United States District Court, D. New Mexico
BELEN CONSOLIDATED SCHOOL DISTRICT, CITY OF BELEN, and ESTATE OF MICHAEL ESQUIBEL, in his personal capacity acting under color of law, Defendants.
MEMORANDUM OPINION AND ORDER
CHRISTINA ARMIJO CHIEF UNITED STATES DISTRICT JUDGE.
MATTER is before the Court on Defendant City of
Belen's Motion for Partial Summary Judgment That the
Torts Alleged by Plaintiff Do Not Fall within the Scope of
Officer Esquibel's Duties, filed September 6, 2016.
[Doc. 83] The Court has considered the parties'
submissions, the relevant law, and the record and is
otherwise fully advised. The Motion is not well
taken, and shall be denied.
lawsuit arises out of allegations that Michael Esquibel (now
deceased), an officer of the Belen Police Department who
worked as a school resource officer (SRO), sexually abused
M.S., a minor student who attended Belen Middle School and
Belen High School. [Doc. 14 ¶¶ 23-34] Count II of
the Complaint is the subject of the City's
Motion. [Doc. 83 p. 1] In Count II, M.S. states a
claim under the New Mexico Tort Claims Act for personal
injuries resulting from assault, battery, and deprivation of
rights caused by the alleged sexual abuse. [Doc. 14
¶¶ 84-91] Among matters pertaining to this claim,
M.S. alleges that: “Esquibel acted with the authority
granted to him by the Belen Police Department/City of Belen
and by virtue of his position as a school resource
officer”; “Esquibel would not have been in a
position to harm M.S. and inflict injury upon her but for his
position as a school resource officer and the authority
conferred upon him by the City of Belen”; and
“Esquibel was acting in the scope of his duties with
the City of Belen and for the City of Belen's
benefit.” [Doc. 14 ¶¶ 88-90]
the New Mexico Tort Claims Act, governmental entities are not
immune from liability for the torts of assault and battery
committed “by law enforcement officers while acting
within the scope of their duties.” NMSA 1978,
§ 41-4-12 (1978) (emphasis added). Nor are they immune
from liability for the deprivation of any rights secured by
the constitution and laws of the United States or New Mexico.
Id. Further, the state and its governmental entities
are required to defend and to pay judgments against public
employees who, while “acting within the scope of duty[,
]” commit assault or battery or deprive a person of her
rights. NMSA 1978, § 41-4-4(B), (D) (2015).
City seeks summary judgment on the ground that Officer
Esquibel was not acting within the scope of his duties when
he allegedly sexually abused M.S. [Doc. 83 p. 1] Therefore,
the City contends, it has no duty to defend or indemnify
Esquibel's estate against M.S's claims. [Id.]
for Summary Judgment
of the Federal Rules of Civil Procedure allows summary
judgment when the evidence submitted by the parties
establishes that no genuine issue of material fact exists and
the moving party is entitled to judgment as a matter of law.
“[A] party seeking summary judgment always bears the
initial responsibility of informing the district court of the
basis for its motion, and identifying those portions of [the
record] . . . which it believes demonstrate the absence of a
genuine issue of material fact.” Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). Once the movant meets
this burden, the nonmovant is required to put in the record
facts showing that there is a genuine issue for trial.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250
(1986); Fed.R.Civ.P. 56(c). An issue is “genuine”
when the evidence before the Court is such that a reasonable
jury could return a verdict in favor of the nonmovant as to
that issue. Anderson v. Liberty Lobby Inc., 477 U.S.
242, 248-52 (1986). A fact is “material” if under
the substantive law it is essential to the proper disposition
of the claim. Id. at 248.
not the Court's role to weigh the evidence, assess the
credibility of witnesses, or make factual findings in ruling
on a motion for summary judgment. Daniels v. United
Parcel Serv., Inc., 701 F.3d 620, 627 (10th Cir. 2012).
Rather, the Court assumes the admissible evidence of the
nonmovant to be true, resolves all doubts against the movant,
construes all admissible evidence in the light most favorable
to the nonmovant, and draws all reasonable inferences in
favor of the nonmovant. Hunt v. Cromartie, 526 U.S.
541, 551-52 (1999).
Relating to the Scope of Duty Analysis
in the Tort Claims Act, “‘scope of duty'
means performing any duties that a public employee is
requested, required[, ] or authorized to perform by the
governmental entity, regardless of the time and place of
performance[.]” NMSA 1978, § 41-4-3(G) (2015). In
a scope of duty analysis, the focus is on the employee's
duty as it relates to the act at issue. Risk
Mgmt. Div. v. McBrayer, 2000-NMCA-104, ¶¶
19-20. The inquiry does not turn upon whether the act itself
was requested, required, or authorized by the employer.
Id. Thus, a governmental entity may be liable for an
employee's unauthorized tortious or criminal conduct,
provided that there is some connection between the
conduct and the duties that the employee was requested,
required, or authorized to perform on behalf of the public
entity. Id. ¶ 20. “Whether an employee is
acting within the scope of duties is a question of fact, and
summary judgment is not appropriate unless only one
reasonable conclusion can be drawn from the facts
presented.” Celaya v. Hall, 2004-NMSC-005,
range of application of “scope of duty” has been
examined in three leading New Mexico cases,
McBrayer, Medina, and Celaya. They
are briefly reviewed here, as they inform the Court's
McBrayer, the New Mexico Supreme Court held that a
university instructor who used the distribution of homework
assignments as a ruse to lure a student to his apartment
where he sexually assaulted, tortured, and tried to kill her
could be found to have been acting “within the scope of
his duties.” 2000-NMCA-104, ¶¶ 3-4, 20
(holding that the scope of duty issue was ultimately one for
the fact-finder). While the tortious acts of the professor
were obviously not requested, required, or authorized by the
university, the court focused not on those acts,
but, rather, on the professor's duty of
distributing homework. Id. ¶¶ 19-20
(stating that “the issue of scope of duty centers on
what [the university] requested, required or authorized as it
related either generally or specifically to [the
professor's] duty as an instructor to help a student
obtain her homework assignments”). Because the
professor used his duty of distributing homework as a
subterfuge to accomplish the assault, the court reasoned, a
fact-finder could determine that his criminal actions fell
within the scope of his duty. Id. ¶ 20.
Medina, the New Mexico Court of Appeals held that a
sheriff's deputy (the defendant) was within the scope of
her duties while she was driving a sheriff's department
car home from work and was in a car crash. 1999-NMCA-011
¶ 9, 12. The defendant had left work, stopped to see her
husband at his place of employment, and then continued toward
home. Id. ¶ 2. She realized that she had
forgotten something at her husband's workplace and
returned to retrieve it. Id. On her way home from
her second visit to her husband's workplace, she was in
the car crash that led to a tort claim. Id. The
evidence demonstrated that the defendant “was
authorized or permitted, if not required, to use the
[sheriff's department car] to go to and from work in
order to facilitate her investigative duties.”
Id. ¶ 11. Under these circumstances, the
Medina court held that the defendant's
“actions in driving the take-home vehicle home from
work [fell] within the literal definition of ‘scope ...