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Gallegos v. Bernalillo County Board of Commissioners

United States District Court, D. New Mexico

August 17, 2017

MARTIN GALLEGOS, Plaintiff,
v.
BERNALILLO COUNTY BOARD OF COMMISSIONERS; BERNALILLO COUNTY DETENTION CENTER; NEW MEXICO DEPARTMENT OF CORRECTIONS, and JOHN DOES 1 through 5, Defendants.

          Stephen F. Lawless Stephen F. Lawless, P.A. Albuquerque, New Mexico Attorneys for the Plaintiff.

          Carlos M. Quiñones Quiñones Law Firm Albuquerque, New Mexico Attorneys for Defendants Bernalillo County Board of Commissioners and Bernalillo County Metropolitan Detention Center.

          Debra J. Moulton Deborah D. Wells Kennedy, Moulton & Wells PC Albuquerque, New Mexico Attorneys for Defendants New Mexico Corrections Department.

          MEMORANDUM OPINION AND ORDER

         THIS MATTER comes before the Court on: (i) Defendant New Mexico Department of Corrections' Motion for Summary Judgment and Memorandum Brief in Support Thereof, filed April 7, 2017 (Doc. 67)(“MSJ”); and (ii) the Plaintiff's Motion to File a Second Amended Complaint, filed February 17, 2017 (Doc. 58)(“Motion to Amend”). The Court held a hearing on June 2, 2017. The primary issues are: (i) whether Defendant New Mexico Department of Corrections is entitled to summary judgment, because the New Mexico Corrections Department enjoys sovereign immunity from Plaintiff Martin Gallegos' suit, including Gallegos' state tort claim and his 42 U.S.C. § 1983 claim that the New Mexico Corrections Department inflicted cruel and unusual punishment on him in violation of the Eighth Amendment to the Constitution of the United States of America by receiving him into custody such that Gallegos was without methadone; (ii) whether the New Mexico Tort Claims Act, N.M. Stat. Ann. §§ 41-4-1 to -30 (“NMTCA”), waives the New Mexico Corrections Department's Eleventh Amendment immunity from Gallegos' state tort claims for receiving him into custody such that Gallegos was without methadone; (iii) whether § 41-4-6(A)'s waiver provision does not apply, because the New Mexico Corrections Department failed to implement a safety policy regarding the provision of methadone necessary to protect those who use the building that housed Gallegos; (iv) whether § 41-4-6(A)'s waiver provision does not apply, because Gallegos' state tort claim is predicated on a single, discrete administrative act affecting only himself; (v) whether Gallegos' proposed amendment to add Mr. James Brewster, the New Mexico Corrections Department's General Counsel, is futile, because Mr. Brewster is immune from Gallegos' claims to the extent that they are based on Brewster's enforcement of facially-valid court orders; and (vi) whether the Court should deny Gallegos' proposed amendment to add Mr. Brewster as a defendant as futile, because Mr. Brewster was neither negligent nor deliberately indifferent to Gallegos' withdrawal symptoms.

         The Court concludes that: (i) the New Mexico Corrections Department is entitled to summary judgment on Gallegos' claims, because the New Mexico Corrections Department enjoys sovereign immunity from Gallegos' suit; (ii) the NMTCA does not waive the New Mexico Corrections Department's Eleventh Amendment immunity from Gallegos' state tort claim; (iii) even if the NMTCA waives the New Mexico Corrections Department's Eleventh Amendment immunity from Gallegos' state tort claim, § 41-4-6(A)'s waiver provision does not apply, because Gallegos has not sufficiently demonstrated that the New Mexico Corrections Department failed to implement a safety policy necessary to protect those who use the building that housed him; (iv) even if the NMTCA waives the New Mexico Corrections Department's Eleventh Amendment immunity to Gallegos' state tort claims, § 41-4-6(A)'s waiver provision does not apply, because § 41-4-6(A) does not waive the New Mexico Corrections Department's immunity from Gallegos' state tort claim to the extent that Gallegos' state tort claim is predicated on a single, discrete administrative act affecting only himself; (v) Gallegos' proposed amendment to add Mr. Brewster as a defendant is futile, because Mr. Brewster is immune from Gallegos' claims to the extent that Gallegos' claims are based on Mr. Brewster's enforcement of facially valid court orders; and (vi) Gallegos' proposed amendment to add Mr. Brewster as a defendant is futile, because Mr. Brewster was neither negligent nor deliberately indifferent to Gallegos' withdrawal symptoms. Accordingly, the Court grants the MSJ and denies in part the Motion to Amend to the extent that Gallegos proposes to add Mr. Brewster as a defendant.

         FACTUAL BACKGROUND

         The Court draws the factual background from the parties' assertions of undisputed material fact in their summary judgment motion papers. See MSJ ¶¶ 1-12, at 2-4; Plaintiff's Response to Defendant New Mexico Department of Corrections Motion for Summary Judgment ¶¶ 13-26, at 1-4, filed April 24, 2017 (Doc. 68)(“Response); Reply to Plaintiff's Response to Defendant New Mexico Department of Corrections' Motion for Summary Judgment and Memorandum Brief in Support Thereof ¶¶ 13-26, at 1-4, filed May 8, 2017 (Doc. 69)(“Reply”).

         1. Gallegos' Remand to the Metropolitan Detention Center and Subsequent Transfer to the New Mexico Corrections Department.

         On November 6, 2014, the Honorable Michael Martinez, District Court Judge Pro Tem for the Second Judicial District Court, County of Bernalillo, State of New Mexico, remanded Gallegos to the Metropolitan Detention Center (“MDC”) in Albuquerque, New Mexico. See MSJ ¶ 1, at 2 (asserting this fact); Response at 1 (admitting this fact). See also Order Remanding Defendant to Metropolitan Detention Center (MDC) ¶ 3A, at 1 (filed in state court on November 6, 2014), filed in federal court on April 7, 2017 (Doc. 67-1)(“Remand Order”).[1] The Remand Order states that Gallegos shall remain in the MDC's custody “until his level of methadone[2]treatment has reached a point where he will not incur life-endangering withdrawal symptoms upon transfer” to the New Mexico Corrections Department. MSJ ¶ 1, at 2 (asserting this fact). See Response at 1 (admitting this fact); Remand Order ¶ 3.C, at 1-2. Gallegos asserts that “[i]t is clear that the Titration[3] orders such as these were used frequently, by the District Court, for people who were on methadone.” Response ¶ 21, at 3 (citing Deposition of Douglas Wilber at 32:18-33:1; id. at 33:10-25 (taken February 9, 2017)(Lawless, Wilber), filed April 7, 2016 (Doc. 68-1)(“Wilber Depo.”). See Reply ¶ 21, at 3 (not disputing the factual allegation).[4] The court filed the Remand Order on November 6, 2014. See Remand Order at 1.[5] The Remand Order states that it was to remain in effect for six weeks at maximum. See MSJ ¶ 1, at 2 (asserting this fact); Response at 1 (admitting this fact). See also Remand Order at ¶ 4, at 2.

         On November 7, 2014, Judge Martinez committed Gallegos to the New Mexico Corrections Department. See MSJ ¶ 2, at 2 (asserting this fact); Response at 1 (admitting this fact). The state court sentenced Gallegos to serve an 834-day term in the New Mexico Corrections Department, beginning on November 6, 2014. See MSJ ¶¶ 2-3, at 2 (asserting this fact); Response at 1 (admitting this fact); Response ¶ 16, at 2 (asserting this fact); Reply ¶ 16, at 2 (admitting this fact). See also First Order Revoking Probation at 2, filed in state court on November 6, 2014, filed in federal court on April 7, 2017 (Doc. 67-2)(“First Order Revoking Probation”); Judgment, Sentence, and Order Suspending Sentence, filed in state court on November 7, 2017, filed in federal court on April 7, 2017 (Doc. 67-3)(“State Court Judgment, Sentence, and Order Suspending Sentence”). “On page two of the [probation revocation] order, the space entitled ‘MDC' is crossed out and there is a handwritten note that says ‘No MDC.'” MSJ ¶ 2, at 2 (alteration added)(asserting this fact)(quoting First Order Revoking Probation at 2); Response at 1 (admitting this fact). “[T]he Titration Order [i.e., the Remand Order] was signed out [sic] the same day as” the First Order Revoking Probation and the State Court Judgment, Sentence, and Order Suspending Sentence -- November 6, 2014. Response ¶ 15, at 2 (asserting this fact). See Reply ¶ 15, at 2 (not disputing this fact).[6] The New Mexico Corrections Department received Gallegos from the Bernalillo County Sheriff's Department on November 12, 2014, at 9:00 a.m. See MSJ ¶ 4, at 2 (asserting this fact); Response at 1 (admitting this fact). See also New Mexico Corrections Department Receipt of State Prisoner, filed April 7, 2017 (Doc. 67-4). Gallegos received a methadone dose on the day that he was transferred from MDC to the New Mexico Corrections Department. See Response ¶ 22, at 3 (alleging this fact); Reply ¶ 22, at 3 (alleging this fact).[7]

         2. Discussions Between Gallegos' Counsel and the New Mexico Corrections Department Concerning Gallegos' Treatment.

         Mr. Douglas Wilber, Gallegos' counsel in the state criminal matter, “was notified that [Gallegos] was no longer at MDC and had been transferred.” Response ¶ 17, at 2 (citing Wilber Depo. at 9:1-25 (Wilber). See Reply ¶ 17, at 2 (not contesting this assertion). Mr. Wilber then contacted the New Mexico Corrections Department, because, according to Mr. Wilber, “we had [an] entered order that I thought would take care of it. So at this point, I thought I needed to figure out why it appeared that the order had been missed or whatever the situation was.” Response ¶ 17, at 2 (citing Wilber Depo. at 14:14-17 (Wilber)). See Reply ¶ 17, at 2 (not disputing the factual allegation and “admit[ting] that Mr. Wilber made these statements in his deposition”)(alteration added).[8] After Mr. Wilber discovered that Gallegos had been transferred to the New Mexico Corrections Department, Mr. Wilber contacted Mr. Brewster, New Mexico Corrections Department General Counsel, on November 24, 2014. See MSJ ¶ 5, at 3 (asserting this fact); Response at 1 (admitting this fact). See also Affidavit of Douglas Wilber (dated November 23, 2015), filed April 7, 2017 (Doc. 67-5); Email from Douglas Wilber to James Brewster at 1 (dated November 24, 2014, 1:51 p.m.), filed April 7, 2017 (Doc. 67-6)(“November 24, 2014, 1:51 p.m. Email from Wilber to Brewster”)(“I'm not sure if there was a mixup at MDC, but [Gallegos] was apparently transported with NO methadone step down . . . and he is in pretty bad shape.”).[9]

         Mr. Brewster replied to Mr. Wilber, requesting “all relevant orders in order to properly assess this matter and [Mr. Wilber's'] request.” Email from James Brewster to Douglas Wilber at 1 (dated November 24, 2014, 1:57 p.m.), filed April 7, 2017 (Doc. 67-6)(“November 24, 2014, 1:57 p.m. Email from Brewster to Wilber”). See MSJ ¶ 6, at 3 (asserting this fact); Response at 1 (admitting this fact). Mr. Wilber promptly sent Mr. Brewster the orders pertaining to Gallegos' custody. See MSJ ¶ 7, at 3 (asserting this fact); Response at 1 (admitting this fact). See also Email from Douglas Wilber to James Brewster at 1 (dated November 24, 2014, 2:07 p.m.), filed April 7, 2017 (Doc. 67-6)(“November 24, 2014, 2:07 p.m. Email from Wilber to Brewster”). Mr. Brewster indicated to Mr. Wilber that Mr. Brewster would direct the New Mexico Corrections Department's medical vendor to assess and to treat Gallegos. See MSJ ¶ 7, at 3 (asserting this fact); Response at 1 (admitting this fact). See also Email from James Brewster to Douglas Wilber at 1 (dated November 24, 2014, 2:45 p.m.), filed April 7, 2017 (Doc. 67-6)(“November 24, 2014, 2:45 p.m. Email from Brewster to Wilber”). Mr. Brewster explained that he could not guarantee that Gallegos would receive methadone. See MSJ ¶ 7, at 3 (asserting this fact); Response at 1 (admitting this fact). See also November 24, 2014, 2:45 p.m. Email from Brewster to Wilber at 1. Mr. Brewster “was fully aware that medical detoxification was authorized but that titration did not occur at the DOC facilities since methadone was not used in any way at those facilities.” Response ¶ 23, at 4 (asserting this fact)(citing New Mexico Department of Corrections Reg. CD-170100.U-V, filed April 24, 2017 (Doc. 68-2)(“New Mexico Department of Corrections Reg. CD-170100.U-V”); Reply at ¶ 23, at 3 (not disputing this fact).[10] See November 24, 2014, 2:45 p.m. Email from Brewster to Wilber at 1.

         Mr. Brewster also indicated that, while the state court's first order had remanded Gallegos to MDC for six weeks before Gallegos was to be transferred to the New Mexico Corrections Department, the state court's second order “apparently sends him to NMCD the very next day[.]” November 24, 2014, 2:45 p.m. Email from Brewster to Wilber at 1. See MSJ ¶ 7, at 3 (asserting this fact); Response at 1 (admitting this fact). Mr. Brewster asked Mr. Wilber whether Mr. Wilber had brought this inconsistency “to the attention of the sentencing judge[.]” November 24, 2014, 2:45 p.m. Email from Brewster to Wilber at 1. See MSJ ¶ 7, at 3 (asserting this fact); Response at 1 (admitting this fact). Mr. Wilber responded to Mr. Brewster that Mr. Wilber would “try to see what will work best.” Email from Douglas Wilber to James Brewster at 1 (dated November 24, 2014, 2:56 p.m.), filed April 7, 2017 (Doc. 67-6)(“November 24, 2014, 2:56 p.m. Email from Wilber to Brewster”). See MSJ ¶ 8, at 3 (asserting this fact); Response at 1 (admitting this fact). Mr. Wilber also asked for Mr. Brewster's recommendation regarding the “best wording to say that the sentence would begin on [Gallegos'] release from MDC.” Email from Douglas Wilber to James Brewster at 1 (dated November 24, 2014, 2:56 p.m.), filed April 7, 2017 (Doc. 67-6)(“November 24, 2014, 2:56 p.m. Email from Wilber to Brewster”). See MSJ ¶ 8, at 3 (asserting this fact); Response at 1 (admitting this fact).

         On November 26, 2014, Mr. Brewster informed Mr. Wilber that the New Mexico Corrections Department's medical service provider, Corizon Health[11], was “already aware” of Gallegos' medical status, had “a protocol in place to treat him, ” and was treating him. Email from James Brewster to Douglas Wilber at 1 (dated November 26, 2014, 2:51 p.m.), filed April 7, 2017 (Doc. 67-6)(“November 26, 2014, 2:51 p.m. Email from Brewster to Wilber”). See MSJ ¶ 9, at 4 (asserting this fact); Response at 1 (admitting this fact). Mr. Brewster also advised Mr. Wilber that, as of November 26, 2014, sending Gallegos back to MDC did “not appear to be needful or helpful.” November 26, 2014, 2:51 p.m. Email from Brewster to Wilber at 1. See MSJ ¶ 9, at 4 (asserting this fact); Response at 1 (admitting this fact).

         Mr. Wilber “never made any effort to contact the sentencing judge and never filed any motions” related to Gallegos' transfer to the New Mexico Corrections Department. MSJ ¶ 10, at 4 (asserting this fact). See Response at 1 (admitting this fact). See also Deposition of Douglas Wilber at 15:11-14 (taken February 9, 2017)(Wilber), filed April 7, 2016 (Doc. 67-7)(“Wilber Depo.”). Mr. “Wilber did not file any orders or motions ‘to petition Gallegos back to MDC because, '” according to Mr. Wilber, “‘it was not clear to me that there was anything I could do once he was transported to DOC . . . I should say that was reinforced or that understanding was reinforced by my conversations with Mr. Brewster.” Response ¶ 18, at 3 (alteration original)(quoting Wilber Depo. at 14:24-15:3 (Wilber)). See Reply ¶ 18, at 2 (admitting that Mr. Wilber made these statements in his deposition). According to Mr. Wilber,

[A]lso it appeared to, by the time I understood what was happening and by the time I was able to start even trying to understand the situation, that it's quite possible that the harm was already done, and, like, I couldn't -- I wouldn't realistically be able to reference anything at this point because perhaps I discovered it somewhat late.

         Wilber Depo. at 15:3-10 (Wilber)(alteration added). Mr. Wilber “‘was trying to figure out, as a practical matter, what [he] would be able to do about the best result for [Gallegos], which was [Mr. Wilber's] main concern at the time . . . this was all happening very quickly.'” Response ¶ 18, at 3 (third alteration added)(quoting Wilber Depo. at 20:6-12 (Wilber)). See Reply ¶ 19, at 3 (not contesting that Mr. Wilber provided that deposition testimony). Mr. Wilber believed that it would have been difficult to receive another order from the state court. See Response ¶ 19, at 3 (alleging this fact); Reply ¶ 19, at 3 (not conceding this fact). He also questioned whether receiving another order from the state court would “even help the client who has already, you know, been off of methadone at this point for presumably several days.” Wilber Depo. at 21:17-25 (Wilber).[12]

         3. After the New Mexico Corrections Department Received Gallegos into its Custody, its Medical Service Provider, Corizon Health, Treated Gallegos for Opiate Withdrawal.

         On November 12, 2014, the same day that the New Mexico Corrections Department received Gallegos into its custody, Corizon Health medical personnel evaluated Gallegos' withdrawal symptoms and gave him a “Kick Kit to address his withdrawal symptoms.” Corizon Health Nursing Encounter Tool -- Withdrawal at 1 (dated November 12, 2014), filed May 8, 2017 (Doc. 69-2)(“Nursing Encounter Tool -- Withdrawal”). See New Mexico Corrections Department Physician's Orders at 1 (dated November 12, 2014), filed May 8, 2017 (Doc. 69-3)(“Physician's Orders”). Further, on November 21, 2014, Gallegos requested another Kick Kit, indicating it “helped some” and was also prescribed Elavil[13] for pain. See New Mexico Corrections Department Interdisciplinary Progress Notes at 1 (taken November 21, 2014), filed May 8, 2017 (Doc. 69-4)(“November 21, 2014 Interdisciplinary Progress Notes”). Next, on November 26, 2014, Corizon Health medical personnel denied Gallegos narcotics, but offered him “Ibuprofen, Tylenol, Mobic[14], Aleve, or Naproxen[15]” to address his pain, but Gallegos refused. Mexico Corrections Department Interdisciplinary Progress Notes at 1 (taken November 26, 2014), filed May 8, 2017 (Doc. 69-4)(“November 26, 2014 Interdisciplinary Progress Notes”). Then, on December 3, 2014, a Corizon Health provider conducted another assessment of Gallegos' withdrawal symptoms and ordered one dose of Clonidine.[16] See Corizon Clinical Institute Withdrawal Assessment -- Alcohol (dated December 3, 2014), filed May 8, 2017 (Doc. 69-6)(“Clinical Institute Withdrawal Assessment - Alcohol”); Corizon Nursing Encounter Tool -- Headache, filed May 8, 2017 (Doc. 67-7)(“Nursing Encounter Tool -- Headache”)).[17]

         PROCEDURAL BACKGROUND

         Gallegos filed this lawsuit in state district court on August 27, 2015. See Complaint (Tort), Gallegos v. Bernalillo Cnty. Bd. of Comm'rs, et al., No. CIV 2015-06829, (filed in Second Judicial District Court, County of Bernalillo, State of New Mexico August 27, 2015), filed in federal court February 22, 2016, (Doc. 1-1)(“Complaint”). In the Complaint, Gallegos asserts claims against Defendants Bernalillo County Board of Commissioners, MDC, [18] the New Mexico Corrections Department, and Defendants John Does one through five for a violation of § 41-4-12 of the NMTCA. See Complaint ¶ 1, at 1. Gallegos then filed an Amended Complaint, adding a federal claim. See Amended Complaint ¶¶ 1-19, at 1-4, Gallegos v. Bernalillo Cnty. Bd. of Comm'rs, et al., No. CIV 2015-6829 (filed in Second Judicial District Court, County of Bernalillo, State of New Mexico February 1, 2016, filed in federal court February 22, 2016 (Doc. 1-2)(“Amended Complaint”). In the Amended Complaint, Gallegos asserts claims against the Bernalillo County Board of Commissioners, MDC, the New Mexico Corrections Department, and John Does one through five -- who Gallegos alleges are “individual defendants working for either the Department of Corrections or Metropolitan Detention Center, ” Amended Complaint ¶ 12, at 3 -- for: (i) violations of the NMTCA, see Amended Complaint ¶¶ 8-17, at 2-3; and (ii) violations of Gallegos' rights guaranteed by the Eighth and Fourteenth Amendments to the Constitution of the United States of America, see Amended Complaint ¶ 18, at 4. Gallegos seeks “compensatory damages in a yet undetermined amount jointly and severally against all Defendants” and attorney fees. Amended Complaint at 4. Within thirty days of receipt of the Amended Complaint, Bernalillo County Board of Commissioners and MDC removed the lawsuit to federal court pursuant to 28 U.S.C. § 1446(b)(3). See Notice of Removal at 1, filed February 22, 2016 (Doc. 1).

         On November 1, 2016, MDC moved to dismiss Gallegos' Amended Complaint, arguing (i) that MDC is not a suable entity under the NMTCA, §§ 41-4-1 to -30; and (ii) that Gallegos may not assert claims for federal constitutional violations against MDC. See Defendant Bernalillo County Metropolitan Detention Center's Motion to Dismiss at 1-4, filed November 1, 2016 (Doc. 34)(“November 1, 2016, Motion to Dismiss”). On January 6, 2017, both the Board of County Commissioners and MDC moved to dismiss the Amended Complaint, arguing: (i) that the Board of County Commissioners and MDC have “Absolute Quasi-Judicial Immunity for their Reliance on a Facially Valid Court Order(s)”; (ii) that the Board of County Commissioners' and MDC's vicarious liability is unavailable for Gallegos' constitutional claim; (iii) that the State of New Mexico has not waived the Board of County Commissioners' and MDC's immunity to Gallegos' tort claims against those state entities; and (iv) that the Court lacks jurisdiction to decide Gallegos' tort claim, because Gallegos failed to give notice of the claim to the Board of County Commissioners and MDC. See Defendants Bernalillo County Board of Commissioners' and Bernalillo County Detention Center's Opposed Motion to Dismiss Plaintiffs' Claims at 4-15, filed January 6, 2017 (Doc. 45)(“January 6, 2017, Motion to Dismiss”).[19]

         1. The Motion to Amend.

         On February 17, 2017, Gallegos moved to amend his Amended Complaint and to file a Second Amended Complaint. See Motion to Amend at 1-8. Gallegos moves to amend his Amended Complaint to “add Clyde Kline, Jovanne King and James Brewster as substitute parties for John Doe No. 1, John Doe No. 2 and John Doe No. 3.” Motion to Amend at 1.[20] Gallegos states that, as a result of the initial disclosures, he received a supposedly complete file pertaining to his custody from the New Mexico Corrections Department. See Motion to Amend at 1. Gallegos maintains that this file did not contain, however, “any correspondence or emails involving James Brewster, the Chief Attorney for the Department of Corrections.” Motion to Amend at 1. Gallegos later discovered such correspondence involving Mr. Brewster. See Motion to Amend at 3. Gallegos states:

Just prior to the deposition of Martin Gallegos on January 18th, the Public Defender, Doug Wilber, gave Plaintiff a copy of emails indicating that he had contacted Jim Brewster as chief lawyer for the Department of Corrections. He indicated he had found these in a separate file involving Martin Gallegos' [sic]. These were presented to [the] opposing side . . . .

         Motion to Amend at 3 (alteration added). As a result of the discovered email correspondence involving Mr. Brewster, Gallegos argues that he “should be allowed to file the second amended complaint that is attached to add . . . Brewster as [a] party Defendant[].” Motion at Amend at 4 (alterations added). Specifically, Gallegos contends that “[t]he interests of justice” and “judicial economy” support his Motion to Amend. Motion to Amend at 4 (alteration added).

         Pursuant to rule 15.1 of the District of New Mexico Local Rules of Civil Procedure, Gallegos attaches to his Motion to Amend his Second Amended Complaint, filed February 17, 2017 (Doc. 58)(“Second Amended Complaint”). D.N.M.LR-Civ. 15.1 (“A proposed amendment to a pleading must accompany the motion to amend.”). In the Second Amended Complaint, Gallegos alleges that his “court appointed attorney presented . . . [three central] facts to Defendant James Brewster.” Second Amended Complaint ¶ 10, at 6. Gallegos alleges that his “court appointed attorney” apprised Mr. Brewster that:

7. On or about November 6, 2014, an order remanding Plaintiff to custody was issued by the Second Judicial District Court Judge Michael Martinez. This order was to remain in effect for six (6) weeks while Plaintiff participated in a Methadone program at BCMDC to decrease his level of dependency so that Plaintiff, Martin Gallegos would not incur life endangering withdrawal symptoms.
8. Approximately 6 days after remanded to custody, the court order was presented by Plaintiff to agents Kline and King of the Bernalillo County Metropolitan Detention Center.
9. The court order was ignored and Plaintiff was transported to Central New Mexico Correctional Facility (CNMCC) where Plaintiff suffered life threatening withdrawal symptoms for almost two (2) months.

         Second Amended Complaint ¶¶ 7-10, at 6. Gallegos alleges that Brewster “ignored the court order to the detriment of Plaintiff's health.” Second Amended Complaint ¶ 13, at 7. On that basis, Gallegos asserts a tort claim “authorized by the New Mexico Tort Claims [Act], Chapter 41-4-6 NMSA” against Brewster. Second Amendment Complaint ¶ 11, at 6 (alteration added).

         Gallegos additionally alleges:

Defendant James Brewster was contacted by Public Defender for Plaintiff, Doug Wilber through emails on November 24, 2014. (As chief attorney for the Department of Corrections) trying to see what could be done to alleviate the condition of Plaintiff Gallegos at the Department of Corrections and/or return him to MDC to complete his treatment and titration off of methadone. [sic]

         Second Amended Complaint ¶ 19, at 8. Based on that allegation, Gallegos asserts that “Brewster was deliberately indifferent to the entreaties of the Plaintiff's lawyer and as a result of such negligence and deliberate indifference Plaintiff was damaged . . . .” Second Amended Complaint ¶ 20, at 8. In sum, Gallegos seeks to amend his Amended Complaint to add Brewster as a defendant, and Gallegos intends to assert the same claims against Brewster as he asserts against the New Mexico Corrections Department -- namely, a state tort claim and a deliberate-indifference claim. See Second Amended Complaint ¶¶ 11, 20, at 6, 8. Nowhere in his MSJ to Amend or in his Second Amended Complaint does Gallegos suggest that he attempts to add Brewster in his official capacity as the New Mexico Corrections Department's General Counsel only. See Motion to Amend at 1-4; Second Amended Complaint ¶¶ 1-20, 5-8.

         2. The MSJ.

         The New Mexico Corrections Department makes three arguments to support its MSJ. See MSJ at 5-12. The New Mexico Corrections Department argues that it is entitled to summary judgment, because “(1) there is no waiver for the state law tort claim; (2) the DOC and its employees are entitled to quasi-judicial immunity as they relied on a facially valid court order sentencing plaintiff to the custody of the DOC; and (3) plaintiff cannot establish deliberate indifference.” MSJ at 1-2. The Court will rehearse these arguments seriatim.

         First, the New Mexico Corrections Department directs the Court's attention to the three orders that the state court issued on November 6, 2014, and November 7, 2014. See MSJ at 5-6 (citing Remand Order at 1; First Order Revoking Probation at 1; State Court Judgment, Sentence, and Order Suspending Sentence at 1). The New Mexico Corrections Department argues that “[t]he court orders . . . were facially valid and any DOC employee who accepted the plaintiff into the Department of Corrections on November 12, 2014, is entitled to absolute quasi-judicial immunity for enforcing the orders that sentenced plaintiff to the custody of the Corrections Department.” MSJ at 7 (alteration added). The New Mexico Corrections Department maintains that Gallegos “should not now be allowed to sue the Corrections Department for enforcing the Court's orders, ” relying on Valdez v. City & County of Denver, 878 F.2d 1285, 1286 (10th Cir. 1989). According to the New Mexico Corrections Department, “‘[t]he proper procedure for a party who wishes to contest the legality of a court order enforcing a judgment is to appeal that order and the underlying judgment, not to sue the official responsible for its execution.'” MSJ at 7 (alteration added)(quoting Valdez v. City & Cnty. of Denver, 878 F.2d at 1289-90). The New Mexico Corrections Department concludes, therefore, that it is “entitled to absolute quasi-judicial immunity” and, accordingly, summary judgment in its favor. MSJ at 7.

         Second, the New Mexico Corrections Department argues that the Court should grant summary judgment in its favor, because, under N.M. Stat. Ann. § 41-4-6, the NMTCA does not waive the New Mexico Corrections Department's immunity from Gallegos' tort claim. See MSJ at 7. Section 41-4-4(A) of N.M. Stat. Ann. provides that “[a] governmental entity and any public employee while acting within the scope of duty are granted immunity from liability for any tort except as waived by . . . Sections 41-4-5 through 21-2-12.” Section 41-4-6(A), in turn, provides:

The immunity granted pursuant to Subsection A of Section 41-4-4 NMSA 1978 does not apply to liability for damages resulting from bodily injury, wrongful death or property damage caused by the negligence of public employees while acting within the scope of their duties in the operation or maintenance of any building, public park, machinery, equipment or furnishings.

N.M. Stat. Ann. § 41-4-6(A). The New Mexico Corrections Department argues that, because § 41-4-6(A) does not waive its immunity from Gallegos' tort claim, it is entitled to summary judgment on that claim. See MSJ at 8. The New Mexico Corrections Department also indicates that “New Mexico courts have been reluctant to find waiver under [§ 41-4-6(A)] for the performance of administrative tasks within the corrections system, such as the supervision or classification of inmates.” MSJ at 7 (citing Archibeque v. Moya, 1993-NMSC-079, ¶¶ 13-14, 866 P.2d 344, 349; Lessen v. City of Albuquerque, 2008-NMCA-085, 187 P.3d 179; Gallegos v. State, 1987-NMCA-150, ¶¶ 6-10, 758 P.2d 299, 301).

         Third, the New Mexico Corrections Department argues that Gallegos cannot maintain an independent claim for relief under the Fourteenth Amendment. See MSJ at 8-9. The New Mexico Corrections Department indicates that Gallegos asserts “claims under both the Eighth Amendment and the Fourteenth Amendment[].” MSJ at 8 (citing Amended Complaint ¶ 18, at 4). The New Mexico Corrections Department relies on Albright v. Oliver, 510 U.S. 266 (1994), for the proposition that, “where a particular amendment ‘provides an explicit textual source of Constitutional protection' against a particular sort of government behavior, ‘that Amendment, not the more generalized notice of substantive due process, must be the guide for analyzing these claims.'” Response at 8 (quoting Albright v. Oliver, 510 U.S. at 273 (internal quotation marks and citation omitted)). The New Mexico Corrections Department further argues that the United States Court of Appeals for the Tenth Circuit also “has stated that the Eighth Amendment is the proper amendment for claims such as those alleged by the plaintiff[.]” Response at 8 (alteration added)(quoting Berry v. City of Muskogee, Okla., 900 F.2d 1489, 1494 (10th Cir. 1990). The New Mexico Corrections Department concludes, therefore, that it is “entitled to a dismissal of plaintiff's claims under the Fourteenth Amendment.” Response at 9.

         Fourth, the New Mexico Corrections Department argues that it is entitled to summary judgment on Gallegos' claim of deliberate indifference in violation of the Eighth Amendment. See MSJ at 9-11. The Department of Corrections relies on Farmer v. Brennan, 511 U.S. 858, 834 (1994), for the proposition that “[a]n official violates the Eighth Amendment when two elements are met: (1) the official causes an injury that, objectively is ‘sufficient serious, ' i.e. an injury that equates to the ‘denial of the minimal civilized measure of life's necessities'; and (ii) the official has a ‘sufficiently culpable state of mind.'” MSJ at 9 (alteration added)(quoting Farmer v. Brennan, 511 U.S. at 834). The New Mexico Corrections Department argues that Gallegos cannot establish “that his alleged injury was sufficiently serious” to substantiate an Eighth Amendment violation. MSJ at 10. The New Mexico Corrections Department further argues that Gallegos cannot show that it “was aware of facts from which the inference could be drawn that a substantial risk of serious harm existed and that any individual actually drew such an inference.” MSJ at 10. Regarding Mr. Brewster's conduct, the Department of Corrections argues that the email exchanges between Mr. Wilber and Mr. Brewster on November 24, 2014, and November 26, 2014, demonstrate that “Mr. Brewster was neither deliberately indifferent to the plaintiff nor the entreaties of the Plaintiff's lawyer.” MSJ at 11 (internal quotation marks and citation omitted). See November 24, 2014, 1:57 p.m. Email from Brewster to Wilber at 1. The New Mexico Corrections Department maintains that “[t]here is nothing in this email exchange that establishes either the objective or subjective component of deliberate indifference.” MSJ at 12. Accordingly, the New Mexico Corrections Department concludes that it is entitled to summary judgment on Gallegos' Eighth Amendment claim. See MSJ at 12.

         Last, the New Mexico Corrections Department argues that John Does one through five are also entitled to summary judgment. See MSJ at 12. The New Mexico Corrections Department maintains that, when the discovery deadline passed on February 9, 2017, “no cognizable claims lie against John Does 1-5.” MSJ at 12. The New Mexico Corrections Department concludes that “Defendants John Does 1-5 are entitled to summary judgment as a matter of law.” MSJ at 12 (citing Williams v. Chicago Police Officer Marcel Rodriguez, 509 F.3d 392 (7th Cir. 2007); Roper v. Grayson, 81 F.3d 124 (10th Cir. 1996)). Accordingly, the New Mexico Corrections Department argues that the Court should enter “summary judgment in its favor on both counts of plaintiff's Amended Complaint.” MSJ at 12.

         3. The Response.

         In response, Gallegos first asserts that the New Mexico Corrections Department does not enjoy quasi-judicial immunity because it relied on a court order. See Response at 5. Gallegos asserts that “the DOC and its employees have provided no testimony that they were relying on another order entered the same day as the titration order as the reason they did nothing in this case.” Response at 5. See id. (“There is no evidence that Defendants relied on a concurrent court order, signed on November 6th and entered on November 7th, in order to avoid taking any action in this matter.”). Specifically, Gallegos maintains that “there is no evidence that James Brewster relied on one order versus another in order to take no action in this case.” Response at 5. Gallegos further notes that the state court “titration orders were a regular matter of course for prisoners” and, accordingly, should be read in conjunction. Response at 5.

         Second, Gallegos argues that the New Mexico Corrections Department “is not entitled to dismissal as there is no waiver of immunity of the New Mexico Tort Claims Act, ” N.M. Stat. Ann. §§ 41-4-1 to -30. Response at 6. Gallegos asserts that the NMTCA's immunity provision, see N.M. Stat. Ann. § 41-4-4, does not apply, because “[t]his case does not involve classification or supervision of inmates.” Response at 6 (alterations added). Instead, Gallegos maintains, “[t]his case involved the Defendant DOC being advised that a set of concurrent orders had required Plaintiff to remain at MDC until his level of methadone treatment had reached a point where Plaintiff would not incur life endangering withdrawal symptoms on transfer to the Department of Corrections.” Response at 6 (alterations added). Gallegos asserts that Mr. Wilber alerted Mr. Brewster “that these Titration orders were entered concurrently, and they are frequently entered and that they are read in conjunction with each other.” Response at 6.

         Gallegos then argues that N.M. Stat. Ann. § 41-4-6(A) waives the New Mexico Corrections Department's immunity to his tort claim. See Response at 6. Gallegos states that Mr. Wilber and Mr. Brewster “discussed how this kind of action could be prevented in the future with proper procedure.” Response at 6. Gallegos then argues that “[t]he proper procedure would cover the operation and maintenance of the building with regard to all similarly situated inmates within the Department of Corrections.” Response at 6. Cf. N.M. Stat. Ann. § 41-4-6(A)(providing that immunity to tort claims under N.M. Stat. Ann. § 41-4-6(A) does not apply to damages “caused by the negligence of public employees while acting within the scope of their duties in the operation or maintenance of any building, public park, machinery, equipment or furnishings”).

         Third, Gallegos argues that the New Mexico Corrections Department is not entitled to dismissal of his Fourteenth Amendment claim. See Response at 6-7. Gallegos states that the Fourteenth Amendment “provides an explicit textual source of constitutional protection against a particular source of governmental behavior including ‘substantive due process.'” Response at 6-7. Gallegos asserts that, in Whitley v. Albers, 475 U.S. 312 (1986), “the Supreme Court recognized that the same facts could give rise to both an Eighth Amendment cruel and unusual punishment claim and a substantive due process claim under the Fourteenth Amendment.” Response at 7 (citing Whitley v. Albers, 475 U.S. at 326-27). Gallegos concedes, however, that the Supreme Court of the United States of America stated in Whitley v. Albers that “‘the Eighth Amendment, which is specifically concerned wit[h] the unnecessary and wanton infliction of pain in penal institutions, serves as the primary source of substantive protection to convicted prisoners in cases such as this one, where the deliberate use of force is challenged as excessive and unjustified.'” Response at 7 (alteration added)(quoting Whitley v. Albers, 475 U.S. at 327). Gallegos emphasizes that “[t]his case involves a deprivation of substantive due process in that two concurrent court orders . . . are not being read accurately and not being enforced in the manner to which they were intended.” Response at 7. “In addition to the Eighth Amendment, ” Gallegos concludes, “the Fourteenth comes into play in this matter.” Response at 7.

         Fourth, Gallegos argues that the New Mexico Corrections Department is not entitled to summary judgment, because he can “establish the objective and subjective elements of deliberate indifference.” Response at 7. Gallegos begins his argument by stating that “[t]he titration order itself indicates the seriousness of the situation and the required treatment of Plaintiff is to lower his level of methadone . . . until its reached a point where the Plaintiff would not incur life threatening withdrawal symptoms upon transfer to the Department of Corrections.” Response at 7. Gallegos continues by emphasizing that “[t]he order itself shows that a substantial risk of potential harm occurs if the Plaintiff is denied titration off his high methadone level.” Response at 7. Gallegos then argues that “[w]hether deliberate indifference has occurred is generally a ‘fact' question . . . .” Response at 7-8 (citing Wilson v. Seiter, 501 U.S. 294, 299 (1991); Canton v. Harris, 489 U.S. 378 (1989)). See Response at 9 (arguing that Mr. Brewster's failure to institute “a protocol for Mr. Gallegos' situation is a factual dispute as to whether this constitutes deliberate indifference”).

         Gallegos also argues that the “seriousness of the situation allows a fact finder to conclude a prison official knew of a substantial risk from the very fact that the risk is obvious.” Response at 8. Gallegos maintains that “[s]ubstantial risk of serious harm existed as stated in the particular order that was brought to Mr. Brewster's attention.” Response at 8. Gallegos argues not only that Mr. Wilber made Mr. Brewster aware Gallegos' risk of dangerous withdrawal, but also that Mr. “Brewster was also obviously aware that no methadone treatment was available at the Department of Corrections . . . .” Response at 8. Gallegos further maintains that Mr. Brewster “could have easily ordered a change for this particular situation, by telling Corizon and medical providers that they needed to follow the Judge's order and titrate down the Plaintiff so that he would not endure the pain and life threatening situation that he was already starting to undergo.” Response at 8. Gallegos additionally emphasizes that Mr. “Brewster could have ordered titration immediately or returned Plaintiff to MDC.” Response at 8. In support, Gallegos points to New Mexico Department of Corrections Reg. CD-170100.U-V for the proposition that “detoxification under medical supervision or access to a chemical dependency treatment program . . . was allowed and could be developed and implemented on Mr. Gallegos' behalf.” Response at 8 (citing New Mexico Department of Corrections Reg. CD-170100.U-V at 1). “Instead, ” Gallegos argues, Mr. Brewster took no action “other th[a]n seeing that a doctor was aware of the problem to make sure, in theory, that Mr. Gallegos [did] not die.” Response at 8 (alterations added). Gallegos concludes that summary judgment is unwarranted, because there is a factual dispute whether Mr. Brewster's lack of action to Gallegos' situation constitutes deliberate indifference. See Response at 9.

         Last, Gallegos responds that the John Does are not entitled to summary judgment. See Response at 9. Gallegos states that he has attempted to name Mr. Brewster as an individual Defendant. See Response at 9 (citing Motion to Amend at ¶ 1-8). Gallegos maintains that he did not know Mr. Brewster's identity until “just before the deposition of Douglas Wilber.” Response at 9. Gallegos also states that, as of the filing of the Response, Mr. “Brewster has not been deposed, because he was unavailable during the entire New Mexico legislative session as the General Counsel for the Department of Corrections.” Response at 9.

         4. The Reply.

         In reply, the New Mexico Corrections Department counters that, in the Response, Gallegos does not dispute that the New Mexico Corrections Department enjoys absolute quasi-judicial immunity to Gallegos' tort claim. See Reply at 4 (citing Response at 5). As the New Mexico Corrections Department reads Gallegos' Response, Gallegos' “only argument with regard to . . . [the New Mexico Corrections Department's] assertion for absolute quasi-judicial immunity is that [the New Mexico Corrections Department] has not established which Order they relied on in admitting plaintiff to the Department of Corrections.” Reply at 4 (alterations added). The New Mexico Corrections Department adverts to the State Court Judgment, Sentence, and Order Suspending Sentence as “the facially valid order that [it] relied on in admitting the plaintiff when he was brought” into its custody on November 12, 2017. Reply at 4.

         The New Mexico Corrections Department further indicates that Gallegos does not cite any legal authority “as to why the DOC would not be entitled to absolute quasi-judicial immunity.” Reply at 4. The New Mexico Corrections Department presses that Gallegos does not “contest that the state district court orders were facially valid.” Reply at 4. The New Mexico Corrections Department maintains that, because “the DOC relied on a facially valid Court order when they received plaintiff at the DOC, the DOC is entitled to absolute quasi-judicial immunity . . . .” Reply at 4 (alteration added). The New Mexico Corrections Department accordingly concludes that the Court should grant summary judgment in its favor. See Reply at 4.

         Second, the New Mexico Corrections Department replies that it “is entitled to dismissal as there is no waiver of immunity under § 41-4-6 of the New Mexico Tort Claims Act.” Reply at 4. The New Mexico Corrections Department posits that “[t]his case does involve the admission of an inmate into the system, which would be an administrative function associated with the operation of the correctional system.” Reply at 5 (alteration added). The New Mexico Corrections Department then argues that “[a]dmitting an inmate into the correctional system is akin to the sorts of administrative functions associated with the operation of the corrections system . . . which are not applicable to § 41-4-6 in a correctional setting.” Reply at 5 (alteration added)(citing Lessen v. City of Albuquerque, 2008-NMCA-085, 187 P.3d 179). Accordingly, the New Mexico Corrections Department concludes that Gallegos' tort claim against it “should be dismissed as there is no waiver of immunity.” Reply at 5.

         Third, the New Mexico Corrections Department replies that it is “entitled to dismissal of the Fourteenth Amendment claim because where constitutional protection is afforded under specific constitutional provisions, alleged violations of the protection should be analyzed under those provisions and not under the more generalized provisions of substantive due process.” Reply at 5. The New Mexico Corrections Department relies on Graham v. Connor, 490 U.S. 386 (1989), for the proposition that, “when a specific constitutional amendment provides ‘an explicit textual source of constitutional protection against this sort of physically intrusive governmental conduct, ' the courts should analyze all constitutional claims under that amendment's standards rather than under ‘the more generalized notion of substantive due process.'” Reply at 5 (quoting Graham v. Connor, 490 U.S. at 395). The New Mexico Corrections Department then emphasizes that, in United States v. Lanier, 520 U.S. 259 (1997), the Supreme Court clarified that its holding in Graham v. Connor “‘simply requires that if a constitutional claim is covered by a specific constitutional provision, such as the Fourth or Eighth Amendment, the claim must be analyzed under the standard appropriate to that specific provision, not under the rubric of substantive due process.'” Reply at 6 (quoting United States v. Lanier, 520 U.S. at 272 n.7). Accordingly, the New Mexico Corrections Department concludes that the Court should review Gallegos' constitutional claim under the Eighth Amendment and concomitantly dismiss his independent Fourteenth Amendment claim. See Reply at 6.

         Fourth, the New Mexico Corrections Department replies that the Court should grant summary judgment in its favor on Gallegos' Eighth Amendment claim. See Reply at 6-8. The New Mexico Corrections Department argues that it is entitled to summary judgment, “because a governmental entity ‘may be held liable under § 1983 only for its own unconstitutional or illegal policies and not for the tortuous acts of its employees.'” Reply at 6 (quoting Lopez v. LeMaster, 172 F.3d 756, 762-63 (10th Cir. 1999)). The New Mexico Corrections Department notes that Gallegos has not established “an unconstitutional or illegal policy of the DOC.” Reply at 6. The New Mexico Corrections Department argues, therefore, that it cannot be held liable under § 1983 for Mr. Brewster's actions. See Reply at 6.

         Fifth, the New Mexico Corrections Department argues that, “if the Court were to allow an amendment to add Mr. Brewster as a defendant, ” Gallegos cannot establish a deliberate indifference claim against him. Reply at 6. The New Mexico Corrections Department argues that Gallegos does not demonstrate a “sufficiently serious” injury to support an Eighth Amendment claim. Reply at 6. The New Mexico Corrections Department states that Gallegos “has produced no evidence to establish that his condition was sufficiently serious, other than to reference the phrase ‘life-endangering withdrawal symptoms' in an Order signed by a Judge, not a physician.” Reply at 6 (quoting Remand Order ¶ 3.C, at 2 (“Defendant shall remain in custody of the Metropolitan Detention Center (MDC) until his level of methadone treatment has reached a point where Defendant will not incur life-endangering withdrawal symptoms upon transfer . . . .”)). The New Mexico Corrections Department maintains that the Remand Order alone does not establish that Gallegos' injury sufficiently establishes an Eighth Amendment claim. See Reply at 6.

         The New Mexico Corrections Department then argues that, even if Gallegos' condition were sufficiently serious to implicate the Eighth Amendment, “a review of plaintiff's medical records establish, however, that plaintiff was seen by medical [personnel] and his withdrawal symptoms were addressed.” Reply at 7 (alteration added). The New Mexico Corrections Department relies on two Corizon Health documents to argue that, on November 12, 2014, the day that the New Mexico Corrections Department took Gallegos into custody, medical personnel evaluated Gallegos' withdrawal symptoms and gave him a “Kick Kit to address his withdrawal symptoms.” Reply at 7 (citing Nursing Encounter Tool -- Withdrawal at 1; Physician's Orders at 1). The New Mexico Corrections Department also states that, on November 21, 2014, Gallegos “requested another Kick Kit, indicating it ‘helped some' and was also prescribed Elavil for pain.” Reply at 7 (quoting November 21, 2014 Interdisciplinary Progress Notes at 1). The New Mexico Corrections Department further indicates that, on November 26, 2014, medical personnel denied Gallegos narcotics, but offered him “Ibuprofen, Tylenol, Mobic, Aleve, or Naproxen” to address his pain, but Gallegos refused. Reply at 7 (quoting November 26, 2014 Interdisciplinary Progress Notes at 1). The New Mexico Corrections Department additionally states that “[o]n December 3, 2014, a provider conducted another withdrawal assessment and one dose of Clonidine was ordered.” Reply at 7 (citing Clinical Institute Withdrawal Assessment -- Alcohol at 1; Nursing Encounter Tool -- Headache at 1). The New Mexico Corrections Department asserts not only that Gallegos “was clearly provided with the appropriate medical care, ” but also that, because Gallegos did not experience lingering medical problems, “his alleged de minimis injury does not meet the objective test of an ‘unquestioned and serious deprivation[] of basic human needs' to support a constitutional violation.” Reply at 7 (quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981)). The New Mexico Corrections Department argues that, although Gallegos preferred to have methadone or narcotics, “his medical condition was appropriately addressed.” Reply at 7 (citing Free v. Unknown Officers of the Bureau of Prisons, 103 F. App'x 334, 337 (10th Cir. 2004)). The New Mexico Corrections Department accordingly concludes that Gallegos “has failed to establish the objective element of his Eighth Amendment claim.” Reply at 7.

         Next, the New Mexico Corrections Department replies that Gallegos has failed to establish the deliberate-indifference claim's subjective component. See Reply at 7-10. The New Mexico Corrections Department states that this element “requires ‘evidence of the prison official's culpable state of mind.'” Reply at 8 (quoting Mata v. Saiz, 427 F.3d 745, 751 (10th Cir. 2005)). To demonstrate the subjective element of a deliberate-indifference claim, the New Mexico Corrections Department asserts, Gallegos “must show ‘that the Defendants knew he faced a substantial risk of harm and disregarded that risk . . . [and that] the official . . . [was] aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also [have] draw[n] the inference.” Reply at 8 (first alteration original, second through fourth alterations added)(quoting Martinez v. Beggs, 563 F.3d 1082, 1089 (10th Cir. 2009)).

         The New Mexico Corrections Department argues that Gallegos cannot satisfy this subjective element, because “there is no evidence of a culpable state of mind by Mr. Brewster.” Reply at 8. The New Mexico Corrections Department presses that “[n]othing Mr. Brewster wrote in his email provides evidence of a culpable state of mind.” Reply at 8 (alteration added). The New Mexico Corrections Department adverts to the November 24, 2014, 2:45 p.m. Email from Brewster to Wilber, in which Mr. Brewster represents to Mr. Wilber that Mr. Brewster “could have the medical vendor make[] sure to assess and treat [Gallegos].” Reply at 8 (alterations added)(citing November 24, 2014, 2:45 p.m. Email from Brewster to Wilber at 1). The New Mexico Corrections Department also adverts to the November 24, 2014, 2:51 p.m. Email from Brewster to Wilber, in which Mr. Brewster represents to Mr. Wilber that “the ‘Department's inmate medical services provider (Corizon) is already aware of your client's medical status and has a protocol in place to treat him. It is already treating him.'” Reply at 8 (quoting November 24, 2014, 2:51 p.m. Email from Brewster to Wilber at 1). The New Mexico Corrections Department argues that these electronic communications demonstrate that, “[w]ithin a ten minute period, Mr. Brewster had contacted the medical vendor, advised them of the concern and insured that they had the proper protocol in place to treat the plaintiff[;] Mr. Brewster did not disregard plaintiff's medical status, but actively sought to address it.” Reply at 8. The New Mexico Corrections Department emphasizes that “these are not the comments of someone who deliberately disregarded any risk of harm.” Reply at 8.

         The New Mexico Corrections Department next replies that Gallegos' assertion “that ‘Wilber goes on to say that he became aware that any action that he would take on behalf of Plaintiff in this matter would be disputed by Brewster'” misrepresents Mr. Brewster's electronic communications to Mr. Wilber and Mr. Wilber's deposition testimony. Reply at 8. The New Mexico Corrections Department clarifies that “Mr. Brewster initially asked Mr. Wilber if he wanted to bring the issue to the judge's attention or leave [Gallegos] with NMCD.” Reply at 8-9 (alteration added)(citing November 24, 2014, 2:45 p.m. Email from Brewster to Wilber at 1). The New Mexico Corrections Department admits that “Mr. Brewster stated that it would be ‘legally and logistically difficult to “unring” this bell and send him back to MDC at this point, '” but asserts that Mr. Brewster “states absolutely nothing to suggest that he would interfere with his efforts to do so.” Reply at 9 (quoting Email from James Brewster to Douglas Wilber at 1 (dated November 24, 2014, 3:32 p.m.), filed April 7, 2017 (Doc. 67-6)(“November 24, 2014, 3:32 p.m. Email from Brewster to Wilber”)). The New Mexico Corrections Department also argues that, even if Mr. Wilber believed that Mr. Brewster would dispute any action that Mr. Wilber took on Gallegos' behalf, Mr. Wilber's state of mind is not determinative of Mr. Brewster's state of mind. See Reply at 9. The New Mexico Corrections Department concludes, therefore, that Gallegos fails to establish the deliberate-indifference claim's subjective element, because Gallegos “has failed to establish that Mr. Brewster would in any way interfere with plaintiff's counsel's efforts to get him back to MDC.” Reply at 9.

         The New Mexico Corrections Department then turns to Gallegos' “statement that Brewster could ‘have easily ordered a change for this particular situation, by telling Corizon and medical providers that they needed to follow the Judge's order and titrate down the Plaintiff.'” Reply at 9 (quoting Response at 8). The New Mexico Corrections Department notes that Gallegos provides no evidentiary support for this assertion. See Reply at 9. The New Mexico Corrections Department further argues that Gallegos ignores “the fact that methadone is not available in the prison system, that the attorney for the Corrections Department cannot order Corizon . . . to provide specific treatment and that withdrawal symptoms can be treated in a number of ways other than with methadone.” Reply at 9.

         The New Mexico Corrections Department next addresses Gallegos' allegation that Mr. Brewster could have returned Gallegos to MDC. See Reply at 9. See also Response at 8 (“Brewster could have ordered titration immediately or returned Plaintiff to MDC.”). The New Mexico Corrections Department emphasizes that Gallegos' factual assertion is unsubstantiated, stating that Gallegos “has provided no evidence that Mr. Brewster could effectuate the move of any inmate.” Reply at 9. The New Mexico Corrections Department additionally presses that Gallegos “provided no support for this and offered no explanation as to how he thinks Mr. Brewster, an attorney for the DOC could return an inmate to MDC when they possessed a facially valid order sending him to the custody of the Corrections Department.” Reply at 9.

         The New Mexico Corrections Department then directs its attention to Gallegos' allegation that “Mr. Brewster could have ordered detoxification under medical supervision or access to a chemical dependency treatment program.” Reply at 10. See Response at 8 (“Under the Corrections Department regulations . . . detoxification under medical supervision or access to a chemical dependency treatment program and moving it into an individual treatment plan was allowed and could be . . . implemented on Mr. Gallegos' behalf.”)(alterations added). The New Mexico Corrections Department replies that “[d]ecisions regarding detoxification and chemical dependency treatment programs are made by health care providers, not attorneys.” Reply at 10 (alteration added). The New Mexico Corrections Department states that Gallegos received healthcare treatment “from the moment he arrived at the Corrections Department.” Reply at 10. The New Mexico Corrections Department notes that Mr. Brewster also “took action” concerning Gallegos' medical treatment. Reply at 10. The New Mexico Corrections Department emphasizes that Mr. Brewster “contacted the medical vendor, made sure they had a protocol to treat him, and confirmed that they were already treating him.” Reply at 10. The New Mexico Corrections Department maintains that “[t]here is absolutely nothing more that Mr. Brewster could have done to address plaintiff's medical condition.” Reply at 10 (alteration added). Accordingly, the New Mexico Corrections Department concludes that Gallegos' deliberate-indifference claim is unsound. See Reply at 10.

         Last, the New Mexico Corrections Department argues that John Does one through five are entitled to summary judgment, because Gallegos did not identify them before discovery's close. See Reply at 10. The New Mexico Corrections Department notes that Gallegos names five John Does in the Amended Complaint. See Reply at 10. See also Amended Complaint ¶ 4, at 1 (“Upon information and belief John Doe's [sic] 1 through 5 worked for the Bernalillo County Metropolitan Detention Center . . . and/or the New Mexico Department of Corrections . . . as discovery will detail.”). The New Mexico Corrections Department indicates that Gallegos did not identify these Defendants before discovery's end. See Reply at 10. Accordingly, the New Mexico Corrections Department argues that “[s]ummary judgment should be granted to unnamed defendants at this stage in the proceedings.” Reply at 10 (alteration added). The New Mexico Corrections Department concludes that it “is entitled to summary judgment in its favor on all counts of plaintiff's Amended Complaint.” Reply at 10.

         5. The Hearing.

         On June 2, 2017, the Court held a hearing on the MSJ. See Tr. at 1:1 (Court). The Court began by stating its initial views of the case, including its views regarding: (i) the Bernalillo County Board of Commissioners' and the MDC's motions to dismiss, see November 1, 2016, Motion to Dismiss; January 6, 2017 Motion to Dismiss; (ii) the Motion to Amend; and (iii) the New Mexico Corrections Department's MSJ:

[L]et me give you my thoughts about these motions. It seems to me that the guard, whichever guard it was whether it's Kline or King when he did not explore an order and if I understand the facts as presented by Mr. Gallegos is that he had a copy of the order and showed it to the guard and the guard then in his version said I don't care what you have, that to me is probably enough, given how serious withdrawal from methadone or heroin is, to constitute deliberate indifference. And it's enough evidence of subjective intent and objective intent for that guard. I'm not sure that -- maybe it's for anybody else. And it may have -- we may have to narrow it down to which one it is, and it seems to me that the plaintiff has sufficiently explained why he could not have timely identified those guards. I went through all the attachments and sort of understand the development here. So it seems to me that we ought to bring that guard in, and that's probably about it. It doesn't seem to me that there is a waiver of the New Mexico sovereign immunity of the Tort Claims Act for the department or for the county. And for any subdivision of it. So probably those should be out, and it would just be for this one guard. As far as Mr. Brewster . . . it seems to me that it would be hard for me to look at the emails and correspondence going back and say that he was deliberately indifferent. He may not have made the right decision although I'm not sure what the right decision was at that point. So I'm inclined to dismiss the department out, and . . . just leave the single guard in, and proceed to trial on that. So the summary judgment, the motions to dismiss, that's how I am sort of sorting it out and thinking . . . .

Tr. at 2:8-3:24 (Court). The Court also gave its inclination regarding the MSJ:

I'm inclined to grant the motion for summary judgment that has been filed, and indicate that I don't think that Brewster ought to be added, because I'm not seeing deliberate indifference with the email exchange. Like I said, I think the most that could be said about Brewster is he didn't handle the situation right. But that seems to me more negligence that it does deliberate indifference.

Tr. at 44:21-45:4 (Court). The Court then invited the parties' argument. See Tr. at 3:25-4:1 (Court)(“I'll certainly listen to anything anyone wants to say on necessary motions.”); id. at 45:6-8 (Court)(“Ms. Moulton, anything else you want to say on your motion for summary judgment as to the Department of Corrections?”).

         The New Mexico Corrections Department began with its “first position . . . that the DOC is entitled to quasi-judicial immunity.” Tr. at 46:23-24 (Moulton). The New Mexico Corrections Department argued that it is immune to Gallegos' claims, because it followed “facially valid court orders.” Tr. at 46:4 (Moulton). The New Mexico Corrections Department stated that “officials charged with the duty of executing a facially valid court order enjoy absolute immunity from liability, just as judges do with relation to their judicial capacity.” Tr. at 46:5-8 (Moulton). In support of this argument, the New Mexico Corrections Department recounted the orders it received:

[I]t's important to note that the first order revoking probation, noting a commitment to the Department of Corrections, which sentenced him to a term of 834 days, was filed on November 7. . . . [T]hat order does not reference the MDC. It's not specifically noted in there. And the judgment, sentence and order pending sentence which also committed him to the custody of the Department of Corrections, those two files, those two orders were in Mr. Gallegos' prison file at the Department of Corrections.

         Tr. at 45:16-46:3 (Moulton)(alterations added). The New Mexico Corrections Department then stated that “any DOC employee who accepted plaintiff into the DOC system on November 12, did so pursuant to one of those two court orders that were in his file.” Tr. at 46:9-12 (Moulton). “Thus, ” the New Mexico Corrections Department argued, “they're entitled to absolute quasi-judicial immunity because they were enforcing an order to commit him to the custody of Department of Corrections.” Tr. at 46:12-15 (Moulton). The New Mexico Corrections Department reiterated: “[T]he proper procedure to challenge the legality of . . . [official action] enforcing a judgment, such as the judgment sentencing him to 835 days to the custody of the DOC, is to appeal that order and underlying judgment, not to sue the individual or the official responsible for executing the judgment.” Tr. at 46:17-23 (Moulton)(alterations added).

         The Court then questioned whether the New Mexico Corrections Department, as opposed to any individual agent, is entitled to quasi-judicial immunity. See Tr. at 47:1-6 (Court). The New Mexico Corrections Department replied that “Mr. Brewster, if he is in fact added into the case would be entitled to that.” Tr. at 47:7-9 (Moulton). The Court pressed the New Mexico Corrections Department whether it enjoys quasi-judicial immunity to Gallegos' claims. See Tr. at 47:10-11 (Court)(“What about your current motion, though, for summary judgment as to the department?”). The New Mexico Corrections Department conceded that it was uncertain whether the state agency itself is entitled to quasi-judicial immunity, but seemed to suggest that its quasi-judicial immunity argument was to protect Mr. Brewster from any liability. See Tr. at 47:12-13 (Moulton)(“Yeah, I don't necessarily know -- the reason I added that in there . . . .”). The Court then redirected the argument, inquiring whether the New Mexico Corrections Department was “really out on Eleventh Amendment immunity.” Tr. at 47:18-19 (Court). The New Mexico Corrections Department then suggested that it was immune to Gallegos' claims under the Eleventh Amendment. See Tr. at 47:20 (Moulton)(“Exactly. That's right.”).

         The New Mexico Corrections Department then moved to its argument that, under the NMTCA's § 41-4-4, it is immune to Gallegos' state tort claim, because § 41-4-6 does not waive its immunity. See Tr. at 48:13 (Moulton)(“So let's talk about the 41-4-6 [argument].”)(alteration added). The New Mexico Corrections Department adverted to Archibeque v. Moya, 1993-NMSC-079, ¶¶ 13-14, 866 P.2d at 349, and Lessen v. City of Albuquerque, 2008-NMCA-085, 187 P.3d 179, to support its conclusion that “the Department is entitled to dismissal of [Gallegos' state tort claim].” Tr. at 49:17-18 (Moulton). The New Mexico Corrections Department argued that, in light of Archibeque v. Moya, 1993-NMSC-079, ¶¶ 13-14, 866 P.2d at 349, and Lessen v. City of Albuquerque, 2008-NMCA-085, 187 P.3d 179, “[a]dmitting an inmate into the correctional facility is akin to the sorts of administrative functions associated with the operation of a correction system [in] which the Court of Appeals [of New Mexico] and the Supreme Court [of New Mexico] have found [§ 41-4-6's waiver provision] not applicable.” Tr. at 49:1-6 (Moulton).

         The New Mexico Corrections Department next turned to its argument that, in light of Gallegos' Eighth Amendment deliberate-indifference claim, Gallegos' independent Fourteenth Amendment substantive-due-process claim is unsound. See Tr. at 49:19-21 (Moulton). The New Mexico Corrections Department argued that, in light of Berry v. City of Muskogee, Okla., 900 F.2d at 1494, “the Eighth Amendment provides the primary source of relie[f] . . . [and the Court should] dismiss[] the Fourteenth Amendment claim.” Tr. at 50:3-8 (Moulton)(alterations added)(citing Berry v. City of Muskogee, Okla., 900 F.2d at 1494). The New Mexico Corrections Department added that, in United States v. Lanier, 520 U.S. at 272 n.7, “the Supreme Court clarified that if a constitutional claim is covered by [a] more specific constitutional provision such as [the] Eighth Amendment, the claim must be analyzed under the standard appropriate to that specific provision not under the rubric of substantive due process.” Tr. at 50:16-22 (alterations added)(Moulton)(citing United States v. Lanier, 520 U.S. at 272 n.7). The New Mexico Corrections Department then stated that, with regard to Gallegos' Eighth Amendment claim, a “governmental entity such as the DOC, only can be held liable under § 1983, [and only then for] its own constitutional or legal policies and not for the tortious acts of its employees.” Tr. at 50:24-51:3 (alterations added)(Moulton). As a result of these arguments, the New Mexico Corrections Department concluded that it is entitled to summary judgment on Gallegos' constitutional claims. See Tr. at 51:4-5 (Moulton)(“So in that regard we a[re] claiming that we are entitled to summary judgment on that basis.”)(alteration added).

         The New Mexico Department of Corrections next rehearsed its argument that Mr. Brewster's conduct does not demonstrate deliberate indifference in violation of the Eighth Amendment's guarantees. See Tr. at 51:5-54-13. The New Mexico Department of Corrections argued:

[E]ven if Mr. Brewster is brought into this, and I make the argument there about Mr. Brewster's actions. . . there has been no testimony that [Gallegos'] medical condition was sufficiently serious. Going to that first objective standard there, we have a [c]ourt order that says life threatening but we don't have any medical testimony about that . . . . [Gallegos] was provided medical care when he arrived at the Department of Corrections, while he did not receive methadone and he admits this in [his] deposition he received a kick kit he received medication that was supposed to help his withdrawals be easier, . . . so while he did not receive methadone, he did receive care.
Now, at some point, [Gallegos] asked for narcotics while he's in there. The Department of Corrections does not give out narcotics or prescribe narcotics. Differences of medical decisions don't rise to the claim of deliberate indifference. It's just a matter of a difference of opinion and then the subject of inquiry, of course involves Mr. Brewster's state of mind. And nothing in his email provides evidence of a culpable state of mind. He responded to the inquiries from Mr. Wilbur. He told Mr. Wilbur he would have a medical provider make sure to evaluate [Gallegos] and treat him, [and] less than 10 minutes after his conversation or one of his conversations with Mr. Wilbur, [Mr. Brewster] wrote back to him and said the department's inmate medical services provider, who at that time was Corizon, was already aware of his medical status, and had a protocol in place to treat [Gallegos]. In fact, [Mr. Brewster] confirmed that they were already treating him. These are not comments of someone who is being deliberately indifferent. He actively sought to address his medical status.
Now, plaintiff argues that Mr. Wilbur was worried that Mr. Brewster would dispute any efforts to return him to MDC. Mr. Wilbur never said that in his deposition. Mr. Brewster never said anything that would suggest that he would interfere with his efforts to get him back there. He, basically, was asking [“]have you brought it to the attention of the sentencing judge?[”] You know, [Mr. Brewster] was looking to find out what [could he] do, what [does the New Mexico Corrections Department] need to do here. [Gallegos] also argues that Mr. Brewster could have easily ordered a change for this situation by telling Corizon and the medical providers that they needed to [act.] . . . Plaintiff offers no support for this statement. And further, [Gallegos] ignores the fact that methadone is not available in the prison system, and that an attorney, an attorney for the Department of Corrections cannot order Corizon or any medical provider to provide specific treatment as that would be a medical decision. And withdrawal symptoms also can be treated in multiple what is other than with just methadone.
[Gallegos] argues that Mr. Brewster could have returned him to MDC, but offers no explanation or support as to how an attorney for the DOC could send an inmate back to MDC when he possesses that valid court order sending him to the Department of Corrections. And then the detoxification program [also relate to] decisions regarding issues [that] are made by medical providers not by attorneys. If the plaintiff required more or different care than what he received, a health care provider would make that decision. And he was seeing health care providers throughout his time there. We don't want lawyers or judges making medical decisions.
The reality is Mr. Brewster did take action with regard to plaintiff's medical treatment. He contacted the medical vendor and made sure that they had a medical protocol to treat him. He confirmed that they were treating him. Nothing further could have been done.

Tr. at 51:5-54:9 (alterations added). The New Mexico Corrections Department further stated that, under Valdez v. City & County of Denver, 878 F.2d at 1286, “the proper procedure for a party who wishes to contest the legality of a court order enforcing a judgment is to appeal that order and the underlying judgment, not sue the official responsible.” Tr. At 54:14-18 (Moulton)(citing Valdez v. City & County of Denver, 878 F.2d at 1286).

         The New Mexico Corrections Department then argued that “Mr. Brewster himself . . . does not possess a culpable state of mind.” Tr. at 56:14-16 (Moulton)(alteration added). In support of that contention, the New Mexico Corrections Department adverted to Mr. Brewster's electronic communications with Mr. Wilber. See Tr. at 56:16-17 (Moulton)(“And any of his emails certainly don't support that.”). Accordingly, the New Mexico Corrections Department concluded that Mr. Brewster's conduct cannot ground a deliberate-indifference claim. See Tr. at 56:14-17 (Moulton).

         The Court then invited Gallegos' response to the New Mexico Corrections Department's argument. See Tr. at 71:1 (Court). Gallegos stated that “the order itself says . . . the defendant . . . has been sentenced to a period of incarceration . . . .” Tr. At 57:4-7 (Lawless)(alterations added). The Court then expressed its view:

[T]he best you can read these two orders is it's not the Department of Corrections that is violating a court order. It's the county that's violating a court order. . . . [A]t least from the Department's standpoint, it's the county that's the problem. Their order is you got up to six weeks in MDC, and MDC let him go too early. The department, on the other hand, has got a valid court order that says, well, he's over here.

Tr. at 57:10-21 (Court)(alterations added). Gallegos replied that the New Mexico Corrections Department nevertheless knew that its receipt of Gallegos was in violation of a court order, because, according to Gallegos, the New Mexico Corrections Department knew that the state court would not have given “six weeks if you only needed six days or five days.” Tr. At 58:3-4 (Lawless). The Court then asked “[w]hat if Brewster . . . what if he'd picked up the phone and said, MDC, you need to take this guy back; they said we don't want him back . . . six days was enough. We don't want the guy back.” Tr. at 58:5-9 (Court)(alterations added). Gallegos then replied that, in light of the November 26, 2014, 2:51 p.m. Email from Brewster to Wilber, Brewster “at least ha[d] . . . in his mind that he could [return Gallegos to MDC]. . . . So I don't know.” Tr. at 58:17-19 (Lawless)(alterations added).

         Gallegos then concluded his argument on the New Mexico Corrections Department's summary judgment motion. Gallegos stated that he “thought under the case law that determining the subjective element of deliberate indifference was a fact question, fact based anyway, and what his state of mind was . . . under the subjective test is generally a fact based question.” Tr. at 7-12 (Lawless). Gallegos further stated that “nothing would have prevented his immediate return to MDC . . . .” Tr. at 62:17-18 (Lawless). Gallegos further contended that Mr. Brewster “didn't ever ask a medical provider for an opinion on what to do, and basically that's my take on why this should not be granted.” Tr. at 62:22-25 (Lawless).

         The Court then gave its inclined ruling: “I am inclined to grant the motion and find that . . . there is no waiver of immunity on the Tort Claims Act; find that there is not sufficient evidence of deliberate indifference; and grant the motion.” Tr. at 63:7-11 (Court). The Court further noted its inclination with respect to Mr. Brewster: “I'm inclined to let Ms. Moulton's clients out of the case. So not let Brewster in and grant the motion of the Department.” Tr. at 59:3-6 (Court).

         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)(“Celotex”).

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 Nor. ASA, No. 2:11-cv-757, 2013 WL 1945082, at *1 (D. Utah May 9, 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, 477 U.S. at 331 (Brennan, J., dissenting)(emphasis in original).[21] 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, 477 U.S. at 324; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986)(“Liberty Lobby”).

         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.” Liberty Lobby, 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 omitted)(internal quotation marks 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, No. CIV 07-2123 JAR, 2008 WL 2309005, at *1 (D. Kan. June 2, 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 ...


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