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Galvan v. Board of County Commissioners for Curry County

United States District Court, D. New Mexico

June 1, 2017

VERONICA GALVAN, Plaintiff,
v.
BOARD OF COUNTY COMMISSIONERS FOR CURRY COUNTY, NEW MEXICO, Defendant.

          MEMORANDUM OPINION AND ORDER

          GREGORY J. FOURATT UNITED-STATES MAGISTRATE JUDGE

         THIS MATTER is before the Court on Defendant's “Motion for Summary Judgment No. I: Notice Under the New Mexico Tort Claims Act” (“Motion”) [ECF No. 24], filed February 17, 2017. After careful consideration of the pertinent law, the parties' briefing, and the testimony and exhibits introduced at the May 11, 2017 evidentiary hearing, the Court will grant the Motion and will dismiss for lack of jurisdiction Plaintiff's claim of negligence under the New Mexico Tort Claims Act. For the reasons discussed below, the Court concludes that the Defendant did not have actual notice that litigation was likely to ensue against it as a result of the inmate-on-inmate assault that Plaintiff suffered in the Curry County Detention Center. Furthermore, the Court concludes that Plaintiff was not physically or legally incapacitated in the aftermath of the assault so as to excuse her failure to comply with the notice requirements of the New Mexico Tort Claims Act.

         I. BACKGROUND AND PROCEDURAL HISTORY

         This case arises out of Plaintiff's incarceration at the Curry County Detention Center “Women's Annex” in Clovis, New Mexico. Pl.'s Compl. 2, ECF No. 1. Plaintiff was incarcerated there from January 21, 2014, through May 30, 2014, when she was transferred to another facility. Id. Plaintiff alleges that on or about February 1, 2014, she was battered by another inmate, during which she sustained a broken hand, scratches on her face, and bruising on her head, knee, and face. Id. at 3-4. Plaintiff further alleges that the incident occurred in part due to overcrowding, insufficient staffing of correctional officers and staff, and inadequate building maintenance, including roof leaks and toxic black mold. Id. at 3.

         On May 20, 2014, in preparation for filing her lawsuit, Plaintiff submitted written notice via counsel of her tort claim to the Curry County Clerk. Def.'s Mot., Ex. C at 3-4, ECF No. 24.

         Plaintiff's written notice stated in part:

Notice is hereby given to you pursuant to the New Mexico Tort Claims Act (41-4-1 et seq.), that my client Veronica Galvan was beaten by an inmate by the name of Kimberly Lee More [sic] in January, 2014. An incident report was made and the Curry County Adult Detention Center was on actual notice of the incident. Ms. Galvan suffered [sic] was pulled out of a chair and beaten (including being kneed in the face), resulting in a scratch on her face (chin) and several bumps on her head. She continues to suffer headaches from the incident but has been denied proper medical care including but not limited to the performance of an M.R.I. of her skull along with other diagnosis and treatment of her condition. Ms. Galvan had indicated to Detention Center employees that there was a problem with Ms. Kimberly Moore being housed in the annex because she is the wife of Mr. Guerra. Ms. Galvan is a close friend of the Perez family. Despite this known animosity, Ms. Galvan was continued to be housed with her in the Women's Annex. Notice of tort claim pursuant to § 41-4-6 NMSA is hereby given for the negligence of the Curry County Board of Commissioners in the operation and/or maintenance of the Women's Annex and failure to provide Ms. Galvan with proper medical care in a timely fashion in violation of § 41-4-9 and 10 NMSA. A claim for violation of Ms. Galvan's civil rights, and privileges and immunities secured by the constitution and laws of the United States and New Mexico is also asserted pursuant to § 41-4-12 NMSA.

Id.

         Plaintiff then filed this case on June 7, 2016, asserting claims against Defendant for violations of the Fourteenth Amendment and negligence under the New Mexico Tort Claims Act.[1] Pl.'s Compl. 8-13. On February 17, 2017, Defendant moved for summary judgment on Plaintiff's negligence claim. ECF No. 24. Plaintiff responded on February 28, 2017 (ECF No. 25), and Defendant replied on March 13, 2017 (ECF No. 26).

         II. SUMMARY OF ARGUMENTS

         Defendant argues that Plaintiff's claim under the New Mexico Tort Claims Act must be dismissed because she did not comply with the statutory requirement concerning written notice. Furthermore, Defendant contends that Plaintiff is unable to establish actual notice by depending solely on the jail's incident report since the report did not alert the County that litigation was likely to ensue against it. Def.'s Mot. 1-6. In response, Plaintiff does not dispute that she did not comply with the statute's 90-day written notice requirement. Instead, she asserts that the jail's internal incident report provided Defendant with actual notice that Plaintiff would bring this lawsuit. Alternatively, Plaintiff argues that the 90-day clock for providing notice was tolled because she was incapacitated as a result of the beating she suffered. Pl.'s Resp. 6-11.

         III. ANALYSIS

         Under the New Mexico Tort Claims Act, a claimant ordinarily must submit her claim to the appropriate government official within 90 days of the alleged tort. In pertinent part, the statute governing notice provides:

A. Every person who claims damages from the state or any local public body under the Tort Claims Act shall cause to be presented to . . . . the county clerk of a county for claims against the county, . . . . within ninety days after an occurrence giving rise to a claim for which immunity has been waived under the Tort Claims Act, a written notice stating the time, place and circumstances of the loss or injury.

N.M. Stat. Ann. § 41-4-16 (1977) (emphasis added). The purpose of the notice requirement “is to ensure that the agency allegedly at fault is notified that it may be subject to a lawsuit.” Lopez v. State, 930 P.2d 146, 149 (N.M. 1996). This notice requirement permits the governmental entity “to protect itself against false or exaggerated claims while also permitting it to identify and settle meritorious claims.” Lopez, 930 P.2d at 149. If the notice requirement is not met, a court lacks jurisdiction to consider the case. See § 41-4-16(B) (“No suit or action for which immunity has been waived under the Tort Claims Act shall be maintained and no court shall have jurisdiction to consider any suit or action against the state or any local public body unless notice has been given as required by this section . . . .”).

         A. Exception to the General Rule: Actual Notice

         The statute provides both an exception and a tolling provision that are relevant to the instant Motion. First, the written notice requirement is excused in situations where the governmental entity had actual notice. In relevant part, Section 41-4-16 provides:

B. No suit or action for which immunity has been waived under the Tort Claims Act shall be maintained and no court shall have jurisdiction to consider any suit or action against the state or any local public body unless notice has been given as required by this section, or unless the governmental entity had actual notice of the occurrence.

Id. (emphasis added).

         Whether a state or local government body should be imputed to have received actual notice is a threshold issue to be determined by the trial court. Lopez, 930 P.2d at 151. “Because under Section 41-4-16(B) actual notice is a jurisdictional question and separate from the ultimate issue of liability, whether the facts give rise to a reasonable inference that a claim may be filed is a threshold inquiry to be resolved by the court.” Id. To determine if the governmental entity allegedly at fault had actual notice, New Mexico courts apply the “likelihood that litigation may ensue” standard. Lopez, 930 P.2d at 150. Utilizing this standard, courts evaluate whether, “from the totality of the circumstances known to the governmental entity charged with fault in the occurrence, a reasonable person would have concluded that the victim may claim compensation.” Id. Actual notice of the incident or injury alone is insufficient. Instead, the notice required is “actual notice that there exists a ‘likelihood' that litigation may ensue.” Frappier v. Mergler, 752 P.2d 253, 256 (N.M. Ct. App. 1988).

         The New Mexico Supreme Court has held that, under some circumstances, a report such as a police report could fulfill the actual notice requirement of Section 41-4-16(B), “but only where the report contains information which puts the governmental entity allegedly at fault on notice that there is a claim against it.” City of Las Cruces v. Garcia, 690 P.2d 1019, 1021 (N.M. 1984) (emphasis in original). Other cases suggest that the level of detail in a report and the function the report is intended to serve are important factors in deciding whether a government agency had actual notice pursuant to Section 41-4-16(B). For example, in Frappier, a plaintiff sued the Village of Corrales and other government officials some two years after she got into a car accident with an officer from the Village police department. Frappier, 752 P.2d at 255. Because formal written notice had not been given in accordance with Section 41-4-16(A), the plaintiff instead argued that the Village had actual notice because of the police report completed at the scene of the accident. Id. at 255-56. The court of appeals reviewed the plaintiff's claim under the “likelihood that litigation may ensue” standard and held that the police report did not constitute actual notice under the New Mexico Tort Claims Act. Id. at 257. The brief report did not indicate that plaintiff was hurt, and in fact identified her as the responsible party for the accident. Id. The court held that the mere facts contained in the report were not sufficient to put the Village on notice that there was a likelihood that litigation would ensue against it as a result of the accident. Id.

         Lopez provides another useful example. There, a plaintiff filed a premises liability lawsuit against the Bernalillo County Metropolitan Court and the State of New Mexico after she tripped and injured herself exiting a courtroom. Lopez, 930 P.2d at 148. The primary question in the case was whether actual notice was provided under Section 41-4-16(B) by means of the submission of an incident report to the State Risk Management agency, which is charged with “compromising, adjusting, settling, and paying claims.” Id. As the court of appeals had done in Frappier, the New Mexico Supreme Court evaluated plaintiff's claim under the “likelihood that litigation may ensue” standard, but this time concluded that the incident report contained sufficient information to provide actual notice to the governmental entity allegedly at fault. Id. The court considered the level of detail in the report, including the date, time, and location of the plaintiff's accident, a list of witnesses, a description of how the accident took place, a detailed description of the condition of the premises, and the types of serious injuries the plaintiff suffered as a result. Id. Furthermore, the court thought it of great importance that the incident report was prepared “not merely for statistical purposes, ” but was instead sent to the Risk Management agency. Id. The combination of these ...


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