United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT'S
MOTION TO DISMISS COUNTS IV AND V and DENYING DEFENDANT'S
MOTION TO DISMISS AS TO COUNT II
MATTER comes before the Court upon Defendant Amy Lauer's
Motion to Dismiss, or in the Alternative, Motion for Judgment
on the Pleadings to Dismiss Plaintiff's Claims for
Negligence, Violation of Constitutional and Civil Rights and
Intentional and Negligent Infliction of Emotional Distress,
filed on April 4, 2018 (Doc. 20). Having
reviewed the parties' pleadings and the applicable law,
the Court finds that Defendant's motion is well-taken as
to Counts IV and V and, therefore, is granted. However, the
motion is denied as to Count II.
has filed this action pursuant to Title IX, Title VII and
other federal statutory provisions alleging that she was
sexually assaulted by Defendant William Beems while she was a
student at Monte Vista Elementary approximately twenty years
ago. In this motion, Defendant Lauer moves to dismiss all of
Plaintiff's claims asserted against her under
Fed.R.Civ.P. 12(b)(6) or in the alternative, Rule 12(c). The
Complaint contains six counts:
Count I: Sexual Assault, Abuse and Battery against Defendant
Count II: Negligence and Premises Liability;
Count III: Vicarious Liability and Premises Liability;
Count IV: Negligent and Intentional Infliction of Emotional
Count V: Violations of Plaintiff's Due Process, Equal
Protection and Constitutional Rights (state and federal); and
Count VI: Outrage, Systemic Failure and Prima Facie Tort.
Lauer seeks dismissal of Counts II, IV and V under Fed.R.Civ.
P. 12(b)(6) or alternatively, Rule 12(c). As Defendant points
out, Plaintiff inaccurately characterizes Ms. Lauer's
motion as a Motion for Summary Judgment, confusing Rule 12(c)
with Rule 56. See Doc. 25 at 1, n.1 and at 3-5.
Plaintiff contends that because there are genuine issues of
fact, the Court should not dismiss any of Plaintiff's
claims, but she seems to overlook the fact that claims which
fail to meet the much lower threshold under Rule 12(b)(6) or
Rule 12(c) threshold may also be dismissed.
moves for dismissal of the state law claims in Count II
(Negligence and Premises Liability) and Count IV (Negligent
and Intentional Infliction of Emotional Distress) and for
Plaintiff's §1983 claims in Count V. However,
Plaintiff waives her claim for intentional or negligent
infliction of emotional distress in Count IV, agreeing with
Defendant that it is not an enumerated tort under the New
Mexico Tort Claims Act, and thus Count IV fails to state a
claim. See Doc. 28 at 21 and Doc. 31at 11; see
Romero v. Otero et al, 678 F.Supp. 1535, 1540 (D.N.M.
1987); Silva v. Town of Springer et al, 121 N.M.
428, 435 (Ct.App. 1996); see also Rall v. Hobbs Mun. Sch.
Dist., No. CIV 15-2 0518 RB/CG, 2016 WL 10588125, at *5
(D.N.M. Mar. 16, 2016) (“Plaintiffs do not point to a
waiver of immunity for their . . . intentional infliction of
emotional distress claim, nor can the Court find authority
for such a waiver.”). Plaintiff nevertheless contends
that Count IV should remain as an element of damages because
it is linked to the injury caused by conduct for which there
is no waiver, see Doc. 28 at 21, but this contention
has no merit as there is no legal basis for an award of
damages for a claim that does not exist. Plaintiff is not
precluded from seeking such damages if they are recoverable
through other causes of action. The Court therefore dismisses
Count IV under 12(b)(6).
has asserted the defense of qualified immunity, which shields
government officials from liability for civil damages
“insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a
reasonable person would have known.” Romero v.
Story, 672 F.3d 880 (10th Cir. 2012). Where an
individual defendant asserts qualified immunity, the burden
shifts and the plaintiff must come forward with sufficient
evidence to show (1) that the defendant violated a
constitutional or statutory right, and (2) that the right was
clearly established at the time of the conduct. See
McBeth v. Himes, 598 F.3d 708, 716 (10th Cir. 2010). A
court may consider these two inquiries in any order. See
Pearson v. Callahan, 555 U.S. 223, 236 (2009).
same two-part test for qualified immunity applies in the
context of a motion to dismiss. Leverington v. City of
Colorado Springs, 643 F.3d 719, 732 (10th Cir. 2011);
Colony Ins. Co. v. Burke, 698 F.3d 1222, 1228 (10th
Cir. 2012) (a motion filed under Federal Rule of Civil
Procedure 12(c) is evaluated under the same standard
applicable to motions filed under Rule 12(b)(6). Under Rule
12(b)(6), a complaint must contain sufficient factual matter,
accepted as true, to state a claim for relief that is
plausible on its face. Ashcroft v. Iqbal, 129 S.Ct.
1937, 1949 (2009) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). A court must accept
as true all well pleaded facts, as distinguished from
conclusory allegations, and those facts must be viewed in the
light most favorable to the non-moving party. Shero v.
City of Grove, Okl., 510 F.3d 1196, 1200 (10th Cir.
2007) (citing Twombly, 550 U.S. 544). The complaint must
plead sufficient facts, taken as true, to provide plausible
grounds that discovery will reveal evidence to support the
plaintiff's allegations. Id. A motion to dismiss
is properly granted when a complaint provides no “more
than labels and conclusions, and a formulaic recitation of
the elements of a cause of action.” Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007).
motion filed under Federal Rule of Civil Procedure 12(c) is
evaluated under the same standard applicable to motions filed
under Rule 12(b)(6). See Colony Ins. Co. v. Burke,
698 F.3d 1222, 1228 (10th Cir. 2012). In considering the
motion, the Court must “accept all facts pleaded by the
non-moving party as true and grant all reasonable inferences
from the pleadings in favor of the same.” Id.
Insufficiency of Allegations for §1983 Claims
Count V, Plaintiff asserts “Violations of
Plaintiff's Due Process, Equal Protection and
Constitutional Rights.” Defendant contends that
Plaintiff has not alleged any facts with respect to Ms.
Lauer's involvement in these federal claims and further,
has failed to identify in the complaint how she violated
Lack of Specificity Regarding §1983 Claims
complaint contains 212 numbered paragraphs with allegations
against Ms. Lauer and the various other Defendants in this
case, with 111 of those contained in Count V. Under the
Iqbal-Twombly standard, “it is
‘particularly important' that ‘the complaint
make clear exactly who is alleged to have done
what to whom, to provide each individual
with fair notice as to the basis of the claims against him or
her.'” Brown v. Montoya, 662 F.3d 1152,
1163 (10th Cir. 2011), cited in Rall v. Hobbs Mun. Sch.
Dist., No. CIV 15-0518 RB/CG, 2016 WL 10588125, at *5
(D.N.M. Mar. 16, 2016).
vast majority of the allegations relate solely to the conduct
of Defendant Beems. For example, the complaint alleges that
when Defendant Beems was a teacher at Monte Vista Elementary
School (“Monte Vista”) between 1998 and 2003, he
“made Plaintiff sit on his lap or close to him while he
fondled, groped, petted, and touched her in sexually explicit
ways in intimately private areas.” Compl., ¶108.
Other allegations refer to the Defendants collectively, for
“Defendants permitted a regime of physical conduct of a
sexual nature by William Beems in violation of the
Plaintiff's rights.” Compl., ¶139;
“Defendants, APS and OEOS [Office of Equal Opportunity
Services], Jane and John Doe defendants breached their duties
and failed to protect Plaintiff's rights from the ...