United States District Court, D. New Mexico
Stephen F. Lawless Grisham & Lawless, P.A. Albuquerque,
New Mexico Attorneys for the Plaintiff
M. Quiñones Quiñones Law Firm Santa Fe, New
Mexico Attorneys for Defendants Bernalillo County Board of
County Commissioners and Bernalillo County Metropolitan
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
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.
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
“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”).
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 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
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
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.
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
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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)). 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
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.
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.
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).
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.
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.
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.
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.”). 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).
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).
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).
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).
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)).
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).
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
“[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
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).
REGARDING RULE 12(b)(1)
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