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Payne v. Wilder

United States District Court, D. New Mexico

August 18, 2017

CARA PAYNE, Plaintiff,
v.
LEE WILDER; MAYFRITZ BUCAG and DAVID CEBALLES, Defendants.

          JOHN R. HAKANSON, P.C. ATTORNEYS FOR THE PLAINTIFF

          DAMIAN L. MARTINEZ HOLT MYNATT MARTINEZ, P.C. ATTORNEYS FOR DEFENDANT

          LEE M. ROGERS CARLA NEUSH WILLIAMS ATWOOD, MALONE, TURNER, & SABIN, PA. ATTORNEYS FOR DEFENDANTS DAVID CEBALLES AND MAYFRITZ BUCAG

          MEMORANDUM OPINION AND ORDER

         THIS MATTER comes before the Court on Defendant's Motion for Summary Judgment on the Basis of Qualified Immunity, filed February 23, 2017 (Doc. 38) (“MSJ”). The Court held a hearing on June 5, 2017. The primary issues are: (i) whether the undisputed material facts entitle the Defendant Lee Wilder to qualified immunity, because the Plaintiff Cara Payne (“C. Payne”) has not demonstrated that Wilder violated her clearly-established constitutional rights when he executed a traffic stop of C. Payne for a suspended driver's license and further discussed with her -- and her ex-husband -- his investigation into allegations against her for child abuse, allegations which he considered to be cause to not entitle her to custody of her children in accordance with a civil custody agreement; and (ii) whether Wilder is entitled to summary judgment on C. Payne's claims brought pursuant to the New Mexico Constitution and premised in Wilder's same conduct. Because the Court concludes that, on this record of undisputed material fact, Wilder is entitled to qualified immunity on C. Payne's claims sounding in federal due process and unreasonable search and seizure theories, the Court will grant summary judgment as to those federal claims. The Court further concludes that Wilder is entitled to summary judgment as to C. Payne's claims sounding in New Mexico substantive due process and unreasonable search and seizure, because this record of undisputed material facts demonstrates that Wilder did not commit such constitutional violations in the course of his alleged conduct. The Court concludes, however, that this record of undisputed material facts does not entitle Wilder to summary judgment as to C. Payne's claims sounding in New Mexico procedural due process, because C. Payne has asserted facts creating a genuine dispute whether Wilder's conduct resulted in a state-deprivation of her custody over her children without meaningful process before -- or after -- the deprivation. Accordingly, the Court grants in part and denies in part Wilder's MSJ.

         FACTUAL BACKGROUND

         Before the Court addresses the MSJ's proffer of undisputed facts, the Court provides a brief synopsis of the background facts giving rise to C. Payne's case. The Court provides this background only for ease of readership and context. The Court draws recitation of the relevant background facts from the Plaintiff's Amended Complaint for Damages and Petition for Declaratory and Injunctive Relief, filed April 19, 2016 (Doc. 1-2) (“Complaint”).

         1. Background Facts Giving Rise to the Complaint.

         The Complaint alleges that, on July 8, 2015, Wilder, a law enforcement officer in Otero County, New Mexico, stopped and seized C. Payne in Alamogordo, New Mexico, for driving with a suspended license. See Complaint ¶ 7, at 1. Wilder represented that he was conducting a child abuse investigation, forced C. Payne to do a field sobriety test, and attempted to force C. Payne to allow him to search a home where C. Payne was staying as a house sitter for the owner of the home. See Complaint ¶¶ 7-11, at 2-3. Wilder -- C. Payne alleges -- did not have reasonable suspicion to support the notion that Payne was intoxicated. See Complaint ¶¶ 8-9, at 2. Regarding the home search, C. Payne refused to allow the search, and told Wilder that she had previously been under investigation by the State of New Mexico Children, Youth, and Families Department (“CYFD”), but that the investigation did not support allegations of abuse. See Complaint ¶¶ 10-11, at 2-3. Upon her refusal, Wilder contacted Defendant Mayfritz Bucag, a CYFD investigator, who C. Payne alleges then contacted C. Payne's ex-husband and ordered him to not allow C. Payne custody of their children. See Complaint ¶¶ 12-14, at 3. C. Payne did not have custody or visitation rights after this traffic stop, as a consequence of Wilder and Bucag's directive, despite having the legal right to custody and visitation. See Complaint ¶¶ 15-16, at 3.

         Wilder and Bucag then petitioned the district attorney's office in Otero County to file criminal charges against C. Payne for refusing to allow the search of a house where she was staying as a house sitter for the home's owner. See Complaint ¶ 18, at 4. In particular, the criminal charges would flow pursuant to N.M. Stat. Ann. § 30-6-4, which relates to obstruction of reporting or investigating child abuse or neglect. See Complaint ¶ 19, at 4. Wilder expects that charges will be filed against C. Payne. See Complaint ¶ 20, at 4. Defendant David Ceballes was the District Attorney for Otero County when C. Payne filed her Complaint. See Complaint ¶ 6, at 2.

         2. The Undisputed Facts That Wilder's MSJ and the Record Establish.

         “Deputy Lee Wilder was a Deputy Sheriff with the Otero County Sheriff's Officer (‘OCSO') at the time of the July 8, 2015, incident.” MSJ ¶ 1, at 3 (asserting this fact). See Plaintiff's Response to Defendant Wilder's Motion for Summary Judgment ¶ 1, at 1, filed March 27, 2017 (Doc. 50) (“Response”) (not disputing this fact). “Deputy Wilder has never been employed by the New Mexico [CYFD].” MSJ ¶ 2, at 3 (asserting this fact). See Response ¶ 2, at 1 (not disputing this fact). “On July 8, 2015, Deputy Wilder received a referral from CYFD and Intake Report as part of an investigation into an anonymous tip alleging child abuse and neglect of Plaintiff Cara Payne's two children.” MSJ ¶ 3, at 3 (asserting this fact). See Response ¶ 3, at 1 (not disputing this fact). “Upon receipt of the CYFD referral and Intake Report, Deputy Wilder ran a background check on Plaintiff, Plaintiff's ex-husband, Robert Payne [(‘R. Payne')], and Richard Herndon, including a check on the status of their driver's licenses and determined that Plaintiff's driver's license was suspended.” MSJ ¶ 4, at 3 (asserting this fact). See Response ¶ 4, at 1 (not disputing this fact). “As part of the CYFD investigation, Deputy Wilder visited with Robert Payne, the children's father, to assess the validity of the facts in the anonymous tip.” MSJ ¶ 5, at 3 (asserting this fact) (citing Deposition of Lee Wilder at 10:19-21 (taken November 16, 2015), filed February 23, 2017 (Doc. 38-1) (“Wilder Depo.”).[1]

The anonymous tip explained that the reporting party believed Plaintiff's children may 1) be subject to abuse, neglect, and potential physically harm, because Plaintiff resided with a felon wanted by other felons and law enforcement; 2) Plaintiff was likely using methamphetamine based upon her appearance; and 3) predicted Plaintiff might be found at 10 Coyote Run in La Luz, New Mexico.

MSJ ¶ 6, at 3-4 (asserting this fact). See Response ¶ 6, at 1 (not disputing this fact). “Mr. Payne corroborated most of the information in the tip explaining that he suspected Plaintiff was on methamphetamine, was covered in scabs, suffered severe moods swings, and that Plaintiff's husband Richard Herndon was a felon living with Plaintiff.” MSJ ¶ 6, at 3-4 (asserting this fact) (citing Wilder Depo. at 12:1-25).[2] “Deputy Wilder traveled to the house Plaintiff was then residing at located at #10 Coyote Run in La Luz, New Mexico to continue the investigation but no one answered the door.” MSJ ¶ 8, at 4 (asserting this fact). See Response ¶ 8, at 1 (not disputing this fact). “Later on July [8], 2015, Deputy Wilder stopped Plaintiff's vehicle knowing Plaintiff was driving with a suspended driver's license, to follow up with her on the investigation, and because he suspected Mr. Herndon could be hiding behind the tinted windows in the vehicle.” MSJ ¶ 9, at 4 (asserting this fact). See Response ¶ 9, at 2 (not disputing this fact).

During the traffic stop, Deputy Wilder came to believe Plaintiff was under the influence of methamphetamines relying on the information in the anonymous tip, his knowledge that she had been associated with methamphetamine users in the past, and because she appeared covered in scabs, shaking, and extremely thin consistent with methamphetamine usage.

MSJ ¶ 10, at 4 (asserting this fact) (citing Wilder Depo. at 39:3-8; July 8, 2015, Traffic Stop Video, filed in Clerk's Office on May 25, 2017 (“Traffic Stop Video”), see Notice of Filing Audio/Visual Material as Exhibit C to Defendant Lee Wilder's Motion for Summary Judgment on the Basis of Qualified Immunity and Memorandum in Support Thereof [Doc. 38], filed May 25, 2017 (Doc. 57)).[3] “Also during the traffic stop, Deputy Wilder informed Plaintiff that she could not see her children if she did not cooperate with the CYFD investigation.” MSJ ¶ 11, at 4 (asserting this fact). See Response ¶ 11, at 2. “Despite his conversation with Plaintiff, Deputy Wilder never removed the children from Plaintiff's [physical custody].”[4] MSJ ¶ 12, at 5 (asserting this fact) (alterations added using language from the Response) (citing Wilder Depo. at 27:23-25; id. at 28:1-24; id. at 29:1-6). See Response ¶ 12, at 2 (not disputing the fact as altered). “Based on Plaintiff's appearance and Deputy Wilder's knowledge of her prior association with methamphetamine users, Deputy Wilder administered a field sobriety test and she passed, [performing well].”[5] MSJ ¶ 13, at 5 (asserting this fact) (alterations added using language from the Response) (citing Wilder Depo. at 37:21-23; id. at 38:14-17; id. at 39:3-16). See Response ¶ 12, at 2 (not disputing the fact as altered).[6] “Plaintiff and Mr. Payne shared joint custody over the children per a custody order.” MSJ ¶ 15, at 5 (asserting this fact). See Response ¶ 15, at 2 (not disputing this fact).[7]

During the traffic stop Wilder said that he had been looking for Plaintiff. She told him that she did not have her children, that they were with their dad. Plaintiff handed Defendant her driver's license and her lawyer's card and asked for her lawyer. Defendant told Plaintiff that he needed to search a residence located a 10 Coyote. Defendant took Plaintiff's license and returned to his car. When he returned, he stated that Plaintiff needed to do a sobriety test and she performed the test.

Response ¶ 1, at 3 (asserting these facts) (citing Affidavit of Cara Payne ¶ 2, at 1 (executed September 9, 2015), filed March 27, 2017 (Doc. 46-1) (“C. Payne Aff.”). See Defendant Lee Wilder's Reply in Support of Motion for Summary Judgment on the Basis of Qualified Immunity (Doc. 38) ¶ 1, at 3, filed April 17, 2017 (Doc. 49) (“Reply”) (not disputing these facts).[8] After the field sobriety test, and at the conclusion of the traffic stop, Wilder reiterated to C. Payne that, because of the open child abuse investigation, he needed to conduct an investigation of the home at 10 Coyote Run before he could allow the children back there, at which point C. Payne asserted “she did not live there but was housesitting the residence.” Response ¶ 2, at 3.[9] Wilder “told her, during the stop, that he had talked with her ex-husband and that she did not get to see her kids pending the investigation.” Response ¶ 3, at 3 (asserting this fact). See Reply ¶ 3, at 3 (not disputing this fact). “After the stop, Wilder called Plaintiff's cell phone twice. In both messages, he asked if she was ready to cooperate with the investigation so that she could get her kids back.” Response ¶ 4, at 3 (asserting this fact) (citing C. Payne Aff. ¶ 5, at 2).[10] “From July 8, 2015 until December 25, 2015, Plaintiff was only allowed to see her kids at her ex-husband's house on two occasions.” Response ¶ 5, at 3 (asserting this fact) (citing C. Payne Aff. ¶ 6, at 2).[11]

         PROCEDURAL BACKGROUND

         C. Payne originally filed her Complaint in the Twelfth Judicial District Court, County of Otero, State of New Mexico. See Complaint at 1. Wilder removed the case to federal court on April 19, 2016. See Notice of Removal, filed April 19, 2016 (Doc. 1). C. Payne alleges in Count I that Wilder and Bucag violated her substantive and procedural due-process rights, and her right to be free from unreasonable search and seizure, pursuant to the Constitution of the United States of America and “New Mexico Statutory law, ” by depriving her of custody and visitation of her children, and by Wilder's “prolonged . . . traffic stop and . . . field sobriety tests when he lacked reasonable suspicion . . . .” Complaint ¶¶ 22-28, at 4-6. C. Payne also alleges in Count II that Wilder violated her due-process rights and her right to be free from unreasonable search and seizure under Article II, Sections 10 and 18 of the Constitution of the State of New Mexico. See Complaint ¶¶ 26-32, at 6-7. Payne last alleges, in Count III, that N.M. Stat. Ann. § 30-6-4 is unconstitutional, because it violates the Fourth Amendment to the Constitution of the United States of America and Article II, § 10, of the New Mexico Constitution, supporting her request for injunctive and declaratory relief regarding Ceballes' potential prosecution of her. See Complaint ¶ 21, at 4. On January 3, 2017, the Court concluded that the allegations in the Complaint implicating Ceballes were not ripe for review, and thus granted Defendant David Ceballes [sic] Motion and Memorandum to Dismiss Plaintiff's Declaratory and Injunctive Relief Claims, filed September 27, 2016 (Doc. 10) (“Motion to Dismiss”), which asked that the Court dismiss C. Payne's allegations against Ceballes, see Memorandum Opinion and Order at 1, filed January 3, 2017 (Doc. 36) (“Ripeness MOO”). The Court has also issued a Memorandum Opinion and Order at 1, filed July 7, 2017 (Doc. 60) (“Default MOO”), setting aside the Clerk's Entry of Default, filed November 16, 2016 (Doc. 22), which was entered against Bucag.

         1. The MSJ.

         Wilder filed the MSJ on February 23, 2017. See MSJ at 1. After making his proffer of undisputed facts, Wilder explains that, because he is a law enforcement officer, “the plaintiff must first satisfy a ‘strict two-part test' by establishing (1) ‘the defendant's actions violated a constitutional or statutory right' and (2) that ‘right was clearly established at the time of the defendant's unlawful conduct.'” MSJ at 5 (quoting Gutierrez v. Cobos, 841 F.3d 895, 900 (10th Cir. 2016)). Wilder also explains that the Court has the discretion to analyze either qualified-immunity prong first. See MSJ at 6. Wilder argues that C. Payne's claims against him must fail, because, first, his “actions are consistent with Plaintiff's Fourteenth Amendment Due Process rights under the Constitution because he did not interfere with Plaintiff's parental rights. Therefore, his conduct did not violate clearly established law and he is entitled to qualified immunity.” MSJ at 8. In support, Wilder provides that “[n]either the United States Supreme Court nor the Tenth Circuit have articulated any specific prohibition against a public official's statement about a parent's custody rights during a child abuse or neglect investigation.” MSJ at 8. In that regard, Wilder maintains that Wilder afforded C. Payne “all rights pursuant to her substantive due process right to have control and custody over her children. Likewise, Deputy Wilder never interfered with Plaintiff's procedural due process right to challenge any perceived obstruction of her parental rights or Deputy Wilder's statement that she could not see her children.” MSJ at 8. Wilder also contends that, C. Payne's parental rights aside, “the State of New Mexico may temporarily interfere with a parent's rights to ensure the health and safety of children, ” and that here Wilder “did not knowingly or intentionally attempt to obstruct Plaintiff's relationship with her children. If Plaintiff believed CYFD deprived her of a parental right during the investigation, she should have exercised her rights through CYFD.” MSJ at 8. Wilder then specifically addresses his qualified immunity to C. Payne's claims sounding in federal due process. See MSJ at 9.

         Wilder explains: “Substantive due process ‘protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.” MSJ at 9 (quoting Starkey v. Boulder Cnty. Soc. Servs., 569 F.3d 1244, 1253 (10th Cir. 2009)). Also, Wilder explains: “States possess their own ‘traditional and transcendent interest in protecting children from abuse.'” MSJ at 9 (quoting Gomes v. Wood, 451 F.3d 1122, 1127 (10th Cir. 2006)). Wilder further explains, then, that: “The Tenth Circuit recognizes ‘that the constitutional right to familial integrity is amorphous and always must be balanced against the governmental interest involved.'” MSJ at 9 (quoting Martinez v. Mafchir, 35 F.3d 1486, 1490 (10th Cir. 1994)). Wilder then cites to Cordova v. Albuquerque, 816 F.3d 645 (10th Cir. 2015), which provides that the “Plaintiff must prove this balance favors her constitutional right and that the state official “intended to deprive [the plaintiff] of that interest.'” MSJ at 9-10 (quoting Cordova v. Albuquerque, 816 F.3d at 645). Wilder continues:

Any conduct, or statement made, by Wilder must be willful and intentional “directed at the intimate relationship with knowledge that the statements or conduct will adversely affect that relationship.” [Cordova v. Albuquerque, 816 F.3d at 645]. Courts must also “examine the evidence to determine the severity of the alleged infringement [on the parent's right], the need for the defendant's conduct, and any possible alternatives.” Id.; accord Parham v. J.R., 442 U.S. 442, 603 (1979) (“[A] state is not without constitutional control over parental discretion in dealing with children when their physical or mental health is jeopardized.”); P.J. v. Wagner, 603 F.3d 1182, 1198 (10th Cir. 2010) (“[W]hen a child's life or health is endangered by her parents' decisions, in some circumstances a state may intervene without violating the parents' constitutional rights.”).

MSJ at 10. Here, Wilder maintains that he did not “act with knowledge or intent, even if his words interfered with plaintiff's parental rights, ” because: (i) he “acted pursuant to another entity's directive, ” -- which was a “referral from CYFD requiring that he follow up on an anonymous tip”; (ii) he did “not interfere with Plaintiff's access to her children, ” and only informed her that she would be prevented from seeing her children until the investigation was complete; (iii) any of his “interference was justified by facts amounting to reasonable suspicion that the children faced imminent threats to their safety”; and (iv) he “only intended to pursue the investigation.” MSJ at 11. According to Wilder, these actions do not show the “requisite knowledge or intent amounting to a substantive due process violation.” MSJ at 10-11 (citing J.B. v. Wash. Cnty., 127 F.3d 919, 922, 927-28 (10th Cir. 1997) (considering a child abuse investigation where county officials removed a child for eighteen hours but eventually concluded that, through the course of their investigation, there was no evidence of child abuse, and holding that, although removal of the child for eighteen hours practically interfered with her parent's rights of familial association, the officials committed no substantive due-process violation, because -- Wilder contends -- the officials had no knowledge that their conduct violated the parents' rights, and could not act with the requisite knowledge or intent amounting to a substantive due-process violation). Wilder avers that he did not, at any point, “exercise[] any authority to prevent Plaintiff from the control and custody over her children, ” and that he only investigated the report of child abuse as it was his duty. MSJ at 11-12. Wilder also contends that, should his words to C. Payne constitute interference, that interference is “minimal and outweighed by the risks described in the anonymous tip.” MSJ at 12. Wilder requests that the Court balance the interests at stake and thereby conclude: “Plainly, Deputy Wilder did not violate Plaintiff's substantive due process rights and any intrusion was justified by the need to assure the children's safety and well-being, ” because his only intent was to “pursue the investigation and assure the children's safety, not to sever or obstruct Plaintiff's relationship with her children.” MSJ at 12-13. Wilder also notes, for the Court's information:

No pertinent federal case law prohibits a law enforcement officer from assisting in a child abuse investigation nor informing a parent that they do not have custody or visitation rights over their children. On the contrary, law enforcement has an affirmative duty to the public's safety. Given what Deputy Wilder knew at the time, no reasonable officer would have second guessed that he was empowered to pursue the investigation. For similar reasons, no reasonable officer would have believed he acted unreasonably when he mistakenly informed Plaintiff that she lacked custody rights to her children. Any reasonable officer knows that their actions cannot set aside a court order. At most, Deputy Wilder's actions were misinformed, not a constitutional violation.

MSJ at 13.

         Wilder next argues regarding C. Payne's allegations regarding procedural due process. See MSJ at 14. Wilder provides that he “did not interfere with any right to challenge the terms of the CYFD investigation and he could not have violated Plaintiff's procedural due process rights.” MSJ at 14. Wilder then explains that states may take children from parents only after fair process, which in this context requires

“prior notice and a hearing, except in extraordinary situations where some valid governmental interest is at stake that justifies postponing the hearing until after the event.” Gomes v. Woods, 451 F.3d at 1128. State officials may remove a child without a hearing with reasonable suspicion that the child faces an immediate threat to their safety if they remain with the parent. Id. at 1130. To be clear, reasonable suspicion does not include the mere possibility of danger. Roska v. Peterson, 328 F.3d 1230, 1245 (10th Cir. 2003) (internal citations omitted). Further, when an agency removes a child before a hearing, the state remains obligated to provide a hearing post-removal. Gomes v. Woods, 451 P.3d at 1128.

MSJ at 14-15. In that respect, Wilder asserts that he “never interfered with that right, much less her procedural right to contest any related intrusion.” MSJ at 15. Essentially, Wilder maintains C. Payne could have, and should have, contacted CYFD about the anonymous tip and subsequent investigation. See MSJ at 15. Regardless, Wilder further argues that, even if he controlled the procedures of which C. Payne argues he deprived her, “he never removed or interfered with Plaintiff's control or custody over her children.” MSJ at 15. Wilder also contends that, “[i]f he had removed the children with a prior hearing, he would have been justified by reasonable suspicion based upon 1) the information in the anonymous tip; 2) Mr. Payne's corroboration of those facts; and 3) Deputy Wilder's awareness of Ms. Payne's association with methamphetamine users.” MSJ at 15. In sum, Wilder reiterates that no “reasonable officer would know that mere words violate a plaintiff's procedural due process rights . . . or could have known that sharing misinformation about a plaintiff's parental rights interferes with the right to contest the deprivation.” MSJ at 16.

         Next, Wilder addresses C. Payne's traffic stop and argues that he acted consistent with her rights under the Fourth Amendment. See MSJ at 16. Wilder maintains that he acted with reasonable suspicion in executing his stop of C. Payne's vehicle, because: (i) her license was suspended, a fact which Wilder had learned from a previous review of her driving record; (ii) his belief that her license was suspended was “reasonable suspicion that she was committing a traffic violation”; (iii) once he stopped her vehicle, he reasonably inquired about her license status; and (iv) he acted “with independently supported reasonable suspicion that Plaintiff was driving while impaired justifying the field sobriety test.” MSJ at 17. Regarding Wilder's reasonable suspicion that C. Payne was under the influence, Wilder explains that if “a prudent officer can reasonably conclude from the totality of the circumstances that a driver is inebriated during the traffic stop, the officer retains reasonable suspicion to perform a sobriety test. See Wilder v. Turner, 490 F.3d 810, 815 (10th Cir. 2007).” MSJ at 17. During his stop of C. Payne, then, Wilder avers that she “appeared shaky, had scabs all over her body, and was very thin, ” which is indicative of methamphetamine use and which was consistent with the anonymous tip making child abuse allegations against C. Payne -- causing him to reasonably believe “that she was driving impaired under the influence of methamphetamine.” MSJ at 18. Wilder concludes by reiterating that “[n]o reasonable officer would have acted differently when confronted with the signs that Plaintiff was under the influence of methamphetamine.” MSJ at 19.

         Turning next to C. Payne's allegations brought pursuant to New Mexico state law, Wilder argues that he “did not violate Plaintiff's Due Process or Search and Seizure rights pursuant to Article II, Sections 10 and 18 of the New Mexico Constitution. Therefore, he is entitled to summary judgment on Count II.” MSJ at 19. Addressing first the “search and seizure” claim, Wilder explains that, “[s]imilar to the Fourth Amendment to the United States Constitution, the New Mexico Constitution provides ‘the people shall be secure in their persons, papers, homes and effects, from unreasonable searches and seizures.'” MSJ at 19-20 (quoting N.M. Const. Art. II § 10). In New Mexico, Wilder provides, the “inquiry to determine whether a traffic stop meets the constitutional reasonableness requirement include[s] 1) whether the officer's actions are justified at their inception and 2) whether those actions are reasonably related in scope to the circumstances justifying the initial interference.” MSJ at 20. Wilder also provides that, in New Mexico, an officer can extend a traffic stop by “asking questions unrelated to the original traffic stop if the questions are supported by the officer's independent reasonable suspicion of a crime, ” and that “[f]ield sobriety tests, however, require independent reasonable suspicion that would otherwise support extension of a traffic stop.” MSJ at 20. According to Wilder,

[i]n this case, at the time of the traffic stop, Plaintiff appeared consistent with the tip and Mr. Payne's description of Plaintiff. . . . The tip and Mr. Payne described Plaintiff as covered in scabs, very thin, and stated that she suffered from severe mood swings typical of a methamphetamine user. . . . When Deputy Wilder encountered Plaintiff, she appeared to be under the influence of methamphetamine. . . . Plaintiff was shaky and very thin. . . . Judging her appearance, behavior, the tip, and Deputy Wilder's knowledge of her association with methamphetamine users, he administered a field sobriety test based on his valid reasonable suspicion that she was under the influence of methamphetamine.

MSJ at 21. Wilder then concludes that he acted to protect public safety, because the facts strongly indicated that C. Payne was inebriated, and any reasonable officer would have had reasonable suspicion to administer the field sobriety test during the traffic stop. See MSJ at 22.

         Last, Wilder argues that he “did not violate Plaintiff's Procedural Due Process rights pursuant to Article II, Section 18 of the New Mexico Constitution, ” because he did not interfere with any of C. Payne's procedural rights. MSJ at 22. In this context, Wilder explains that New Mexico recognizes parents' fundamental rights to relationships with their children and that deprivation of that fundamental right requires due process, but that due process rights are “flexible, subject to the particular circumstances in a given case.” MSJ at 22. Wilder maintains that he did nothing which stopped C. Payne from contesting the deprivation of her fundamental rights with CYFD and asserts that he “cannot be held liable for her failure to exercise her own procedural due process rights.” MSJ at 22-23. In conclusion, Wilder asserts that he is entitled to qualified immunity and summary judgment on all federal constitutional counts, and that the Court should also grant summary judgment on the state claims. See MSJ at 23.

         2. The Response.

         In response, C. Payne -- after addressing Wilder's proffer of undisputed facts -- begins by arguing that Wilder “lacked reasonable suspicion to require Plaintiff to perform field sobriety tests.” Response at 5. C. Payne maintains that Wilder did not possess reasonable suspicion that she was impaired, because he “has not shown that any training or experience dictates that” C. Payne's nervousness and scabs “indicate presently being under the influence of methamphetamines.” Response at 5. According to C. Payne, Wilder's proffer does not support reasonable suspicion under state or federal law. See Response at 5-6. C. Payne then turns to her rights to substantive due process, and argues that, even though the right to familial association yields “when a child is in imminent or immediate danger of neglect or abuse, ” here Wilder “virtually terminated” C. Payne's rights to see her children “without anything other than an anonymous tip concluding that Plaintiff was living with a wanted individual . . . [and] was using drugs.” Response at 6 (citing Florida v. J.L., 529 U.S. 266 (2000)). Further, C. Payne contends that the “anonymous tip showed no indicia of reliability” and that the information Wilder gained from speaking with C. Payne's ex-husband was similarly unreliable, because he offered only his factually unsupported “suspicions.” Response at 6. C. Payne then reiterates that she has pursued her case in state court and that she has not disavailed herself of “process” to regain custody. Response at 6-7. In conclusion, C. Payne states that she

was able to show that she had a right not to be subjected to field sobriety testing by Defendant without reasonable suspicion. She showed that she was so subjected and that Defendant lacked reasonable suspicion thereby violating the United States Constitution and the New Mexico Constitution. Plaintiff was able to show that she had a right to the custody of her children. She showed that Defendant violated that right when he virtually terminated that right without reasonable suspicion to do so.

Response at 7.

         3. The Reply.

         In reply, Wilder argues that C. Payne fails “to meet her two-part burden to prove Deputy Wilder is not entitled to qualified immunity.” Reply at 4. According to Wilder, C. Payne needs to “demonstrate that her constitutional rights were violated and that those rights were clearly established at the time of his actions, ” but she has failed “to cite any law on qualified immunity” or “supply specific analogous law demonstrating Deputy Wilder is not entitled to qualified immunity.” Reply at 4. Wilder maintains that C. Payne has not identified support for her contention that Wilder lacked reasonable suspicion during his investigation and traffic stop, and that she has omitted discussion in her Response of her “procedural due process claim under the Fourteenth Amendment or her due process claim under the New Mexico Constitution, effectively conceding that Deputy Wilder is entitled to qualified immunity and summary judgment.” Reply at 4-5. Wilder accordingly argues that “the Tenth Circuit has unambiguously held that a Plaintiff cannot meet their heavy two-part burden without supporting legal precedent, ” particularly where, as here, C. Payne has not presented “at least one case in which an officer's conduct was held violative under obviously similar circumstances to those in this case.” Reply at 5-6 (citing White v. Pauly, 137 S.Ct. 548, 552 (2017); Gutierrez v. Cobos, 841 F.3d 895, 900-01 (10th Cir. 2016)).

         Wilder then turns to argument regarding C. Payne's substantive due-process claim, and makes the same assertion: the “Plaintiff has not cited any cases with specific facts demonstrating that Deputy Wilder violated her clearly established substantive due process right to her children . . . .” Reply at 6. Wilder reiterates that he was acting upon a CYFD directive for him to investigate an anonymous tip involving C. Payne, and that C. Payne “fails to show [that] Deputy Wilder violated any clearly established law when he told her she could not visit with her children until she cooperated with the CYFD investigation or when he administered the field sobriety test.” Reply at 7. Wilder then revisits the standards for state interference with parental rights, and reasserts that, although Wilder did nothing to interfere with C. Payne's parental rights, he nonetheless acted lawfully by making the statements he made during the traffic stop. See Reply at 7. Wilder also contends that he acted upon reasonable suspicion -- premised on the anonymous tip -- to stop C. Payne, and also upon independent reasonable suspicion that C. Payne was under the influence of methamphetamine when he chose to extend the traffic stop with a field sobriety test. See Reply at 7-9 (citing Navarette v. California, 134 S.Ct. 1683, 1688 (2014) (discussing the viability of an anonymous tip for supporting reasonable suspicion to make a traffic stop)). Because C. Payne has apparently not cited any law that suffices her two-part burden to beat Wilder's qualified immunity to all of her claims, Wilder requests the Court grant summary judgment on all of those claims. See Reply at 10.

         Wilder next argues that C. Payne has failed “to offer facts disputing the reasonableness of Deputy Wilder's actions.” Reply at 10. In that regard, Wilder asserts that C. Payne has not presented any facts which suggest that Wilder acted unreasonably in the context of any of her federal or state claims. See Reply at 10-11. According to Wilder, C. Payne

asserts factual distinctions that fail to present any material dispute as to the constitutionality of Deputy Wilder's actions. Ignoring the other sources Deputy Wilder relied upon in his investigation, Plaintiff asserts that Deputy Wilder only considered the anonymous tip. She also contends that Mr. Payne's statements regarding her appearance are unfounded. . . . Finally, Plaintiff cites the results of her field sobriety test for the proposition that she does not use methamphetamine.

Reply at 11. Wilder, then, argues that

Deputy Wilder relied upon three different sources before he told Plaintiff she could not see her children until she cooperated with the investigation. . . . Moreover, Mr. Payne confirmed Plaintiff's physical appearance, as described in the tip, and that Plaintiff resided with a wanted felon. . . . Deputy Wilder's conclusion that Plaintiff was not under the influence after her field sobriety test is immaterial. . . . Plaintiff manifested side-effects of methamphetamine usage, whether she was under the influence during the traffic stop or not.

Reply at 11-12. Wilder asserts that, in view of the undisputed facts, he “properly balanced the state's interest in protecting Plaintiff's children against her right to her children . . . [and] reacted reasonably in light of the facts” when he extended the traffic stop with a field sobriety test. Reply at 11-12. Wilder concludes by asserting his qualified immunity and entitlement to summary judgment on all counts against him. See Reply at 12.

         4. The Hearing.

         The Court held a hearing on June 5, 2017. See Transcript of Hearing, taken June 5, 2017 (“Tr.”).[12] At the hearing, the Court heard argument on a variety of issues and, regarding the MSJ, heard argument first from Wilder. See Tr. at 18:1-4 (Court). The Court also heard argument from Bucag, in tandem, which it will address in its resolution of Bucag's motions at a later date. Wilder, then, began by explaining that C. Payne has, as to Wilder, brought a

[Fourteenth] amendment claim for a substantive due process violation, a Fourteenth Amendment claim for procedural due process violation, also a Fourth Amendment claim for a field sobriety test that was given to the plaintiff, Ms. Payne. And has also, under count two, brought what appears to be the state constitutional analog to the substantive due process familial integrity claim.

Tr. at 18:12-20 (Martinez). Wilder then indicated that “the plaintiff must meet [her] two part burden to show a violation of a constitutional right that was clearly established. [U]nder either prong . . . either under the first prong or the second prong . . . defendant is entitled to qualified immunity.” Tr. at 18:23-19:4 (Martinez). Beginning with the federal substantive due process claims, Wilder conceded that there was a federal “constitutional right to familial integrity, ” but that the “right is amorphous, because we have to balance the state's interests in the child's safety.” Tr. at 19:14-18 (Martinez). Wilder continued, however, by explaining:

[W]hen you look at the second prong of the qualified immunity analysis, that being the clearly established prong, the plaintiff would have to show that by using similar case law that Deputy Wilder's actions were prohibited. And if you look at the actions that Deputy Wilder took on that day they're really simple. CYFD involved him in an investigation based on an anonymous tip that Ms. Payne may be either using methamphetamines or selling methamphetamines out of the her residence. Now, at the time the children were with their father. And Deputy Wilder gets this anonymous complaint from CYFD. . . . CYFD got the anonymous tip, Your Honor and Mr. Bucag then enlisted Deputy Wilder to assist in the investigation. And based on the anonymous tip, what Mr. Wilder did is he did a background investigation on Ms. Payne, found that she had a suspended license. He also went to Ms. Payne's ex-husband's house, who was initially in the state case a defendant to this case, Robert Payne. . . . Defendant Wilder actually went to talk . . . and talked to the father. Now, when you look at this anonymous tip, they said this Ms. Payne may be [selling] drugs and using drugs around the children. The record evidence shows that Deputy Wilder spoke with Mr. Payne, and he corroborated. And Mr. Payne relayed to Deputy Wilder that Ms. Payne was skinny, had scabs on her body, information that was consistent at least in the deputy's mind with methamphetamine use. . . . So based on this investigation, Deputy Wilder ultimately sees Ms. Payne driving on White Sands Boulevard in Alamogordo, New Mexico.

Tr. at 19:18-22:1 (Martinez). Wilder explained that, as a result of his investigation into C. Payne, he knew that she had a suspended driver's license, which supplied his reasonable suspicion to execute the traffic stop. See Tr. at 22:12-13 (Martinez). According to Wilder, the traffic stop “relates to the familial substantive due process right, ” because

[h]e asked her to, if he could go do a home visit to ensure that the house was safe. And he did tell her as the record and the video will show that if she did not comply and allow him to look into the home that she would not be able to see her children. He also told this to Mr. Payne. That is the basis for the familial integrity claim [against Wilder].

Tr. at 22:16-24 (Martinez). Upon that proffer of fact, Wilder then argued that, under the clearly-established prong, C. Payne's Response

has wholly failed to p[o]int out any cases that were similar that would put beyond debate that the verbal statement that Ms. Payne could not see her children violated her constitutional right to familial integrity, and because the plaintiff's response whol[]ly fails [to] discuss any cases that are similar to the circumstances faced by Deputy Wilder, the Court is within its power to grant qualified immunity.

Tr. at 23:2-10 (Martinez). The Court inquired, at this point, what the effect of Wilder's statements about C. Payne's custody were subsequent to the traffic stop, to which Wilder explained:

[T]he children stayed with Mr. Payne at their house. My understanding is based on the visitation agreement entered into by the state court that [it] was Mr. Payne's weekend, or time to have the children, if you will. So Deputy Wilder never physically took control of the children, never placed them in state custody. There is nothing in the record that would show that CYFD ever placed these children in state custody[;] the only thing that Deputy Wilder did was assist in a CYFD investigation that was later found as, they closed that investigation for lack of cooperation by Ms. Payne. So Deputy Wilder assists in this investigation and makes a verbal statement that she cannot see the children. That is it. That is all he did. He never placed the children in state custody.

Tr. at 23:17-24:7 (Martinez). Wilder also indicated that, on one occasion, after the traffic stop, he attempted once more to make a safety check of the home, but was refused. See Tr. at 24:22-25:3 (Martinez). Further, Wilder reiterated that criminal charges were not brought against C. Payne. See Tr. at 26:11-12 (Martinez).

         As to Wilder's MSJ, the Court began by inquiring: “I'm just trying to get a handle on what the law is here. What do you understand the standard to be, is it still this shock the conscience or do you think there is a different standard for this particular right?” Tr. at 31:13-15 (Court). C. Payne stated that

the general description of the right with regard to Deputy Wilder is that parental rights are rights that may not be interfered with without due process of law. The specifics are set out in the cases that I have cited [and w]hen you go through those cases, those cases set out the standard that Your Honor seeks. And that is for a law enforcement officer to interfere with those parent rights you'll see different terms used, reasonable belief, reasonable cause, reasonable grounds, reasonable facts et cetera, et cetera, but I think what they're all pointing towards is just reasonable suspicion, what we term as reasonable suspicion. That's what's required for the state to interfere with that relationship. There [are] some factual issues that have been inaccurately described to Your Honor and I want to clear those up before we get too lost down the way. When these complaints come in they go to both CYFD and then CYFD sends them to the law enforcement agency as New Mexico statute requires them. I don't believe that Bucag called and said, hey, Wilder come help me on this. I think it just went to the sheriff's department; Wilder was assigned that case, and he started his investigation.

Tr. at 31:25-33:1 (Garcia). C. Payne also stated that Wilder misrepresented that all he

did as far as interference goes was just to tell her at that traffic stop, and the words he used was [sic] either you're going to allow me to inspect that house or you're not going to see your kids again until we get this inspection done -- I need to make sure that the house is okay. In our factual presentation set out to the Court, the allegations that we made in our material fact statement was that not only did he make that statement there, but continued to call my client and leave messages on her cellphone saying he wanted to get that inspection done, and she's not going to see her kids until he allows her to do that. It wasn't just one instance. He continued this on until eventually he stopped. I don't know what made these two individuals stop, we just know through the record eventually CYFD closed the file with a no substantial findings notation on the file.

Tr. at 33:7-23 (Garcia). The Court pushed C. Payne, however, whether she was arguing to expand the familial substantive due-process right -- an important inquiry in the clearly established prong of qualified immunity analysis -- because all Wilder did here was make statements, never having actually removed C. Payne's kids from her person. See Tr. at 34:11-14 (Court). C. Payne resisted the Court's characterization, arguing instead that the

argument that I am making or attempting to make is that the law is clear that custody, a parent and then he can even s[ay] it backwards, a child, both the parent and child. But especially the parent is entitled to the custody of their [sic] children. When you issue an order both to the mother and in a meeting with the father, where you tell the father do not let her have the kids, but you can let her see the kids, do not let her have these kids until I call you and tell you [that] you can do so because she's not letting us look in the house, then you tell the mother you're not going to see your kids [until] you let us look at this house, that that is taking away custody. Custody is the right to physical possession, and the ability to direct the children's every day activities while you have that physical possession. They were aware that custody was to return a day or two later, and instead these individuals went and said you're not going to give her back the kid and do not do so until I tell you to, I think that under the law's definition, falls with taking custody of the child. Are you now telling that child where, telling the child and the parents where that kid can stay and what interactions it is to have with the outside world.

Tr. at 34:15-35:14 (Garcia). C. Payne reiterated that she did not have custody of her kids in the time subsequent to seeing Wilder and that, accordingly, he substantively took away her parental rights. See Tr. at 35:23-36:19 (Garcia). As to what C. Payne termed the merits prong of substantive due-process analysis, “it is crystal clear in our criminal law precedence, which the officer should be aware of[, ] that an anonymous tip does not constitute reasonable suspicion, ” which she argued is a different issue from the Fourth Amendment reasonable suspicion for the traffic stop. Tr. at 38:7-39:4 (Garcia, Court). That is, C. Payne argued, she is not arguing at all that the traffic stop lacked reasonable suspicion at the outset, but primarily that, for substantive due process, the anonymous tip was not sufficient to support an interference with her parental rights. See Tr. at 39:8-25 (Garcia, Court). As to the anonymous tip's content, C. Payne argued that the tipster's subjective belief that C. Payne was doing drugs cannot provide reasonable suspicion of child abuse and that to the extent the tipster identifies her as being “skinny, ” she is skinny. Tr. at 40:3-15 (Garcia). C. Payne also explained that, regarding her alleged “scabs” -- an indicator of methamphetamine use -- the Traffic Stop Video belies any possibility of her having scabs:

On that video you can clearly see her legs her face and her arms and you know my client would probably shoot me for saying this if she was here, but she's so white she glows in the dark. And there is no discoloration that could be misinterpreted through the video to be these scab[s] that [] they're referring to. Her legs are [pale], [pale], [pale] white, and clear, her arms are clear with the exception of the freckles that you get from the sun with having light skin and her face, I don't see any indication of a scab on the face.

Tr. at 41:11-21 (Garcia). As to C. Payne's supposed “shaking, ” C. Payne explained that,

in the video, they're standing there face-to-face, probably a foot or two between them in a parking lot right off the roadway. It's in a business district. It's all paved. About ready to do this field sobriety thing. This mother who has had her children taken away from her is still asking, I don't understand why I have to keep doing these things[. Y]ou guys do not have any reason to be taking my children from me. And Wilder is explaining that he got the report and that he needs to do a[ll] these things, well, he needs to do the inspection of the house in order to give her her kids back, and they get into an argument over, you know, the merits of that, and Wilder responds with, you know, something of and by the way look at you you're shak[ing] right now. And she said of course I'm shaking I've just had my children taken away. I feel you're harassing me in always trying to get in touch with me and leaving me messages and stuff, and here, we are already again at a traffic stop. I'm scared. She tells him I'm scared and I don't, you know, a single mother who is thrown into this situation[.] I cannot blame her one bit.

Tr. at 42:11-43:8 (Garcia). C. Payne was not clear whether the traffic stop was the first encounter between C. Payne and Wilder, and also was not clear whether and when C. Payne had lost full custody of her children, or when R. Payne and Wilder had conversed about the anonymous tip with relation to the traffic stop. See Tr. at 44:18-45:24 (Garcia). In reply, the Court inquired of Wilder: “[Y]our theory has been that . . . there was no removal of the children, and what [C. Payne] is saying is that yes . . . there was a removal because the police told Mr. Payne not to give the children back to Ms. Payne. So there was a removal.” Tr. at 48:15-21 (Court). The Court also inquired:

I [am] still focusing on whether there is a violation. Do you have any cases that says there is a violation when all you have is a police officer, CYFD, somebody using words rather than . . . an actual taking of the child. Now, [C. Payne is] . . . saying no I don't have something that's not words. But that's not this case, this case involves the removal of the children, because of Wilder putting pressure on Mr. Payne not to send the children back to Ms. Payne.

Tr. at 49:6-15 (Court). Wilder disagreed that inquiry was relevant, instead asserting that,

even if the[re] were a case out there, that would show that a party has a constitutional right preventing an officer, a state official from saying you can't have your kids, it's still, for it to be clearly established is the key to put beyond debate that what Wilder did was wrong and plaintiff has pointed to absolutely no case, the Supreme Court as recently as I believe it was January of this year . . . has said that we need specific facts and case law to demonstrate a violation of a clearly established law and we simply don't have that.

Tr. at 49:16-50:2 (Martinez). Wilder then reiterated the standard requiring the Court to balance the state's interests in protecting children against C. Payne's familial rights, and explained that Wilder received an anonymous tip referral from CYFD and then went and spoke with R. Payne about C. Payne's living arrangements and, during the conversation, R. Payne corroborated the allegations of methamphetamine usage in that anonymous tip. See Tr. at 51:3-23 (Martinez). Wilder conceded that R. Payne did not personally observe C. Payne use or sell methamphetamine, and that he was only suspicious. See Tr. at 52:7-9 (Martinez).

         Wilder then turned to his MSJ's arguments regarding C. Payne's procedural due process claims, explaining:

Again, we know that Mr. Wilder or Deputy Wilder informed Ms. Payne that if she did not comply with this investigation she would not see her children. Again, we did not remove these children, and what happened at that point was a failure. That's in the facts and the attached deposition transcript, a complete and absolute failure on the part of Ms. Payne to contact any authorities regarding the so-called removal of the children by Deputy Wilder. We did not remove the children. We assisted in an investigation. We are not the entity that would give Ms. Payne any procedural due process. That is the essence of our argument is it relates to that aspect of the claim.

Tr. at 53:2-16 (Martinez). Wilder crystallized that he was not the entity which could give procedural due process. See Tr. at 53:19 (Martinez). C. Payne then argued and explained:

[T]o make it clear, our procedural due process claims is that if the deputy and social worker Bucag did not under the law's eyes take custody of these children by preventing mom to have physical possession of the kids and preventing mom to have decision making authority both at the time when the Court told her she is to have those rights, that the deputy and CYFD, ad hoc on the side of the highway adjudicated those rights for Ms. Payne and modified the child custody agreement to Mr. Payne will keep the kids until this investigation is over, and in order to do that, it takes at the very minimum notice and opportunity to be heard and those are nowhere presented throughout the record. And without that that is the procedural side of the Fourteenth Amendment violation.

Tr. at 54:4-19 (Garcia). In reply, Wilder maintained that, at this stage, in regard to qualified immunity, C. Payne again has failed to “point to some case law that would show that the actions of Deputy Wilder would somehow violate procedural due process of Ms. Payne.” Tr. at 61:18-21 (Martinez).

         Wilder then addressed C. Payne's allegations surrounding the Fourth Amendment and the field sobriety test, and explained that he moved for summary judgment on this count, because,

based on background investigation that Ms. Payne's license was suspended, she was pulled over. We would concede that generally you [can] not extend traffic stops beyond the reason that you pull somebody over unless you have articulable facts, and the facts show that deputy Wilder did indeed have these articulable facts. Whether he was mistaken that Ms. Payne was scared, or afraid, because he pulled her [over and] she was jittery, she had sor[]es on her body.

Tr. at 62:13-22 (Martinez). The Court pressed Wilder about C. Payne's earlier argument that you could not see scabs on the Traffic Stop Video, to which Wilder responded the Traffic Stop Video is not high definition, and, regardless, C. Payne has done nothing to put evidence on the record that she did not have scabs. See Tr. at 62:23-63:5 (Court, Martinez). In addition to relying on the scabs, which Wilder conceded were not evidence of present drug use, Wilder explained that he formed reasonable suspicion to extend the stop by virtue of her thin appearance and shakiness, too, but also that he was operating under reasonable suspicion from the beginning of the traffic stop, anyway. See Tr. at 63:14-65:20 (Martinez). C. Payne responded by first conceding that the state and federal standards for probable cause and reasonable suspicion in this regard were indistinguishable. See Tr. at 66:14-24 (Court, Garcia). The Court, then, asked C. Payne “[w]hy is it, though, he's got some evidence that she's a meth user, and shaking, why isn't that enough to have reasonable suspicion to conduct the field sobriety test?” Tr. at 66:25-67:3 (Court). C. Payne argued that Wilder would still “have to do one more step and say are these likely to have come from using methamphetamine, and [is she] presently under the effects of that drug so that [her] driving is impaired to the slightest degree.” Tr. at 67:15-19 (Garcia). Wilder next concluded his argument on the Fourth Amendment issue by stating:

Whether or not, whether the shaking was enough to allow the field sobriety test[, u]nder qualified immunity[, ] Deputy Wilder can be mistaken and still be entitled to qualified immunity. So even if he's mistaken as to why she's shaking, when you combine it with the other information that he gleaned through his investigation, it would be reasonable for deputy Wilder to conduct that field sobriety test.

Tr. at 69:8-15 (Martinez).

         Wilder next discussed “count 2, [where] plaintiff asserts that deputy Wilder violated her state rights under article 2, section 18 to the custody and visitation of her children.” Tr. at 69:19-22 (Martinez). The Court then confirmed that Article II, Section 18 of the New Mexico Constitution was the counterpart to the federal substantive familial integrity due process claim, at which point C. Payne conceded that she was not arguing that the New Mexico protections were stronger than the federal protections. See Tr. at 70:3-5 (Court); id. at 70:15-16 (Garcia). Wilder then turned to C. Payne's allegations under “article 2, section 10 of the New Mexico Constitution which is the analog to the Fourth Amendment.” Tr. at 70:22-71:5 (Martinez). Similarly, C. Payne conceded that she was not arguing that the New Mexico protections were stronger than the federal protections. See Tr. at 71:9 (Garcia). Wilder explained that the case was originally filed in state court, making only the state claims, but that C. Payne ultimately amended to add the federal claims, prompting removal. See Tr. at 71:18-23 (Martinez).

         The Court then gave its inclination:

I'm probably going to analyze whether there was a constitutional violation of the first two, the substantive due process and the procedural due process. So I probably won't skip to the clearly established. I'll first decide whether there is a violation. And I don't have a good sense as to which way I'm going to go on that. I need to make sure I understand fully these facts, but I am troubled by this link between Wilder and Mr. Payne whether that's enough to establish the children were taken away. I'm skeptical that simply making these statements is enough. But state authority ordered Mr. Payne to not let the children go back, that troubles me, and I realize [the] argument that I shouldn't attribute Mr. Payne's actions to Mr. Wilder. But I'm still troubled by a police officer stating that a citizen cannot do something then saying that's a third party so I'll have to give that some thought. I do think though that it's probably going to fail on the clearly established, I do think that on both these scores it's going to fail so I'm inclined to grant the summary judgment on the first two federal claims. On the Fourth Amendment, I think that the law is probably clearly established in these traffic stop incidents, and the fact patterns typically vary a little bit between traffic stop to traffic stop, but I do think that probably in this case Officer Wilder had reasonable suspicion to order the field sobriety test. I don't think he had to have probable cause. If that were the case he'd go ahead and arrest without going through a field sobriety. So I don't think he had probable cause but I do think he had reasonable [suspicion], and therefore was authorized to engage in the field sobriety test I'm inclined to think that the law is clearly established enough on these traffic violation[s], even though there may be some factual differences from case to case so I'm inclined to grant the motion there. As far as the state claims, it seems to me depending upon what I do with Mr. Bucag, I may end up without any federal claims and may be inclined to send it back to state court. On the other hand if I'm going to leave anything with Mr. Bucag it may be that I need to go ahead and dismiss the state claims so I'll have to give that some thought and see where it fits in at the time that we're deciding the motion, whether I'm going to leave any federal claims in the case or not.

Tr. at 72:7-74:5 (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).

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 Norway ASA, 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 Corp. v. Catrett, 477 U.S. at 331 (Brennan, J., dissenting) (emphasis in original).[13] 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 Corp. v. Catrett, 477 U.S. at 324; Anderson v. Liberty Lobby, Inc., 477 U.S. at 256.

         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.” Anderson v. Liberty Lobby, Inc., 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, 2008 WL 2309005, at *1 (D. Kan. 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 turn up at trial.'” Colony Nat'l Ins. Co. v. Omer, 2008 WL 2309005, at *1 (quoting Conaway v. Smith, 853 F.2d 789, 794 (10th Cir. 1988)).

         To deny a motion for summary judgment, genuine factual issues must exist that “can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.” Anderson v. Liberty Lobby, Inc., 477 U.S. at 250. A mere “scintilla” of evidence will not avoid summary judgment. Vitkus v. Beatrice Co., 11 F.3d at 1539 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. at 248). Rather, there must be sufficient evidence on which the fact finder could reasonably find for the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 251 (quoting Schuylkill & Dauphin Improvement Co. v. Munson, 81 U.S. 442, 448 (1871)); Vitkus v. Beatrice Co., 11 F.3d at 1539. “[T]here is no evidence for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable . . . or is not significantly probative, . . . summary judgment may be granted.” Anderson v. Liberty Lobby, Inc., 477 U.S. at 249 (citations omitted). Where a rational trier of fact, considering the record as a whole, could not find for the nonmoving party, there is no genuine issue for trial. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). See also Am. Mech. Sols., L.L.C. v. Northland Process Piping, Inc., 184 F.Supp.3d 1030, 1061 (D.N.M. 2016) (Browning, J.) (considering the nuance of a motion for summary judgment, and the interplay between state and federal law, and providing -- in part --that “New Mexico, along with other jurisdictions, has required expert testimony when the issue of causation is presented in a context which is not a matter of common knowledge”).

         When reviewing a motion for summary judgment, the court should keep in mind certain principles. First, the court's role is not to weigh the evidence, but to assess the threshold issue whether a genuine issue exists as to material facts requiring a trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 249. Second, the ultimate standard of proof is relevant for purposes of ruling on a summary judgment, such that, when ruling on a summary judgment motion, the court must “bear in mind the actual quantum and quality of proof necessary to support liability.” Anderson v. Liberty Lobby, Inc., 477 U.S. at 254. Third, the court must resolve all reasonable inferences and doubts in the nonmoving party's favor, and construe all evidence in the light most favorable to the nonmoving party. See Hunt v. Cromartie, 526 U.S. 541, 550-55 (1999); Anderson v. Liberty Lobby, Inc., 477 U.S. at 255 (“The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.”). Fourth, the court cannot decide any issues of credibility. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 255.

         There are, however, limited circumstances in which the court may disregard a party's version of the facts. This doctrine developed most robustly in the qualified immunity arena. In Scott v. Harris, 550 U.S. 372 (2007), the Supreme Court concluded that summary judgment was appropriate where video evidence “quite clearly contradicted” the plaintiff's version of the facts. 550 U.S. at 378-81. The Supreme Court explained:

At the summary judgment stage, facts must be viewed in the light most favorable to the nonmoving party only if there is a “genuine” dispute as to those facts. Fed. Rule Civ. Proc. 56(c). As we have emphasized, “[w]hen the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts . . . . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.'” Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. [at] 586-587 . . . (footnote omitted). “[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. [at] 247-248 . . . . When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.
That was the case here with regard to the factual issue whether respondent was driving in such fashion as to endanger human life. Respondent's version of events is so utterly discredited by the record that no reasonable jury could have believed him. The Court of Appeals should not have relied on such visible fiction; it should have viewed the facts in the light depicted by the videotape.

Scott v. Harris, 550 U.S. at 380-81 (emphasis in original).

         The United States Court of Appeals for the Tenth Circuit applied this doctrine in Thomson v. Salt Lake County and explained:

[B]ecause at summary judgment we are beyond the pleading phase of the litigation, a plaintiff's version of the facts must find support in the record: more specifically, “[a]s with any motion for summary judgment, when opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts.” York v. City of Las Cruces, 523 F.3d 1205, 1210 (10th Cir. 2008) (quoting Scott, 550 U.S. at 380); see also Estate of Larsen ex rel. Sturdivan v. Murr, 511 F.3d 1255, 1258 (10th Cir. 2008).

Thomson v. Salt Lake Cty., 584 F.3d at 1312 (brackets omitted). “The Tenth Circuit, in Rhoads v. Miller, [352 F. App'x 289 (10th Cir. 2009) (Tymkovich, J.) (unpublished), [14] explained that the blatant contradictions of the record must be supported by more than other witnesses' testimony[.]” Lymon v. Aramark Corp., 728 F.Supp.2d 1222, 1249 (D.N.M. 2010) (Browning, J.) (citation omitted), aff'd, 499 F. App'x 771 (10th Cir. 2012).

In evaluating a motion for summary judgment based on qualified immunity, we take the facts “in the light most favorable to the party asserting the injury.” Scott v. Harris, 550 U.S. 372, 377 (2007). “[T]his usually means adopting . . . the plaintiff's version of the facts, ” id. at 378, unless that version “is so utterly discredited by the record that no reasonable jury could have believed him, ” id. at 380. In Scott, the plaintiff's testimony was discredited by a videotape that completely contradicted his version of the events. 550 U.S. at 379. Here, there is no videotape or similar evidence in the record to blatantly contradict Mr. Rhoads' testimony. There is only other witnesses' testimony to oppose his version of the facts, and our judicial system leaves credibility determinations to the jury. And given the undisputed fact of injury, Mr. Rhoads' alcoholism and memory problems go to the weight of his testimony, not its admissibility . . . . Mr. Rhoads alleges that his injuries resulted from a beating rendered without resistance or provocation. If believed by the jury, the events he describes are sufficient to support a claim of violation of clearly established law under Graham v. Connor, 490 U.S. 386, 395-96 (1989), and this court's precedent.

Rhoads v. Miller, 352 F. App'x at 291-92 (internal quotation marks omitted). See Lymon v. Aramark Corp., 728 F.Supp.2d at 1249-50 (quoting Rhoads v. Miller, 352 F. App'x at 291-92). In a concurring opinion in Thomson v. Salt Lake County, the Honorable Jerome A. Holmes, United States Circuit Judge for the Tenth Circuit, stated that courts must focus first on the legal question of qualified immunity and “determine whether plaintiff's factual allegations are sufficiently grounded in the record such that they may permissibly comprise the universe of facts that will serve as the foundation for answering the legal question before the court, ” before inquiring into whether there are genuine issues of material fact for resolution by the jury. 584 F.3d at 1326-27 (Holmes, J., concurring) (citing Goddard v. Urrea, 847 F.2d 765, 770 (11th Cir. 1988) (Johnson, J., dissenting)) (observing that, even if factual disputes exist, “these disputes are irrelevant to the qualified immunity analysis because that analysis assumes the validity of the plaintiffs' facts”).

         LAW REGARDING LIABILITY FOR CONSTITUTIONAL VIOLATIONS UNDER 42 U.S.C. § 1983

         Section 1983 of Title 42 of the United States Code provides:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.

42 U.S.C. § 1983. “To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988). Individual, non-supervisory defendants may be liable if they knew or reasonably should have known that their conduct would lead to the deprivation of a plaintiff's constitutional rights by others, and an unforeseeable intervening act has not terminated their liability. See Martinez v. Carson, 697 F.3d 1252, 1255 (10th Cir. 2012) (“The requisite causal connection is satisfied if [the defendants] set in motion a series of events that [the defendants] knew or reasonably should have known would cause others to deprive [the plaintiffs] of [their] constitutional rights.” (quoting Trask v. Franco, 446 F.3d 1036, 1046 (10th Cir. 2006))). The Supreme Court has made clear that there is no respondeat superior liability under 42 U.S.C. § 1983. See Ashcroft v. Iqbal, 556 U.S. at 676 (“Because vicarious liability is inapplicable to Bivens[15] and § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution.”); Bd. of Cnty. Comm'rs v. Brown, 520 U.S. 397, 403 (1997). “An entity cannot be held liable solely on the basis of the existence of an employer-employee relationship with an alleged tortfeasor.” Garcia v. Casuas, No. CIV 11-0011 JB/RHS, 2011 WL 7444745, at *25 (D.N.M. Dec. 8, 2011) (Browning, J.) (citing Monell v. Dep't of Soc. Servs., 436 U.S. at 689). Supervisors can be held liable only for their own unconstitutional or illegal policies, and not for the employees' tortious acts. See Barney v. Pulsipher, 143 F.3d 1299, 1307-08 (10th Cir. 1998).

         1. Color of State Law.

         “Under Section 1983, liability attaches only to conduct occurring ‘under color of law.'” Gallagher v. Neil Young Freedom Concert, 49 F.3d 1442, 1447 (10th Cir. 1995). The under-color-of-state-law requirement is a “jurisdictional requisite for a § 1983 action, which . . . furthers the fundamental goals of preserving an area of individual freedom by limiting the reach of federal law . . . and avoiding imposing on the state, its agencies or officials, responsibility for conduct for which they cannot fairly be blamed.” Jojola v. Chavez, 55 F.3d 488, 492 (10th Cir. 1995). “The traditional definition of acting under color of state law requires that the defendant in a § 1983 action have exercised power ‘possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.'” West v. Atkins, 487 U.S. at 49 (quoting United States v. Classic, 313 U.S. 299, 326 (1941)). “The authority with which the defendant is allegedly ‘clothed' may be either actual or apparent.” Jojola v. Chavez, 55 F.3d at 493. Accordingly, at a base level, to conclude that an action was taken under color of state law, the court must determine that “‘the conduct allegedly causing the deprivation of a federal right' must be ‘fairly attributable to the State.'” Gallagher v. Neil Young Freedom Concert, 49 F.3d at 1447 (quoting Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982)).

         The Tenth Circuit has directed that, while “‘state employment is generally sufficient to render the defendant a state actor . . . [, ]' at the same time, it is ‘well settled that an otherwise private tort is not committed under color of law simply because the tortfeasor is an employee of the state.'” Jojola v. Chavez, 55 F.3d at 493 (quoting Lugar v. Edmondson Oil Co., 457 U.S. at 935-36 n.18; Mark v. Borough of Hatboro, 51 F.3d 1137, 1150 (3d Cir. 1995)). Thus, “before conduct may be fairly attributed to the state because it constitutes action ‘under color of state law, ' there must be ‘a real nexus' between the employee's use or misuse of their authority as a public employee, and the violation allegedly committed by the defendant.” Jojola v. Chavez, 55 F.3d at 493. What constitutes the required real nexus, however, is not completely clear. As the Tenth Circuit has stated, whether there is a real nexus in a particular case depends on the circumstances:

The under color of law determination rarely depends on a single, easily identifiable fact, such as the officer's attire, the location of the act, or whether or not the officer acts in accordance with his or her duty. Instead one must examine “the nature and circumstances of the officer's conduct and the relationship of that conduct to the performance of his official duties.”

David v. City & Cnty. of Denver, 101 F.3d 1344, 1353 (10th Cir. 1996) (citations omitted) (quoting Martinez v. Colon, 54 F.3d 980, 986 (1st Cir. 1995)).

         2. Individual Liability.

         Government actors may be liable for the constitutional violations that another committed, if the actors “set in motion a series of events that the defendant knew or reasonably should have known would cause others to deprive the plaintiff of her constitutional rights, ” thus establishing the “requisite causal connection” between the government actor's conduct and a plaintiff's constitutional deprivations. Trask v. Franco, 446 F.3d 1036, 1046 (10th Cir. 2006). The Tenth Circuit has explained that § 1983 liability should be “‘read against the background of tort liability that makes a man responsible for the natural consequences of his actions.'” Martinez v. Carson, 697 F.3d at 1255 (quoting Monroe v. Pape, 365 U.S. 167, 187 (1961), overruled in part by Monell v. Dep't of Soc. Servs., 436 U.S. at 663). “Thus, Defendants are liable for the harm proximately caused by their conduct.” Martinez v. Carson, 697 F.3d at 1255 (citing Trask v. Franco, 446 F.3d at 1046). As the Court has previously concluded, “a plaintiff who establishes liability for deprivations of constitutional rights actionable under 42 U.S.C. § 1983 is entitled to recover compensatory damages for all injuries suffered as a consequence of those deprivations. The recovery should be guided by common-law tort principles -- including principles of causation . . . .” Train v. City of Albuquerque, 629 F.Supp.2d 1243, 1251 (D.N.M. 2009) (Browning, J.).[16]

         The Tenth Circuit has found liability for those defendants who proximately caused an injury alleged under § 1983 and stated that the fact that the “conduct of other people may have concurrently caused the harm does not change the outcome as to [the defendant], ” so long as there was not a superseding-intervening cause of a plaintiff's harm. Lippoldt v. Cole, 468 F.3d 1204, 1220 (10th Cir. 2006).

Even if a factfinder concludes that the residential search was unlawful, the officers only “would be liable for the harm ‘proximately' or ‘legally' caused by their tortious conduct.” Bodine v. Warwick, 72 F.3d 393, 400 (3d Cir. 1995). “They would not, however, necessarily be liable for all of the harm caused in the ‘philosophic' or but-for sense by the illegal entry.” 72 F.3d at 400. In civil rights cases, a superseding cause, as we traditionally understand it in tort law, relieves a defendant of liability. See, e.g., Warner v. Orange Cnty. Dep't of Prob., 115 F.3d 1068, 1071 (2d Cir. 1997); Springer v. Seaman, 821 F.2d 871, 877 (1st Cir. 1987), abrogated on other grounds by Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701 (1989).

Trask v. Franco, 446 F.3d at 1046. Thus, in the context of a claim under the Fourth Amendment, the Tenth Circuit has held that government actors “may be held liable if the further unlawful detention and arrest would not have occurred but for their conduct and if there were no unforeseeable intervening acts superseding their liability.” Martinez v. Carson, 697 F.3d at 1255. The Tenth Circuit gave an example of a superseding-intervening cause, quoting the Honorable Samuel J. Alito, then-United States Circuit Judge for the United States Court of Appeals for the Third Circuit:

Suppose that three police officers go to a suspect's house to execute an arrest warrant and that they improperly enter without knocking and announcing their presence. Once inside, they encounter the suspect, identify themselves, show him the warrant, and tell him that they are placing him under arrest. The suspect, however, breaks away, shoots and kills two of the officers, and is preparing to shoot the third officer when that officer disarms the suspect and in the process injures him. Is the third officer necessarily liable for the harm caused to the suspect on the theory that the illegal entry without knocking and announcing rendered any subsequent use of force unlawful? The obvious answer is “no.” The suspect's conduct would constitute a “superseding” cause, see Restatement (Second) of Torts § 442 (1965), that would limit the officer's liability. See id. § 440.

Trask v. Franco, 446 F.3d at 1046 (quoting Bodine v. Warwick, 72 F.3d at 400). Additionally, “[f]oreseeable intervening forces are within the scope of the original risk, and . . . will not supersede the defendant's responsibility.” Trask v. Franco, 446 F.3d at 1047 (quoting William Lloyd Prosser et al., Prosser and Keeton on Torts § 44, at 303-04 (5th ed.1984)). If

the reasonable foreseeability of an intervening act's occurrence is a factor in determining whether the intervening act relieves the actor from liability for his antecedent wrongful act, and under the undisputed facts there is room for reasonable difference of opinion as to whether such act ...

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