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Payne v. Wilder

United States District Court, D. New Mexico

August 24, 2017

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

          Miguel Garcia John R Hakanson, P.C. Alamogordo, New Mexico Attorneys for the Plaintiff.

          Damian L. Martinez Holt Mynatt Martinez, P.C. Las Cruces, New Mexico Attorneys for Defendant Lee Wilder.

          Lee M. Rogers Carla Neush Williams Atwood, Malone, Turner, & Sabin, PA. Roswell, New Mexico Attorneys for Defendants David Ceballes and Mayfritz Bucag.

          MEMORANDUM OPINION AND ORDER

         THIS MATTER comes before the Court on the Defendant Mayfritz Bucag's Motion for Summary Judgment on the Basis of Qualified Immunity, filed March 14, 2017 (Doc. 43)(“MSJ”). The Court held a hearing on June 5, 2017. The primary issue is whether the undisputed material facts entitle Defendant Mayfritz Bucag to qualified immunity, because Plaintiff Cara Payne (“C. Payne”) has not demonstrated that Bucag violated her clearly established constitutional rights when he agreed with Otero County Sherriff's Office Deputy Lee Wilder's statement that C. Payne could not have custody of her children unless she cooperated with a child abuse investigation. Because the Court concludes that, on this record of undisputed facts, Bucag is entitled to qualified immunity on C. Payne's claims sounding in federal due process, the Court will grant summary judgment as to those federal claims that C. Payne brings against Bucag. Accordingly, the Court grants Bucag's MSJ. Upon granting Bucag's MSJ, the Court notes that there are no longer any pending federal claims, and will thus decline to exercise supplemental jurisdiction and will remand to state court C. Payne's remaining New Mexico state procedural due-process claim brought against Wilder.

         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 its 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, whom 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 Bucag's MSJ and the Record Establish.[1]

         “Deputy Lee Wilder was a Deputy Sheriff with the Otero County Sheriff's Office (‘OCSO') at the time of the July 8, 2015 incident.” MSJ ¶ 4, at 2 (asserting this fact). See Plaintiff's Response to Defendant Bucag's Motion for Summary Judgment ¶ 2, at 2, filed April 11, 2017 (Doc. 48)(“Response”)(not disputing this fact).[2] “Defendant Bucag, at all material times, was a social worker employed by New Mexico Children, Youth, and Families Department (‘CYFD').” MSJ ¶ 5, at 2 (asserting this fact). See Response ¶ 3, at 2 (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 ¶ 6, at 2 (asserting this fact). See Response ¶ 4, at 2 (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, and Richard Herndon, to include a check on the status of their driver's licenses and determined that Plaintiff's driver's license was suspended.” MSJ ¶ 7, at 3 (asserting this fact). See Response ¶ 5, at 2 (not disputing this fact).

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

         MSJ ¶ 8, at 3 (asserting this fact). See Response ¶ 6, at 2 (not disputing this fact). “On July 8, 2015, Defendant Wilder went to the address at 10 Coyote Run and tried to make contact with Plaintiff, however he got no answer at the door.” MSJ ¶ 9, at 3 (asserting this fact). See Response ¶ 7, at 2 (not disputing this fact). “As part of the joint CYFD and OCSO investigation, Deputy Wilder visited with Robert Payne, the children's father, to assess the validity of the facts in the anonymous tip.” MSJ ¶ 10, at 3 (asserting this fact). See Response ¶ 8, at 2 (not disputing this fact). “Robert Payne corroborated most of the information in the tip and told Defendant Wilder that he suspected Plaintiff was on Methamphetamine, was covered in scabs, suffered severe mood swings, and that Plaintiff's companion, Richard Herndon, was a felon living with Plaintiff.” MSJ ¶ 11, at 3 (asserting this fact)(citing Deposition of Lee Wilder at 12:14-25 (taken November 16, 2015), filed March 14, 2017 (Doc. 43-1)(“Wilder Depo.”)).[3]

         “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 the investigation, and because he suspected Mr. Herndon may be hiding in the car behind the tinted windows.” MSJ ¶ 12, at 3 (asserting this fact). See Response ¶ 10, at 2 (not disputing this fact). “Upon pulling Plaintiff over, Plaintiff handed Deputy Wilder her driver's license and her attorney's business card and stated that she wanted her lawyer.” MSJ ¶ 13, at 3-4 (asserting this fact). See Response ¶ 11, at 2 (not disputing this fact). “Since at least July 8, 2015 Plaintiff has been represented by an attorney.” MSJ ¶ 14, at 4 (asserting this fact). See Response ¶ 12, at 2 (not disputing this fact).

During the traffic stop, Deputy Wilder came to believe that 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 to be covered in scabs, shaking, and extremely thin, consistent with Methamphetamine abuse.

MSJ ¶ 15, at 4 (asserting this fact)(citing Wilder Depo. at 36:16-24; id. 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)).[4] “Plaintiff ‘never doubted' that a child abuse complaint had been made against her.” MSJ ¶ 16, at 4 (asserting this fact)(citing Deposition of Cara Payne at 24:24; 25:6-9 (taken November 16, 2015), filed March 14, 2017 (Doc. 43-2)(“C. Payne Depo.”).[5]“Plaintiff knew since at least July 8, 2015, that Deputy Wilder had a duty to investigate the allegations of child abuse made against her.” MSJ ¶ 17, at 4 (asserting this fact)(citing C. Payne Depo. at 25:16-21).[6] “Plaintiff . . . in July 2015 . . . used Methamphetamine ‘almost daily, maybe.'” MSJ ¶ 18, at 4 (asserting this fact)(citing C. Payne Depo. at 9:3-20; 28:23-25; 29:14). See Response ¶ 16, at 3 (not disputing this fact, but not admitting there was evidence to establish as much in the course of the investigations).[7] “On July 8, 2015, (during a traffic stop) Defendant Wilder informed Plaintiff that her live-in boyfriend, Mr. Herndon, had a warrant out for his arrest on July 8, 2015.” MSJ ¶ 19, at 4 (asserting this fact). See Response ¶ 17, at 4 (not disputing this fact). “When Defendant Wilder made contact with Plaintiff during the traffic stop, Defendant Wilder told Plaintiff that if she did not comply with the child abuse investigation, that she could not see her children.” MSJ ¶ 20, at 4 (asserting this fact). See Response ¶ 18, at 4 (not disputing this fact).[8]

         “After Defendant Wilder spoke with Robert Payne, and he learned that the children were safely with him, he contacted Defendant Bucag to notify him of his findings.” MSJ ¶ 22, at 5 (asserting this fact). See Response ¶ 20, at 4 (not disputing this fact). “Later that day, on July 8, 2015, both Defendant Wilder and Defendant Bucag went to Robert Payne's home.” MSJ ¶ 23, at 5 (asserting this fact). See Response ¶ 21, at 4 (not disputing this fact). “During this visit, Defendant Bucag inspected Robert Payne's home, interviewed both children, and spoke with Robert Payne.” MSJ ¶ 24, at 5 (asserting this fact). See Response ¶ 22, at 4 (not disputing this fact). “Defendant Wilder and Defendant Bucag were aware that there was a joint custody agreement between Mr. Payne and Plaintiff per a court custody order.” MSJ ¶ 25, at 5 (asserting this fact). See Response ¶ 23, at 4 (not disputing this fact).

After determining that the children were safe in the care of Mr. Payne, Defendant Wilder informed him to “hold onto the kids and we'll figure things out. At this point [the Plaintiff] is not cooperating with the investigation so we have to make sure there is a safe place for the kids to go.”

MSJ ¶ 26, at 5 (asserting this fact). See Response ¶ 24, at 4 (not disputing this fact). “On July 8, 2015, Deputy Wilder told Mr. Payne not to allow Plaintiff to have the children, and if Plaintiff tried to contact Mr. Payne, he was to contact Deputy Wilder who would then advise Plaintiff to cooperate with the child abuse investigation.” MSJ ¶ 27, at 5 (asserting this fact). See Response ¶ 25, at 4 (not disputing this fact). “Defendant Bucag agreed with Deputy Wilder's decision to leave the children in the care of joint custodial parent Robert Payne, for the immediate safety of the children.” MSJ ¶ 28, at 5 (asserting this fact). See Response ¶ 26, at 4 (not disputing this fact). Regarding whether Wilder and Bucag told R. Payne about C. Payne's ability to visit the children, “he was told ‘that's totally up to you. You have a custody agreement. If you want to allow her into the house to visit the kids that's totally up to you.'” MSJ ¶ 29, at 5 (asserting this fact)(citing Wilder Depo. at 28:13-17).[9]

         “Plaintiff refused to cooperate with the two pending investigations: the CYFD investigation and the criminal investigation of Plaintiff under NMRA § 30-6-4 conducted by OCSO.” MSJ ¶ 30, at 6 (asserting this fact). See Response ¶ 28, at 4 (not disputing this fact). “The two-pronged investigation of Plaintiff was to make sure the children were safe, and to allow law enforcement looks from a ‘criminal perspective' to see if there were any charges that should be filed related to child abuse.” MSJ ¶ 31, at 6 (asserting this fact). See Response ¶ 29, at 4 (not disputing this fact). “CYFD's main concern is the safety of the children, but CYFD's goal is different from that of law enforcement.” MSJ ¶ 32, at 6 (asserting this fact). See Response ¶ 30, at 4 (not disputing this fact). “Defendant Wilder took immediate steps to make sure that Plaintiff's children were safe.” MSJ ¶ 33, at 6 (asserting this fact). See Response ¶ 31, at 4 (not disputing this fact). “A few days after July 8, 2015, two CYFD workers, including Defendant Bucag, went to the 10 Coyote Run residence. At that time, Plaintiff, met them at the outside gate and, again, refused to cooperate with the CYFD investigation.” MSJ ¶ 34, at 6 (asserting this fact). See Response ¶ 32, at 4 (not disputing this fact). “On July 23, 2015, Plaintiff and her attorney filed a Petition for a Writ of Habeas Corpus and Complaint for Damages under the New Mexico Tort Claims Act asking that the court release her children from ‘unlawful detention' and for damages against Deputy Wilder, Sheriff Benny House, and Robert Payne.” MSJ ¶ 35, at 6 (asserting this fact). See Response ¶ 33, at 4 (not disputing this fact).

On July 30, 2015, New Mexico State District Court Judge Jerry H. Ritter denied Plaintiff's Ex Parte Writ of Habeas Corpus noting, “the matter of child custody has been litigated and ruled upon by the District Court in Cara Payne v. Robert Payne, D-1215-DM-201100176, where a parenting plan . . . was adopted. . . . The issue of child custody raised by the instant petition would typically be raised by an appropriate pleading asking enforcement or amendment of the current custody order, not by a collateral proceeding for ‘imprisonment and detention' of the children.”

MSJ ¶ 36, at 6 (asserting this fact). See Response ¶ 34, at 4 (not disputing this fact).[10]

On August 6, 2015, Defendant Bucag completed the CYFD portion of Plaintiff's investigation. His Investigation Summary notes, “Ms. Payne did not cooperate with the investigation. Ms. Payne was advised by her attorney, Mr. Miguel Garcia, not to speak with CYFD. Mr. Garcia told Ms. Peterson, CYFD attorney, that he will sue law enforcement and CYFD. Officer Wilder indicated that children would not return to mom until she cooperates with the investigation. Children are residing with their dad.”

MSJ ¶ 38, at 6 (asserting this fact). See Response ¶ 36, at 4 (not disputing this fact). “At the time Defendant Bucag completed his investigation on August 6, 2015, he believed that the children were safely residing with their father.” MSJ ¶ 39, at 6 (asserting this fact). See Response ¶ 36, at 4 (not disputing this fact). “Defendant Wilder left ‘several messages' for Plaintiff between the time of July 8, 2015 and end of August or beginning of September 2015 wherein Defendant Wilder asked Plaintiff to call him to ‘close this thing out.'” MSJ ¶ 40, at 6 (asserting this fact). See Response ¶ 36, at 4 (not disputing this fact). “At no time from the time she spoke with Defendant Bucag in July 2015 until her deposition on November 16, 2015, did Plaintiff call or contact CYFD to determine if there was an active case.” MSJ ¶ 41, at 6 (asserting this fact). See Response ¶ 36, at 4 (not disputing this fact). “On September 3, 2015 a letter entitled ‘Notice of Results of Investigation' was sent to both Plaintiff and Mr. Payne to include noting that the physical abuse and neglect allegations were unsubstantiated.” MSJ ¶ 42, at 6 (asserting this fact). See Response ¶ 36, at 4 (not disputing this fact). “Both Robert Payne and Plaintiff were given notice upon receipt of the September 3, 2015, letters from CYFD, that the investigation was closed.” MSJ ¶ 43, at 6 (asserting this fact). See Response ¶ 36, at 4 (not disputing this fact). “CYFD did not recommend the filing of a petition against Plaintiff based upon this investigation.” MSJ ¶ 44, at 6 (asserting this fact). See Response ¶ 36, at 4 (not disputing this fact). “At all material times Plaintiff was aware that the state district court still had jurisdiction over the custody of her children, however, at no time did she file a motion to enforce the custody provisions.” MSJ ¶ 45, at 6 (asserting this fact). See Response ¶ 36, at 4 (not disputing this fact).

         “Defendant Bucag, based on the information obtained from Deputy Wilder, Robert Payne, and his observation of Plaintiff outside of 10 Coyote Ct. a few days after July 8, 2015, believed that Plaintiff [may be] abusing Methamphetamine.” MSJ ¶ 46, at 8 (asserting this fact)(alteration added in accordance with Defendant Mayfritz Bucag's Reply in Support of his Motion for Summary Judgment on the Basis of Qualified Immunity ¶ UMF 46, at 4, filed April 28, 2017 (Doc. 54)(“Reply”)). See Response ¶ 37, at 4-5 (suggesting the alteration as incorporated by Bucag's concession in the Reply).

Throughout the course of the investigation, Defendant Bucag believed he was acting in accordance with NMRA (2005) § 32A-4-3(B)-(C), which requires that CYFD transmit information of an alleged abuse or neglect report to the OCSO, and that Deputy Wilder of the OCSO was statutorily required to take immediate steps to ensure that the health and welfare of Plaintiff's children was protected.

MSJ ¶ 47, at 8 (asserting this fact).[11]

Throughout the course of the CYFD investigation, Defendant Bucag believed he acted pursuant to NMSA § 32A-4-4(B) which states, in part: “During the investigation of a report alleging neglect or abuse, the matter may be referred to another appropriate agency and conferences may be conducted for the purpose of effecting adjustments or agreements that will obviate the necessity for filing a petition.”

MSJ ¶ 48, at 8 (asserting this fact).[12] “Throughout the investigation, Defendant Bucag knew that under § 30-6-1(J), child abuse is defined, in part, as knowingly and intentionally exposing a child to Methamphetamine, and based upon the circumstances, he believed all actions he took were taken to protect the health and welfare of Plaintiff's children.” MSJ ¶ 49, at 9[13] (asserting this fact).[14]

         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 the requests in 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 the Clerk of Court entered against Bucag.

         1. The MSJ.

         After providing his proffer of undisputed fact, Bucag first argues that he is entitled to qualified immunity, because he “did not violate Plaintiff's right to substantive due process under the Fourteenth Amendment when he participated in the CYFD investigation.” MSJ at 11. Bucag explains that he “was in the initial stages of the statutorily required investigation of the anonymous tip regarding Plaintiff's drug use and possible abuse/neglect of her children, ” and that, in addition, a “statutorily required report of abuse was sent to the OCSO, and Deputy Wilder was [thus] also jointly investigating the allegations of abuse.” MSJ at 11. According to Bucag, the extent of his involvement in C. Payne's allegations was that he “agreed with Defendant Wilder's statement to Plaintiff's ex-husband that he should continue to keep the children for their own safety pending the investigation.” MSJ at 11. Bucag further asserts that he “did not interfere with Plaintiff's right to challenge any obstruction of those rights, ” and that “the facts thus indisputably establish that Defendant Bucag was acting in the best interest of Plaintiff's children, and not acting with the intent to interfere with Plaintiff's right to familial association.” MSJ at 11. Bucag essentially contends:

Neither 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. Additionally, if there was any interference with Plaintiff's parental rights, the interference was minimal and Plaintiff's rights were outweighed by the risk that Plaintiff's children might be exposed to Plaintiff's methamphetamine use and the dangers associated with living with a wanted felon. . . . Plaintiff's right to familial relationship were substantially outweighed by the concern for the safety and well-being of Plaintiff's children and the State of New Mexico may temporarily interfere with Plaintiff's rights to ensure the health and safety of her children.

MSJ at 12. In conclusion, regarding substantive due process, Bucag explains that C. Payne has “failed to allege that Defendant Bucag intended to deprive Plaintiff of her protected relationship with her children” and that he is thus “entitled to summary judgment on the basis of qualified immunity.” MSJ at 12.

         Bucag then addresses C. Payne's allegations regarding procedural due process and again asserts he “is entitled to qualified immunity . . . because [he] did not violate Plaintiff's right to procedural due process under the Fourteenth Amendment when he participated in the CYFD investigation.” MSJ at 12. Bucag supports his argument by citation to Hollingsworth v. Hill, 110 F.3d 733, 739 (10th Cir. 1997), which provides that state officials “faced with ‘emergency circumstances which pose an immediate threat to the safety of a child' . . . may ‘temporarily deprive a parent of custody without parental consent or a court order.'” MSJ at 12 (quoting Hollingsworth v. Hill, 110 F.3d at 739). Bucag argues that such circumstances are present in this case. See MSJ at 13. Bucag then cites to J.B. v. Washington County, 127 F.3d 919, 922 (10th Cir. 1997), because, in that case, the United States Court of Appeals for the Tenth Circuit held that state officials who “received an ex parte removal order” and then “practically interfered with” the parents' rights to a relationship with their child for eighteen hours for the purposes of interrogating the child, had not committed “a substantive due process violation.” MSJ at 13. Accordingly, Bucag argues:

Plaintiff cannot show that Defendant Bucag intentionally or knowingly acted against her parental rights. Plaintiff at all material times, knew that law enforcement had a duty to investigate allegations of child abuse, and Defendant Bucag and Defendant Wilder were jointly investigating an anonymous tip regarding Plaintiff's drug use and possible abuse/neglect of her children. . . . The information provided in the tip was corroborated by Plaintiff's ex-husband who provided information to both Defendant Wilder and Defendant Bucag about Plaintiff's appearance and probable drug use. . . . Deputy Wilder also believed, based upon Plaintiff's appearance and demeanor, that she was using Methamphetamine. . . . Plaintiff confirmed in her deposition that she was, in fact[, u]sing drugs regularly throughout the relevant time period.

MSJ at 14.

         Bucag then argues that his “agreement with Deputy Wilder's statement did not violate Plaintiff's right to have custody and control of her children, and he violated no clearly established law waiving his qualified immunity.” MSJ at 14. According to Bucag, his agreement with Wilder's alleged interference does not constitute interference on Bucag's behalf and, further, “any interference was justified by facts amounting to reasonable suspicion that the children faced immediate threats to their safety.” MSJ at 14. Bucag then reiterates that C. Payne should have done more on her behalf to enforce her civil custody order, and that R. Payne was to blame for much of the alleged deprivation, because CYFD closed the investigation into the anonymous tip before R. Payne allowed the children to be in C. Payne's custody. See MSJ at 14-15. In conclusion to Bucag's argument regarding procedural due process, Bucag asserts that he “acted reasonably during the CYFD portion of the investigation, and he is entitled to qualified immunity and summary judgment on Plaintiffs' substantive due process claim.” MSJ at 15.

         2. The Response.

         C. Payne first argues that, because Bucag “is in Default, ” he has conceded the “well-pleaded facts contained in Plaintiff's Complaint, ” defeating the MSJ. Response at 7-8. C. Payne next argues that “Bucag violated her substantive and procedural due process rights to her children, ” and cites to Roska v. Peterson, 328 F.3d 1230 (10th Cir. 2003), which announces “the ‘mere possibility' of danger is not enough to justify a removal without appropriate process, ” Response at 8 (quoting Roska v. Peterson, 328 F.3d at 1245). C. Payne states:

New Mexico has codified the precedents and has set out a simple statutory scheme for dealing with depriving parents of the custody or control of their children. Section 32A-4-6 N.M. Stat. Annot. allows an officer to take a child into custody “when the officer has evidence giving rise to reasonable grounds to believe that the child is abused or neglected and that there is an immediate threat to the child's safety . . . .”

Response at 8. C. Payne then turns to Bucag's contention that he played only a de minimis role in comparison to Wilder, and asserts: “Clearly, Bucag was complicit with Wilder and aided and abetted Wilder's decisions to withhold custody from Plaintiff. Further, it is undeniable that Bucag, as a social worker, would know that withholding custody from parent would adversely affect the parent-child relationship.” Response at 9.

         C. Payne then concedes: “It is clear that the right to familial association and harmony are recognized at the Supreme Court level and the Tenth Circuit. Those rights yield, however, when a child is in imminent or immediate danger of neglect or abuse.” Response at 10. C. Payne maintains, however, that the anonymous tip, and the other evidence upon which Wilder and Bucag rely to argue that there was imminent and immediate danger to C. Payne's children -- “concluding that Plaintiff was living with a wanted individual and a conclusion that Plaintiff was using drugs” -- was insufficient to meet that standard, and that, “[f]urther, there is no statutory provision in New Mexico that requires a subject of a child abuse investigation to allow searches of other people's property or that they speak with law enforcement or CYFD.” Response at 10. Turning, last, to Bucag's assertions regarding C. Payne's apparent failure to “make any process available to herself, ” C. Payne maintains that she filed her “habeas corpus petition attempting to recover the children” and that, ultimately,

Section 32A-4-18(A) N.M. Stat. Annot. requires that “When a child alleged to be neglected or abused has been placed in the legal custody of the department or the department has petitioned the court for temporary custody, a custody hearing shall be held within ten days from the date the petition is filed to determine if the child should remain in or be placed in the department's custody pending adjudication.”

Response at 11. C. Payne, in conclusion, requests that the Court deny the MSJ.

         3. The Reply.

         Bucag, in the Reply, first addresses the substantive due-process allegations and asserts:

In this case, Plaintiff's children were already in the physical custody of their father, Robert Payne, when the investigation began and that CYFD never took custody of the children. . . . Further, the undisputed facts establish that Defendant Bucag's intent was not to interfere with Plaintiff's rights to familial association, but was instead acting in the best interest of Plaintiff's children. . . . No action or inaction on the part of Defendant Bucag rose to the level of a constitutional deprivation and Defendant Bucag is entitled to summary judgment on the basis of qualified immunity.

Reply at 6. Next, turning to procedural due process, Bucag maintains that there were emergency circumstances posing an immediate threat to C. Payne's children's safety should they be allowed into her custody, because Bucag and Wilder's joint investigation into possible abuse and neglect by C. Payne's drug use had ostensibly corroborated an anonymous tip to that effect. See Reply at 7 (citing Hollingsworth v. Hill, 110 F.3d at 739). Further, Bucag maintains that “Bucag's agreement with Deputy Wilder's statement did not violate Plaintiff's right to have control and custody of her children, and Defendant Bucag violated no clearly established law waiving his qualified immunity.” Reply at 8. In conclusion, Bucag reiterates:

Defendant Bucag had an interest in assuring the preservation and health of Plaintiff's children. Only after these initial steps were taken, and only after Plaintiff's refused to cooperate with the investigation, did Defendant Bucag agree with Defendant Wilder's statement to Mr. Payne that he should “hold on to the kids” for the immediate safety of the children.

         Reply at 9.

         4. The June 5, 2017, Hearing.

         The Court held a hearing on June 5, 2017. See Transcript of Hearing, taken June 5, 2017 (“Tr.”).[15] At the hearing, the Court heard argument on a variety of issues and, regarding the MSJ, heard argument second from Bucag. See Tr. at 18:1-4 (Court). The Court also heard argument from Wilder, in tandem, which addressed in its resolution of Wilder's Defendant's Motion for Summary Judgment on the Basis of Qualified Immunity, filed February 23, 2017 (Doc. 38)(“Wilder's MSJ”). Memorandum Opinion and Order, filed August 18, 2017 (Doc. 63)(“Wilder MOO”)(granting in part and denying in part Wilder's MSJ). Regarding substantive due process, Bucag began by arguing that he appropriately investigated the anonymous tip alleging C. Payne's child abuse:

He deemed that the house where the children were staying, that is correct at the time Mr. Bucag and Mr. Wilder went to see the children, they were at the house of their father, who readily agreed to the search the home, and they determined, or Mr. Bucag determined the [house] was safe, so he felt comfortable that the children were safe and were comfortable with them being with the father. It [is] important Mr. Bucag did not remove the children, he did not file a petition that the children should be removed. He did not file any type of petition to modify the custody agreement. He never removed the children. The children were never removed from Ms. Payne.

Tr. at 29:4-17 (Williams). According to Bucag, the extent of his involvement was that he “agree[d] with Deputy Wilder's statement to the father that he thought it was in the children's best interests to stay with Mr. Payne where it was absolutely determined that because Mr. Payne allowed investigation that that was a safe place for the children to be.” Tr. at 29:18-23 (Williams). Bucag then explained to the Court that, in the context of familial association, the operative inquiry entails consideration of “what circumstances you can take away the children from emergency, ” and “the issue is an intent to interfere and that is where most of the cases get dismissed where there is no, that the standard is that a defendant has to have a reasonable belief that he's acting in the best interests of the children.” Tr. at 30:10-11; 18-23 (Williams).

         The Court then addressed C. Payne and 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, regarding Wilder's traffic stop of C. Payne:

[T]he 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 . . . 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, and all Bucag did was assent, 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). C. Payne stated that 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).

         Bucag then took up argument, in reply, and maintained that

there is no evidence that Mr. Bucag told Ms. Payne that she could not have custody of her children. Again, the only act at [issue] is Mr. Bucag agreeing that the children remain in the custody of . . . a parent whose house he investigated whose father he interviewed, and determined . . . to be safe.

Tr. at 47:14-20 (Williams). Further, according to Bucag, “there is no case law identified that Mr. Bucag's actions are unconstitutional or that he should be responsible for Mr. Payne's alleged violation of a custody agreement.” Tr. at 48:8-11 (Williams). Bucag, at this point, chose to forego her opening argument regarding procedural due process, see Tr. at 53:22-23 (Williams), at which point C. Payne 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). The Court then inquired of C. Payne “what about [Bucag's] point [that] it's not Wilder that deprived Ms. Payne, her children, it was Mr. Payne, and [] you can't link those two up?” Tr. at 55:11-14 (Court). C. Payne responded: “[W]e all know that a police officer cannot direct a private citizen to do something, be successful in that, and then claim that was private action, that wasn't official police conduct that did that.” Tr. at 56:3-7 (Garcia).

         Bucag argued, in reply, that “the question still is notice of what . . . . There was no petition filed under the statute . . . to remove custody of the children.” Tr. at 56:13-16 (Williams). Indeed, Bucag argued:

[I]t's undisputed, Mr. Bucag did not tell Mrs. Payne she could not have her children. She claims defendant Wilder told her that. So again, it's still obviously procedural process deals with the procedure. There has not been an identified procedure identified. They say fail to give opportunity to be heard. Again, that, I mean, they were told how to do that by Judge Ritter from the outset. If you have an issue with the custody agreement, file a motion in this court regarding the same. And that was never done. The custody, that state court case controlled the custody, again, this habeas petition was filed. It was dismissed, and Judge Ritter said we have a custody arrangement. If you have an issue with that, that's where you file it, and that was never done. Again there has not been identified what notice did Mr. Bucag fail to give. I don't believe there has been any procedural due process filed.

Tr. at 56:16-57:9 (Williams). The Court was not convinced, positing:

[I]f in fact I have to take on these facts the facts most favorable to the plaintiff, do I have to take the fact that the children that the state deprived Ms. Payne of her children without a hearing? In other words the police officer just made a determination that she was an unfit mot[her] and then ordered Mr. Wilder not to have her see the children again. In some ways she got notice, she got notice, if you either cooperate with CYFD or we're going to take your kids away so nothing has happened yet although I'm still confused by the facts here what the chronology is. But so in some ways she may have had a little notice but she didn't really get an opportunity to contest it. A decision was made right there when the notice or order was given.

Tr. at 57:11-58:1 (Court). Bucag responded:

I think that's part of the[, ] in terms of the time, these facts are undisputed. But to keep in mind that the anonymous tip comes in, it's referred to law enforcement and CYFD is doing a dual investigation. The first step, the first place they go to, Mr. Bucag[, ] [is] Mr. Payne first and [he] does the investigation, receives additional information of concerns, Tr. at 58:2-9 (Williams), and then Wilder tells R. Payne “don't let her have the kids until something, ”

Tr. at 58:10-12 (Court). Bucag then reiterated that all he did was “remain[] silent” upon Wilder's directive “after an investigation agreeing the children were safe in that environment at Mr. Payne's house.” Tr. at 61:8-12 (Court, Williams). According to Bucag, C. Payne's allegations against him entailed:

[A] failure to act, failure to tell Mr. Wilder, no, you're wrong. Mr. Payne, follow your custody agreement. Don't worry about the results of this investigation, but again that's why timing is so important. Mr. Bucag's first step in this[, ] he comes to Mr. Payne's home and corroborates a lot of information given from that tip. So if you look at his declaration, again, all he's agreeing is let me pull that up -- that during the visit was aware that Ms. Payne and Robert Payne had a joint custody agreement and that he had custody of the children at the time of my visit. I agreed with Deputy Wilder that it was in the children's best interests that they remain with the father during the pendency.

Tr. at 75:11-25 (Williams). Bucag also resisted the notion that his conduct resulted in a misinterpretation of Wilder's statement on R. Payne's behalf, and argued that, regardless what Wilder said about not letting C. Payne have the children, Wilder also said “you have a custody agreement.” Tr. at 76:12-77:15 (Court, Williams). Bucag further explained that it may be important for the Court to know that Wilder's directive came early in the investigation, at a time when there was a lot of uncertainty regarding C. Payne's fitness as a mother. See Tr. at 78:14-79:23 (Williams). C. Payne then responded, arguing that “I believe there is evidence in the record to suggest, as we are, that these actions were taken as a result of some type of meeting and collusion, or plan between CYFD and Wilder, ” and not simply quiet assent on Bucag's part. Tr. at 81:1-5 (Garcia). The Court then gave its inclination:

I'm inclined to grant both the motions for summary judgment, both of them, on clearly established [grounds]. I do want to go ahead and analyze whether there was a constitutional violation. So I probably will give you a pretty comprehensive opinion on that. Sometimes, when I sort out whether there is a constitutional violation, it helps me analyze the clearly established a little bit better. But I don't want to just skip to the clearly established. I want to do both prongs, make sure I have a comprehensive opinion so that I understand the rights here as well as possible.

Tr. at 83:3-15 (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).[16] 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 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) ...

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