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Gallegos v. Bernalillo County Board of County Commissioners

United States District Court, D. New Mexico

September 30, 2017

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

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

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

          Debra J. Moulton Deborah D. Wells Kennedy, Moulton & Wells P.C. Albuquerque, New Mexico Attorneys for Defendant New Mexico Department of Corrections

          MEMORANDUM OPINION AND ORDER

         THIS MATTER comes before the Court on Defendant Bernalillo County Board of County Commissioners' (“Bernalillo County”) Motion to Dismiss, filed January 6, 2017 (Doc. 45)(“Motion”). The Court held a hearing on June 2, 2017. The primary issues are: (i) whether the Defendant Bernalillo County Board of County Commissioners' Motion under rule 12(b)(6) of the Federal Rules of Civil Procedure should be converted into one for summary judgment, because Bernalillo County attached documents to its Motion outside of the pleadings; (ii) whether Bernalillo County enjoys quasi-judicial immunity from damages, because of its reliance on court orders; (iii) whether Bernalillo County is liable for Plaintiff Martin Gallegos' federal constitutional claim of deliberate indifference under 42 U.S.C. § 1983; (iv) whether Gallegos met the notice requirement under the New Mexico Tort Claims Act (“NMTCA”) by giving Bernalillo County either written or actual notice of his claims; and (v) whether there is a waiver of immunity under the NMTCA for claims against Bernalillo County. The Court concludes that: (i) Bernalillo County's Motion should not be converted into one for summary judgment, because its attached documents fit an exception to the rule that the Court may only consider the pleadings; (ii) Bernalillo County does not enjoy quasi-judicial immunity from damages, because that doctrine applies to people, not counties; (iii) Bernalillo County is not liable for Gallegos' federal constitutional claims, because Bernalillo County is not vicariously liable under § 1983; and (iv) Gallegos did not meet the NMTCA notice requirement, because Bernalillo County did not have written or actual notice of Gallegos' claims. Because the notice requirement is jurisdictional, the Court will not address whether there is a waiver of immunity. Accordingly, the Court grants the Motion to Dismiss.

         FACTUAL BACKGROUND

         The Court draws its facts from Gallegos' Amended Complaint, filed February 1, 2016, in Gallegos v. Bernalillo Cty. Bd. of Comm'rs, No. CIV 15-6829 (Second Judicial District Court, County of Bernalillo, State of New Mexico), filed in federal court February 22, 2016 (D.N.M. Doc. 1-2). While the Court does not adopt Gallegos' factual allegations, the Court nonetheless accepts them as true for the limited purpose of deciding the Motion. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)(“Iqbal”)(clarifying the “tenet that a court must accept as true all of the [factual] allegations contained in a complaint”)(alteration added)(citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)); Archuleta v. Wagner, 523 F.3d 1278, 1283 (10th Cir. 2008)(concluding that, in the motion to dismiss posture, a court must “accept as true all well-pleaded facts, as distinguished from conclusory allegations”).

         With that understanding of the allegations, Gallegos is a prisoner at Roswell Correctional Facility in Chaves County, New Mexico. See Amended Complaint ¶ 1, at 1. On or about November 6, 2014, the Second Judicial District Court, County of Bernalillo, State of New Mexico, issued an order remanding Gallegos to the Bernalillo County Metropolitan Detention Center's custody (“BCMDC”). See Amended Complaint ¶ 5, at 2. This order was to remain in effect for six weeks, while Gallegos participated in a methadone program at BCMDC “to decrease his level of dependence so that . . . Gallegos would not incur life endangering withdrawals symptoms.” Amended Complaint ¶ 5, at 2. (Gallegos subsequently refers to this order as a titration[1] order. See Plaintiff's Response to Defendant Bernalillo County Board of Commissioners Motion to Dismiss at 1, filed January 30, 2017 (Doc. 52)(“Response”)). Approximately six days after the state court remanded Gallegos to BCMDC's custody, he was transferred to Defendant New Mexico Department of Corrections. See Amended Complaint ¶ 6-7, at 2. BCMDC and the New Mexico Corrections Department ignored the remand order to BCMDC. See Amended Complaint ¶¶ 6-7, at 2. Defendants John Does one through five are employees of either the New Mexico Corrections Department or BCMDC, ignored the remand order, and acted with “deliberate indifference” by doing so. Amended Complaint ¶¶ 12, 15, 16, at 3. At the Central New Mexico Correctional Facility, Gallegos “suffered life threatening withdrawal symptoms for almost two (2) months.” Amended Complaint ¶ 7, at 2.

         PROCEDURAL BACKGROUND

         Gallegos filed this lawsuit in state district court on August 27, 2015. See Complaint, Gallegos v. Bernalillo Cnty. Bd. of Comm'rs, No. CIV 15-06829, (Tort)(filed in Second Judicial District Court, County of Bernalillo, State of New Mexico August 27, 2015), filed in federal court February 22, 2016 (Doc. 1-1). In the Complaint, Gallegos asserts claims against Bernalillo County, BCMDC, the New Mexico Corrections Department, and John Does 1 through 5, for a violation of § 41-4-12 of the NMTCA. See Complaint ¶ 1, at 1. Gallegos then filed the Amended Complaint, adding a federal claim. See Amended Complaint ¶¶ 1-19, at 1-4. In the Amended Complaint, Gallegos asserts claims against Bernalillo County, BCMDC, the New Mexico Corrections Department, and John Does 1 through 5, for (i) violations of NMTCA § 41-4-12, see Amended Complaint ¶¶ 8-17, at 2-4; and (ii) violations of Gallegos' rights guaranteed under the Eighth and Fourteenth Amendments to the Constitution of the United States of America, see Amended Complaint ¶ 18, at 4. Gallegos seeks “compensatory damages in a yet undetermined amount jointly and severally against all Defendants, ” and attorney fees. Amended Complaint ¶ 20, at 4. Within thirty days of receipt of the Amended Complaint, Bernalillo County and BCMDC removed the lawsuit to federal court pursuant to 28 U.S.C. § 1446(b)(3). See Notice of Removal at 1, filed February 22, 2016 (Doc. 1).

         1. The Motion.

         Bernalillo County moves the Court, pursuant to rule 12(b)(6), to dismiss Gallegos' claims against Bernalillo County. See Motion at 1. In the Motion, Bernalillo County argues that it enjoys “absolute quasi-judicial immunity for [its] reliance on a facially valid court order.” Motion at 4. Bernalillo County asserts that “‘official[s] charged with the duty of executing a facially valid court order enjoy absolute immunity from liability for damages in a suit challenging conduct prescribed by that order.'” Motion at 4 (quoting Turney v. O'Toole, 898 F.2d 1470, 1472 (10th Cir. 1990)(“Turney”)). Bernalillo County explains that ‘“it is simply unfair to spare the judges [who have absolute judicial immunity and] who give orders while punishing the officers who obey them.'” Motion at 4 (quoting Valdez v. City & Cty. Of Denver, 878 F.2d 1285, 1289 (10th Cir. 1989)(“Valdez”)). Bernalillo County then explains that a state district court issued a series of orders that sentenced Gallegos to the New Mexico Corrections Department's custody. See Motion at 5-6. Bernalillo County attached these orders to its Motion. See Motion at 5-6. Bernalillo County then argues that it transferred Gallegos to the New Mexico Corrections Department “in accordance with the Orders.” Motion at 6. Further, Bernalillo County argues, “[a]ll of these Orders were approved and signed by Plaintiff's court-appointed attorney(s).” Motion at 6.

         Bernalillo County then argues that the state district court's orders were facially valid. See Motion at 6. Specifically, it asserts that, “‘even assuming that an order is infirm as a matter of state law, it may be facially valid, as ‘facially valid' does not mean ‘lawful, ' and erroneous orders can be valid.'” Motion at 6 (quoting Turney, 898 F.2d at 1473). Bernalillo County contends that “there is no question that the Orders . . . were in fact valid.” Motion at 6. Bernalillo County then notes that “‘[t]he proper procedure for a party who wishes to contest the legality of a court order enforcing a judgment is to appeal that order and the underlying judgment, not to sue the official responsible for its execution.'” Motion at 7 (quoting Valdez, 878 F.2d at 1289-90). Bernalillo County asserts that Gallegos did not appeal the orders at issue, which “would have been the appropriate means of relief” rather than suing Bernalillo County. Motion at 7.

         Bernalillo County next argues that “there is no vicarious liability for Plaintiff's constitutional claims against [Bernalillo County].” Motion at 7. Bernalillo County asserts that 42 U.S.C. § 1983 “‘rejects the tort principle of respondeat superior and does not subject [governmental agencies] to vicarious liability for the acts of their employees.'” Motion at 7 (quoting Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690-95 (1978)). Specifically, Bernalillo County contends, “‘[b]ecause vicarious liability is inapplicable to . . . §1983 suits, a plaintiff must plead each government-official defendant, through the official's own individual actions, has violated the Constitution.”' Motion at 8 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009)). Accordingly, Bernalillo County concludes that the “Plaintiff cannot bring claims against [Bernalillo County] . . . solely because they supervised . . . detention officers under a vicarious liability theory.” Motion at 8.

         Bernalillo County further argues that “supervisors are not liable under 42 U.S.C. § 1983 unless there is ‘an affirmative link . . . between the constitutional deprivation and either the supervisor's personal participation, [] exercise of control or direction, or [] failure to supervise.'” Motion at 9 (quoting Gallagher v. Shelton, 587 F.3d 1063, 1069 (10th Cir. 2009)(citation omitted)). Bernalillo, the County argues, Gallegos does not plead “any alleged unconstitutional or illegal policies, nor violations of a specific Bernalillo County policy.” Motion at 9. According to Bernalillo County, Gallegos' factual allegations are “instead solely based upon the alleged conduct of unidentified [guards].” Motion at 9. Accordingly, Bernalillo County concludes that the Court should dismiss Gallegos' § 1983 claims against Bernalillo County. Motion at 15.

         Bernalillo County next argues that the Court should dismiss Gallegos' tort claims because no waiver of immunity applies under the NMTCA. See Motion at 10. Bernalillo County posits that “[s]ection 41-4-4 of the Tort Claims Act grants a governmental entity and any public employee acting within the scope of duty immunity from liability for any tort except as waived elsewhere in the [NM]TCA.” Motion at 10. Bernalillo County continues that “there is no waiver of tort immunity for negligence, standing alone.” Motion at 10 (citing Lessen v. City of Albuquerque, 2008-NMCA-085, 187, ¶ 35, 187 P.3d 179, 186). Bernalillo County thus concludes that, “to the extent Plaintiff is making a stand-alone claim of ‘negligence' against [Bernalillo County], the holding in Lessen dictates there is no waiver of immunity for a general negligence claim and any such claim should be dismissed.” Motion at 11.

         Bernalillo County adds that the Court should also dismiss any claim for “medical negligence.” Motion at 11. Bernalillo County reasons that “there is no specific waiver of immunity to be found in the [NM]TCA for medical negligence that would apply to these Defendants.” Motion at 11. Bernalillo County accordingly concludes that the Court should dismiss any claims against it for negligence or “medical negligence.” Motion at 12.

         Finally, Bernalillo County argues that the Court lacks jurisdiction over the NMTCA claims, because the “Plaintiff failed to provide notice of his claims to [Bernalillo County], as required under the [NMTCA].” Motion at 12. Specifically, Bernalillo County asserts that, under the NMTCA, “all potential claimants must submit written notice to the local governmental entity within ninety days after the occurrence giving rise to the claim(s) ‘for which immunity has been waived under the Tort Claims Act.'” Motion at 12 (quoting N.M. Stat. Ann § 41-4-16(A)). Bernalillo County argues that “it is undisputed that Plaintiff failed to provide written notice to [Bernalillo County] within ninety days after the occurrence giving rise to the claim(s).” Motion at 12.

         Bernalillo County then contends that “‘no court shall have jurisdiction to consider any suit or action against the state or any local public body unless notice has been given as required by this section, or unless the governmental entity had actual notice of the occurrence.'” Motion at 13 (quoting N.M. Stat. Ann. § 41-4-16(B)). Bernalillo County explains that, because Gallegos concedes that he did not provide written notice to Bernalillo County, the Court has jurisdiction over the tort claims only if Bernalillo County had actual notice of them. See Motion at 14. Bernalillo County contends that it did not have actual notice. See Motion at 14. Specifically, Bernalillo County argues that, even if Gallegos showed BCMDC employees a copy of one of the court orders and told them “he was going to speak to his attorney about it, these actions, in and of themselves are insufficient as a matter of law to alert [Bernalillo County] of the likelihood of a lawsuit.” Motion at 14 ((citing Herald v. Bd. of Regents of Univ. of New Mexico, 2015-NMCA-104, ¶ 51, 357 P.3d 438, 449; Dutton v. McKinley Cty. Bd. of Comm'rs, 1991-NMCA-130, ¶ 9, 822 P.2d 1134, 1136(“Dutton”))(stating that actual knowledge of a plaintiff's alleged injury is not equivalent to “actual notice” of the likelihood of ensuing litigation and is therefore insufficient to comply with N.M. Stat. Ann. § 41-4-16)). Bernalillo County concludes that, because Gallegos did not comply with the NMTCA notice provision, the Court has no jurisdiction to consider Gallegos' NMTCA claims against Bernalillo County. Motion at 14-15.

          For these reasons, Bernalillo County argues, the Court should dismiss Gallegos' claims against Bernalillo County. See Motion at 15. Bernalillo County concedes that, if the Court grants the Motion, “it would have no impact on Plaintiff's claims against remaining Defendant New Mexico Department of Corrections.” Motion at 15.

         2. The Response.

         Gallegos responds to the Motion. See Response at 1. In the Response, Gallegos briefly asserts that, because the Motion contains attachments outside of the pleadings, it is not a motion to dismiss, but rather, a motion for summary judgment. Response at 6. Gallegos also attaches exhibits, including depositions, to his Response. See Response at 2-5.

         Gallegos does not directly respond to the legal aspects of the Motion's quasi-judicial immunity argument. See Response at 6-9. Rather, Gallegos gives an extensive discussion of the attached deposition transcripts, and argues that “this is not a case of Defendants relying on a facially valid order when none of the actual participants raise such a claim and the supervisors involved all indicate what should happen if someone raises those claims.” Motion at 9. Specifically, he notes that “Mr. Gallegos claims he complained about the titration order not being followed and showed the order to a number of parties including . . . corrections officers, who all denied that he did that.” Response at 7. He then discusses the deposition of the County Records Supervisor, Alexis Iverson, who indicated that corrections officers should not ignore the titration order: “[W]hat they were supposed to do was bring it to records and she said she then would recommend they leave him until they can get further clearance and not transfer him.” Response at 7. From these facts, Gallegos concludes “this is not a case of Defendants relying on a facially valid order when none of the actual participants raise such a claim and the supervisors involved all indicate what should happen if someone raises those claims.” Response at 9.

         Regarding the Motion's vicarious liability arguments, Gallegos does not directly respond to the Motion's legal arguments, but, rather, explains that Gallegos “has been seeking to name specific supervisors and parties (John Does 1-5) involved in this case and people who actually participated in the denial of Plaintiff's rights.” Response at 9. Gallegos asserts that “the Plaintiff is only now in a position to file an amended complaint and actually name the specific supervisors and parties who are or could be liable under § 1983.” Response at 10. Gallegos concludes that “the court should allow additional amendments to add specific parties since these depositions were taken and transcribed less than a week ago.” Response at 10.

         Responding to the Motion's assertion of immunity under the NMTCA, Gallegos argues that “[t]he New Mexico Supreme Court has interpreted the phrase ‘operation and maintenance' in NMSA 41-4-6 broadly and it is not limited in its applicability strictly to defects in a physical building.” Response at 10 (citing Upton v. Clovis Mun. Sch. Dist., 2005-NMCA-085, ¶ 6, 115 P.3d 795, 796-97, rev'd 2006-NMSC-040, 141 P.3d 1259). Gallegos asserts that this case involves a methadone maintenance program covering approximately 141 individuals, and that the case involves the operation of BCMDC, a building. Response at 11. Gallegos concludes that these facts come within a waiver of sovereign immunity. See Response at 11.

         Finally, addressing the Motion's notice defense, Gallegos contends that he provided the required notice under the NMTCA. See Response at 11. Gallegos argues that he “showed a court order to officers Kline and King indicating that he was being wrongfully taken away and subject to life threatening withdrawal symptoms.” Response at 11. Gallegos concludes that because the notice “involved a court order it would be impossible for anyone to think that no litigation would ensue when a court order was violated.” Response at 11-12. Gallegos further contends that “the notice requirement under the [NM]TCA was certainly met when the Plaintiff attempted to reasonably alert the agency of the necessity of investigating the merits of a potential claim against it.” Response at 12. Gallegos also notes that he “contacted his attorney and that attorney called not only the Department of Corrections Chief Legal Officer [but] also called ‘medical' at [BCMDC].” Response at 12. From these facts, Gallegos concludes that “it would be nonsensical when an attorney called [the defendant] with regard to this issue that [the defendant] would not believe litigation was intended.” Response at 12. Finally, Gallegos also contends that he “did send a letter within the 90 day period, a written tort claim notice to the State Risk Management, ” to fulfill the NMTCA notice requirement. Response at 12. Gallegos thus concludes that the Court should deny the Motion to Dismiss. See Response at 12. He also asks the Court to allow him to file an amended complaint “naming specific individuals to proceed with his § 1983 claim.” Response at 12.

         3. The Reply.

         Bernalillo County replied to Gallegos' arguments. See Reply to Plaintiff's Response to Defendant Bernalillo County Board of Commissioners' Motion to Dismiss at 1, filed February 3, 2017 (Doc. 54)(“Reply”). Bernalillo County argues that the Response's attempt to convert the Motion into one for summary judgment is misplaced. See Reply at 1-2. Specifically, Bernalillo County posits that, “‘[w]hen ruling on a 12(b)(6) motion, the district court must examine only the plaintiff's complaint [and] determine if the complaint alone is sufficient to state a claim; the district court cannot review matters outside of the complaint.”' Reply at 2 (quoting Carter v. Daniels, 91 F. App'x 83, 85 (10th Cir. 2004)(unpublished)).[2] Bernalillo County then notes that three exceptions to this rule exist. See Reply at 2. According to Bernalillo County, the first exception is “documents that the complaint incorporates by reference.” Reply at 2 (citing Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007)). The second exception, according to Bernalillo County, is “‘documents referred to in the complaint if the documents are central to the plaintiff's claim and the parties do not dispute the documents' authenticity.”' Reply at 2 (quoting Jacobsen v. Deseret Book Co., 287 F.3d 936, 941 (10th Cir. 2002)). Finally, according to Bernalillo County, the third exception is documents subject to judicial notice. See Reply at 2 n.1 (citing Rose v. Utah State Bar, 471 F. App'x 818, 820 (10th Cir. 2012)(unpublished). Bernalillo County argues that all of the exhibits attached to its Motion are state district court orders, and are central to Gallegos' claims, and that no dispute exists regarding their authenticity. See Reply at 2. Bernalillo County therefore concludes that its exhibits do not convert its Motion to Dismiss into one for summary judgment. See Reply at 2. The County also briefly asks the Court to disregard the exhibits attached to Gallegos' Response, arguing that none of Gallegos' exhibits fit one of the exceptions to the rule that the Court “may not look at documents outside of the Complaint or Amended Complaint when deciding a motion to dismiss.” Reply at 3.

         Regarding quasi-judicial immunity, Bernalillo County argues that Gallegos does not dispute Bernalillo County's immunity, and that the “Plaintiff fails to cite a single legal authority as to why these Defendants would not be entitled to absolute quasi-judicial immunity.” Reply at 3. Bernalillo County then reasserts its quasi-judicial immunity arguments. Reply at 3. Specifically, Bernalillo County argues that, for it to be immune, “‘the judge issuing the disputed order must be immune from liability in his or her own right, the officials executing the order must act within the scope of their jurisdiction, and the officials must only act as prescribed by the order in question.'” Reply at 3 (quoting Moss v. Kopp, 559 F.3d 1155, 1163 (10th Cir. 2009)(“Moss”)). According to Bernalillo County, “[t]he order must be ‘facially valid.'” Reply at 3 (quoting Moss, 559 F.3d at 1164). Bernalillo County then asserts that it performed its transfer of Gallegos to the New Mexico Corrections Department in accordance with facially valid court orders. Reply at 4. Bernalillo County also notes that Gallegos does not contest whether the court orders were facially valid. See Reply at 4. Bernalillo County concludes that it is thus entitled to quasi-judicial immunity. See Reply at 5.

         Next, Bernalillo County argues that “there is no legal basis for Plaintiff's constitutional claims against [Bernalillo County].” Reply at 5. Specifically, it argues that a government agency “‘may be held liable under § 1983 only for its own unconstitutional or illegal policies and not for the tortious acts of its employees.”' Reply at 5 (quoting Lopez v. LeMaster, 172 F.3d 756, 762-63 (10th Cir. 1999)). Bernalillo County concludes that, because Gallegos “does not plead any alleged unconstitutional or illegal policies, nor violations of a specific Bernalillo County policy, ” the County cannot be liable under § 1983. Reply at 5.

         Bernalillo County next reasserts its argument that no waiver of immunity under the NMTCA exists for Gallegos' state law tort claims. See Reply at 6. It argues that the “Plaintiff's assertion of § 41-4-6 as the basis for the alleged waiver of immunity is unsupported.” Reply at 6. Bernalillo County posits that Gallegos' reliance on Espinoza v. Town of Taos, 1995-NMSC-070, 905 P.2d 718, “for the proposition that § 41-4-6 waives liability in the instant matter” is misplaced. Reply at 6. Specifically, Bernalillo County asserts that, because Espinoza v. Town of Taos concluded that there was no waiver of tort immunity in that case, the case does not support Gallegos' claim. See Reply at 7 (citing Espinoza v. Town of Taos, 1995-NMSC-070, ¶ 16, 905 P.2d at 722).

         Bernalillo County then argues that Gallegos' reliance on Upton v. Clovis Mun. Sch. Dist. is inappropriate. See Reply at 7 (citing Upton v. Clovis Mun. Sch. Dist., 2005-NMCA-085, 115 P.3d 795). Instead, the County contends that this case is more analogous to Lessen v. City Albuquerque. Reply at 7 (citing Lessen v. City of Albuquerque, 2008-NMCA-085, ¶ 1, 187 P.3d 179, 180)(“Lessen”). Specifically, the County argues that Lessen involved “‘a single discrete administrative decision affecting only a single person, as opposed to a dangerous condition affecting the general public.'” Reply at 7 (quoting Lessen, 2008-NMCA-085, ¶ 27, 187 P.3d at 184). According to Bernalillo County, because of these facts, “[t]he New Mexico Court of Appeals rejected the Lessen plaintiff's assertion of § 41-4-6 as a basis for waiver of liability.” Reply at 8 (citing Lessen, 2008-NMCA-085, ¶ 27, 187 P.3d at 184-85). According to Bernalillo County, because this case affects only Gallegos and not “all similarly situated inmates, ” the reasoning of Lessen should apply. Reply at 8. For this reason, Bernalillo County concludes that Gallegos does not have a claim under § 41-4-6. See Reply at 8.

         Bernalillo County also briefly notes that, “by way of omission, Plaintiff concedes in his Response that he is not making a TCA claim based upon alleged ‘medical negligence' against these defendants under NMSA §§ 41-4-9 and 41-4-10.” Reply at 8. Bernalillo County also contends that, regardless, “those provisions would not apply to [Bernalillo County] because [it] is not a ‘medical facilit[y]' or [a] ‘health care provider[].'” Reply at 8. Bernalillo County concludes that the Court should dismiss Gallegos' NMTCA claims, because no wavier of immunity exists.

         Finally, Bernalillo County responds to Gallegos' “actual notice” arguments. Reply at 8. Specifically, Bernalillo County alleges that Gallegos' pleadings regarding actual notice do not meet the pleading threshold under Ashcroft v. Iqbal, 556 U.S. 662 (2009) and Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). See Reply at 9. Bernalillo County contends that Gallegos does not plead with whom he communicated his notice “nor any other circumstances of the alleged verbal statement(s).” Reply at 8. Bernalillo County also asserts that Gallegos “fails to plead that he communicated to [Bernalillo County] that there existed a likelihood that litigation may ensue.” Reply at 8 (citing City of Las Cruces v. Garcia, 1984-NMSC-106, ¶ 5, 690 P.2d 1019, 1021). Because of Gallegos' alleged lack of actual notice, Bernalillo County concludes that the Court should dismiss Gallegos' NMTCA claims. See Reply at 9. In conclusion, Bernalillo County asks the Court to grant the Motion to Dismiss. See Reply at 9.

         4. The Hearing.

         The Court held a motion hearing on June 2, 2017. See Draft Transcript of Motion Proceeding at 1:9-13 (taken June 2, 2017)(Court)(“Tr.”).[3] The Court began by stating: “It doesn't seem to me that there is a waiver of the New Mexico sovereign immunity of the Tort Claims Act . . . for the County.” Tr. at 3:2-4 (Court). The Court added: “I'm inclined to grant the motion.” Tr. at 5:10 (Court).

         Bernalillo County began by implying that it did not want its Motion to Dismiss converted into a Motion for Summary Judgment. See Tr. at 5:23-24 (Quiñones). The Court stated that, “if you don't want it converted, I think [that] sort of should be able to control.” Tr. at 6:1-2 (Court). The Court continued that it would “probably not consider all the materials that everybody had submitted. Although I didn't have a problem with the ones that you submitted.” Tr. at 6:7-10 (Court).

         Regarding quasi-judicial immunity, the County noted that its exhibits “are facially valid court orders. There is no question about that, plaintiff does not contest that.” Tr. at 7:16-18 (Quiñones). Bernalillo County continued: “[A]nd they were all signed by the same district judge and also signed by Mr. Gallegos' public defender attorneys.” Tr. 7:18-20 (Quiñones). Bernalillo County added: “Plaintiff is arguing a state official can and should pick and choose which Court orders to follow.” Tr. at 7:23-25 (Quiñones). Instead, Bernalillo County argued: “Proper procedure for contesting the legality of a Court order . . . would be to appeal that order.” Tr. at 10:5-7 (Quiñones).

         Gallegos began his argument. See Tr. at 18:22 (Lawless). Regarding the negligence claim under § 41-4-6, Gallegos argued that “negligence comes in here, Judge, because assuming I have a policy in place and I'm a corrections officer and the policy is designed to cover a large number of people who are actually at MDC, it protects all inmates that are similarly situated.” Tr. at 29:9-14 (Lawless). Gallegos continued: “[B]ut if I negligently fail to follow the policy that seems to me to be a violation of the operation and maintenance clause, because we're talking about negligence.” Tr. at 29:14-17 (Lawless). The Court then restated that it was inclined to grant the Motion to Dismiss. See Tr. at 30:14-15 (Court).

         LAW REGARDING RULE(12)(b)(6)

         Rule 12(b)(6) authorizes a court to dismiss a complaint for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). “The nature of a Rule 12(b)(6) motion tests the sufficiency of the allegations within the four corners of the complaint after taking those allegations as true.” Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir. 1994). A complaint's sufficiency is a question of law, and, when considering a rule 12(b)(6) motion, a court must accept as true all well-pleaded factual allegations in the complaint, view those allegations in the light most favorable to the non-moving party, and draw all reasonable inferences in the plaintiff's favor. See Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007)(“[O]nly if a reasonable person could not draw . . . an inference [of plausibility] from the alleged facts would the defendant prevail on a motion to dismiss.”); Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009)(“[F]or purposes of resolving a Rule 12(b)(6) motion, we accept as true all well-pleaded factual allegations in a complaint and view these allegations in the light most favorable to the plaintiff.”)(quoting Moore v. Guthrie, 438 F.3d 1036, 1039 (10th Cir. 2006)).

         A complaint need not set forth detailed factual allegations, yet a “pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action” is insufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)(citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. at 678. “Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Bell Atl. Corp v. Twombly, 550 U.S. at 555 (citation omitted).

         To survive a motion to dismiss, a plaintiff's complaint must contain sufficient facts that, if assumed to be true, state a claim to relief that is plausible on its face. See Bell Atl. Corp. v. Twombly, 550 U.S. at 570; Mink v. Knox, 613 F.3d 995, 1000 (10th Cir. 2010). “A claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. at 678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. at 556). “Thus, the mere metaphysical possibility that some plaintiff could prove some set of facts in support of the pleaded claims is insufficient; the complainant must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims.” Ridge at Red Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007)(emphasis omitted). The United States Court of Appeals for the Tenth Circuit stated:

“[P]lausibility” in this context must refer to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs “have not nudged their claims across the line from conceivable to plausible.” The allegations must be enough that, if assumed to be true, the plaintiff plausibly (not just speculatively) has a claim for relief.

Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008)(quoting Bell Atl. Corp. v. Twombly, 550 U.S. at 570)(internal citations omitted).

         LAW REGARDING RULE 12(b)(1)

         “Federal courts are courts of limited jurisdiction; they are empowered to hear only those cases authorized and defined in the Constitution which have been entrusted to them under a jurisdictional grant by Congress.” Henry v. Office of Thrift Supervision, 43 F.3d 507, 511 (10th Cir. 1994)(citations omitted). A plaintiff generally bears the burden of demonstrating the court's jurisdiction to hear his or her claims. See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 104 (1998)(“[T]he party invoking federal jurisdiction bears the burden of establishing its existence.”). Rule 12(b)(1) allows a party to raise the defense of the court's “lack of jurisdiction over the subject matter” by motion. Fed.R.Civ.P. 12(b)(1). The Tenth Circuit has held that motions to dismiss for lack of subject-matter jurisdiction “generally take one of two forms: (1) a facial attack ...


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