United States District Court, D. New Mexico
G.V.R., by and through his parents and next friends, M.V.R. and S.R., Plaintiff,
THE ESPAÑOLA PUBLIC SCHOOLS; PETER ENGLER, in his individual capacity; ANDREW VALDEZ, aka JOHN ANDREW VALDEZ, In his individual capacity, Defendants.
MEMORANDUM OPINION AND ORDER
MATTER is before the Court on Defendant Andrew Valdez's
Motion to Dismiss and for Qualified Immunity, filed on May
14, 2018 (Doc. 16), Defendants Board of Education of
the Española Public School District and Peter
Engler's Motion to Dismiss and for Qualified Immunity,
filed on April 13, 2018 (Doc. 6), Plaintiff's
requests for limited discovery, to convert the motion to
dismiss to one for summary judgment, and to amend his
complaint, filed on May 11, 2018, as part of his Response
(Doc. 15) to the School Defendants' motion to
dismiss, and Plaintiff's Opposed Motion to Dismiss Counts
III and IV, filed on June 15, 2018 (Doc. 33).
Pursuant to 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73(b),
the parties have consented to me serving as the presiding
judge and entering final judgment. See Docs. 10-13.
considered the record, submissions of counsel, and relevant
law, the Court finds Defendant Valdez's motion to dismiss
(Doc. 16) should be denied, Defendants
Española Public School District and Peter Engler's
motion to dismiss (Doc. 6) should be granted in
part, Plaintiff's requests for discovery, to convert his
response to a motion for summary judgment, and to amend his
complaint (Doc. 15) should be denied, and
Plaintiff's motion to dismiss (Doc. 33) should
case arises from alleged physical abuse that G.V.R.
(“Plaintiff”), a minor child, suffered at the
hands of Defendant Valdez, who was employed as a music
teacher at Plaintiff's elementary school. Plaintiff
alleges that Defendant Valdez violated his substantive due
process rights, and that Defendants Board of Education of the
Española Public School District (“EPSD” or
“Board”) and Engler (collectively, the
“School Defendants”) failed to adequately screen,
train, and supervise Defendant Valdez, which led to
Plaintiff's injuries and deprivations of his
constitutional and statutory rights.
filed his original complaint in the First Judicial District
Court, State of New Mexico, County of Rio Arriba, on November
16, 2017. See Doc. 1-A. Plaintiff filed a First
Amended Complaint on January 12, 2018. See Doc. 1-B,
First Amended Complaint
(“FAC”). The School Defendants properly
removed the case to this Court on April 6, 2018. See Doc.
alleges the following counts against the Defendants: (1) in
Counts I-III, Plaintiff alleges that all three Defendants
violated his Fourteenth Amendment right to substantive due
process under 42 U.S.C. § 1983; (2) in Count IV,
Plaintiff alleges that EPSD violated his rights under Title
IX, 20 U.S.C. §§ 1681-88; and (3) in Count V,
Plaintiff alleges that Defendants EPSD and Engler violated
his rights under the New Mexico Tort Claims Act
(“NMTCA”), N.M. Stat. Ann. 1978 § 41-4-6.
See FAC ¶¶ 132-78.
Plaintiffs Allegations in the First Amended
November 18, 2015 Incident
fall of 2015, Plaintiff was a third grade student at Troy E.
Quintana “Sombrillo” Elementary School
(“Sombrillo Elementary”). FAC
¶¶ 4, 45. On November 18, 2015, Plaintiff and his
classmates attended Defendant Valdez's music class.
Id. ¶ 47. During class, Plaintiff put his feet
on a chair to show off his new shoes. Id.
¶¶ 48-49. “Defendant Valdez yelled at
[Plaintiff] to put his ‘fucking feet down.'”
Id. ¶ 50. Plaintiff complied, but later put his
feet back on the chair. Id. ¶ 51. Defendant
Valdez yelled, “I fucking told you to take your feet
off the chair.” Id. ¶ 52. Defendant
Valdez then “picked up the chair [Plaintiff] had his
feet on and slammed it down on the floor. [He] then punched
[Plaintiff] in his right shoulder three times with a closed
fist.” Id. ¶¶ 53-54. Defendant
Valdez kicked a second student in the shin, pulled a third
student to the ground by the hair, and shouted at the class
“that they were ‘stupid' and to ‘shut
up,' as well as yelled profanity at the students.”
Id. ¶¶ 55-56.
regular teacher, Ms. Valencia, eventually came to retrieve
her students from the music classroom. Id. ¶
58. “Ms. Valencia told the class that Defendant Valdez
said that they were very bad and [he] did not want any of
them to return to his classroom.” Id. ¶
59. Plaintiff then told Ms. Valencia what Mr. Valdez did.
Id. ¶ 60. Ms. Valencia reported the incident to
Defendant Engler, the principal of Sombrillo Elementary, and
asked if she should contact the students' parents.
Id. ¶¶ 4, 61, 63. Defendant Engler advised
Ms. Valencia that he would take care of the situation, and
she was not to contact parents. Id. ¶¶
that afternoon, Defendant Valdez reported to Defendant Engler
“and told him that he had ‘lost it' and had
‘lost control' of the class. He also stated that he
wished to drop that class.” Id. ¶ 64.
Defendant Engler did not contact the police or
Plaintiff's parents on November 18, 2015. Id.
Plaintiff got home from school that day, “his older
sister saw that he had blood on his clothes and that he had
soiled himself. [He] also began throwing up.”
Id. ¶ 67. When his parents arrived home that
night, they took Plaintiff to the hospital because he
“was acting strangely and was unable to walk.”
Id. ¶ 70. “The hospital treated [him] for
his shoulder pain” and diagnosed him “with
vertigo from the stress he had endured that day.”
Id. ¶ 71. “The physician also [said] that
the encopresis and enuresis were . . . due to stress.”
Id. ¶ 72. “Hospital staff contacted
police and State Police Patrolman Mario Herrera arrived at
the hospital and took a report.” Id. ¶
November 19, 2015, Defendant Engler collected written
statements from each of the children from [Plaintiff's]
class, including the three children” allegedly
battered by Defendant Valdez. Id. ¶ 75. Also on
November 19, 2015, Plaintiff's parents and Patrolman
Herrera met with Defendant Engler of their own accord -
Defendant Engler had not contacted them. Id.
¶¶ 78-79. “Defendant Engler stated that [the
school] had not contacted the parents of the students
assaulted by Defendant Valdez because he had wanted to
investigate first, there was a lot going on, and he did not
have time to contact them.” Id. ¶ 80.
“Defendant Engler confirmed that [Plaintiff's]
story was true and relayed the confirming statements of the
other students.” Id. ¶ 81.
EPSD's Human Resources Director interviewed him,
Defendant Valdez admitted to grabbing the chair Plaintiff had
his feet on and setting it down “hard, ”
“slapping” Plaintiff with the back of his hand,
and yelling at students. Id. ¶¶ 83-86.
EPSD terminated Defendant Valdez's employment on November
23, 2015. Id. ¶ 89. The New Mexico Public
Education Department (“PED”) and Defendant Valdez
later “agreed to a suspension of his teaching license
for two years, which was deferred on” certain agreed
conditions. Id. ¶ 90. As part of the agreement,
Defendant Valdez admitted that “he engaged in
inappropriate contact with three students and used
inflammatory and derogatory language with students . . .
.” Id. ¶ 91 (quotation marks omitted).
Valdez was also criminally indicted for three counts of child
abuse in violation of N.M. Stat. Ann. 1978 § 30-6-1D(2)
for his actions on November 18, 2015. Id. ¶ 92.
Defendant Valdez ultimately pleaded guilty to three counts of
battery and received a sentence of six months of jail for
each count, which the court suspended on the condition of 18
months of supervised probation. Id. ¶¶ 94,
continued to suffer physical and emotional effects from the
physical assault, including pain and numbness, bruising,
feeling his shoulder “pop” in and out of place,
decreased mobility, torn tendons in his shoulder, problems
sleeping, sleepwalking, continued episodes of enuresis and
encopresis, a diagnosis of post-traumatic stress disorder
(“PTSD”), and a fear of school. Id.
¶¶ 97-118. Plaintiff was homeschooled for a time
because of his fear of school and later switched to another
school because he did not want to attend school in
Española. Id. ¶¶ 105, 107.
Plaintiff also attended physical therapy due to the problems
with his shoulder, as well as counseling for his emotional
trauma. Id. ¶¶ 99, 119.
to 2015, Defendant Valdez had at least three brushes with law
enforcement for criminal conduct. First, in 2008, the New
Mexico State Police investigated Defendant Valdez for
criminal sexual contact. Id. ¶ 12. According to
Plaintiff's retelling of the police report, Defendant
Valdez went to a woman's residence to pick up wood she
was giving away. Id. ¶ 13. Although the woman
“told him she did not wish to have sex, ”
Defendant Valdez allegedly “pull[ed] up her shirt[, ]
pulled down her bra[, ]” and “ran his hand up her
thigh.” Id. ¶¶ 14-15.
“Defendant Valdez told police their contact was
consensual and he left because she had lied about her age.
No. charges were ultimately filed against Defendant Valdez
for these allegations.” Id. ¶¶
2011, the New Mexico State Police investigated Defendant
Valdez after his four-year-old granddaughter told her mother
(and later a Safehouse interviewer) that he had touched her
vaginal area. Id. ¶¶ 19-20. No. charges
were ever filed against Defendant Valdez based upon this
report. Id. ¶ 21. EPSD employed Defendant
Valdez in 2011 as a music teacher. Id. ¶ 22.
2012, Defendant Valdez was arrested and charged with”
three crimes: battery; resisting, evading, or obstructing an
officer; and use of telephone to harass. Id. ¶
23. It was alleged that on September 23, 2012, Defendant
Valdez entered a Mini Mart, grabbed one cashier's groin
area, and touched a second cashier's breast. Id.
¶¶ 24-25. He later allegedly called one of the
cashiers and made inappropriate, harassing statements.
Id. ¶ 26. Defendant Valdez then resisted orders
from officers who went to his residence. Id. ¶
27. All charges related to this incident were dismissed in
2013, after Valdez entered into an agreement for a
conditional discharge with supervised probation. Id.
¶¶ 28-29. EPSD hired Defendant Valdez sometime
after this incident to teach music at Sombrillo
Elementary. Id. ¶ 31.
2014, Defendant Valdez allegedly “physically battered a
female student at Sombrillo Elementary . . . .”
Id. ¶ 33. Plaintiff further alleges that about
one month before the November 2015 incident at issue in this
lawsuit, “Defendant Valdez physical battered Plaintiff
. . . by pulling up his underwear.” Id. ¶
Elementary Staff and Policy
second Sombrillo Elementary teacher has also been charged
with abuse of his students in the past: in 2012, teacher
Jimmy Montoya was charged with criminal sexual contact of
nine minor students at Sombrillo Elementary. Id.
¶ 37. “There is evidence that one of the students
disclosed an instance of inappropriate contact to another
teacher, who did not report it.” Id. ¶
38. Plaintiff alleges that EPSD hired Mr. Montoya
“despite numerous prior allegations of sexual abuse or
sexual harassment of students by him in Santa Rosa and
Socorro, New Mexico, which resulted in the one-year
suspension of his license in 1999.” Id. ¶
also asserts that around the time of the incident at issue
here, Sombrillo Elementary teachers “were behaving
angrily towards their students by getting in their faces and
screaming at them.” Id. ¶ 43. Finally,
Plaintiff alleges, “Defendant Engler had a policy . . .
that teachers at Sombrillo Elementary School were not allowed
to contact parents directly.” Id. ¶ 42.
reviewing a motion to dismiss under Fed.R.Civ.P. 12(b)(6),
the Court “must accept all the well-pleaded allegations
of the complaint as true and must construe them in the light
most favorable to the plaintiff.” In re Gold Res.
Corp. Sec. Litig., 776 F.3d 1103, 1108 (10th Cir. 2015)
(quotation omitted). “To survive a motion to dismiss,
” the complaint does not need to contain
“detailed factual allegations, ” but it
“must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on
its face.'” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555, 570 (2007)). “A claim has facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Id. (citing Twombly, 550 U.S. at 556).
Plausibility does not equate to probability, but there must
be “more than a sheer possibility that a defendant has
acted unlawfully.” Id. (citing
Twombly, 550 U.S. at 556).
The Court will not dismiss Plaintiff's claim against
Defendant Valdez under 42 U.S.C. §
Count I, Plaintiff brings a claim against Defendant Valdez
pursuant to Section 1983 for violations of his substantive
due process right to bodily integrity. See
FAC ¶¶ 121-31. Plaintiff asserts that
Defendant Valdez's actions on November 18, 2015, were
egregious, outrageous, and shocking to the conscience.
Id. ¶¶ 126, 128. Section 1983 of Title 42
“provides that a person acting under color of state law
who ‘subjects, or causes to be subjected, any citizen
of the United States . . . to the deprivation of any rights,
privileges, or immunities secured by the Constitution and
laws, shall be liable to the party injured.'”
Scott v. Mid-Del Sch. Bd. of Educ., 724 Fed.Appx.
650, 653 (10th Cir. 2018) (quoting 42 U.S.C. § 1983).
individual defendant sued under § 1983 ‘may raise
a defense of qualified immunity, which shields public
officials from damages actions unless their conduct was
unreasonable in light of clearly established law.'”
Id. (citing T.D. v. Patton, 868 F.3d 1209,
1220 (10th Cir. 2017) (ellipsis, internal quotation marks,
and citation omitted), cert. denied (U.S. Mar. 5,
2018) (No. 17-1021)). To overcome a qualified immunity
defense, “the plaintiff carries a two-part burden to
show: (1) that the defendant's actions violated a federal
constitutional or statutory right, and, if so, (2) that the
right was clearly established at the time of the
defendant's unlawful conduct.” T.D., 868
F.3d at 1220 (quotation omitted). “To meet this heavy
burden the ‘plaintiff may show clearly established law
by pointing to either a Supreme Court or Tenth Circuit
decision, or the weight of authority from other courts,
existing at the time of the alleged violation.'”
Scott, 724 Fed.Appx. at 653 (quoting T.D.,
868 F.3d at 1220 (internal citation omitted)).
“Although there need not be a case directly on point,
[a state actor] cannot be said to have violated a clearly
established right unless the right's contours were
sufficiently definite that any reasonable official in his
shoes would have understood that he was violating it.”
Id. (quoting T.D., 868 F.3d at 1220
(internal quotation marks and citations omitted)).
The Court will use the Fourteenth Amendment
standard to analyze Plaintiff's claim.
due process clause of the Fourteenth Amendment prohibits
‘executive abuse of power . . . which shocks the
conscience.'” Muskrat v. Deer Creek Pub.
Sch., 715 F.3d 775, 786-87 (10th Cir. 2013) (quoting
Cty. of Sacramento v. Lewis, 523 U.S. 833, 846
(1998)). The Tenth Circuit has held
that a form of the shocks-the-conscience test applies to
school-inflicted corporal punishment:
[T]he substantive due process inquiry in school corporal
punishment cases must be whether the force applied caused
injury so severe, was so disproportionate to the need
presented, and was so inspired by malice or sadism rather
than a merely careless or unwise excess of zeal that it
amounted to a brutal ...