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, Bernalillo County Metropolitan
Detention Center, Clyde Kline, and Jovonne King
J. Moulton Deborah D. Wells Kennedy, Moulton & Wells P.C.
Albuquerque, New Mexico Attorneys for Defendant New Mexico
MEMORANDUM OPINION AND ORDER 
MATTER comes before the Court on: (i) the
Plaintiff's Motion to File a Second Amended Complaint,
filed February 17, 2017 (Doc. 58)(“Motion”); and
(ii) Defendants Kline's and King's Motion for Summary
Judgment on the Basis of Qualified Immunity and Other
Grounds, and Supporting Memorandum, filed October 18, 2017
(Doc. 90)(“MSJ”). The Court held a hearing
regarding the Motion on June 2, 2017 and held a hearing
regarding the MSJ on June 12, 2018. The primary issues are:
(i) whether the Court should permit Plaintiff Martin Gallegos
to file a Second Amended Complaint adding Bernalillo County
Metropolitan Detention Center Corrections Officers Clyde
Kline and Jovonne King as Defendants, because Gallegos was in
jail and could not adequately work with his attorney to
timely identify Kline and King; (ii) whether Kline and King
acted with deliberate indifference in violation of the Eighth
Amendment of the Constitution of the United States of
America, because they disregarded Gallegos' court order
providing him with medical treatment; and (iii) whether Kline
and King are entitled to qualified immunity vis-a-vis
Gallegos' deliberate indifference claim. The Court
concludes that: (i) Gallegos may amend his complaint, because
he has shown good cause by demonstrating that he was in jail
and could not adequately work with his attorney to timely
identify Kline and King; (ii) Kline and King did not act with
deliberate indifference; and (iii) Kline and King are
entitled to qualified immunity, because Gallegos has not met
his burden of demonstrating that his asserted right is
clearly established. Accordingly, the Court will grant the
MSJ and grant the Motion in part.
Court draws the factual background from the parties'
assertions of undisputed material facts in their summary
judgment motion papers. See MSJ ¶¶ 1-41,
at 2-7; Plaintiff's Response to Defendants Kline's
and King's Motion for Summary Judgment on the Basis of
Qualified Immunity and Other Grounds ¶¶ 1-17, at
1-7, filed November 1, 2017 (Doc. 92)(“MSJ
Response”); Reply to Plaintiff's Response to
Defendants Kline's and King's Motion for Summary
Judgment on the Basis of Qualified Immunity and Other Grounds
at 2-3, filed November 24, 2017 (Doc. 94)(“MSJ
is a former inmate at the Bernalillo County Metropolitan
Detention Center (“MDC”) and was detained there
until November 12, 2014. See MSJ ¶ 1, at 2
(asserting this fact)(citing Inmate Release Form at 1, filed
October 18, 2017 (Doc. 90-1)(“Release Form”));
MSJ Response ¶ 1, at 1 (admitting this fact). On
November 6, 2014, a state district judge remanded Gallegos to
MDC and ordered that Gallegos remain there until
‘“his level of methadone treatment has reached a
point where [he] will not incur life-endangering withdrawal
symptoms upon transfer to the Department of
Corrections.'” MSJ ¶ 2, at 3 (asserting this
fact)(quoting Order Remanding Defendant to Metropolitan
Detention Center at 2, filed November 6, 2014, in State
of New Mexico v. Martin Gallegos, Nos. CR 14-4787, CR
13-5315 (Second Judicial District Court, County of
Bernalillo, State of New Mexico), filed in federal court
October 18, 2017 (Doc. 90-2)(“Methadone Order”).
See MSJ Response ¶ 1, at 1 (admitting this
fact). The Methadone Order was to remain in effect
‘“for six weeks maximum [before Gallegos] will be
transported to Department of Corrections.'” MSJ
¶ 2, at 3 (asserting this fact)(quoting Methadone Order
at 2)(alteration added). See MSJ Response ¶ 1,
at 1 (admitting this fact). Essentially, the Methadone Order
provided that Gallegos would be titrateddown from his
current dosage of methadone over a six-week period at MDC
before being transferred to the Corrections Department, so
that he would not endure severe withdrawal systems associated
with immediately stopping methadone. See MSJ
Response ¶ 8, at 3-4 (asserting this
fact). Gallegos uses methadone to control pain
that he has experienced since age thirteen, when he was
injured in an electrical accident and lost half of his right
arm. See MSJ Response ¶ 11, at 4-5 (asserting
this fact); Deposition of Martin Gallegos at 90:17-22 (taken
January 18, 2017), filed November 1, 2017 (Doc.
the Corrections Department, MDC maintains a methadone
program, which has existed since at least 2013 and is
administered through the Recovery Services Company of New
Mexico. See MSJ Response ¶ 9, at 4 (asserting
this fact)(citing Administrative Meeting Agenda at 1 (dated
December 10, 2013), filed November 1, 2017 (Doc.
92-1)). Methadone orders are common at MDC, and
MDC has received these orders for many years and typically
sends them to Recovery Services. See MSJ Response
10, at 4 (asserting this fact); Deposition of Alexis Iverson
at 7:1-8:25 (taken January 20, 2017), filed November 1, 2017
(Doc. 92-4)(“Iverson Depo”).
is an MDC Corrections Officer who assists in releasing MDC
detainees or transferring them to other prisons. See
MSJ ¶ 4, at 3 (asserting this fact)(citing Deposition of
Clyde Kline at 3:9-25 (taken December 7, 2016), filed October
18, 2017 (Doc. 90-7)(“Kline
Depo.”). Kline sees MDC detainees only when they
are getting ready to leave MDC. See MSJ ¶ 5, at
4 (asserting this fact)(citing Kline Depo. at 5:17-6:1); MSJ
Response ¶ 2, at 2 (admitting this fact). When MDC
detainees leave the facility, they are removed from their
cells by rovers --MDC officers on another shift -- and taken
to a cell near Kline's office. See MSJ ¶ 6,
at 4 (asserting this fact)(citing Kline Depo. at 6-7); MSJ
Response ¶ 2, at 2 (admitting this fact). The detainees
then await sheriff's deputies, who transport them to
prisons. See MSJ ¶ 7, at 4 (asserting this
fact)(citing Kline Depo. at 6:5-10); MSJ Response ¶ 2,
at 2 (admitting this fact). Kline checks paperwork to verify
that each detainee being transported is the correct
individual before the sheriff's deputies take them.
See MSJ ¶ 8, at 4 (asserting this fact)(citing
Kline Depo. at 15:6-12); MSJ Response ¶ 2, at 2
(admitting this fact). By the time Kline verifies the
detainees' identities, the detainees “‘have
already gotten all of their property and everything is done
and they are just sitting in there waiting to
leave.'” MSJ ¶ 9, at 4 (asserting this
fact)(quoting Kline Depo. at 7:6-8). See MSJ
Response ¶ 2, at 2 (admitting this fact).
paperwork that Kline reviews consists of a transport list and
the detainees' face sheets. See MSJ ¶ 10,
at 4 (asserting this fact)(citing Kline Depo. at 8:12-18);
MSJ Response ¶ 2, at 2 (admitting this fact). The
transport list contains the detainees' names, and the
face sheet shows the individual detainees' faces and
names. See MSJ ¶¶ 11-12, at 4 (asserting
this fact)(citing Kline Depo. at 8:12-18); MSJ Response
¶ 2, at 2 (admitting this fact). Kline's job is to
ask a detainee for his name and to examine the face sheet to
verify the detainee's identity. See MSJ ¶
13, at 4 (asserting this fact)(citing Kline Depo. at
14:12-23); MSJ Response ¶ 2, at 2 (admitting this fact).
If the photograph on the face sheet does not look like the
detainee, Kline asks the detainee for his date of birth and
gathers additional information to verify the detainee's
identity. See MSJ ¶ 13, at 4-5 (citing Kline
Depo. at 14:12-23); MSJ Response ¶ 2, at 2 (admitting
does not verify court orders relating to detainees; the MDC
records clerk verifies ‘“case numbers and
matching of all these orders.'” MSJ ¶ 14, at 5
(asserting this fact)(quoting Kline Depo. at 13:10-11).
See MSJ Response ¶ 2, at 2 (admitting this
fact). Kline does not verify these things and does not have
‘“computer access to all that
information.'” MSJ ¶¶ 15-16, at 5
(asserting this fact)(quoting Kline Depo. at 13:22).
See MSJ Response ¶ 2, at 2 (admitting this
fact). Kline verifies only that a detainee is leaving MDC.
See MSJ ¶ 17, at 5 (asserting this fact)(citing
Kline Depo. at 15:7-8); MSJ Response ¶ 2, at 2
(admitting this fact).
person who initialed the section on Gallegos' Release
Form labeled “file checked to ensure release is
valid” was a records clerk. MSJ ¶ 18, at 5
(asserting this fact)(quoting Release Form at 1; citing Kline
Depo. at 13:23-25). See MSJ Response ¶ 2, at 2
(admitting this fact). Kline signed the Release Form only in
the space labeled ‘“releasing
officer.'” MSJ ¶ 19, at 5 (asserting this
fact)(quoting Release Form at 1; citing Kline Depo. at
13:16-17). See MSJ Response ¶ 2, at 2
(admitting this fact). Kline does not have the knowledge or
the computer access to confirm any of the information in the
detainees' paperwork, although he knows that the records
department prepares the paperwork. See MSJ ¶
20, at 5 (asserting this fact)(citing Kline Depo. at
15:6-19); Response ¶ 2, at 2 (admitting this fact). The
records department has ‘“the transport orders and
all the orders get given to the sheriffs. . . . We hand it to
them and I make sure [that what] I'm giving them matches
[the person who] is leaving.'” MSJ ¶ 21, at 5
(asserting this fact)(quoting Kline Depo. at
15:21-25)(alterations added). See MSJ Response
¶ 2, at 2 (admitting this fact). Kline does not deeply
research the information in the detainees' paperwork.
See MSJ ¶ 21, at 5 (asserting this fact)(citing
Kline Depo. at 15:25-16:2); Response ¶ 2, at 2
(admitting this fact). All Kline does is ensure that
“‘Gallegos is going on this transport order
that's prepared before, like who knows, days before they
get their orders to go to prison.'” MSJ ¶ 22,
at 5 (asserting this fact)(quoting Kline Depo. at 17:18-21).
See MSJ Response ¶ 2, at 2 (admitting this
only knowledge of MDC's methadone treatment program is
that a subcontractor runs it and keeps track of who takes
methadone. See MSJ ¶ 23, at 6 (asserting this
fact)(citing Kline Depo. at 21:14-19); MSJ Response ¶ 2,
at 2 (admitting this fact). Security personnel like Kline
have nothing to do with the methadone program. See
MSJ ¶ 23, at 6 (asserting this fact)(citing Kline Depo.
at 21:14-19); MSJ Response ¶ 2, at 2 (admitting this
fact). Kline would not know whether a particular detainee was
participating in the methadone program. See MSJ
¶ 24, at 6 (asserting this fact)(citing Kline Depo. at
22:19-23); MSJ Response ¶ 2, at 2 (admitting this
fact). No one working for the methadone
contractor, however, complained to Kline about Gallegos'
Methadone Order. See MSJ ¶ 26, at 6 (asserting
this fact)(citing Kline Depo. at 23:20-22). As an MDC
Corrections Officer, Kline does not read methadone orders.
See MSJ ¶ 27, at 6 (asserting this fact)(citing
Kline Depo. at 23:13-16).
an MDC Corrections Officer who works in the booking area, and
her main job deals with fingerprints. See MSJ ¶
28, at 6 (asserting this fact)(citing Deposition of Jovonne
King at 3:9-4:3 (taken December 7, 2016), filed October 18,
2017 (Doc. 90-8)(“King Depo.”).King did not
escort Gallegos on the date of his release. See MSJ
¶ 29, at 6 (asserting this fact)(citing King Depo. at
4:12-14). In fact, King does not recall Gallegos.
See MSJ ¶ 30, at 6 (asserting this fact)(citing
King Depo. at 4-5). Regarding the methadone program, King
knows only that it exists and administers methadone doses to
inmates. See MSJ ¶ 31, at 6 (asserting this
fact)(citing King Depo. at 7:6-18).
document referenced as “exhibit 2” in the King
Depo. is the Methadone Order. MSJ ¶ 32, at 6 (asserting
this fact)(citing Order Remanding Defendant to Metropolitan
Detention Center, filed November 6, 2014, in State of New
Mexico v. Martin Gallegos, Nos. CR 14-4787, CR 13-5315
(Second Judicial District Court, County of Bernalillo, State
of New Mexico), filed in federal court October 18, 2017 (Doc.
occasionally helps release detainees. See MSJ ¶
34, at 7 (asserting this fact)(citing King Depo. at 12:3-4);
MSJ Response ¶ 6, at 3 (admitting this fact). When
helping release detainees, the only documents that she sees
are the order committing the detainee to prison, the
detainee's face sheet, and a cover page containing
detainee names. See MSJ ¶ 35, at 7 (asserting
this fact)(citing King Depo. at 12:9-13:8); MSJ Response
¶ 6, at 3 (admitting this fact).
6 that is referenced in the King Depo. is the Order Revoking
Probation, filed November 7, 2014 in State of New Mexico
v. Martin Gallegos, No. CR 2013-05315 (Second Judicial
District Court, County of Bernalillo, State of New Mexico),
filed in federal court October 18, 2017 (Doc.
90-10)(“Order Revoking Probation”). See
MSJ ¶ 36, at 7 (asserting this fact)(citing Order
Revoking Probation at 1). King does not escort detainees
to the releasing area. See MSJ ¶ 37, at 7
(asserting this fact)(citing King Depo. at 13:9-15;
id. at 17:5-16).King did not escort Gallegos.
See MSJ ¶ 38, at 7 (asserting this fact)(citing
King Depo. at 20:15-19). King might, however, “see
detainees when they are sent to the dress-out room to get
their shoes and sign for their property; then they are placed
in a cell until the sheriff's deputies arrive.” MSJ
¶ 39, at 7 (asserting this fact)(citing King Depo. at
14:6-10). King does not have access to
detainees' computer files. See MSJ ¶ 40, at
7 (asserting this fact)(citing King. Depo. at
Methadone Order should have been in Gallegos' file.
See MSJ Response ¶ 14, at 5-6 (asserting this
fact); Iverson Depo. at 6:14-25. MDC Corrections Record
Supervisor Alexis Iverson has received orders similar to the
Methadone Order for many years and sends them to a nurse from
Recovery Services. See MSJ Response ¶ 14, at 6
(asserting this fact); Iverson Depo. at
7:4-8:10. If someone complains about an order to
transfer an inmate, the inmate's corrections officer
brings the matter to Iverson's attention. See
MSJ Response ¶ 15, at 6 (asserting this fact); Iverson
Depo. at 12:1-8. If Iverson sees a Methadone Order, she
recommends that the inmate stay at MDC until she receives
further clearance. See MSJ Response ¶ 15, at 6
(asserting this fact); Iverson Depo. at
12:9-12. In such a situation, the proper
procedure is to wait to transfer an inmate “and see
what the story was and she would not let Mr. Gallegos be
transferred instantly at that point and she would check with
the court to see what to do.” MSJ Response ¶ 15,
at 6 (asserting this fact); Iverson Depo. at
12:13-13:6.Iverson would stop the transfer procedure
if presented with a Methadone Order. See MSJ
Response ¶ 15, at 6 (asserting this fact); Iverson Depo.
at 13:7-10. If conflicting court orders exist,
Iverson's job is to “figure it out” and not
to be indifferent to an inmate's care. MSJ Response
¶ 16, at 6 (asserting this fact); Iverson Depo. at
14:7-24. If someone wanted to transport Gallegos,
he or she should have asked Recovery Services whether
Gallegos was cleared to transport. See MSJ Response
¶ 17, at 6 (asserting this fact)(citing Iverson Depo. 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, filed August
27, 2015, (Second Judicial District Court, County of
Bernalillo, State of New Mexico), filed in federal court
February 22, 2016 (Doc. 1-1). While in state court, Gallegos
amended his Complaint. See Amended Complaint
Gallegos v. Bernalillo Cnty. Bd. of Comm'rs, No.
CIV 15-06829, filed February 1, 2016, (Second Judicial
District Court, County of Bernalillo, State of New Mexico),
filed in federal court February 22, 2016 (Doc.
1-2)(“Complaint”). The case was later removed to
federal court. See Notice of Removal of Civil Action
at 1, filed February 22, 2016 (Doc. 1). Since removal, the
Court has dismissed most of the Defendants from this case,
including: (i) the New Mexico Corrections Department,
see Memorandum Opinion and Order at 113, 2017 WL
3575883, at *49, filed August 17, 2017 (Doc. 82); (ii) MDC,
see Memorandum Opinion and Order at 24, 272
F.Supp.3d 1256, 1270, filed September 22, 2017 (Doc. 84);
(iii) and the Bernalillo County Board of County
Commissioners, see Memorandum Opinion and Order at
47, 278 F.Supp.3d 1245, filed September 30, 2017 (Doc. 87).
The Court also issued an Order allowing Gallegos to amend his
Complaint, and to add Kline and King as Defendants, and the
rationale for this decision is discussed below. See
Order at 7.
argues that he has good cause to amend his Complaint.
See Motion at 1. Specifically, he contends that he
received answers to interrogatories stating that Kline and
King assisted in answering them. See Motion at 2.
Essentially, Gallegos explains that he had previously been
“unable to identify who were the persons that were
directly involved in this matter for violation of the 8th
Amendment Deliberate Indifference, ” and so he should
be able to amend his Complaint to add Kline and King.
See Motion at 4.
Defendants responds to the Motion. See Defendants
Bernalillo County Board of County Commissioners' and
Bernalillo County Detention Center's Response in
Opposition to Plaintiff's Motion to File a Second Amended
Complaint, filed March 2, 2017 (Doc.
59)(“Response”). The Defendants contend that
Gallegos' proposed amendment does not sufficiently plead
a deliberate indifference claim, because it does not address
whether Kline and King knew of and disregarded an excessive
risk to Gallegos' health and safety. See
Response at 6.
Defendants next aver that the Court should deny the Motion
because of undue delay and lack of diligence. See
Response at 6. The Defendants assert that Gallegos moved to
amend a year after the case was removed and after the
deadline to amend had passed. See Response at 6.
According to the Defendants, the “Plaintiff filed this
lawsuit in 2015 and was apparently aware of the identity of
MDC personnel allegedly involved in the underlying events.
This is borne out by Plaintiff's deposition testimony
where he identified the alleged MDC persons by their last
names.” Response at 7. Accordingly, the Defendants
conclude that “it can be assumed Plaintiff knew these
names before his deposition and there is no excuse for not
timely seeking to amend.” Response at 7.
replies to the Response. See Plaintiff's Reply
to Defendant Bernalillo County Board of Commissioners and
Bernalillo County Detention Center Response to
Plaintiff's Motion to File a Second Amended Complaint,
filed March 16, 2017 (Doc. 62)(“Reply”). Gallegos
contends that he could not remember the names of the
corrections officers involved in transferring him out of MDC,
but when he was released from prison and reviewed the
depositions of Kline and King, he recalled that they were the
officers involved. See Reply at 3. Gallegos
continues that Kline and King's depositions “were
not transcribed and/or were unable to be delivered to the
Plaintiff for his reading until he was released” from
prison. Reply at 4. Gallegos concludes that the “motion
to amend . . . should be granted since no additional
depositions will be necessary.” Reply at 5.
The First Hearing.
Court held a hearing regarding the Motion on June 2, 2017.
See Draft Transcript of Motion Hearing at 1:9-13
(taken June 2, 2017)(“Tr.”)(Court). The Court
opened by observing “it seems to me that the Plaintiff
has sufficiently explained why he could not have timely
identified those guards. . . . So it seems to me that we
ought to bring that guard in, and that's probably about
it.” Tr. at 2:21-3:1 (Court). The Defendants argued
that, if the Motion were granted, “King and Kline would
probably both come into this courtroom and say we don't
know anything, we don't remember him.” Tr. at
10:16-18 (Quinones). The Court responded: “I think it
may come down to whether Mr. Gallegos can actually identify
the person that apparently he showed the order to.” Tr.
at 10:24-11:1 (Court). The Court continued that it needed
“to figure out if Mr. Gallegos is prepared to point the
finger at one of these people.” Tr. at 11:8-9 (Court).
The Court asked Gallegos about his version of events relating
to Kline and King, and the following colloquy occurred:
Mr. Lawless: His story is those two people and again the
Court has to consider that when you're dealing with 
somebody [who is] in jail that you can't send them
The Court: I understand.
Mr. Lawless: And his story, I don't think is going to
change at all. His story is I showed [the Methadone Order] to
everybody, including both of those guards Kline and King.
The Court: And he can say under oath, “I showed it to
King and I showed it to Kline.” Mr. Lawless: He can say
. . . .
The Court: He's going to say under oath, I showed it to
Kline and King?
Mr. Lawless: Correct.
The Court: And is he going to testify that both Kline and
King said I don't care what that is you're heading to
the big house?
Mr. Lawless: Both Kline and King said some form of that.
The Court: Some form of that and he'll testify under oath
as to both of those people saying that?
Mr. Lawless: I believe that's correct.
Tr. at 19:24-20:24 (Lawless, Court)(alterations added). The
Court later asked why it took so long to determine that Kline
and King were the two people that Gallegos wants to add to
his Complaint. See Tr. at 32:2-4 (Court). Gallegos
replied that “[h]e was in jail, so you can't just
send depositions in and all these things you can't go
over and visit him because they're on lockdown a lot. So
we had to wait until he was able to do this. And he says now
he knows their names.” Tr. at 32:7-11 (Lawless).
Defendants responded that the Motion should be denied because
of undue delay. See Tr. at 32:16-18 (Quinones).
Specifically, the Defendants asserted that “King and
Kline were deposed on December 7, 2016. And so Plaintiff had
time to do a timely amendment even at that point.” Tr.
at 32:21-23 (Quinones). Eventually, the Court stated that it
was inclined to grant the Motion in part to add Kline and
King. See Tr. at 44:17-18 (Court).
the Court issued an Order allowing Gallegos to amend his
Complaint to add Kline and King as Defendants, see
Order at 7, the Defendants moved for summary judgment on the
basis of qualified immunity, see MSJ at 1. The
Defendants first argue that Gallegos cannot show that they
acted with deliberate indifference. See MSJ at 11.
The Defendants contend that Gallegos did not complain to them
regarding the Methadone Order, that they did not have access
to the computer files containing Gallegos' court orders,
and that they did not see the Methadone Order. See
MSJ at 13. Accordingly, the Defendants conclude that they
“were unaware of any facts from which the inference
could be drawn that a substantial risk of serious harm
existed.” MSJ at 13.
Defendants next aver that, in any event, they are entitled to
qualified immunity, because the “Plaintiff cannot
demonstrate Defendants were deliberately indifferent to
Plaintiff's safety.” MSJ at 15. According to the
Defendants, “[b]oth Kline and King testified Plaintiff
did not complain to them regarding the methadone order. Both
also testified having no access to Plaintiff's computer
file to review court orders.” MSJ at 15. Essentially,
according to the Defendants, “Kline and King were
nothing more than government officials performing their
respective discretionary functions.” MSJ at 15. For
these reasons, the Defendants assert that they are entitled
to qualified immunity. See MSJ at 15.
The MSJ Response.
responds to the MSJ. See MSJ Response at 1. Gallegos
first asserts that there “are factual disputes as to
whether the [Methadone Order] was shown to the
Defendants.” MSJ Response at 8 (alteration added).
Gallegos argues: “As a result of those factual disputes
the court cannot conclude that the order was not shown to
both of those present Defendants and conclude without hearing
testimony as to whether the facts presented by Gallegos or
the facts presented by Defendants are correct in what had
happened.” MSJ Response at 8. Gallegos continues that
“[t]o use the expression ‘I don't give a
shit' is the height of deliberate indifference.”
MSJ Response at 10. According to Gallegos, “[t]o refuse
to read and/or ignore the order when Mr. Gallegos complained
not only to the Defendants but to nurses in the methadone
program also indicated serious deliberate
indifference.” MSJ Response at 10. Gallegos asserts
that Kline and King “knew or would have known from the
face of the order and from the nurse that a serious medical
condition existed with regard to the Plaintiff.” MSJ
Response at 10.
qualified immunity, Gallegos avers that a
“constitutional right to be free from deliberate
indifference under Estelle v. Gamble, [429 U.S. 97
(1976)] . . . has been clearly established law under the
constitutional requirements of the 8th Amendment since 1976,
more than 40 years ago.” MSJ Response at 11. Gallegos
continues that Kline and King “cannot possibly claim
they were unware of Plaintiff's constitutional right
under the 8th Amendment and dozens of cases clarifying that
right over the past four decades when they deliberately
disregarded Plaintiff Gallegos' complaint.” MSJ
Response at 11. Gallegos concludes that the Court should deny
the MSJ. See MSJ Response at 11.
The MSJ Reply.
Defendants reply to the MSJ Response. See MSJ Reply
at 1. The Defendants first assert that Gallegos cannot show
that Kline and King acted with deliberate indifference.
See MSJ Reply at 4. Specifically, the Defendants
contend that they never saw the Methadone Order, that
Gallegos did not complain to them about it, and that they had
no access to the computer files containing the Methadone
Order. See MSJ Reply at 5.
Defendants next assert that it is immaterial whether they
should have known of any risk of harm to Gallegos and that,
without being subjectively aware of any such risk, they could
not have been deliberately indifferent. See MSJ
Reply at 6. According to the Defendants, “[w]ithout
meeting his burden of showing the subjective element of a
viable Eighth Amendment claim, Plaintiff's lawsuit
fails.” MSJ Reply at 6.
the Defendants argue that any conduct of non-Defendants such
as Iverson is irrelevant, because “‘a plaintiff
must plead each government-official defendant, through the
official's own individual actions, has violated the
Constitution.'” MSJ Reply at 7 (quoting
Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009)). It
follows, according to the Defendants, that it is irrelevant
whether Gallegos showed the Methadone Order to individuals
other than Kline and King.
the Defendants re-assert their qualified immunity argument
that, because Gallegos cannot meet the subjective element of
a deliberate indifference claim, no constitutional violation
occurred. See MSJ Reply at 8. According to the
Defendants, Kline and King “meet the very definition of
government officials performing discretionary job functions,
the type of public actors that are protected under qualified
immunity.” MSJ Reply at 8. The Defendants conclude that
the Court should grant the MSJ. See MSJ Reply at 9.
The Second Hearing.
Court held a hearing regarding the MSJ on June 12, 2018.
See Draft Transcript of Motion Hearing at 1:16-17
(taken June 12, 2018)(“Second Tr.”)(Court). The
Defendants began by asserting that Gallegos had not met a
deliberate indifference claim's subjective component,
because, “if a prison official is unaware of the risk
of harm, no matter how obvious the risk or how gross his
negligence in failing to perceive it, his failure to
alleviate it is not an infliction of punishment and therefore
not a constitutional violation.” Second Tr. at 6:7-11
(Quinones). The Defendants continued that, regardless,
“no one would have seen . . . that plaintiff was in any
kind of distress.” Second Tr. at 7:23-24 (Quinones).
According to the Defendants, it is unclear what happened to
the Methadone Order in MDC's records department, but that
failure to act on the Methadone Order “would at most
constitute negligence and not deliberate indifference. In
fact, negligence by persons other than Mr. Kline and Ms.
King.” Second Tr. at 10:25-11:3 (Quinones). The
Defendants added that “what matters is whether the MDC
defendants were personally involved and whether they
personally participated. That's it.” Second Tr. at
then began his argument. See Second Tr. at 15:3
(Lawless). The Court first asked Gallegos if he asserted any
claims other than deliberate indifference against Kline and
King in their individual capacities. See Second Tr.
at 15:16-21 (Court). Gallegos replied that those were his
only claims. See Second Tr. at 15:22-16:12 (Lawless,
then addressed deliberate indifference's objective prong,
asserting that the Methadone Order stated that Gallegos
should remain in MDC's custody so that he would not incur
life-threatening withdrawal symptoms. See Second Tr.
at 17:17-21 (Lawless). When asked what record evidence
indicates that Gallegos' methadone withdrawal symptoms
were life-threatening, he responded that such statements were
in the Methadone Order and in Gallegos' testimony, but
nothing else specifically addresses that point. See
Second Tr. at 17:22-18:21 (Court, Lawless). The Court replied
if a layperson can look at the situation and realize the
severity of the [medical] condition and there's a lot of
times that can be done, then that can be deliberate
indifference. Otherwise, it has to be ordered by a doctor and
I'm not seeing in the record here that this [titration]
order is being ordered by a doctor.
Tr. at 22:1-6 (Court). The Court continued that “I
don't know the origin of it. I don't know who is
ordering this other than the court, a lawyer.” Second
Tr. at 22:7-8 (Court).
then addressed qualified immunity's clearly established
prong, arguing that Farmer v. Brennan, 511 U.S. 825
(1994), and Self v. Crum, 439 F.3d 1227 (10th Cir.
2006), show that the law regarding his claim is clearly
established. See Second Tr. at 25:8-26:12 (Lawless,
Court). Gallegos asserted that “there isn't anybody
that works in the corrections department” who does not
know about the holding in Estelle v. Gamble, 429
U.S. at 104, regarding deliberate indifference. Second Tr. at
28:6-7 (Lawless). Based on this information, Gallegos averred
that the law is clearly established. See Second Tr.
at 28:14-19 (Lawless).
Defendants responded that they work in the area of security,
and that they do not have access to inmates' computer
files. See Second Tr. at 28:24-29:6 (Quinones). The
Defendants continued that, “without being subjectively
aware of the risk of harm to plaintiff, King and Kline cannot
be deemed to have been deliberately indifferent to
plaintiff's safety.” Second Tr. at 30:23-25
(Quinones). The Defendants then summarized their main point:
“The fact of the matter is King and Kline did not
consciously disregard an excessive risk to Mr. Gallegos's
health or safety. And, therefore, plaintiff cannot meet the
subjective component of a viable 8th Amendment claim.”
Second Tr. at 30:25-31:4 (Quinones). At the hearing's
conclusion, the Court offered its inclination that it was
unsure whether Gallegos met deliberate indifference's
objective component, but that he had not met the subjective
component or qualified immunity's clearly established
prong. See Second Tr. at 31:10-24 (Court). The Court
also invited Gallegos to submit any cases that he wanted the
Court to consider regarding the clearly established prong.
See Second Tr. at 32:15-20 (Lawless, Court).
REGARDING MOTIONS TO AMEND
Rule 15 governs amendments to pleadings generally, rule 16 of
the Federal Rules of Civil Procedure governs amendments to
scheduling orders.” Bylin v. Billings, 568
F.3d 1224, 1231 (10th Cir. 2009)(citing Fed.R.Civ.P. 16(b)).
When a court has not entered a scheduling order in a
particular case, rule 15 governs amendments to a
plaintiff's complaint. See Fed.R.Civ.P. 15. When
a scheduling order governs the case's pace, however,
amending the complaint after the deadline for such amendments
implicitly requires an amendment to the scheduling order, and
rule 16(b)(4) governs changes to the scheduling order.
See Bylin v. Billings, 568 F.3d at 1231. Rule 15(a)
of the Federal Rules of Civil Procedure provides:
(1) Amending as a Matter of Course. A party
may amend its pleading once as a matter of course within:
(A) 21 days after serving it, or
(B) if the pleading is one to which a
responsive pleading is required, 21 days after service of a
responsive pleading or 21 days after service of a motion
under rule 12(b), (e), or (f), whichever is earlier.
(2) Other Amendments. In all other cases, a
party may amend its pleading only with the opposing
party's written consent or the court's leave. The
court should freely give leave when justice so requires.
Civ. P. 15(a)(bold and italics in original). Further, the
local rules provide that, with respect to motions to amend a
pleading, “[a] proposed amendment to a pleading must
accompany the motion to amend.” D.N.M.LR-Civ. 15.1.
rule 15(a), the court should freely grant leave to amend a
pleading where justice so requires. See In re Thornburg
Mortg., Inc. Sec. Litig., 265 F.R.D. 571, 579-80 (D.N.M.
2010)(Browning, J.); Youell v. Russell, 2007 WL
709041, at *1-2 (D.N.M. 2007)(Browning, J.); Burleson v.
ENMR-Plateau Tele. Coop., 2005 WL 3664299, at *1-2
(D.N.M. 2005)(Browning, J.). The Supreme Court has stated
that, in the absence of an apparent reason such as
“undue delay, bad faith or dilatory motive . . . [, ]
repeated failure to cure deficiencies by amendments
previously allowed, undue prejudice to the opposing party by
virtue of allowance of the amendment, futility of amendment,
etc., ” leave to amend should be freely given.
Fomen v. Davis, 371 U.S. 178, 182 (1962). See
Curley v. Perry, 246 F.3d 1278, 1284 (10th Cir. 2001).
In re Thornburg Mortg., Inc. Sec. Litig., 265 F.R.D.
should deny leave to amend under rule 15(a) where the
proposed “amendment would be futile.”
Jefferson Cty. Sch. Dist. v. Moody's Investor's
Serv., 175 F.3d 848, 859 (10th Cir. 1999). See In re
Thornburg Mortg., Inc. Sec. Litig., 265 F.R.D. at
579-80. An amendment is “futile” if the pleading
“as amended, would be subject to dismissal.”
In re Thornburg Mortg., Inc. Sec. Litig., 265 F.R.D.
at 579-80 (citing TV Commc'ns Network, Inc. v. Turner
Network Television, Inc., 964 F.2d 1022, 1028 (10th Cir.
1992)). A court may also deny leave to amend “upon a
showing of undue delay, undue prejudice to the opposing
party, bad faith or dilatory motive, [or] failure to cure
deficiencies by amendments previously allowed.” In
re Thornburg Mortg., Inc. Sec. Litig., 265 F.R.D. at 579
(quoting Frank v. U.S. W., Inc., 3 F.3d 1357,
1365-66 (10th Cir. 1993)). See Youell v. Russell,
2007 WL 709041, at *2-3 (D.N.M. 2007)(Browning, J.);
Lymon v. Aramark Corp., 2009 WL 1299842 (D.N.M.
2009)(Browning, J.). The United States Court of Appeals for
the Tenth Circuit has also noted:
It is well settled in this circuit that untimeliness alone is
a sufficient reason to deny leave to amend, see Woolsey
v. Marion Laboratories, Inc., 934 F.2d 1452, 1462 (10th
Cir. 1991); Las Vegas Ice & Cold Storage Co. v. Far
West Bank, 893 F.2d 1182, 1185 (10th Cir. 1990);
First City Bank v. Air Capitol Aircraft Sales, 820
F.2d 1127, 1133 (10th Cir. 1987), especially when the party
filing the motion has no adequate explanation for the delay,
Woolsey, 934 F.2d at 1462. Furthermore,
“[w]here the party seeking amendment knows or should
have known of the facts upon which the proposed amendment is
based but fails to include them in the original complaint,
the motion to amend is subject to denial.” Las
Vegas Ice, 893 F.2d at 1185.
Frank v. U.S. W., Inc., 3 F.3d at
1365-66. The longer the delay, “the more
likely the motion to amend will be denied, as protracted
delay, with its attendant burdens on the opponent and the
court, is itself a sufficient reason for the court to
withhold permission to amend.” Minter v. Prime
Equip. Co., 451 F.3d at 1205 (citing Steir v. Girl
Scouts of the USA, 383 F.3d 7, 12 (1st Cir. 2004)).
Undue delay occurs where the plaintiff's amendments
“make the complaint ‘a moving target.'”
Minter v. Prime Equip. Co., 451 F.3d at 1206
(quoting Viernow v. Euripides Dev. Corp.,
157 F.3d 785, 799-800 (10th Cir. 1998)). “[P]rejudice
to the opposing party need not also be shown.” Las
Vegas Ice & Cold Storage Co. v. Far W. Bank, 893
F.2d at 1185. “Where the party seeking amendment knows
or should have known of the facts upon which the proposed
amendment is based but fails to include them in the original
complaint, the motion to amend is subject to denial.”
Las Vegas Ice & Cold Storage Co. v. Far W. Bank,
893 F.2d at 1185 (quoting State Distribs., Inc. v.
Glenmore Distilleries Co., 738 F.2d 405 (10th Cir.
1984)). Along the same vein, the court will deny amendment if
the party learned of the facts upon which its proposed
amendment is based and nevertheless unreasonably delayed in
moving to amend its complaint. See Pallottino v. City of
Rio Rancho, 31 F.3d 1023, 1027 (10th Cir. 1994)(noting
motion to amend filed “was not based on new evidence
unavailable at the time of the original filing”).
leave to amend is generally justified only upon a showing of
undue delay, undue prejudice to the opposing party, bad faith
or dilatory motive, failure to cure deficiencies by
amendments previously allowed, or futility of amendment.
See Castleglen, Inc. v. Resolution Trust Corp., 984
F.2d 1571, 1585 (10th Cir. 1993). Again, the matter is left
to the Court's discretion. See Frank v. U.S. W.,
Inc., 3 F.3d at 1365-66; Duncan v. Manager,
Dep't of Safety, City & Cnty. of Denver, 397
F.3d 1300, 1315 (10th Cir. 2005)(quoting Frank v. U.S.
West, Inc., 3 F.3d at 1365-66, and stating that
resolving the issue whether to allow a plaintiff to file a
supplement to his complaint is “well within the
discretion of the district court”). “The . . .
Tenth Circuit has emphasized that ‘[t]he purpose of
[rule 15(a)] is to provide litigants the maximum opportunity
for each claim to be decided on its merits rather than on
procedural niceties.'” B.T. ex rel. G.T. v.
Santa Fe Pub. Schs., 2007 WL 1306814, at *2 (D.N.M.
2007)(Browning, J.)(quoting Minter v. Prime Equip.
Co., 451 F.3d 1196, 1204 (10th Cir. 2006)).
“Specifically, the . . . Tenth Circuit has determined
that district courts should grant leave to amend when doing
so would yield a meritorious claim.” Burleson v.
ENMR-Plateau Tel. Co-op., 2005 WL 3664299 at *2 (D.N.M.
2005)(Browning, J.)(citing Curley v. Perry, 246 F.3d
1278, 1284 (10th Cir. 2001)).
REGARDING MODIFICATION OF SCHEDULING ORDERS
District Court has wide discretion in its regulation of
pretrial matters.” Si-Flo, Inc. v. SFHC, Inc.,
917 F.2d 1507, 1514 (10th Cir. 1990). Scheduling orders,
however, “may be modified only for good cause and with
the judge's consent.” Fed.R.Civ.P. 16(b)(4).
Accord Street v. Curry Bd. of Cty.
Comm'rs, No. CIV 06-0776 JB/KBM, 2008 WL 2397671, at
*6 (D.N.M. Jan. 30, 2008)(Browning, J.). The advisory
committee notes to rule 16 observe:
[T]he court may modify the schedule on a showing of good
cause if it cannot reasonably be met despite the diligence of
the party seeking the extension. Since the scheduling order
is entered early in the litigation, this standard seems more
appropriate than a “manifest injustice” or
“substantial hardship” test. Otherwise, a fear
that extensions will not be granted may encourage counsel to
request the longest possible periods for completing pleading,
joinder, and discovery.
Civ. P. 16(b)(4) advisory committee's note to 1983
Tenth Circuit has held that the concepts of good cause,
excusable neglect, and diligence are related. “The
Tenth Circuit . . . has recognized the interrelation between
‘excusable neglect' and ‘good
cause.'” Pulsecard, Inc. v. Discover Card
Servs. Inc., 168 F.R.D. 295, 301 (D. Kan.
1996)(Rushfelt, J.)(citing In re Kirkland, 86 F.3d
172, 175 (10th Cir. 1996)). “Properly construed,
‘good cause' means that scheduling deadlines cannot
be met despite a party's diligent efforts.”
Street v. Curry Bd. of Cty. Comm'rs, 2008 WL
2397671, at *6. See Advanced Optics Electronics, Inc. v.
Robins, 769 F.Supp.2d 1285, 1313 (D.N.M. 2010)(Browning,
J.)(noting that the “rule 16(b) good-cause inquiry
focuses on the diligence of the party seeking [to] amend the
scheduling order.”). In In re Kirkland, the
Tenth Circuit dealt with the definition of “good
cause” in the context of a predecessor to modern rule
4(m) of the Federal Rules of Civil Procedure,  and noted:
[W]ithout attempting a rigid or all-encompassing definition
of ‘good cause,' it would appear to require at
least as much as would be required to show excusable
neglect, as to which simple inadvertence or mistake of
counsel or ignorance of the rules usually does not suffice,
and some showing of ‘good faith on the part of the
party seeking the enlargement and some reasonable basis for
noncompliance within the time specified' is normally
86 F.3d at 175 (emphasis in original)(quoting Putnam v.
Morris, 833 F.2d 903, 905 (10th Cir. 1987))(internal
quotation marks omitted). The Tenth Circuit explained that
Putnam v. Morris “thus recognized that the two
standards, although interrelated, are not identical and that
‘good cause' requires a greater showing than
‘excusable neglect.'” In re
Kirkland, 86 F.3d at 175.
party is diligent in its discovery efforts and nevertheless
cannot comply with the scheduling order, the Court has found
good cause to modify the scheduling order if the requesting
party timely brings forward its request. In Advanced
Optics Electronics, Inc. v. Robins, the Court found
that, where the defendant did not conduct discovery or make
any good-faith discovery requests, and where the defendant
did not make efforts “diligent or otherwise” to
conduct discovery, the defendant did not, therefore, show
good cause to modify the scheduling order. 769 F.Supp.2d at
1313 n.8. In Street v. Curry Bd. Of Cty.
Comm'rs, however, the Court found that the plaintiff
had “shown good cause for a delay in seeking leave to
amend, ” because she “was diligent in pursuing
discovery . . . [and] brought to the Court's attention
her identification of an additional claim in a timely manner,
” where she discovered the claim through
“documents provided in discovery.” 2008 WL
2397671, at *11. In Montoya v. Sheldon, No. CIV
10-0360 JB/WDS, 2012 WL 5353493 (D.N.M. Oct. 7,
2012)(Browning, J.), the Court did not find good cause to
modify the scheduling order and reopen discovery, and refused
to grant the plaintiffs' request do so, where the
plaintiffs' excuse for not disclosing their expert before
the close of discovery was that they thought that the case
would settle and they would thus not require expert
testimony. See 2012 WL 5353493, at *14. The Court
The [plaintiffs] filed this case on April 15, 2010. Because
[Plaintiff] D. Montoya had seen the physician before that
date, the fact that the [plaintiffs] are only now bringing
the physician forward as a newly identified expert witness,
over two years later, and over one and a half years after the
deadline to disclose expert witnesses, does not evidence
circumstances in which the Court can find excusable neglect
nor good cause.
2012 WL 5353493, at *14.
Scull v. Management & Training Corp., 2012 WL
1596962 (D.N.M. May 2, 2012)(Browning, J.), the Court denied
a plaintiff's request for an extension of time to name an
expert witness against a defendant. The plaintiff asserted
that he had waited to name an expert witness until a second
defendant joined the case, but a scheduling order was in
effect before the second defendant entered the case. The
Court concluded that the plaintiff should have known that he
would need to name an expert witness against the defendant
already in the case. See 2012 WL 1596962, at *8. The
Court determined that the plaintiff was seeking “relief
from his own disregard” for the deadline. 2012 WL
1596962, at *8. “Despite his knowledge that [defendant]
PNA had yet to enter the case, [plaintiff] Scull chose to
allow the deadline to pass without naming expert witnesses
against [defendant] MTC.” 2012 WL 1596962, at *8.
Regarding the defendant who entered the case at a later date,
however, the Court allowed the plaintiff an extension of time
to name an expert witness, because it “was not
unreasonable for Scull to expect a new deadline to name
expert witnesses upon PNA's entrance into the case
because he had not yet had the opportunity to engage in
discovery against PNA as he had against MTC.” 2012 WL
1596962, at *9. The Court also noted that not naming an
expert witness “is a high price to pay for missing a
deadline that was arguably unrealistic when it was set,
” as Scull could not have determined the need for an
expert witness until after PNA entered the case. 2012 WL
1596962, at *9.
Stark-Romero v. National Railroad Passenger Co
(AMTRAK), 275 F.R.D. 544 (D.N.M. 2011)(Browning, J.),
the Court concluded that a lawyer had shown excusable neglect
when he missed a scheduling deadline because, soon after his
son's wedding, his father-in-law developed a tumor in his
chest, and the lawyer arranged his father-in-law's
medical care, and only after the lawyer returned to his work
did he realize that a deadline passed. See 275
F.R.D. 549-550. The Court noted that the lawyer could have
avoided missing the deadline had he not left his work until
the last minute, just before his son's wedding, but
concluded that the lawyer had demonstrated good faith and
missed the deadline because of “life crises, ”
and not because of his inadvertence. 275 F.R.D. 549-550. In
West v. New Mexico Taxation and Revenue
Department, No. CIV 09-0631 JB/CEG, 2010 WL 3834341
(D.N.M. July 29, 2010)(Browning, J.), the Court allowed a
plaintiff extended time to file a response to a
defendant's motion for summary judgment, in part because
of the difficulty that the plaintiff's counsel
experienced attempting to obtain depositions with certain
defense witnesses, and thus it was not her fault, and in part
because cross-motions on summary judgment are particularly
helpful for the Court:
[C]ross-motions tend to narrow the factual issues that would
proceed to trial and promote reasonable settlements. In some
cases, it allows the Court to determine that there are no
genuine issues for trial and thereby avoid the expenses
associated with trial. The Court prefers to reach the merits
of motions for summary judgment when possible.
2010 WL 3834341, at **4-5. On the other hand, in Liles v.
Washington Tru Solutions, LLC, No. CIV 06-854 JB/CEG,
2007 WL 2298440 (D.N.M. June 13, 2007)(Browning, J.), the
Court denied a plaintiff's request for additional time to
respond to a defendant's motion for summary judgment,
when the only rationale that the plaintiff provided was that
its counsel's “family and medical
emergencies” precluded the plaintiff from timely
responding. 2007 WL 2298440, at *2.
REGARDING MOTIONS FOR SUMMARY JUDGMENT
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
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 Nor. ASA, No. 2:11-cv-757, 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, 477 U.S. at 331 (Brennan, J.,
dissenting)(emphasis in original). 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, 477 U.S. at 324;
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256
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.” Liberty Lobby, 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)).
a party “avoid summary judgment by repeating conclusory
opinions, allegations unsupported by specific facts, or
speculation.” Colony Nat'l Ins. Co. v.
Omer, No. CIV 07-2123, 2008 WL 2309005, at *1 (D. Kan.
June 2, 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
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.” Liberty Lobby, 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 Liberty Lobby, 477 U.S. at 248). Rather,
there must be sufficient evidence on which the fact finder
could reasonably find for the nonmoving party. See
Liberty Lobby, 477 U.S. at 251 (quoting Schuylkill
& Dauphin Improvement Co. v. Munson, 81 U.S. 442,
448 (1871)(“Schuylkill”); 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.” Liberty Lobby, 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).
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 Liberty Lobby, 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.” Liberty
Lobby, 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); Liberty
Lobby, 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 Liberty
Lobby, 477 U.S. at 255.
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 of the United States 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
United States Court of Appeals for the Tenth Circuit applied
this doctrine in Thomson v. Salt Lake County, 584
F.3d 1304 (10th Cir. 2009), and explained:
[B]ecause at summary judgment we are beyond the pleading
phase of the litigation, a plaintiff's version of the
facts must find support in the record: more specifically,
“[a]s with any motion for summary judgment, when
opposing parties tell two different stories, one of which is
blatantly contradicted by the record, so that no reasonable
jury could believe it, a court should not adopt that version
of the facts.” York v. City of Las Cruces, 523
F.3d 1205, 1210 (10th Cir. 2008) (quoting Scott, 550
U.S. at 380); see also Estate of Larsen ex rel. Sturdivan
v. Murr, 511 F.3d 1255, 1258 (10th Cir. 2008).
Thomson v. Salt Lake Cnty., 584 F.3d at 1312
(brackets omitted). “The Tenth Circuit, in
Rhoads v. Miller, [352 Fed.Appx. 289 (10th
Cir. 2009)(Tymkovich, J.)(unpublished),  explained
that the blatant contradictions of the record must be
supported by more than other witnesses'
testimony[.]” Lymon v. Aramark Corp., 728
F.Supp.2d 1222, 1249 (D.N.M. 2010)(Browning, J.)(citation
omitted), aff'd, 499 Fed.Appx. 771 (10th Cir.
REGARDING QUALIFIED IMMUNITY
immunity recognizes the “need to protect officials who
are required to exercise their discretion and the related
public interest in encouraging the vigorous exercise of
official authority.” Harlow v. Fitzgerald, 457
U.S. 800, 807 (1982). “Qualified immunity protects
federal and state officials from liability for discretionary
functions, and from ‘the unwarranted demands
customarily imposed upon those defending a long drawn-out
lawsuit.'” Roybal v. City of Albuquerque,
No. 08-0181, 2009 WL 1329834, at *10 (D.N.M. April 28,
2009)(Browning, J.)(quoting Siegert v. Gilley, 500
U.S. 226, 232 (1991)). The Supreme Court deems it
“untenable to draw a distinction for purposes of
immunity law between suits brought against state officials
under § 1983 and suits brought directly under the
Constitution against federal officials.” Butz v.
Economou, 438 U.S. 478, 504 (1978). See Bivens v.
Six Unknown Named Agents of Federal Bureau of Narcotics,
403 U.S. 388, 392 (1971)(“Bivens”).
“The qualified immunity analysis is the same whether
the claims are brought under Bivens or pursuant to the
post-Civil War Civil Rights Acts.” Breidenbach v.
Bolish, 126 F.3d 1288, 1291 (10th Cir. 1997),
overruled on other grounds as recognized by Currier v.
Doran, 242 F.3d 905 (10th Cir. 2001).
§ 1983 and Bivens, a plaintiff may seek money
damages from government officials who have violated his or
her constitutional or statutory rights. To ensure, however,
that fear of liability will not “unduly inhibit
officials in the discharge of their duties, ”
Anderson v. Creighton, 483 U.S. 635, 638 (1987), the
officials may claim qualified immunity; so long as they have
not violated a “clearly established” right, the
officials are shielded from personal liability, Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982).
That means a court can often avoid ruling on the
plaintiff's claim that a particular right exists. If
prior case law has not clearly settled the right, and so
given officials fair notice of it, the court can simply
dismiss the claim for money damages. The court need never
decide whether the plaintiff's claim, even though novel
or otherwise unsettled, in fact has merit.
Camreta v. Greene, 563 U.S. 692, 705 (2011).
immunity shields government officials from liability where
“their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable
person would have known.” Pearson v. Callahan,
555 U.S. at 231 (quoting Harlow v. Fitzgerald, 457
U.S. at 818). Qualified immunity also shields officers who
have “reasonable, but mistaken beliefs, ” and
operates to protect officers from the sometimes “hazy
border[s]” of the law. Saucier v. Katz, 533
U.S. 194, 205 (2001). When a defendant asserts qualified
immunity, the plaintiff must demonstrate: (i) that the
defendant's actions violated his or her constitutional or
statutory rights; and (ii) that the right was clearly
established at the time of the alleged misconduct. See
Riggins v. Goodman, 572 F.3d 1101, 1107 (10th Cir.
2009); see also Pueblo of Pojoaque v. New
Mexico, 214 F.Supp.3d 1028, 1079 (D.N.M. 2016)(Browning,
Procedural Approach to Qualified Immunity.
Supreme Court recently revisited the proper procedure for
lower courts to evaluate a qualified immunity defense. In
Pearson v. Callahan, the Supreme Court held that
lower courts “should be permitted to exercise their
sound discretion in deciding which of the two prongs of the
qualified immunity analysis should be addressed first in
light of the circumstances of the particular case at
hand.” 555 U.S. at 236. The Supreme Court also noted
that, while no longer mandatory, Saucier v.
Katz' protocol -- by which a court first decides if
the defendant's actions violated the Constitution, and
then the court determines if the right violated was clearly
established -- will often be beneficial. See Pearson v.
Callahan, 555 U.S. at 241. In rejecting the prior
mandatory approach, the Supreme Court recognizes that
“[t]here are cases in which it is plain that a
constitutional right is not clearly established but far from
obvious whether in fact there is such a right, ” and
that such an approach burdens district court and courts of
appeals with “what may seem to be an essentially
academic exercise.” 555 U.S. at 237. The Supreme Court
also recognizes that the prior mandatory approach
“departs from the general rule of constitutional
avoidance and runs counter to the older, wiser judicial
counsel not to pass on questions of constitutionality unless
such adjudication is unavoidable.” 555 U.S. at 241
(alterations omitted). See Reichle v. Howards, 566
U.S. 658, 664 (2012)(affirming Pearson v.
Callahan's procedure and noting that deciding
qualified immunity issues on the basis of a right being not
“clearly established” by prior case law
“comports with our usual reluctance to decide
constitutional questions unnecessarily”).
Supreme Court recognizes seven circumstances where district
courts “should address only” the clearly
established prong of the qualified immunity analysis: when
(i) the first, constitutional violation question “is so
factbound that the decision provides little guidance for
future cases”; (ii) “it appears that the question
will soon be decided by a higher court”; (iii) deciding
the constitutional question requires “an uncertain
interpretation of state law”; (iv) “qualified
immunity is asserted at the pleading stage, ” and
“the precise factual basis for the . . . claim . . .
may be hard to identify”; (v) tackling the first
element “may create a risk of bad decisionmaking,
” because of inadequate briefing; (vi) discussing both
elements risks “bad decisionmaking, ” because the
court is firmly convinced that the law is not clearly
established and is thus inclined to give little thought to
the existence of the constitutional right; or (vii) the
doctrine of “constitutional avoidance” suggests
the wisdom of passing on the first constitutional question
when “it is plain that a constitutional right is not
clearly established but far from obvious whether in fact
there is such a right.” Kerns v. Bader, 663
F.3d 1173, 1180-81 (10th Cir. 2011)(quoting Pearson v.
Callahan, 555 U.S. at 236-42). Regarding the last of
these seven circumstances, the Supreme Court has clarified
that courts may “avoid avoidance” and address the
first prong before the second prong in cases involving a
recurring fact pattern, where guidance on the
constitutionality of the challenged conduct is necessary, and
the conduct is likely to face challenges only in the
qualified immunity context. Camreta v. Greene, 563
U.S. at 706-707. See Kerns v. Bader, 663 F.3d at
1181. “Courts should think carefully
before expending ‘scarce judicial resources' to
resolve difficult and novel questions of constitutional or
statutory interpretation that will ‘have no effect on
the outcome of the case.'” Ashcroft v.
al-Kidd, 563 U.S. 731, 735 (2011)(quoting Pearson v.
Callahan, 555 U.S. at 236-37). See Camreta v.
Greene, 563 U.S. at 707 (“In general, courts
should think hard, and then think hard again, before turning
small cases into large ones.”). The Tenth Circuit will
remand a case to the district court for further consideration
when the district court has given only cursory treatment to
qualified immunity's clearly established prong. See
Kerns v. Bader, 663 F.3d at 1182; see also Pueblo of
Pojoaque v. New Mexico, 214 F.Supp.3d at 1082-83.
Clearly Established Rights.
determine whether a right was clearly established, a court
must consider whether the right was sufficiently clear that a
reasonable government employee would understand that what he
or she did violated a right. See Casey v. W. Las Vegas
Indep. Sch. Dist., 473 F.3d 1323, 1327 (10th Cir. 2007).
“A clearly established right is generally defined as a
right so thoroughly developed and consistently recognized
under the law of the jurisdiction as to be
‘indisputable' and ‘unquestioned.'”
Lobozzo v. Colo. Dep't of Corr., 429 Fed.Appx.
707, 710 (10th Cir. 2011)(unpublished)(quoting Zweibon v.
Mitchell, 720 F.2d 162, 172-73 (D.C. Cir. 1983)).
in order for the law to be clearly established, there must be
a Supreme Court or Tenth Circuit decision on point, or the
clearly established weight of authority from other courts
must have found the law to be as the plaintiff
maintains.” Currier v. Doran, 242 F.3d 905,
923 (10th Cir. 2001). “In determining whether the right
was ‘clearly established,' the court assesses the
objective legal reasonableness of the action at the time of
the alleged violation and asks whether ‘the contours of
the right [were] sufficiently clear that a reasonable
official would understand that what he is doing violates that
right.'” Holland ex rel. Overdorff v.
Harrington, 268 F.3d at 1186 (alteration in
original)(quoting Saucier v. Katz, 533 U.S. at 202).
A court should inquire “whether the law put officials
on fair notice that the described conduct was
unconstitutional” rather than engage in “a
scavenger hunt for cases with precisely the same
facts.” Pierce v. Gilchrist, 359 F.3d 1279,
1298 (10th Cir. 2004).
Supreme Court has clarified that qualified immunity's
clearly established prong is a very high burden for the
plaintiff: “A Government official's conduct
violates clearly established law when, at the time of the
challenged conduct, the contours of a right are sufficiently
clear that every reasonable official would have understood
that what he is doing violates that right.”
Ashcroft v. al-Kidd, 563 U.S. at 741. “In
other words, ‘existing precedent must have placed the
statutory or constitutional question beyond
debate.'” Reichle v. Howards, 132 S.Ct. at
2093 (quoting Ashcroft v. al-Kidd, 563 U.S. at 741).
“The operation of this standard, however, depends
substantially upon the level of generality at which the
relevant ‘legal rule' is to be identified.”
Anderson v. Creighton, 483 U.S. at 639. “The
general proposition, for example, that an unreasonable search
or seizure violates the Fourth Amendment is of little help in
determining whether the violative nature of particular
conduct is clearly established.” Ashcroft v.
al-Kidd, 563 U.S. at 742. The level of generality at
which the legal rule is defined is important, because
qualified immunity shields officers who have
“reasonable, but mistaken beliefs” as to the
application of law to facts and operates to protect officers
from the sometimes “hazy border[s]” of the law.
Saucier v. Katz, 533 U.S. at 205.
case on point isn't required if the impropriety of the
defendant's conduct is clear from existing case law,
” but the law is not clearly established where “a
distinction might make a constitutional difference.”
Kerns v. Bader, 663 F.3d at 1188. In Kerns v.
Bader, dealing with the search of a home, the Tenth
Circuit explained that the relevant question
“wasn't whether we all have some general privacy
interest in our home, ” but “whether it was
beyond debate in 2005 that the officers' entry and search
lacked legal justification.” 663 F.3d at 1183 (emphasis
added). Furthermore, “general statements of the law are
not inherently incapable of giving fair and clear
warning.” Hope v. Pelzer, 536 U.S. 730');">536 U.S. 730, 741
the Tenth Circuit has recognized a sliding scale for
qualified immunity's clearly established inquiry, see
Casey v. City of Federal Heights, 509 F.3d 1278, 1284
(10th Cir. 2007)(“We have therefore adopted a sliding
scale to determine when law is clearly established.”),
the Tenth Circuit may have since walked back its holding that
a sliding-scale is the appropriate analysis, see Aldaba
v. Pickens, 844 F.3d 870, 876 (10th Cir.
2016)(“Aldaba II”). In Aldaba
II, the Tenth Circuit reconsidered its ruling from
Aldaba v. Pickens, 777 F.3d 1148 (10th Cir.
2015)(“Aldaba I”), that officers were
entitled to qualified immunity after the Supreme Court
vacated its decision in light of Mullenix v. Luna,
136 S.Ct. 305 (2015)(per curiam). In concluding that they had
previously erred in Aldaba I, the Tenth Circuit
We erred . . . by relying on excessive-force cases markedly
different from this one. Although we cited Graham v.
Connor, 490 U.S. 386 (1989) to lead off our
clearly-established-law discussion, we did not just repeat
its general rule and conclude that the officers' conduct
had violated it. Instead, we turned to our circuit's
sliding-scale approach measuring degrees of egregiousness in
affirming the denial of qualified immunity. We also relied on
several cases resolving excessive-force claims. But none of
those cases remotely involved a situation as here.
Aldaba II, 844 F.3d at 876. The Tenth Circuit
further noted that its sliding-scale approach may have fallen
out of favor, because the sliding-scale test relies, in part,
on Hope v. Pelzer, 536 U.S. at 739-41, and the
Supreme Court's most recent qualified immunity decisions
do not invoke that case. See Aldaba II, 844 F.3d at
874 n.1. The Tenth Circuit explained:
To show clearly established law, the Hope Court did
not require earlier cases with “fundamentally
similar” facts, noting that “officials can still
be on notice that their conduct violates established law even
in novel factual circumstances.” Id. at 741.
This calls to mind our sliding-scale approach measuring the
egregiousness of conduct. See Morris v. Noe, 672
F.3d 1185, 1196 (10th Cir. 2012). But the Supreme Court has
vacated our opinion here and remanded for us to reconsider
our opinion in view of Mullenix, which reversed the
Fifth Circuit after finding that the cases it relied on were
“simply too factually distinct to speak clearly to the
specific circumstances here.” 136 S.Ct. at 312. We also
note that the majority opinion ...