enough facts to say at least at summary judgment that we get to both theories that Mr. Funk did it on his own, with his own behavior, and that his policy or custom of violating his own policy has got us to the same result.

Tr. at 81:1-11 (Coyte).

         The County Defendants then took back argument, and indicated that it was their impression that there was not any case law which explicitly held that suing the warden was sufficient for municipal liability. See Tr. at 83:1-5 (Drennan). The County Defendants then explained that Funk, as warden, could be named as a figurehead for a claim “based on [the] custom and policy requirement . . . but as far as this argument that a single act by a final policymaker is enough, ” he was not high enough in the food chain. Tr. at 83:10-22 (Drennan). Again, the Court pressed the County Defendants to distinguish Funk's capacity as the warden from the Mayor of Albuquerque, with respect to their relevant food chains. See Tr. at 83:23-84:11 (Court). The County Defendants could not point to any authority, but indicated that it was their impression that “there is a difference when you're trying to base it on a single act, as opposed to this practice, pervasive custom, in which case I do think Defendant Funk could be a sufficient stand-in.” Tr. at 86:2-9 (Drennan). The Court declined to give its inclination and took the matter under advisement. See Tr. at 87:25-88:4 (Court).

         5. The Court's Memorandum Opinion and Order Granting Summary Judgment in Favor of Abila on his Substantive Due-Process Claims.

         The Court has already issued a Memorandum Opinion and Order in this case. See Memorandum Opinion and Order, filed November 23, 2016 (Doc. 198)(“Substantive-Due Process MOO”). The Court concluded that, in light of the undisputed facts, Abila is entitled to judgment as a matter of law, because he successfully states a claim that the detention conditions to which he was subjected at Eddy County Detention, during a near six-month period where he was not actively suicidal from January 3, 2012, until June 21, 2012, violated his clearly established substantive due-process right to humane conditions of confinement as a pretrial detainee. See MOO at 97. It is against the backdrop of the Court's Substantive-Due Process MOO, then, which the Court will judge Abila's argument in favor of municipality liability. The Court has already concluded that Funk, in his capacity as Eddy County Detention's Warden, violated Abila's constitutional rights during his pre-trial detention. See Substantive-Due Process MOO at 78-97.

         LAW REGARDING MOTIONS FOR SUMMARY JUDGMENT

         Rule 56(a) of the Federal Rules of Civil Procedure states: “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “The movant bears the initial burden of ‘show[ing] that there is an absence of evidence to support the nonmoving party's case.'” Herrera v. Santa Fe Pub. Sch., 956 F.Supp.2d 1191, 1221 (D.N.M. 2013)(Browning, J.)(quoting Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir. 1991)). See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

Before the court can rule on a party's motion for summary judgment, the moving party must satisfy its burden of production in one of two ways: by putting evidence into the record that affirmatively disproves an element of the nonmoving party's case, or by directing the court's attention to the fact that the non-moving party lacks evidence on an element of its claim, “since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.” Celotex, 477 U.S. at 323-25. On those issues for which it bears the burden of proof at trial, the nonmovant “must go beyond the pleadings and designate specific facts to make a showing sufficient to establish the existence of an element essential to his case in order to survive summary judgment.” Cardoso v. Calbone, 490 F.3d 1194, 1197 (10th Cir. 2007).

Plustwik v. Voss of Norway ASA, 2013 WL 1945082, at *1 (D. Utah 2013)(Sam, J.)(emphasis added). “If the moving party will bear the burden of persuasion at trial, that party must support its motion with credible evidence -- using any of the materials specified in Rule 56(c) -- that would entitle it to a directed verdict if not controverted at trial.” Celotex Corp. v. Catrett, 477 U.S. at 331 (Brennan, J., dissenting)(emphasis in original).[7] Once the movant meets this burden, rule 56 requires the nonmoving party to designate specific facts showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. at 324; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986).

         The party opposing a motion for summary judgment must “set forth specific facts showing that there is a genuine issue for trial as to those dispositive matters for which it carries the burden of proof.” Applied Genetics Int'l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir. 1990). See Vitkus v. Beatrice Co., 11 F.3d 1535, 1539 (10th Cir. 1993) (“However, the nonmoving party may not rest on its pleadings but must set forth specific facts showing that there is a genuine issue for trial as to those dispositive matters for which it carries the burden of proof.”)(internal quotation marks omitted). Rule 56(c)(1) provides: “A party asserting that a fact . . . is genuinely disputed must support the assertion by . . . citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials.” Fed.R.Civ.P. 56(c)(1). It is not enough for the party opposing a properly supported motion for summary judgment to “rest on mere allegations or denials of his pleadings.” Anderson v. Liberty Lobby, Inc., 477 U.S. at 256. See Abercrombie v. City of Catoosa, 896 F.2d 1228, 1231 (10th Cir. 1990); Otteson v. United States, 622 F.2d 516, 519 (10th Cir. 1980)(“[O]nce a properly supported summary judgment motion is made, the opposing party may not rest on the allegations contained in his complaint, but must respond with specific facts showing the existence of a genuine factual issue to be tried.” (citation and internal quotations omitted)).

         Nor can a party “avoid summary judgment by repeating conclusory opinions, allegations unsupported by specific facts, or speculation.” Colony Nat'l Ins. Co. v. Omer, 2008 WL 2309005, at *1 (D. Kan. 2008)(Robinson, J.)(citing Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1199 (10th Cir. 2006); Fed.R.Civ.P. 56(e)). “In responding to a motion for summary judgment, ‘a party cannot rest on ignorance of facts, on speculation, or on suspicion and may not escape summary judgment in the mere hope that something will turn up at trial.'” Colony Nat'l Ins. Co. v. Omer, 2008 WL 2309005, at *1 (quoting Conaway v. Smith, 853 F.2d 789, 794 (10th Cir. 1988)).

         To deny a motion for summary judgment, genuine factual issues must exist that “can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.” Anderson v. Liberty Lobby, Inc., 477 U.S. at 250. A mere “scintilla” of evidence will not avoid summary judgment. Vitkus v. Beatrice Co., 11 F.3d at 1539 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. at 248). Rather, there must be sufficient evidence on which the fact finder could reasonably find for the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 251 (quoting Schuylkill & Dauphin Improvement Co. v. Munson, 81 U.S. 442, 448 (1871)); Vitkus v. Beatrice Co., 11 F.3d at 1539. “[T]here is no evidence for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable . . . or is not significantly probative, . . . summary judgment may be granted.” Anderson v. Liberty Lobby, Inc., 477 U.S. at 249 (citations omitted). Where a rational trier of fact, considering the record as a whole, could not find for the nonmoving party, there is no genuine issue for trial. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

         When reviewing a motion for summary judgment, the court should keep in mind certain principles. First, the court's role is not to weigh the evidence, but to assess the threshold issue whether a genuine issue exists as to material facts requiring a trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 249. Second, the ultimate standard of proof is relevant for purposes of ruling on a summary judgment, such that, when ruling on a summary judgment motion, the court must “bear in mind the actual quantum and quality of proof necessary to support liability.” Anderson v. Liberty Lobby, Inc., 477 U.S. at 254. Third, the court must resolve all reasonable inferences and doubts in the nonmoving party's favor, and construe all evidence in the light most favorable to the nonmoving party. See Hunt v. Cromartie, 526 U.S. 541, 550-55 (1999); Anderson v. Liberty Lobby, Inc., 477 U.S. at 255 (“The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.”). Fourth, the court cannot decide any issues of credibility. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 255.

         There are, however, limited circumstances in which the court may disregard a party's version of the facts. This doctrine developed most robustly in the qualified immunity arena. In Scott v. Harris, 550 U.S. 372 (2007), the Supreme Court of the United States of America concluded that summary judgment was appropriate where video evidence “quite clearly contradicted” the plaintiff's version of the facts. 550 U.S. at 378-81. The Supreme Court explained:

At the summary judgment stage, facts must be viewed in the light most favorable to the nonmoving party only if there is a “genuine” dispute as to those facts. Fed. Rule Civ. Proc. 56(c). As we have emphasized, “[w]hen the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts . . . .
Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.'” Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. [at] 586-587 . . . (footnote omitted). “[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. [at] 247-248 . . . . When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.
That was the case here with regard to the factual issue whether respondent was driving in such fashion as to endanger human life. Respondent's version of events is so utterly discredited by the record that no reasonable jury could have believed him. The Court of Appeals should not have relied on such visible ...

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