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Gallegos v. Bernalillo County Board of County Commissioners

United States District Court, D. New Mexico

June 29, 2018

MARTIN GALLEGOS, Plaintiff,
v.
BERNALILLO COUNTY BOARD OF COUNTY COMMISSIONERS, BERNALILLO COUNTY DETENTION CENTER, NEW MEXICO DEPARTMENT OF CORRECTIONS, CLYDE KLINE, and JOVANNE KING, Defendants.

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

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

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

          MEMORANDUM OPINION AND ORDER [1]

         THIS 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[2] 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.[3]

         FACTUAL BACKGROUND

         The 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 Reply”).

         Gallegos 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 titrated[4]down 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).[5] 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. 92-3)(“Gallegos Depo.”).[6]

         Unlike 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)).[7] 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”).[8]

         Kline 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.”).[9] 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).

         The 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 this fact).

         Kline 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).

         The 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 fact).

         Kline's 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).[10] 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).[11] 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).[12]

         King is 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.”).[13]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).[14] In fact, King does not recall Gallegos. See MSJ ¶ 30, at 6 (asserting this fact)(citing King Depo. at 4-5).[15] 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).[16]

         The 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. 90-9).[17]

         King 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).

         Exhibit 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).[18] 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).[19]King did not escort Gallegos. See MSJ ¶ 38, at 7 (asserting this fact)(citing King Depo. at 20:15-19).[20] 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).[21] King does not have access to detainees' computer files. See MSJ ¶ 40, at 7 (asserting this fact)(citing King. Depo. at 15:11-20).[22]

         The Methadone Order should have been in Gallegos' file. See MSJ Response ¶ 14, at 5-6 (asserting this fact); Iverson Depo. at 6:14-25.[23] 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.[24] 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.[25] 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.[26] 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.[27]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.[28] 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.[29] 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 30:6-13).[30]

         PROCEDURAL BACKGROUND

         Gallegos filed this lawsuit in state district court on August 27, 2015. See Complaint, Gallegos v. Bernalillo Cnty. Bd. of Comm'rs, No. CIV 15-06829, 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.

         1. The Motion.

         Gallegos 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.

         2. The Response.

         The 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”).[31] 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.

         The 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.

         3. The Reply.

         Gallegos 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.

         4. The First Hearing.

         The 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).[32] 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 photographs.
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 that.
. . . .
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).

         The 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).

         5. The MSJ.

         After 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.

         The 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.

         6. The MSJ Response.

         Gallegos 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.

         Regarding 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.

         7. The MSJ Reply.

         The 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.

         The 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.

         Additionally, 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.

         Finally, 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.

         8. The Second Hearing.

         The 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 13:15-17 (Quinones).

         Gallegos 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, Court).

         Gallegos 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 that,

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.

         Second 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).

         Gallegos 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).

         The 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).

         LAW REGARDING MOTIONS TO AMEND

         “While 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.

         Fed. R. 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.

         Under 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. at 579-80.

         A court 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.[33] 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”).

         Refusing 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)).

         LAW REGARDING MODIFICATION OF SCHEDULING ORDERS

         “The 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.

         Fed. R. Civ. P. 16(b)(4) advisory committee's note to 1983 amendment.

         The 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, [34] 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 required.

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.

         Where a 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 noted:

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.

         In 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.

         In 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.

         LAW REGARDING MOTIONS FOR SUMMARY JUDGMENT

         Rule 56(a) of the Federal Rules of Civil Procedure states: “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “The movant bears the initial burden of ‘show[ing] that there is an absence of evidence to support the nonmoving party's case.'” Herrera v. Santa Fe Pub. Sch., 956 F.Supp.2d 1191, 1221 (D.N.M. 2013)(Browning, J.)(quoting Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir. 1991)). See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)(“Celotex”).

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).[35] 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 (1986)(“Liberty Lobby”).

         The party opposing a motion for summary judgment must “set forth specific facts showing that there is a genuine issue for trial as to those dispositive matters for which it carries the burden of proof.” Applied Genetics Int'l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir. 1990). See Vitkus v. Beatrice Co., 11 F.3d 1535, 1539 (10th Cir. 1993) (“However, the nonmoving party may not rest on its pleadings but must set forth specific facts showing that there is a genuine issue for trial as to those dispositive matters for which it carries the burden of proof.”)(internal quotation marks omitted). Rule 56(c)(1) provides: “A party asserting that a fact . . . is genuinely disputed must support the assertion by . . . citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials.” Fed.R.Civ.P. 56(c)(1). It is not enough for the party opposing a properly supported motion for summary judgment to “rest on mere allegations or denials of his pleadings.” 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)).

         Nor can a party “avoid summary judgment by repeating conclusory opinions, allegations unsupported by specific facts, or speculation.” Colony Nat'l Ins. Co. v. Omer, 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 Cir. 1988)).

         To deny a motion for summary judgment, genuine factual issues must exist that “can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.” 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).

         When reviewing a motion for summary judgment, the court should keep in mind certain principles. First, the court's role is not to weigh the evidence, but to assess the threshold issue whether a genuine issue exists as to material facts requiring a trial. See 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.

         There are, however, limited circumstances in which the court may disregard a party's version of the facts. This doctrine developed most robustly in the qualified immunity arena. In Scott v. Harris, 550 U.S. 372 (2007), the Supreme Court 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 original).

         The 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), [36] 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. 2012).

         LAW REGARDING QUALIFIED IMMUNITY

         Qualified 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).

         Under § 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).

         Qualified 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, J.).

         1. Procedural Approach to Qualified Immunity.

         The 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”).

         The Supreme Court recognizes seven circumstances where district courts “should address only”[37] 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.[38] “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).[39] 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.

         2. Clearly Established Rights.

         To 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)).

         “Ordinarily, 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).

         The 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.

         “[A] 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 (2002).

         Although 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 determined:

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 ...

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