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M.S. v. Belen Consolidated School District

United States District Court, D. New Mexico

August 14, 2017

M.S. Plaintiff,
BELEN CONSOLIDATED SCHOOL DISTRICT, CITY OF BELEN, and ESTATE OF MICHAEL ESQUIBEL, in his personal capacity acting under color of law, Defendants.



         THIS 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.


         This 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]

         Under 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).

         The 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.[1] [Id.]

         Standard for Summary Judgment

         Rule 56 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.

         It is 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).

         Law Relating to the Scope of Duty Analysis

         As used 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, ¶ 28.

         The 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 analysis.

         In 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.

         In 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 ...

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