United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
matter comes before the Court on Defendant Dr. Anilla Del
Fabbro's Rule 59(e) Motion to Amend Judgment (ECF No.
107). On December 13, 2016, this Court entered a Memorandum
Opinion and Order granting summary judgment to Defendants Dr.
Mary Kaven and Jill Straits for lack of personal
participation in the alleged constitutional violation, but
denying summary judgment and qualified immunity to Dr. Del
Fabbro. See Mem. Op. and Order 26-27, ECF No. 106.
Defendant Del Fabbro (“Defendant”) asks the Court
to reconsider its decision denying her summary judgment and
enter a new order granting her qualified immunity. Defendant
also filed a Notice under Rule 7.8 of supplemental
authorities, informing the Court of the Supreme Court's
decision in White v. Pauly, 137 S.Ct. 548 (2017).
The Court, having considered the motion, the entirety of the
record, and the applicable law, particularly White v.
Pauly, concludes that it erred in denying Dr. Del Fabbro
qualified immunity because the law was not clearly
established at the time that placing a medical hold on MT
under the circumstances Defendant confronted violated
Plaintiffs' right to familial association. The Court will
therefore grant the motion to reconsider and dismiss Dr. Del
Fabbro from the case.
Court extensively reviewed the record in its Memorandum
Opinion and Order and incorporates those facts herein.
See Mem. Op. and Order 1-14, ECF No. 106.
brings this motion under Federal Rule of Civil Procedure
59(e): “A motion to alter or amend a judgment must be
filed no later than 28 days after the entry of the
judgment.” Although the Court has yet to enter judgment
for or against Defendant Del Fabbro, every order short of a
final judgment is subject to reopening at the discretion of
the district judge. Price v. Philpot, 420 F.3d 1158,
1167 n.9 (10th Cir. 2005) (quoting Moses H. Cone
Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 12
(1983), and citing Fed.R.Civ.P. 54(b)). “Grounds
warranting a motion to reconsider include (1) an intervening
change in the controlling law, (2) new evidence previously
unavailable, and (3) the need to correct clear error or
prevent manifest injustice.” Servants of Paraclete
v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000). A motion
to reconsider is not appropriate to get a second bite of the
apple using the same arguments that were raised or could have
been raised in prior briefing; however, it is proper
“where the court has misapprehended the facts, a
party's position, or the controlling law.”
the relevant controlling law, qualified immunity protects
“all but the plainly incompetent or those who knowingly
violate the law.” Anderson v. Creighton, 483
U.S. 635, 638 (1987) (quoting Malley v. Briggs, 475
U.S. 335, 341 (1986)). The purpose is to protect against
officials being unduly inhibited in the discharge of their
duties by the fear of personal monetary liability and
litigation. Id. “Officials who are mistaken
about the lawfulness of their conduct may still be entitled
to qualified immunity if the mistake is reasonable in light
of the applicable law and the facts known to them at the
time.” Gomes v. Wood, 451 F.3d 1122, 1136
(10th Cir. 2006). If officials of reasonable competence could
disagree about the lawfulness of the challenged conduct, then
the defendant is entitled to qualified immunity. Id.
(quoting Malley, 475 U.S. at 341). The question is
whether a reasonable official in Defendant's
circumstances could have believed her conduct to be lawful in
light of the clearly established law and the information the
officials possessed. Id. (quoting Anderson,
483 U.S. at 641). Although a plaintiff can overcome the
defense without a favorable case directly on point, existing
precedent must have placed the constitutional question
“beyond debate.” Aldaba v. Pickens, 844
F.3d 870, 877 (10th Cir. 2016) (quoting Ashcroft v.
al-Kidd, 563 U.S. 731, 742 (2011)). Defendant is
entitled to qualified immunity “if reasonable officers
could at least disagree as to the danger of discharging
M.T.” Thomas v. Kaven, 765 F.3d 1183, 1197
(10th Cir. 2014).
contends that the Court erred by misapplying the law and
relying on cases that were at too high a level of generality.
Defendant also argues that the Court erred by disregarding
the critical, undisputed fact of MT's suicidal statements
the day before the hold, by relying on certain other facts in
the record that were not material to the qualified immunity
defense, and by using a subjective, rather than objective,
test. Defendant asserts that application of the law as set
forth in White v. Pauly compels the conclusion that
she is entitled to qualified immunity. Plaintiff disagrees,
arguing that the Court applied the proper objective standard
and merely held there was sufficient evidence to create a
jury question as to whether a reasonable medical official
would have placed a medical hold under the circumstances.
White v. Pauly, the Supreme Court considered the
Tenth Circuit's denial of qualified immunity to “an
officer who-having arrived late to an ongoing police action
and having witnessed shots being fired by one of several
individuals in a house surrounded by other officers-shoots
and kills an armed occupant of the house without first giving
a warning.” White, 137 S.Ct. at 549. The Tenth
Circuit, in affirming the denial of qualified immunity,
relied on general statements in the case law that (1) the
reasonableness of the use of force depends partially on the
level of danger at the precise moment the officer used force;
and (2) if a suspect threatens an officer with a weapon, the
officer may use deadly force to prevent escape, and where
feasible, after some warning has been given. Id. at
551. The Supreme Court reversed: “The panel majority
misunderstood the ‘clearly established' analysis:
It failed to identify a case where an officer acting under
similar circumstances as Officer White was held to have
violated the Fourth Amendment.” Id. at 552. It
clarified once more that “clearly established
law” must not be defined “at a high level of
generality.” Id. (quoting Al-Kidd,
563 U.S. at 742). Instead, the unlawfulness must be apparent
and pre-existing law must have placed the constitutional
question beyond debate. Id. at 551.
initial opinion, the Court concluded that factual questions
existed as to whether Dr. Del Fabbro violated Plaintiffs'
liberty interest in familial association. See Mem.
Op. and Order 17-22, ECF No. 106. The Court also determined
that questions of fact concerning the immediacy of the need
for the medical hold precluded granting qualified immunity to
Dr. Del Fabbro, relying on case law establishing that a state
official may not infringe on a parent's right to the care
and custody of her child without an immediate health or
safety risk to that child. See Id. at 22. The Court
relied on evidence that, construed in Plaintiffs' favor,
suggested that MT's medical condition did not improve
between April 29, 2010, and May 6, 2010, yet Dr. Del Fabbro
authorized MT's release on the latter date after the
hospital received notice that Plaintiff's insurer would
no longer cover MT's stay. See Id. at 22-23. The
Court stated that Plaintiffs' evidence cast doubt on the
sincerity and reasonableness of Dr. Del Fabbro's belief.
qualified immunity test, however, asks whether the right was
sufficiently clear to a reasonable official. Thomas,
765 F.3d at 1194. The sincerity of Dr. Del Fabbro's
belief is not relevant to the second prong of the qualified
immunity analysis. Even assuming Dr. Del Fabbro released the
medical hold, not because MT's condition improved but
because her stay was no longer paid for,  the ultimate
analysis on qualified immunity is the objective view of a
reasonable medical official with the facts known to Dr. Del
Fabbro on April 29, 2010, when she placed the medical hold.
respect to those known facts, the Court found significant Dr.
Kaven's statements in her psychological evaluation that
MT was more likely than most people her age to demonstrate
generally adaptive interpersonal behavior most of the time
and had sufficient psychological resources to cope adequately
with the demands life imposed on her. See Mem. Op.
and Order 20, 23, ECF No. 106; Aff. of Samuel Roll, Ph.D
¶¶ 8(B), ECF No. 102-9. Dr. Roll opined that these
statements, and the psychological test data taken as a whole,
were inconsistent with a need for forced hospitalization.
See Aff. of Samuel Roll, Ph.D ¶ 8(D), ECF No.
102-9. Although Dr. Del Fabbro did not rely on the
psychological evaluation when placing the hold, the facts
construed in favor of Plaintiffs suggest she was aware of the
contents of the evaluation. The Court stands by its previous
determination that Dr. Kaven's statements and Dr.
Roll's opinions create a question of fact as to the need
for the medical hold and whether Dr. Del Fabbro erred. After
reconsidering Dr. Roll's opinion, however, the Court
finds it does not create factual questions going to the
“clearly established law” portion of the
analysis. Dr. Roll does not opine that, when considering all
the facts Dr. Del Fabbro had before her, no reasonable
official would agree there was an immediate threat to the
safety of MT.
Court relied in its initial opinion extensively on the Tenth
Circuit's decision remanding this case for
reconsideration. The Tenth Circuit, however, made clear that
on a Rule 12(b)(6) motion, Defendants were subject to a more
challenging standard of review than would apply on summary
judgment. Thomas, 765 F.3d at 1194. It also noted
that the complaint did not contain facts showing MT's
suicide risk on April 29, 2010. Id. at 1197. On
summary judgment, it is undisputed that Dr. Del Fabbro knew
that MT stated on April 28, 2010 that if she were to go home,
her suicidal ideation would be 8 out of 10 for the likelihood
of hurting herself and 5 or 6 for wanting to kill herself.
See Mem. Op. and Order 7, ECF No. 106.
reconsidering the summary judgment record and existing
precedent, the Court concludes that this undisputed fact
makes this case a unique one, subject to the qualified
immunity defense. Cf. White, 137 S.Ct. at 552
(stating that important indication that defendant did not
violate clearly established right is where case presents a
unique set of facts and circumstances). Plaintiffs did not
provide, and the Court did not find, a case similar to the
one here, as White v. Pauly instructs is necessary
to overcome the defense. See Id. Instead, in
initially finding the law clearly established, this Court
relied on the cases of Suasnavas v. Stover, 196 F.
App'x 647 (10th Cir. Aug. 25, 2006), and Roska ...